More on tie-breaking in the Virginia Senate

The Washington Post reports here and the Washington Times reports here that Democrats in the Virginia Senate will file suit for a determination of the powers of the Lieutenant Governor to break tie votes on the organization of the Senate.

Worth reading

This piece in the Baltimore Sun asks whether recent criminal cases show that the Fourth Circuit has become more "liberal."

Following the Supreme Court's decision to take up the cases, a series of articles appeared over the weekend denouncing the ethics of Supreme Court justices in anticipation that they will vote to overturn the Affordable Care Act, including here, here, here, and here.

Some U.Va. students are trying to get the University to stop using coal to heat its buildings, according to this story in the Charlottesville paper. The article did not say whether they think the coal money that went into the Carl Smith Center should also be sent back.

The executive director of Lenowisco was quoted in this article suggesting that the Santa Train perpetuates negative stereotypes of Southwest Virginians as people who cannot afford to buy their own candy and gifts.

Who can defend Proposition 8?

In Perry v. Brown, the California Supreme Court held today that the proponents of Proposition 8, the referendum that amended the California constitution to prohibit same-sex marriage, have standing to appeal the federal judgment that the state constitutional amendment violated the United States Constitution, where California officials including the new governor have refused to try to defend the amendment. The decision clears the way for the Ninth Circuit to decide the constitutional issue on the merits.

The amendment at issue added section 7.5 to the California constitution, which provides: "Only marriage between a man and a woman is valid or recognized in California."

The California decision is interesting in its contrast with the Fourth Circuit decision in the health care case, where Virginia officials were held to have no standing to challenge the federal law.

In the photograph are Governor Brown and former Mayor Newsom, both opponents of Proposition 8.

Which ties can the Lieutenant Governor break?

The Virginia Constitution provides that "[t]he Lieutenant Governor shall be President of the Senate but shall have no vote except in case of an equal division." Va. Const. Art. 5, section 14.

Starting next year, the Virginia Senate will be split 20-20, when it votes along party lines. There has been reporting in the blogs and other media that the Republicans are refusing to "share power" in the organization of the Senate, such as the representation on committees.

In 1996 Va. Op. Atty. Gen. 31, 1980-1981 Op. Va. Att'y Gen. 97, and 1979-1980 Op. Va. Att'y Gen. 178, the Attorney General has offered opinions about which ties the Lieutenant Governor can and cannot break.

In the 1996 opinion, the Attorney General concluded that the Lieutenant Governor could not provide the tie-breaking vote on matters subject to the provisions of Article XII, section 1: "Any amendment or amendments to this Constitution may be proposed in the Senate or House of Delegates, and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, the name of each member and how he voted to be recorded, and referred to the General Assembly at its first regular session held after the next general election of members of the House of Delegates. If at such regular session or any subsequent special session of that General Assembly the proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the General Assembly to submit such proposed amendment or amendments to the voters qualified to vote in elections by the people, in such manner as it shall prescribe and not sooner than ninety days after final passage by the General Assembly."

In the later 1980 opinion, the Attorney General concluded that the Lieutenant Governor could not provide the tie-breaking vote on matters subject to this provision of Article IV, section 11: "No bill which creates or establishes a new office, or which creates, continues, or revives a debt or charge, or which makes, continues, or revives any appropriation of public or trust money or property, or which releases, discharges, or commutes any claim or demand of the Commonwealth, or which imposes, continues, or revives a tax, shall be passed except by the affirmative vote of a majority of all the members elected to each house, the name of each member voting and how he voted to be recorded in the journal."

Similar language regarding the votes of the "members elected to each house" appears in Article IV, section 6, pertaining to legislative sessions; Article V, section 6, pertaining to overriding vetoes; Article VI, section 7 pertaining to the selection of judges; Article VII, section 1, pertaining to special acts for localities; Article IX, section 1, pertaining to changing the number of State Corporation Commissioners; Article X, section 9, pertaining to state debt; and Article XII, section 2, pertaining to constitutional conventions.

The earlier 1980 opinion concluded that there was no similar limitation that would prohibit the Lieutenant Governor from voting to break a tie vote on the ratification of an amendment to the United States Constitution, but held that the Rules of the Senate might control whether the Lieutenant Governor got to vote.

The organization of the General Assembly is controlled by Article IV, section 7, which provides: "The House of Delegates shall choose its own Speaker; and, in the absence of the Lieutenant Governor, or when he shall exercise the office of Governor, the Senate shall choose from its own body a president pro tempore. Each house shall select its officers and settle its rules of procedure. The houses may jointly provide for legislative continuity between sessions occurring during the term for which members of the House of Delegates are elected. Each house may direct writs of election for supplying vacancies which may occur during a session of the General Assembly. If vacancies exist while the General Assembly is not in session, such writs may be issued by the Governor under such regulations as may be prescribed by law. Each house shall judge of the election, qualification, and returns of its members, may punish them for disorderly behavior, and, with the concurrence of two-thirds of its elected membership, may expel a member." Nothing in this provision on its face would appear to limit votes to "members elected to each house" in the same way as Article IV, section 11, or Article XII, section 1.

What has changed in pest control since 1989?

The Virginia Supreme Court would seem to have gotten it wrong in one of its two decisions dealing with the non-compete clause used by a pest control company, having reached the opposite conclusion in 2011 from what it held in 1989.

Justice McClanahan, in her dissent, observed that such a fundamental shift in so short a time is an offense against the Rule of Law.

I recall having an oral argument before the late Judge Richard Williams of the Eastern District some years ago, in my only (and somewhat terrifying) appearance before him, and when he asked me about some old precedent that I tried to dismiss as too old, he laughed and said, "so you're saying the Age of Enlightenment set in sometime after that decision, and you know better now than the Supreme Court did back then?"

The Home Paramount firm, the employer in both cases, has branched out beyond termites and will also take care of those stinkbugs, according to their website.

The online business entity records of all 50 states on one page

I was working on a project where I wanted to see what a corporation on the other side said in its corporate filings with the various states, and found this page, with links to the equivalent of the Virginia State Corporation Commission for all of the states.

And, it struck me that the SCC's online presence was sort of middle of the road compared to the other states - some of them make you pay to see much of anything, some have more detailed information, Virginia is better than most in that now you can download annual reports in PDF without getting a password or sending in a check.

Some states require the corporation to provide the names and addresses of its officers and directors. This information might be useful as evidence when there is a dispute of fact over a corporation's "principal place of business" for purposes of diversity jurisdiction. Under the Supreme Court's 2010 decision in Hertz Corp. v. King, the issue is reduced to where are the high level officers. Or so I have concluded from such opinions as Central West Virginia Energy Co. v. Mountain State Carbon, LLC, where the Fourth Circuit applying Hertz held that a company that mostly operated in Wheeling, West Virginia, and was even called "Wheeling" nevertheless had its principal place of business not in Wheeling but in another state.

I am a fan of Virginia's current State Corporation Commission, as the current Commissioners include Judy Jagdmann, and also interested by the facts that it was the only progressive product of Virginia's 1901 Constitutional Convention and that one of the early Commissioners was William Rhea, the original judge of the Corporation Court for the City of Bristol.

Celebrating 100 years in November

Coming up later in November is the event to celebrate the 100 years of the Big Stone Gap federal courthouse, which still looks just about like this, but for the wheelchair ramp on the side and there is no more flagpole on top, that I recall.

On the Bristol Circuit Court Clerk's race

The Bristol paper reports here on the candidates for Clerk of Court for the Circuit Court of Bristol, Virginia.

Terry Rohr can tell people that I am for her or against her, whichever will get her the most votes. Some state court clerk's offices are better than others - the Bristol office has always been helpful.

Her opponent suggests that Bristol might be better off if the technology in the Clerk's office was more cutting edge. I am not so sure about that. The problems I have had from time to time with the eLegal system they use for electronic filing in civil cases in Wise County make me think that that system is not quite perfected.

On the new Justice Powell from Virginia

Here is a report from the Richmond paper on the swearing in of Justice Cleo Powell, and here is an interesting story about the photography at the event. I don't know which of the photographers took the photograph shown here, from a media website.

Speculations about Senator Puckett's seat

Both the Bristol and Roanoke papers ran articles suggesting that Senator Puckett is in a competitive race for re-election, where his opponent is Adam Light. The Washington Post reported similarly on statewide Republican donations to Light.

In the pursuit of re-election, Senator Puckett has declared that he will not vote to re-elect President Obama in 2012, as stated here and here and here and here.

Got an iPhone

The new phone is a wonder, as in I wonder if I will ever figure it out.

On Rules of Evidence for Virginia

Today the VLW Daily Alert reports that the Virginia Supreme Court has adopted Rules of Evidence, and includes an article that suggests that their adoption is a result of Cynthia Kinser becoming the Chief Justice.

It may be evident from some of her opinions (such as the opinion for the Court in Shaheen v. County of Mathews) that Chief Justice Kinser is not as averse to the use of federal precedents as were some of her predecessors on the Court.

Two examples of this former aversion that stick in my head would include Jordan v. Clay's Rest Home, in which the Court by Justice Compton pointedly rejected the federal proof scheme developed over decades for resolving circumstantial cases of employment discrimination, and Doe v. Isaacs, in which the Court again by Justice Compton expressly refused to consider an unpublished Fourth Circuit opinion (by a panel that included Emory Widener).

The only opposition to Rule of Evidence that I ever heard among lawyers was the fear in some circles that it would lead to the adoption of the dreaded Daubert standard for the admissibility of expert testimony, which is viewed as anti-plaintiff. On the difference if any between the Virginia law of evidence and Daubert, I have often recommended this article by Judge Kelsey.

The new magistrate judge for the W.D. Va.

I saw the articles such as this one indicating that Robert Ballou from Roanoke has been selected as the next Magistrate Judge for the Western District of Virginia. Magistrate Judge Ballou will succeed Judge Urbanski.

The one and only time I was ever called for jury duty was an honor code matter at the University of Virginia, and when I showed up for the trial, the honor committee functionary who told me to go home because the trial was canceled was Rob Ballou. I told him that story when our paths crossed over as lawyers some years later and he remembered the case.

Notwithstanding the complaints from some quarters about the conditions for the members of the federal judiciary, it seems that good candidates appear for every vacancy.

Obama nominates a WV lawyer to Fourth Circuit

This White House press release announces the nomination of Stephanie Thacker to a seat on the United States Court of Appeals for the Fourth Circuit, left vacant by the passing of Judge Blaine Michael.

If confirmed, she would be the fifth member of the Court nominated by President Obama.

On roving constitutional watchdogs

In Commonwealth of Virginia v. Sebelius, the Fourth Circuit in an opinion by Judge Motz, joined by Judges Davis and Wynn, held that Virginia lacks standing to bring a pre-enforcement challenge to a provision of President Obama's health care reform law.

Judge Motz wrote that "if we were to adopt Virginia’s standing theory, each state could become a roving constitutional watchdog of sorts; no issue, no matter how generalized or quintessentially political, would fall beyond a state’s power to litigate in federal court. . . . We cannot accept a theory of standing that so contravenes settled jurisdictional constraints." She concluded: "In sum, the significance of the questions at issue here only heightens the importance of waiting for an appropriate case to reach the merits. This is not such a case."

Somewhat similarly, the panel mostly avoided the merits in Liberty University v. Geithner, finding that the federal courts were barred from acting by the Anti-Injunction Act, notwithstanding the disagreement of both parties over whether the sanction for failure to comply with the individual mandate is properly considered a "tax." Judge Wynn concurred on the jurisdictional issue, and Judge Davis dissented, and both added some individual thoughts on the merits.

The incredible shrinking W.D. Va.

Via VLW, the Roanoke Times has this article that says shrinking caseload in the W.D. Va. has led to some diminished funding with the possibility of further cuts in sight.

Consistent with the article, we have been told of the reduced staff in the clerk's offices in Big Stone Gap and Abingdon - including that Libby Sharp is retiring and will not be replaced.

God bless Libby, the great friend of so many former law clerks and others who have passed through the halls of the old building there in Wise County, and also bless the fact that if they again close down that courthouse at BSG, it will not be before she retired.

On Magistrate Judge Sargent

Today's Bristol paper has this profile of Magistrate Judge Pamela Meade Sargent.

The article made me think of this opinion she wrote, which began: "To a child of Appalachia, to see the mountains laid waste, whether by clear-cutting or strip mining, is to witness a dagger plunged into the very bosom from which you sprang and which has sustained you."

Scenes from the Greenbrier

It's a great day at the Judicial Conference.
















And, I got to meet Howard Bashman, as evidenced by this out-of-focus photo attempt:

On new judges at the 77th Judicial Conference of the Fourth Circuit

The new judges at this year's Judicial Conference include several from Virginia. It will be interesting to hear them all speak. The list includes:

The Honorable Michael F. Urbanski
United States District Judge for the Western District of Virginia

The Honorable Arenda L. Wright Allen
United States District Judge for the Eastern District of Virginia

The Honorable Max O. Cogburn, Jr.
United States District Judge for the Western District of North Carolina

The Honorable Ellen L. Hollander
United States District Judge for the District of Maryland

The Honorable James K. Bredar
United States District Judge for the District of Maryland

The Honorable John A. Gibney, Jr.
United States District Judge for the Eastern District of Virginia

The Honorable Catherine C. Eagles
United States District Judge for the Middle District of North Carolina

The Honorable J. Michelle Childs
United States District Judge for the District of South Carolina

The Honorable Richard M. Gergel
United States District Judge for the District of South Carolina

The Honorable Irene C. Berger
United States District Judge for the Southern District of West Virginia

The Honorable Albert Diaz
United States Circuit Judge for the Fourth Circuit

The Honorable James A. Wynn, Jr.
United States Circuit Judge for the Fourth Circuit

The Honorable Barbara Milano Keenan
United States Circuit Judge for the Fourth Circuit

The Honorable Andre M. Davis
United States Circuit Judge for the Fourth Circuit

The Honorable G. Steven Agee
United States Circuit Judge for the Fourth Circuit.

On Ann K. Sullivan

Years ago, I went to the winter meeting of The Virginia Bar Association in Williamsburg and randomly sat at a banquet table with Ann Sullivan and her family (or at least one daughter), and ever since then, I've been a big fan and so I am delighted that she is featured on the cover of this year's Virginia Super Lawyers publication.

Other favorites who have been profiled in Super Lawyers include Anne Marie Whittemore and Bruce Cryder.