How should we select a Chief Justice?

This SCOTUSBlog post addresses the question of how should the Chief Justice of the United States Supreme Court be selected, and the commentary proposes that "once all nine vacancies on the Supreme Court are filled, the members of the Court should select the Chief Justice," for the reason that "the Justices are in the best position to know whether one of their colleagues is collegial and possesses the leadership and administrative skills to serve as an effective Chief Justice." The referenced article can be downloaded here.

Last week's Virginia Lawyers Weekly had a cover story on HB 2089, which would among other things change the way the Chief Justice is selected in Virginia, taking the selection power away the members of the Supreme Court, while at the same time taking a number of statutory responsibilities away from the Chief Justice and giving them to the members of the entire Court. The proponent is Delegate Janis, with whom I might be inclined to agree on many things, with the exception of his extraordinary remarks about judicial selection, and some parts of this bill. There seems to me some inconsistency between empowering the whole Court to decide an increased number of matters while removing their power to select a Chief Justice.

The significance of the bill has more to do with cutting back the powers of the Chief Justice over local judges, it seems to me, than with trying to oust the current Chief Justice, who might well continue as Chief even if HB 2089 passed, since it does not require the senior justice to agree to serve as Chief Justice.

HB 2089 appears again in this week's VLW, which has a story about how Chief Justice Hassell has taken up the issue of how the workload is assigned among the judges of the Circuit Court for the City of Richmond. The article says: "Hassell's intervention with the Richmond judges appears to have played a role in the decision of Del. William R. Janis to introduce House Bill 2089, which moves many of the specific statutory duties of the chief justice to the full court or to the chief circuit court judge." VLW, 1/29/07.

In the earlier VLW article, a spokesman for the Supreme Court offered this provocative comment about HB 2089: "The Supreme Court of Virginia has significant concerns about the impact of this bill upon the administration of justice."

Yoo v. Wu and Hass too

Professor Solum has posts here and here on the views regarding net neutrality of Christopher Yoo, Tim Wu, and Douglas Hass.

Every time I start to get lost in the weeds of the net neutrality debate, I read this again or this.

UPDATE: For some more comments questioning the need for net neutrality, which I have not read, see the links in the comment. (Yes, you can comment here on the SW Virginia law blog, if you look at the posts one at a time.)

On this year's laws against murderers and abortion

The Washington Post reports here that legislation has passed the House of Delegates that would expand the cases for which a convicted murder can receive the death penalty in Virginia. The article also describes legislation that would make it a crime in Virginia to force someone to have an abortion.

I agree with adding "judge killers" to the death penalty list, if there must be such a list

Speaking of which, I just got through reading Limitations by Scott Turow, about an appeals court judge receiving threats. Short and good, I read in a couple of hours.

Mistrial when lawyer loses train of thought

The Daily Press has this AP story about a Virginia trial where the judge declared a mistrial after the 70-something defense lawyer "said he couldn't continue his closing statement because he had lost his train of thought."

Or as we sometimes say, the train has left the station.

On handling PDF files for e-filing

Ernie Svenson has this post on dealing with PDF files for e-filing in the federal courts.

I must confess I am so cheap that I do not own an Acrobat license, I use a program called NitroPDF for most of my PDF tricks - putting them together, taking them apart, adding bookmarks, etc., and sometimes use a program called eCopy to scan documents (to Word of PDF) with OCR - so I can look up, for example, how many times (and where) the word "operations" appears in the lease I am writing about this weekend. eCopy came with the copier, I think. Also, we have a license for a program called Easy Bates, which does the Bates stamping of PDF files better than NitroPDF.

Correction

The other day I wrote:

The Democrat delegate who opposes the reappointment of a general district court judge is now saying the judge was only supposed to get one term. That's a strange thing to be saying. A deal like that would be unenforceable, surely.

In fact, it is a circuit court judge. Maybe I'll get this story straight before the end of the session - so far, my record is 0 for 2.

Stuff that's piled up

The case of the she named He: The Supreme Court ruled that the birth-parents of a young girl from China are entitled to custody, over her adoptive parents. Here is a story from the Shanghai Daily, and the Volunteer Dispatch has this post, speculating that the case could go to the U.S. Supreme Court.

The alleged unethical treatment of dead animals by PETA workers: the Norfolk paper reports here on the ongoing trial in NC of two Virginia PETA workers, who "being tried together on 21 counts of felony animal cruelty, seven counts of littering and three counts of obtaining property by false pretenses." Geez, they wouldn't want me on that jury.

How partial is partial: this post talks about the next great issue for the Supreme Court in the application of the Federal Arbitration Act - "The dispute turns on the meaning of "evident partiality" in 9 USC 10(a)(2): whether that term requires that an undisclosed relationship that the arbitrator had with a party, witness, or counsel (as in Positive Software Solutions) must be beyond a "trivial or insubstantial" prior relationship in order to justify vacating an award (as the majority of the Fifth Circuit en banc held), or whether the "very failure to disclose facts that might create a reasonable impression of the arbitrator's partiality" justifies vacating the award (as the panel opinion had held)." I've got a couple of arbitration cases cooking, one's that about done I think and one that needs to get started.

The Lynchburg Circuit Court sustained a demurrer to the lawsuit challenging the plans of Randolph-Macon Women's College to go co-ed, as the Lynchburg paper reported here. The article says Ed Fuhr from Hunton & Williams represented the college. Wyatt Durrette as counsel for the plaintiffs said that "the judge’s ruling surprised him." No doubt it did.

Posts like this one and articles like this one continue to expand the speculation about the impact of the Fourth Circuit's ruling in the Maryland Walmart employee benefits case. Does the logic of that ruling limit the authority of any state-wide scheme for employers to provide medical insurance? Perhaps so.

Delegate Hargrove proposed a resolution to celebrate Juneteenth, after his controversial remarks about slavery, as reported here. Juneteenth is an interesting idea for a holiday. There was a Rappahannock Juneteenth celebration in 2006.

I'm still wanting to read the Virginia Court of Appeals opinion in the parking with an expired inspection sticker case, described here. Do you reckon the fellow ever moved his car?

The Washington Times is pointing the finger at Michael Powell in the Wren Chapel cross matter, as Powell is on the board of the College of William & Mary. Somehow, the Times attempts to make some comparison between the removal of the cross and the Janet Jackson episode at the Super Bowl, surely a strange connection to try to make.

The Democrat delegate who opposes the reappointment of a general district court judge is now saying the judge was only supposed to get one term. That's a strange thing to be saying. A deal like that would be unenforceable, surely.

"Hogs are not game animals." It says so right here in the Hook, in an article about the Boar man, and "Operating Hog Wild."

Another corner heard from: part of the transportation debate includes the issue of whether the state can make localities raise taxes, according to this article in the Norfolk paper, including commentary from Professor Howard, who says "the state can order cities and counties to impose local taxes against their will."

Del. Janis speaks on the relevance of local bar endorsements

Quoted here in the Daily Progress, Delegate Bill Janis said:

"The notion that the lawyers of the Charlottesville bar can pick who the next judge will be is like saying that the inmates get to pick the next warden."

Now, that's one view of bench-bar relations.

House approves Chad Dotson for general district court judgeship

As Not Larry Sabato reported earlier, the House approved HR 53 , which includes Chad Dotson among those appointed or reappointed for general district court judgeships. Well done, Chad. On Chad's selection, Ken Lammers has commentary here, and says Ron Elkins as Chief Deputy may be the next Commonwealth's attorney. Well done, Ron - another good guy.

At the same time, the House voted in Joe Carico to the 30th Circuit, in approving HR 52. The Senate approved the same list of circuit court appointees and re-appointees, in SB 43. I don't know Judge Carico as well as I know these other guys.

Also, the Senate Finance committee has approved SB 1175, which would add a juvenile and domestic relations district court judge for the Abingdon-Marion-Bristol district, among other things, as well as SB 1174, which will add circuit court judgeships in circuits including here in Southwest Virginia the 27th (Galax, Radford, Bland, Carroll, Floyd, Giles, Grayson, Montgomery, Pulaski, Wythe) and 30th (Norton, Lee, Scott, Wise).

I saw Judge Birg Sergent at the VBA winter meeting, and asked whether decision by the General Assembly to add a judgeship to the 30th circuit on the eve of his retirement means that the legislators have determined that it will take two judgeships to replace him. The facts cannot be read any other way.

Great blogger

Here is a good article on Sabrina Pacifici, the brains of the beSpacific blog, which is always chock full of useful links to key government documents and other items of interest.

On judging the cases of lawyer-legislators

The Norfolk paper opines here that a xxxxx legislator stepped so far over the line with his opposition to a judge before who he appears that it ought to be obvious to everyone that some reform is required on the problem of lawyer-legislators appearing before the judges whose appointments they control.

UPDATE: Oops, the legislator is not a Republican, as previously noted here in error.

On jury reform

Another lively part of the VBA meeting was the discussion on improving the jury system in Virginia, and the liveliest part was discussion about whether it would be a good thing for Virginia to eliminate all exemptions from jury service. Currently, lawyers and judges, among others, are exempt from serving on juries. The proposal, as I understand it, would not eliminate the trial court's discretion to exempt persons on an individual basis for some kind of good cause.

This article from the Roanoke paper details what happened when a member of the Roanoke city council did not show up for jury duty. The circuit court issued him a show cause order. The article said, citing the Commonwealth's attorney:

"Although offenders can face up to 10 days in jail and a fine of $250, Caldwell said it's rare for Roanoke judges to actually find someone in contempt of court. Most often, he said, the person is let go with a warning -- after being admonished by the judge about the important civic responsibility of jury duty."

On intentional infliction of emotional distress

In the last batch of Virginia Supreme Court opinions, in Almy v. Grisham, the Court in a 6-1 decision overruled the order by Judge William Shelton sustaining the demurrer of some of the defendants on the plaintiff's claim of intentional infliction of emotional distress. Judge Kinser was the lone dissenter, and she expressed the view that the majority opinion was inconsistent was prior decisions of the Court about the sufficiency of allegations of the severe emotional distress necessary to state a claim.

This is another opinion where it seems to me impossible to blame the circuit court judge, given the state of the law before him. The case law dealing with intentional infliction cases was mostly on the defendants' side, and the majority's efforts to distinguish the established precedents does not seem likely to make the law any clearer, as they acknowledged when they said: "A primary reason for the tort’s disfavored status is that because the prohibited conduct cannot be defined objectively, clear guidance is lacking, both to those wishing to avoid committing the tort, and to those who must evaluate whether certain alleged conduct satisfies all elements of the tort."

The Hook had this article about the decision.

What can an electric utility do about global warming

An interesting part of this weekend's VBA winter meeting was the presentation by John Warren, Director of the Division of Energy for the Department of Mines, Minerals, and Energy on Virginia's Energy Plan.

Related to this, I was interested to read this article about a decision by the Supreme Court of the State of Washington, to the effect that a taxpayer-owned electric utility there could not use ratepayers' money to pay others to do good deeds as regards global warming.

The other fascinating part of the presentation from the Administrative and Environmental law sections dealt with the ongoing litigation before the State Corporation Commission regarding the private wind turbine project proposed to be located in Highland County. Present were two of the lawyers involved, Dan Summerlin from Woods Rogers who represented some of the citizen opponents and Wiley Mitchell, who represented the Nature Conservancy, and even those two groups have different views about the project.

The Augusta County fence case

In one of last week's opinions, Cline v. Berg, the Supreme Court ruled that the fellow who complained about the big white fence shown in this picture was barred by the doctrine of "unclean hands" from obtaining relief against the fence, since his own acts are what caused the fenced to be erected. The Court in an opinion by Justice Kinser reversed the injunction entered by Augusta County Circuit Judge Thomas Wood. (I like Judge Wood, and I suspect he did the best he could have, who would have thought "unclean hands"?) The picture of the fence comes from this article in the Staunton paper, which discusses the decision.

On the ABA ratings of federal judge nominees

This editorial from the Hartford Courant says that it is unfair that Judge Bryant has no way to confront the people who said whatever bad things were said about her to the people at the ABA who rated her unqualified for the federal judgeship in Connecticut to which she has been renominated by President Bush.

The editorial says in part:

"This is an injustice to Judge Bryant and to anyone who may appear before her. If her colleagues have serious concerns about her competence, they owe it to clients and the rest of the legal fraternity to come forward. Judge Bryant deserves the chance to confront her critics and answer their allegations."

On the Fourth Circuit's opinion in the Maryland benefits case

In 2005, Maryland passed the Fair Share Health Care Fund Act which required that companies with more than 10,000 workers spend at least 8 percent of their payroll for employee health care or make up the difference in an equivalent payment to the state. Walmart was the most obvious target of the Fair Share Act.

Last week, in Retail Industry Leaders v. Fielder, the Fourth Circuit in a split decision upheld the decision by District Judge Motz that the new law was unconstitutional. Judge Niemeyer wrote the opinion, joined by Judge Traxler, with Judge Michael dissenting.

The Baltimore Sun had this article on the decision. The Insurance Journal had this article about the decision.

On ignoring the U.S. Supreme Court

This interesting column from Slate's Dahlia Lithwick asks whether the Texas appeals courts have decided to ignore Supreme Court opinions dealing with death penalty cases.

On a mandatory retirement age for lawyers

In this report, the New York State Bar Association protests against the establishment of mandatory retirement age for lawyers in law firms as bad for lawyers and the public, and quite possibly actionable under the ADEA in light of the opinions from the Seventh Circuit related to the Sidley Austin case.

Odds and ends

The Norfolk paper reports here on Senator Stolle's efforts to get some new judgeships for Chesapeake and Virginia Beach.

The Roanoke paper reports here on a Virginia Supreme Court ruling from last Friday, reinstating a $200,000 jury verdict involving the death of a toddler in a swimming pool.

The Daily Progress reports here on the case of the parents who were nabbed for giving alcohol to minors when the police officer figured out what was going on when he came up their driveway.

The Fredericksburg paper reports here on bar endorsements of two juvenile court judges for circuit court judgeships.

The Culpeper paper reports here on the town's settlement with a contractor, who "will never work here again," as if they'd want to.

This page from WDBJ says that court documents show the former priest accused of embezzling was married and living a double life. (Subsequent articles say the former priest denies that he was married.)

This Daily Progress article profiles the Williams Mullen lawyer who is the honorary Canadian consul in Richmond.

On arguing the Blacksburg sewer case

The Roanoke Times had this piece on the thrill for the lawyers who argued the Blacksburg sewer case before the Virginia Supreme Court last week.

It says in part:

"Win or lose, arguing a case before the state Supreme Court is both exhilarating and nerve-racking for attorneys on both sides.

After a hearing Thursday in Richmond that could reignite debate over public utilities in Blacksburg and set a new precedent for enforcing Virginia annexation agreements, Blacksburg Town Attorney Larry Spencer and his opposing counsel Darrel Tillar Mason were slightly nonplussed.

. . .

For Mason, it was stressful to condense folders full of legal wrangling into a 15-minute oral argument in front of seven sharp legal minds who sometimes pepper attorneys with adversarial questions.

"If you're not nervous, something is wrong with you," Mason said minutes after the hearing.

Attorneys arguing other cases before the court Thursday had to apologize to the justices for various gaffes.

One lawyer presented arguments to the court that he hadn't included in his brief. Justices chastised him for exerting an unfair advantage over his opposing counsel.

Another attorney was so flustered after an eight-block sprint to get to the court on time that he had trouble answering questions from the bench. Chief Justice Leroy Hassell showed mercy, giving the attorney 60 extra seconds to address them.

Still, arguing before the state Supreme Court is a challenge many lawyers relish."

Even in Virginia?

The Virginia Injury Lawyer Blog has this instructive post titled, YES, EVEN IN VIRGINIA -- GOOD SETTLEMENTS OF PERSONAL-INJURY CASES -- A PROVOCATIVE PRIMER.

Federalization of the practice of law?

The ABA Journal for January 2007 had a number of items with what struck me as a recurring theme:

In the letters section, a woman wrote: "I urge those responsible for state bar admission rules to consider amending them to support military spouses attempting to sustain legal careers. Rules should allow spouses of active-duty military members who meet the character and fitness requirements to waive in without sitting for a bar examination . . . ." Of course, the rights of veterans and their families are the subjects of considerable federal legislation, including USERRA.

An article addressed the lawsuit filed by a New York-licensed lawyer who lives in Florida, and wants to provide legal advice on New York law matters from a Florida office without obtaining a Florida license. The article says in part, "some experts wonder if someday [the New York lawyer's] approach may become acceptable, particularly if the issue continues to come under scrutiny from the federal courts," and quotes one fellow as saying, "We could have the federalization of the regulation of lawyers," and cites a Third Circuit case where the appeals court ruled that federal law preempted Pennsylvania law with respect to whether a lawyer admitted to practice in federal court but not in state court could have an office in Pennsylvania. The Court is cited as holding that "Where federal law authorizes an agent to practice before a federal tribunal, the federal law pre-empts a state's licensing requirements to the extent those requirements hinder or obstruct the goals of federal law."

An article about the changes to the Bankruptcy Code discussed the statutory issue of whether Congress intended for attorneys to be considered "debt relief agencies" under 2005 amendments to the Code.

Finally, an article begins with reference to the "pervasive role that administrative hearings play in sorting out disputes arising under federal law."

There are many lawyers who never go to federal court, and some of them send work to those of us who do. The differences between state and federal practice have arguably widened since I became a lawyer, particularly as the federal court practice has changed more rapidly in response to modern technology. Will there someday become separate federal bars, exempt from some state practice rules, somewhat like patent practice and tax practice? It wouldn't surprise me.

Fourth Circuit Blog rediscovered

The public defenders in several circuit courts have excellent blogs dealing with the criminal justice issues from the several circuits.

I would include among these the Fourth Circuit Blog, which I have added (or re-added) to the blog roll.

Another one bites the dust

One of the few points on which I have agreed with Legal Fiction is that it is a shame that it is closing down.

Who are those big law firms representing Guantanamo detainees?

This JURIST post lists Virginia-based Hunton & Williams among the law firms named by a Defense Department official who said in an interview that their clients should make them quit doing it or find other lawyers.

I don't like it when the ABA takes a stand on political matters, but when the big firms get involved in "political" pro bono, they are acting in accordance with their ethical obligations, to their credit, even when they are on the "wrong" side and even when their arguments are losers.

This certainly adds some excitement to our next European vacation

The last stop on our next trip to Europe is at Athens, where this weekend somebody shot a grenade into the U.S. Embassy.

On judgeships

Jeff Schapiro writes this week that Chad Dotson might get a general district court judgeship in the Lee-Scott-Wise-Norton district.

Mr. Schapiro's column implies that Chad's main qualification is that as a Republican politico in the far Southwest he is connected with Delegate Kilgore and Senator Wampler, who decide such things as who becomes a state court judge in this part of the state.

Indeed, most judges are former party regulars, going back to the origins of the United States. The concept of judicial review originated in the case of one such appointee, William Marbury, one of the midnight judges named by the Adams administration as they were on their way out, who filed a petition for writ of mandamus against the new Secretary of State, James Madison, to get him to turn over his commission to some judicial post in the District of Columbia. The new Jefferson administration had no intention of letting Marbury in. The Chief Justice John Marshall, himself a Federalist appointee, famously enhanced the power of the Court while declaring it was powerless to grant Marbury's petition, concluding that the act of Congress authorizing such writs was itself unconstitutional.

The problem of judicial selection is not figuring out how to avoid the selection of lawyers who were politically-active, because many of them are the best and the brightest, but rather how to improve the chances of picking the best and the brightest, and not merely those who were politically-active.

Chad Dotson, separate and apart from his blogging, has a better resume than many - he is a well-educated (U.Va. and Georgetown Law), well-spoken, amply-experienced, and good-humored fellow. I don't know that he is in line for a judgeship, but if he is, that's a good outcome, even if the process by which Virginia judges are selected is not always the best it could be.

I have no doubt that we do better in Virginia, I think, than in surrounding states where the judges are elected, which leads to some degree of demagoguery of complex issues (one fellow in Tennessee declared in his campaign ads that he was "The Truth Machine") plus the ever-present issue of money - how can judges ignore their knowledge of who did and did not contribute to their campaign coffers.

Something that strikes me as odd is the proposal this year from Delegate Kilgore that would allow an exception to the residency requirement for circuit court judges "to any sitting judge who resides within the Commonwealth of Virginia upon property that is located contiguous to his respective circuit." Is there some judge out there who doesn't live in his or her circuit? How strange. One mostly-sensible limitation on whom the legislators can select for local judgeships is that they have only the local lawyers to pick from.

On crossing the street in Virginia

In Maybury v. Morton, Magistrate Judge Urbanski ruled regarding the applicability of Va. Code 46.2-924 to the accident between the plaintiff pedestrian and defendant driver, that subsection B and not subsection A was controlling, as to which party had the right of way.

Subsection A provides:

A. The driver of any vehicle on a highway shall yield the right-of-way to any pedestrian crossing such highway:

1. At any clearly marked crosswalk, whether at mid-block or at the end of any block;

2. At any regular pedestrian crossing included in the prolongation of the lateral boundary lines of the adjacent sidewalk at the end of a block;

3. At any intersection when the driver is approaching on a highway or street where the legal maximum speed does not exceed 35 miles per hour.

Subsection B provides, in relevant part:

B. Notwithstanding the provisions of subsection A of this section, at intersections or crosswalks where the movement of traffic is being regulated by law-enforcement officers or traffic control devices, the driver shall yield according to the direction of the law-enforcement officer or device.

Under the facts of the case, the judge ruled that the crosswalk was controlled by the "traffic control device" even though there was some slight distance between the light and the walk in downtown Wytheville.

Outrage of the day

The Virginia Supreme Court upheld sanctions against the defense lawyer who speculatively pled some affirmative defensives in the case of Ford Motor Company v. Benitez.

Even if the main holding is correct, and I would not have gone along with it, the Court should have let this particular lawyer off the hook, as it frequently has done in the past in cases such as Jordan v. Clay's Rest Home, 253 Va. 185, 483 S.E.2d 203 (1997).

The reason is, whether the judges know it or not, every defense lawyer in Virginia has been writing answers this way, since I've been a lawyer. Doesn't every dog get one bite?

Real estate prices gone up in the old neighborhood

The Hook reports here that the University is getting scalped in its purchases on or about Brandon Avenue. I lived on Brandon Avenue for a couple of years, it was pretty convenient to Cabell Hall, where about 90% of my classes were held, way back when - but not as convenient as it will be when they build that football-field sized terrace over Jefferson Park Avenue.

Seven items that have been sitting here waiting to be blogged

Not that I have time to adequately myself on these items, but here they are, some of them have been noticed by others, whom I would cite if I had the gumption.

This article from StyleWeekly fleshes out the details of how terrible it is that court-appointed lawyers in Virginia are paid so little. If I was in the legislature, I would complain about this issue every day until it gets resolved, there is no more important business for the General Assembly to consider than whether it will afford poor Virginians their right to counsel by paying lawyers adequately to do the work - particularly when this year like every other, the General Assembly members are cooking up dozens of new criminal offenses to inject into the Code.

This article talks about the irony of the efforts by the Hazel family to keep a power line off their property. There is irony, there, but I don't know too much about it, the Hazels are like fictional characters I've only read about in the Washington Post and Virginia Business.

This commentary on zoning law in Virginia, which points out there is case law already in Virginia where the Virginia Supreme Court upheld a denial of rezoning in Chesterfield because of the lack of adequate facilities for the proposed new use. It also points out some remarkable figures on proffers, that is cash to accompany rezonings: "for fiscal 2006, Fairfax County (pop. 1,006,529) collected $8.2 million in cash proffers. Chesterfield County (pop. 288,876) collected $6.8 million. The City of Manassas Park (pop. 11,622) collected $2 million. Loudoun County (pop. 255,518) collected $13.3 million. Prince William County (pop. 348,588) collected $25.2 million."

This update from Martinsville says that Hunton & Williams charged the city over $750,000 to lose the cable TV case. The County Attorney, a good man if ever there was one, is quoted as saying "'It pains me a great deal ... (that) all of this money has been flushed away by the city' with no return on the investment." No doubt.

This article (registration required) from the Winchester paper says that a high school student is seeking a preliminary injunction against the Frederick County schools in connection with his right to wear a t-shirt with some kind of Christian message, and his right to distribute pro-life literature. Do the high schools ever win those t-shirt cases? The article says the plaintiff Andrew Raker has been consulting with some group called the Alliance Defense Fund.

The Hook has this article with more coverage on who will succeed Judge Peatross in Albemarle County. Only in Charlottesville does a judgeship get so much press. The inference that the Hook and others are trying to make is that the politicians are going to pick a Republican party regular, such as the current Commonwealth's attorney, over better-qualified candidates who got better ratings from the local bar association - at least, that's the story they are looking for, whether it ever turns out that way remains to be seen. There are some non-Republicans getting circuit court appointments these days, not too many, but more than zero. (I can name one.)

Finally, from Yahoo, here is a story about an award of punitive damages against State Farm in a case related to damage from Hurricane Katrina. One interesting thing is that the case got to trial so soon, in some places it would take longer.

Is there a shortage of city managers?

The New York Times reports here on what is described as the coming shortage of qualified managers for the nation's cities and towns.

Bristol, Virginia, is looking to replace its City Manager, while the outgoing incumbent is getting quite a package of parting gifts as he heads into retirement - maybe the market demands that city managers get such goodies. I'd say that the fellow in Bristol city government who could write his own ticket about any place in the U.S. is not anyone who ever worked in the City Manager's officer, but rather the head of Bristol Virginia Utilities and perhaps a few of his colleagues.

More on the anti-corporation rights movement

According to this report in the Roanoke paper, the same brainwave that is being tauted as the solution against biosolids is being offered up against the intermodal freight facility - the proposals by the Community Environmental Legal Defense Fund for ordinances targeting corporations.

Well, at least the Democrats will do something about Net Neutrality

Senator Dorgan is bragging on his new proposed Internet Freedom Preservation Act, co-sponsored by Senators Kerry, Boxer, Harkin, Leahy, Clinton, and Obama.

I'd have more confidence in a bill endorsed by Boucher and Goodlatte. I'm not sure that the celebrity politicians in the Senate are particularly reliable on any technical issues, including this one - but I will try to read the bill and see where it fits in.

Not everyone agrees on whether the new Congress is jumping on tech issues: today, I saw one headline that said Congress Off To Slow Start With Tech and another that said 110th US congress wastes no time on Net neutrality.

The latest Blawg Review - from New Orleans

Ray Ward has this latest Blawg Review, with sort of a New Orleans religious theme, which reminds me that I sometimes think when listening to President Bush address legal matters that he is talking about some street in New Orleans called the "Rue La-La." All of the president's nominees to the appeals courts have had their footprints on the Rue La-La.

Bashman on stealth judging in state appeals court

Howard Bashman comments here that it's time to abolish invisible rulings by state appellate courts, and he's right.

The Virginia Supreme Court is, to my knowledge, one of the very worst offenders on this point - it is impossible to find on Westlaw or online an unpublished decision, even though the lawyers in the case get them from the clerk (and the Richmond law firms get them the same way).

One of the cases I argued before the Virginia Supreme Court is unpublished, might as well have never been decided. And, it was an interesting case, even though my side lost.

By contrast, the unpublished opinions of the Virginia Court of Appeals are in a sense published on the website and on Westlaw - even if they cannot be cited as precedent, everyone can read them. Access to unpublished opinions is an open government issue.

Fourth Circuit nominees Haynes and Boyle to be withdrawn from consideration

Via ACSBlog, the AP is reporting that Fourth Circuit nominees William J. Haynes and Judge Terrence Boyle of North Carolina have notified President Bush that their names be withdrawn from consideration, or in any event the White House is not going forward with their nominations. Judge Boyle, according to the Raleigh paper, did not "throw in the towel" himself.

The Washington Post has this editorial, applauding the withdrawal of these names. It says in part: "Mr. Bush's move was a wise acknowledgment of political reality, but it was also right on the merits. Democrats had valid objections to the nominations of William J. Haynes II, William G. Myers III, Terrence W. Boyle Jr. and Michael B. Wallace. Mr. Haynes, the Pentagon's general counsel, has been a key player in the military's policies on detentions and interrogations in the war on terrorism. . . . Judge Boyle, who serves on the U.S. District Court in North Carolina, has a troubling history in civil rights cases."

Perhaps this development increases the likelihood that the White House will actually nominate one or more of the several qualified Virginia judges for vacant positions on the Fourth Circuit, including Judge Widener's seat and Judge Luttig's seat. Back in June, Virginia Lawyers Weekly listed Virginia lawyers approved by the various bar associations, including among others, Supreme Court of Virginia Justices G. Steven Agee and Donald W. Lemons, Virginia Court of Appeals Judge D. Arthur Kelsey, and U.S. District Judges Glen E. Conrad of Roanoke, James R. Spencer of Richmond, and Rebecca Beach Smith of Norfolk.

The Richmond paper's article reports that new Senator Webb expects to play an active role in the selection of nominees from Virginia. Senator Webb's list of candidates might vary a good bit from those former Senator Allen would have preferred.

Drug guy's phone call to undercover officer not testimonial hearsay

In U.S. v. Ayala, Chief Judge Jones of the W.D. Va. held that the Confrontation Clause as construed by the Supreme Court in the Crawford case does not apply to bar the admissibility of the out-of-court statement about the defendant made by some drug guy on the cell phone who thought he was talking to another guy wanting to buy drugs who was actually an undercover police officer.

It does seem that a statement of this kind is not too much like testimony in court, or so one would hope.

Good story on retiring SC appellate judge

In South Carolina, the State has this delightful profile of a retiring appellate court judge, which begins with this story:

"In the early 1960s, when Travis Medlock and Bert Goolsby were young lawyers in the S.C. Attorney General’s Office, the two were assigned to try a major stock fraud case.

As Medlock tells the story, the lead prosecutor suddenly pulled out in the middle of the Greenwood trial. That left the two young prosecutors in charge.

Goolsby looked toward the area where the state’s witnesses were sitting and called a man to the stand. To Goolsby’s surprise, the witness said he knew nothing about the case.

He was the court bailiff.

Goolsby, now 71 years old and a judge on the S.C. Court of Appeals, will retire June 30. He is the last of the court’s original six members."

New tactic considered in sludge fight

The Lynchburg paper reports here that some lawyers are promoting a new draft ordinance that they believe would empower Campbell County and others to ban the use of biosolids as fertilizer. The Campbell County group has a website, with link to something called the Community Environmental Legal Defense Fund, which has on its website some draft ordinances, including this one which sounds like what is being proposed for Campbell County. The draft ordinances were written for Pennsylvania, where presumably the Dillon's Rule presumption is not quite so strong as in Virginia.

As noted in this post from 2004, Appomattox County wound paying $225,000 in attorney's fees when it lost the court challenge to its biosolid ordinance.

The Virginia Supreme Court rejected Amelia County biosolid ordinance in 2001.

NC's oldest law firm to merge with Williams Mullen

Triangle Business Journal reports here that Maupin Taylor is merging with Williams Mullen.

Southwest Virginia's latest international celebrity

As reported here, the two-faced calf from Rural Retreat has made news around the globe.

It even got a BoingBoing post.

Will bar endorsements make a difference in selection of Albemarle County judge?

cvillenews.com notes here that the local bar endorsed two for the Albemarle circuit court, but a third candidate is still in the running.

What would happen if someone like Waldo was on the case of every judicial vacancy in the Commonwealth?

Split decision in Title VII case

In Luh v. J.M. Huber Corp., the Fourth Circuit in an unpublished opinion by Judge Widener, joined by Judge Niemeyer, affirmed summary judgment on the plaintiff's employment discrimination claims. Judge Gregory wrote a 20-page dissent, concluding that there was a question of fact as to pretext. Loblaw made this one of his Decisions of the Day.

Can Williamsburg find a place to house enough foreign workers for the Jamestown 2007 celebration?

In some kind of triple-reverse irony, the Daily Press reports here that the hotels in Williamsburg have asked for permission to house foreign college students they need to work the hotels, particularly in light of the upcoming Jamestown 400th anniversary, which is expected or hoped to be a boon to Colonial Williamsburg (which has been otherwise somewhat on the wane).

It seems like not to long ago we went to the Outer Banks and everyone working there who was not white Southerner was white Russian - Russian college girls working the cash registers, serving the drinks, taking delivery of our rented linen at the end of the week.

The upcoming meeting of The Virginia Bar Association later this month in Williamsburg includes a focus on immigration issues, including a session titled: "From Jamestown to Washington, D.C. — The Challenge of Immigration: What if the Native Americans Had Built a Wall?"

Some of the Virginia political bloggers have been taking sides on the proposal by some Virginia legislators that the General Assembly should in the upcoming session apologize for slavery. The timing of this proposal is said to be linked to the Jamestown anniversary, as the first colonial slaves were imported to Jamestown (albeit in 1619, not 1607). The history of those "20 and odd" persons of color continues to evolve.

When is employer liable for subordinate's bad motive

SCOTUSBlog reports here that the Supreme Court has granted this cert petition, presenting this interesting question:

Under what circumstances is an employer liable under federal anti-discrimination laws based on a subordinate's discriminatory animus, where the person(s) who actually made the adverse employment decision admittedly harbored no discriminatory motive toward the impacted employee.

I have written a little bit about this in the past; it is a particularly lively issue in government cases, where the decision-maker is a group of people.

SCOTUSBlog also reports that the Supreme Court has agreed to hear another appeal related to the long-running litigation between athletic powerhouse Brentwood Academy and the Tennessee Secondary School Athletic Association.

When thinking like a lawyer is not enough

A report described here in Inside Higher Ed says that legal education goes only have way at best - students learn issue spotting but not how to translate the theory into practice.

Really interesting stuff being argued next week in Virginia Supreme Court

Among the highlights:

some kind of rehearing in Taboada v. Daly Seven, Inc., which is the same case in which the Court in a subsequent opinion called out the losing lawyer for bad stuff he said about them in his petition for rehearing

the appeal from the denial of post-conviction relief in the Aleck Carpitcher case, the famous and troubling case from Roanoke in which the child victim has recanted the trial testimony that led to the conviction

the defendant's appeal in Raytheon Technical Services Company, et al. v. Hyland, involving defamatory performance evaluations

a dispute between LLC members in Roden v. Lerner, where the delightfully-phrased issues are these: "1. The trial court erred in concluding that Lerner had attached a “reasonable” condition to her “push,” when Section 12(A) of Rodler’s Operating Agreement barred her from using Section 11 to obtain payments allegedly owed to Lerner, and LLCs owned or controlled by Lerner, making that condition defective, unreasonable, and unenforceable as a matter of law; 2. The trial court erred in striking down Roden’s “shove” as invalid when his “shove” complied with the requirements in Section 11 of Rodler’s Operating Agreement, and matched Lerner’s “push,” obligating Lerner to sell Roden her ownership interest in Rodler’s LLC, as Section 11 mandates."

perhaps a new twist on an old issue in W.R. Hall, Inc. v. Hampton Roads Sanitation District and Estes Express Lines, Inc., et al. v. Chopper Express, Inc., where both cases involve the issue of the validity under the public policy of the Commonwealth of contractual indemnification as applied to one party's future acts of negligence that result in bodily injury." There was an opinion from Judge Williams of the W.D. Va. on this issue when I was a law clerk in 1989-1990, and he concluded the contract was not against Virginia's public policy. That case involved a tenant who filed suit claiming the landlord's building had made her sick only to find out she had agreed in the lease to indemnify the landlord for personal injury resulting from the landlord's negligence, including her own injury.

Parikh v. Family Care Center, Inc., a non-compete case

Lambert, etc. v. Javed, et al., a Bill Eskridge case that sounds like a Bill Eskridge case, where it appears that the plaintiff filed Suit No. 1 which was timely, then filed Suit No. 2 which was untimely, and then after dismissal of Suit No. 2 based on statute of limitations had Suit No. 1 dismissed based on res judicata. I think the Fourth Circuit almost got to the question of the res judicata effect of a statute of limitations dismissal in Q Intern. Courier Inc. v. Smoak, 441 F.3d 214 (4th Cir. 2006), but instead passed the buck back to the E.D. Va. Anyhow, from Smoak, and Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001), I'm thinking there is more to this issue than I would have guessed, the answer is not the same in every state.

the Nusbaum cases, where one of the issues is whether the trial court "abused his discretion by determining that Mr. Nusbaum deliberately physically attacked defense counsel because the evidence was insufficient to support that finding."

History of Legal Aid in Virginia

Worth reading are the articles by John Levy, Larry Harley, John Jeffries, Jack Harris, and others about the history of Legal Aid in Virginia, from the December 2006 magazine of the Virginia State Bar.

Professor Levy recounts how, among other things, going into Roanoke federal court with a woman co-counsel around 1970 and the judge and opposing counsel could not decide when to sit and when to stand, and also that a circuit court judge in Botetourt County once ruled that Legal Aid lawyers would not be allowed to practice there, and so the lawyers had to file suit in federal court to get this extraordinary prohibition overturned.

Professor Jeffries, who wrote the biography of Justice Lewis Powell, describes how Powell as president of the American Bar Association in 1964 acted boldly in support of what became the Legal Services Corporation, an effort which his supporters cited a few years later when he was nominated to the Supreme Court.

What they said

Permit me to associate myself with the remarks of others (here and here and here, among other places) saying goodbye to the blogs of Norm Leahy and Conaway Haskins, two of the best.

As for me, I'm with Milbarge, who wrote I Survived the '06 Blogger Massacre.

What happens with local Republican legislators cannot agree on judgeship

Here it is reported that the juvenile court seat on the Eastern Shore is vacant and likely to remain so while the legislators fail to get it together:

ACCOMAC -- The Eastern Shore's Juvenile and Domestic Relations District Court judge's position, which has been open since last year, likely will go unfilled again this year because of a stalemate, some predict.

The General Assembly, which appoints judges, will convene Jan. 10.

The process could go as it did last year, with the General Assembly unable to decide whether Accomac attorney Thomas B. Dix Jr. or Eastville attorney Croxton Gordon should be appointed.

Last year, Dix was nominated by the House and Gordon by the Senate. Nothing can be decided until both houses agree.

Del. Lynwood Lewis said he suspects the House and Senate will maintain their positions during this year's session.

"I've been in politics long enough to know nothing is surprising," he said. "It's unfortunate, but it's how the process works."

Sen. Nick Rerras said he again will nominate Gordon. Del. Leo Wardrup, Republican of Hampton Roads, last year nominated Dix.

Wardrup was out of town for the holidays and could not be contacted, a legislative aide said last week. Dix said last week that he expected to again be nominated.

Customarily, the candidate endorsed by the local delegation -- Rerras and Lewis -- is the one approved.

"We are going to start fresh again," Rerras said, "and I plan on resubmitting Croxton Gordon."

On Charles King

The Roanoke paper has this article on the retirement of the long-time leader of Southwest Virginia Community College, near the border between Russell and Tazewell counties.

Should big-time women's college basketball teams continue to practice against males?

This Inside Higher Ed article says that some rogue outfit in the NCAA is proposing to ban the practice of women's basketball teams using groups of male players for practice.

This is another one of those articles that confirms the stereotype of the brainless forces of political correctness run amok.

Next, they'll rule the players on the women's teams cannot be allowed to play all-male video games, as a form of virtual practice, but instead must replace their NBA, Madden, and Tiger Woods games with some kind of female alternatives.

The year in review

The W.D. Va. website links to what seems to me like an unusually high number of opinions for my cases in 2006, and looking over what they say, they mostly all show an unusually high level of impatience on my part with getting the other side thrown out of court. Sometimes the Court's ruling was, "Wait."

PENN VIRGINIA OPERATING COMPANY V. EQUITABLE PRODUCTION COMPANY
Case Number: 2:06CV00062 Issued: 12/22/2006 PUBLISHED

CHADWELL V. LEE COUNTY SCHOOL BOARD
Case Number: 2:06CV00011 Issued: 11/20/2006 UNPUBLISHED

HICKMAN V LABORATORY CORPORATION
Case Number: 1:05CV49 Issued: 11/9/2006 PUBLISHED

CHADWELL V. LEE COUNTY SCHOOL BOARD
Case Number: 2:06CV00011 Issued: 10/19/2006 PUBLISHED

HICKMAN V. LABORATORY CORPORATION OF AMERICA HOLDINGS, INC.
Case Number: 1:05CV00049 Issued: 10/6/2006 UNPUBLISHED

BUCHANAN COUNTY, VIRGINIA V. BLANKENSHIP
Case Number: 1:05CV00066 Issued: 9/12/2006 UNPUBLISHED

LOONEY V. ITALIAN VILLAGE
Case Number: 1:05CV00053 Issued: 9/3/2006 UNPUBLISHED

LOONEY V. ITALIAN VILLAGE
Case Number: 1:05CV00053 Issued: 7/20/2006 UNPUBLISHED

BCBE PROPERTIES, LLC V. LAND-O-SUN DAIRIES, LLC
Case Number: 2:06CV00016 Issued: 5/22/2006 PUBLISHED

Not sure what the judge had in mind on this one

In Yates v. UMWA 1974 Pension Plan, the Fourth Circuit in a published opinion by Judge Michael reversed Judge William's decision that the plaintiff was entitled to a service pension from the UMWA 1974 Pension fund.

Eligibility for service pensions is determined by years of classified work with employers who were signatory to collective bargaining agreements with the UMWA. Yates was a truck driver in the mines for over 40 years, and 12 of those years were for a non-signatory subsidiary of Pittston, called Erwin Supply, which had its own union contract and did not participate in the pension fund.

In this pension case, Judge Williams applied liability principles from the Coal Act, which deals with health insurance. The Coal Act was born of the perceived funding crisis for the funds that pay the health insurance claims of the "orphan" pensioners, disabled retirees, and dependents, whose companies were no longer in business. The Act incorporates a variety of creative mechanisms to find companies to pay the health care costs of the beneficiaries, including the retroactive reach back provisions that the Supreme Court held were unconstitutional as applied in Eastern Enterprises v. Apfel. Judge Williams reasoned in his opinion that "[i]f signatory status can be imputed for liability under the Coal Act, then signatory status can be imputed for benefits under the Coal Act."

On appeal, the appeals court reversed, because the plaintiff was not making a claim for benefits under the Coal Act. Unlike the Benefit Funds, the Pension funds required no federal bail-out - the pay-outs from the pension fund are a matter of actuarial calculation, unlike the ever-escalating costs of health insurance. Consequently, the Coal Act was passed solely with respect to health insurance, and its liberal liability provisions have no application to the determination of service with a non-signatory employer can be considered signatory service for purposes of pension benefits.

Evidently, somebody at the Funds thought Yates was entitled to credit for these years of service, as the plaintiff's brief notes that a hearing officer gave Yates full credit and the Funds paid his pension on that basis for some time. Maybe the judge was looking for some kind of application of the W.D. Va.'s own version of the Goose and Gander rule. The problem is that the Funds in this instance are not one monolithic whole.

Those W.D. Va. judges

The federal offices were closed today, but an agreed order that was e-mailed to the Court last night was entered before 9:30 AM.

No matter how oppressed they may be by their low salaries, those W.D. Va. judges churn out the work.

On the retirement of assistant U.S. attorney in Northeast Tennessee

The Knoxville paper has this delightful story on the career of retiring AUSA Guy Blackwell, who is retiring.

Among the highlights:

Blackwell was the lawyer who would have tried the Butcher bank fraud cases - "When we showed (Butcher and his lawyers) the exhibit list, that's when they started talking about a plea agreement."

He prosecuted a case involving an Indian burial site in the national forest, and afterward, "out of respect for Native American burial customs and beliefs, Blackwell went to Cherokee, N.C., and took part in a Cherokee purification ceremony because it had been necessary for him to handle the remains and artifacts as exhibits in the trial."

The article also says, somewhat inscrutably, "One of his first cases in Greeneville was the very last moonshine case ever brought in a federal court." That statement is almost surely in error, the last moonshine case has not yet been brought, has it?

The only good thing about having a bad cold

I just called in sick and at the office they didn't recognize my voice on the phone.

The only good thing about having a bad cold is that you can imagine you sound maybe just a little bit like Barry White.

See it now, in Michigan

In Michigan, they had some kind of referendum against affirmative action, which is making the higher ed people crazy because their side lost, so they filed suit in federal court to overturn the state law referendum, and got "the other side" (presumably, the same side, as the case was in effect part of state government suing the state government) to stipulate to the issuance of a preliminary injunction by the District Court against the implementation of the new law. A real person intervened, and on his appeal, the Sixth Circuit reversed the issuance of the preliminary injunction.

The opinion says the preliminary injunction was improper because the University had no chance of winning on the merits.

In one memorable phrase, the Court says: "One does not generally think of the First Amendment as protecting the State from the people but the other way around—of the Amendment protecting individuals from the State." Regarding the Supreme Court's recent rulings on affirmative action, the Court says: "Grutter never said, or even hinted, that state universities must do what they barely may do."

Finally, the Court observes: "this is an unusual way to use the federal courts. Ordinarily, one might wonder why a court would hesitate to delay the implementation of a state law for six months when the State's Governor, the State's Attorney General and its Universities stand together in urging its suspension. That is particularly so when they offer reasonable administrative grounds for the delay—uncertainty about how the law will be interpreted and uncertainty about applying it during this year's enrollment cycle. Yet none of those administrative grounds explains why the federal courts should delay the law's implementation on federal grounds."

Perhaps the reason why the University chose not to file in state court is because the lawyers suspected that they would lose on appeal before the Republican-majority Michigan Supreme Court - unless some party opposite associates Jeffrey Fieger into the case.

Three blogs gone by

Three of my favorites who've packed it in or moved on - CrimLaw, Southern Appeal, Stay of Execution. Thanks, Ken Lammers, Steve Dillard (and gang), Sherry Fowler, and well done.

UPDATE - Q&O lives on but Jon Henke has joined up with the Nationals in Washington, and not the baseball team neither. Well done, Jon.

CNET reports on the recommendations of AG McDonnell's Internet task force

CNET's Anne Broache reports here on recommendations from the report of the task force assembled by Virginia Attorney General Robert McDonnell on online safety for kids. Included is discussion of the recommendations that ISPs keep records longer so that law enforcement can catch online criminals, and the registration of online handles for sex offenders who use the internet.

The full report of the task force is here.

The task force members, by the way, included the following:

Honorable Eileen M. Addison, Comm. Attorney York County and City of Poquoson
Elizabeth Banker, Associate General Counsel, Yahoo!
Dr. Sally K. Boese, Virginia Association of Independent Schools
Kenneth and Mary Alice Booth, Concerned Parents
Elisabeth A. Bresee, Vice President, Capital One
Honorable Mike Brown, Sheriff, Bedford County Sheriff’s Office
John L. Brownlee, United States Attorney, Western District of Virginia
Dr. Billy Cannaday, Jr., Superintendent of Public Instruction, Virginia Department of Education
Michelle Collins, National Center for Missing and Exploited Children
Charles D. Curran, Chief Counsel, Policy & Regulatory, American Online
Liz Eraker, Policy Analyst, Google, Inc.
Colonel W. Steve Flaherty, Superintendent, Department of State Police
Dianne Florence, President, Virginia PTA
David Foster, Arlington School Board
Anne Gavin, State Government Affairs Regional Manager, Microsoft Corporation
Robert E. Gwaltney, Assistant Special Agent in Charge, FBI Richmond
Honorable Michael N. Herring, Commonwealth’s Attorney City of Richmond
James L. Hilton, Chief Information Officer, University of Virginia
Honorable Janet D. Howell, Senate of Virginia
Honorable Robert Hurt, House of Delegates of Virginia
Virginia James, Cox High School
Bobbie Kilberg, President & CEO, Northern Virginia Technology Council
Rick Lally, President, Hampton Roads Technology Council
Ray LaMura, President, Virginia Cable Telecommunication Association
Rick Lane, Vice President, Government Affairs, News Corporation
Honorable Ryan T. McDougle, Senate of Virginia
Col. Rodney D. Monroe, Chief, Richmond Police Department
Officer Stan Moorefield, C.C.P.S., Virginia Association of School Resource Officers
Honorable Mark D. Obenshain, Senate of Virginia
William A. Pusey, Jr., Concerned Home School Parent
Thomas M. (Tommy) Quigley, Jr., Virginia High School Student
Donna Rice Hughes, Enough is Enough
Chuck Rosenberg, United States Attorney, Eastern District of Virginia
John Ryan, Vice President and Chief Counsel, America Online
Dr. Steve Shelby, West End Presbyterian Church
Honorable Kim Slayton-White, Commonwealth’s Attorney Halifax County
Carter Slough, Virginia High School Student
Robert J. Stolle, Executive Director, Greater Richmond Technology Council
Mr. John Titus, Principal, James River High School
Rosemary Trible, Community Leader
Joel Wiginton, Vice President & Senior Counsel, Government Affairs, Sony

Fourth Circuit and RLUIPA

Loblaw has this post titled "Fourth Circuit Knocks the Teeth out of RLUIPA."

In Madison v. Virginia, on appeal from the W.D. Va., the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judges Michael and Duncan, held that the Religious Land Use and Institutionalized Persons Act is constitutional as applied to the Commonwealth of Virginia except to the extent that it authorizes awards of money damages.

On the Spending Clause issue, the Court rejected Virginia's arguments, including the claim that the Supreme Court's decision in Rumsfeld v. FAIR somehow restricted the authority of Congress - since after all, that case "rejected a Spending Clause challenge."

On the money damages issue, the Court concluded "that RLUIPA's 'appropriate relief against a government' language falls short of the unequivocal textual expression necessary to waive State immunity from suits for damages." The Court went on to conclude that the Civil Rights Remedies Equalization Act was inapplicable to RLUIPA.

This outcome sounds like one of those Rehnquist-era federalism decisions, but since the panel included Judge Michael it seems unlikely that there would be a different outcome on rehearing by the en banc court.

In Lovelace v. Lee, Judges Michael and Wilkinson disagreed on the claims of a Muslim inmate at Keen Mountain against prison officials under RLUIPA and the First Amendment. Judge Kiser for the W.D. Va. granted summary judgment for all defendants on all claims.

Judge Michael, joined by Judge Motz, vacated summary judgment against a correctional officer in his individual capacity on the plaintiff's Free Exercise and RLUIPA claims, and vacated summary judgment against the warden in his official capacity. Judge Wilkinson agreed the claims against the individual officer should go forward, but dissented as to the official capacity claims against the warden.

In response to Judge Wilkinson's strongly-worded dissent, Judge Michael explained: "Today's remand provides nothing akin to a license for courts to plunge into prison policymaking or prison management. We merely require that the prison itself explain in a responsive fashion why the Ramadan policy's burdens on religious exercise are justified under RLUIPA's standard. It is our dissenting colleague who delves into prison policymaking by coming up with his own reasons as to why the policy's restrictions are necessary to insure safety and security. If a court could, as the dissent would have it, offer explanations on its own, then prisons would be effectively relieved of their responsibilities under RLUIPA. Or what is more fundamental, court-generated explanations would cut severely against Congress's intent to provide inmates with greater protections in the area of religious exercise."

Of the claim against the warden, Judge Wilkinson wrote: "Thus the majority's remand must be seen for precisely what it is: an invitation to finetune prison policy from the judicial perch. While a prison policy may well be called into question where it imposes a substantial burden on religious freedom, this is not such a case. It is plaintiff Lovelace who must prove under the statute that the policy, as opposed to Lester's violation of it, somehow imposed a substantial burden upon his religious exercise, and he has not even begun to do so. To enlarge a case involving an essentially individual act into a wholesale attack upon a sound prison policy, on no fewer than three different grounds, not only makes a mountain out of a molehill but also reinforces the old adage that no good deed goes unpunished. Under the majority's view, the most progressive and enlightened prison policy imaginable, a policy that accomodates every religion in every way, would be called into question by a single policy violation. Forcing prison officials to pay for their own progressive steps to protect religious liberty runs counter to the precise statutory and constitutional provisions that the majority purports to enforce. I therefore concur in the judgment remanding the case for further proceedings against defendant Lester, but I respectfully dissent from the majority's RLUIPA, free exercise, and due process determinations as to the prison policy itself."

Somewhat obscured by these fireworks, the Court's discussion about qualified immunity strikes me as wrong. Judge Kiser held that the individual was entitled to qualified immunity because the constitutionality of RLUIPA was clearly established. Judge Michael rejected this conclusion, because at the time of the events in question, no court had yet ruled one way or the other on the constitutionality of the new statute. RLUIPA was passed by Congress after the Supreme Court held that its predecessor was unconstitutional. To say that its constitutionality was clearly established in 2002, when it was an open and difficult question for the appeals courts when they made their decisions in 2003 and later, seems to turn the qualified immunity analysis upside down. RLUIPA was born of constitutional uncertainty, which is the very stuff of which the qualified immunity defense is made.

The public defenders for the W.D. Va.

I finally noticed here the list of attorneys hired to staff the new office of the Public Defender for the W.D. Va. The list includes:

Randy V. Cargill, AFPD (Roanoke)
B.S. 1978 United States Military Academy (2nd in class)
J.D. 1984 University of Virginia
1985-1991 U.S. Army Judge Advocate General’s Corps
1991-2006 Private practice in Roanoke

Nancy Dickenson, AFPD (Abingdon)
B.A. 1982 Randolph-Macon College
J.D. 1987 University of Richmond
1994-1995 Commonwealth’s Attorney for Russell County
1995-2006 Private practice in Lebanon, Virginia

Andrea Lantz Harris, AFPD (Charlottesville)
B.A. 1988 University of Notre Dame
J.D. 1994 University of Louisville
1999-2006 Charlottesville Public Defender’s Office

Frederick T. Heblich, Jr., AFPD (Charlottesville)
B.A. 1971 University of Virginia
J.D. 1982 University of Virginia
1982-2006 Private practice in Charlottesville

Monroe Jamison, Jr., AFPD (Abingdon)
B.A. 1984 University of Kentucky
J.D. 1987 University of Kentucky College
1989-2006 Private practice in Abingdon

Fay Spence, AFPD (Roanoke)
B.A. 1982 St. Leo College
J.D. 1987 William & Mary
M.A. 2005 Old Dominion University
2005-2006 Public Defender, City of Newport News, Virginia

Christine Spurell, Legal Research and Writing Specialist (Abingdon)
B.A. 1988 Oberlin College
J.D. 1991 Harvard University (Editor & member of the Articles Office, Harvard Law
Review)
1991-1993 Prettyman Fellow, Georgetown Law Center
1994-1996 Law Clerk, Chambers of the Honorable Vanessa Ruiz, D.C. Court of
Appeals
1996-2001 Private practice, Washington, D.C.
2001-2003 Associate Chief Counsel, Food & Drug Administration Rockville, MD
2004 Law clerk, chambers of the Honorable Elizabeth McClanahan, Court of
Appeals of Virginia, Abingdon
2005-2006 Private practice in Abingdon, Virginia

Statewide or by congressional district

Sometimes you hear the idea that the Electoral College, for the selection of U.S. Presidents under the Constitution, should not be winner-take-all for each state. An alternative proposed by some is that the electoral votes should be awarded based on the vote in each congressional district, with the two leftovers going to the overall winner.

In 2006, it seems to say here that George Allen lost the statewide vote but was the winner in 7 of 11 Congressional districts in Virginia.

Non-filing of discovery mania

By rule and standing order in our federal court, discovery material is not to be filed.

Rule 5(d) of the Federal Rules of Civil Procedure says:

"All papers after the complaint required to be served upon a party, together with a certificate of service, must be filed with the court within a reasonable time after service, but disclosures under Rule 26 (a)(1) or (2) and the following discovery requests and responses must not be filed until they are used in the proceeding or the court orders filing:
(i) depositions,
(ii) interrogatories,
(iii) requests for documents or to permit entry upon land, and
(iv) requests for admission."

The standing orders include this one for Judge Jones ("That in civil cases, except prisoner actions, assigned to Judge James P. Jones, discovery material will not be accepted for filing by the clerk of court on or after October 1, 1996, unless filing of same is ordered by the court.") Judge Williams is arguably the exception, but I think Rule 5(d) applies to his cases as well.

Nevertheless, we have in our district the practice of filing "discovery letters," which I never do. If the discovery request itself is not to be filed, why would the cover letter be filed? Similarly, I am opposed to the filing of deposition notices and other flotsam and jetsam related to discovery unless and until the Court orders their filing, or their are part of a motion, or they are attached to some subpoena on which a return of service has to be filed. It seems to me that these papers should not be filed because they are no use to the Court and their filing is at odds with possibly the letter and certainly the policy of the rule against filing discovery material.

Am I wrong about this?

Wallace bows out, will others do likewise?

ACSblog posts that Fifth Circuit nominee Michael Wallace is asking that his nomination be withdrawn, the post notes the usual complaints about Fourth circuit nominees Boyle and Haynes and that the Washington Times has editorialized that President Bush should name other people to try to get some more appeals court judges confirmed while he still has the chance.

There is no shortage of good judges who could do the job.

A dog's life

Chrissy was a former Death Row inmate, whose sentence was commuted to house arrest, when we brought her home from the Animal Shelter. Still, she felt the Call of the Wild, and lived in absolute certainty that beyond the friendly confines of the fences of our backyard, there were kitties and squirrels running amok, and other puppies wanting to play. So, Chrissy sought every way she could to see more of the Outside. When a misplaced winter boot knocked off a chunk in the side gate, leaving just enough room for a black nose and two black eyes, ever after the puppy Chrissy used that spy hole to peer out at the Town.

The house where we lived was old and odd. At one time in its history it had been rented out as two apartments, upstairs and down. In the back, there was a rickety wooden staircase leading up to the small deck by the upstairs door. The kitchen and downstairs bathroom were a single story, attached to the back of the house, next to the stairs. From the deck atop the stairs, the puppy learned she could slide through the rails and step on to the shingled roof of the kitchen.

"What's that?" asked my wife, standing at the bathroom sink. She heard a noise on the roof above her, and looked up to see the puppy's tail swishing above her. The dog had walked over the crest of the kitchen roof, so she could peer around the corner to see the World, and now she could also look through the sky-light down into our bathroom. We ran out to the backyard to rescue the puppy. Terry, the next door neighbor, hollered out, "Hey, Steve, you've got a dog on your roof."

From then on, we had to block the stairs, so the puppy could not go all the way to the top. So long as we lived there, the dog lounged on the stairs. When she grew too old and wide to fit through the rails, she liked to sleep under the stairs, on the cool bricks, peering out at trespassers in the alley behind the house -- the kitties and squirrels and sometimes dogs and people. If they trespassed too long, Chrissy would run up the length of the yard to bark at them through the wire fence. As for the squirrels and the kitties who dared to set foot inside the fence, the puppy chased after them, hoping to sink her teeth into their swishy-swishy tails.

As Chrissy became old, we moved from the old house with the rickety stairs to a new place, in a neighborhood with many dogs, and bunnies and squirrels, and little girls who called out, "Hey, can we pet Chrissy?" There was an exciting boy-dog across the street. Chrissy won every staring contest with the curious young cows who caught her eye in the field behind us.

But in the years at the new house, our walks got shorter and shorter. At first, she could walk to the other end of the street, then just to the stop sign, then just two doors down, then one door, then to the mailbox, then not at all. To the end, she took in a breeze like some people take in a concert, with her head back, eyes blinking, enjoying the the full range of the symphony of scents. Her last day was Wednesday, a sunny day, the hardest day.

Bye, old friend

What I got myself for Christmas

Thanks to Robbie and the Mid-Mountain men.

Jimmy Stewart and his old dog

With the end near for our dog, I am reminded of Jimmy Stewart's poem about his dog, which is more compelling when you watch this clip from the Tonight Show.

Waiting for Hillary

The Washington Post has this article about how the so-called balance of power on the Fourth Circuit may change if the Bush administration continues to fiddle with the increasing number of vacancies.

One quote from the article: "Imagine the people Hillary Clinton would appoint to the 4th Circuit."

That's what I did here. I note that Ms. Tate is tight with the Senator Webb camp, that's one way to become a federal judge.

There's a typo in that earlier post, I wrote Nadine "Strosser," when I meant Nadine Strossen. "Strasser" was the name of the evil Nazi major shot by Bogart at the airport in the final scene of Casablanca. I apologize for this error.

New dean at ASL

It says here that the Board of Trustees of the Appalachian School of Law have selected Professor Wes Shinn as the new dean.

Professor Shinn at one time was part of the Stone Pigman firm in New Orleans. (I always look people up on Westlaw.) Stone Pigman is, among other things, the liaison counsel for Merck in Louisiana where the Vioxx MDL proceedings are ongoing.

Dairy diet litigation gets booted from E.D. Va.

The Washington Post reported here on the dismissal of litigation against the dairy industry for promotion of the "dairy diet." The article says in part:

"But a federal judge has ruled that under Virginia law, Holmes and other people can't take on the industry in court -- only a government entity such as the Virginia attorney general's office can. The decision last week by U.S. District Judge Leonie M. Brinkema in Alexandria threw out the lawsuit Holmes filed last year.

In her ruling last Thursday, Brinkema said Virginia consumer protection law allows people to seek monetary damages but not a broad injunction regulating an industry. She did not address the science of the debate, writing that such federal agencies as the Food and Drug Administration and the Federal Trade Commission are better equipped to do so.

In the lawsuit, filed in Alexandria Circuit Court and moved to federal court, the physicians committee accused the dairy industry of promoting the weight-loss notion through a "massive, deceptive advertising campaign." The committee says overwhelming scientific evidence shows that dairy products cause weight gain or have no effect. The only studies showing otherwise, the committee contends, are industry-funded.

Holmes is the sole plaintiff in the lawsuit, filed against such companies as General Mills Inc. and the Dannon Co. Inc. and three dairy industry trade groups. In addition to damages for Holmes, the suit seeks an order halting the dairy industry campaign."

Seven candidates for Albemarle circuit court answer questions

The Daily Progress has this report on a forum for the candidates to succeed Judge Peatross.

Locally, the General Assembly will replace Juvenile and Domestic Relations Judge Gene Lohman. I don't think we will see a similar event for would-be judges looking to replace him.

Best reason to boycott Kingsport

They're putting in those red-light cameras, according to this report.

Some guy with the City is quoted as saying: "This has never been about revenue. It was about safety from the beginning. It still is and will continue to be."

I guess he never read the study described here, or the others like it.

Not a convert

Somewhat in the manner of the Jaded JD, it has been written over at the Booby Hatch that "Mr. Minor" hasn't a clue.

I'm arguing collateral estoppel this afternoon, yet hoping that the adjudication from the Booby Hatch will not be binding.

Bad news from Roanoke

Ruby the Tiger has been put to sleep, or so it says here. The Roanoke paper has pictures of Ruby here.

Motley crew

I just saw this month-old collage, and decided to pirate it. Here's the place of origin. Well done, Badrose.

An unexpected dividend of blogging is having met all those people, or most of them.

Blog v. dog

As we debate morning, noon, and night how much longer to keep Chrissy, I recollect this Scheherazade post, where she asked the question, which would you give up, the blog or the dog?

My answer in January, 2004:

"My dog is 13, bad legs, bad hearing, bad breath, bad manners. She was once declared 'cute' by a future federal judge as she wagged her tail at him in the middle of our town.

I'd say we'd give up about everything we've got for her, if it comes to that, but I'm afraid it won't."

Almost three years later, that's about the size of it - there's nothing much we can do but try to figure out when enough is enough. In this old photo, the dog looks like she is expressing her view of the situation.



S. also wrote this memorable post about her favorite Google search term, which makes me think that things could be worse.

The Christians and pagans in Albemarle County

Reason has this post which begins:

"Albemarle County Virginia public schools allowed pagans to distribute flyers in the backpacks of school children inviting them and their families an event this weekend where they can learn about and participate in pagan yuletide rituals. Some outraged Christian parents objected. But the delicious part of this story is that a threatened lawsuit by Jerry Falwell's Liberty Counsel legal aid group is the reason the pagans can issue such invitations through the public schools."

On the bright line rule of Jones v. Jones

Back in October, in the case of Jones v. Jones, the Virginia Court of Appeals in an opinion by Judge Humphreys joined by Judge Elder and Senior Judge Annunziata held that the notice of appeal was a nullity because appellant's counsel was suspended from practicing law at the time it was filed.

The ABA Journal eReport published this article about the case, which begins: "If an attorney with a suspended license files a notice of appeal, the client will pay a price, even if neither the lawyer nor the client knew of the suspension, the Virginia Court of Appeals has ruled."

Carolyn Elefant weighs in: "Stupid result, in my view. Where an attorney knowingly files an appeal and isn't licensed to practice, he deserves blame for the result. But where an attorney doesn't know, why should the client be penalized? In this case, the events all took place over a short period, with the former attorney withdrawing at the beginning of July 2005, the new attorney filing notice of appeal August 9, 2005 and the suspension ending on August 25, 2005. Had the client's new attorney realized that he was suspended through the end of August 2005, he could have asked the client's former attorney to lodge the appeal (or the client could have filed pro se) and stepped in to the case when his suspension concluded. The court's approach rejected this sensible outcome and penalizes the client for an easily avoidable situation."

Fair or not, it sounds like a Virginia ruling to me. Appellate practice in Virginia is gotcha-law. The Court of Appeals based its decision on Nerri v. Adu-Gyamfi, 270 Va. 28, 613 S.E.2d 429 (2005), which in turn relies on Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279, 568 S.E.2d 671 (2002), the case involving the multi-million dollar judgment from Buchanan County where only the Kentucky lawyer signed the notice of appeal. Similarly, the Washington Post series on the sorry state of funding for indigent defense in Virginia noted the high level of appeals in criminal cases that are dismissed on procedural grounds. It's pass/fail, the Rules are not intuitive, counsel has relearn them for every appeal. Somehow, the federal appeals court manages to get by without the same harshness, in fact, the clerk's office pretty much spoon-feeds the lawyers from start to finish. I've never heard any of the judges or justices state why they believe the state court rules are just. Steve Emmert in his commentary on the case charitably attributes to Virginia's appellate benches the view that they "genuinely dislike procedural dismissals, and try to avoid them where they can."

Also, I don't know whether the outcome in Jones would be different in a federal case As Marcia Oddi explains here, linking to this article by Howard Bashman, lawyers get fried in federal appeals, too (particularly by two famous Seventh Circuit judges).

I also wonder whether Jones would have been different if the client had also signed the notice of appeal - unlike the parties in the Wellmore case, an individual could represent himself or herself.

Get your bargain lawyer

Some excerpts from the ALJ lawyer fee survey, with rates for associates of different degrees of seniority:

Dickinson Wright (226) (Detroit)
1st $160 5th $200
2d $165 6th $220
3d $175 7th $230
4th $185 8th $240

Dinsmore & Shohl (306) (Cincinnati)
1st $160 5th $200
2d $170 6th $210
3d $180 7th $215
4th $190 8th $225

Hiscock & Barclay (160) (Syracuse, N.Y.)
1st $160 5th $170
2d $160 6th $180
3d $170 7th $180
4th $170 8th $195

Morris, Manning & Martin (174) (Atlanta)
1st $170 5th $305
2d $225 6th $315
3d $270 7th $340
4th $285 8th $350

Phillips Lytle (173) (Buffalo, N.Y.)
1st $130 5th $175
2d $145 6th $185
3d $150 7th $195
4th $165 8th $210

Shumaker, Loop & Kendrick (162) (Toledo, Ohio)
1st $165 5th $195
2d $170 6th $200
3d $180 7th $215
4th $190 8th $220

Those were the lowest figures on the list.

Carolyn Elefant at My Shingle says small firm lawyers ought to use this list to show what bargains they are.