Judge Turk denies motions to overturn criminal conviction of Lynchburg mayor

The Lynchburg paper reports here that Judge Turk has refused the post-trial motions challenging the conviction of the fellow who is or was the mayor of Lynchburg.

Objecting to song lyrics

Yesterday's Buchmeyer was about one lawyer objecting to the other's reference to the lyrics of an Elvis song.

Well, we once had opposing counsel cite a George Jones song, noting that "Mr. Jones sang that." I would have objected, but I was unsure how many of the jurors might be George Jones fans. Some of them might have never heard of George Jones.

On the investiture of Judge Bolt

The Galax paper has this report on the swearing-in of Judge J.D. Bolt as a new judge of the 27th District. The article says: "The 27th District has the highest caseload per judge in the state."

On George Wythe

Among the many recent articles on the signers of the Declaration of Independence, here is one on George Wythe, for whom along with John Marshall the law school at Williamsburg is or was named. It says Wythe became a lawyer at age 20.

Model standards of conduct for mediators

I never knew it, but it figures that the ABA has a set of model standards of conduct for mediators.

The Futures Commission

The Commission on Virginia Courts in the 21st Century has a page on the Virginia judiciary website, with a link to its 131 pages of preliminary recommendations. The website also lists the members of the Commission and its various task forces. There are some strong, no-nonsense names on those lists, of the people that I know.

One of the preliminary recommendations is: "The constitutional office of Clerk of the Circuit Court should be eliminated. In its place, each Circuit Court should appoint a court administrator to perform all of the duties currently performed by the Clerk of the Circuit Court." At the public hearing in Abingdon last night, two of the clerks of court explained their opposition to this recommendation.

Another one of the recommendations is:

"Virginia has an outstanding judiciary. It is vitally important to maintain public confidence in the quality and integrity of Virginia’s courts. To ensure Virginia continues to have men and women of the highest quality serve on the bench, it is recommended:

(1) For election to statewide courts:
(a) The General Assembly should appoint a Judicial Nominations
Commission (JNC) which reflects the diversity of the Commonwealth.
The members of the JNC shall include the Presidents (or their designees)
of the Virginia State Bar and such voluntary statewide bar associations as
may be selected by the General Assembly and members of the public.
(b) The JNC shall evaluate candidates according to standards and criteria
which shall include:
1. Integrity;
2. Legal knowledge and ability;
3. Professional experience;
4. Judicial temperament; and
5. Such other factors as the General Assembly may consider
appropriate.
(c) For each vacancy, the JNC shall submit to the General Assembly the
names of more than one candidate deemed 'qualified' or 'well
qualified.' The General Assembly should elect judges from the slate
submitted by the JNC.
(2) For election to trial courts:
(a) The process of electing trial court judges should reflect the particular
circumstances and needs of each jurisdiction.
(b) In every jurisdiction, the administration of justice benefits when the
selection process includes input from the local legal community and the
public. Therefore, local bar associations should communicate with their
legislators to establish a process by which the local legal community may
assist the General Assembly in identifying the best qualified candidates.
(3) For reelection: In order to preserve judicial independence, judges should be
reelected unless there are compelling non-political reasons not to reelect."

New York's highest court rejects same-sex marriage claims

Here is the opinion from the Court of Appeals in New York, which came down against the marriage applicants, despite many predictions to the contrary in yesterday's press.

Such rulings should work against constitutional amendments such as that on the Virginia ballot in the fall, which was targeted at what legislators perceive as the rogue courts in Massachusetts and elsewhere. The appeals court in Massachusetts reached the opposite conclusion in the Goodridge case in 2003.

The July 4 session of the U.S. District for the W.D. Va.

Rick Sincere has this delightful report on the naturalization ceremony presided over by Chief Judge Jones at Monticello earlier today.

Rick wrote that Judge Jones spoke of how much the late Judge Michael enjoyed this annual occasion. I'm betting that Judge Jones enjoys it quite a bit himself.

Will Governor Kaine exonerate a convicted witch?

The Washington Times reports here that the Governor will be asked for somewhat post-judgment relief in the case of "Virginia's only convicted witch tried by water" - in 1706.

I can't recall whether the candidates in last year's campaign made any promises about executive clemency as applied to witches.

Colonial Williamsburg begins podcasting

Here is a story reporting that Colonial Williamsburg now offers a way for the tourists wandering about the neighborhood around Duke of Gloucester Street to get the knowledge by way of their portable audio players.

Massey sues court reporter in West Virginia

The West Virginia Record reports here that the A.T. Massey Coal bunch has filed suit in federal court against a court reporter who botched the recording of the trial of the Harman Mining case in Boone County. The court reporter is alleged to be the "official" court reporter for the Court, and so the case is filed as a constitutional claim under 42 U.S.C. 1983.

The story says in part:

"A seven-week trial began in May 2002 in Boone County Circuit Court, and it ended on Aug. 1, 2002. The jury ruled against Massey, which was ordered to pay more than $50 million in damages.

In its complaint, Massey says it filed post-trial motions on Aug. 30, 2002. Circuit Judge Jay Hoke entered a final order overruling Massey's motions on March 15, 2005.

On April 14, 2005, Massey filed a request for an appellate transcript and paid $10,000, the amount required by Meadows to have the transcript completed.

On May 12, 2005, Hoke granted Massey an extension until Sept. 16, 2005, to file its appeal "based on the fact that Ms. Meadows represented that she was having difficulty completing the transcript."

On Sept. 8, 2005, the state Supreme Court of Appeals gave Massey another extension through Jan. 1, 2006, to appeal after Meadows again said 'her work load prevented her from completing the transcript.'

After Meadows again was unable to produce any of the transcript, Massey asked the administrative office of the state Supreme Court to investigate.

That investigation, the complaint says, 'revealed that Ms. Meadows was not too busy to complete the transcript, but had intentionally misrepresented her ability to produce a transcript.'

'The investigation established that she had corrupt computer files, poor quality notes, faulty equipment, and had engaged in a practice of not recording or transcribing significant portions of the trial including the pre-trial conference, the jury voir dire, opening statements, and a significant number of the bench conferences,' the complaint states.

Massey says no Stenomask tapes are available for any of the trial.

'The July audiotapes that are available are from a recording device with a single microphone placed on the witness stand,' the complaint states. 'As a result, the tape is substantially inaudible any time the witness or an attorney turns away from the microphone, when a bench conference occurs, or when there is any commotion or disturbance in the courtroom.

'The total absence of the Stenomask recordings make it impossible to determine what occurred during the inaudible portions of the only available audiotapes.'

On Dec. 12, 2005, and March 2, 2006, the state Supreme Court granted two more extensions for Massey to appeal to allow the Court's administrative office to seek independent court reporters to produce the transcript.

Massey says an 'incomplete and inaccurate copy of the purported trial transcript was produced in piecemeal fashion over a period of several months' with the final portion provided on May 11, 2006.

The company says three days of the 32 trial days have no transcript. That includes jury voir dire and jury selection. It also says substantial portions of six days also have no transcript.

In addition, Massey says the provided transcript has 'countless errors,' 'significant gaps' and 'un-quantified, un-transcribed' portions of the trial resulting from 'computer malfunction' and/or 'computer blackout.'

Massey says about 25 percent of the proceedings are missing or unintelligible.

'Due to the length of time that has passed since the trial, the failure of the court reporter to provide a trial transcript, and the failure of the subsequent reporters retained by the West Virginia Supreme Court of Appeals to produce a usable transcript, Massey has been denied its due process right to prosecute an appeal of the trial court's verdict,' the complaint states.

That, Massey says, is a violation of the 14th Amendment of the United States Constitution and Article 3 of West Virginia's Constitution.

. . .

Commenting on Meadows individually, Massey's complaint says the state Supreme Court investigation showed she 'intentionally and materially misrepresented the status of the transcript.'

It also says Meadows had a duty to take full shorthand notes of the proceedings.

Her 'intentional wrongful conduct resulted in excessive delays and a failure to produce a complete and accurate transcript of the lower court proceedings,' the complaint states. 'Because of the delay and the errors and omissions in the alleged transcript, that render it utterly worthless for the purposes of prosecuting an appeal, Massey has suffered substantial financial damages.'

That includes Massey having to post a letter of credit for $55 million - the jury award plus one year's worth of interest - on July 16, 2003. That letter of credit, the suit says, renews automatically and remains in place.

Plus, as delays piled up, Caperton filed a motion asking the security be raised to $72 million. That, however, later was stayed by the state Supreme Court.

Massey secured the $55 letter of credit by borrowing nearly $58 million and placing it in a restricted account. The suit says Massey has paid and will continue to pay interest on that amount until the underlying case is resolved. Also, Massey has a letter of credit fee of $275,000 annually it incurs until the case is resolved.

'Massey has suffered and continues to suffer damages of approximately at least $13,709 per day in the form of post-judgment interest,' the complaint states."

Pretext laid bare

In Forrester v. Rauland-Borg Corp., Judge Posner debunks dicta from employment discrimination cases to the effect that an employer's profferred non-discriminatory reason for the employment action against the plaintiff cannot be disproved by evidence or argument that it was "insufficient to motivate" the action.

Judge Posner explains:

"If it was insufficient to motivate the action, either this means that it didn’t motivate it, or that it shouldn’t have motivated it. If the first is the intended sense, the dictum is just a murky way of saying that the stated reason was not the real reason. If the second sense is the one intended, then the dictum is wrong because the question is never whether the employer was mistaken, cruel, unethical, out of his head, or downright irrational in taking the action for the stated reason, but simply whether the stated reason was his reason: not a good reason, but the true reason."

Fourth Circuit upholds preliminary injunction allowing UMWA as miners' representative in Sago Mine investigation

In United States Department of Labor v. Wolf Run Mining Company, Inc., the Fourth Circuit in an opinion by Judge Niemeyer, joined by Judges Shedd and Duncan, affirmed the district court's entry of a preliminary injunction sought by the Department of Labor to allow the United Mine Workers to participate in the investigation of the Sago Mine accident as the anonymously-designated representative of 2 of the 97 miners.

The company argued that it received insufficient notice that the Court was going to issue a preliminary injunction, as opposed to a temporary restraining order, and that on the merits, the Department was unlikely to succeed, for various reasons, including the argument that allowing the UMWA to participate would in some sense violate the National Labor Relations Act. The appeals court rejected the notice argument, and concluded that "even though the anonymous designation of miners’ representatives raises a serious legal question that has not been decided in the courts," the District Court did not abuse its discretion in granting the preliminary injunction.

That Charlottesville cow

I've been reading about the cow that lit out for the golf course in Charlottesville.

I'm assuming it went to Meadowbrook because it knew it would never be admitted at Farmington.

I'll lose my union card over this

Luskin says here that the people (like me) who think Senator Stevens' account of the Internet is laughable are his "unscrupulous political opponents," as the advocates of that "left-wing horror known as 'Net Neutrality,'" and that Stevens was actually telling the straight scoop.

This could get me booted from the ODBA, if nothing else. Let's go all the way and point out the links here (via Instapundit) and here, with graphic illustrations of Senator Stevens' remarks. All this talk of "the tubes" reminds me that you can see videos of The Tubes and other '80's bands at this site - but don't all go there at once or the tubes will be clogged.

Here is the Slashdot discussion on the Ted Stevens' "Internet is not a truck" remarks.

UPDATE: Here's another "tubes" image at BoingBoing.

Virginia city sues to escape PSA contract over out-of-state trash

The Norfolk paper reports here that Chesapeake has filed suit to get out of its contract with the Southeastern Public Service Authority, and it seeks among other things to obtain a declaration that the SPSA has no authority to be taking in trash from out-of-state.

On the wind power project in Highland County

The Richmond paper reports here and the Roanoke paper reports here on the latest squirmishes in the battle over the controversial wind power project in Highland County.

I never seem to read about how environmentalists or conservationists are fighting in support of this project. The only ones I've read about are against it.

That time of the year

Here are articles on the new Virginia laws from the Norfolk paper, the Newport News paper, and the Washington Times.

On the last week of Judge Elliott

The Norfolk paper had this interesting article on the retirement of Judge Elliott, who concluded his tim on the General District Court bench in Portsmouth, and who was the subject of a recent Virginia Supreme Court case.

The article concludes:

"He planned to get a haircut Friday, maybe see his mom. But there would not be a celebration of how Elliott came to retire.

Being a judge used to be fun, he said."

Tablet PCs required for new Tech engineering students

This CNet story describes the new requirement for the use of Tablet PCs by all new engineering students at Virginia Tech.

I'm not sure that I've ever actually seen a Tablet PC.

The enemies of thought

Ray Ward has this interesting post with links to an article speculating that blogs are the friends of information but enemies of thought.

Of course, blog posts take more thought than most of the e-mails I get. We're in the process of getting Treos in our office - talk about your enemies of thought. With all due respect to the big-city lawyers and clients with whom I correspond, I'm not sure that I've ever learned much from anything written by means of a Blackberry or like device. (But, such devices have enabled them to ponder my own insightful prose as they sit in airports, taxi cabs, and such.)

Expert testimony on breach of fiduciary duty

Blog 702 has this post about the unpublished Fourth Circuit opinion in Parmenter v. Rollins Financial Counseling Inc., which allowed expert testimony in case involving breach of fiduciary duty.

A bear story

From Knoxville, via Michael Silence, I see this, titled "Bears v. Idiots: Bears 0, Idiots 1."

Federal judge in Knoxville refuses to enjoin school's ban on Confederate symbols

The Knoxville paper reports here that Judge Varlan refused to impose a preliminary injunction against a Tennessee school system during the pendency of a lawsuit challenging its prohibition against students wearing clothes with symbols of the Confederacy.

On the Shady Valley Country Store

The Bristol paper wrote about Shady Valley, but left out the website for the Country Store.

Maybe Ted Stevens is the webmaster for the Bristol paper in his spare time. Theirs is still the worst website of all the Media General papers in Virginia, and the worst newspaper website of any in America I've seen.

On the retirement of Morgan Scott

The Roanoke paper has this article on the retirement of Morgan Scott from the U.S. Attorney's office. The article says that Julie Dudley will succeed him as first assistant.

The Roanoke paper takes on mountaintop mining

Here is an article with many links as the Roanoke paper makes a study of mountaintop mining, although it seems like it quickly moves to the broader topic of surface mining in general. It gives the appearance of balance by quoting both outraged friends of the Earth and the fellow from the Virginia Mining Association.

ADDENDUM: A while back, the AFP had this fellow's thoughts on coal, in a piece titled "Coal - the dirty secret behind the Information Age."

Ted Stevens, cyberdog extraordinaire

I've studied this post with the description by Senator Stevens (the infamous sponsor of the Road to Nowhere in Alaska and the truck lanes for I-81 in Virginia) of just how it is that the Internet works.

See what you can make of this:

"I just the other day got, an internet was sent by my staff at 10 o'clock in the morning on Friday and I just got it yesterday. Why?

Because it got tangled up with all these things going on the internet commercially.

So you want to talk about the consumer? Let's talk about you and me. We use this internet to communicate and we aren't using it for commercial purposes.

We aren't earning anything by going on that internet. Now I'm not saying you have to or you want to discrimnate against those people [...]

The regulatory approach is wrong. Your approach is regulatory in the sense that it says "No one can charge anyone for massively invading this world of the internet". No, I'm not finished. I want people to understand my position, I'm not going to take a lot of time. [?]

They want to deliver vast amounts of information over the internet. And again, the internet is not something you just dump something on. It's not a truck.

It's a series of tubes.

And if you don't understand those tubes can be filled and if they are filled, when you put your message in, it gets in line and its going to be delayed by anyone that puts into that tube enormous amounts of material, enormous amounts of material.

Now we have a separate Department of Defense internet now, did you know that?

Do you know why?

Because they have to have theirs delivered immediately. They can't afford getting delayed by other people."

The Supreme Court of One

Dahlia Lithwick writes here that now the Supreme Court comes down to the vote of Justice Kennedy.

On the Fourth Circuit vacancies

This article via Law.com says that of the unfilled vacancies on the Fourth Circuit, the Maryland senators want a Marylander to succeed Judge Murnaghan, the North Carolina senators want dibs on Judge Luttig's seat, the Virginia senators are not letting go of Judge Luttig's seat, and nobody knows when there will be votes on Judge Boyle and Mr. Haynes.

Regarding the latter two, the article concludes:

"Boyle was voted out of the Senate Judiciary Committee exactly one year ago and is set to go to the floor of the chamber, but it’s anybody’s guess as to whether Senate Majority Leader Bill Frist (R-Tenn.) will actually bring up the nomination. Earlier this month, Republican Judiciary Committee staffers held eight half-hour briefings a day for nearly a week to help staffers respond to charges that Boyle had violated federal law by issuing orders in at least nine cases involving corporations in which he had stock holdings.

'We found five cases in which there were strict technical violations in which Boyle should have recused himself,' says a Senate GOP staff counsel. 'But they were administrative oversights. He ruled in over 16,000 cases; these five slipped through the cracks.'

Most Democrats, however, aren’t buying that argument. 'A conflict of interest is a conflict,' says a staffer for one Democratic member of the 'Gang of 14,' the group of seven GOP and seven Democratic senators who vowed not to block any judicial nominations unless there were 'extraordinary circumstances.'

Haynes, who was first nominated in September 2003, is even more problematic. 'There’s no way they want him discussed right now,' says a senior Republican aide, referring to both the White House and Republican senators up for re-election. 'They don’t want to talk about Abu Ghraib during election season.' Besides, Haynes’ nomination won’t get to the Senate floor without another hearing in the Judiciary Committee. Asked last week about holding another hearing on Haynes, committee Chairman Arlen Specter (R-Pa.) was carefully ambiguous. 'I’m considering it. I’m considering it,' he said."

The Washington Times has this commentary from Senator Dole on the handling of the Boyle nomination, titled "Borking Judge Boyle." She says in part: "If you want evidence proving that the judicial confirmation process is in serious need of repair, Exhibit A would be Judge Terrence Boyle of North Carolina. Nearly 15 years ago, Judge Boyle was nominated for a seat on the Fourth Circuit Court of Appeals by the first President Bush. President George W. Bush has since renominated Judge Boyle three times for the same seat — once in 2001, a second time in 2003 and a third time in 2005. Judge Boyle was finally approved by the Senate Judiciary Committee a year ago, yet he continues to patiently await action by the full Senate."

The Law.com article noted that the original candidate for the Maryland seat was Peter Kiesler. President Bush has now nominated Kiesler to a seat on the D.C. Circuit.

All of these links came from Howard Bashman.

On citing Wikipedia

This post discusses federal court opinions that have cited Wikipedia.

I cite Wikipedia mostly because I am too lazy to find better links.

I have been plotting to write some Wikipedia articles but never quite pulled it off.

E-filed complaint with no filing fee was untimely

In Cornett v. Weisenburger, Magistrate Judge Sargent ruled that the attempt by plaintiff's counsel to file a complaint on the last day of the limitations period was ineffective because counsel did not have a credit card account in place for the filing fee and because the complaint was faxed to the clerk's office and not signed.

I'm not entirely sure whether this opinion is entirely consistent with the opinion by Judge Conrad in Vance v. Potter, still another e-filing snafu case. In that case, the Court allowed the timeliness of the plaintiff's filing, on these facts:

"The plaintiff sent a complaint as to Agency Case #4K-230-0094-04 to the clerk’s office in Harrisonburg via the Case Management/Electronic Case Files (CM/ECF) system on February 11, 2005. His attorney had previously registered for both the CM/ECF and PACER systems and believed that he had sent his credit card information for input into both systems. In fact, the credit card information was sent only to PACER and was not entered into CM/ECF. Even though the credit card was not on file with CM/ECF, and therefore the filing fee could not be charged, the CM/ECF system sent an automated message to the attorney on February 11, 2005. This message was styled “Notice of Electronic Filing.” Upon receipt of this message, the attorney left town to attend to personal matters, returning later to learn that his credit card could not be charged and, therefore, the filing fee was not remitted and his case was not actually filed. On February 18, 2005, the filing fee was paid and case 5:05CV00013 was docketed."

I point this out even though Sheriff Jack is a good man and they shouldn't be suing him in the first place.

Fair and unbalanced

The tentative agenda for the blog meeting in Martinsville includes addresses from Attorney General McDonnell, local government attorney Eric Monday, FOIA maestro Frosty Landon, and myself.

I don't know whether I was suggested to address the topic of "network neutrality" because or in spite of everything bad I ever said or wrote about the cable and telephone companies as an advocate for municipal telecommunications networks - in matters including a lawsuit against one of Mr. McDonnell's predecessors.

The book on political corruption in West Virginia

The West Virginia Record has this post on a new book about the last 145 years of political corruption in West Virginia, titled "Don't Buy Another Vote, I Won't Pay for a Landslide."

More on the Haynes nomination

One of those Southern Appeal gents has this post about a column he wrote calling for the confirmation of Fourth Circuit nominee Jim Haynes.

He writes:

"With the recent retirement of Judge Michael Luttig from the Fourth Circuit, the conservatives on the court have only six votes out of 12. The Fourth Circuit currently has several open seats, and unless the Senate votes on qualified nominees such as Jim Haynes prior to the mid-term elections we could see a Fourth Circuit much less in agreement with the average South Carolinian."

I read another article on this topic today, but it was too wacky for a link, something about a conspiracy of old military lawyers.

On pointless, incessant barking

In this interesting ABA article, Tom Mighell reviews the past, present, and future of lawyer blogging.

Of the past, he makes this reference: "In fact, the New Yorker recently featured a cartoon with two dogs, one saying to the other, 'I had my own blog for a while, but I decided to go back to just pointless, incessant barking.'"

Six hours in the Fairfax County Circuit Court

The Connection paper has this interesting article on what it was like to watch a full day of criminal motion hearings before Judge Klein on June 16.

Here is a segment of the article:

Defense attorney Michael S. Davis used himself as an example in order to defend his client Robert William Arnold, who violated his probation on a DUI charge by committing another DUI offense.
"I’m going to make a fool of myself," Davis warned Judge Klein.
"I hope not, Mr. Davis," said Judge Klein.
Davis told Klein that he holds five degrees, including three undergraduate degrees — one in nursing — and two advanced degrees including his law degree.
Davis also holds another distinction in his family for being the only man who has lived past the age of 50. But he recently started smoking again after three and a half years of abstaining, he said.
"Obviously, I know better. I know every time I stick one of these things in my mouth, it’s like putting a stick of dynamite in my mouth."
But even though he knows better, that hasn’t stopped him. "That’s an addiction," he said. "That’s what my client has, an addiction."
Arnold knew he would be sentenced to spend additional time in jail, Davis said, but he asked Judge Klein to look at this from the perspective of someone with an addition. "He needs treatment," Davis said.
Arnold said he is on a waiting list to enter a 90-day treatment program.
But Klein reminded Arnold that he didn’t show up for the Alcohol Safety Action Program that was imposed after he was convicted.
Klein reimposed the 160 days he suspended after Arnold was convicted of DUI, Second Offense within 10 years on May 17, 2006.
"Mr. Arnold, there is a difference between your situation and Mr. Davis’s situation in that the only person who is going to be killed because of Mr. Davis’s addiction is Mr. Davis," Judge Klein said.

Summary judgment in a USERRA case

In the case of Francis v. Booz, Allen & Hamilton, Inc., the Fourth Circuit in an opinion by Judge Duncan, joined by Chief Judge Wilkins and Judge Niemeyer, affirmed summary judgment for the employer on the plaintiff's three different kinds of claims under the Uniformed Services Employment and Reemployment Rights Act.

USERRA is one of the newest of the Civil Rights statutes and best written from the perspective of the employees - with many of the ambiguities that were thrashed out in the courts under the other statutes dealt with expressly within the language of the Code, in ways that the older statutes still lack.

You can't defeat a motion for summary judgment with pinprick objections

In a case decided Friday by the Fourth Circuit, called Hux v. City of Newport News, Judge Wilkinson wrote that the plaintiff's "suggestion that summary judgment is precluded by pinprick objections to an employer’s non-discriminatory justification would place routine personnel decisions in judicial hands," and therefore summary judgment against the plaintiff was affirmed.

The record

It says here: "The record for single-day executions is believed to be the eight men convicted of rape who were electrocuted on Feb. 2, 1951, in Martinsville City, Va."

Is Atkins getting smarter?

This Findlaw article accuses Virginia of evading the Supreme Court's ruling in the Atkins case, as it continues to work towards the execution of Atkins himself. The author asks: "Is Atkins gradually getting smarter? Of course not." The article goes on to conclude that "when prosecutors, and their experts, argue that a death row inmate's reduced cognitive capabilities developed not in early childhood, but much later --- perhaps even in prison - the inmate may not have proof to rebut that contention, even if false."

On Kelo plus one

If I was trying to get a grip on the Kelo case and its aftermath, I'd buy this new book by Timothy Sandefur.

He had a great blog, while it lasted - one of my old favorites.

On the topic of civil rights and retaliation

Another sometime lecturer on civil rights litigation, a California lawyer named Stephen Yagman, has been indicted for tax evasion and money laundering, according to this Bashman post.

One of the cited articles had this selective summary of Mr. Yagman's career:

"1976 -- Admitted to the State Bar

1982 -- Represents a homeless man who is awarded $100,000 in a settlement with the city of Hemet. The man had accused police of driving him out of town in handcuffs and beating him.

1988 -- Represents a pregnant woman who sues Riverside police after she is punched in the stomach during an arrest. She is awarded nearly $200,000.

1989 -- Six-month disciplinary suspension for seeking an unconscionable fee in a 1980 case.

1994 -- Receives a $290,000 settlement from Riverside County stemming from injuries a family suffered from deputies and a flash-bang grenade in a 1989 drug raid on the wrong house in Pedley.

1995 -- A federal jury finds Riverside police used excessive force in shooting a fleeing felon who had shot two other people. The client is awarded $184,000, but judge set it aside.

1995 -- A federal appeals rules that Yagman cannot be disciplined for out-of-court speech critical of a judge.

1997 -- Chosen for a team of special prosecutors to investigate the FBI's deadly standoff with a white supremacist at Ruby Ridge, Idaho.

1998 -- Six-month suspension for ethical violations including overcharging clients. He improperly collected both court-awarded attorney fees and a 45 percent contingency fee, for a take of more than $400,000, leaving his clients in a police-misconduct case to each collect $810.

2001 -- Yagman ends his service as special prosecutor of an FBI sharpshooter in the Ruby Ridge case when an Idaho prosecutor decides to drop charges.

2002 -- Files the first lawsuit on behalf of the Guantanamo Bay prison detainees.

2006 -- Indicted on charges of federal income-tax evasion."

On the state of the death penalty

Via Howard Bashman, the Potomac News had this interesting essay, with quotes from some Virginia lawyers, on the thirty years since the Supreme Court allowed the resumption of the death penalty in America. The piece notes among other things that there are four convicted murderers from Prince William County now on death row.

Why can't Kentucky government employees read this blog?

After all, there's been nothing here lately but a bunch of vacation pictures.

Concurring Opinions has this post and Copyfight has this post (with these links from Daily Kos and Boing Boing) on the efforts by the government of one of those other Commonwealths to block state employees from looking at blogs from their workplace desktops.

The Kentucky Law Blog reports here that a lawsuit may be filed.

Once in a while my Sitemeter suggests that there are, in fact, employees of the Commonwealth of Virginia who pull up this blog - and use it to go read the Instapundit.

Exhibit A on net neutrality

Lessig writes here: "One clue to this Net Neutrality debate is to watch what kind of souls are on each side of the debate. The pro-NN contingent is filled with the people who actually built the Net — from Vint Cerf to Google to eBay — and those who profit from the competition enabled by the Net — e.g., Microsoft. The anti-NN contingent is filled with the entities that either never got the Net, or fought like hell to control it — telecom, and cable companies."

On the Supreme Court's summer vacation

Wasn't it true that in the old days the Supreme Court had all of its opinions out in time for the Chief Justice Rehnquist to attend the Fourth Circuit Judicial Conference, where Professor Howard and friends would talk about them? And, isn't the judicial conference, now held every other year, some time in June?

Perhaps the Fourth Circuit should go back to having its conference every year, so the Supreme Court would be done with its work for this term by now.

They'll lose their union cards for this

I haven't quite figured out what to make of the Supreme Court's decision in Hudson v. Michigan, the no-knock case, but one thing that made me laugh out loud was that Justice Scalia's opinion cites the work of Professors Avery, Blum, and Rudovsky, on the point of how easier it is to find a lawyer to sue a police officer.

I've enjoyed listening to Professors Avery, Blum, and Rudovsky a couple of times in the past, at section 1983 litigation seminars, but somehow I doubt that they are routinely in agreement with the views of Justice Scalia on section 1983 litigation.

Don't blame me, I'm just trying to keep up with Matt Conigliaro

The Florida appellate guru at Abstract Appeal has his own set of pictures from Italy and elsewhere.

On public employee free speech

Not so long ago, I wrote about the Fourth Circuit's decision in the Marshall University football case, where the plaintiff was a fellow called Ridpath. The Ridpath case intrigued me in part because of its reference to "the McVey rule," citing the first appeals court opinion from the case we litigated some years ago.

At the end of May, the Supreme Court's ruling in Garcetti v. Ceballos puts the boot to the McVey rule, by my reckoning. All the public employee speech cases I've litigated would have been affected by the rule from the Garcetti case, including McVey. In Garcetti, the Court held that when public employees make statements pursuant to their official duties,they are not speaking as citizens for First Amendment purposes,and the Constitution does not insulate their communications from employer discipline.

It is ironic that the employer in this case is that fellow Garcetti, whose office botched the O.J. Simpson case, about which so many public employees have said and written so much.

Retaliation prohibited under Title VII not limited to adverse employment actions

The Supreme Court famously ruled in Burlington Northern & Santa Fe Ry. Co v. White that the retaliation prohibited by Title VII is not limited to "adverse employment actions."

SCOTUSblog has this summary of the decision.

I've been studying on drafting a complaint in a hostile environment/retaliation case. I suspect that the Burlington Northern decision might help get that one past summary judgment. From time to time in the past, we've litigated, even on motions to dismiss, whether there was an "adverse employment action" from the defense side in cases where the plaintiff is still employed by the defendant and has not lost any money. The value of those old briefs went down a bit on June 22.

How does the health insurer for federal employees get its money back

A while back, we had a case where a fellow who worked at the federal prison in Lee County was injured in an accident, and we filed an uninsured motorist claim in state court in Tennessee. One issue we had to unravel was the extent to which the fellow's health insurer had the right to get back what it had paid out for his injuries.

From what little I had gained on this issue, I would have bet money that the Supreme Court's decision in Empire Healthchoice Assurance, Inc. v. McVeigh would have come out the other way. In the Empire case, the Court in a 5-4 decision concluded that the Blue Cross outfit charged with administering some of the federal employee health benefits could not sue in federal court to recover from the proceeds of a wrongful death case what it paid out in medical benefits for the decedent. But for federal law, the carrier would not even have such a claim, in some states. See, e.g., Va. Code § 38.2-3405. I suppose that in such a case in Virginia, as in the Kircher case noted below, the Supreme Court is counting on the state court judges to apply federal law.

On appealing remand orders

We removed a case the other day. Sometimes it seems like we remove a case every month. A few times over the years the other side has fought back, seeking a remand to state court. Once, years ago, we appealed a remand order to the Fourth Circuit, and it was reversed, notwithstanding the prohibition against appeals of remand orders expressed in 28 U.S.C. § 1447. That case involved the issue of whether the plaintiff's state law tort claim against a federal employee fell under the Federal Tort Claims Act. In arguing for appellate jurisdiction over the District Court's order, we relied on the Supreme Court's decisions in the Thermtron and Waco cases.

Recently, those cases were lightly addressed by the Supreme Court in Kircher v. Putnam Funds Trust, a securities law case, decided June 15. Justice Souter, in his opinion for the Court, dismissed the Waco arguments in a footnote. The idea behind Waco was that when the trial court ruled on another issue necessarily in conjunction with the remand, but the remand would have the effect of preventing review of the ruling on the other issue, the appeals court could take an appeal. I thought that was more or less what happened in the Kircher case, but I guess it wasn't.

Some news items

I don't have much time for blogging these days, but here are some interesting news items:

The AP and Inside Higher Ed are studying a new Virginia law that requires public colleges and universities to run their list of student names by the State Police to see if any of them are convicted sex offenders.


Redstate reports on the prospects of action in the near future on the nominations of Jim Haynes and Terrence Boyle to the Fourth Circuit.

The Richmond paper reports on the guilty plea of a Virginia lawyer charged with selling marijuana.

The Williamsburg paper has the story of two gentlemen who discovered that tattoo parlors are not a permitted use anywhere in James City County, so they filed suit in state court.

MSNsportsNet reports that Marshall and West Virginia will play in the "Friends of Coal" Bowl, sponsored by the West Virginia Coal Association.

The travelogue ends in Rome

I didn't realize how touristy Florence would be, but I had no illusions about Rome. We stayed another three days in Rome after the end of the Tuscany and Umbria tour and we went to see the most touristy tourist places that we could find. We went to the Pantheon, the Trevi fountain, the Spanish steps, the Vatican museum, Sistine Chapel, St. Peter's, St. John the Lateran and other churches, the market at Campo di Fiori, the site of the Bocca della Verita, the Castel Sant Angelo, some catacombs near the Via Appia, and what was said to be the twenty-some steps Jesus walked up to see Pontius Pilate. We saw the Circus Maximus and even the rose garden across from it. The weather was ok on the first day, blazing hot the second day, and too cold on the third day. We took one afternoon off and lounged by the pool, which was the best feature of the Sheraton Roma. We took a number of heart-stopping cab rides. We saw peace demonstrators and even more police with machine guns, and stood with crowd waiting for some unknown celebrity to exit a government building. The best place we ate was a restaurant called Sabatini in the Piazza di Santa Maria in Trastevere.

Here are some pictures:

Fountain in the Piazza Navona



The Pantheon



The Trevi fountain



The Spanish Steps



Santa Maria Maggiore



Vatican Museum



Santa Maria di Trastevere



Campo di Fiori



Across the street from the Circus Maximus and the Forum ruins



Inside St. Peter's



Outside St. Peter's



Along the Tiber, looking back at St. Peter's and the Castel Sant Angelo



Last lunch, again in the Piazza Navona

Cortona - Perugia - Spoleto - Assisi

After the mean streets of Florence, our return to the countryside was something of a relief. As the tour progressed, the guide Genevieve did less talking and instead would play music or do something else as we moved from one town to another. She played a video about the Palio as we left Siena. One day she played music from Life is Beautiful, another day Puccini, the last day a medley of Italian folk songs. As we left Florence, however, she read (in English) a couple of stories from the original Pinocchio, which had a tranquilizing effect as we left the city and went back into the country to Cortona. Cortona is lately famous as the setting for Under the Tuscan Sun, the movie and the novel. Looking down into the valley, however, one can see the edge of lake which was the setting for the Battle of Lake Trasimene, fought between the Romans and the Carthaginians in 217 B.C. We arrived in Cortona on a Saturday, which was the market day, and so there was shopping. After a few hours in the town, we down into the valley to a cooking school, where the chef was the mother and the translator was her son. Eating followed the learning, and the food was excellent.

The day in Cortona got only two pages in my travel journal, which indicates primarily that there was nothing but fun. If you check the Wikipedia page for Cortona, you see this picture of an Andre Rieu concert. When we were there, the pace in the Piazza Della Republica was sedate and agreeable. A vendor was selling sandwiches of roast pig, called porchetta. In the food shops, the clerks gave away lots of samples, of olive oil and cheese and wine, and made many sales. Dana bought some black truffle oil. I ate dishes with black truffle at every opportunity while we were in Perugia. The only obvious tourists were the people in our group. There were no cars moving the whole time I was there.

We stayed the next three nights in Perugia, in a room with a little balcony. The hotel in Perugia was the most enjoyable of the places where we stayed, as it had a terrace on the third floor, and we were invited into the kitchen where the chef made chocolate desserts for us. The day after Cortona, we went to Spoleto and Assisi. On the way back from Assisi, we saw an airshow by a group of fighter pilots from the Italian Air Force, the Frecce Tricolori. People were stopped by the road, standing on their cars, standing out in fields, and standing on their houses to see the jets. One fellow was sitting on top of his chimney. The jets flew back and forth over the bus as we inched through the traffic back to Perugia. You can see slides of the May 28 airshow over Perugia here. Later on our last day in Rome on June 2, which was the national holiday celebrating the anniversary of the Republic, we saw the same group pass overhead as we were eating lunch in the Piazza Navona.

The day after Cortona, we went to Spoleto and Assisi. We entered Spoleto by way of the famous medieval bridge, the Ponte delle Tori, and worked our way down past the cathedral and we were picked up below the town a few hours later. Spoleto has got much more going on than the small towns we visited, but it was Sunday when we were there and so I couldn't guess how much busier it is when everyone is working. The shops were open, nevertheless, and there were many good places to eat. The best pizza we had on the trip, or that which best hit the spot, was in Spoleto. The pizza we had in Italy should have been called something else, as it was quite unlike the pizza I eat in the United States, all of it had a thin and crispy crust and the toppings were more simple and less of them. It was tasty but never dripping with cheese and sauce. And, "pepperoni" does not mean "pepperoni" in Italian. We sometimes had prosciutto on the pizzas but that was the only meat we ordered. Most often we had tomato, cheese, and mushroom pizzas, as simple as it sounds.

We figured out the menus as we went along. When we got back, the girl across the street asked if we had an Italian phrase book. I laughed and said all the Italian we used would fit on a single page. Always and everywhere I said "grazie" to the waiters (who replied "prego"), "buon giorno" and "bona sera" when I saw members of our group out and about, and "andiamo" we were running late. The whole time, my father-in-law believed that he had mastered the phrase, "il conto, por favor." (Perhaps the waiters thought he was half-Spanish.) The gelato places often had labels in English, but we tried interesting looking flavors based as much on what they looked like as what they were. At some restaurants we ordered pasta or what not based more on the sauce than the noodle - we learned a few ingredients and would order something flavored with what we liked, but there was always some guesswork. The only television I watched for more than a minute in Italian was one of the Naked Gun movies, with Frank Drebbin speaking Italian (and it was the one in which he impersonates Enrico Palazzo). And so it was that I had to ponder the significance of a cafe in Spoleto with the letters "UVA" on the glass - either the place had some connection with the Italian word for "grape" or it was some kind of Wahoo alumni extension office previously unknown to me.

In Spoleto, we snuck a peak at the Roman ampitheatre. Umbria being closer to Rome, were told that it was more greatly influenced by Imperial Rome. In each place we went, the guides tried to say something of the history, including the influence of the Etruscans, the Roman Empire, and in Umbria, the tribe of the Umbri. I was informed, perhaps erroneously, that outdoor performances related to the famous Spoleto festival are held in the ampitheatre and also in the piazza in front of the cathedral. It is hard to imagine this scene. When we went to the cathedral, no one was there. It seemed odd to be touring a church, any church, but we went to many before we were done. The various guides at different points repeated the fact that church attendance is on the wane in Italy. As we were leaving the cathedral, we met a few townspeople on their way in to the 11:00 mass.

This picture shows what the piazza looked like as we saw it on Sunday morning. There were no crowds in Spoleto. The local guide explained the complicated history of the cathedral and the town. At several points, the local guides in Spoleto and elsewhere were somewhat anti-clerical in their commentary. We were told of the pasta called "strangolapreti," which means something like "priest choker," and the explanation was that the noodles were so thick that only the rich priests could afford them, and the poor people hoped they choked on them. We were told more than once that the Pane Toscano has no salt as a protest against a salt tax imposed by the Church. We were told that the Church retaliated against the towns for their rebellion. The Church was blamed, for example, for the removal of the medieval towers from the towns that tried to break with the Church.

From Spoleto, we went on to Assisi, where we toured the lower church, the upper church, the upper town, and the lower town. Here you can see the lower entrance to the left and the upper entrance to the right. The guide was not allowed to go inside the church, perhaps the Franciscans had heard what he was telling the tourists in Spoleto and Perugia. The church was interesting but dark. In part, the art told the story of the life of St. Francis. The Franciscans were strict on keeping silence in the lower church. The noise was policed by an amplified voice demanding "Silencio!" every few minutes. The story of St. Francis is compelling, the churches were interesting, and the lower town was very nice, so I enjoyed Assisi, even though it was unseasonably hot. Inevitably, many of the small shops we saw in these hilltop towns have their own websites, including this one from Assisi.

Here you can see a little bit of what the lower part of the town was like, with shops wedged into the buildings but also the view of the valley below. After walking through Spoleto and Assisi, we were tired when we got back to Perugia, and so we ate at a place called La Taverna, which was another good place, even though walking down there did not look promising from up on the main drag. Perugia is by no means a small town but it is not really a tourist town, either, and so we enjoyed it, and it had views in every direction. Our last day of the organized tour required no bus trip as we simply walked out of the hotel and toured a little bit of Perugia. Almost every place we went, we were told told that the town has a symbol or sometimes more than one. In Siena, they claim a connection with the wolf. In Perugia, it was the griffin.

Here is a view from an outdoor place where we went to sit and cool off after the walking in Spoleto and Assisi. We did a lot of walking also in Perugia, during the three days we were there. The first night the main street was filled with thousands of teenagers. It was Saturday night. We were told that the thing to do in Perugia (and elsewhere) is to take a passeggiata. We generally didn't. We were overwalked and overfed. What walking we did at night was mainly walking back from dinner. The restaurants mainly do not open for dinner until around 7:30, which seemed plenty late. We were told that the midday meal is the main meal for Italians, but no one seems to have shared that information with the people who were selling the food to the Americans at night.

The historic center of Perugia is sort of hilltop pedestrian mall, where the main items of interest are the town hall, the fountain, and the cathedral. This picture was taken from the steps of the church looking across to the town hall, where you can see griffins above the door. The other most famous fact about Perugia is that it is where Perugina chocolate, or some of it, is made. Perugina is now owned by Nestle, but we were told that all of the Baci are made in Perugia. Perugia is held out as the chocolate capital much in the same way that Hershey, PA, claims to be a chocolate capital. We were told that the original name for the Baci was "The Knuckle" but some sharp marketer concluded that a better name would be "The Kiss." (I bought a small sack of the little ones for the people at the office, the cheapskate that I am.)

On the last day, we wandered off the top of the hill into some of the alleys and backstreets. I'm not exactly sure where we went, but we took many pictures before choosing this promising "street" as our route back to the places we knew. We shuffled back to the hotel for the farewell dinner with the tour group. The next day we were back in Rome.

Siena - Florence

We went to Siena, and it rained, which made the morning kind of downer, after the excellence of the previous day. The cathedral in Siena is quite a spectacle, but since the outside was mainly covered with scaffolding, the best pictures were taken inside. In particular, there was one room which we were told had been closed off for hundreds of years, and so the walls and the ceilings looked as though they were newly painted. And, it was true. We saw lots of fancy walls and ceilings, but none fancier than that library or whatever it was in the cathedral there in Siena.

Also, in Siena, we were told about the Palio, which is sort of like if the Hatfields and the McCoys had a horse race in the middle of town every year, only there are a bunch of different clans, called the contrade. When we were there, since it was rainy, the Piazza di Campo where the big horse race is held was mostly empty, except for pedestrians passing across, and it was difficult to imagine it hosting 50,000 Siennese for a horse race.

Here is a McDonalds in Siena. I had to go inside and see what was the price of an Big Mac extra value meal, and it appeared that the price was about six Euros, but I'm not sure whether that included the drink. Cokes were expensive, the .75 liter bottles cost between 2 and 3.50 Euros. We also drank a lot of bottled water, bottled water at every meal, usually frizzante (with bubbles). I don't know what it cost. A big gelato with three flavors cost 3.50 Euros, most places. The best gelato was probably in Florence, which is where we went next after Siena.

Florence was full of tourists, and full of interesting things to see. The first thing we did was go up to this overlook place, and everyone took too many pictures. You can see behind me on the left the Ponte Vecchio crossing the Arno River, and on the other side the dome of the Duomo. Florence is small enough to walk everywhere and it is hard to get lost because you can see the Duomo from almost everywhere. We didn't get very far from the middle of town, we went to one restaurant across the Arno overlooking the river, we went to the Uffizi which was just around the corner from our hotel, we went to the Academy to see the David (although there were Davids everywhere, it seemed), we went to market at San Lorenzo, we looked in the street markets everywhere, and twice we ate at this place called Leo's, a great place.

One day at breakfast in Florence, I said, "Look, we've got salt and pepper." They don't give away salt and pepper in restaurants in Italy as in the U.S. Regarding salt, we were told more than once that various towns had a tradition of unsalted bread, as sort of a tax protest going back to medieval times, when the Church imposed a tax on salt. The hotel where we stayed was sort of an odd place. The elevator had a button marked 3/4, which was where you got off for both the third and fourth floors. Most of the hotels had some kind of electricity conversation measure in place. In the more modern places, you had to insert your card key into a slot in the room to get the lights to come. In the Hotel Bernini, the lights came on and went off as you walked down the hall.

The hotel was a block from the Piazza Signorina. Florence was sort of like Gatlinburg, with all the shopping, but with fancy buildings and lots of really big nude sculptures in the squares. One exception was the statue of Cosimo of the Medicis, who was dressed and sitting on a horse. Also in the Piazza Signorina there was a wreath on the spot where Savonarola himself was burned. The Ponte Vecchio was full of jewelry shops. In this picture I am standing in the middle of the bridge, looking back toward the Duomo, and there was shopping and people everywhere. The only thing I bought of interest in Florence was four neckties for the total sum of 18 Euros.

One thing we did to get away from it all just a bit was to go to the Boboli Gardens, across the Arno and behind the Pitti Palace. I think the admission to the Boboli Gardens was about 8 Euros. The gardens were interesting and presented more great views of the city. The only bad part about it was that a lot of the walking we did was uphill. You can see the in-laws are still a ways down the hill in this picture, looking back down at the back of the palace.

At the top was a rooftop garden full of roses and peonies. In the middle of the rooftop garden was the fountain with monkeys. I have no idea what that's about, but I took pictures of it all from every angle, probably 50 pictures. The only other bad thing about the Boboli Gardens is that we never found a decent map, so we only saw whatever we stumbled onto, which wasn't all bad. There were many unexpected sights besides the fountain of monkeys. We didn't figure out until we were leaving that we had only seen maybe a third of the place.

But on the way out, we did see the Grotto, which I can't begin to explain, and enjoyed the views back across the river of the city.


We didn't go in any of the churches in Florence, but the churches and the towers and the piazzas pretty defined the map of the place, as in "You don't want to go back there, it's all the way on the other side of the Duomo," or "Look, we're almost there, that's Santa Croce up ahead." So, of course I took pictures of them. I could never got more than a bit of the Duomo in the pictures taken from the streets.



Finally, here is a sunset picture of Santa Croce.

Why you don't ever want to take the judge's parking space

The Memphis paper reports here that somebody vandalized the cars of judges parked at the Peabody Hotel for the summer meeting of the Tennessee Bar Association.

On historical markers in Virginia

This great article in the Hook on those historical markers on Virginia's highways has a link to this site which details 1,209 markers in Virginia - but not Southwest Virginia, apparently.

Remarks of President Bush on signing the MINER Act of 2006

Here is the text of what President Bush said on the occasion of his signing of the newly revised federal mine safety law, and here is the Act itself.

Gospel according to Ernie

Ernie Svenson offers a how-to on Organizing Cases Electronically.

He and Ray Ward seem to me pretty sane for having survived Katrina, etc., not so many months ago. Those New Orleans lawyers have tested all their systems in ways the rest of us never will.

Lawrence-based challenge to Virginia's sodomy laws overruled

In McDonald v. Com., the Virginia Court of Appeals in an opinion by Judge Haley, joined by Judge Clements and Senior Judge Overton, reject once again a constitutional challenge to Virginia's criminal statute outlawing sodomy, where the defendant relied on the Supreme Court's decision in Lawrence v. Texas, but the crime involved someone under the age of 18, which made Lawrence distinguishable.

This opinion brings to mind two points: (1) I read a Slate article the other day by Dahlia Lithwick about how Justice Kennedy drives conservatives insane, speaking of Lawrence; and (2) a while back the point was made to me that the Virginia Court of Appeals in its cases observes a wide variety of human behavior, which also seems to be true.

Howard Bashman has a link here.

Who wouldn't want to come to the VBA summer meeting?

Read all about the summer meeting of the Virginia Bar Association here.

It's got Allen v. Webb.

It's got Governor Kaine.

It's got John Marshall and Thomas Jefferson.

It's got CLE with updates on Virginia courts in the (not-so distant) past and the (not-so distant) future, what do after litigation starts and before litigation begins, matters civil and criminal, laws foreign (OK, international) and domestic (as in domestic relations).

It's at the Homestead.

I'll be there, why not you?

This week's CCCC

We were picked as the winner of this week's Commonwealth Conservative Caption Contest.

This week's nonsense pertained to Will V., our last winner was about Hillary Clinton, so at least they have that much in common.

Texas hearsay

I loved this post, which said in part:

Steve was attempting to get into evidence a document when I objected because of hearsay. Steve pronounced boldly (and probably rightly) that this was not hearsay because it was not offered for the truth of the matter asserted. Immediately after saying this the J.P. scolded Steve and stated:

"listen here mister...in my court you may only introduce matters which are the truth and you better not be trying to introduce matters which are not for the truth of the matter asserted."

On lawyers looking to get paid

I'm told that justice was done in last week's decision by the Virginia Supreme Court in the case of Randall A. Eads v. David Clark, Guardian of the Person and Estate of Roy Dallas Johnson, Incompetent, et al, on appeal from the Circuit Court of Russell County.

It could be true. The facts brought to mind the case from Bleak House, in which Dickens wrote:

"Equity sends questions to law, law sends questions back to equity; law finds it can't do this, equity finds it can't do that; neither can so much as say it can't do anything, without this solicitor instructing and this counsel appearing for A, and that solicitor instructing and that counsel appearing for B; and so on through the whole alphabet, like the history of the apple pie. And thus, through years and years, and lives and lives, everything goes on, constantly beginning over and over again, and nothing ever ends. And we can't get out of the suit on any terms, for we are made parties to it, and MUST BE parties to it, whether we like it or not."

It's official - throw your hands in the air and wave them around

From the website of the Appalachian School of Law:

"We are very pleased to announce that Appalachian School of Law was granted full accreditation by the American Bar Association on June 12, 2006."

Rome - Pienza - San Gimignano

Reviewing the photographs from our recent trip to Italy may take twice as long as the trip itself. I took hundreds of photographs, which gave me something to do, but there are few or no photographs of many of the best parts of the trip.

We drove from Abingdon to Richmond, got up early and flew to Newark and then on to Rome. Supposedly, one should sleep on the plane crossing the Atlantic. We didn't. I watched 5 and three-quarters movies during the two transatlantic flights. (I still don't know what happened at the end of Narnia.)

As we were waiting for the first of many bus rides at the airport, another bus full of what appeared to be Italia soccer fans came by, a bunch of beer drinkers and cigarette smokers jumped out, and they began singing. One song was the Ya-Ya-Ya song, of which the only discernible lyrics were "YA-YA-YA."

Plan B for travelers is to sleep once you get to Europe, but we didn't do that, either. In fact, we had no rooms, because it was 9:00 in the morning when we reached the hotel, so we took off for downtown Rome. And, we did go see the Colosseum.

There were many wild characters outside the Colosseum, mime, musicians, and one fellow who appeared to be the Gladiator from Chad's Caption Contest, and others like him, whose job it was to have their pictures taken with tourists. We saw another Gladiator between the Arch of Constantine and the Forum whose job was to have his picture taken while groping the teenaged, female tourists.

We slogged our way in the heat through the Forum to our first Roman street food. I would say that the street food in Rome is mostly lousy except for the gelato which was good everywhere. I tried about 15 different flavors of gelato over the course of 12 days, the weirdest being rose and kiwi and melon.

The next day we joined the Tuscany and Umbria tour, and the first stop was a rest area along the Autostrada. The weirdest thing there was a place where you could stash your dog for a few hours, sort of self-serve rent-a-kennel. The first real food we ate was at the Falco Ristorante in the first of many hilltop towns, called Pienza. That first lunch in Pienza set the tone for the rest of the trip - good plain food and lots of it. They kept bringing us food and we ate it. That was true in Pienza, in Monteriggioni, in Florence, in Cortona, and later in Rome.

After lunch, we had the run of the town, which is also what we did throughout the tour, scramble over these small towns with narrow streets, small piazzas, crumbling buildings, and great views of the surrounding countryside. We were told as we went into Pienza that Tuscany is sheep country and we would be able to smell the peccorino cheese in the streets, which was true in Pienza and elsewhere. I can't say that we ate a lot of Peccorino cheese or that I am sure when we were eating it, because it comes in many forms, so in some places the restaurants served grated Peccorino for sprinkling on some of the food. I ate pasta almost every lunch and dinner for 12 days, which could explain the width and breadth of my appearance in some of these photographs.

I was traveling with my wife and her parents and her sister and her sister's husband. Some of our fellow travellers were impressed that we all got along with each other, which I would not have thought to be a remarkable fact. One necessity for keeping the peace was having patience with the shoppers. Some of the shops like this one at the end of the lower lane in Pienza looked more like a hole-in-the-wall than a place to buy things.

Dana's dad is a retired dentist. In this photo from Pienza, it appears that he has brought with him an over-sized instrument from his old office.

We went on from Pienza to the hotel Il Piccolo Castello. This was a very strange building, the likes of which I had not seen before. It was of fairly recent construction, modeled after the architecture of the Middle Ages. And so, the rooms had ceilings with wood beams and very little light and not much in the way of places to stash your stuff.

At the hotel we began to learn more of our fellow travellers. Remarkably, one fellow was named Frank Sinatra and another George Harrison, fine fellows both.

The next day was probably the best day, even though the weather seemed questionable as we left for San Gimignano. The remarkable thing about San Gimignano are the towers, of which there are still something like 18 or 20 and there used to be many more.

Tourists can walk up in at least one of them, and by my count, the number of steps was approximately 190. There might have been more, but I ran out of breath and quit counting. The brother-in-law Dave Brooks and I went up to the top and I took too many pictures of the town and the view in every direction. On the way down, after we had gone down about 15 steps, Dave said to the people we met coming up the stairs, "Don't worry, you're halfway there."

From above, you can see how narrow is the main drag through the town, and how small is the old town. Indeed, Dana and I walked to the end of the main street and began wandering the alleys and at one point wandered through the fence out of the town, which seemed like a bad idea.

In San Gimignano, we ate and spent money and eventually went back to the hotel, where the next big activity was a bike ride through a stretch of the surrounding countryside. I haven't been on bike for some years, certainly not since we moved from downtown Abingdon, but I went and it was tiring but fun.

The biking was led by a gang of Italian guys, who were amused to tease Genevieve, our tour guide. In this last photo, you can see Genevieve and one of the Italian guys on bikes in the foreground. In the distance atop the hill is where we ate that night, in a restaurant also called Il Piccolo Castello, within Monteriggioni. It was a great meal.

The Kentucky case cited by Attorney General McDonnell

Today in Richmond, Attorney General McDonnell is explaining his views on what happens if there is no budget as of July 1, when the old budget runs out.

Yesterday, he was in Abingdon, and in the Bristol paper's article, McDonnell mentioned that the Kentucky Supreme Court had ruled that Kentucky's governor could not appropriate funds on his own initiative after the Kentucky legislature adjourned in 2004 without a budget.

Here is the case, Fletcher v. Com. The Kentucky constitution contains an interesting prohibition against one branch of government intruding on the prerogatives of another: "No person or collection of persons being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted." This provision was apparently written by Thomas Jefferson:

"When Mr. Jefferson returned from France, the federal constitution had been adopted; and, having been appointed secretary of state, he obtained permission to go to Monticello for some months. John Breckinridge and George Nicholas paid him a visit there, and informed him that Kentucky was about to frame a constitution for herself, and that Virginia was about to permit Kentucky to become a separate and independent state. He told them that there was danger in the federal constitution, because the clause defining the powers of the departments of government was not sufficiently guarded, and that the first thing to be provided,for by the Kentucky constitution should be to confine the judiciary to its powers, and the legislative and executive to theirs. Mr. Jefferson drew the form of the provision, and gave it to Nicholas and Breckinridge; and it was taken by Nicholas to the convention which met at Danville, and there presented, - Breckinridge not being present at the convention. There was much discussion and dissent when the article was offered, but, when its author was made known, the respect of Kentucky for the great name of Jefferson carried it through, and it was at once adopted."

The Virginia Constitution contains a similar provision, Article III, section 1. The Virginia Constitution also contains language which says: "No money shall be paid out of the State treasury except in pursuance of appropriations made by law; and no such appropriation shall be made which is payable more than two years and six months after the end of the session of the General Assembly at which the law is enacted authorizing the same" Article X, section 7.

The Kentucky Supreme Court went on to quote James Madison, as having declared on the floor of the House of Representatives: "If there is a principle in our Constitution, indeed in any free Constitution more sacred than another, it is that which separates the legislative, executive and judicial powers."

The Court also noted the opinion of former U.S. Attorney General Benjamin Civiletti:

"A similar crisis occurred in the federal government in 1980 when it became apparent that Congress would not pass a federal budget or a budget continuation plan before October 1, the beginning of the next fiscal year. Former United States Attorney General Benjamin R. Civiletti opined, when interpreting 31 U .S.C. § 1341, the "Anti-Deficiency Act," which precludes any officer or employee of the government from making or authorizing the expenditure of unappropriated funds, that:

[S]tatutory authority to incur obligations in advance of appropriations . . . may not ordinarily be inferred, in the absence of appropriations, from the kind of broad, categorical authority, standing alone, that often appears, for example, in the organic statutes of governmental agencies. 5 Op. Off. Legal Counsel 1, 2 (1980) (quoted in 43 Op. Atty. Gen. 293, 297 (1981)).

We agree. Only those statutes specifically mandating that payments or contributions be made can be interpreted as self-executing appropriations. A mandated appropriation cannot be inferred from the mere existence of an unfunded statute."

The Kentucky Court concluded: "absent a statutory, constitutional, or valid federal mandate, Section 230 precludes the withdrawal of funds from the state treasury except pursuant to a specific appropriation by the General Assembly," and then undertook an analysis of the Governor's spending plan, to see whether there was some valid mandate that would allow the spending without legislation.

The Court rejected the Governor's argument, "that when the General Assembly fails to exercise its appropriations power to fund the operations of the executive department, he (the Governor) possesses the inherent power to order the appropriations necessary to prevent the imminent collapse of governmental services," concluding that "[i]f the legislative department fails to appropriate funds deemed sufficient to operate the executive department at a desired level of services, the executive department must serve the citizenry as best it can with what it is given."

UPDATE: The formal Attorney General opinion is here.

Coal companies' cert. petition on West Virginia coal severance taxes denied

The WV Record reports here that the U.S. Supreme Court refused to take the case of the coal companies who brought a constitutional challenge to West Virginia's coal severance taxes. A similar challenge has been contemplated in Virginia.

Plethysmograph evidence meets the less rigid standard for admissibility in sentencing hearings

In Billips v. Com., the Virginia Court of Appeals, in an opinion by Judge Clements, joined by Judge Kelsey, with Judge Benton dissenting in part, affirmed the sentence imposed by a sex offender in a Tazewell County case. Judge Benton dissented on the issue of whether the Commonwealth failed to meet its burden of proving the reliability of the expert testimony it presented to show the likelihood that the defendant would want to commit other sex crimes. Judge Clements wrote that this evidence was admissible, based in part on the different standard for admissibility when the judge is hearing evidence on sentencing.

The opinion contains some interesting footnotes.

From Judge Clements:

"In Virginia, our Supreme Court specifically refused to adopt the Frye standard in O’Dell v. Commonwealth, 234 Va. 672, 696, 364 S.E.2d 491, 504 (1988), and acknowledged in John v. Im, 263 Va. 315, 322, 559 S.E.2d 694, 698 (2002), that it had not 'considered the question whether the Daubert analysis employed by the federal courts should be applied in our trial courts to determine the scientific reliability of expert testimony.' Thus, as the Supreme Court noted in John, the Spencer evidentiary standard still governs the admission of scientific evidence in Virginia. Id. at 322 n.3, 559 S.E.2d at 698 n.3."

From Judge Benton, who likened the disputed evidence to evidence from a polygraph:

"After decades of debate, the scientific community still has not agreed on the reliability of polygraphs, despite numerous studies on the question. See United States v. Scheffer, 523 U.S. 303, 309 (1998); see also 4 David L. Faigman, David H. Kaye, Michael J. Saks, & Joseph Sanders, Modern Scientific Evidence §§ 40:20 to 40:118, at 571-655 (2005) (discussing and analyzing the two sides of the continuing polygraph debate in the scientific community). While some studies concluded that polygraphs are highly accurate, others reported 50 and 51% accuracy rates. See Scheffer, 523 U.S. at 309 (citing S. Abrams, The Complete Polygraph Handbook 190-91 (1989); William G. Iacono & David T. Lykken, The Scientific Status of Research on Polygraph Techniques: The Case Against Polygraph Tests, in 1 Modern Scientific Evidence § 14-5.3 (1997)); see also 1 John W. Strong, McCormick on Evidence § 206, at 629 (5th ed. 1999) (summarizing the results of various studies conducted on polygraph reliability). One of the serious, lingering concerns about polygraphs is that an individual can “trick” the machine and receive a negative result despite lying. See Strong, supra (explaining the concern that “‘coaching’ and practicing would become more commonplace if the evidence were generally admissible”). “Although the degree of reliability of polygraph evidence may depend upon a variety of identifiable factors, there is simply no way to know in a particular case whether a polygraph examiner’s conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams.” Scheffer, 523 U.S. at 312."

Attorney General McDonnell in Abingdon on Wednesday

I've read that Attorney General McDonnell will be at Virginia Highlands Community College tomorrow afternoon, although the nature of the event is not clear to me.

Perhaps one topic he will address will be the state of the Commonwealth in the absence of a budget. The Washington Post reports here and the Richmond paper reports here that the Attorney General has opined that Governor Kaine has limited power to keep the government running in the absence of appropriations from the legislature, if I understand these articles correctly.

Also of potential interest to a college group is the AG's opinion addressed to President Casteen of U.Va. that the University lacks authority under state procurement laws to include a "living wage" requirement in its contracts with private firms.

Oral argument in only 15% of Fourth Circuit cases?

This ACS post includes excerpts from an article about whether the federal appeals courts are too busy, which notes among other things that oral argument is heard in a smaller fraction of the cases, including as little as 15% in the 4th and 11th Circuits.

That seems like a strange statistic - is it evidence of a decline across all categories of cases, or merely a symptom of the explosion of criminal and prisoner litigation?

It seems to me that in just about every interesting civil case with lawyers on both sides, other than perhaps employment discrimination cases, there is oral argument, even in the Fourth Circuit. Perhaps I am mistaken.