Justice Agee to the front of the line

Justice Agee's nomination now has a hearing before the Senate Judiciary Committee set for May 1, which has some Republicans complaining about the lack of hearings for those who were nominated before him.

Ah, the evil zombies

"The appointment of the receiver removed the wrongdoer from the scene. The corporations were no more Douglas's evil zombies. Freed from his spell they became entitled to the return of the moneys-for the benefit not of Douglas but of innocent investors-that Douglas had made the corporations divert to unauthorized purposes."

Posner, J., in Scholes v. Lehmann, 56 F.3d 750 (7th Cir. 1995).

Now, how can I work an "evil zombies" reference into the brief I've been working on? It might not be a problem.

On Judge Farmer's position

Daniel Gilbert has this article about the legislature failure to fill the juvenile judgeship in the 29th district.

As regards the prospect that the circuit court judges will reappoint Judge Farmer, Senator Puckett is quoted as saying, somewhat ominously, "The judges in the 29th Circuit could have an opportunity to reappoint him if they think I’ve made a bad judgment."

Someone told me the other day that Judge Farmer cannot be reappointed by the judges, per some provision in the Code, but I can't find any such limitation. See, e.g., Va. Code 16.1-69.9:2.

Three federal appeals court judges before Memorial Day?

This post and this post, among others, say there is a deal in the Senate to confirm three judges to the United States Courts of Appeals before Memorial Day, later this month.

The unknown - which ones.

Sort of a Virginia book I got in Charlottesville

Playing with Wikipedia, I wrote the little article on a judge of the W.D. Va. named Alexander Rives, who was the brother of William Cabell Rives, who was the grandfather of Amelie Rives, whose marriage to John Armstrong Chanler is the subject of Archie and Amelie: Love and Madness in the Gilded Age, by Donna M. Lucey.

Having read the book, I would say that it is a somewhat lame account of a fascinating story. I say lame by contrast with the account of the family of the Roosevelts in Mornings on Horseback: The Story of an Extraordinary Family, a Vanished Way of Life and the Unique Child Who Became Theodore Roosevelt, from about the same era, or by contrast with the account of Virginia history as for example in the Virginius Dabney book, which I have been reading.

Part of the book is about the litigation by Chanler over his sanity. He escaped from the asylum and hid out in Virginia, then turned up and had some kind of hearing in Virginia, where his lawyers included Micajah Woods, the Commonwealth's attorney in Charlottesville, another interesting character from that era. According to this account in the New York Times of Chanler's reappearance, his lawyers were Woods and John W. Daniel and Armistead Gordon from Virginia, and Augustus Van Wyck from New York.

Ms. Rives was kin somehow to Thomas Nelson Page, another well-known Virginia lawyer, who was a co-author of at least one book with Gordon, who like Woods was a president of the Virginia Bar Association.

The General Assembly has spoken

In Southwest Virginia, as someone told me a while back, Judge Pat Johnson got the circuit court job in the 29th circuit, Greg Matney from Tazewell County got the general district court job, and nobody got Judge Farmer's job on the juvenile court, which may mean that he gets to keep it until next year.

And, John Cook got in for Lynchburg circuit court, along with Ludwig and Wilson up in Staunton and Harrisonburg. Those were the ones I was following.

Evidently, they punted on the State Corporation Commission, plus I can't tell how many of the local judgeships, besides the juvenile court position in the Dickenson/Buchanan/Tazewell/Russell district.

But, they did find time to commend Judge Wood, and rightly so.

Virginia wins again

Today in Virginia v. Moore, the Commonwealth won before the United States Supreme Court. In an opinion by Justice Scalia, with Justice Ginsburg concurring separately in the judgment, the Supreme Court reversed the Virginia Supreme Court's decision in Moore v. Com., which reversed (unanimously) the Virginia Court of Appeals decision en banc in Moore v. Com., which (with Elder, Benton, Fitzpatrick, and Frank dissenting) reversed the panel decision in Moore v. Com., which reversed the conviction in the trial court.

The issue was "whether a police officer violates the Fourth Amendment by making an arrest based on probable cause but prohibited by state law." The Court's answer is no. So, Moore's conviction is affirmed.

Lyle Denniston at SCOTUSBlog has this post about the decision. AP writer Pete Yost has this article about the decision.

UPDATE: The commenter below says the conviction could still be overturned back in the state courts on state law grounds.

State law grounds, such as what, I wonder - the Virginia Constitution? Not likely. Justice Ginsburg's concurring opinion says plainly, "Virginia law does not demand the suppression of evidence seized by an officer who arrests when he should have issued a summons." If that's true, the proceedings on remand may not be very interesting.

On ex parte contact with ex-employees

I read the opinion by Judge Kiser in Bryant v. Yorktowne Cabinetry, granting summary judgment in a Title VII case.

The opinion referenced an earlier decision by Magistrate Judge Urbanski that I missed. In this earlier Bryant v. Yorktowne Cabinetry, Judge Urbanski denied the defendant's motion for an order prohibiting ex parte contact between the plaintiff and the defendant's former employees, distinguishing the earlier decision by Judge Sargent in Armsey v. Medshares Management Services, Inc., 184 F.R.D. 569 (W.D. Va. 1998), based on the plaintiff's representation that "that she does not intend to impute liability on [the corporate defendant] through the statements, actions or omissions of [the former H.R. person] or other former employees, but was simply seeking to discover the facts of the case, including the identities of persons involved." In Armsey, the purpose of the ex parte communications was to obtain facts from them that would be binding on the defendant for purposes of establishing liability.

Interesting.

I saw an appeals court judge on the street today

She said, put that on your blog.

And why not? That doesn't happen every day, or even every year.

Last year, my wife saw this judge and her gang one afternoon, and she told me later that family was having more fun than anyone else at the Homestead that day. Good for them.

On concealed weapon permits

This article in the Bristol paper makes it look like Judge Freeman is adding some extra-statutory factors in his disposition of concealed weapon permit cases in Smyth County.

The article didn't say why the two guys over age 75 decided now was the time to get a permit. It did say the Court of Appeals reversed the Circuit Court in one case (the case is online but the opinion is not) and that Senator Puckett, who has already derailed the reappointment of District Judge Farmer because of "complaints" about him, has received complaints (and made a complaint) about Judge Freeman.

I never heard of Senator Puckett as judicial watchdog before the Democrats took the Senate, why is that I wonder? From what I know of him, I'd say he's trying to do the right thing, but he ought to caucus privately with somebody like Del. Joe Johnson about matters such as this.

Important decision for small business

In Jennings v. Kay Jennings Family Limited Partnership, issued last week, the Virginia Supreme Court took on for the first time the meaning of the requirements to bring a derivative action under Va. Code 50-73.62.

That section says: "A limited partner may bring an action in the right of a limited partnership to recover a judgment in its favor to the same extent that a stockholder may bring an action for a derivative suit under the Stock Corporation Act, Chapter 9 (§ 13.1-601 et seq.) of Title 13.1. Such action may be brought if general partners with authority to do so have refused to bring the action or if an effort to cause those general partners to bring the action is not likely to succeed. The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of the limited partners and the partnership in enforcing the right of the partnership."

In the Corporation Act, the relevant statute, Va. Code 13.1-672.1, provides: "A. A shareholder shall not commence or maintain a derivative proceeding unless the shareholder:

1. Was a shareholder of the corporation at the time of the act or omission complained of;

2. Became a shareholder through transfer by operation of law from one who was a shareholder at that time; or

3. Became a shareholder before public disclosure and without knowledge of the act or omission complained of; and

4. Fairly and adequately represents the interests of the corporation in enforcing the right of the corporation."

At the request of both sides, the Court in Jennings looked to the discussion of the federal rule dealing with derivative actions, FRCP 23.1, as discussed in Davis v. Comed, Inc., 619 F.2d 588 (6th Cir. 1980), and like cases - and so it did, which in itself is interesting.

The trial court's decision to deny standing was affirmed, because of the would-be plaintiff's adverse economic interests, even though not directly related to the claim at issue, and because the other owners opposed the litigation, even though the other owners were few. The Supreme Court rejected the plaintiff/appellant's arguments against the way these factors were analyzed.

I think this decision will apply to corporation cases under Va. Code 13.1-672.1, although that Code section contains an additional substantive element, that the shareholder "[b]ecame a shareholder before public disclosure and without knowledge of the act or omission complained of." This provision is not in FRCP 23.1, and not to my knowledge in any version of the Model Business Corporation Act.

The significance of this decision, viewed through the prism of the latest cases where I am dealing with these issues, is that the shareholder who breaks off to go and compete against his old company should not be allowed to use derivative actions as a weapon of competition. The innocents who are not out stealing the business from the company would not be similarly disqualified from standing to proceed with the derivative action.

More Brownlee articles

Here are other articles about John Brownlee moving on, from the BLT, Rocktown Weekly, the Roanoke Times, the Richmond paper, and The Hook.

I discussed this over breakfast at Bodo's with Dana. She said that if he runs in 2009, she will let me put up a sign for him in the front yard.

Where's Waldo?

We're in Charlottesville this weekend, but didn't make it anywhere near the Rotunda, or wherever it is that Waldo Jaquith does his webmastering.

Instead, we're roughing it out here at the Boar's Head, up from Birdwood.

Years ago, I was playing golf with Scott Michaux at the newly-opened Birdwood course, when he made his first eagle on the second hole or whatever is the first par 5 alongside the lake, but he said the joy of the moment was somewhat dulled by the fact that I scored a 12.

If you're quick enough, you can check out this latest column from Young Scottie.

UPDATE: On Saturday, we went down to the Grounds, and ambled through all ten of the Pavilion gardens, where all was in bloom, and in the process snuck behind "Hotel A," which is where Waldo J. actually works.

And that's good, one less thing - no interruptions over there from Cavalier Man on Saturdays in the fall - like that time he smote the Yellow Jacket in the Dome Room, with the aid of The Coach.

Brownlee to resign

The Roanoke paper reports that John Brownlee is moving on from his position as U.S. Attorney. The article does not say what he plans to do next.

End the moratorium

The Supreme Court has ruled on the lethal injection case that has been holding up death penalty cases in Virginia and elsewhere, the opinion issued today in Baze v. Rees (argued on January 7) is here. And, the vote was 7-2, or maybe it was 2-1-2-1-1-2.

So, I guess the Governor's moratorium, based on the pendency of Baze, will be undone.

UPDATE: Undone it was, according to the Attorney General, Bob McDonnell, who says this:

“The Supreme Court has rejected a procedural challenge to Kentucky’s administration of lethal injection. Now that the Court has ruled, the Governor has rightly lifted his moratorium on executions in Virginia. This office will continue, as always, to defend the Commonwealth's authority to carry out the sentences handed down by Virginia courts, and the constitutionality of Virginia’s duly enacted statutes.”

The "coalfield" article in today's WSJ

I've seen a few articles like this one in other places. It begins: "The race for the Democratic nomination hinges on a handful of states where coal is still king," and goes on to make some point about the Virginia City power plant.

Not much going on here

I've got the trial coming up in June in the Buchanan County RICO case, and so it consumes much of my waking hours.

But - I have written a few more Wikipedia entries. Some of them are on this partial list of delegates to the Virginia Constitutional Convention of 1901-02. A more complete list of the delegates is here.

That Convention included a high-powered bunch of past, present, or future U.S. Senators, Congressmen, Governors, judges of the Virginia Supreme Court and lower courts, Attorneys General of Virginia, and more than a half-dozen Virginia State Bar Association presidents. It was, so far as I can tell, a collection of the best and the brightest of Virginia's lawyers, for that time. The far Southwest Virginians included Rufus Ayers, Preston W. Campbell, James B. Richmond, and Henry Carter Stuart, plus a Gillespie from Tazewell, a Lincoln from Marion, a Summers from Bristol, and Judge Orr from Lee County. They got together for the main purpose of doing away with the voting rights of black people. They accomplished their purpose by means of the literacy test and poll tax, and the like. When they were done, figuring that black voters would be opposed, they declared the new Constitution ratified, without a vote of the people.

And, racism was only part of it, the other part was to keep down the Republicans and the ex-Readjusters who had been getting the black vote.

I guess I knew all that, but it seems more real to me than before I started picking at it.

Wise County mountain lion?

Somebody sent these to my dad, with this note:

"This lion was hit between Cherry Reservoir Road and High Knob area (near Wise, VA) by a car. Game and Fish had to come and put him down.

He charged at the Fish and Game guy in the process. Look at his PAWS!"

I don't know whether this is true, or just one of those Internet deals.

A while back, I posted here with a link that still works to a piece about mountain lion sightings in Southwest Virginia.

There's no word yet on whether the lion was in town for the latest hearing on the Virginia City power plant, or if he was en route to see the animal lobbyists in St. Paul or Clintwood.

UPDATE: In the comments, Carl Kilo has forwarded the news article from the Coalfield Progress showing the lion story was a hoax debunked on Snopes.com - a real cat but from Arizona. Ah, the joys of the Internet.

SECOND UPDATE: Brian Peterson in the comments says the cat wasn't in Parkersburg, before it wasn't in Wise.

Stuff I think I know about summary judgment

I know this:

"Corroboration is not required to defeat summary judgment. See, e.g., S.E.C. v. Phan, 500 F.3d 895, 909-10 (9th Cir. 2007) (district court erred on summary judgment by disregarding evidence that was “uncorroborated and self-serving”); Shekoyan v. Sibley Intern., 409 F.3d 414, 425 (D.C. Cir. 2005) (“corroboration of [plaintiff’s] version of the facts was irrelevant to the summary judgment analysis.”); Lee v. American Intern. Group, Inc., 31 Fed. Appx. 764, 765 (2nd Cir. 2002) (“The fact that plaintiff had no corroboration and that Miller denied it were of no significance on defendant’s motion for summary judgment.”)."

This I wrote in a brief to the Sixth Circuit, in response to where the District Court judge wrote this:

"Plaintiff has not produced the alleged text messages and, although she testified that she showed the text messages to “everybody” and a “ton of people” including family, friends, and coworkers (both at Applebee’s and at her second job), she has not produced an affidavit from any of those persons."

I may not win the appeal, but at least I got that off my chest.

Wise County Circuit Court opinion from April 1, 1991

Dear Counsel:

This is a case of unique species,
not stare decisis, but stare feces.
The court had serious fun with these complex issues as it spoke,
but this opinion, signed the first, is no April Fool joke.

The court considered the entire record as a whole,
and reviewed counsel arguments as they were told.
This is a feeble attempt at judicial humorous prose.
The findings of fact and conclusions of law disclose:

This case involves a V.E.C. "first impression" appeal
by an employee who said a rude word unreal.
Fired for misconduct connected with his job
by a C.E.O. who judged him an insulting insubordinate slob.

Claimant, Walter Cooper, by name
a 20-year employee of "the Pig", a grocery chain,
missed work due to a workers compensation claim,
and had attempted to organize the labor union game.

His four doctors could not agree
on when his exact return day would be.
So to determine his return to work position
management called Cooper to a 2 1/2 hour "Inquisition".

Cooper arrived at the private meeting with management three:
the C.E.O., personnel mg'r, store mg'r, and he.
Claimant intended to return to work right now,
but the C.E.O. flaunted his power somehow.

The C.E.O. quarreled about Cooper's union organizing smut;
told him to return to work, and "keep his mouth shut";
repeated several demands for claimant to quit -
to all of which Cooper replied, "you're full of shit".

Cooper was fired on the spot,
and V.E.C. benefits he was granted not.
Punish him - wash his mouth out with soap,
but don't hang him with a pink-slpi rope.

It would certainly be a legal mistake,
if one vulgar word would misconduct make.
This expression does not show flagrant disrespect,
nor deliberately defy proper authority I suspect.

Truth is a defense to the tort of slander,
but please forgive me for I meander.
Every dog is entitled to one lawful bite,
so why not allow one naughty word so slight?

If one indelicate word stirs the ire
that's no cause for a hard-working employee to fire.
Union activity is allowed by Federal law,
and is not a legitmate reason to withdraw.

Webster defines "shit" as "foolishness" or "nonsense".
Such an editorial makes good common sense
to describe the C.E.O. as "full of" nonsense,
when he attempts to gag the union at Cooper's expense.

Unions displease some executive bosses,
but not employees who carry their crosses.
V.E.C. and "the Pig" hide behind a dirty phrase
to conceal their prejudice against a union craze.

The V.E.C. conclusion is unsupported by substantial and/or simple evidence
for this reasonable judicial mind accepts a difference.
Here the questions of law are also interpreted by this magistrate,
and the facts do not constitute misconduct, nor insubordinate.

This court finds in favor of the claimant,
and orders the V.E.C. to Cooper make payment.
Counsel for Cooper shall pen a final decree,
and deliver it accordingly for entry to me.

Sincerely,

J. Robert Stump
Judge
(footnotes omitted)

Judge Stump was affirmed on appeal. See Kennedy's Piggly Wiggly Stores, Inc. v. Cooper, 14 Va. App. 701, 419 S.E.2d 278 (1992).