More wolves and Indians, less literature and history

I've been reading Boone: A Biography.

It's good not great - great story, so much of it about places right here or hereabouts, but told with too many literary, social, psychological, historical allusions, similes, metaphors, and references.

So, probably it reads about like one of my briefs. At the hearing yesterday, the judge said this brief looks much shorter than what I usually get from you, to which I replied, Judge, I've been out of town a lot lately.

On matters of excuse and recusal

The big trial scheduled for next week got pushed back because one of the lawyers said he was ill. If he said he was ill, I'm taking his word for it.

In the big hearing in another case yesterday, we learned when we got there who the judge would be, and - it was the same judge who had the same case in the earlier filed version, before the non-suit. Is that surprising?

I had done some research on the point:

"Some courts, state and federal, have explicit rules regarding the reassignment of refiled cases to the judge who had the first case between the same parties regarding the same subject matter. See, e.g., Local Rule 40.3, U.S. District Court for the Northern District of Illinois (“When a case is dismissed with prejudice or without, and a second case is filed involving the same parties and relating to the same subject matter, the second case shall be assigned to the judge to whom the first case was assigned.”); Rule 3.2, Georgia Uniform Rules of the Superior Court (“When practical, all actions involving substantially the same parties, or substantially the same subject matter, or substantially the same factual issues, whether pending simultaneously or not, shall be assigned to the same judge. Whenever such action is refiled, . . . such actions shall be assigned to the judge to whom the original action was or is assigned.”). Local rules of this kind “exist for the purpose of governing the flow of work in the district court as sensibly and efficiently as possible.” U.S. v. Dichiarinte, 385 F.2d 333, 337 (7th Cir. 1967). Even without local rules, courts have recognized their inherent authority to limit the ability of a litigant to draw a different judge just by taking a voluntary dismissal. See, e.g., Vaqueria Tres Monjitas, Inc. v. Rivera Cubano, 341 F. Supp.2d 69, 72 (D.P.R. 2004) (citing cases in support of the Court’s power “to act to preserve the integrity and control of its docket”) (cited with approval in Wilson v. Com., 46 Va. App. 408, 442, 617 S.E.2d 431, 447 (2005) (Kelsey, J., concurring))."

And, I got a ruling today from the Southern District of West Virginia. Rooting around on their website, I noticed that the judges there have posted a recusal list. How odd, and yet how reasonable.

On immunities, by John Williams

Here from PLI Toolbox is an article on immunities in section 1983, by Connecticut lawyer John Williams, who of course is not the fellow who wrote the theme to Superman and the NBC Nightly News.

"Serif? Don't like it," says Supreme Court

Not long after I wrote about the absurdity of the Virginia Supreme Court's continued use of the Courier font in its own documents, I get the word by way of the VLW Blog that the Court now proposes to require lawyers to use Courier (or Arial or Verdana) in all filings with the Court.

Wow, that's cheesy - especially the Arial and Verdana. In many courts, such as this one, the use of sans serif fonts is prohibited. See generally Rule 32, FRAP. This report from the Seventh Circuit website says: "Studies have shown that long passages of serif type are easier to read and comprehend than long passages of sans-serif type."

On proving discriminatory motive

ACS has this guest post, about the case before the Supreme Court called Sprint/United Management Co. v. Mendelsohn.

The issue is about whether in an employment discrimination case the plaintiff can attempt to prove discriminatory intent by the use of "'other supervisor' evidence — evidence that an employer's supervisors, other than the one who supervised the plaintiff, may also have engaged in acts of discrimination; and 'culture evidence' — evidence of a pattern and practice of discrimination."

Having litigated illegal motive a few times, part of me says - balderdash. Company-wide "culture" is as variable as anything else under the sun - some have it, some don't. A blanket rule on "culture" evidence as regards the intentional discrimination claims of individuals seems to me wrong, whichever way it goes, and the same goes for "other supervisor" evidence, except that I can't recall a case where the motives of some remote supervisor would have convinced me of anything.

The cert petition suggests there is dictum from the Fourth Circuit that comes down against the use of "me too" evidence, citing Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180 (4th Cir. 2004). The brief in opposition questioned this reference.

Reading below the Mendoza line

I have read only one of the books on the NY Times' Ten Best for 2007 list - Out Stealing Horses, which was very entertaining, but does it count as a 2007 book? I thought it was just published in English in 2007.

On the late Henry Hyde

Is it just me, or does the mention of the name of Henry Hyde, who died yesterday, make you think of this speech, which might be viewed as profound or ironic depending on your point of view, in which he said among other things:

"The rule of law is one of the great achievements of our civilization. For the alternative to the rule of law is the rule of raw power. We here today, are the heirs of three thousand years of history in which humanity slowly, and at great cost, evolved a form of politics in which law, not brute force, is the arbiter of our public destinies.

We are the heirs of the Ten Commandments and the Mosaic law: a moral code for a free people who, having been liberated from cruel bondage, saw in law a means to avoid falling back into the habits of slaves.

We are the heirs of Roman law: the first legal system by which peoples of different cultures, languages, races, and religions came to live together in a form of political community.

We are the heirs of Magna Carta, by which the freemen of England began to break the arbitrary and unchecked power of royal absolutism.

We are the heirs of a long tradition of parliamentary development, in which the rule of law gradually came to replace the royal prerogative as the means for governing a society of free men and women.

We are the heirs of 1776, and of an epic moment in human affairs when the Founders of this Republic pledged their lives, fortunes and sacred honor - sacred honor - to the defense of the rule of law.

We are the heirs of a hard-fought civil war, which vindicated the rule of law over the appetites of some for owning others.

We are the heirs of the 20th century's great struggles against totalitarianism, in which the rule of law was defended at immense cost against the worst tyrannies in human history. The "rule of law" is no pious phrase from a civics textbook. The rule of law is what stands between all of us and the arbitrary exercise of power by the state. The rule of law is the safeguard of our liberties. The rule of law is what allows us to live our freedom in ways that honor the freedom of others while strengthening the common good. The rule of law is like a three-legged stool: one leg is an honest judge, the second leg is an ethical bar, and the third is an enforceable oath. All three are indispensable to avoid political collapse.

In 1838, Abraham Lincoln celebrated the rule of law before the Young Men's Lyceum of Springfield, Illinois, and linked it to the perpetuation of American liberties and American political institutions:

'Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution never to violate in the least particular the laws of the country; and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws let every American pledge his life, his property, and his sacred honor; let every man remember that to violate the law is to trample on the blood of his father, and to tear the character of his own and his children's liberty. Let reverence for the laws be breathed by every American mother to the lisping babe that prattles on her lap - let it be taught in schools, in seminaries, and in colleges - let it be written in primers, spelling books, and almanacs - let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice.'

My colleagues we have been sent here to strengthen and defend the rule of law - not to weaken it, not to attenuate it, not to disfigure it while seeking an extra-legal and extra-constitutional solution to the threat posed to the Republic by a presidential perjurer.

This is not a question of perfection; it is a question of foundations.

This is not a matter of setting the bar too high; it is a matter of securing the basic structure of our freedom, which is the rule of law.

No man or woman - no matter how highly placed, no matter how effective a communicator, no matter how gifted a manipulator of opinion polls or winner of votes - can be above the law in a democracy.

That is not a counsel of perfection; that is a rock-bottom, irreducible principle of our public life."

The quotation was from Abraham Lincoln, "Address to Young Men's Lyceum of Springfield, Illinois, January 27, 1838," in Abraham Lincoln: Speeches and Writings 1832-1858 (New York: The Library of America, 1989), p. 32.

Good books read (or re-read) lately

The Kite Runner, by Khaled Hosseini. The talk about kites in pre-Communist, pre-Taliban Afghanistan makes me think of the descriptions of pigeon-racing in Belgium before World War I, in After the War by Richard Marius, one of my favorite books.

Welcome to the World, Baby Girl!: A Novel by Fannie Flagg. My wife picked this up for me from the library, I certainly would not have predicted the mother's secret.

1776 by David McCullough. This book made me think of the Jamestown book I read not too long ago - the survival of the American experiment was a close-run thing, even before it got started.

It Doesn't Take a Hero : The Autobiography of General H. Norman Schwarzkopf by Norman Schwartzkopf. This book on re-reading makes me wonder all over again, who was surprised by anything that Dick Cheney has done since 2001? He was doing it back then.

Playing for Pizza, by John Grisham. This book is absolutely delightful, and the very best part is the description of Rick's first meal in Parma. This book makes me think that Grisham has a few quarterback flights of fancy, going back to his high school days - supposedly he was a quarterback back then, like the local lawyer in A Time to Kill. Having been a tourist in Italy with just about as much sophistication or lack thereof as the hero of the book, I found it entertaining as a travel and food book - the football part is the least of it.

Frank Kilgore wants to take away your fried chicken

Here is a piece of writing by St. Paul lawyer Frank Kilgore, on educating Appalachia out of poverty and disease.

It says in part:

"[O]ur region’s health care statistics are still shameful, and the images of the huge crowds at annual Remote Area Medical (RAM) health care events in the Virginia communities of Wise and Grundy are not acceptable in the world’s richest nation in one of the nation’s richest states. When under served citizens will stand in line for hours and sleep in cars overnight just to have a throbbing tooth pulled or to obtain life saving medicines, something very bad has gone wrong."

It also says:

"Holding parents and caretakers more accountable for harming children with second hand smoke, drug use and alcohol abuse would be a good start as well. The throngs of adults who attend coalfield higher education institutions should follow the examples of the Appalachian School of Law and the University of Appalachia College of Pharmacy. These graduate schools located in Buchanan County, Virginia are national leaders in requiring community services of their students to promote healthier living, leadership and guidance to the young generations who will soon face the option of staying in their coalfield communities to seek higher education and making a difference, or leaving the region and continuing the “brain drain” that ultimately disables progress."

I heard an interesting discussion while driving back from Nashville last night, either Fresh Air or some similar left-wing Public Radio program, and the gist was that the European Union is more intrusive in matters of public health and safety - because there the government winds up footing the bill for the health consequences.

Washington Post approves Rosenstein for Fourth Circuit

The Washington Post editorializes here in support of the nomination of Rod S. Rosenstein to the United States Court of Appeals for the Fourth Circuit, rejecting the arguments put forth by Maryland's Democrat senators.

Judge Millette gets Court of Appeals vacancy

I had heard that Governor Kaine was going to appoint Circuit Court Judge Leroy Millette to the Virginia Court of Appeals, and yesterday he did.

The press release from the Governor is here.

The Baltimore Sun ran this profile on Judge Millette at the time of the D.C. sniper trial in Prince William County, over which he presided. It says among other things that he is a William & Mary law graduate, evidently from the same class of '74 as Judge Glen Conrad of the W.D. Va.

West Virginia Supreme Court overturns verdict against A.T. Massey in Harman Mining case

As reported here, the West Virginia Supreme Court overturned the $50 million plus verdict against A.T. Massey in the case of Caperton v. A.T. Massey, in a split decision. The Court held that the plaintiffs' claims were subject to a constractual forum-selection clause, specifying Virginia, not West Virginia, and that they were also barred by res judicata, based on Virginia law as applied to the now-final prior litigation in Virginia.

Check it out.

In his dissent, Justice Starcher begins: "The majority’s opinion is morally and legally wrong," and goes on to talk about Don Blankenship and his attempts to influence judicial elections in West Virginia. There's never been a dissenting opinion like it issued by the Virginia Supreme Court, surely.

As I've written before, in earlier times, several of the earliest federal judges of the Western District of Virginia came from what is now West Virginia, and but for the location of some railroad lines, some say Southwest Virginia would be in West Virginia - yet I read Justice Starcher's dissenting opinion and West Virginia seems very far away and different from here.

Next week in the Fourth Circuit

Here's the online argument calendar for next week's session of the Fourth Circuit.

One case is about the constitutionality of the exception to Virginia's FOIA for inmates.

One case is about whether a letter of reprimand is an adverse employment action for purposes of Title VII.

One case is a constitutional challenge to North Carolina's campaign finance laws.

One case is about standing in connection with a constitutional challenge to zoning limits on the location of methadone clinics.

Dogs and the law

On the same day the Roanoke paper ran this profile of Jill Deegan, a Botetourt County assistant Commonwealth's attorney who specializes in sophisticated handling of animal abuse cases, the story got out that the United States is looking to get about $1 million from Michael Vick for the cost of taking care of his old dogs.

Watch what you ask for

Here is the Virginia Supreme Court order from the case of the temporary injunction against the sale of the paintings, from this post of the Art Law Blog.

So, there you have it. I complain about not seeing the order, but no it was online after all. And, the order says - nothing in particular about the basis for the Court's decision.

You'd think that if the College is nearly broke, it is the side more likely to be irreparably harmed by a delay of six months.

Reason No. 1001 why all orders and opinions should be published, on the Web, and in the public eye

The Lynchburg paper reports here, inscrutably, that the Virginia Supreme Court has reduced the bond necessary for a temporary injunction against the sale of those paintings in the Randolph College/Maier Museum case.

What? You can't tell from the news story whether this is an outrage or not. You can't tell from the website, because the Supreme Court won't publish orders like this, for reasons that make just about as much sense as their continued use of the courier font for their opinions - that is, no reason at all, that's just the way it has been done, just another random relic of history that's long since lost its purpose. Heck, even the State Department scrapped the courier font in 2004, as described here.

Now, font preferences are one thing, but the relative inaccessibility of the Court's orders is an issue of open government, and the current way of doing things is wrong, in my opinion, as I have said here many times.

Rosenstein nominated to Fourth Circuit

Also on November 15, President Bush nominated Rod J. Rosenstein from Maryland to succeed the late Judge Murnaghan on the United States Court of Appeals for the Fourth Circuit.

As previously noted, Maryland's senators are not on board with this nomination.

Here is an editorial from the Baltimore Sun, and here are stories from the Washington Post, the Baltimore Sun, and the Baltimore Examiner.

With the nomination of Mr. Rosenstein, there are now four nominations to the Fourth Circuit waiting Senate action, the others being Judge Robert Conrad of North Carolina, Steve Mathews of South Carolina, and Duncan Getchell of Richmond. There is one more vacancy to which no one has been nominated, to replace former Judge Luttig.

Two E.D. Va. judgeship nominations

According to this press release, President Bush has nominated Mark S. Davis to succeed Judge Ellis and David J. Novak to succeed Judge Payne.

Davis is a circuit court judge in Portsmouth, Novak is an assistant U.S. attorney.

Here are reports from the Daily Press, the Virginian-Pilot, and the Richmond Times-Dispatch, and here's a snippet from the AP.

Evidently, Senators Webb and Warner are both on board for these choices.

Judge Davis previously worked with the law firms of Carr and Porter in Portsmouth and McGuire Woods in Norfolk, or so suggests Westlaw. Mr. Novak was recognized last year along with others from the Moussaoui trial team, with the Attorney General’s Award for Excellence in Furthering the Interests of U.S. National Security.

On Southwest Virginia courthouses

VLW Blog links here to this story in the Bristol paper that says Smyth County has agreed to spend $24 million to upgrade the courthouse at Marion.

I've been in the courthouse up there many times. I'm not sure that it is any worse or less secure than the courthouses in Lee County and Scott County, or Dickenson County and Buchanan County for that matter, but maybe it is. I don't know the set-up of the juvenile courts in those places, where the security risks are very real. The Tazewell County courthouse was redone and seems very nice. The Washington County courthouse is confusing but it has far better security than the others. The Wise County courthouse is also confusing but at least the main courtroom is pretty far from the street.

Michael Large has cool virtual tours of some of these buildings on his website.

Probably the most interesting looking was the federal courthouse they tore down in Abingdon.

Courthouse security is better everywhere now than it was. Years ago, while I was still in law school, I went to Russell County for the first time to see part of a murder trial, where the defendant was represented by John Lowe. During one of the breaks, I stood out on the front porch for a while looking out over the town when I realized the fellow standing next to me, having a cigarette and sharing the view, was the defendant.

The only "modern" building for miles around is here in Bristol. (The buildings in Christiansburg and Bristol and maybe Jonesville are, as I recalls, the only Southwest Virginia courthouses that didn't qualify for the book, Virginia's Historic Courthouses.) The story is often told that while the design of the Bristol complex was lauded as escape-proof, with underground connections between the jail and the court, supposedly the defendant at one of the early trials in the new building ran out of the courtroom and out the front door.

One retired local lawyer told a similar tale recently, or maybe it was the very same case, where his court-appointed client fled the premises after the jury had retired, prompting then-Judge Davis to comment that the defendant was apparently dissatisfied with his lawyer's summation.

On Steven Rose

The Johnson City paper has this obituary, which reads in part:

"Steven C. Rose was born in Kingsport, Tennessee, on January 18, 1952. Husband, father, son and lawyer, he passed away unexpectedly of a sudden heart attack at his home Tuesday morning, November 13, 2007. He was 55-years old.

Steve was the son of Cecil and Virginia Rose, and he was a life long resident of Kingsport. He graduated from Dobyns-Bennett High School in 1970, where he played on the varsity football team under coach Tom Pugh.

He attended the University of Tennessee at Knoxville where he graduated with honors with a degree in Business Administration. He attended the University of Tennessee Law School and graduated in 1977 and while attending was member of the school’s esteemed “Tennessee Law Review.”

He was admitted to the Tennessee Bar in 1977 and began practicing law as an associate at the law firm of Hunter, Smith & Davis. In 1983, he left Hunter, Smith & Davis and joined Mason Dixon Tank Lines, Inc. as Executive Vice-President. In 1984, he returned to the practice of law with M. Lacy West, deceased, under the firm name West & Rose. He practiced law with Lacy for 22 years and was joined in the firm by Lacy’s wife, Julia West, and recently by his son, Curt Rose. He loved the practice of law and was one of the fortunate few who got to make a living doing what he loved.

He served on numerous Boards of Directors including past President of Mountain Region Speech and Hearing, past President of Friends of Allandale and past President of Kingsport Swim Association. He also served as past President of the Kingsport Jaycees, past President of Rotary of Kingsport and past President of the Kingsport Bar Association. He recently had been appointed to and served proudly on the Tennessee State Judiciary Selection Committee.

Steve’s pride and joy was his family; he lived every day to the fullest and enriched the lives of those he had the pleasure to meet. He will be sorely missed by his family, friends and colleagues."

Why isn't the Ninth District part of the State of West Virginia?

This page purports to have the answer.

It says in part:

"Had the official split occurred 90 years earlier, the boundary may have been the crest of the Blue Ridge. Had the Civil War occurred in 1850, then West Virginia may have included what is now the Ninth Congressional District. Once the Virginia and Tennessee Railroad was built, connecting Southwest Virginia with Tidewater ports, subsistence agriculture was replaced with a cash economy based on tobacco. As part of the cultural change, slavery became more common in the region - and of course the counties went into debt to help finance the railroad. The boundary commission that recommended what counties should be included in the new state purposefully excluded those counties with a heavy debt load."

On the Civil War origins of the Virginia church property statute

This interesting article from the Washington Times about the pending litigation in Northern Virginia over the division of church property on account of splits within the Episcopal Church traces the origins of the statute at issue, Va. Code 57-9, to the day when congregations split over the issue of secession, prior to the Civil War.

The article begins:

"The largest property dispute in the history of the Episcopal Church, brought on by divisions over a homosexual bishop, is likely to turn on a Civil War-era Virginia law passed to govern churches splitting during disputes over slavery and secession," and notes that "many of the documents filed by the breakaway churches talk of 1860s splits among Baptists and Presbyterians over slavery and secession, including an 1867 article in the New York Times."

Worth reading

Over the weekend, I read Dominion of Memories: Jefferson, Madison, and the Decline of Virginia, an excellent book. The subject matter is the economic and political decline of Virginia from 1820 to 1860. Previously, I linked to a review of this book.

One of the many themes is that you can find a quote from Jefferson (or Madison) to support about any proposition, at least as regards the balance between state and federal power - for better and for worse.

Another theme is that at least to some degree, Virginia's elite had choices, and what they chose was to cling to their own wealth and power at the expense of democracy and progress, for reasons both rational and irrational, with results that were both predicted and predictable.

I wonder how this book compares with, for example, The Decline and Fall of the British Aristocracy.

The author Susan Dunn is cited in this article, in the Washington Post.

There are No Fourth Circuit Opinions Today

That's what the e-mail says.

A few election notes

Among the races I noticed:

Ex-mayor of Roanoke Ralph Smith got into the Senate.
VBA Board member Robert Hurt got into the Senate.
Bill Carrico and Anne B. Crockett-Stark stayed in the House.
Poindexter beat Ferguson, in that wacky race.
Neo beat Tolliver for Commonwealth's Attorney, as Buchanan County entered the Matrix.
The incumbent Short beat the challenger Short for Commonwealth's Attorney in Dickenson County.
In Lee County, everyone who testified for the plaintiffs in the Chadwell and Laster (not Lester) trial lost - D.J. Barker, Pete Sumpter, Robin Robbins - but Bill Willis and Ty Harber got back in, and John Marion was re-elected, so three-fifths of the 2000 school board will be reunited in 2008.
The clerks of court in Russell County and Montgomery County got voted out.
Sheriff Broadwater got voted out in Scott County.
Here in Washington County, Mark Graham lost to Tricia Phipps by a wide margin in the race for clerk of court.
In Wise County, only one D. Mullins was elected, and Rocky Cantrell did not get in for School Board.

The most provocative result was for Dickenson County School Board - William A. "Bill" Patton 496, Write-in 496.

Worth 1,000 words

I told Jina Sauls that this picture would be popular.



Here are Stephen Armstrong, Whitney Caudill, The Honorable Robert J. Humphreys, myself, and Lindsay Brubaker. The story is here.

Bloggables

Here's a story from the Norfolk paper on the plethysmograph case, out of Tazewell. It quotes Steve Emmert, who wonders, how will Judge Vanover forget the bad evidence on remand? The case is Billups v. Com., an opinion by Senior Justice Russell, reversing the Court of Appeals. Justice Kinser wrote a separate concurring opinion, joined by Justice Agee. My post about the panel decision of the Court of Appeals is here.

Here's a story from the Lynchburg paper on the DUI case, which says you can't be under the influence of drugs if they weren't "self-administered." The case is Jackson v. Com., an opinion by Chief Justice Hassell, reversing the Court of Appeals..

Mr. Gibson at the Charlottesville paper had this piece on why using bad drivers as a fund-raising tool is bad policy. Here's the full research report. The Media General story was published in the Bristol paper next to an article about how Sheriff Newman in Washington County uses bad drivers as a fund-raising tool - but the paper endorsed him anyway.

This story from the Roanoke paper says a writ panel declined the petition for appeal of MeadWestvaco in a $7 million suit against Buena Vista.

Here's a great profile of a former mayor and state court judge from Alexandria, who decided after he got married at age 76 that he should have tried it sooner.

Here's an opinion from the D.S.C. that says a blogger is not liable for calling someone a "yes man", but the yes man's lawyer is liable to the blogger for filing a bogus lis pendens on his real property.

This article from the Fredericksburg paper says a panel of the court of appeals is going to have a session there, while this article says the court of appeals affirmed the conviction in a pit bull case. The pit bull case is Large v. Com.

Here's a funky story on the mud in the Wise County clerk's race.

Here's somebody's alternative take on the Judge Shull case.

E.D. Va. order of acquittal in money laundering case reversed

In U.S. v. Hoffler-Riddick, the Fourth Circuit in an unpublished per curiam opinion for the panel of Judges Traxler and Shedd and District Judge Moon of the W.D. Va. reversed the District Court's order directing an acquittal on the money laundering charges against a former local government employee from Norfolk, whose financial advisor boyfriend set up a transaction to help a drug dealer with no credit history.

Worth reading, every word

The most recent edition of the VBA Journal contains the remarks of Supreme Court Justice Robert H. Jackson, delivered to the Summer Meeting of The Virginia Bar Association in 1947, about the Nuremberg trials, in which he was a prosecutor for the United States. He concluded: "We have given the world an example of a trial and hearing instead of executing people in cold blood."

Other speeches made by Robert H. Jackson can be found here.

The Virginia Holocaust Museum in Richmond has been working on a Nuremberg trials courtroom exhibit.

On the passing of a Sunday School teacher

H.C. Kiser, Jr., died this week. A short obituary is here, and it says in part: "He touched many lives with his testimony of his World War II POW experiences and his desire for everyone to know the Lord as revealed in his favorite Scripture, "Jesus says, I will never leave you or forsake you" (Hebrews 13:5)."

I've mentioned before the book about him.

Here is a short excerpt from the book, retelling the story I heard parts of at different times over thirty years ago. The date was October 12, 1944, American airman H.C. Kiser was 19, his bomber was on fire in the sky over Italy, and he was confronting the first crisis of his life:

"H.C. could look out on either wing and see smoke and flames coming out of the engines. He knew, perhaps, it would just be a matter of time until the plane exploded. H.C. and Doug Johnson, both waist gunners, were to bail out of the same escape hatch. Their oxygen was gone, and they were gasping for breath. . . .

H.C. had on fleece-lined gloves, and he crawled over to a metal door handle marked 'Pull in case of emergency.' He pulled his right glove off and grabbed the handle. His hand stuck to the door latch. Gasping for breath, he couldn't release his hand. The other waist gunner, Doug Johnson, came over and put his hand over H.C.'s. They both pulled, and the big door blew off into space. A 50-below-zero wind came rushing up and hit them in the face. They regained their senses from the blast of cold air and began to argue who would jump first - neither of them had ever jumped.

During the course of the argument, Doug pointed at H.C.'s chest parachute. His parachute had popped open when the plane was hit. The ripcord that he was to pull for a successful shoot opening was gone. The contents of the parachute had popped out into the plane and were scattered all up and down the waist of the plane. . . .

Doug said he wouldn't jump without helping H.C., and there were no extra parachutes on the plane. H.C. told him not to risk his life. After much hesitation, Doug jumped. H.C. watched him as he cleared the plane and reached for the rip cord; he pulled it and the parachute successfully opened.

[H.C.] crawled on his hands and knees down through the fuselage of the plane, gathered up all of the tangled shroud lines and the canopy of the parachute, and crawled back to the escape hatch. H.C. had gathered the parachute into a large bundle. In fact, the bundle was larger than the opening out of which he was to bail. H.C. kept trying to compress it small enough to get out of the door.

Finally he did this and began to pray: 'Lord, I don't know what to do, but I just pray that you will help me make the right decision: should I bail out or should I right this burning bomber down?' H.C. said, 'I had seen many planes go down and they usually burst into flames. It seemed like the Lord just said, 'H.C., I am a God of miracles; and if you will just leap out into space with a torn parachute, I will show you that I am a God of miracles.' Some time back in his Sunday School class, as a teenager, H.C. had a teacher who said when the book of Acts was finished that God no longer had to do these mighty miracles as He did when he was here among men. H.C. said, 'I knew that if I was going to live, it would take a miracle from a might God.'

He leaped out of the plane. As he saw the plane's rudder and tail section go by, he unfolded his arms and the parachute went up in a tangled mess. H.C. began to pray that God would open the parachute. He was falling faster and faster, and the parachute hadn't opened. H.C. began to make a lot of promises to the Lord. H.C. said, '. . . I looked at my little Bulova wristwatch and I said, 'Lord, perhaps in the next few minutes I will face death because this parachute isn't opening, and I just want to praise you this morning for the fact that you have taken all fear out of death; I am not afraid to die. Lord, I am nineteen years old. If you would see to open this parachute, I will witness for you every opportunity. Lord, I am so young to die, and I am thousands of miles away from my Godly parents, grandparents, and my pastor. Lord, it is just you and I here now, and I pray to you. I haven't been a Christian long, Lord, but I pray that you will let me live.' Still nothing happened. I told the Lord that maybe this problem was just too big for him, that even He couldn't open a tangled mess. When I told Him He couldn't, He showed me He could. The parachute opened with a terrific bang. I bit my tongue, my boots almost flew off, and I began to praise the Lord Jesus because this was truly a miracle.'"

Called to Be His Servant, H.C. Kiser, Jr.: A Biography, by Beverly Harding-Mullins, pp. 27-29, ISBN No. 0966451104.

Ex-judge Shull

The Supreme Court ordered today, at the conclusion of this opinion, that "that James Michael Shull be removed immediately from the office of Judge of the Thirtieth Judicial District, pursuant to Article VI, § 10, of the Constitution of Virginia."

The opinion says: "Initially, we note that the record before us contains many letters from attorneys, court personnel, and local citizens, who have written in support of Judge Shull’s professional reputation and service to his community."

One of those letters was from me, and it said this:

"To Whom It May Concern:

Re: Judge Michael Shull

I have practiced law in Southwest Virginia since the Fall of 1990 and known Mickey Shull for some years. Mr. Shull is an engaging individual with a lively mind. He is smart and he is quick, and he is very empathetic. He has done a lot to help friends of mine from Scott County. He made an excellent living as a lawyer working out of a storefront office, with cases in every courtroom. When I learned that he was a candidate for the judgeship he now holds, I wrote to Senator Wampler to tell him that I supported Mr. Shull, and expressed the view that these qualities - his sharp intellect, desire to help people - would allow him to become an excellent juvenile judge.

Most of the time I have spent with Judge Shull (since he became a judge) has been talking about public affairs with him and other lawyers over lunch or at the courthouse. I have not appeared before him, but I have done my best to follow his career. What I have heard is that he does the Court's work with a high level of energy and that he does a good job discerning and applying the law.

I have no knowledge of the particulars of the complaint against Judge Shull that has been reported in the newspapers. It is my firm belief that Judge Shull is unbiased in his work and perfectly suited to dispense equal justice under the law, to persons of all kinds. His personality and manner of expression might not always make a good impression - sometimes he talks too loud and says too much. In spite of these quirks, I think he is a good man and so far as I can tell, a good judge also."

That's all I have to say about that.

New bankruptcy judge in Norfolk

The Norfolk paper says here that Frank J. Santoro is the new bankruptcy judge of the E.D. Va. at Norfolk.

Shutdown plus 60 days wages equals no WARN Act violation

In Long v. Dunlop Sports Group, the Fourth Circuit in an opinion by Judge Motz, joined by Judges King and District Judge Robert Conrad, held that the employer did not violated the WARN when it shutdown without prior notice but continued to pay wages to the plaintiffs for an additional sixty days. The Court concluded "that the employer did not violate the WARN Act because no employee suffered an employment loss as a result of the plant shutdown until 60 days after the employer provided notice of it." The Court also observed: "When an employer commits to continue payment of wages and benefits to its employees, the employment relationship has not ended."

Suspicious bliss

In U.S. v. Moore, the facts indicate that the arresting officer thought the fellow he stopped outside of the FloydFest was suspiciously "“way too nice."

Judge Urbanski concluded: "Moore’s continued cooperation, talkative demeanor
and friendly attitude does not suggest that crime was afoot." He also concluded that the mere fact that the defendant had just come from FloydFest "is not enough to justify the prolonged stop, detention, and interrogation."

Funny sort of job description

Being argued this week before the Supreme Court is the case of Hilton v. Martin, where one of the issues is this:

The trial court erred in sustaining the Defendants' Motion to Dismiss and Plea in Bar to the Plaintiff's Second Amended Complaint and dismissing it in its entirety on the basis that the claims are barred by the exclusive remedy provisions of the Virginia Workers' Compensation Act because Martin's actions of deliberately striking his fellow employee, Ms. Rhoton, with charged cardiac defibrillator paddles were personal in nature and did not arise out of their employment with Highlands Ambulance Services, Inc.

Two other interesting W.D. Va. judges

I wrote the Wikipedia pages on Judges Dobie and Barksdale.

And, they are as interesting as the rest.

Judge Dobie got the District Court position because FDR owed him a favor, plus he wanted to put up someone so well-qualified that Virginia's Senators Glass and Byrd wouldn't have the nerve to oppose him. Dobie gave a speech at the 1940 convocation at William & Mary, about which the Flat Hat records: "Typical of Judge Dobie's address was the manner in which he brought it to a close. He said that as Lady Godiva had said as she was nearing the end of her famous bareback ride, 'I am nearing my close,' that he too was ending his talk." When Dobie went on the Fourth Circuit, the Court consisted of the three judges, Dobie, John J. Parker, and Morris Soper, whose decisions in desegregation cases belied their backgrounds. Dobie was the son of a Norfolk school official, but he joined in when the Court held that the Norfolk schools could not pay less to black teachers.

Judge Barksdale won a Distinguished Service Cross in France. The VMI website has a picture of him in uniform. As the New York Times reported, at the 100th anniversary of the University of Virginia in 1921, Barksdale was part of the ceremony, presenting a plaque with the names of 80 U.Va. men who had died in World War I. Thereafter, he became a Byrd man during a short term in the General Assembly. Barksdale held the Circuit Court position previously held by his father. After Dobie went on the Fourth Circuit, Roosevelt put Barksdale on the District Court, with the approval of Glass and Byrd.

Attorney General's amicus brief in the Miller-Jenkins custody case

Here is the amicus brief recently filed by the Virginia Attorney General's office in the Miller-Jenkins custody case, which does not address the procedural issues that might sidetrack the appeal now before the Virginia Supreme Court.

Kingsport attorney Jim Humphreys

It appears from VPAP that James N.L. Humphreys has given $1,500 or more to both Senator Wampler and Delegate Kilgore.

Perhaps he is looking for that next judgeship in the 30th Circuit, and he is an old Wise Countian.

On the VTLA's donations

This article says the Virginia Trial Lawyers Association is one of the largest donors to candidates for the General Assembly in the upcoming elections.

According to VPAP, here is how the VTLA

Republican: $147,000 (49%)
Democrat: $149,250 (50%)
Other: $2,500

144 donations totaling $298,750

Candidate/Committee Contributions
Albo, David B (R-H042), $5,000
Alexander, Kenneth C (D-H089), $500
Amundson, Kristen (D-H044), $500
Armstrong, Ward L (D-H010), $6,000
Athey, Clifford "Clay" (R-H018), $1,000
Barlow, William K (D-H064), $1,500
Bell, Rob (R-H058), $1,000
Bowling, Dan (D-H003), $500
Brink, Robert H (D-H048), $500
Bulova, David (D-H037), $500
Byron, Kathy J (R-H022), $500
Caputo, Chuck (D-H067), $3,500
Carrico, Bill (R-H005), $1,000
Colgan, Charles J (D-S029), $1,000
Dance, Rosalyn R (D-H063), $500
Deeds, Creigh (D-S025), $1,000
Democratic Party of Virginia (D-PAC), $1,000
Dominion Leadership Trust PAC (R-TPAC), $3,000
Ebbin, Adam (D-H049), $500
Edwards, John S (D-S021), $1,000
Eisenberg, Albert (D-H047), $500
Englin, David (D-H045), $500
Ferguson, Eric (D-H009), $6,000
Fralin, William H Jr (R-H017), $500
Griffith, H Morgan (R-H008), $6,000
Hall, Franklin P (D-H069), $3,500
Herring, Mark (D-S033), $5,000
Houck, R Edward (D-S017), $4,500
House Republican Campaign Committee (R-PAC), $4,000
Howell, Janet D (D-S032), $2,000
Howell, William J (R-H028), $2,500
Hull, Robert D (D-H038), $500
Hurt, Robert (R-H016), $11,000
Hurt, Robert (R-S019), $2,500
Iaquinto, Salvatore (R-H084), $4,000
Janis, Bill (R-H056), $5,000
Joannou, Johnny S (D-H079), $7,500
Jones, Chris (R-H076), $1,000
Jones, Dwight C (D-H070), $500
Kilgore, Terry G (R-H001), $6,000
Lewis, Lynwood W Jr (D-H100), $2,000
Loupassi, Manoli (R-H068), $12,500
Lucas, L Louise (D-S018), $2,000
Marsden, David (D-H041), $1,500
Marsh, Henry L III (D-S016), $1,000
McClellan, Jennifer (D-H071), $500
McDougle, Ryan (R-S004), $3,000
McEachin, A Donald (D-S009), $7,000
Melvin, Kenneth R (D-H080), $1,500
Miller, John C (D-S001), $6,000
Miller, Paula (D-H087), $1,000
Moran, Brian J (D-H046), $6,000
Nichols, Paul (D-H051), $17,500
Norment, Thomas K Jr (R-S003), $5,000
Northam, Ralph (D-S006), $7,500
O'Bannon, John (R-H073), $2,000
Obenshain, Mark (R-S026), $7,000
Oder, Glenn (R-H094), $500
Peace, Christopher (R-H097), $2,000
Petersen, J Chapman (D-S034), $15,000
Phillips, Clarence E (D-H002), $500
Plum, Kenneth R (D-H036), $500
Poisson, David (D-H032), $1,000
Pollard, Albert Jr (D-S028), $2,500
Putney, Lacey E (I-H019), $2,500
Quayle, Frederick M (R-S013), $5,000
Reynolds, W Roscoe (D-S020), $5,250
Rust, Tom (R-H086), $1,000
Saslaw, Richard L (D-S035), $10,000
Scott, James M (D-H053), $500
Shannon, Stephen (D-H035), $2,000
Sickles, Mark (D-H043), $500
Stolle, Chris (R-H083), $2,500
Stolle, Kenneth W (R-S008), $15,000
Stosch, Walter A (R-S012), $5,500
Stuart, Richard (R-S028), $15,000
Suit, Terrie (R-H081), $500
Ticer, Patricia S (D-S030), $1,000
Toscano, David J (D-H057), $1,500
Va Senate Republican Leadership Trust (R-PAC), $10,000
Valentine, Shannon (D-H023), $500
Wampler, William C Jr (R-S040), $1,000
Ware, Onzlee (D-H011), $2,000
Watkins, John C (R-S010), $1,000
Watts, Vivian E (D-H039), $1,500
Welch, John (R-H021), $1,000
Whipple, Mary M (D-S031), $2,500
Williams, Martin E (R-S001), $3,500

Virginia partial-birth abortion statute back before Fourth Circuit panel of Motz, Michael and Niemeyer

This story on law.com says in part:

"An important new measure of the effect of Gonzales comes this week, when the 4th U.S. Circuit Court of Appeals re-evaluates Virginia's partial-birth abortion ban -- possibly the strictest ban in the nation -- in light of Gonzales. The high court remanded the Virginia law to the 4th Circuit just days after the Gonzales decision. . . .

Normally at the 4th Circuit, the identity of panel members is unknown in advance. But in this case, because it amounts to a sequel of the earlier litigation, the same three judge-panel that struck the Virginia law down in 2005 will hear it again. Judges M. Blane Michael and Diana Gribbon Motz, both Clinton appointees, are liberals, and both voted to strike down the Virginia law before. Judge Paul Niemeyer is a conservative appointee of President George H.W. Bush, and he dissented in 2005. . . .

The Virginia law, called the "Partial Birth Infanticide Act," also criminalizes the "deliberate" use of the intact D&E procedure. The 4th Circuit panel struck it down based on a 2000 Supreme Court decision striking down a Nebraska statute that was a precursor to Virginia's."

Here is a post on the earlier panel decision.

A point I've been arguing in one case for a couple of years now

"Standing, however, 'is a threshold jurisdictional question which must be addressed prior to and independent of the merits of a party's claims.' Dillard v. Baldwin County Comm'rs, 225 F.3d 1271, 1275 (11th Cir. 2000); EF Hutton & Co., Inc. v. Hadley, 901 F.2d 979, 983 (11th Cir. 1990)."

Judge Fay, for the Eleventh Circuit, in AT&T Mobility v. NASCAR (the Jeff Burton car case).

The Court goes on to say:

"In fact, we are obliged to consider standing sua sponte even if the parties have not raised the issue because an appellate court “must satisfy itself not only of its own jurisdiction, but also of that of the lower courts in a cause under review.” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir. 2005); see also Florida Ass'n of Med. Equip. Dealers v. Apfel, 194 F.3d 1227, 1230 (11th Cir. 1999) (stating that “every court has an independent duty to review standing as a basis for jurisdiction at any time, for every case it adjudicates.”).

On this latter point of appellate jurisdiction, incredibly enough, the law in Virginia is to the contrary:

"We have repeatedly held that challenges to a litigant's standing must be raised at the trial level, and the failure to do so precludes consideration of a litigant's standing by this Court on appeal." Martin v. Ziherl, 269 Va. 35, 39, 607 S.E.2d 367, 368 (2005).

That's weird.

One would suspect that the view attributed to Judge Dobie is more typical:

"Anyone fortunate enough to have had the late Judge Armistead Dobie as a professor will remember his hypothetical used to emphasize the ongoing obligation that a court has to insure that it properly has subject matter jurisdiction over a given case. As Professor Dobie taught, if the janitor comes into the back of the courtroom and says, "Judge, you ain't got jurisdiction," the court must stop what it is doing and determine the jurisdiction question before returning to anything else."

On the lawyer for Griswold of Griswold v. Connecticut

Via Norm Pattis, here is a recollection of Connecticut lawyer Catherine Roraback, who represented Estelle Griswold, in the case that became Griswold v. Connecticut. The NY Times had this obituary.

Day in the life

Here Ken Lammers seems to be saying that some Wise County defense lawyer earned his money.

I thought that by the end of the term, the jury thinks everyone is guilty. Or is it not guilty?

The myth of net neutrality?

A while back, I borrowed a quote from a Congressman, who said: "we asked experts to identify one example of a problem that this amendment would solve. They couldn't point to one example where a Bell-operated company or a cable company had blocked access to their networks or infringed on so-called Internet freedom."

Since then, stories like this one and this one keep making the news.

Wait for it, and the cable and telephone companies will show themselves.

This article on the latest flap concludes: "As long as the service providers control the transport there cannot be a marketplace."

That's exactly right.

On book banning

This amusing post says Pat Conroy has written a note of thanks directed at those who took two of his books out of a school library in West Virginia.

Locally, some on the Washington County School Board have been out to get Fair and Tender Ladies, by Lee Smith from Buchanan County. You'd think that if they had any sense they would pick on someone from farther afield, like any of these from the top 10 most challenged book list for 2006.

Funny thing

Today I was trying to figure out how to deal with a hearing set in Nashville in connection with an administrative subpoena, and then this opinion came out.

The judge from that Tennessee case just wrote a 187-page opinion regarding e-discovery - in a different (and evidently much more complicated) case. That's a lot of work.

One man's opinion

The Charleston Daily Mail has published here one businessman's take on the federal court ruling regarding mountaintop mining:

"Walker said that when he first read Chambers' ruling he thought, "‘This is going to hurt, because it takes a long time to wind through the appeals process.' If no new permits are going to be issued, then as the coal extraction process on respective jobs continues and a particular segment of that job is exhausted, then less coal is going to be mined. And with no new permits, you take that to its logical extent, there will be no coal industry in southern West Virginia."

Chambers' ruling "has already put a chill in this business in southern West Virginia," Walker said. He said customers are having equipment repaired but aren't buying new equipment as could otherwise be expected.

"We came off great years in 2005 and 2006 because our customers felt confident enough to invest in this industry," he said. "Walker Machinery sells equipment from $500,000 to $3 million to the surface mining part of the business. It's very expensive for a coal company to go through the permitting process, train employees, buy equipment, buy explosives, conduct safety training and pay for oil and fuel. It takes a lot of money, a lot of infrastructure. Like any business, if you feel there's an uncertainty about whether you'll be in business, the investment will stop."

Walker said his company already lost one employee over the uncertainty. The West Virginia native had returned for a job at the company but left after 30 days because of the layoff that occurred Friday. "He said he's going back to North Carolina," Walker said.

"This is the third or fourth time there's been a decision revolving around the same issues," Walker said. "(The late U.S. District Court) Judge (Charles) Hayden was overturned once or twice. Judge (Joseph) Goodwin was overturned once on similar issues. Hopefully Judge Chambers will be overturned, once it gets to the Fourth Circuit Court of Appeals.

"When Congress passed the 1977 surface mining act and all of the regulations that went with it, there was a clear intent for mining to go on," he said. "I think making up logic out of the Clean Water Act and other sources of federal legislation to contradict the intent of Congress has not been correct.

"I can understand why people may not like to look at a surface mine in operation, but it looks to me and a lot of people just like a highway being built," Walker said. "A lot of reclamation work goes back in. We take people by helicopter all of the time and show them reclamation. It takes a while -- sometimes 10, 20 years, but it's like farming, like harvesting crops. We harvest a natural resource.

"The modern coal industry does it right, sometimes not perfect, but they adhere to the law. It costs them too much to not do it correctly. The best environmental engineers in this state work in the coal industry."

Coal's opponents range "from uninformed citizens to eco-terrorists," Walker said.

"I keep reading about people glad to see coal go," he said. "What do we have, gambling, to replace it? Is that what we have reduced ourselves to? Tourism is great and tourism has grown in pretty much the same proportion as the coal industry in the last couple of years. But jobs in the tourism industry are minimum wage or a little above while ours are $20 to $25 an hour plus benefits.

"It's sad we've allowed ourselves to get a very negative bias in the media," he said. "I don't know what these people want. There's a religion now of global warming, that man has caused everything. It's hard to understand where all of this has come from in the last several years. The water coming off these mines today, going into rivers, is cleaner, almost completely cleaner than the water that's already there. The government chose not to enforce water rules against citizens, states. But it's by law we the industry can't pollute. Judge Chambers is saying valley fills, which act like sponges, and the ponds below them, are illegal. That's stupid.

"A stream has to run for six months" to be covered by the law, Walker said. ""The United States Supreme Court stated that. He (Chambers) keeps saying we're burying streams.

"If this anti-coal Southern U.S. District Court continues and this is not overturned, we're out of business," Walker said. "If you can't disturb the land -- it'll affect any disturbance of land, not just in mining, but in the construction business. I don't think you'll be able to build a house. The intention may be good but it is extremely misguided. It's going to kill the West Virginia economy because there's nothing to replace it."

Walker said he fears that if Chamber's ruling isn't overturned, "the world will go on around us" and get coal from the Powder River Basin and other sources. He said this year's coal production in southern West Virginia is down about 2 percent compared to the same period a year ago.

"I don't see our Congressional delegation or our state leadership pounding the stump every day saying, ‘This is hurtful,' ‘We need to change the law,' or ‘The judge is wrong.' They only talk about carbon sequestration, which is years away, or coal-to-liquid plants, which are being fought because there's coal in it," he said.

"We don't have an energy policy -- it's all based on perception and politics. It's sad. I don't see our government leadership fighting for West Virginia. I see the Democratic Party being very anti-West Virginia because the policies they're pushing are going to kill the energy business in West Virginia.

"We still have a basis to build an industry around if the state would let us," he said. "The state is putting more emphasis behind gambling than what brought them to the dance."

The Southwick vote

Via How Appealing, here is the vote on confirmation of Judge Southwick to the United States Court of Appeals for the Fifth Circuit, to succeed Judge Pickering, whose recess appointment expired without his obtaining confirmation from the Senate. Judge Southwick got in with the votes of 10 Democratic senators, including Feinstein from California and Byrd from West Virginia.

On the wilderness of voices and cases

"Dissenting opinions may serve as a safety valve. All too often they are but a voice crying in the wilderness - vox et praeterea nihil - gone with the wind, as have been many other worthy efforts."

Holt, C.J., dissenting, in Com. v. Jones & Robins, 186 Va. 30, 41 S.E.2d 720 (1947).

"Some great jurist has said that a dissenting opinion ‘is like the voice of one crying in the wilderness,‘ but while my dissent may be vain, yet I owe to myself, and the profession and public, to express my views upon the subject of this kind of high finance, and the attitude the courts should take towards it."

Christian, J., dissenting, in Brennan v. Rollman, 151 Va. 715, 739, 145 S.E. 260, 267 (1928).

"We have not deemed it profitable to cite or comment upon the wilderness of cases touching the subject discussed, but have been content to ascertain and to state in what direction they preponderate."

Alphin v. Lowman, 79 S.E. 1029, 1033 (Va. 1913).

"The case has been argued at great length, and with learning and ability, though the argument has taken a much wider range than is necessary to a decision of the questions presented. It is therefore impossible, within proper limits, to review all the collateral positions taken, or to trace principles remotely bearing upon the questions, through the wilderness of the cases cited. Nor is it necessary."

Millhiser Mfg. Co. v. Gallego Mills Co., 44 S.E. 760, 762 (Va. 1903).

Circuit court judge barred from courthouse?

The Norfolk paper yesterday had this mysterious story, that says Circuit Court Judge Alfred M. Tripp "has been barred from the courthouse."

The article implies that this development relates in some way to the Judicial Inquiry and Review Commission.

Unrelated to this, I guess we'll get the word from the Virginia Supreme Court next week in their November session about what they propose to do in the matter of Judge Shull from Scott County.

The assignments of error in the Randolph-Macon Women's College case(s)

Here it says the assignments of error in Record Number 070843 are these:

1. The trial court erred in holding that Appellants failed to allege a specific contract entitling them to a four-year education in a single-sex environment at Randolph-Macon Woman’s College (“R-MWC” or “College”).
2. The trial court erred in holding that the standard R-MWC letter offering admission to Appellants did not contain an express or implied promise to provide them with four years of single-sex liberal arts education.
3. The trial court erred in failing to consider properly the extrinsic evidence submitted in conjunction with Appellants’ Bill of Particulars, which alleged a contract between Appellants and R-MWC with an express or implied promise to provide Appellants with four years of single-sex liberal arts education.
4. The trial court erred in holding that Appellants’ Complaint and Bill of Particulars were too generalized to assert a cause of action for breach of contract.
5. The trial court erred in holding that any contract between the parties was only for a semester, not four years.

The assignments of error in Record Number 071248 are these:

1. The trial court erred by sustaining the Demurrer to the Complaint and/or the Amended Complaint.
2. The trial court erred by ruling that the Virginia Uniform Trust Code does not apply to the Trustees of Randolph-Macon Woman's College and the assets held by that charitable corporation.
3. The trial court erred by ruling that the Trustees of Randolph-Macon Woman's College breached no duty by voting to change the purpose of the College from the education "primarily of women" to the education of "men and women."
4. The trial court erred by ruling that the Trustees of Randolph-Macon Woman's College breached no duty by voting to change the name of the College from "Randolph-Macon Woman's College" to "Randolph College," or, alternatively, by failing to rule on that issue.
5. The trial court erred by ruling that the doctrine of cy pres is not applicable to the facts alleged in the Complaint and/or Amended Complaint.
6. The trial court erred by ruling that the petitioners lack standing to bring this action.

It seems like some of these issues are of extreme interest to other colleges in Virginia - what all makes up the contract between the college and the student?

And, ooh, the cy pres doctrine is defined here:

cy pres doctrine
n. (see-pray doctrine) from French, meaning "as close as possible." When a gift is made by will or trust (usually for charitable or educational purposes), and the named recipient of the gift does not exist, has dissolved or no longer conducts the activity for which the gift is made, then the estate or trustee must make the gift to an organization which comes closest to fulfilling the purpose of the gift. Sometimes this results in heated court disputes in which a judge must determine the appropriate substitute to receive the gift. Example: dozens of local Societies for Protection of Cruelty to Animals contested for a gift which was made without designating which chapter would receive the benefits. The judge wisely divided up the money among several S.P.C.A. chapters.

Separate and apart from these cases, the Lynchburg paper reports here and the AP reports here on an injunction suit filed against the college to stop it from selling a collection of paintings to raise funds.

Latest from NY Times

The NYT has this blog post about the upcoming Senate vote on Fifth Circuit nominee Leslie Southwick.

And, it is unspeakably lame, for reasons well stated by the commenters to the post.

The Times says:

"The question is whether he is sufficiently sensitive to civil rights issues to sit on a federal appeals court, especially one in a part of the country that has one of the highest concentrations of African-Americans, and many racially charged cases involving issues like the death penalty."

I'm not sure that is the question. The Times commentary suggests that all appeals court judges with aspirations to higher judicial offices should always write separate opinions along these lines: "I concur in the opinion (along with the Democratic appointees among my colleagues), except to the extent that it may be construed regardless of context as insufficiently sensitive to civil rights issues."

Normally, from the perspective of labor-management relations, I would have thought that the "liberal" side of a government employee termination case is on the side of preserving the individual's job, while the "conservative" side maximizes the employer's power to do as it likes. Similarly, as a matter of administrative law theory, one would suspect that affirming the agency's reinstatement of the employee would be the way of "judicial restraint," while rejecting the agency's expertise would be the "activist" position. Judge Southwick joins an opinion siding with the individual against the government, and upholding the administrative decision - and gets nailed from the Left. Yet, beyond the facts of this particular case, this precedent would support enforcing the rights of the individuals who are the victims of employment discrimination, as found by the state agency.

I've wondered why the ABA gave a thumbs down to Michael Wallace from Mississippi, but they gave Southwick a "well-qualified" rating as shown on this list, which also shows that Fourth Circuit nominee Robert Conrad, Jr., received the same rating.

Not easy at the top

I read the article about whether Richmond lawyer Duncan Getchell had something to do with the miscue in the Wintergreen case (where the transcript never got filed), and the article that said A.T. Massey was suing Wyatt Tarrant and McGuireWoods over the Harman Mining case (another case where Mr. Getchell's name is on the published appellate opinion, Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279, 568 S.E.2d 671 (2002)), where the notice of appeal was defective because it was signed only by an out-of-state lawyer, and the unpublished opinion (in a case argued by Mr. Getchell) where the Fourth Circuit affirmed the $6 million verdict for an injured soccer player claiming lost lifetime earnings. (Maybe the trial counsel should have called Jim Rome to testify about the worth and the future of soccer.)

So, when you get to be the best, any controversy generates publicity. But, while all that was going on President Bush nominated Mr. Getchell to the Fourth Circuit, so I guess he has had at least some fun in the last couple of months. And, indeed, the Richmonders I've heard say he is a superb lawyer whose nomination ought to be confirmed.

On pleading fraud with particularity

In federal court, you begin with the rule of Harrison v. Westinghouse Savannah River Co., 176 F.3d 776 (4th Cir. 1999), in which the Court of Appeals stated that “the ‘circumstances’ required to be pled with particularity under Rule 9(b) are ‘the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.’” 176 F.3d at 784. In pleading fraud against multiple defendants, the plaintiff “must identify, with particularity, each individual defendant’s culpable conduct; defendants cannot be grouped ‘together without specif[ication of] which defendant committed which wrong.’” Arnlund v. Smith, 210 F. Supp.2d 755, 760 (E.D. Va. 2002). Compare Juntti v. Prudential-Bache Securities, Inc., 1993 WL 138523 at *2 (4th Cir.) (“It is not sufficient to argue that ‘[e]ach count . . . incorporates the factual allegations of the Complaint, which specify each defendant’s individual conduct’”); Adams v. NVR Homes, Inc., 193 F.R.D. 243, 251 (D. Md. 2000) (“where there are multiple defendants, plaintiffs must, where the gravamen of the claim is fraud, allege all claims with particularity as to each of the defendants”). In addition, the plaintiff must plead facts showing reliance. See Kline v. Nationsbank, 886 F. Supp. 1285, 1295-96 (E.D. Va. 1995) (granting motion to dismiss fraud claim for failure to comply with Rule 9(b) where plaintiff generally alleged reliance without stating any facts about how she relied on the particular representation). Non-compliance with Rule 9(b) is grounds for dismissal under Rule 12(b)(6). See Harrison, 176 F.3d at 783 n.5; Lasercomb America, Inc. v. Reynolds, 911 F.2d 970, 980 (4th Cir. 1990) (“a complaint which fails to specifically allege the time, place and nature of the fraud is subject to dismissal on a Rule 12(b)(6) motion”).

In Virginia state court, “[w]here fraud is relied on, the pleading must show specifically in what the fraud consists, so that the defendant may have the opportunity of shaping his defence accordingly, and since fraud must be clearly proved it must be distinctly stated.” Mortarino v. Consultant Engineering Services, 251 Va. 289, 295, 467 S.E.2d 778, 782 (1996). “[T]he rule is well established that fraud must be clearly alleged in order that evidence intended to prove fraud may be admitted.” Brooks v. Bankson, 248 Va. 197, 206, 445 S.E.2d 473 (1994) (citing cases). Because of the ease with which a plaintiff might otherwise seek to expand an ordinary contract or negligence claim into fraud with the addition of a few words in a pleading, Virginia law requires that “[a]s in federal practice, charges of fraud must be pleaded with ‘particularity.’” Middleditch & Sinclair, Virginia Civil Procedure 385 (2d ed. 1992) (citing cases).

Isn't that the law, or did I just make it all up? Sometimes I wonder - just when I think I've got one little corner figured out, someone says blah-blah-blah, that's not the law.

Some links

Here from the Newport News paper is a light-hearted report on the swearing in of Justice Goodwyn.

This story from the Norfolk paper tells that the anti-ice cream truck ordinance in Portsmouth has been deemed unconstitutional.

U.Va. reports here that Judge Wilkinson's daughter got a clerkship with Chief Justice Roberts.

Here's the New York Times take on the chaos among the parts of the government of the City of Richmond.

Last week, the Bristol paper had this obituary for Circuit Court Judge Aubrey Matthews, which said in part: "Judge Matthews received both his undergraduate and law degrees from Washington and Lee University. This education was separated by his Naval service in the 88th SeaBees Battalion during the South Pacific campaign of World War II. He practiced general law in Marion from 1948 to 1965, during which time he also served four years as Smyth County's commonwealth attorney. He was appointed to the 28th Circuit Court bench in 1965 and served until his retirement in 1986. He was the only Smyth Countian to be appointed as a circuit court judge in the twentieth century."

Judge Welsh told me that Judge Matthews never liked to write opinions.

U.Va. law alumni mostly likely to offer tricky clues

I never knew it, but it says here that famed crossword puzzle maker Will Shortz is an alumnus of the law school of the University of Virginia.

A visit to SWAC Country

I went to Staunton last weekend for the meeting of the board of governors of The Virginia Bar Association.

At the dinner on Friday night among the locals in attendance was Magistrate Judge James G. Welsh, who I had not met before. He is an excellent fellow, who seems to know personally or have known or have heard about every lawyer of note in the Western District of Virginia since 1950, or maybe 1900.

His wife told this story, of Judge Welsh trying a case before Judge Widener when Judge Widener was on the District Court (which was in period from 1969 to 1972):

Welsh was an AUSA, and in this particular trial, whenever one of the witnesses gave some particularly useful testimony, he would say to the witness, "I'm sorry, I didn't hear that, could you repeat what you just said?" Judge Widener was not fooled by this technique, and declared that "if the United States attorney loses his hearing one more time, he will be held in contempt."

I did not tell Judge Welsh of my favorite story ever told by Harrisonburg lawyer Cathleen Welsh, whom I suppose is no relation to the judge, either.

Also at dinner I sat with the fellow who is executive director of Blue Ridge Legal Aid, John Whitfield and his wife.

I did not see the SWAC Girl in my short trip to Staunton, but noticed that she has been posting some excellent photographs.

On Jason Ray, revisited

On ESPN, they are telling the powerful story of the fellow who was the Tar Heel mascot, and lives on through others.

On being a Minor Wikipediast

I was amused by my recent additions to Wikipedia, until I read of the prior case of William Chester Minor - physician, murderer, lunatic - and extensive contributor to the Oxford English Dictionary.

Arbitrator gets to decide choice of law and venue

In Burress v. John Deere Constr. & Forestry Co., Judge Wilson ruled in the matter of a dispute subject to arbitration that the arbitrator would get to decide which state's law applies and where the arbitration would be held.

I'm not sure about that last part - where the arbitration is held could have osme effect on where subsequent court action to enforce or overturn the award has to be brought. 9 U.S.C. 9 ("If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made."). Does the arbitrator get to decide where his award will be reviewed? Perhaps so.

On hobbling the press

If a picture is worth 1,000 words, then this editorial in the Bristol paper, criticizing Judge Kirksey's gag orders in high-profile murder cases, makes me wonder: since the newspaper frequently can't get the words right, why not let them have a few pictures?

On Grisham

In Charlotteville over the weekend, both The Hook and C-Ville Weekly had articles about a defamation suit brought in federal court in Oklahoma against John Grisham by a prosecutor and investigator on the wrong side of the case against The Innocent Man.

Maybe he said "oom" and the officer was listening upside-down

From the Court of Appeals -

"When Jenkins kissed the baggie, waved it around, and pronounced a celebratory 'Woo,' he hardly displayed a level of merriment appropriate for a thimble-full of flour, baking soda, or salt."

Judge Kelsey, in Com. v. Jenkins.

Judges of the W.D. Va.

Now on Wikipedia -

The first judge of the W.D. Va was John G. Jackson, who married a sister of Dolley Madison, got shot in a duel while he was in Congress, and served on the commission that met at Rockfish Gap to decide where to locate the University of Virginia. He was appointed by James Monroe in 1819.

The second judge of the W.D. Va. - Philip Pendleton - was also on the Rockfish Gap commission - and voted for Lexington. Pendleton and his successor Alexander Caldwell were both recess appointments of John Quincy Adams. Jackson, Pendleton, and Caldwell were all from counties that are now part of West Virginia.

The fourth judge of the W.D. Va., Isaac Pennybacker, got a recess appointment from Martin Van Buren at age 34, resigned from the bench and became a U.S. Senator, and was named by James K. Polk to the very first Board of Regents of the Smithsonian Institution.

The fifth judge of the W.D. Va. was John White Brockenbrough, who started the law school at Lexington, and who opposed secession but quit his judgeship to join the Confederacy. After the war, Brockenbrough was the one who put to Robert E. Lee the idea of joining up with Washington College. Brockenbrough's successor, John Jay Jackson, Jr., the grandson of John G. Jackson, was appointed by Abraham Lincoln and held court in the western Union counties until they became West Virginia, then served on as district court judge in West Virginia for another forty years, becoming known as the "Iron Judge."

During the Civil War and after, there was no Western District of Virginia. The federal courts were consolidated into the District of Virginia, and the only judge was the abolitionist John C. Underwood. When the Western District was recreated, the next judge was Alexander Rives, who became a federal judge after he was not re-elected to the Virginia Supreme Court and lost an election for Congress. In the Congressional race, Rives got his opponent's civil rights restored without charging the usual fee, and bragged about it until the opponent paid the fee to shut him up on that issue.

After Rives retired, Judge Robert W. Hughes of the Eastern District, who had a home in Abingdon, came and heard cases in the Western District for a while. Hughes had gone over from being a rabid secessionist to becoming a Republican, a transformation that led to a duel with the writer of a newspaper editorial against him. Unlike Judge Jackson, Hughes walked away from his duel, having shot the newspaperman.

Rives was eventually succeeded by Judge John Paul. Judge Paul resigned his seat in Congress to take his judgeship, during the pendency of what would become a successful challenge to the outcome of the election.

To replace Judge Paul, Theodore Roosevelt gave a recess appointment to Henry Clay McDowell, a great-grandson of Henry Clay.

Of Judge McDowell, Judge Emory Widener told this story:

"Judge Henry Clay McDowell was presiding and, after a strenuous trial of several days, directed a verdict in favor of the defendant. The lawyer representing the plaintiff was Dan Trigg, a giant of the bar and the leading lawyer in Western Virginia. Judge McDowell bent over to tie his shoe, and the bench, at that time being elevated some two feet above the floor of the courtroom, screened him from the sight of everyone in the room. “Damn a federal judge anyhow,” Mr. Trigg exclaimed, being audible to all. Judge McDowell, of course, heard the remark, but remained stooped over and left the courtroom by a door just behind the judge's chair so that no one knew he was in the room. He later summoned all the other lawyers in the courtroom to his chambers and said that he had heard Mr. Trigg's remark. He asked the lawyers if anyone in the room knew that he had heard it. When the lawyers advised him that no one had, he stated the rule that lawyers had a constitutional right to cuss the judge and, since Mr. Trigg didn't know he had been heard, he was not going to be fined." "Remembering the Fourth Circuit Judges: A History from 1941 to 1998," 55 Wash. & Lee L. Rev. 471, 473 (Spring 1998).

McDowell practiced law for a while in Big Stone Gap and made the acquaintance of the author John Fox, Jr., who included him as a character in one of his books. McDowell served for thirty years, and his replacement, John Paul, Jr., was the son of his predecessor.

The second Judge Paul graduated from VMI, soldiered in Europe in World War I, and attended the Republican National Conventions in 1912, 1916, 1920, and 1924, before he was made U.S. Attorney in 1929 and District Judge in 1932. He was the last of the W.D. Va. judges to work alone. A second position on the W.D. Va. was created, but the first nominee didn't last long - the Senate rejected Floyd Roberts from Bristol, another recess appointee, by a vote of 72-9.

Roberts' nomination became a point of contention between Franklin Roosevelt and Senator Carter Glass from Virginia, about whether Roosevelt should consult with the Senators on federal positions in the Commonwealth. When Glass complained about reports that Roosevelt had promised veto power to Virginia's Governor James Price, and that Glass had not been consulted over the nomination of Roberts, Roosevelt responded that "Senator Glass that he had not been consulted over Roberts' selection, Roosevelt responded "that he was happy to consult Glass, but reserved the right to consult others, including, if he wished, 'Nancy Astor, the Duchess of Windsor, the WPA, a Virginia moonshiner, Governor Price or Charlie McCarthy.'" Glass and the Senate were unamused.

Roberts was succeeded by Armistead Dobie, who went on to the Fourth Circuit shortly thereafter, and among other things, wrote his own history of the judges of the District. Hon. Armistead M. Dobie, "Federal District Judges in Virginia before the Civil War," 12 F.R.D. 451 (1951,1952).

Fourth Circuit affirms rulings in Novell v. Microsoft anti-trust case

In the case of Novell v. Microsoft, the Fourth Circuit in an opinion by Judge Shedd, joined by Judge Duncan, affirmed the trial court rulings granting dismissal of some but not all of Novell's anti-trust claims in MDL litigation against Microsoft.

The two claims that were not dismissed related to operating systems; the other claims, held to be time-barred, related to word processing and spreadsheet software programs.

The Court overruled Microsoft's argument that Novell lacked standing for anti-trust remedies related to operating systems, while observing: "We do not view our decision with respect to Novell as unduly expanding the universe of private antitrust plaintiffs." I guess that remains to be seen, although perhaps what the ruling on standing giveth, the statute of limitations takes away for the losers in the computer business of the 1990s. On limitations, the Court held that Novell's claims were not tolled by the government anti-trust actions brought against Microsoft by the U.S. Department of Justice and other governments.

On Justice Goodwyn

I was out and about when the word came down that Governor Kaine has selected Circuit Court Judge S. Bernard Goodwyn to succeed Justice Lacy on the Virginia Supreme Court. Here is the press release from the Governor's office. The Attorney General released this statement supporting the confirmation of Goodwyn in the upcoming General Assembly session.

Here is a reprint of the article about him in the Norfolk paper when he was appointed to the District Court in 1995. Here is a similar article from when he was appointed to the Circuit Court in 1997. Here is yesterday's article by Warren Fiske, which notes: "Goodwyn was an honor student at Southampton County High School and quarterbacked the football team to a 1979 state championship, a 56-6 drubbing of Gate City High whose roster included Jerry Kilgore, the Republican nominee for governor in 2005. Goodwyn threw for two touchdowns and ran for one in the game." Before becoming a judge, Goodwyn was with the Willcox & Savage firm in Norfolk - the same firm as U.S. District Court Judge Walter Kelley.

Here is the article from the Washington Post, and here is a story from the Richmond paper.

Which birthday was it on Saturday?

Think Richard Petty.

(Photo from this flickr source).

On getting barred from the 27th Circuit

The Roanoke Times reports here that Circuit Judge Showalter has "taken the unusual step of barring a Christiansburg lawyer from practicing law in his judicial circuit.."

District Court decision affirmed in Virginia open primary case

Today, in Miller v. Brown, the Fourth Circuit in an opinion by Senior Judge Wilkins, joined by Judge Duncan, affirmed in its entirety the prior decision by District Judge Henry Hudson in the open primary case, rejecting the issues raised by the plaintiffs and the election officials.