The ABA ratings on the renominated appeals court candidates

Here are the ratings from the American Bar Association, including the court of appeals' candidates renominated by President Bush.

The ABA rates Judge Boyle as "well-qualified," and the majority rated William J. Haynes, II, as "well-qualified," while the minority concluded that he was only "qualified."

Another voice heard from on the Virginia governor's race

This SouthNow Blog post says, among other things: "Kaine will be the Democrats' first big test of the new 'red-state' strategy espoused by DNC Chairman Howard Dean."

More on the Fourth Circuit's decision in U.S. v. Washington

On reading this post from Professor Berman about U.S. v. Washington, it appears that the case presented a variation of the most interesting Apprendi issue there is, not that I exactly follow these matters, but that is the issue of when it is going to be declared unconstitutional for the judge to impose an enhanced sentence based on the prior criminal record of the defendant. The case deals with the sentencing enhancement for a "crime of violence." The majority held that the court's findings about the prior offense were not within the currently-recognized exception to Apprendi.

Tennessee Supreme Court drops the ball on Blakely issues?

A commenter to this Professor Berman about the Tennessee Supreme Court's attempts to distinguish Blakely in the Gomez case says the "majority opinion reads like it is from the Bizzaro universe."

This morning in Grundy I met a 3L who is going to clerk for Justice Birch. Justice Birch joined in the dissent by Justice Anderson in the Gomez case.

Notwithstanding the debate among the Virginia AG candidates over the sentencing guidelines, one good thing about what we have in Virginia - is no Blakely/Booker problem, so far as I understand these things. On this constitutional issue, it is conceivable that fiddling with the guidelines in ways that would provide for the imposition of enhanced sentences by judges would be a big step in the wrong direction.

More on the Chesterfield County invocation case

This Logos post contains a much more detailed and sensible analysis of the Fourth Circuit decision's in the Chesterfield County invocation case.

Unlike mine, it contains no Wizard of Oz links or references.

Bill Frist website on eliminating the filibuster on the stalled judicial nominations

Via How Appealing, I went to Senator Frist, M.D.'s anti-filibuster website, and never got past the UT football player pictured at the top. Who is it? Kelley Washington? How many games did he play? 17 in two years? Tee Martin (the QB on the national championship team) was No. 17. Why not put Tee on your web page, Senator?

I did however, read the whole of this fake news post, with the headline, CIA Says Senator Frist Lacks Nuclear Capability.

Suing sheriffs in their official capacity

According to this post, the law is all over the place in the 11th Circuit as to whether sheriffs can be sued in their official capacity, or whether they are viewed as the States, and therefore protected from money damages suits by the Eleventh Amendment.

In the Fourth Circuit, sheriffs sued in their official capacities are protected by the Eleventh Amendment in South Carolina (Cromer v. Brown, 88 F.3d 1315 (4th Cir. 1996); Gulledge v. Smart, 1989 WL 69302 (4th Cir.)), but perhaps not in North Carolina (Harter v. Vernon, 101 F.3d 334 (4th Cir. 1996)). The Virginia courts have generally in the more recent cases concluded that Virginia sheriffs are protected by the Eleventh Amendment. See Smith v. Fisher, 2002 WL 192563 (W.D. Va.); Harris v. Hayter, 970 F. Supp. 500 (W.D. Va. 1997); Blankenship v. Warren County, 918 F. Supp. 970 (W.D. Va. 1996); Williams-El v. Dunning, 816 F. Supp. 418 (E.D. Va. 1993); McCoy v. Chesapeake Correctional Center, 788 F. Supp. 890 (E.D. Va. 1992).

My secret plan to get on the federal appeals court

This ACS post describes the research done by Senator Lott's office, which concludes that dumb, obscure guys get confirmed to the federal appeals courts easier than those with lots of fancy qualifications.

Congressman Boucher makes the Honor Roll

In lists like this one, some Democrats are lamenting the fact that SW Virginia's own Congressman Boucher and thirty others Democratic representatives like him voted in favor of both the House bill that toughens up the bankruptcy laws and the House bill against the estate tax.

In the manner of a Civil War substitute, I go to Grundy

As a good deed toward Jack and Sylvia, I am filling in as a fake appellate court judge for some group of 1Ls in Grundy tomorrow, and the worthwhile part is that the issue in a vague sort of way makes me think of the Apple blogger case, about which here is the Bear Flag League brief.

Suppose - the bloggers paid somebody who went and stole Apple trade secrets, and because of the theft and disclosure on the blogs, Apple lost $1 million. If the blogger was merely negligent as to whether the thief would engage in his thievery, can the blogger be liable to Apple for causing the loss? That is sort of more like what is being mooted about in this case at ASL tomorrow, except also it is not about bloggers or Apple, as such.

Today's rant - the evils of auto-reply

I hate auto-reply. It is, in a word, SPAM - directed at your colleagues and paying clients, who are otherwise treated as the good guys. It is a declaration of non-service. Why would a lawyer want to send to his clients an e-mail that says I'm not helping you? Get someone to read the e-mail!

When I am gone, I access my e-mail from afar and/or before I leave, I make a list of the usual and unusual suspects, and implement an e-mail rule that forwards all the messages from them to my assistant and to our receptionist.

Fortunately, those on the forward list (which is saved, and never changes much) are the people for whom or with whom I actually do paying work, and so they are not going to send messages with pictures of the Swedish Bikini team (and if they did, I guess I'd have to charge them extra, after my assistant and/or the receptionist punched me in the nose).

Also, almost as an unrelated matter, I hate auto-replies that get on list servs. In the old days, it happened on a few lists I've seen, that every post would generate an auto-reply from some poor schmo who went on vacation. When he got back to Omaha, an angry mob of list serv-reading lawyers had flown in from every corner of the nation and joined in burning his office down to stop the escalating flow of auto-replies into their respective inboxes. (OK, that never really happened, but it was often proposed.)

AG candidate fundraising numbers

I was just reading some e-mails from the Baril campaign that say they raised more money in the first quarter than did the McDonnell campaign.

Now, if this difference was in part the result of some ban on fundraising during the General Assembly session, that applied to McDonnell and not to Baril, you'd think they would have disclosed that fact, but I can't seem to find that part in the e-mails.

Split decision on plain error in pre-Booker sentence

In U.S. v. Washington, Judges King and Duncan decided that Apprendi and Booker required the reversal and remand of the defendant's conviction and sentence, while Judge Luttig in a dissenting opinion asserted that an exception to Apprendi applied and as to Booker, the error, if any, in the defendant's guideline sentence was harmless and not enough to justify a reversal.

I'm not sure but what this is the first opinion from Judge Luttig on the effects of Booker.

U.S. Route 11 around 1920

This Big Salt Lick post includes a picture of Route 11 as it looked long ago.

En banc Court of Appeals affirms conviction for obscene display, as opposed to exposure, by defendant who showed the victim a picture

In Moses v. Com., the Virginia Court of Appeals, sitting en banc, disagreed with the earlier panel decision and affirmed the criminal conviction for obscene display under Va. Code 18.2-387 of a criminal defendant who went up a pre-teen girl at a Walmart and showed her a dirty picture. Judge Benton wrote a dissenting opinion, joined by Chief Judge Fitzpatrick and Judge Elder.

John Whitehead of Rutherford Institute comes to Grundy

According to this press release, Paula Jones' other lawyer, the one AFTER Gil Davis, made a recent visit to the Appalachian School of Law, as a guest of their Federal Society and Christian Legal Society.

Dog cases in Virginia

The Washington Post has this story about what makes a dog dangerous under Virginia law.

I did once represent my sister's dogs Buck and Summer in dog court in Washington County. They were observed at the scene of a dead cow. The farmer would have shot them if he had been closer. Instead, they ran off, so the farmer took a warrant. My brother-in-law paid for the cow, we got a little release from the farmer, and Buck and Summer were put on good behavior. I think Summer was given away. The mellow dog Buck is still around, relocated with that family to Lee County. It was one of my best cases ever in general district court.

The case of the Cumberland Gap speeder

I've been cogitating over this opinion for a few days, and it appears that in U.S. v. Hall, that the defendant's arrest might have been illegal but even if it was, there was enough evidence separate and apart from whatever the guy said after he was arrested to support his conviction.

So, does that mean he can sue the arresting officer on some kind of Bivens claim? And, what could he get for it?

It is an interesting case involving a fellow who was spotted speeding through the tunnel in the national park at Cumberland Gap but was not arrested until another officer saw him in beautiful downtown Middlesboro, KY, outside the park service's domain.

Today's classic rant - the futility of the discovery letter

One of my pet peeves is the existence in the events list for electronic filing in the Western District of Virginia of an entry called the "discovery letter."

By "discovery letter," I mean simply the cover letter for written discovery requests, that gets sent to the Court without the enclosures sent to the parties. Under the Court’s standing orders, "discovery material" is not to be filed in most judges' cases. Similarly, under Rule 5(d) of the Federal Rules of Civil Procedure, specified discovery documents "must not" be filed. There is no provision for "discovery letters" (or any other letters) in the Rules.

Over the years I have argued, threatened, and pleaded with my co-workers and staff to not send any mail related to written discovery to the clerk’s office in federal court cases. With the advent of e-filing, however, the clerk’s office is encouraging people to e-file these discovery letters. I believe that the docketing of "discovery letters" conflicts with the reasons for non-filing of discovery material; does not match the way the Court handles other, similarly insignificant cover letters (which aren't even filed, mostly); and is not done in other courts (at least not the ones for which I have e-filing passwords). These "discovery letters" contain no information of use to the Court. Instead of requiring lawyers to add these letters to the online docket, the Court should be discouraging the lawyers from sending out such letters at all.

I last ranted on this subject in August 2004, and it has been building up again, so I thought I would let it out.

Fourth Circuit throws water on the Chesterfield County witch

In Simpson v. Chesterfield County Board of Supervisors, the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judge Williams and Judge Niemeyer, and with a separate concurring opinion by Judge Niemeyer, held for the County in the witch/plaintiff's Establishment Clause challenge to her exclusion from the list of people who can lead the opening prayer at Board of Supervisors' meetings - I mean, the "non-sectarian invocation."

There was no account given in the opinion of the substance of these invocations.

The Chesterfield County Attorneys' office must be an interesting place to work.

Unrelated to Chesterfield County, the scene from the Wizard of Oz in which the Wicked Witch got doused can be seen and heard here.