First amendment rights of fortune tellers

The Kingsport paper argues here that the ACLU has "gone round the bend" in its lawsuit on behalf of a tarot card reader in Tennessee, claiming that a Tennessee town violated her First Amendment rights by putting her out of business.

The more things change . . .

In the last paragraph of The American Inquisition, the author notes that "[i]n ancien regime France, Cardinal Richelieu argued that for reasons of state 'urgent conjecture' must sometimes take the place of assured truth."

This struck me as quite like the much-ballyhooed reference by Paul Wolfowitz to "murky" intelligence about terrorism, in this Fox News interview.

More on Fourth Circuit ruling in child porn case where defendant was hacked

Via How Appealing, c|net has this article on the Fourth Circuit's ruling in the case of the child pornography defendant discovered and turned in by the Turkish hacker.

Retiring legislator eyes Western Virginia circuit court judgeship

The Roanoke Times reports here that retiring Senator Bo Trumbo is seeking the judgeship left vacant by the untimely death of Judge Duncan Byrd.

Struck employer as "state actor" for section 1983 claims of arrested picketers

In Rodriguez v. Smithfield Packing Co., Inc., the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judge Motz and Senior Judge Beezer of the Ninth Circuit, held that (1) release-dismissal agreements were enforceable and were a valid defense to the plaintiffs' constitutional claims against law enforcement officials, and (2) the employer, Smithfield Packing, was not liable under section 1983 municipal liability standards for the alleged bad acts of the law enforcement officers it had hired to police a strike.

This last point seems kind of garbled to me, they say Smithfield could be considered a state actor because it had these police officers there, but then that "Smithfield Packing could not have delegated any policymaking authority over arrests to Priest, because the company had no authority over county law enforcement policies that it could have delegated." Why not just say that Smithfield was not a state actor and could not be sued at all under section 1983?

One drug conspirator drives through Virginia, the rest can be tried in Virginia

In U.S. v. Mitchell, the Fourth Circuit in a per curiam opinion for the panel of Judges Niemeyer and Shedd and District Judge Wooten affirmed the defendant's conviction over his objection to venue, among other things, of which the Court said that the "acts of Mitchell and his co-conspirators in the Eastern District of Virginia were essential in fur-thering the drug conspiracy and were sufficient to establish venue on the drug conspiracy count. Mitchell engaged in a drug conspiracy that involved the sale of drugs in Washington, D.C., the transportation of those drugs through Virginia, and the distribution of the drugs in North Carolina. The transportation of the drugs through Virginia was an act in furtherance of the conspiracy and was essential to the distribution of those drugs in North Carolina."

ERISA does not preempt employer's suit against health plan administrator

In Sonoco Products Co. v. Physicians Health Plan, Inc., the Fourth Circuit in an opinion by Judge King joined by Judge Shedd and District Judge Bullock held that the breach of contract claim of an employer against its health plan administrator were not preempted by ERISA and therefore the trial court erred in denying the employer's motion to remand the case to state court.

Judge King's opinion says the district court was looking in the wrong direction on the removal question: "In denying Sonoco's motion to remand, the district court concluded that the breach of contract claims in the Complaint 'relate[ ] to ERISA,' and that they were thus 'preempted' pursuant to § 514. Order at 2. On the basis of this conclusion, the court justified its denial of the motion to remand and its assertion of federal jurisdiction over Sonoco's state law claims. Contrary to this reasoning, however, conflict preemption under § 514 does not provide a basis for federal jurisdiction. Rather, it provides a defense to a state law claim that may be asserted in state court. Instead of focusing on § 514 conflict pre-emption, the court should have assessed whether Sonoco's state law claims were, as PHP asserted, completely preempted by ERISA's § 502(a). In other words, the court should have inquired into whether the breach of contract claims 'fit within the scope of ERISA's § 502(a) civil enforcement provision," and as such, whether they were properly 'converted into federal claims.' Darcangelo, 292 F.3d at 187."

The decision goes on to conclude "that Sonoco lacks standing to pursue its breach of contract claims under § 502(a)," and therefore the remedies statute did not provide a basis for removal and the case should have been remanded.

Measure of damages for anticipatory breach of natural gas sales contract

Yesterday, the Fourth Circuit in Hess Energy, Inc. v. Lightning Oil Co., Ltd., in an opinion by Judge Niemeyer joined by Judges Traxler and Wilkinson, held that the proper measure under Virginia's UCC for the anticipatory breach of a contract to sell natural gas, was the difference between the contract price and the time when the gas was to be delivered, rather than the difference between the contract price and the time when the buyer learned of the breach, applying Va. Code 8.2-713 and citing, among other things, Corbin on Contracts, which says in part "When the seller of goods has promised delivery at a future time and prior thereto repudiates his contract, the buyer is not required to go into the market at once and make another
contract for future delivery . . . ."

Fourth Circuit says Lentz must stay in jail

As reported here in the Washington Post, a split panel of the Fourth Circuit decided that acquitted kidnapping defendant Jay Lentz must remain in custody pending the government's appeal of the trial court's decision to overturn the jury's finding of his guilt. The majority included Judges Traxler and King, while the dissenter was Judge Michael.

How much "serious" crime is there in Southwest Virginia?

The Kingsport paper summarizes here Virginia crime statistics showing an increase in "serious" crimes in some Southwest Virginia counties.

New law requires public housing residents to perform community service

This Kingsport Times-News article describes a new federal law requirement for some public housing residents to perform community service.

Plaintiff from East Tennessee included in Patriot Act challenge filed by ETSU

As reported here in the Elizabethton paper, one of the plaintiffs in the constitutional challenge to the USA Patriot Act filed in Michigan this week by the American Civil Liberties Union is "Knoxville-based Bridge Refugee and Sponsorship Services -- a religiously ecumenical, nonprofit organization that settles refugees in Tennessee."

Western Virginia legislators talk tax reform

From the Lynchburg paper, this collection of comments from some Western Virginia legislators, including Delegates Preston Bryant, Kathy Byron, and Ben Cline, and Senators Charles Hawkins and Steve Newman, is well worth-reading (or so I thought).

I have posted many articles about Virginia tax reform on this blog, without really saying why it is of interest to me. It is an interesting topic in itself, as it involves so many aspects of law and society, but it is particularly interesting as a measure of the mix between politics and the public good. No one disagrees that tax reform is necessary, yet there will be winners and losers as the result of any changes. How can the legislators, even with the best of intentions, resolve these conflicts (and what are the best intentions)?

AG Kilgore favors judicial disclosure of reasons for overturning jury's recommended sentence

Last week, Attorney General Jerry Kilgore agreed with those who have been advocating a requirement that Virginia judges explain themselves when overturning the recommended sentences from juries in criminal cases, as reported here in the Danville paper. The Attorney General said "he understands the frustration the slain deputy’s family, friends and colleagues are facing with Circuit Judge William N. Alexander II’s decision April 24 to overturn the jury’s recommended death sentence for Roy Douglas Inge Jr."

More on Percy Walton

Tuesday's Danville paper has this report on the conflicting evidence regarding the mental health of death row inmate Percy Walton, whose case is now before Chief Judge Samuel Wilson of the W.D. Va., who must decide whether Walton is unfit to receive the death penalty.

W.D. Va. begins creating awareness for electronic filing in 2004

The website of the U.S. District Court for the Western District of Virginia has this online brochure about how electronic filing will work when it becomes a reality here in 2004.

Why don't more people vote in West Virginia?

The Bluefield paper says here that WV is 44th in the nation in voter turnout, and Secretary of State vows to do something about it.

Interesting place to find a link to this blog

My earlier post on the Virginia Court of Appeals' decision regarding the use of polygraph evidence in probation hearings made the news section of the website AntiPolygraph.org.

Sticking the employer/defendant with e-mail retrieval costs

Electronic discovery is trendy, but costly, and something of a needle in a haystack approach - which makes the recent district court ruling that the employer/defendant in a sex discrimination case must pay to restore e-mail backups probably a bad precedent, as described here in this ZDNet article and earlier in this NY Times article (registration required), which begins with these words:

"A federal judge ordered UBS yesterday to pay the majority of the costs involved in restoring e-mail evidence sought by a former employee who is accusing the bank of sex discrimination.

The decision, from Judge Shira A. Scheindlin of Federal District Court in Manhattan, said that as long as plaintiffs could prove the relevance of the e-mail to their case and that the costs involved in restoring them were reasonable, banks could be obliged not only to provide the messages but also assume the expense.

She then ordered UBS to produce and pay for a limited portion of the e-mail messages requested by the plaintiff, Laura Zubulake, a former equities trader.

The estimated cost is $273,650, according to UBS, with $165,954 going to the restoration process. UBS is required to pay 75 percent, while Ms. Zubulake would pay for the rest.

The decision was seen as having wide legal significance, especially in arbitration cases, where individual investors are seeking damages from investment banks that they say provided fraudulent research. Lawyers have sought e-mail evidence from banks, which have generally refused to comply."

Judge Lee rules man he acquitted can go free pending appeal - in 2 days

As reported here in the Richmond Times-Dispatch, here by the AP, and here in the Washington Post, Judge Gerald Bruce Lee of the E.D. Va. has overruled the government's objections to the release of acquitted kidnapping defendant Paul Lentz while the government appeals the Court's decision to overturn the jury's verdict, but allowed the government an opportunity to seek emergency relief from the Fourth Circuit. Meanwhile, Lentz's counsel are claiming that the jury verdict was based on improper evidence which mysteriously made it into the jury room.

Unionized workers for Verizon in Norton could go on strike this weekend

The Kingsport paper reports here that the national contract between the Communications Workers of America and Verizon for call center employees expires at midnight on Saturday night.

Looking for "the biggest hog at the trough" in King securities case

Today's Bristol paper reports here that Magistrate Judge Inman in the King Pharmaceuticals securities cases filed in the E.D. Tenn. is looking for the "the biggest hog at the trough" to be the lead plaintiff.

Virginia Supreme Court takes issue of medical bills discharged in bankruptcy

Having resolved the issue of medical bill write-offs in recent years, the Virginia Supreme Court has agreed to hear an appeal in the case of Barkley v. Wallace, where the issue is whether "The trial court erred in precluding BARKLEY from presenting to the trial jury the total amount of her related medical bills incurred as a result of the motor vehicle accident with GEORGE WALLACE (WALLACE), on the grounds that said medical bills and expenses had been discharged in bankruptcy."

Yesterday's Fourth Circuit opinions

In C.F. Trust, Inc. v. First Flight Limited Partnership, the Fourth Circuit affirmed the district court's decision, based on the Virginia Supreme Court's answers to certified questions about whether and when Virginia law would allow "outsider reverse veil piercing against a limited partnership."

In Wachovia Bank N.A. v. Federal Reserve Bank of Richmond, the Fourth Circuit upheld judgment against the Federal Reserve for honoring a stolen and altered check from Wal-Mart for over $500,000.

In R. v. Fairfax County School Board, the Fourth Circuit in an opinion by Judge Williams joined by Chief Judge Wilkins and Judge Gregory revered Judge Brinkema of the E.D. Va. on the issue of whether the Individuals with Disabilities Education Act (IDEA) requires specific notice that "parents in Virginia have a two-year period in which to request a due process hearing" and a statement of when that period starts to run.

In U.S. v. Jarrett, the Fourth Circuit in an opinion by Judge Motz joined by Judge Wilkinson and Senior Judge Beezer from the Ninth Circuit affirmed the child pornography conviction where the government was tipped off to the defendant's conduct by an anonymous computer hacker from Istanbul, Turkey, who hacked into the defendant's computer.

New sign of the times - website for constitutional officer candidate

My politically active friends over the years have told me that the old-fashioned measure of public opinion leading up to a local election is the relative number of signs you see along country roads out in the county. (I knew I was lost once when I was looking for somebody's house outside of Pound in Wise County and the signs along the road switched to the Dickenson County candidates.)

But now I see that Chad Dotson has a stylish campaign website - maybe he's counting the hits as a measure of interest. I'm willing to declare here that my friend Chad can tell anyone in Wise County that I am 100% for him or 100% against him, whichever he thinks is best.

Split panel affirms murder conviction despite failure to instruct jury on "heat of passion"

In Rhodes v. Com., the Court of Appeals in an opinion by Judge Annunziata joined by Senior Judge Coleman held that there was no error in the trial court's failure to give the "heat of passion" instruction proffered by the defendant. Judge Benton in dissent complained (and not in a footnote) that the majority "disposes of this case on an issue that was neither raised at trial nor briefed by the Commonwealth." (Ooh, I hate when that happens.)

Polygraph evidence inadmissible in probation hearing

In White v. Com., the Virginia Court of Appeals in an opinion by Judge Benton joined by Judge Clements and Senior Judge Hodges held that evidence that a probationer failed a polygraph test is inadmissible in a hearing on probation revocation, and the trial court's consideration of such evidence was apparently not harmless error, even though the probationer was a sex offender and the trial court had resolved not "to gamble with with this man and young children."

Judge Michael sics a footnote on counsel

The first footnote in Judge Michael's opinion in John M. Floyd & Assoc. v. First Bank says this:

"The court pauses to note a glorious instance of irony in the memorandum encompassing defendant’s objections. In counsel’s haste to cast stones at the magistrate judge’s erratum, he forgets to do so before leaving the confines of his own proverbial glass house. The court politely reminds counsel that use of “[sic]” is to be reserved for egregious gaffes and not for minor lapses that may be adjusted without violent damage to the text ascribed to the author."

Also, the side which "sicced" the magistrate judge's report was unsuccessful in the effort to have it overturned.

Just say $%@* like the Sarge on Beetle Bailey

This post from Tim Sandefur brings to mind my very first appellate brief-writing project, in which the facts were these:

"During this meeting, the chief executive officer repeatedly asked for Cooper's resignation. Toward the end of the meeting, the chief executive officer "got on the subject" of union organizing activities that had occurred among company employees. He stated that he did not think the employees would "go for" union representation and Cooper responded that if they did not it was because they were afraid of losing their jobs. The chief executive officer told *704 Cooper that if he was to keep his job, he was expected to do what he was told. Cooper responded, "Well I don't know who you are or where you come from but you're full of shit." Cooper further stated that he did not believe anything told to him by company officials. The chief executive officer fired Cooper for making these remarks." Kennedy's Piggly-Wiggly Stores, Inc. v. Cooper, 14 Va. App. 701, 419 S.E.2d 278 (1992).

The appeals court ruled that using the "sh--" word was not "misconduct" severe enough to disqualify Mr. Cooper from receiving unemployment benefits. In researching the employer's brief, I plugged all the bad words I knew into Westlaw, looking for similar unemployment cases. What really bummed me about the case was that the VEC had decided for the employer, and straight from law school I was sure that appeals court would agree that it should defer to the administrative agency's expertise, particularly since the circuit court's opinion was unusual - and it was unusual, written in rhyming verse and sent out on April 1.

Computerized scheduling for split families

The Washington Post has this article on yet another miracle of the modern age, a web-based program that will help split families keep track of who goes where for Christmas, called OurFamilyWizard.com.

More on the case of the unruly footnote

Ethicalesq's contribution is here in the discussion of the bar discipline imposed on an Indiana lawyer for writing a nasty footnote in an appellate brief.

Not too long ago, I filed a motion for reconsideration in a state court case, and I told the judge that I had once seen Justice Stevens address the Seventh Circuit judicial conference on C-SPAN and his remarks included some humorous discussion of the function of the petition for rehearing, that these were often filed and almost never granted, but they served the salutary purpose of allowing the losing lawyers to blow off steam, which was a matter of real benefit to the safety and welfare of the public at large - but having said all that, I insisted, my motion was not that kind at all, but a really serious motion I hoped he would consider carefully.

Illinois justices take law into their own hands to order pay raise for themselves

This New York Times story (registration required) begins with the following:

"The justices of the Illinois Supreme Court have decided that all the state's judges deserve cost-of-living raises, themselves included. So they have ordered the government to pay them more.

But others in this deficit-ridden state disagree, including the governor and the comptroller, who writes the checks. That has set off a storm of legal maneuvers that threaten to leave the comptroller in contempt of court, and some of the state's best-paid workers — judges — suing the governor in their own courts."

Wrongful discharge based on retaliation for in-house complaints not preempted by ERISA

In King v. Marriott International Inc., the Fourth Circuit in an opinion by Judge Luttig joined by Judges Wilkinson and Shedd concluded that the removal of plaintiff's wrongful discharge claim was improper, where she claimed that she was discharged "for complaining about and for refusing to violate" ERISA, somewhat narrowly construing the scope of the anti-retaliation provisions of the federal statute.

There is some illogic to being able to remove a case, because of the connection between the claims an ERISA plan, but then have it dismissed, because of the lack of a connection between the claims and the ERISA plan, which is more or less what happened in the district court.

No error in refusing to appoint psychiatrist for murder defendant

Yesterday, in Page v. Lee, the Fourth Circuit in an opinion by Judge Luttig, joined by Judge Williams, with Judge Gregory concurring in the result, affirmed the conviction and death sentence of a North Carolina man who killed a police officer, concluding that he was not wrongfully denied a court-appointed forensic psychiatrist. Today, the AP has this story on the case.

How scandalous is Richmond city government

This collection of the foibles and failings of Richmond city council members, past and present, is quite remarkable.

Front Royal finally votes on Wal-Mart

In Southwest Virginia, Abingdon-area residents have taken note of the zoning dispute in Front Royal regarding development of a new Wal-Mart - where the resolution had been stalled for lack of quorum. As the Richmond Times-Dispatch reports here, one of those who had previously disqualified himself, re-qualified himself, so there was a quorum of the Front Royal town council to vote for the rezoning sought by Wal-Mart.

In Abingdon, anti-Wal-Mart activists are urging the Town Council to make sure that changes to the zoning ordinance are in place to keep Wal-Mart out of town, before the developers can claim they have vested rights. One issue is the odd and dangerous configuration of the interchange at the nearby exit of the Interstate - I have often wondered, what were the roadbuilders thinking when they build it as it is?

Psychiatrist reassigned after giving IQ test to death row inmate

According to this article in the Roanoke paper, a state-employed psychiatrist is claiming she was reassigned after she gave an IQ test to a Virginia inmate facing execution, because the Commonwealth did not like her findings.

What does it take to pull over 19 Hell's Angels in interstate in SW VA?

The Roanoke Times has this story on one trooper's efforts to pull over some speeding bikers on Interstate 81.

Why not WiFi

Sunday's Washington Post had this feature article on how WiFi is still too insecure, in ways that could be dangerous - wireline connections are (almost inevitably?) more secure.

Litigating the damages cap when state and federal employment claims joined

In Hall v. Consolidated Freightways Corp., the Sixth Circuit, in a opinion by Judge Clay joined by Judge Glen Williams of the W.D. Va., with Judge Daughtrey concurring, reinstated the jury's punitive damage award against the defendant employer notwithstanding the statutory cap of 42 U.S.C. 1981a because the punitive damages in excess of the cap were also recoverable on the plaintiff's state law employment discrimination claim (applying Ohio law).

So, the difference in that case between the dollar value of the state and federal law remedies was $500,000.

Judge Williams went to Cincinnati this summer to sit by designation on the Sixth Circuit but I don't know whether he got to take in any baseball games. I'd expect the judge will go to baseball games as long as he is able. On the subject of Cincinnati baseball, I am inspired by the many accounts this weekend on the induction to the Baseball Hall of Fame on Sunday of Hal McCoy, who continues to write about the Reds for the Dayton paper despite nearly losing his sight, as described here, here, here, here, here, and finally here (from McCoy's home paper in Dayton).

Bristol lawyers refuse to take more cases from the Commonwealth (of Massachusetts)

Jurist's Paper Chase links to this article about lawyers in Bristol County, Massachusetts and other jurisdictions there who are refusing to take new court-appointed cases until they are paid for last year's cases.

Governor Warner's Preventing Crime in Virginia's Minority Communities project

The Daily Press has this report on an initiative by the Governor to reduce crime in Virginia's minority communities.

Lawyer discipline and free speech

Marcia Oddi's Indiana Law blog has this interesting post regarding the case of the lawyer in Indiana who was subjected to bar discipline (a 30-day suspension, later reduced to a reprimand) because of a footnote he wrote in a brief, describing to the state's highest court just how lousy he thought was the opinion of the intermediate court of appeals.

I expect ethicalesq will weigh in on this matter. In Virginia, the ethics rules prohibit a lawyer from a public communication that "states or implies that the outcome of a particular legal matter was not or will not be related to its facts or merits." Rule 7.1(a)(2). This rule doesn't prohibit writing a brief that says the lower court got it wrong, but I guess it would be pretty bad to say the lower court wasn't even trying, which I guess is the Indiana Supreme Court concluded from the lawyer's footnoted remarks.

As noted in the margin (sometimes, when it works), I've been re-reading a book called The American Inquisition, and just finished a chapter on the legal travails of a group of lawyers who represented the leadership of the Communist Part of the United States in a famous trial. The trial judge found them all in contempt for the way they defended their clients, and they litigated the contempt sanctions and their bar status for years thereafter, including several appeals to the United States Supreme Court. The author's point was not so much that the lawyers did not deserve to be punished, but that their punishment was arbitrary and excessive. (And, they did say some bizarre and offensive things, from what is quoted in the book.)

More electoral board members mad at Virginia Attorney General

The Washington Post has this article on the criticism of electoral board members of the Attorney General's opinion limiting their political activity.

As discussed here previously, by law, the majority of every electoral board in Virginia is of the same party as the Governor (who is not of the same party as the Attorney General).

Years ago, when the governor's office changed hands from the Republican John Dalton to the Democrat Charles Robb in 1982, the next year in accordance with Virginia, the partisan makeup of all the electoral boards changed, and a number of the boards more or less fired their registrars, and replaced them with Democrats. This had been done before, I'm told, in the time of the Republican governors as well. But, in the 1980s, a group of the ousted Republican registrars filed suit, claiming that they could not be denied reappointment on account of their political affiliation, and the Fourth Circuit agreed, in the case of McConnell v. Adams, 829 F.2d 1319 (4th Cir. 1987), in which the Court also held that since this was new law, the electoral board members individually would be entitled to qualified immunity. One of those plaintiffs was Willie Mae Kilgore, the mother of Jerry Kilgore and Terry Kilgore, and following her reinstatement by the courts, she is still to this day (last I heard) the registrar of voters for Scott County. The lawyer who argued the case on appeal for the registrars against the electoral boards was William Hurd, who is now the Solicitor General for the Commonwealth.

Maybe Trible not running is no surprise?

This column by Jeff Schapiro makes former Senator Paul Trible look like he chose wisely in his decision on Friday to not run for lieutenant governor in 2005.

Who would go to an Appalachian League baseball game?

"Eight guys from Maine" came to Bluefield on their tour of minor league ballparks, and sang the national anthem, as reported here.

Government employers in Western Virginia monitoring employees computer use

The Roanoke Times has this article on the efforts of local government in Western Virginia to monitor the computer use of their employees.

In the Urofsky case, the en banc Fourth Circuit held in a 8-4 decision that "that the regulation of state employees' access to sexually explicit material, in their capacity as employees, on computers owned or leased by the state is consistent with the First
Amendment," a holding which would apply equally to local government employees.

Republican delegates challenge governor's authority to name interim judges

The Washington Post reports here and the AP reports here that Republicans in the House of Delegates are challenging the authority of Governor Mark Warner to appoint judges to fill vacancies until the next session of the General Assembly - including, particularly, a circuit court judgeship in Alexandria.

The Post article quotes Del. Terry Kilgore as saying, "If we don't step up and exercise our rights, we'll be sending the message across the state that if you were appointed by a Democrat, just wait until we are out of town and retire and we won't do anything."

The story seems a bit misleading - it is no news that judges appointed on an interim basis have to sweat out the decisions made in the next term of the General Assembly. It is my recollection that Justice Kinser, for example, was initially appointed by Governor Allen, and then she had to pass muster in the next legislative session. There is nothing controversial about legislators declaring that they will exercise their constitutional prerogatives.

It was pleasure to meet Judge Roger Gregory of the Fourth Circuit when he came to Abingdon and spoke sometime last year. Judge Gregory was nominated originally by President Clinton, and then renominated by President Bush, and so became one of the few trouble-free nominations to the federal court of appeals positions since President Bush took office. Judge Gregory is an outstanding individual, the kind of lawyer who sets an example for others (like myself) to admire and try to follow.

I don't know the man in Alexandria who is being considered for the judgeship there. There are many lawyers in Alexandria. I would hope that the Republicans in the General Assembly are as able to consider the possibility, as the White House apparently did, that the endorsement of the leader of the opposition does not disqualify an well-qualified candidate for a judgeship.

On the ceremonial swearing-in of Judge Greer of the E.D. Tenn.

The Kingsport Times has this story, the Greeneville Sun has this story, the Morristown paper has this story, and the AP has this story on the ceremonies for the investiture of Judge Ronnie Greer of the E.D. Tenn., who was administered his oath by U.S. Senator Lamar Alexander in Greeneville on Friday afternoon.

Virginia Supreme Court grants appeal in Gent murder case

As noted here, the Virginia Supreme Court has granted the petition for appeal in the Jody Gent murder case. Gent was sentenced in 2001 to 56 years in prison upon being convicted of robbing and murdering an elderly woman in Wise County, as reported here in the Coalfield Progress. Gent's conviction was affirmed by the Court of Appeals.

Former Sen. Trible will not run for lieutenant governor in 2005

The Daily Press reports here that former U.S. Senator Paul Trible has announced that he will not run for the Republican nomination for lieutenant governor in the 2005 election.

Why are municipal electrics (and not the ILECs) going forward with the "triple play"

This article describes (without mentioning anything about Bristol) why municipalities in other parts of the country are leading the way in fiber-to-the-home projects that carry highspeed data, voice, and video services.

Carrying guns in Virginia's government buildings

Most places in Virginia it is not necessary to sneak a gun into the public buildings of state and local government, according to this report in the Virginian-Pilot.

Richmond city council member arrested for bribery

A City of Richmond council member has been arrested by the FBI on charges that she took a bribe of "$2,000 to support a candidate vying to fill the vacant 6th District Council seat," according to this AP report. The Richmond Times-Dispatch has this report.

More on Fourth Circuit's opinion in the Appomattox County biosolid case

The AP has this report on yesterday's ruling by the Fourth Circuit affirming the preliminary injunction against enforcement of the Appomattox County ordinance limiting the use of biosolids.

FBI seizes court records in Unicoi County, TN

As reported here, the FBI took over a Tennessee county courthouse on Wednesday and seized a bunch of records, and no one is saying why.

The Lynchburg electoral board mess

It seems like the litigation and investigation never ends in connection with the registrar's position and the electoral board in Lynchburg - with the latest described here.

More on political activity by electoral board members

The Daily Progress has this report on the views of an 83 year-old electoral board member in Albemarle County who dislikes the Attorney General's conclusion that he can no longer volunteer to work on political campaigns.

VHDA "family" rule debated

The AP has this report and the Richmond Times-Dispatch has this report on the arguments for and against the Virginia Housing Development Authority's rule denying home mortgage loans to joint applicants unless they are "related by blood, marriage or adoption or by legal custodial relationship."

UPDATE - The Richmond paper reports here and the AP reports here that VHDA voted on Friday to eliminate the family rule.

Ferrum College admits some fault in student suicide case

Ferrum College, located in Franklin County, has taken the apparently unprecedented step of acknowledge some responsibility for the suicide of one of its students, according to this report in the Roanoke Times, which says that the college "has acknowledged that 'errors in judgment and communication by school personnel' were partly responsible for the suicide of one of its students more than three years ago, in what is believed to be the first time an American college or university has made such an acceptance of responsibility." The AP has this report.

Today's ABA Journal ereport on blogging

This article in the ABA Journal says blogging could be bad.

I'm not sure that analysis applies in the same way to a small-town lawyer like myself as it might to high-powered big-firm lawyers like Howard in Philadelphia and Denise in Los Angeles, and even so I suspect that their blogs are actually among the greatest legal marketing achievements of all time - as evidenced by yet another blogging article sent nationwide with their names in it.

Virginia county loses appeal of injunction against enforcement of local biosolids ordinance

In O'Brien v. Appomattox County, the Fourth Circuit in a per curiam opinion for the panel of Judges Michael and King and District Judge Wooten affirmed the district court's decision to preliminarily enjoin the County from enforcing its ordinance prohibiting farmers from applying biosolids to their land in the County.

The opinion notes:

"In light of the widespread use of biosolids in Virginia and elsewhere in the United States, the regulations and examinations undertaken by the Virginia General Assembly and the United States Environmental Protection Agency ("U.S. EPA"), and the studies by the scientific community, the fear of possible, adverse health effects is too attenuated at this time to outweigh the likelihood of harm to the Farmers."

In addition, the District Court had the benefit of what both the Virginia Supreme Court and the Virginia General Assembly have to say on the authority of counties over the use of biosolids:

"the District Court reviewed the Virginia Supreme Court’s decision in Blanton v. Amelia County, the legislation enacted by the Virginia General Assembly limiting the role of counties in regulating biosolids, and the effect of these ordinances on landapplication of biosolids. In light of the recent decisions by the Virginia Supreme Court and the Virginia General Assembly, we cannot conclude that the District Court erred in determining that the claims and evidence provided by the Farmers raise such serious, substantial, and difficult issues that they warrant more deliberate investigation."

Whose DEQ is it anyway?

This Richmond Times-Dispatch article says that the offices of future gubernatorial candidates Tim Kaine and Jerry Kilgore are swapping accusations over whose fault it is that the Virginia Department of Environmental Quality has not done more to enforce the environmental laws with regard to a landfill in Page County.

Tax reform hits local government on telecommunications in Virginia

The Richmond Times-Dispatch has this article on the latest vote by the telecom tax reform committee of legislators, headed by Delegate Preston Bryant. The committeeis proposals include the following:

"The panel agreed to call for reduced consumer confusion, consolidated taxes, uniform taxes statewide, a reduced tax rate on most Virginians, competitively neutral taxes, preserved state and local revenue and establishing a single tax collection and distribution point.

The proposals call for repeal of local consumer utility taxes on telecommunications, local gross-receipts taxes paid by consumers, the Virginia relay fee for services to the deaf, the cable-franchise fee and the current E-911 tax structure. Some taxes vary from locality to locality.

In their place, the proposed plan would impose a 4.5 percent statewide sales tax on communications and video services and a E-911 fee on wireless and wireline phones not to exceed 75 cents per month compared with the current $3 monthly maximum."

The demise of cable franchise fees and other moneymakers for localities will draw heavy opposition from cities and counties.

Profile of Judge Lee of E.D. Va. who struck verdict in Lentz case

The Washington Post has this profile on Judge Gerald Bruce Lee of the E.D. Va., who recently overturned a jury verdict in a federal "kidnapping" case and told prosecutors the case should never have been brought in federal court.

Three railroad engines on the loose, derailed by Norfolk Southern

If you think you're having a bad day, consider the unidentified railroad engineer who let three diesel engines get away from him outside of Bluefield, as reported in this story.

FERC denies rehearing on SW VA natural gas pipeline

As reported here, the Federal Energy Regulatory Commission ("FERC") has denied the petition for rehearing of some Southwest Virginia landowners regarding Dominion Resources' Greenbriar pipeline project, which is being constructed between West Virginia and North Carolina and passes under the New River in Virginia.

Virginia Attorney General opines that registrars and electoral boards must avoid party jobs

The Roanoke Times reports here that election officials are critical of the Attorney General's recent opinion that state law prohibits registrars and members of electoral boards from holding any kind of political party office. In Virginia, the electoral board for each city and county is made up of a majority of members who are of the same party as the governor, a minority of its members are of the other party - and so, only party activists ever get appointed to electoral boards.

"Cuppa Joe" debunks characterizations of Roanoke in national media

In the latest Joe Kennedy column in the Roanoke paper, he exposes the bizarre characterizations of Roanoke by the national medial particularly in the wake of the recent visit by presidential candidate Bob Graham of Florida.

Denial of qualified immunity affirmed for police officer for arresting lawyer who tried to help neighbor pulled over for DUI

In Wilson v. Kittoe, the Fourth Circuit in an opinion by Judge King joined by Judges Michael and Traxler rejected the police officer defendant's qualified immunity appeal, in a case where the officer was trying to arrest a guy for drunk driving and the guy's neighbor, a lawyer, wakes up, comes out, starts trying to help out the guy getting arrested with some gratuitous legal advice, and winds up riling the officer enough to get arrested himself, under Virginia's "obstruction" statute, Va. Code 18.2-460.

I guess that between this Wilson case and the case of Rogers v. Pendleton, 249 F.3d 279 (4th Cir. 2001), it is clearly established that law enforcement officials should not arrest Virginia lawyers at their homes for obstruction of justice unless the lawyers do something more than to exercise their constitutional right to refuse to shut up.

Wiccan files federal suit to pray at Chesterfield County supervisors' meetings

The Petersburg paper has this report and the Richmond Times-Dispatch has this report on a civil rights lawsuit brought by a Wiccan seek a court order allowing her to open the meetings of the Chesterfield County board of supervisors with Wiccan prayers.

New software feature - copyright indemnification?

I thought this article and the comments attached to it were hilarious - as I understand it, if Microsoft steals someone else's technology, puts it in their software, and sells you a license, it is now agreeing to indemnify the software purchaser for attorneys' to defend the suit.

What's this feature worth? I doubt that it gets a big footnote in the MS financial statements.

On last night's execution of Bobby Wayne Swisher

The Washington Post has this story and the AP had this story on the execution last night of Virginia inmate Bobby Wayne Swisher, "six years after he kidnapped and raped a young mother before slashing her throat and tossing her, still alive, into the frigid waters of the South River."

Summary judgment for employer based on "bona fide executive" exemption upheld in overtime case

In Jones v. Virginia Oil Co., Inc., the Fourth Circuit in a per curiam decision for the panel of Judges Michael and Motz and Senior Judge Beezer from the Ninth Circuit affirmed the decision by Judge Moon of the W.D. Va. to grant summary judgment for the employer in an overtime case, concluding that the facts showed that the plaintiff's employment was within the "bona fide executive" exemption under the "short test," where the plaintiff was an assistant manager at a combination Dairy Queen and convenience store.

Law review article about blawgs

As Brian Peterson explains here, his blog and mine and those of Marcia Oddi, Rory Perry, and others are footnoted in this law review article to be published in the Journal of Appellate Practice and Process by the master and mistress, respectively, of the Statutory Construction Zone and blueblanketblog.

I must say, though, that I read these other "state" blogs not because but in spite of their "geographic" themes - Marcia Oddi's Indiana blog, for example, is chock full of interesting stuff, separate and apart from the Indiana law.

Judge Lee of the E.D. Va. throws out kidnapping verdict in Lentz case

The Washington Post reports here that Judge Gerald Bruce Lee of the E.D. Va. has granted a defense motion to dismiss the federal kidnapping charges against Jay Lentz, after a jury found him guilty (despite no body ever being found). The judge criticized the U.S. for making a federal case of an ordinary murder prosecution.

Full Virginia Court of Appeals will reconsider nude dancing case

As reported here, the Virginia Court of Appeals will rehear this split panel decision that overturned, based on the First Amendment, a stripper's conviction for violating public nudity laws in Henrico County. Here is my earlier post on the case.

The case makes me recollect Judge Bork's comments at last year's Fourth Circuit judicial conference, where he said something like nude dancing at a high school graduation might be protected by the First Amendment, unless it was the Dance of the Seven Veils, which would have an impermissible religious connotation - I guess making fun of the fact that nude dancing gets much more constitutional protection than does prayer in schools.

More on domestic partner health insurance in Virginia

Tax & Biz has this post responding to my ruminations over the Sunday feature articles in the Virginian-Pilot about the non-availability of group health insurance for "domestic partners" in Virginia.

ABA gives Claude Allen only a "qualified" rating

Just when Senator Hatch was starting to come around on ABA ratings (since they liked Miguel Estrada), the Richmond Times-Dispatch reports here that the American Bar Association gave Fourth Circuit nominee Claude Allen only a "qualified" rating, in a split decision, with some voting that he was "not qualified." By contrast, the ABA committee

The members of the ABA's Standing Committee on the Federal Judiciary are listed here. In this term of Congress, as shown here, other findings of the Committee included: that Allyson Duncan, nominated for the Fourth Circuit, and Glen Conrad, nominated for the W.D. Va., were "well qualified," and that Judge Terence Boyle nominated for the Fourth Circuit and Judges Thomas Varlan and Ronnie Greer of the E.D. Tenn. were "qualified," with some members contending that Varlan was "not qualified." I believe all but Judge Boyle and Mr. Allen have been confirmed by the Senate.

Besides Allen and Boyle, the committee also gave only "qualified" ratings in this Congress to appeals court nominees Deborah Cook, Jeffrey Sutton, Timothy Tymkovich, and William Pryor, all of which suggests that politics (rightly or wrongly) is still part of the measuring stick applied by the committee.

Federal jury faults IRS stupidity in tax fraud case

In convicting defendants accused of defrauding the IRS by seeking and obtaining bogus refunds of $500,000 for slavery reparations, a federal jury declared that the IRS is incompetent and should never have allowed taxpayer money to be paid out by mistake to these kinds of characters, as reported here in the Richmond Times-Dispatch (via VLW).

Classifying the broadband universe

There's cable, DSL, satellite, fixed wireless, and fiber optic - all ways of getting "broadband" to your home or office, and so why does the FCC treat them so differently? That's the question before a House committee today dealing with telecommunications, as described in this article from the Mercury News. (Of course, not everyone agrees that cable modems and DSL provide true "broadband.")

More on the increasing financial self-sufficiency of U.Va.

InsideUVa has this article on "decentralization" in funding for the University (written by my old University Journal comrade Dan Heuchert) and this account of the efforts of the law school and graduate business school at the University of Virginia to operate without any money from the Commonwealth.

The legislators ought to feel embarrassed every time they think about this, that two of the best graduate programs in the country decided that they would sooner be essentially private than subject themselves to the non-support of the General Assembly. Instead of operating to showcase what Virginia can do in public education, these programs show instead that the best plan for success is to have as little as possible to do with Virginia's politicians.

Is "failure to stop for a blue light" a violent felony for federal sentencing purposes

In U.S. v. James, the Fourth Circuit in an opinion by Judge Gregory joined by Judges Neimeyer and Shedd concluded that the defendant's conviction under South Carolina state law for "failure to stop for a blue light, S.C. Code Ann. § 56-5-750" was properly considered a "violent felony" for purposes of the armed career criminal enhancement under federal sentencing law.

Apparently, failure to stop for a blue light does not involve an inadequate response to an in-store sales promotion at K-Mart.

Dismissal of investor suit on statute of limitations affirmed

In Cohen v. USEC, Inc., the Fourth Circuit in a per curiam opinion for the panel of Judges Niemeyer and Shedd and District Judge Spencer of the E.D. Va. affirmed the dismissal of plaintiffs' securities claims as barred by the one-year statute of limitations, and remanded the case for further consideration of the issue of sanctions under Rule 11.

Fourth Circuit upholds federal law conviction for sexual contact with children

In U.S. v. Geraci, the Fourth Circuit in a per curiam decision for the panel of Judges Luttig, Niemeyer, and Michael upheld the constitutionality of the 18 U.S.C. 2244(a)(1) as applied to the defendant, rejected her claim that she was entitled to a pre-trial evidentiary hearing on the admissibility of a child's testimony, and rejected the defendant's arguments about the admissibility of hearsay testimony used against her at trial.

Proposed rule change from E.D. Tenn. for redaction of personal information from court documents

The U.S. District Court for the E.D. Tennessee earlier this month gave this notice of a proposed rule change, that would require the redaction of certain personal information from documents that are filed and subject to public access.

This rule seems to anticipate the increased ease of access court documents that will result from electronic filing, which I understand will soon be a reality in our federal courts on both sides of the line.

Is it a denial of equal protection to house state inmates in a local regional jail?

In Khaliq v. Angelone, the Fourth Circuit in a per curiam opinion for the panel of Chief Judge Wilkins and Judges Gregory and Traxler rejected the equal protection claims of state inmates housed in the Albemarle Charlottesville Regional Jail.

The Court noted that "Appellants had no federal right to be housed in any particular state facility, or in a state corrections facility as opposed to a local jail compensated by the state for the cost of incarcerating state inmates pending their transfer to an available and appropriate space within a state facility."

In addition, the Court agreed the justifications for the differing treatment could withstand the minimal constitutional scrutiny required, as "Appellants’ allegations, if proven, fail to establish that their imprisonment in the ACRJ was irrational, arbitrary, or otherwise not in furtherance of a legitimate penological interest."

The opinion in the E.D. Tenn.'s "service horse" case

I have heard about but never saw until now this opinion by Magistrate Judge Edgar in the case of the Americans with Disabilities Act lawsuit brought on behalf of a little girl with disabilities who wanted to keep her miniature horse in town, over the town's refusal to permit the horse where the little girl lives. (The Court granted the town's summary judgment motion.)

Pro se defendant declares Judge Richard Williams is the devil

Via Virginia Lawyers Weekly, this story in the Richmond Times-Dispatch describes a hearing before Judge Richard Williams of the E.D. Va., involving the representation of a defendant in a criminal tax case, and his decision to represent himself. Among the highlights:

"Foster, who was wearing a T-shirt bearing the inscription, "40 Acres and a Bentley," gave the judge some unorthodox and unresponsive answers, most of which Williams listened to with uncharacteristic patience.

"I'm telling you that you are committing a criminal offense. . . . I understand that God is my witness and he will judge you and anybody else that is committing these offenses," Foster said.

"God is my representative, let's make that clear, OK?" he said at another point. A moment later, he said "indigenous lawyer Drew Sharref El" is his attorney.

"It's a disgrace for me to even be standing here in this courtroom," he said still later. "I have no respect for you or this so-called . . . ." When Foster paused, Williams simply asked another question.

After Williams had ruled that he could represent himself, Foster had still another comment.

"Let me tell you something," Foster told the judge. "You are the devil. You are the devil."

Williams recessed court. Marshals put the handcuffs back on Foster."

Does U.Va. discriminate in admissions based on in-state geography?

According to this article in the Washington Post, people of all parts of the Commonwealth think that U.Va. discriminates against them an in favor of the people from the other parts of the state. The University admissions people denied that it considers diversity of geography from within Virginia in making admissions decisions.

D.C. Circuit affirms FCC interpretation of Virginia contract law

In Starpower Communications, LLC v. FCC, the D.C. Circuit affirmed the FCC's application of Virginia contract law to the agreement between Verizon and the CLEC Starpower regarding interconnection fees for telephone calls made to dial-up Internet service providers.

In terms of procedural history and choice of law rules, the Court explained the complications of litigating an interconnection agreement:

"In 1999 Starpower filed petitions with the [Virginia State Corporation Commission] seeking declarations requiring Verizon to pay for ISP-bound traffic under the two agreements. The VSCC declined jurisdiction in favor of the Commission. See 47 U.S.C. § 252(e)(5). Starpower then petitioned the Commission to preempt the jurisdiction of the VSCC and, when the Commission did so, Starpower filed a complaint with the Commission charging that Verizon had violated the agreements by failing to pay reciprocal compensation for ISP-bound traffic.

Because it stood in the shoes of the VSCC, the Commission was obliged to apply the contract law of Virginia, including the rule that "where the terms of the contract are clear and unambiguous, we will construe those terms according to their plain meaning." Starpower Communications, LLC v. Verizon Virginia, Inc., 17 FCC Rcd. 6873 ¶ 24 (2002) ("Order") (citing American Spirit Ins. Co. v. Owens, 261 Va. 270, 275, 541 S.E.2d 553, 555 (2001))."

Nothing is ever easy for CLECs looking to enforce their rights against the ILECs.

31 candidates out of 3,429 registered voters in Craig County

The Roanoke Times has this great article about how 1 out of every 100 voters in Craig County, Virginia, are now running for some kind of county office, which means that either they are a truly public-spirited bunch or maybe they just want better parking places at the county office building.

Parsing the evidence in the Shenandoah National Park murders

Laurence Hammack picks apart the prosecution's evidence in this article in the Roanoke Times about the upcoming federal murder trial of David Rice, who is accused of murdering two women in the Shenandoah National Park.

Are insurers prohibited from including domestic partners in group health plans in Virginia

This article and this article in the Virginian-Pilot say that "[i]nsurance companies licensed to do business in Virginia can only underwrite group policies to cover family members defined as spouses or dependent children," and implying perhaps that this law is some kind of equal protection or due process violation.

This struck me as a very strange conclusion - if this is a legal problem, is state law to blame? My first guess about where to look for the answer to just about any employee benefits question would be to go to the federal tax law - to state the matter in terms as crude as my understanding of it, isn't the whole deal with group health insurance about taxes? And taxes might be the real issue here, as suggested in this FAQ item from the IRS website, which says, among other things:

"Cafeteria plans can offer health insurance to employees, their spouses and their dependents. However, a same-sex domestic partner can never be deemed to be a spouse. See Defense of Marriage Act, Public Law 104-199. . . . The domestic partner and dependents in this case may not be participants in a cafeteria plan because they are not employees, but the plan may provide benefits to them. . . . If the domestic partner and his or her child do not qualify as the employee's dependents, those individuals may receive coverage under the cafeteria plan on a taxable basis. This means that the fair market value of the coverage for the domestic partners and his or her child must be included in the employee's wages for purposes of income tax withholding, FICA and FUTA taxes. See question and answer 65 from Chief Counsel Advice 200117038."

This snippet of knowledge (regarding a local government plan, which might make a difference, I don't know) makes me wonder if the reporting of this story is a bit off the mark. Maybe the gurus at BenefitsBlog, Tax & Biz, or A Taxing Blog know more. The article says this issue is made timely by the Supreme Court ruling on sodomy, which might be true, as evidenced perhaps by discussion such as this and this and this (and all those that preceded them) from Eugene Volokh, not to mention the recent call for divine reform of the Supreme Court from the Tidewater's own Dr. Pat Robertson.

On Virginia's DUI laws

The Virginian-Pilot offers this opinion that it is too easy for dangerous drunk drivers who violate the implied consent laws to get back out onto the streets, where they are a menace to society.

The Horse Race - Baril catches McDonnell in dollars raised

Lessig & Scanlon of the Daily Press report here, among other things, that in the race for the Republican nomination for Attorney General of Virginia, to be decided in the year 2005, Steve Baril from Richmond has drawn abreast of Del. Robert McDonnell of Virginia Beach in terms of fundraising.

The article notes that Baril is "trying to tap into a segment of the party which is perhaps best described as Mark Warner Republicans - the so-called Main Street business leaders who fled the GOP in 2001 to help Warner win the governor's mansion."

On reforming child custody laws and the "best interests of the child" test

This interesting article from the Sacramento Bee notes that anti-Pledge of Allegiance litigant Michael Newdow and the American Law Institute both are arguing against the continued application of the "best interests of the child" test.

The article says that ALI "recommends substituting an 'approximation' test. Custody would reflect the approximate actual division of parental responsibility before a family splits apart." One expert cited in the article "suggests custody be awarded by a coin toss because 'there usually is no rational basis for preferring one parent over another.' He argues flipping a coin would be preferable to having judges evaluate parents' intrinsic worth, as under the current system. He says it also would give both parents an equal chance and reduce the harm that constant litigation does to children."

I myself have litigated exactly one (temporary) custody matter, and lost, and what a terrible day that was. The dispute involved what might be a common scenario - one side had money, the other side had a lifelong bond with the child. The judge, a good and fair man, sided with the money. His ruling did not make much difference in the end, the parties "worked things out" after the hearing, as there was no animosity between them, only a very genuine disagreement about what was in "the best interests of the child."

Taking on the Fourth Circuit over the Hamdi case

Another commentary in the Washington Post criticizes the Fourth Circuit's conclusion in the case involving Yaser Esam Hamdi, an "enemy combatant" held in Virginia. On July 9, the Court voted 8-4 to deny rehearing in the case, but the commentary notes "the vigor of the dissents, which came from an ideologically eclectic group of the court's judges, unified less by their sense of how the case should be resolved than by a laudable insistence on acknowledging the true stakes for liberty that it presents." The dissenters included Judges Motz and Luttig.

Deaths at regional jail generate litigation, controversy

This article relates that one regional jail in Virginia has had four recent inmate deaths, including three by suicide.

Reasons not to go skydiving in Sri Lanka

The legal problems suggested by this article, about a woman whose parachute didn't open but she survived the fall, boggle the mind, but that's not what makes it worth reading.