Another LeClairRyan merger

Here it says that LeClairRyan is merging with Wright Robinson Osthimer & Tatum.

Just in case you were wondering if that sort of thing was still going on.

What did the ABA say about those other Fourth Circuit nominees?

It says here that the ABA gave the well-qualified rating to Fourth Circuit nominees Robert Conrad and Rod Rosenstein, but Steve Matthews got the dreaded "Q/NQ," as in there was a split vote, and the minority thought the rating should be "not qualified."

On Boucher, Superdelegate

This commentary by Paul Goldman reports that somebody has been complaining that Rick Boucher ought to vote for Clinton, since she carried the Ninth District.

Sure, as soon as Jennifer McClellan and the rest of the Virginia supers where Obama carried the vote change their endorsements - which they say they will not.

Is this one for Bill O'Reilly, Michael Savage, or Lou Dobbs?

The Bristol paper reports here that an illegal immigrant from Mexico was sentenced by Judge Lowe of the Washington County Circuit Court to 26 life terms in prison, one for each month that he molested a young girl.

The article does not say which Southwest Virginia employer or employers had been paying him, right here in Washington County.

Also today came published reports such as this one, indicating "Immigrants in California, including those without documents, are 'far less likely' than the native-born to end up incarcerated for crimes, according to a study released Monday by the Public Policy Institute of California."

That report is available here.

One for the Chamber of Commerce

Over the weekend, the Bristol did a front page story on the continued use of outhouses in Southwest Virginia.

I remember the outhouses that were on the farms where my dad grew up and where my mom grew up. The latter was referred to as Grandpa Conrad's "office."

Also, I recall there was one at the old band director's cabin, wherever that was, complete with instructions in the form of a bit of verse.

Matthews, you jerk

Last night, Chris Matthews slipped a cog and blistered some mild-mannered Texan standing in for the Obama campaign about what legislation has Obama gotten passed, ever in his life.

One answer is that Obama, having been a legislator for several years longer than has Ms. Clinton, got his fair share of bills passed in the Illinois state legislature, during the period when he was in the majority party and during which time he enjoyed a favorable relationship with the Senate leader, Emil Jones - or so said that Obama book by David Mendell I read earlier in the month.

As it says here on the Waldo-styled GovTrack website, "Hillary Clinton has sponsored 354 bills since Jan 22, 2001, of which 307 haven't made it out of committee (Extremely Poor) and 2 were successfully enacted (Average, relative to peers)."

Of course, seniority and majority have more to do with the outcome of the "Dance of Legislation" than anything else, and so it is unsurprising that so few bills sponsored by Ms. Clinton have passed.

On counting to 2

In U.S. v. Gardner, where the federal statute required 2 felony drug convictions for a life sentence, Chief Judge Jones counted only one, concluding among other things that the defendant's fake dope conviction did not count.

Don Shula's first coaching gig - 50 years ago in Charlottesville

Doug Doughty has this fun piece about the 50th anniversary of the employment of Don Shula as an assistant football coach at the University of Virginia in 1958, ten years before he went to the Super Bowl as coach of the Colts and fifteen years before his Miami team finished its undefeated season, about which team I have written here and elsewhere.

Should Virginia lawyers be subject to random audits of trust accounts?

This article in the Norfolk paper says that this year's VSB President Howard W. Martin, Jr., favors random audits of lawyer trust accounts in Virginia, as has been done in North Carolina for 23 years.

I'm in favor, on two conditions: (1) no dues increase, and (2) no discrimination against solos and very small firm lawyers (meaning firms smaller even than ours).

Lack of due diligence?

It has been reported here and elsewhere that Judge Kelley of the E.D. Va. is going to resign because: (1) federal judges spend much of their time dealing with icky criminal cases, and (2) partners in D.C. law firms get more money.

These obscure facts must have come as shocking revelations, whenever he discovered them during his brief tenure on the bench. I'm thinking Chief Justice Roberts should not have sent Kelley that copy of his year-end report.

More on the Exam Dream

Previously, I've written about The Exam Dream, my own personal version of which most commonly involves Lynda Butler, who at different points in her life taught first calculus and later the Rule Against Perpetuities, and such other and further details as Old Cabell Hall and no bluebook.

Now, she is the acting Dean of the Law School, as the result of the musical chairs since Gene Nichol quit. Whether this will have an effect on my subconscious, only time can tell.

The funny thing is, Professor Butler was not especially cruel or unusual way back when; in my last dealings with her, she liked my paper on impact fees, even though subsequent history has shown my "intermediate scrutiny" thesis based on Nollan v. California Coastal Commission to be mostly wrong, after the Supreme Court's 2005 decision in Lingle v. Chevron.

A few I missed

Overlawyered had this post on the Virginia law of sangria, now subject to an amendment as part of a broader fix of the ABC laws (and which our own Del. Johnson voted against) and this post about a lawsuit against a golf course in Virginia Beach, brought by a passing driver struck by an errant shot - plus a link to this Novak story that says Obama will pick Edwards as AG.

This Professor Berman post discusses an article about how the brunt of the crack cocaine resentencings will fall on Virginia. Related to that topic, the W.D. Va. has a new set of guidelines for handing such matters.

Pleaded v. pled

Last month, David Lat had this post, on the topic of which is the more correct usage, pleaded vs. pled, as the past tense of the verb, "to plead."

On the state court side, Westlaw gives the impression that Chief Justice Hassell, Justice Kinser, Justice Lemons, Chief Judge Felton, Judge Kelsey, Judge Humphreys, Judge McClanahan, and Senior Judge Coleman prefer "pled," but Judge Elder has more frequently used "pleaded," as did former Chief Justice Carrico.

The U.S. Supreme Court prefers "pleaded." Brian Garner says "pleaded" is more common.

The other day I got an opinion from the W.D. Va. that used both, and determined that the same judge has used both in 24 different opinions, which leads me to conclude that he would say the point is pointless - and not the first from me.

Late notice

Nobody told me that the dog from Bill Bradshaw's law office passed away one year ago. I've never been there when she wasn't.

I have a story about that dog, but I can't tell it, except to say that she earned her keep.

Everything wrong with Bill Clinton in one interview

Here he says all these things:

Bill Clinton dismisses the outcome of the voting in the caucus states, because the caucus participants are "disproportionately favor upper-income voters who, who, don't really need a president but feel like they need a change." I don't even know what that means, but it sounds like hypocrisy if the same standard of "disproportionateness" is not applied to the super-delegates or even more broadly to the unfairly selected delegates from Florida and Michigan.

Bill Clinton claims that Hillary Clinton has been the underdog since the Iowa caucuses because of the opposition of "a lot of the politicians, like Senator Kennedy" and because lack of funds, all in spite of which she managed to get "plenty of delegates on a shoestring." But Hillary Clinton has more politicians, including Bill Clinton himself, and thus she leads in the super-delegate count. The "shoestring budget" was more money than any other candidate but Obama ever had to spend, and two or three times what federal funding would have provided.

On the MSNBC reporter who was suspended for what he said about Chelsea Clinton, Clinton said that if the reporter had "made a racial slur against Senator Obama, he would have been fired." Lots of people think Clinton himself made a racial slur by comparing Obama to Jesse Jackson instead of to John Edwards, when trying to make a point about recent campaigns that won in South Carolina but later came to naught. Or, maybe Bill Clinton is just stuck in the '80s.

On Ms. Clinton's protest over what was said about Chelsea Clinton, which included her threat to pull out of a debate on MSNBC, Clinton said that Ms. Clinton "just stuck up for her daughter, and for girls everywhere, and women everywhere, and it’s about time somebody did after a lot of the rhetoric we’ve been through in this election." I had understood that Clinton himself was a menace to girls and women everywhere. I mean, it can't be a coincidence that my good friend the old Democrat from over in Norton made sure to take his new wife out of the country, during the very same week that Bill Clinton was on the loose in Southwest Virginia.

Reading just now

I just finished reading Obama: From Promise to Power, by David Mendell, the reporter (and blogger), and started That Man: An Insider's Portrait of Franklin D. Roosevelt, by Justice Robert H. Jackson and edited by John Barrett, the fellow who puts out the Jackson e-mail list.

I expected to see and saw that one of Obama's patrons was Abner Mikva, who was referenced in the Clarence Thomas book as the least favorite of his colleagues from his days on the D.C. Circuit, and whose representation by John Tucker is described in Tucker's book, Trial and Error: The Education of a Courtroom Lawyer. Mikva was Democratic Congressman, who was gerrymandered out of office but not before one or two recounts, in which he had Tucker and others to represent him. Also, he was counsel to the White House under President Clinton, after he retired from the D.C. Circuit. The Mendell book about Obama fits well with Tucker's account of Chicago politics. It convinced me that Obama is somewhat like all the rest, inevitably so, and makes me wonder that sparks will fly soon when Clinton and/or McCain lights into him - if they ever do.

I thought the Mendell book was very entertaining, much of it sort of a "Fear and Loathing" tale of Obama's Congressional and Senatorial campaigns, and "The Plan" that followed, including his "congressional" trip to Africa in 2006, up to the announcement of his campaign for president - the stuff that Obama did that drove his campaign pros crazy.

At pages 54 and 55 of Jackson book can be found this story about the nominations of Floyd Roberts from Bristol, then Armistead Dobie, to the new position on the U.S. District Court for the Western District of Virginia:

"The President challenged and tested this practice [of senatorial courtesy] in Virginia, by making a district judge appointment in the summer of 1938 without consulting Senators Carter Glass and Harry Byrd, but I think after consultation with Governor James H. Price, who was at odds with the senators. That man, whose name was Floyd Roberts, was admittedly a competent man to hold the position, but because of the failure of the President to consult them, Senators Glass and Byrd opposed the confirmation. It became very plain that the President could not get the man confirmed. The President was plainly defeated. It was a stalemate. He would not withdraw the nomination. The post was vacant.

One day we were down on the President's yacht over the weekend, fishing and relaxing. The President said, 'I've got a job for you, Bob, and for 'Pa' Watson. I want you to go down to Charlottesville and see if you can't get Armistead M. Dobie, the Dean of the University of Virginia Law School, to accept the appointment as district judge. I think if I send his name to the Senate, the Senators from Virginia will not dare turn him down.' He thought Glass and Byrd would support Dobie and thereby break the deadlock without loss of face to anybody.

It was plain that the contest at that point had become one of personal prestige, and the President wanted to put one over that they would not dare resist. This was when I was Solicitor General, not Attorney General. He was apparently handling the matter quite independently of Attorney General Murphy. He said that there was a vacancy coming up on the Fourth Circuit Court of Appeals, and that if Dobie accepted the appointment to the district court, we could say that the President would feel that he should be promoted to the Court of Appeals when the vacancy occurred.

So 'Pa' Watson and I took a White House car and made an appointment to see Dean Dobie at the Farmington Country Club in Charlottesville. We sailed forth. When we got in the vicinity, 'Pa' Watson in his genial southern way, said, 'Bob, you handle the heavy thinking in this, and I'll go out and get a bottle of bourbon.' I talked with Dean Dobie while 'Pa' took a little trip. When 'Pa' came back, I introduced him to 'Judge' Dobie. The Dean had agreed to accept the appointment. About ten o'clock, after we had dinner and duly induced the Dean to accept, we telephoned the President that we had met the enemy and he was ours. The President immediately sent his name to the Senate, and there was a prompt announcement from Senators Byrd and Glass that they would vote for his confirmation."

I love that story. General Edwin "Pa" Watson was Roosevelt's military aide and de facto chief-of-staff, who lived at Kenwood outside Charlottesville, and died on the return from Yalta.

Up for argument later this month

One case is LEVISA COAL COMPANY v. CONSOLIDATION COAL COMPANY, out of Buchanan County, where the assignments of error are these:

1. The trial court’s ruling contradicts the holding in Clayborn v. Camilla Red Ash Coal Co., and other cases, which provides that a coal owner like Levisa owns the coal and appurtenant rights necessary to access and mine its coal, but not unrelated rights such as the right to store mine water from another’s mine.
2. The trial court erred in ruling that the 1956 Lease permits Consolidation to dump contaminated mine water into VP3 because Consolidation was not a party to the lease; Consolidation did not acquire rights under the lease; the lease itself prohibits assignment to another party; Consolidation and Island Creek are separate and distinct corporations; the 1956 Lease does not permit any party to dump contaminated mine water into VP3; and Levisa does not have the right under common law or the lease to grant anyone the right to dump contaminated mine water into VP3.
3. If the trial court found that Consolidation enjoys rights under the 1956 lease by virtue of agreements with Island Creek, that finding is erroneous because Island Creek could not, through contracts with third parties, increase its rights under the 1956 Lease; the purported agreements do not address water storage in the VP3 mine; those agreements are invalid, sham agreements between affiliated companies designed solely to circumvent the mineral owners’ rights; and Levisa is not a party to such agreements.
4. In denying Levisa’s request for injunctive relief, the trial court impermissibly relied upon matters not in evidence, including statements made by counsel for Consolidation in its opening statement and the trial court’s personal observations and opinions.
5. If the trial court found that Island Creek co-operates the Buchanan Mine with Consolidation and/or is discharging water into the VP3 mine, those findings are contrary to the evidence, which showed that Consolidation is the sole operator of the Buchanan Mine; Consolidation is the entity discharging the water; and Island Creek has no mining or other operations in Buchanan County, Virginia.
6. The trial court failed to consider and balance the parties’ equities by excluding evidence of the profitability of Consolidation’s Buchanan Mine.
7. The trial court erroneously treated Consolidation and Island Creek as the same entity with identical property and contractual rights where, according to the evidence, the defendant’s pleadings, and Virginia law, the two companies are separate and distinct entities.
8. The trial court erred in holding that Levisa requested the court to interpret the 1956 Lease; to the contrary, Consolidation raised the 1956 Lease provisions in support of its alleged right to dump water into the VP3 mine.
9. In ruling on Consolidation’s motion to strike at the close of Levisa’s evidence, the trial court impermissibly failed to view the evidence, and the inferences from that evidence, in the light most favorable to Levisa, the non-moving party.
10. The trial court erred in refusing to accept the affidavit of Timothy L. Hower into evidence because Virginia Code § 8.01-628 allows the court to consider affidavits on petitions for temporary injunctions and Mr. Hower had to be in Germany on the date of the hearing; and the trial court erred in refusing testimony about Consolidation’s profits from the Buchanan mine.
11. The trial court erred in denying injunctive relief by holding that Levisa has a full and adequate remedy at law on the basis that Levisa will be able to file suit when the coal becomes profitable to mine where (1) Levisa could be time-barred if suit is not filed within the five (5) year statute of limitations; (2) Levisa will have to prosecute a multiplicity of suits due to repeated and continuing harm from dumped mine water; (3) Virginia law provides for injunctive relief even if a plaintiff’s damages are nominal or speculative; and (4) any remedy Levisa has at law is not adequate to compensate Levisa and protect its property rights. Moreover, the court erred in imposing a requirement of “no adequate remedy at law” under the facts and law applicable to this case.
12. The trial court erred in denying injunctive relief by holding that Levisa is not suffering immediate and irreparable harm because: (1) the evidence showed that Levisa’s coal estate is being damaged; (2) the proffered affidavit of Timothy L. Hower showed that Levisa’s coalbed methane gas is being lost; (3) Consolidation is presently pumping mine water into VP3; (4) the amount of damages to Levisa’s coal cannot be accurately ascertained at this time; (5) Levisa cannot be fully and adequately compensated for its damages at law; and (6) Consolidation has destroyed Levisa’s property right to enter the passageways to inspect its coal. Moreover, the court erred in imposing a standard of irreparable harm, not recognized by this court.

Frequent filer gets sanctioned by Judge Moon

In Thurston v. Melton, Judge Moon of the W.D. Va. ordered Rule 11 sanctions against a pro se litigant, noting that the same plaintiff had previously filed 25 lawsuits, including 12 raising the same claims as in this case. The Court imposed sanctions of $500 and entered a pre-filing injunction against the plaintiff with respect to future cases.

Another methadone clinic zoning case

In A Helping Hand, LLC, v. Baltimore County, the Fourth Circuit in an opinion by Judge Motz, joined by Judge Duncan and District Judge Brinkema, held that a methadone treatment clinic that was the target of a zoning ordinance to bump it out of its present location could have a claim under the ADA, but was not entitled to judgment as a matter of law, and the judgment in its favor on its substantive due process claim would be affirmed.

One part that freaked me out was this: "it is well established that community views may be attributed to government bodies when the government acts in response to these views. See, e.g., City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448 (1985); Marks v. City of Chesapeake, 883 F.2d 308, 311-12 (4th Cir. 1989) (citing numerous cases)."

So, the risk-adverse government body will not allow its actions to be tainted by receiving the views of "the community."

Good riddance

Gene Nichol got the jump on the non-renewal of his employment and quit as president of the College of William & Mary, issuing this statement.

His self-righteous statement makes the case against himself - his regime will be remembered for the arrogance, intolerance, and petulance. He has acted foolishly, and come to a fool's end.

I liked him well enough back in my law school days, but he has made a hash of it as president of the College.