You knew that was coming one of these days

It says here that some Southwest Virginia landowners have filed suits in Abingdon federal court seeking to have class actions certified against Equitable and CNX for cheating landowners out of billions of dollars in connection with the production of coalbed methane.

Among other things, the Complaints seek judgment that Virginia Gas Act is unconstitutional.




UPDATE: The Equitable complaint is here and the CNX complaint is here.

Former Justice Souter's graduation speech at Harvard

In this speech, former U.S. Supreme Court justice David Souter tries to debunk criticisms of liberal judicial activitism, the gist of which is that not all Constitutional questions are as simple as the minimum age of U.S. Senators.

Eat a good breakfast (or not)

This story about the Duke law student who fainted during oral argument in the Fourth Circuit reminds me of court appearances when I wished I had eaten less for breakfast.

The sheriff said it

This story from the Galax paper describes how the Sheriff of Grayson County tackled a fleeing suspect in a field of Christmas trees.

The article concludes: "Sheriff Vaughan stated that Proverbs 28:1 is correct in that 'only the wicked flee when no man pursueth.'"

What is the interstate commerce nexus of the health care reform bill?

The lawsuit filed by Virginia's Attorney General challenges the authority of Congress acting under the Interstate Commerce clause of the U.S. Constitution to require the purchase of health insurance. The Complaint cites a report by the Congressional Research Service, which analyzes the constitutionality of such a requirement.

What the so-called "Patient Protection and Affordable Healthcare Act" says about the nexus between interstate commerce and the so-called "individual responsibility requirement" is this:

(a) FINDINGS.—Congress makes the following findings:
(1) IN GENERAL.—The individual responsibility requirement
provided for in this section (in this subsection referred to as
the ‘‘requirement’’) is commercial and economic in nature, and
substantially affects interstate commerce, as a result of the
effects described in paragraph (2).
(2) EFFECTS ON THE NATIONAL ECONOMY AND INTERSTATE
COMMERCE.—The effects described in this paragraph are the
following:
(A) The requirement regulates activity that is commercial
and economic in nature: economic and financial
decisions about how and when health care is paid for,
and when health insurance is purchased.
(B) Health insurance and health care services are a
significant part of the national economy. National health
spending is projected to increase from $2,500,000,000,000,
or 17.6 percent of the economy, in 2009 to
$4,700,000,000,000 in 2019. Private health insurance
spending is projected to be $854,000,000,000 in 2009, and
pays for medical supplies, drugs, and equipment that are
shipped in interstate commerce. Since most health insurance
is sold by national or regional health insurance companies,
health insurance is sold in interstate commerce and
claims payments flow through interstate commerce.
(C) The requirement, together with the other provisions
of this Act, will add millions of new consumers to the
health insurance market, increasing the supply of, and
demand for, health care services. According to the Congressional
Budget Office, the requirement will increase the
number and share of Americans who are insured.
(D) The requirement achieves near-universal coverage
by building upon and strengthening the private employerbased
health insurance system, which covers 176,000,000
Americans nationwide. In Massachusetts, a similar requirement
has strengthened private employer-based coverage:
despite the economic downturn, the number of workers
offered employer-based coverage has actually increased.
(E) Half of all personal bankruptcies are caused in
part by medical expenses. By significantly increasing health
insurance coverage, the requirement, together with the
other provisions of this Act, will improve financial security
for families.
(F) Under the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1001 et seq.), the Public Health
Service Act (42 U.S.C. 201 et seq.), and this Act, the Federal
Government has a significant role in regulating health
insurance which is in interstate commerce.
(G) Under sections 2704 and 2705 of the Public Health
Service Act (as added by section 1201 of this Act), if there
were no requirement, many individuals would wait to purchase
health insurance until they needed care. By significantly
increasing health insurance coverage, the requirement,
together with the other provisions of this Act, will
minimize this adverse selection and broaden the health
insurance risk pool to include healthy individuals, which
will lower health insurance premiums. The requirement
is essential to creating effective health insurance markets
in which improved health insurance products that are
guaranteed issue and do not exclude coverage of preexisting
conditions can be sold.
(H) Administrative costs for private health insurance,
which were $90,000,000,000 in 2006, are 26 to 30 percent
of premiums in the current individual and small group
markets. By significantly increasing health insurance coverage
and the size of purchasing pools, which will increase
economies of scale, the requirement, together with the other
provisions of this Act, will significantly reduce administrative
costs and lower health insurance premiums. The
requirement is essential to creating effective health insurance
markets that do not require underwriting and eliminate
its associated administrative costs.
(3) SUPREME COURT RULING.—In United States v. South-
Eastern Underwriters Association (322 U.S. 533 (1944)), the
Supreme Court of the United States ruled that insurance is
interstate commerce subject to Federal regulation.

H.R. 3590, section 1501(a)(1)-(a)(3).

Is it illegal to refuse to answer the census questions?

Section 221 of the Title 13 of the United States Code says this:

(a) Whoever, being over eighteen years of age, refuses or willfully neglects, when requested by the Secretary, or by any other authorized officer or employee of the Department of Commerce or bureau or agency thereof acting under the instructions of the Secretary or authorized officer, to answer, to the best of his knowledge, any of the questions on any schedule submitted to him in connection with any census or survey provided for by subchapters I, II, IV, and V of chapter 5 of this title, applying to himself or to the family to which he belongs or is related, or to the farm or farms of which he or his family is the occupant, shall be fined not more than $100.

(b) Whoever, when answering questions described in subsection (a) of this section, and under the conditions or circumstances described in such subsection, willfully gives any answer that is false, shall be fined not more than $500.

(c) Notwithstanding any other provision of this title, no person shall be compelled to disclose information relative to his religious beliefs or to membership in a religious body.

Whatever that means, who knows the limits of what is a "census or survey provided for by subchapters I, II, IV, and V of chapter 5 of this title"?

Congratulations

The United States Senate approved the nomination of Justice Keenan of the Virginia Supreme Court to the United States Court of Appeals for the Fourth Circuit, and so the former Justice might not ever again be required to sit before a gang of legislators and have to defend her jurisprudence.

Here is one group's take on Justice Keenan's record on the Supreme Court as evidenced by the opinions she wrote, although I always understood that the majority opinions are more or less assigned at random and so really the dissents are the ones I find most illuminating.

On the W.D. Va. judgeships

VLW reports that Judge Norman Moon of the W.D. Va. is taking senior status, which means that President Obama will have an opportunity to nominate a candidate to replace him, subject to the advice and consent of the United States Senate.

A little while ago, I was added to the Virginia Bar Association Committee on Federal Judgeships for the Western District, and so it appears this committee headed by my old friend Howard McElroy will have reason to meet in the near future.

Hey, what about 276?

"We wanted to recruit the state and make sure that the players in all areas that we have an opportunity to present ourselves, what we have to offer," London said. "Whether it's 757, 804, 703, 434, whatever area code it is, we're going to try to do the best in those areas."

U.Va. football coach Mike London, quoted in the Washington Post.

Senator Puckett on Fox News

Just saw Senator Puckett on with Greta Van Susteren, explaining the vote in the Virginia Senate to reject one element of the health care reform being debated in the U.S. Congress. What good it does for the General Assembly to vote on such things was not really discussed.

More on Judge Glen Williams

This is more or less the text of a speech I gave to a gathering of a few hundred friends of Judge Williams in 2002, and the judge liked it at the time, and now he cannot hold me in contempt of court for republishing it:

I was going to speak as a former law clerk at a ceremony for Judge Williams some years ago, but I couldn’t make it, so Randy Lowe spoke instead. Later, I asked Mona which stories he told, and she said he told the one about Judge Williams and the old woman with the outhouse in St. Charles. There are no outhouses in any of my stories.

Just before my clerkship started, I met a woman newspaper owner from here in Abingdon and told her I was going to work for Glen Williams, She said, “I love Judge Williams. He always hugs me and kisses me whenever we meet. None of the other judges do that.” That was in 1989, and ever since, I’ve often seen the judge give a hug to the women who come to see him. I understand that now Judge Williams is saying that since his eyesight is poor, he has to get up really close to people to see who they are. If it turns out to be a woman, since he’s already there, he might as well give her a hug.

There has never been a day when I have been with Judge Williams and he did not laugh, usually at himself. I worked for him during the last big coal miners’ strike, which got a lot of publicity, and during that time, the judge read to us a letter from an old acquaintance who had seen him on one of the TV reports, and the letter went something like this: Dear Glen, she wrote. It has been some years since last we met. I saw you on the news the other night. You looked terrible, and your voice is all wrong for television, and those clothes are so out of fashion. But oh how I loved watching you – to have those words of wisdom come out of that face, in that voice.

Maybe the best part about being a law clerk is that even after your clerkship is over, you still can talk to Judge Williams from time to time for help in understanding the real world.

There was a period of time in which I helped defend lawsuits against three governing boards. One board included the judge’s brother Don, another had his brother Lowell, and the third had Judge Williams himself. One day I told the judge about all this, and that I could only conclude that if there’s a board and one of the Williams boys is on it, there is going to be trouble. The judge said “Steve, anyone in Lee County could have told you that.”

On another trip back to the judge’s office, the judge introduced me to his latest law clerks, and he told them I did good work for him, and I had to correct him, explaining that no, I was surely the worst law clerk you ever had, because two of the opinions I wrote were reversed. The judge said “I wish you hadn’t said that, I had these boys thinking I’d never been reversed.” (That’s boys, pronounced like baw-eez with two syllables.) The judge was curious and asked what the cases were, and when I started telling him that one was a bankruptcy case, the judge cut me off, and said, “oh, bankruptcy, why, you might as well flip a coin.”

Judge Williams told me once that he took comfort in the fact that on those few occasions when one of his cases went all the way to the United States Supreme Court and they decided the case the other way, the vote was always 9-0. That way he knew for sure he was well and truly wrong, he said, and that a little more work on his opinion would not have made any difference.

I’m not sure, however, that the judge is always entirely in agreement with the appeals courts. I worked on a land use case involving property in downtown Jonesville. Judge Williams was opposed to the project, but Judge Quillen ruled that it could proceed, and the town appealed. After the Virginia Supreme Court affirmed Judge Quillen’s ruling, I mentioned this to Judge Williams, who replied, “well, Steve, they got it wrong of course, but I’m sure they tried their best.”

The hardest thing about being a former law clerk is when the judge, my own judge, my favorite judge - rules against me.

At one hearing, Judge Williams started calling me “John,” not once but over and over. The lawyer on the other side of the case, a high-powered guy from a big firm in Richmond, got in on the act and started calling me “Mr. Thornton.” Finally I said, “Judge, you all can call me any name you like, so long as you grant my motion.”

In another case, the other lawyer and I were arguing in chambers and I told the judge the plaintiff was going for punitive damages. The judge asked if this was true. The other lawyer said yes it was. I guess Judge Williams was trying to help me out when he replied, “why, no, Mr. Minor’s clients weren’t malicious, they were just dumb.”

Once I explained to Judge Williams that nothing is more painful for me as a former clerk than when he rules against me – it was like being rejected by my grandfather. The judge considered this and said “no wonder I rule against you, you haven’t got any tact. I’m not old enough to be your grandfather.” I guess Judge Williams must know that my grandmother over in Jonesville, is at least 83 years old, and so in his opinion that makes her much, much older than anyone born after 1919.

Maybe “grandfather” was the wrong word. In one of those lawyer books by Scott Turow, there’s a character who explains the relationship between a judge and his law clerks, and she says that just like a race horse is always known by its sire and dam, the law clerk throughout his legal career is always known by the judge for whom he clerked. So like the character in that book, let me say, that it is my proudest heritage as a lawyer to be known always as a Judge Williams’ clerk. Thank you, Judge Williams, and congratulations on 25 years.

P.S., make that 34 years.

On Judge Williams

The word is out that Judge Glen M. Williams is retiring altogether from his position as senior judge of the United States District Court for the Western District of Virginia. Judge Williams was appointed in 1976.

A few of the posts I have written about Judge Williams are collected here. It has been almost twenty years since my clerkship with him ended.

On getting old and deciding when to quit, he often retold some version of this story attributed to Justice Field.

I've heard that Judge Jones will take over the pending cases except for conflicts. One of our cases was reassigned last week from Judge Williams to Judge Turk.

Who's up for re-election this year?

One never knows what's going on, but I know that Judge Tate from the 28th District is up for reappointment, as are I think Judges Moore and Vanover from the 29th Circuit. Who else?

As is the custom here, I invite those three to tell anybody I'm for them or against them, whichever bests suits their purposes.

One of those gratuitous offensive things that governors are allowed to do on their way out the door

Governor Kaine started the process for Jens Soering to be transferred to Germany and released from prison, as reported here, which seems like a lucky break for Soering on top of the fact that but for his status as a German national he would have likely received the death penalty years ago.

What would Judge Williams say about this

The latest gas article by Daniel Gilbert says that the General Assembly might not act to rationalize the gas royalty escrow problem because of the pending lawsuit filed by Shea Cook, which makes me think of the similar argument made against the Guarantee Clause litigation before Judge Williams, where the Funds argued that the litigation would stop Congress from fixing the problem. Judge Williams famously wrote:

"If Congress is so wimpish and weak that it is swayed by a lowly district court's judgment which may give temporary relief to a few elderly and widows, and fails to act on a long term solution to the problem then, in the court's view, Congress never intended to act in the first place. The court would encourage Congress to continue its search for a solution. If the government can bail out New York City, the savings and loan industry, and Chrysler Corporation, whose losses were due to their own neglect, surely it can find a solution to the ills of a few health care beneficiaries in the hills of Virginia, whose plight is not of their own making."

Doe v. Connors, 796 F. Supp. 214, 224 (W.D. Va. 1992).

On the late George Warren

George Warren died yesterday, as the Bristol paper reports here.

When I was a young lawyer, I took court-appointed criminal cases because that was the thing to do, and the prosecutor here was George Warren. And, whenever I got some cases, I would go see Mr. Warren before plea day, and he would explain to me in colorful terms how my client was a scoundrel and nothing but a scroundrel, and tell me a few stories, and I never kept score but the odds are that we laughed out loud at every such meeting. He was a good man and a good lawyer and good friend to thousands, including me.

The more Virginia governors you know, the more you like the single term limit?

So says Larry Sabato, more or less, in Va.'s McDonnell seeks end to term limit - Washington Times:

"The more Virginia governors I've known, the more grateful I've been for the one-term limit. I say that tongue-in-cheek; I like many of them. The arrogance of power is something that citizens need to consider," Mr. Sabato said.

Judge Conrad's latest dismissal of the Equity in Athletics case

Here is the opinion in EIA v. Department of Education, wherein Judge Conrad of the W.D. Va. dismissed the latest incarnation of the lawsuit challenging the federal government's interpretation of Title IX of the Education Amendments as applied to the athletic programs of the Virginia's public colleges and universities.

So, there is still no joy for the men's swimming and diving, track and field, cross country, and wrestling teams at JMU.

More on gas in Virginia

Here are more parts of the Daniel Gilbert series on natural gas in Southwest Virginia, which I recommend no matter which side of things you're on.

Part Three explains the Harrison-Wyatt decision, about the ownership of coalbed methane under particular deed language.

Part Four says the coal companies still claim coalbed methane, despite the Harrison-Wyatt decision.

Part Five takes on Wachovia's role with the escrowed funds.

Part Six says sometimes gas companies don't pay, or get the paper work right, and nobody is checking up on them.

On firefighters getting promoted at the courthouse not the firehouse

In Wesley v. Arlington County, the Fourth Circuit in a 2-1 unpublished decision reversed summary judgment for the County, in a case where the plaintiff alleged that she was denied promotion on account of her race and gender. Judge Wilkinson dissented, pointing out that the other candidates were more experienced and the plaintiff had some performance issues, and concluded: "This case is, however, regrettably weak. The promotion in question should be earned at the stationhouse -- not the courthouse."