On Jason Ray, revisited

On ESPN, they are telling the powerful story of the fellow who was the Tar Heel mascot, and lives on through others.

On being a Minor Wikipediast

I was amused by my recent additions to Wikipedia, until I read of the prior case of William Chester Minor - physician, murderer, lunatic - and extensive contributor to the Oxford English Dictionary.

Arbitrator gets to decide choice of law and venue

In Burress v. John Deere Constr. & Forestry Co., Judge Wilson ruled in the matter of a dispute subject to arbitration that the arbitrator would get to decide which state's law applies and where the arbitration would be held.

I'm not sure about that last part - where the arbitration is held could have osme effect on where subsequent court action to enforce or overturn the award has to be brought. 9 U.S.C. 9 ("If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made."). Does the arbitrator get to decide where his award will be reviewed? Perhaps so.

On hobbling the press

If a picture is worth 1,000 words, then this editorial in the Bristol paper, criticizing Judge Kirksey's gag orders in high-profile murder cases, makes me wonder: since the newspaper frequently can't get the words right, why not let them have a few pictures?

On Grisham

In Charlotteville over the weekend, both The Hook and C-Ville Weekly had articles about a defamation suit brought in federal court in Oklahoma against John Grisham by a prosecutor and investigator on the wrong side of the case against The Innocent Man.

Maybe he said "oom" and the officer was listening upside-down

From the Court of Appeals -

"When Jenkins kissed the baggie, waved it around, and pronounced a celebratory 'Woo,' he hardly displayed a level of merriment appropriate for a thimble-full of flour, baking soda, or salt."

Judge Kelsey, in Com. v. Jenkins.

Judges of the W.D. Va.

Now on Wikipedia -

The first judge of the W.D. Va was John G. Jackson, who married a sister of Dolley Madison, got shot in a duel while he was in Congress, and served on the commission that met at Rockfish Gap to decide where to locate the University of Virginia. He was appointed by James Monroe in 1819.

The second judge of the W.D. Va. - Philip Pendleton - was also on the Rockfish Gap commission - and voted for Lexington. Pendleton and his successor Alexander Caldwell were both recess appointments of John Quincy Adams. Jackson, Pendleton, and Caldwell were all from counties that are now part of West Virginia.

The fourth judge of the W.D. Va., Isaac Pennybacker, got a recess appointment from Martin Van Buren at age 34, resigned from the bench and became a U.S. Senator, and was named by James K. Polk to the very first Board of Regents of the Smithsonian Institution.

The fifth judge of the W.D. Va. was John White Brockenbrough, who started the law school at Lexington, and who opposed secession but quit his judgeship to join the Confederacy. After the war, Brockenbrough was the one who put to Robert E. Lee the idea of joining up with Washington College. Brockenbrough's successor, John Jay Jackson, Jr., the grandson of John G. Jackson, was appointed by Abraham Lincoln and held court in the western Union counties until they became West Virginia, then served on as district court judge in West Virginia for another forty years, becoming known as the "Iron Judge."

During the Civil War and after, there was no Western District of Virginia. The federal courts were consolidated into the District of Virginia, and the only judge was the abolitionist John C. Underwood. When the Western District was recreated, the next judge was Alexander Rives, who became a federal judge after he was not re-elected to the Virginia Supreme Court and lost an election for Congress. In the Congressional race, Rives got his opponent's civil rights restored without charging the usual fee, and bragged about it until the opponent paid the fee to shut him up on that issue.

After Rives retired, Judge Robert W. Hughes of the Eastern District, who had a home in Abingdon, came and heard cases in the Western District for a while. Hughes had gone over from being a rabid secessionist to becoming a Republican, a transformation that led to a duel with the writer of a newspaper editorial against him. Unlike Judge Jackson, Hughes walked away from his duel, having shot the newspaperman.

Rives was eventually succeeded by Judge John Paul. Judge Paul resigned his seat in Congress to take his judgeship, during the pendency of what would become a successful challenge to the outcome of the election.

To replace Judge Paul, Theodore Roosevelt gave a recess appointment to Henry Clay McDowell, a great-grandson of Henry Clay.

Of Judge McDowell, Judge Emory Widener told this story:

"Judge Henry Clay McDowell was presiding and, after a strenuous trial of several days, directed a verdict in favor of the defendant. The lawyer representing the plaintiff was Dan Trigg, a giant of the bar and the leading lawyer in Western Virginia. Judge McDowell bent over to tie his shoe, and the bench, at that time being elevated some two feet above the floor of the courtroom, screened him from the sight of everyone in the room. “Damn a federal judge anyhow,” Mr. Trigg exclaimed, being audible to all. Judge McDowell, of course, heard the remark, but remained stooped over and left the courtroom by a door just behind the judge's chair so that no one knew he was in the room. He later summoned all the other lawyers in the courtroom to his chambers and said that he had heard Mr. Trigg's remark. He asked the lawyers if anyone in the room knew that he had heard it. When the lawyers advised him that no one had, he stated the rule that lawyers had a constitutional right to cuss the judge and, since Mr. Trigg didn't know he had been heard, he was not going to be fined." "Remembering the Fourth Circuit Judges: A History from 1941 to 1998," 55 Wash. & Lee L. Rev. 471, 473 (Spring 1998).

McDowell practiced law for a while in Big Stone Gap and made the acquaintance of the author John Fox, Jr., who included him as a character in one of his books. McDowell served for thirty years, and his replacement, John Paul, Jr., was the son of his predecessor.

The second Judge Paul graduated from VMI, soldiered in Europe in World War I, and attended the Republican National Conventions in 1912, 1916, 1920, and 1924, before he was made U.S. Attorney in 1929 and District Judge in 1932. He was the last of the W.D. Va. judges to work alone. A second position on the W.D. Va. was created, but the first nominee didn't last long - the Senate rejected Floyd Roberts from Bristol, another recess appointee, by a vote of 72-9.

Roberts' nomination became a point of contention between Franklin Roosevelt and Senator Carter Glass from Virginia, about whether Roosevelt should consult with the Senators on federal positions in the Commonwealth. When Glass complained about reports that Roosevelt had promised veto power to Virginia's Governor James Price, and that Glass had not been consulted over the nomination of Roberts, Roosevelt responded that "Senator Glass that he had not been consulted over Roberts' selection, Roosevelt responded "that he was happy to consult Glass, but reserved the right to consult others, including, if he wished, 'Nancy Astor, the Duchess of Windsor, the WPA, a Virginia moonshiner, Governor Price or Charlie McCarthy.'" Glass and the Senate were unamused.

Roberts was succeeded by Armistead Dobie, who went on to the Fourth Circuit shortly thereafter, and among other things, wrote his own history of the judges of the District. Hon. Armistead M. Dobie, "Federal District Judges in Virginia before the Civil War," 12 F.R.D. 451 (1951,1952).

Fourth Circuit affirms rulings in Novell v. Microsoft anti-trust case

In the case of Novell v. Microsoft, the Fourth Circuit in an opinion by Judge Shedd, joined by Judge Duncan, affirmed the trial court rulings granting dismissal of some but not all of Novell's anti-trust claims in MDL litigation against Microsoft.

The two claims that were not dismissed related to operating systems; the other claims, held to be time-barred, related to word processing and spreadsheet software programs.

The Court overruled Microsoft's argument that Novell lacked standing for anti-trust remedies related to operating systems, while observing: "We do not view our decision with respect to Novell as unduly expanding the universe of private antitrust plaintiffs." I guess that remains to be seen, although perhaps what the ruling on standing giveth, the statute of limitations takes away for the losers in the computer business of the 1990s. On limitations, the Court held that Novell's claims were not tolled by the government anti-trust actions brought against Microsoft by the U.S. Department of Justice and other governments.

On Justice Goodwyn

I was out and about when the word came down that Governor Kaine has selected Circuit Court Judge S. Bernard Goodwyn to succeed Justice Lacy on the Virginia Supreme Court. Here is the press release from the Governor's office. The Attorney General released this statement supporting the confirmation of Goodwyn in the upcoming General Assembly session.

Here is a reprint of the article about him in the Norfolk paper when he was appointed to the District Court in 1995. Here is a similar article from when he was appointed to the Circuit Court in 1997. Here is yesterday's article by Warren Fiske, which notes: "Goodwyn was an honor student at Southampton County High School and quarterbacked the football team to a 1979 state championship, a 56-6 drubbing of Gate City High whose roster included Jerry Kilgore, the Republican nominee for governor in 2005. Goodwyn threw for two touchdowns and ran for one in the game." Before becoming a judge, Goodwyn was with the Willcox & Savage firm in Norfolk - the same firm as U.S. District Court Judge Walter Kelley.

Here is the article from the Washington Post, and here is a story from the Richmond paper.

Which birthday was it on Saturday?

Think Richard Petty.

(Photo from this flickr source).

On getting barred from the 27th Circuit

The Roanoke Times reports here that Circuit Judge Showalter has "taken the unusual step of barring a Christiansburg lawyer from practicing law in his judicial circuit.."

District Court decision affirmed in Virginia open primary case

Today, in Miller v. Brown, the Fourth Circuit in an opinion by Senior Judge Wilkins, joined by Judge Duncan, affirmed in its entirety the prior decision by District Judge Henry Hudson in the open primary case, rejecting the issues raised by the plaintiffs and the election officials.

Didn't hear the last 2:00

It appears I wasn't the only one with this experience, as I received an e-mail that says:

September 25, 2007

Dear V-Pass Customer,

We apologize the live online audio broadcast of Georgia Tech at Virginia football game on Saturday, Sept. 22 dropped silent near the end of the game. We have resolved the technical issue that caused this to happen and we are confident a similar occurrence will not happen again.

----

Pay $40, and it conks out right at the end of the game.

Your division leader

ACC COASTAL DIVISION

School, Conference, Overall

Virginia, 3-0, 3-1

Miami, 0-1, 3-1

Virginia Tech, 0-0, 3-1

Duke, 0-1, 1-3

North Carolina, 0-1, 1-3

Georgia Tech, 0-2, 2-2

Weekend project

Since I didn't go to the Georgia Tech game, didn't work, didn't play golf, and didn't mow the grass, yesterday and today I wrote my first-ever Wikipedia entry, on Judge Robert W. Hughes.

Best thing I read today

Today's Bristol paper had this Sharon Randall column, about taking her brother, a life-long Clemson fan who is blind, to his first in-person Tigers football game at Death Valley.

It says they had a big time.

The last time I linked to Sharon Randall, her son took her to the Final Four.

On the late Judge Cridlin

Besides Judge Widener on Wednesday, retired Judge Joseph Cridlin of Lee County died on Friday.

The Bristol paper published this obituary:

"JONESVILLE, Va. – Judge Joseph N. Cridlin, 94, of Jonesville, Va., was born April 13, 1913 and passed away Sept. 21, 2007, at Lee Regional Medical Center in Pennington Gap, Va.
His parents, Judge George Patton Cridlin and Sallie Campbell Smith Cridlin, preceded him in death.
Judge Cridlin was a lifelong resident of Lee County and a graduate of William & Mary College and the Marshall Wythe School of Law. He began his law practice in Jonesville in 1935 and was appointed as a Virginia Circuit Court judge in 1960, retiring in 1975. He continued to do substitute judicial work for the next 20 years and was a member of the Virginia State Bar for 72 years. At the time of his death, Judge Cridlin was president and chairman of the board of Powell Valley National Bank in Jonesville.
Judge Cridlin served in the U.S. Army for four years during World War II with tours of duty in Australia, New Guinea and the Philippines. He was commissioned as a 1st lieutenant before being discharged in 1946.
Judge Cridlin was a lifelong member of the Jonesville First United Methodist Church, where he taught Sunday school for over 40 years. He was a charter member and first president of the Jonesville Lions Club in 1940. He was also a charter member of the Cedar Hill Country Club, a Mason and a member of Preston Masonic Lodge No. 47 AF&AM since 1940.
In addition to his parents, Judge Cridlin was preceded in death by his wife, Fay Fuller Cridlin, brother, Clyde Y. Cridlin, and sister, Roberta Cridlin Vergara.
He is survived by son, George Fuller Cridlin and wife Karen, Jonesville, Va.; daughter, Josephine Cridlin Roddenberry and husband Ken, Jonesville, Va.; grandchildren, Stephanie Rowlett Dourado and husband Eli, Arlington, Va., Joseph Patton Cridlin and wife Shelley, St Petersburg, Fla., and Harrison Fuller Cridlin, Jonesville, Va."

Not too long ago I had this post about Judge Cridlin.

Terminological inexactitude and qualified immunity

For reasons that are not entirely clear to me, Judge Shedd in the case of Henry v. Purnell decided to hold forth on a number of the oddities of the law of qualified immunity, in the Fourth Circuit.

The Supreme Court requires the two-parts of the qualified immunity to be addressed in a particular sequence, for reasons that are not entirely satisfactory. The initial inquiry is whether the plaintiff has stated or proven sufficient facts to show a constitutional violation - in other words, does the plaintiff have a case on the merits? If the trial court decides this first inquiry against the plaintiff, is it a decision based on qualified immunity, or not? And, does it matter?

Judge Shedd notes:

"When resolving cases on the first Saucier question, courts sometimes state that the absence of a constitutional violation entitles the defendant to qualified immunity. At least one circuit court has specifically rejected this approach, noting that a defendant in that instance prevails not because of qualified immunity but, instead, because the plaintiff "did not prove an essential element of the § 1983 claim." Ambrose v. Young, 474 F.3d 1070, 1077 n.3 (8th Cir. 2007). In several recent opinions, the Supreme Court appears to have segregated the initial Saucier inquiry of whether a constitutional violation occurred from the second inquiry of whether the defendant is entitled to qualified immunity. See, e.g., Morse v. Frederick, ___ U.S. ___, 127 S. Ct. 2618, 2624 & n.1 (2007) (expressly declining to decide the case on qualified immunity grounds based on the conclusion that no constitutional violation occurred); Groh v. Ramirez, 540 U.S. 551, 563 (2004) ("Having concluded that a constitutional violation occurred, we turn to the question whether petitioner is entitled to qualified immunity despite that violation."); Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (expressing "no view as to the correctness of the Court of Appeals’ decision on the constitutional question" because, in any event, "the Court of Appeals was wrong on the issue of qualified immunity"); see also id. at 601 (Breyer, J., concurring) (noting that Saucier "requires lower courts to decide (1) the constitutional question prior to deciding (2) the qualified immunity question")."

Of course, the characterization makes some practical difference when the defendant's motion for summary judgment is denied, because an ordinary denial of summary judgment on the merits is not immediately appealable, but denial of a motion for summary judgment based on qualified immunity is immediately appealable.

The second point is how does the burden of proof apply to a motion for summary judgment based on qualified immunity. This opinion, for the first time that I can recall, undertakes a thorough survey of the language from the Fourth Circuit precedents on this point, which are contradictory and inconsistent with the explanations from some other circuits. Qualified immunity is an affirmative defense, that the defendant must raise, but the burden of proving the claim on the merits is always on the plaintiff.

Judge Shedd explained:

"The plaintiff bears the burden of proof on the first question — i.e., whether a constitutional violation occurred."

He goes on to say:

"The defendant bears the burden of proof on the second question — i.e., entitlement to qualified immunity."

In making this statement, the judge noted that other circuits and some of the Fourth Circuits take the opposite view. I'm not sure that even makes sense to say the defendant has the burden of proof on what is essentially a legal question - was the constitutional right violated by the defendant clearly established?

The Green and the Gold

A while back I read this item which says, among other things, that the faculty of the College of William & Mary have given their green and gold to federal candidates for '08 (as of July 30, 2007) at a ratio of 99% to Democrats and 1% to Republicans.

The Flat Hat says a Facebook survey shows that liberals outnumber conservatives among the William & Mary students on Facebook, 2.84 to 1.

Some links

The Judicial Conference says - transcripts will soon be available online, through PACER at eight cents per page.

Once again, the NY Times says, it will quit charging for much of its content.

Here in this Megan McArdle post is debated the question, "How conservative is the Supreme Court? How deep is the ocean? How high is the sky?"