As reported here in the Roanoke paper, a new medical school in Blacksburg will start classes this fall.
Part of the mission of the school is to provide opportunities for Appalachian students and ultimately provide doctors to a region which may be seeing a shortage of doctors as soon as 2010, by which time "30 percent of Southwest Virginia's doctors are expected to end their practices." Some of these goals sound familiar, like what I understand about the Appalachian School of Law in Grundy.
Saturday, May 31, 2003
WMDs and terrorism in the Civil War
I don't know how this article found its way into the Washington Post rather than say, American Heritage, but here it is:
"But as the internecine conflict lengthened from months to years, and the casualties mounted from the thousands to the hundreds of thousands, the South's desperation spawned a largely untold story: a series of terrorist plots against Washington and New York that eerily foreshadowed September 11, 2001, and its aftermath.
Hatched by politicians, rogue scientists, saboteurs and foot soldiers fanatically loyal to the Confederacy, the plans included spreading yellow fever to Washington and the White House; burning New York City to the ground; poisoning New York's water supply; and attacking Northern ports with a newly developed chemical weapon. There was even a scheme in the war's waning days to blow up the White House, though Lincoln refused to take it seriously. "I cannot bring myself," he said when told of the threat, "to believe that any human being lives who would do me any harm."
While most of the plots failed, their intent was clear. Then as now, they were designed to kill, terrify and demoralize civilians."
"But as the internecine conflict lengthened from months to years, and the casualties mounted from the thousands to the hundreds of thousands, the South's desperation spawned a largely untold story: a series of terrorist plots against Washington and New York that eerily foreshadowed September 11, 2001, and its aftermath.
Hatched by politicians, rogue scientists, saboteurs and foot soldiers fanatically loyal to the Confederacy, the plans included spreading yellow fever to Washington and the White House; burning New York City to the ground; poisoning New York's water supply; and attacking Northern ports with a newly developed chemical weapon. There was even a scheme in the war's waning days to blow up the White House, though Lincoln refused to take it seriously. "I cannot bring myself," he said when told of the threat, "to believe that any human being lives who would do me any harm."
While most of the plots failed, their intent was clear. Then as now, they were designed to kill, terrify and demoralize civilians."
Possible sanctions for adultery in West Virginia: $20 fine - and impeachment
In West Virginia, adultery is a criminal offense subject to a $20 - and is one of the statutorily-defined examples of "incompetence" that can be grounds for impeachment of an officer of the state, according to this report, reflecting on the marital woes of the state's governor.
W. Va. Code section 6-6-1 says, among other things, that "The term 'incompetence,' as used in this article, shall include the wasting or misappropriation of public funds by any officer, habitual drunkenness, habitual addiction to the use of narcotic drugs, adultery, neglect of duty, or gross immorality, on the part of any officer." Section 6-6-3 says "Any officer of the state or any judge may be impeached and removed from office for maladministration, corruption, incompetency, gross immorality, neglect of duty, or any high crime or misdemeanor, in the manner prescribed in section nine of article four of the constitution of this state."
W. Va. Code section 6-6-1 says, among other things, that "The term 'incompetence,' as used in this article, shall include the wasting or misappropriation of public funds by any officer, habitual drunkenness, habitual addiction to the use of narcotic drugs, adultery, neglect of duty, or gross immorality, on the part of any officer." Section 6-6-3 says "Any officer of the state or any judge may be impeached and removed from office for maladministration, corruption, incompetency, gross immorality, neglect of duty, or any high crime or misdemeanor, in the manner prescribed in section nine of article four of the constitution of this state."
America's first marijuana law, passed in Virginia in 1619
This funny report in the New York Times contains one interesting sentence: "Oddly enough, the first American law about marijuana, passed by the Virginia Assembly in 1619, required every household to grow it."
The rest of it is mostly a history of "reefer madness," including the following:
"Popular fears of marijuana arose in the early 20th century, prompted by the use of the drug by Mexican immigrants. Rumors spread about the "killer weed" that incited violent crimes and drove its users insane.
Marijuana was linked not only to poor Mexicans, but also to poor blacks and the new music they played: jazz. Jazz was then regarded much as hip-hop is today in some circles, as a subversive and barbaric threat to the national morality. Not long after marijuana was outlawed in 1937, the Federal Bureau of Narcotics planned to stage a nationwide roundup of black jazz musicians who smoked pot. Harry J. Anslinger, head of the bureau, hated jazz and saw it as a corrupting influence in American life. The plan was thwarted, however, by the inability of its agents to infiltrate the jazz milieu."
I'm not sure what to make of this history; it seems kind of amusing but since it is in the New York Times, I question it. The funniest part is the image of J. Edgar Hoover's men trying "to infiltrate the jazz milieu."
As a footnote to this scientific article, from this article on the capture of the accused 1996 Olympics bomber, Eric Rudolph, is an excerpt about marijuana:
"Sister-in-law Deborah Rudolph, who helped develop a profile for investigators, has said the accused bomber hardly lived the lifestyle of a religious zealot. In 2001 she told the Southern Poverty Law Center's Intelligence Report magazine that Rudolph grew hydroponic marijuana and made as much as $60,000 a year selling it.
When he visited her Nashville, Tenn., home in the early 1990s, Rudolph would ``sleep all day, then stay up all night and eat pizza and smoke pot and watch movies by Cheech and Chong,'' Deborah Rudolph told the magazine.
Stone said Rudolph's marijuana growing made him more paranoid and fed his anti-government views."
The rest of it is mostly a history of "reefer madness," including the following:
"Popular fears of marijuana arose in the early 20th century, prompted by the use of the drug by Mexican immigrants. Rumors spread about the "killer weed" that incited violent crimes and drove its users insane.
Marijuana was linked not only to poor Mexicans, but also to poor blacks and the new music they played: jazz. Jazz was then regarded much as hip-hop is today in some circles, as a subversive and barbaric threat to the national morality. Not long after marijuana was outlawed in 1937, the Federal Bureau of Narcotics planned to stage a nationwide roundup of black jazz musicians who smoked pot. Harry J. Anslinger, head of the bureau, hated jazz and saw it as a corrupting influence in American life. The plan was thwarted, however, by the inability of its agents to infiltrate the jazz milieu."
I'm not sure what to make of this history; it seems kind of amusing but since it is in the New York Times, I question it. The funniest part is the image of J. Edgar Hoover's men trying "to infiltrate the jazz milieu."
As a footnote to this scientific article, from this article on the capture of the accused 1996 Olympics bomber, Eric Rudolph, is an excerpt about marijuana:
"Sister-in-law Deborah Rudolph, who helped develop a profile for investigators, has said the accused bomber hardly lived the lifestyle of a religious zealot. In 2001 she told the Southern Poverty Law Center's Intelligence Report magazine that Rudolph grew hydroponic marijuana and made as much as $60,000 a year selling it.
When he visited her Nashville, Tenn., home in the early 1990s, Rudolph would ``sleep all day, then stay up all night and eat pizza and smoke pot and watch movies by Cheech and Chong,'' Deborah Rudolph told the magazine.
Stone said Rudolph's marijuana growing made him more paranoid and fed his anti-government views."
Former Virginia Beach attorney sent to prison for bilking inmates' families of at least $74,950
As reported here in the Virginian-Pilot, a former Virginia Beach lawyer will be sentenced by Judge Payne of the E.D. Va. to serve some period in prison for cheating "at least 17 inmates' families out of $74,950." The article notes that the defendant also "was incarcerated for four years before a Florida court overturned his conviction for the 1991 slaying of his wife."
In a somewhat similar story, a former West Virginia lawyer was charged in South Carolina on Friday "with running an unlicensed James Island law firm that illegally solicited thousands of dollars worth of business from prison inmates and their families throughout the Southeast," according to this report.
In a somewhat similar story, a former West Virginia lawyer was charged in South Carolina on Friday "with running an unlicensed James Island law firm that illegally solicited thousands of dollars worth of business from prison inmates and their families throughout the Southeast," according to this report.
Environmentalist concerns raised about pipeline, postpose Interstate 81 expansion
Separate stories in the Roanoke Times relate here that environmentalists are trying to stop the tunneling under the New River for a natural gas pipeline and here that the need for environmental studies will set back the schedule for expanding Interstate 81, the main road in Southwest Virginia. The Bristol paper has this report on the interstate news.
USERRA suit in E.D. Tenn. settled, as 110 reservists return to SW VA, 500 others leave for training
As reported here in the Kingsport Times, a second lieutenant in the U.S. Army Reserves has settled her claim against her employer the Johnson City Board of Education for its refusal to reinstate her in violation of her rights under the Uniformed Services Employment and Re-employment Rights Act ("USERRA"). The city's position was that the position she was offered was sufficient to comply with the law.
I suspect that there will be more such claims filed locally in the coming months in this area of the law - the combination of many reservists being called up and tough economic times make it seem like that some employers through ignorance or poverty will not comply with the re-employment rights of soldiers returning from active duty. I've studied USERRA a bit and it looks like it is possibly the best-written employee rights statute in the U.S. Code - it eliminates some of the ambiguities of other statutes, although there are still plenty of issues that will be litigated, I'm sure.
As reported here in the Coalfield Progress, 110 soldiers from the Virginia Army National Guard's 189th Engineer Company were arriving back in Southwest Virginia on Friday, after being called up for possible service in the reconstruction of Iraq (before the powers that be decided they would not be needed after all). Also, as reported here in the Bluefield paper, 500+ members of the 1st Battalion, 150th Armor Regiment (1/150), West Virginia Army National Guard, whose members include some residents of SW VA, are headed to California for a period of military training.
I suspect that there will be more such claims filed locally in the coming months in this area of the law - the combination of many reservists being called up and tough economic times make it seem like that some employers through ignorance or poverty will not comply with the re-employment rights of soldiers returning from active duty. I've studied USERRA a bit and it looks like it is possibly the best-written employee rights statute in the U.S. Code - it eliminates some of the ambiguities of other statutes, although there are still plenty of issues that will be litigated, I'm sure.
As reported here in the Coalfield Progress, 110 soldiers from the Virginia Army National Guard's 189th Engineer Company were arriving back in Southwest Virginia on Friday, after being called up for possible service in the reconstruction of Iraq (before the powers that be decided they would not be needed after all). Also, as reported here in the Bluefield paper, 500+ members of the 1st Battalion, 150th Armor Regiment (1/150), West Virginia Army National Guard, whose members include some residents of SW VA, are headed to California for a period of military training.
Tennessee discriminates (inadvertently) against home schoolers in new lottery scholarship law
Bill Hobbs points to this article, which says the requirements for home-schooled children to qualify for the new lottery-funded scholarships are more rigorous than for public school students.
Now, I don't know if that is religious discrimination, more like a denial of equal protection, but apparently the legislators quoted in the article say it was inadvertent and will be fixed before the scholarship program begins. I'm sure Mike Farris and his group will be watching to make sure that is so. Their website notes here that a home schooler won the national geography bee and another was second in the national spelling bee.
Now, I don't know if that is religious discrimination, more like a denial of equal protection, but apparently the legislators quoted in the article say it was inadvertent and will be fixed before the scholarship program begins. I'm sure Mike Farris and his group will be watching to make sure that is so. Their website notes here that a home schooler won the national geography bee and another was second in the national spelling bee.
Friday, May 30, 2003
Removal of case where state wrongful discharge statute incorporates "federal" rights
In Dixon v. Coburg Dairy, Inc., the Fourth Circuit in an opinion by Judge Gregory joined by Senior Judge Michael of the W.D. Va. sitting by designation held that the trial court erred in failing to remand a case, notwithstanding the allegations of a constitutional violation, where the defendant was not a state actor and therefore the federal question was too insubstantial to support removal. The third judge on the panel, Judge Goodwin, joined in this holding.
The majority also held that a state-law public policy wrongful discharge claim, where the public policy was federal law, could support federal jurisdiction. Plaintiff claimed that he was fired in violation of his constitutional right to have a rebel flag sticker on his toolbox. The majority went on to a lengthy analysis of whether this was protected speech. In dissent, District Judge Goodwin points out that this federal right is only to protection from state actors, so there cannot be federal jurisdiction over a public policy wrongful discharge claim based on an alleged First Amendment violation by a private employer.
Well, all I can is, if what Judge Gregory says about the South Carolina law of wrongful discharge is true, then it is a good thing as sort of a consolation prize that such claims when based on federal rights are removable, but I think that what he is saying is fundamentally wrong. A state can create a cause of action that copies the substance of federal law in every detail, but that will never "federalize" the claim in the sense that I understood would be necessary to support removal. There are many, many examples of state laws that are essentially "me, too" tag-alongs to federal law, but that does not make them removable; to the contrary, that's why plaintiffs' lawyers love these state human rights laws in places like Kentucky, West Virginia, and Tennessee, where the law copies Title VII, etc. - because the claims are not removable (when there is no diversity).
Now, there are creatures out there, like ERISA-pension plans, and collective bargaining agreements, that have special status under federal law, and so cases where their federally-protected status comes into play are removable, whether the state law cribs federal law or not. And, sometimes, those creatures just get treated like other creatures, when the federally-protected aspect is not affected by the state law claim (thus, cases like Franchise Tax Board). Claims to enforce state law rights against these special creatures are going to be removable where they infringe on the federally-protected status, notwithstanding the normal obstacles such as the well-pleaded complaint rule.
Here, though, the claim is a creation of state law, and to say that the statute involves "a substantial question of federal law" is just not true, or if is true, the federal right applies only to state actors. In Kentucky, KRS 344.040 "mirrors Title VII of the Civil Rights Act of 1964" and therefore all the courts applying it, both state and federal, literally "use the federal standards for evaluating race discrimination claims." Smith v. Leggett Wire Co., 220 F.3d 752, 758 (6th Cir. 2000). Judge Goodwin (being from West Virginia) cites a similar West Virginia law in his dissent. By Judge Gregory's logic, all those claims are removable, but they're not. It might be good for employers if they were. Moreover, if there is some state law construct that applies the Bill of Rights to persons other than state actors, that's not federal law, whatever it is.
The South Carolina cases cited by the court are not all they're cracked up to be - the plaintiffs lost in Culler v. Blue Ridge Electric Co-op and Williams v. Strickland for lack of proof, and so the courts in those cases never really unraveled the state vs. federal aspect of rights protected by the South Carolina statute.
Finally, application of the First Amendment to private employers is a bad idea. As the majority notes, private employers can't afford to allow employees "free speech" that amounts to unlawful racial (or sexual) harassment of co-workers. As the dissent notes in a footnote, application of the First Amendment to private employers is likely at least in some circumstances to violate the First Amendment rights of the employers, in a way that could be actionable in federal court, I suspect.
The consolation prize for employers is that the majority held the case is removable to federal court, which is probably the wrong conclusion, but at least puts the case where the application of federal law is likely for reasons of familiarity if nothing else to be more accurate. Some state court judges I know would often rather not wrestle unnecessarily with whole bodies of law that are outside of their normal sphere, which is complicated enough. In Virginia, famously, the courts have refused to import the concepts of proving Title VII claims into wrongful discharge claims - one lawyer who tried it had his arguments rejected and sanctions imposed by the trial court. (The sanctions were lifted on appeal, but the outcome on the merits stayed the same.)
The majority also held that a state-law public policy wrongful discharge claim, where the public policy was federal law, could support federal jurisdiction. Plaintiff claimed that he was fired in violation of his constitutional right to have a rebel flag sticker on his toolbox. The majority went on to a lengthy analysis of whether this was protected speech. In dissent, District Judge Goodwin points out that this federal right is only to protection from state actors, so there cannot be federal jurisdiction over a public policy wrongful discharge claim based on an alleged First Amendment violation by a private employer.
Well, all I can is, if what Judge Gregory says about the South Carolina law of wrongful discharge is true, then it is a good thing as sort of a consolation prize that such claims when based on federal rights are removable, but I think that what he is saying is fundamentally wrong. A state can create a cause of action that copies the substance of federal law in every detail, but that will never "federalize" the claim in the sense that I understood would be necessary to support removal. There are many, many examples of state laws that are essentially "me, too" tag-alongs to federal law, but that does not make them removable; to the contrary, that's why plaintiffs' lawyers love these state human rights laws in places like Kentucky, West Virginia, and Tennessee, where the law copies Title VII, etc. - because the claims are not removable (when there is no diversity).
Now, there are creatures out there, like ERISA-pension plans, and collective bargaining agreements, that have special status under federal law, and so cases where their federally-protected status comes into play are removable, whether the state law cribs federal law or not. And, sometimes, those creatures just get treated like other creatures, when the federally-protected aspect is not affected by the state law claim (thus, cases like Franchise Tax Board). Claims to enforce state law rights against these special creatures are going to be removable where they infringe on the federally-protected status, notwithstanding the normal obstacles such as the well-pleaded complaint rule.
Here, though, the claim is a creation of state law, and to say that the statute involves "a substantial question of federal law" is just not true, or if is true, the federal right applies only to state actors. In Kentucky, KRS 344.040 "mirrors Title VII of the Civil Rights Act of 1964" and therefore all the courts applying it, both state and federal, literally "use the federal standards for evaluating race discrimination claims." Smith v. Leggett Wire Co., 220 F.3d 752, 758 (6th Cir. 2000). Judge Goodwin (being from West Virginia) cites a similar West Virginia law in his dissent. By Judge Gregory's logic, all those claims are removable, but they're not. It might be good for employers if they were. Moreover, if there is some state law construct that applies the Bill of Rights to persons other than state actors, that's not federal law, whatever it is.
The South Carolina cases cited by the court are not all they're cracked up to be - the plaintiffs lost in Culler v. Blue Ridge Electric Co-op and Williams v. Strickland for lack of proof, and so the courts in those cases never really unraveled the state vs. federal aspect of rights protected by the South Carolina statute.
Finally, application of the First Amendment to private employers is a bad idea. As the majority notes, private employers can't afford to allow employees "free speech" that amounts to unlawful racial (or sexual) harassment of co-workers. As the dissent notes in a footnote, application of the First Amendment to private employers is likely at least in some circumstances to violate the First Amendment rights of the employers, in a way that could be actionable in federal court, I suspect.
The consolation prize for employers is that the majority held the case is removable to federal court, which is probably the wrong conclusion, but at least puts the case where the application of federal law is likely for reasons of familiarity if nothing else to be more accurate. Some state court judges I know would often rather not wrestle unnecessarily with whole bodies of law that are outside of their normal sphere, which is complicated enough. In Virginia, famously, the courts have refused to import the concepts of proving Title VII claims into wrongful discharge claims - one lawyer who tried it had his arguments rejected and sanctions imposed by the trial court. (The sanctions were lifted on appeal, but the outcome on the merits stayed the same.)
Understanding Hibbs
Here are just a few posts or articles from Jack Balkin, Sugar Mr. Poon, Michael Kinsley, NYT's Linda Greenhouse, Tony Mauro, Southern Appeal, the AP, US Newswire, Anne Gearan, the Fourteenth Circuit, Robert Prather, the Federalism Project, and the consensus is nobody knows why Justice Rehnquist joined with the majority. The best reason I've read stated here is that he wanted to keep the opinion under control. The second worst reason I've read, suggested here , is that he was horse-trading with Justice O'Connor for votes on the forthcoming race in admissions cases, and the very worst is because "Hibbs was about a white man suing a state," as stated here.
Since I'm reading this book on Ken Starr, I'd guess that Starr would say that the case is in some ways like Miranda, where the Court generalized about police practices in the various states without much of an actual record, and the Chief Justice's more recent vote to uphold Miranda, which ran against the grain of Rehnquist's views in prior cases. (That's right, I read one book and I think I'm an expert.)
Since I'm reading this book on Ken Starr, I'd guess that Starr would say that the case is in some ways like Miranda, where the Court generalized about police practices in the various states without much of an actual record, and the Chief Justice's more recent vote to uphold Miranda, which ran against the grain of Rehnquist's views in prior cases. (That's right, I read one book and I think I'm an expert.)
52 percent pass the Virginia bar exam given in February
Virginia Lawyers Weekly will publish on Monday the names of those who passed the bar exam in February - of course, the examinees in February are mostly people not taking their first turn at the exam.
On being a secret Republican among the elite and polite in Tennessee (and elsewhere)
Via Instapundit, Metro Pulse in Nashville has this mostly amusing confession of a reporter who says he is a Republican, and what he perceives as the bigotry and hypocrisy he sees directly towards Republicans among the educated crowd with whom he associates.
I thought everybody in Tennessee was a Republican, but I never go much in Tennessee beyond Knoxville - who knows what goes on in places like Nashville, Chattanooga, and Memphis.
I thought everybody in Tennessee was a Republican, but I never go much in Tennessee beyond Knoxville - who knows what goes on in places like Nashville, Chattanooga, and Memphis.
Judge Jones says the bar of Heck does not apply to inmate's claim
In Bowman v. Large, Judge Jones of the W.D. Va. held that an inmate's lawsuit was not barred as a collateral attack on disciplinary proceedings against him in the prison. Based on Heck v. Humphreys, a criminal defendant is precluded from civil claims that would necessarily mean relitigation of the merits of his criminal case. Thus, for example, I had a case some years ago where a prisoner claimed that he was beaten up by jailers before he entered his guilty plea. He could claim that he was beaten, but he could not claim that his plea was coerced, under Heck. Heck has been extended by the Supreme Court's decision in Edwards v. Ballok to prison disciplinary proceedings. The defendant in Bowman argued that Bowman's claim involved an attack on his prison disciplinary proceedings. Judge Jones rejected this argument, concluding that the inmate's claim here (like in the case I had) was about the use of force, and not the outcome of the earlier disciplinary proceedings against the plaintiff.
No sanctions against litigant for third claim to own the beach at Virginia Beach
The Virginian-Pilot has this report on the judge's ruling denying a claim for sanctions against a man for his third lawsuit claiming to own the oceanfront at Virginia Beach.
Buchanan County hospital under federal investigation
There are no details, but the Bluefield paper is reporting here that the Buchanan General Hospital in Grundy is the subject of a federal investigation. A similar story (or non-story) was published earlier this week in the Virginia Mountaineer.
Mother bear has cubs in school lunch program in Wise County
A family of bears have been dining out at an elementary school in Wise County, as reported here.
"Iced tea - the house wine of the South"
This column from the Kingsport paper hits the spot -
"Tall glasses of the deep amber liquid, accented and flavored with lemon and mint and sweetened with white sugar, accompany checkered-cloth picnics on roadside tables, sit alongside plates of smoky pork barbecue in cinder-block restaurants, and slowly sweat on the wide arms of Adirondack chairs during late afternoon breaks from the garden."
"Tall glasses of the deep amber liquid, accented and flavored with lemon and mint and sweetened with white sugar, accompany checkered-cloth picnics on roadside tables, sit alongside plates of smoky pork barbecue in cinder-block restaurants, and slowly sweat on the wide arms of Adirondack chairs during late afternoon breaks from the garden."
Fiber optic connections a bigger deal than hearing the Grand Ol' Opry on the radio "all the way from Nashville"
The radio seemed like a great thing at one time, but now the world is coming to Russell County via fiber optic telecommunications, because the federal Economic Development Administration will provide over $1 million in funding that "would allow Cumberland Plateau and Bristol Virginia Utilities to build the fiber-optic system along 51 miles of American Electric Power lines in Russell and Tazewell counties," as reported here and here and here.
Thursday, May 29, 2003
Accessing the Virginia State Corporation Commission cases
An article in this newsletter from the Administrative Law section of the Virginia State Bar describes the new "case docket search" feature of the online access to the State Corporation Commission. The case information page, including the link for docket searches, is here.
Environmentalists dissatisfied with strip-mining report
As stated here, environmentalists are not happy with the government's new report on strip mining. (Now, that's a news flash.) I noticed that the author of the story is a woman named Hodel. I believe that Donald Hodel was a named party when the Surface Mining and Reclamation Act went before the Supreme Court. Earlier, Judge Williams of the W.D. Va. declared the Act unconstitutional under the Tenth Amendment, which reasoning convinced none of the 9 justices when the case reached the Supreme Court (even before they decided Garcia v. SAMTA).
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