On the Minors of Virginia

Here is the legislation that made my alleged ancestor Doodes Minor a citizen of Virginia, in 1673, as it says:

WHEREAS at a grand assembly holden at James Cittie the twentieth day of September, in the twenty-third year of the raigne of our Soveraigne Lord the King that now is, and in the yeare of our Lord 1671, it was enacted and ordained that any stranger desireing to make this country the place of their constant residence, might upon their petition to the grand assembly, and takeing the oaths of allegiance and supremacy be admitted to a naturalization. Whereupon John Peterson, Rowland Anderson, Michaell Vanlandigam, Minor Doodes, Doodes Minor, and Herman Kelderman, aliens, makeing humble suite as aforesaid, Bee it therefore enacted by the governour, councill and burgesses of this grand assembly and by the authority thereof, that the said John Peterson, Rowland Anderson, Michaell Vanlandigam, Minor Doodes, Doodes Minor, and Herman Kelderman, and every of them be and are by vertue hereof, and the afore recited lawe, whereon this is grounded capable of free traffique and tradeing of takeing up and purchaseing,

True Minor Wisdom

Ray says one space is enough.

I have said the same, here and here and here.

I look for such things, as noted here by Professor Bainbridge.

More Mississippi reaction to ABA's unqualified rating of Michael Wallace

This article from the Sun Herald in Mississippi lays out the local reaction to the ABA's unanimous rating of Fifth Circuit nominee Mike Wallace as "unqualified."

Wallace's friends are guessing that the reasons for the rating are these: a dispute over the Legal Services Corp., which Wallace chaired in the late 1980s; Wallace served as counsel to then-Senate Majority Leader Trent Lott during the impeachment of President Clinton; his fierce opposition to the Voting Rights Act.

The article concludes:

"Others who grew up with Wallace see a different person. Walker Jones, the head of litigation at Baker, Donaldson in Jackson, hired Wallace in the 1980s and worked with him for 18 years at the Jackson firm of Phelps, Dunbar, where Wallace continues to practice.

"I just couldn't believe the criticisms," said Jones, who was not contacted by the ABA. "They had an axe to grind. Mike is a very intelligent guy who has respect for precedent. I just don't understand this vague category of judicial temperament."

"I know a lot of the judges on the 5th Circuit, and he's better than 95 percent of them, in my opinion."

Rusty Gill, a Biloxi lawyer, has known Wallace since they played peewee baseball when they were six years old. The two went to Biloxi High, where they both played football. "Everybody knew Mike was going to go far," said Gill. Told of the unanimous ABA finding against him, Gill said, "It's unanimously wrong."

"He'd be a great judge.""

First sign of annual shooting woes

It says here:

"Four-year-old Dasaun Taylor sank a greater percentage of baskets than UVa senior guard J.R. Reynolds, who was on hand Monday for Community Day at the child development center in Charlottesville."

What he said

Like Norm Leahy, I'll vote no, the main reason being that the amendment is pointless legally and gay-baiting for votes strikes me as unacceptable.

Having said that, I think the amendment will pass by a wide margin, and that people who instigated the same-sex marriage through litigation campaign will see their efforts result in widespread "anti-equality" legislation for decades to come, and deservedly so in the sense that extreme action always leads to extreme counter-action and the courts should not be used as a substitute for the legislature in effecting social change on matters so controversial and incompatible with the normal mechanisms of judicial review.

Also, I think most of the claims of both the "yes" and "no" advocates in Virginia were completely bogus, and that many of the people engaged in such advocacy knew full well that were they were saying was bogus but said it anyway to try to get votes for their side.

On the New Jersey decision and the slippery slope

This Volokh post discusses the phenomenon in the New Jersey same-sex marriage case that a list of statutes were possibly misused unjustly.

"Consider how the decision relies on the enactment of past gay rights laws. The backers of such laws often argue that these laws do not create a slippery slope towards same-sex marriage or civil unions. Thus, for instance, an editorial in the Boston Globe, Oct. 15, 1989, at A30, said "[A proposed antidiscrimination law barring sexual orientation discrimination in credit, employment, insurance, public accommodation and housing] does not legalize 'gay marriage' or confer any right on homosexual, lesbian or unmarried heterosexual couples to 'domestic benefits.' Nor does passage of the bill put Massachusetts on a 'slippery slope' toward such rights." See also Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise, Apr. 30, 1994, at B1, quoting Riverside Human Relations Commission member Kay Smith as saying that "[t]hose that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the 'slippery slope' [toward gay marriages] . . . . But, this legislation needs to be looked at on the face value of what it is, and it really does very little." And see the Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A, rejecting as "arrant nonsense" the claim that a hate crime law "would lead to acceptance of gay marriages."

. . .

Now maybe this entire discussion, though detailed and prominently placed, is all makeweight; maybe the court would have reached the same result even if such laws hadn't been enacted, and would have found that something else besides those laws "provide[s] committed same-sex couples with a strong interest in equality of treatment relative to comparable heterosexual couples." But if we take the New Jersey Supreme Court at its word, it sounds like in New Jersey antidiscrimination laws, domestic partnership laws, and hate crime laws did indeed help bring about same-sex civil unions, just as they did in Vermont (PDF pages 59-61) and, as to same-sex marriage, in Massachusetts.

One can condemn this slippery-slope effect, or praise it. (I support same-sex marriages and civil unions as a policy matter (see PDF page 37), but I don't think that state courts should mandate them as a constitutional matter.) But I think that one can't dismiss the possibility that slippery slope effects, good or bad, are indeed present here, and can be present in similar contexts. And this is so even when, as a purely logical matter, the initial steps (employment discrimination bans, domestic partnership laws, hate crimes laws, and the like) are eminently distinguishable from the final step (same-sex civil unions)."

To apply this discussion to Virginia, I expect that from this day forward, any statute or other rule that implies protection against discrimination on the basis of sexual orientation will be opposed, citing the New Jersey case, on the basis that some future court will cite the new rule in support of something else quite different.

The top ten non-policy reasons why I will vote for Senator Allen

Last year, I posted my ten non-policy reasons why I would vote for Jerry Kilgore.

Gerald Gray wrote back to me and said those reasons are all really bad.

Nevertheless, I am offering again this year the top ten non-policy reasons why I will vote for Senator Allen.

1. Allen was a Judge Williams clerk. And, he appointed Justice Kinser.
2. Allen has been giving pleasure to Hokie fans since his college days.
3. When he was a teenager, his family was tight with Nixon.
4. Susan Allen outrode the Tennessee governor’s wife on the Virginia Creeper Trail.
5. Like Elvis, Allen is of The Chosen Ones. (Isaiah 41:8-41:9.)
6. Allen was going to put Disney in Northern (and not Southwestern) Virginia.
7. Copenhagen, it makes me feel so good. (And, Fresh Cope it satisfies since 1822.)
8. His influences include “the cow boss that I buckarooed for on a ranch near Winnemucca, Nevada.”
9. He once told CNN the Southwest Virginia story “about a horse thief. And the jury goes through the whole case and they say not guilty, but you have to return the horse.” (I love that story.)
10. Gerald Gray isn’t running.

Another nephew football picture

I guess I'm among the very few who see a running back wearing No. 21 and think of Jim Kiick of the Miami Dolphins' Super Bowl teams.

NJ S.Ct. finds same-sex marriage ban violates equal protection guarantee of state constitution

In Lewis v. Harris, released this afternoon, the New Jersey Supreme Court held that the state's statutory ban on same-sex marriage did not violate the petitioners' fundamental rights, but that it was in violation of the guarantee of Equal Protection under the New Jersey constitution.

The opinion is written in such a way that it could never be followed in Virginia. The Court cites all the protections against discrimination based on sexual orientation written into the law of New Jersey. None of this background exists in Virginia law. I doubt that the analysis in this case would make it any more likely that some day the Virginia Supreme Court will find that the statutory ban on same-sex marriage violates the Virginia Constitution.

In the opinion, the Court noted: "The State rests its case on age-old traditions, beliefs, and laws, which have defined the essential nature of marriage to be the union of a man and a woman. The long-held historical view of marriage, according to the State, provides a sufficient basis to uphold the constitutionality of the marriage statutes. Any change to the bedrock principle that limits marriage to persons of the opposite sex, the State argues, must come from the democratic process."

On the first question, the Court agreed: "Despite the rich diversity of this State, the tolerance and goodness of its people, and the many recent advances made by gays and lesbians toward achieving social acceptance and equality under the law, we cannot find that a right to same-sex marriage is so deeply rooted in the traditions, history, and conscience of the people of this State that it ranks as a fundamental right. When looking for the source of our rights under the New Jersey Constitution, we need not look beyond our borders. Nevertheless, we do take note that no jurisdiction, not even Massachusetts, has declared that there is a fundamental right to same-sex marriage under the federal or its own constitution."

On the Equal Protection question, the Court observed initially that the rational basis test of federal constitutional analysis did not apply to equal protection under the New Jersey constitution, and proceeded to frame the issue in terms that make history and tradition irrelevant. "At this point, we do not consider whether committed same-sex couples should be allowed to marry, but only whether those couples are entitled to the same rights and benefits afforded to married heterosexual couples. Cast in that light, the issue is not about the transformation of the traditional definition of marriage, but about the unequal dispensation of benefits and privileges to one of two similarly situated classes of people." Citing the many protections against discrimination based on sexual orientation, the Court concluded that there was no public interest, at least not in New Jersey, to support this different treatment.

The opinion distinguishes New Jersey from other states that "have expressed open hostility toward legally recognizing committed same-sex relationships," and includes Virginia in that list, along with Alaska, Georgia, Kansas, Kentucky, Louisiana, Michigan, Nebraska, North Dakota, Ohio, Oklahoma, Texas, and Utah.

Excellent Chief Justice story

It says here that a couple of fellows from West Virginia walked up to the U.S. Supreme Court building and got in to see Chief Justice Roberts, with the aid of an old photograph: "Sporting a World War II veteran's cap and carrying an old picture of Roberts' father taken at a family reunion in Florida with nine of his aunts and uncles, DiBacco finagled his way into Roberts' office Sept. 26."

The story goes on: "Though it may have been some attorneys' dream, McCune said he had no interest of turning the conversation into a legal discussion. Instead, the three talked about their roots in West Virginia."

I didn't know the Chief Justice had roots in West Virginia.

The obligatory group photo is here.

Why not to nominate Engelbert Humperdinck in Virginia

As Election Law notes here, the AP is reporting that "U.S. Senate candidate James H. 'Jim' Webb has lost his last name on electronic ballots in three Virginia cities where election computers can't cope with long names."

As for Engelbert, you can go here and find out if he is still willing to sing you to sleep after the lovin' with a song he just wrote yesterday.

Now you can Broogle the courts of the Fourth Circuit (or some of them)

Here you can see how Brian Peterson has created a customized Google search, that includes opinions from the Fourth Circuit and some courts in the states that make up the Fourth Circuit, including the Virginia appellate courts and the Western District of Virginia.

I just made up the term "Broogle" in his honor. Well done, Brian.

(OK, there are a few other Broogle references out there.)

How many times have you wanted to do something like this?

According to this article in the Richmond paper, a prosecutor in the City of Danville has filed suit against a juvenile and domestic relations district judge to get her to rule in a case, and got the circuit court to so rule.

District judge still going at 92

In the Middle District of Pennsylvania, they have a judge named Malcolm Muir, who is still hearing cases at age 92.

What he said

Steve Dillard: "No appellate court should ever require the lawyers who practice before it to double space footnotes and block quotes in a brief."

Steve might have agreed with me when I freaked out on a Richmond brief printer for changing the font size of a brief without telling me. (No one else did.)

Lessig on net neutrality

Here L. Lessig debunks someone else's debunking of his latest article on net neutrality.

When does statute of limitations run on defamatory website posting?

This Jurist post cites a decision by a federal judge in Texas to the effect that the one-year Texas state for defamation claims begins to run when the defamatory material is posted, regardless of how long it stays posted.

So, maybe we're in the clear for anyone we've defamed before October 21, 2005, as the Virginia statute is also one year.

Just in time for Halloween - Judge Kelsey's article should scare every Virginia lawyer

In the latest VSB magazine appears an article titled Procedural Defaults in Virginia Trial Courts, by Judge Kelsey of the Court of Appeals.

Some of the highlights:

You can lose your right to claim the trial court should not have sustained the defendant's demurrer to your first pleading. Judge Kelsey explains: "The Virginia Supreme Court, however, has held that 'when a circuit court sustains a demurrer to an amended motion for judgment which does not incorporate or refer to any of the allegations that were set forth in a prior motion for judgment, we will consider only the allegations contained in the amended pleading to which the demurrer was sustained.'"

Res judicata can apply to claims never stated in a pleading. Judge Kelsey explains: "Another variant of procedural default, res judicata, should also be considered. In 2003, a divided Virginia Supreme Court held the narrow 'same evidence test' exclusively governed claim preclusion principles under Virginia law. That holding has been superseded by the recent promulgation of Rule 1:6, which broadened res judicata to cover, with some exceptions, all unpled claims arising out of the same 'conduct, transaction, or occurrence.' Such unpled claims will be 'extinguished regardless of whether the claimant is prepared in the second action to present evidence or theories of the case not presented in the first action, or to seek remedies or forms of relief that were available but not demanded in the first action.'" Now, I had not understood Rule 1:6 to supersede anything, but rather to express the ancient Virginia proscription against splitting the cause of action.

A defendant is in default if he submits only a demurrer and the demurrer does not cover the whole complaint. Judge Kelsey explains: "If the defendant files a demurrer as to some counts in a complaint, but not others, the others will be in default absent a timely responsive pleading directly addressing them." This is an area of the law made even more confusing by the recent changes to the rules. What pleadings cover the whole case?

Judge Kelsey finds some pitfalls in the language of the form scheduling order. He notes: "Rule 1:18’s pretrial scheduling order ... warns that experts 'will not ordinarily be permitted to express any non-disclosed opinions at trial . . . .' Two lesser-known deadlines ... appear in Rule 1:18’s pretrial scheduling order. This order provides that any motion in limine 'which requires argument exceeding five minutes' must be noticed for a hearing and presented to the trial court for decision before the day of trial. The order also requires that all 'dispositive motions shall be presented to the court for hearing as far in advance of the trial date as practical.'" The scheduling order is rarely used in Southwest Virginia, and its provisions mostly ignored, in my experience.

Judge Kelsey reminds us of the perils of Rule 1:1, as he says: "[T]he contemporaneous objection rule can almost never be satisfied merely by indorsing a court order 'seen and objected to.' Only if 'the ruling made by the trial court was narrow enough to make obvious the basis of appellant’s objection' will the otherwise inadequate indorsement suffice to preserve the issue on appeal."

Judge Kelsey concludes:

"I have no doubt that some procedural default principles may need to be recalibrated, either more tightly or loosely, to better balance the equities of particular forms of waiver. But whether that is true or not, this much is certain: No procedural default principle has ever produced even the slightest injustice to litigants who know the principles well enough to stay out of trouble. The benign goal of procedural default law, therefore, is to render itself harmless by being so well known."

Another point of advice - read everything Judge Kelsey writes, and listen to whatever he says.

Interesting unpublished opinion affirming denial of preliminary injunction in West Virginia non-compete case

In McGough v. Nalco Co., the Fourth Circuit in a per curiam opinion for the panel of Judges Niemeyer, Michael and Motz affirmed the denial of a preliminary injunction against the former employee for violation of his non-compete agreement, where the trial court judge in balancing the hardships under the Blackwelder test found that they "approached equipoise," but the non-compete was probably unenforceable under West Virginia law.

The panel remanded the case, however, for consideration of the plaintiff's trade secret claims as the basis for injunctive relief.

This case and the Gastonia case were the only two cases decided by the Fourth Circuit this week after oral argument, the other 65 or so cases were decided on the briefs without argument.

Wish I'd been there

JAMES RIVER 26, MIDLOTHIAN 14

Richmond Times-Dispatch

Oct 21, 2006

Grant Collins tossed two touchdown passes, and Andrew Brooks (my nephew) blocked a punt (he says he blocked two punts) resulting in one score and caught a pass for another as James River stopped Midlothian in the Dominion District (battle for the Coal Bowl and Chesterfield bragging rights).

Collins (12 of 18, 169 yards) chalked up TD passes of 27 yards to Larente Hamlin and 6 yards to Brooks for the Rapids (1-3, 1-6 - OK, so it was their first win of the season). His quarterback counterpart, Eric Waagner (8 of 19, 109 yards) passed for one TD -- 27 yards to Kevin Solomon -- and ran for another.

Markese Stovall began the scoring with a 1-yard run for James River in the first quarter. Thomas Metcalf recovered Brooks' block in the end zone for a third-quarter touchdown.

James River 6 7 7 6 -- 26
Midlothian 0 7 7 0 -- 14

JR -- Stovall 1 run (kick failed)

M -- Solomon 27 pass from Waagner (Moore kick)

JR -- Hamlin 27 pass from Collins (Brecht kick)

M -- Waagner 1 run (Moore kick)

JR -- Metcalf block punt recovered in end zone (Brecht kick)

JR -- Brooks 6 pass from Collins (kick failed)