On the Rick Perry lawsuit

I read with interest the Complaint filed by my friend Hugh Fain on behalf of the Rick Perry campaign, seeking relief from the campaign's failure to meet the statutory requirements contained in Va. Code 24.2-545 to get on the ballot for the Republican Presidential primary in Virginia.

It raises two claims, the first is that the residency requirement for petition "circulators" is unconstitutional as a violation of the First Amendment, based on Buckley v. American Constitional Law Foundation, 525 U.S. 182 (1999). The second is that the requirement of signatures from 10,000 qualified voters with at least 400 qualified voters from each congressional district in the Commonwealth is itself unconstitutional as a violation of the First Amendment. The Complaint seeks injunctive relief against the enforcement of these two requirements.

Interestingly, the lawsuit does not address any issue of "petition verification" by the Republican Party of the sufficiency of the signatures, most likely because the Complaint acknowledges that the Perry campaign presented only 6,000 signatures.

Regarding the alleged residency requirement for petition "circulators," or witnesses, this requirement is not in section 24.2-545, as pointed out here, and the Complaint says only that it appears on the petition form required for use by the State Board of Elections. Section 24.2-521 contains the residency requirement for petition witnesses for some offices, but does not reference presidential campaigns. This ambiguity creates a state law issue that would seem to be preliminary to the constitutional issue - does the residency requirement even apply to candidates seeking to run in a presidential primary?

The residency requirement for petition witnesses contained in section 24.2-506 to get on the ballot for general elections other than as a party nominee has been upheld in a series of lawsuits mostly brought by Libertarian candidates, but its current status is somewhat in doubt following the Fourth Circuit's decision in Lux v. Judd. In Lux, the Court observed that while the residency requirement was upheld by the Court in Libertarian Party of Virginia v. Davis, 766 F.2d 865 (4th Cir. 1985), the holding in Davis may have been overruled by the Supreme Court's subsequent decisions in Buckley and Meyer v. Grant, 486 U.S. 414 (1988). The Lux court remanded the case to Judge Hudson, to determine whether the statutory requirement could be valid under some rationale other than the one briefly stated by the Court in Davis - to ensure that the candidate had a minimum level of local support. Other rationales that would support a residency requirement are expressed in the dicta from the Buckley case, which suggests that a state might require the witnesses to the signing of petitions to be Virginia residents so that they could be subpoenaed if need be, as non-residents could not.

The year in review, according to lawyer-bloggers

This password-protected article by Deborah Elkins in VLW includes quotes from me, appellate guru Steve Emmert from Virginia Beach, appellate guru Jay O'Keefe from Gentry Locke in Roanoke, John Tarley in Williamsburg, Jim Kinsel from Northern Virginia, construction lawyer Chris Hill, Richmond litigator Dabney Carr, Crimlaw's Ken Lammers from Wise County, Josh Silverman, Qui Tam blogger Zachary Kitts, and local government law expert Andrew McRoberts.

On the perils of appellate practice

In the past few days, three opinions have cracked down on abusive tactics in appellate litigation:

In Gonzalez-Servin v. Ford Motor Company, Judge Posner compared counsel to an ostrich for failure to address recent precedent - with funny pictures.

In Kim v. Westmoore Partners, a California appeals court fined counsel $10,000, for doing things like asking for more time to write a brief and then cribbing almost entirely from another brief the same lawyer had filed in an earlier case.

Today, the Fourth Circuit in Matter of Liotti gave a public reprimand to a lawyer for inaccuracies in his characterization of the record and the facts.

On Crohn's disease and the patent case being heard next week in the Supreme Court

Next week the United States Supreme Court will hear argument in a patent case styled Mayo Collaborative Services v. Prometheus Laboratories, Inc., for which the SCOTUSblog has this link to the many briefs.

The patents at issue involve blood testing after administration of a drug called azathioprine, which I have taken off and on for some years. Azathioprine is an immune suppressant used as an anti-rejection drug for people who receive organ transplants. It is also prescribed for Crohn's disease and ulcerative colitis, which are thought to be disorders of the immune system.

It is an alarming thing to sit and read the label as I used to do sometimes and think about whether you want to take that pill. Some people who take azathioprine for Crohn's disease get one form of cancer or another and die. For some patients, it works no better than placebos on their moderate to severe Crohn's disease. The challenge with this powerful medicine is how to figure out how to give enough without giving too much to achieve the good effects and avoid the bad. Not everyone requires the same dosage to achieve the same level of metabolites in their blood.

A group of researchers "developed a database of pediatric patients with
inflammatory bowel disease who had received thiopurine treatment," applied standard laboratory techniques to measure the thiopurine metabolite levels in their blood, and observed some correlations between particular values and whether the patients did better or worse. The appellee Prometheus learned of this research, licensed it from the inventors and the hospital for whom they worked, filed patent applications, and marketed a blood test product that would measure whether the metabolite levels for GI patients taking azathioprine were within the optimal range of values.

The Mayo Clinic used this product for years, then decided that it could make and sell its own product to do a better job of evaluating thiopurine metabolite levels. Prometheus sued for patent infringement, and the case made its way to the high court.

The question presented, according to the appellant Mayo, is:

"Whether 35 U.S.C. § 101 is satisfied by a patent claim that covers observed correlations between blood test results and patient health, so that the patent effectively preempts use of the naturally occurring correlations, simply because well-known methods used to administer prescription drugs and test blood may involve 'transformations' of body chemistry."

In other words, the Court will decide whether Prometheus can patent what amounts to nothing more than a lab test to see whether the level of thiopurine metabolites is within the range of therapeutic values shown by the research.

On the face of it, the patent seems preposterous. When only ordinary testing techniques are involved, why should any company be able to claim exclusive ownership of the idea of testing for any level of some chemicals in the blood, based on research that shows some particular level is best for patient health? Yet such patents are evidently common, and defended as Prometheus sought to do in its brief, as necessary to fund the type of research that lead to the conclusions about the therapeutic levels of the thiopurine metabolites - even though the specific research in this case was not done for commercial purposes.

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.

On making threats by way of one's own Myspace profile

Today in Holcomb v. Com., the Court of Appeals in an opinion by Judge Elder, joined by Judges Petty and Alston, affirmed the felony conviction of a Virginia Beach man for posting on his MySpace page items that were construed as knowingly communicating a written threat to his ex-girlfriend.

Notwithstanding the fact that millions are dropping off MySpace, evidently it was enough to support the conviction that the comments were posted where the ex was able to see them.

That old adage

In Horvath v. Bank of New York, N.A., Mr. Horvath claimed that only the original lender could sue on the note secured by the deed of trust on his property. The Fourth Circuit, in an opinion by Judge Wilkinson joined by Judges Keenan and Diaz, was unimpressed:

"Negotiable instruments like mortgage notes that are endorsed in blank may be
freely transferred. And once transferred, the old adage about possession being nine-tenths of the law is, if anything, an understatement. Whoever possesses an instrument endorsed in blank has full power to enforce it."

Blame President Bush

There has been much publicity over the fact that the Fourth Circuit panel that will review the challenges to health care reform includes Judges Davis, Wynn, and Motz.

Judge Davis was nominated by President Obama after President Bush failed to fill the vacancy on the Fourth Circuit that resulted from the death of Judge Murnaghan, as reported here:

"Under President Bush, three other nominees were named to fill the vacancy, but each was stalled or rejected — in disputes with Democrats that sometimes involved the Maryland senators."

Judge Wynn was nominated by President Obama after President Bush failed to fill the vacancy on the Fourth Circuit that resulted from Judge Phillips taking senior status in 1994. Three times, President Bush nominated Terrence Boyle, who was never confirmed. In 2007, President Bush nominated Robert Conrad, who also was never confirmed.

Of Judge Motz, I once walked down the stairs with her and her husband the district court judge at my first Fourth Circuit Judicial Conference, and they laughed that I was about to burst out of my skin with nervousness and excitement, and she told me she remembered well her first Judicial Conference - which made me a fan.

On the Planned Parenthood case in Indiana

Here is the much-publicized complaint filed by Planned Parenthood of Indiana over the new law in Indiana that prohibits the state from making any contracts with or appropriating any money for any entity that performs abortions or operates a facility where abortions are performed.

The claim is be based principally to the provision in the Constitution which bar the states from passing any law that impairs the obligation of contracts, the "Contract Clause" of Article 1, section 10. Planned Parenthood claims that it has existing contracts that would be impaired by the enforcement of the new law.

Virginia v. Virginia

In Virginia Office for Protection and Advocacy v. Stewart, the Supreme Court held that a Virginia state agency could sue Virginia officials in federal court.

Chief Justice Roberts dissented, because he thought there was something wrong with the idea that the Commonwealth can sue itself in federal court, despite the Eleventh Amendment and sovereign immunity. For one thing, the Chief Justice noted:

"Whatever the decision in the litigation, one thing is clear: The Commonwealth will win. And the Commonwealth will lose. Because of today’s holding, a federal judge will resolve which part of the Common-wealth will prevail."

A common affliction

In Carnell Construction v. Danville RHA, Judge Kiser wrote in a footnote:

"This case has suffered from excessive briefing. The parties’ briefs supporting and opposing pre- and post-trial motions alone total 660 pages, not including attachments. With attachments—which do not include full deposition transcripts—that number increases to 3,179 pages. Many individual briefs exceed 50 pages. The absence of a page limit in the Western District is not intended as an invitation for protracted argument. As the Fourth Circuit recently stated, “wisdom may reside in recognizing that less is sometimes more and that zealous advocacy need not always part company with forbearance and restraint.” Waybright v. Frederick Cnty., 528 F.3d 199, 210 (4th Cir. 2008). Put more succinctly, “brevity is the soul of wit.” SHAKESPEARE, HAMLET, act 2, sc. 2."

On Circuit Court Judge Chad Dotson

I read in the VLWBlog that the General Assembly has approved Chad Dotson for a vacancy on the bench of the Thirtieth Circuit. Well done, Judge Dotson.

When Judge Dotson was selected for the general district court bench, I wrote this. My first Chad Dotson post was this one.

On the evils of scanned as opposed to converted PDF files

The new Administrative Procedures for electronic filing in the W.D. Va. state the following, twice:

"Scanners should only be used to produce PDF files of documents that cannot be produced electronically. Scanned documents lessen the level of service we provide by slowing down the entire system. We have moved away from the utilization of scanned documents inside the Court for the most part and are requesting parties to do the same when possible."

The new book also says this about orders, which is a little bit different than before I think:

"3. Proposed orders must be submitted as outlined below:
a. A moving party shall submit to the judge, after filing a motion for which no supporting brief is required, a proposed order granting the motion and setting forth the requested relief.
b. Proposed orders must be filed in CM/ECF as a pdf attachment to the Motion (not combined with the motion in one document).
c. The proposed order must also be attached to an Internet e-mail sent to the email address of the assigned judge, in a format compatible with Microsoft Word. Judges will not accept the attachment in .pdf format."

I do not recall that the lawyers were previously required to submit and file proposed orders - in my experience proposed orders are rarely filed in this Court, unlike some others. I have more often e-mailed draft orders as word processing documents to the Court and counsel, when the orders were agreed.

On comity, abstention, and the Tax Injunction Act

In Buchanan County v. EQT, Judge Jones of the W.D. Va. rejected my arguments for the remand of a tax case. The issues were pretty interesting, if somewhat obscure.

On being in jail as a disability

In Lyslord-Duncan v. Bank of America, Judge Wilson of the W.D. Va. dismissed the plaintiff inmate's claim that the bank had violated the Americans with Disabilities Act by refusing to open a bank account because of his incarceration.

Judge Wilson concluded: "Though the court is sure that incarceration is limiting a number of Lyslord-Duncan’s activities, the court is also quite sure that Congress did not have incarceration in mind as a disability when it enacted the ADA."

Perhaps the plaintiff had confused the concept of disabled under the ADA with the notion of a "person under a disability" under the civil procedure title of the Virginia Code, which includes convicted felons during their incarceration, but only in the context of how they can sue and be sued in state court.

On the iPad and the Wise County Commonwealth's Attorney's office

This Findlaw technology blog post highlights the use of the iPad by Ron Elkins and his staff in prosecuting cases in Wise County, described here in a web interview and here in this post from the website for his office. Ron is about the biggest cyberdog around.

Dog custody case

In the case of Whitmore v. Whitmore, decided today, a panel of the Court of Appeals including Judges McClanahan and Haley and Senior Judge Willis addressed the thirteen assignments of error raised by the ex-husband protesting the Circuit Court's award of all right and title to the couple's Welsh Corgi to the ex-wife, without even providing for visitation. The appellant claimed among other things that the Circuit Court failed to consider "the best interests of the dog." The appellee didn't want to share the dog because she didn't want to have anything more to do with her ex-husband.

The dog is not named in the opinion.

I can't give advice to Mr. Whitmore, but in my own case I rooted around Petfinder until I found another who looked about like the last two, and she's had a pretty good life these past twelve months.

On Chief Justice Hassell

I learned today of the death of Chief Justice Hassell. There are reports here from the Norfolk paper and the Richmond paper. He was a strong character and an interesting man, a very compelling figure in Virginia's legal history for many reasons.

I met him once and told him of my adventures before the Supreme Court, which he found amusing. Later, on a trip to the law school at Grundy, he told me this story.

Here is his last speech on the state of the judiciary as Chief Justice, in which he relates much of his own history and experience, beginning on page 8.

A picture can say a thousand words, and none of them are hearsay

Today in Bynum v. Com., the Court of Appeals in an published opinion by Judge Petty, joined by Judges Elder and Beales, held that the trial court in a case where the defendant was convicted of possessing drugs within 1,000 feet of a school did not err in admitting over the defendant's hearsay objection the aerial photograph used by police to prove the defendant's proximity to the school.

The Court reasoned, in part, that photographs are not hearsay because there is no declarant:

"As with a caller ID and a call trap, there simply is no out-of-court declarant involved in this photograph. Officer Johnson used an aerial photograph of the Brighton Elementary School property and surrounding area to measure the distance between the school property boundary and the location where Bynum was observed with heroin and arrested. An aerial photograph of a geographic area does not contain 'simply the repetition of prior recorded human input or observation.' Tatum, 17 Va. App. at 588, 440 S.E.2d at 135. It is not the recordation or compilation of another human being’s assertions; it is not a communication of input from another person. Rather, it is simply a technological reproduction of an existing reality. Cf. Penny, 6 Va. App. at 498, 370 S.E.2d at 317 ('The scientific advances of modern technology have enabled the call trap device to make and record the occurrence of electronic events.'). As such, its 'reliability does not depend on an out-of-court declarant’s veracity or perceptive abilities.'"

Why stick the taxpayers with these claims?

Turning a good idea on its head, Delegate Janis has proposed a bill to amend the Virginia Fraud Against Taxpayers Act, Va. Code 8.01-216.1 et seq., to overrule the holding from the Supreme Court's decision in Ligon v. Goochland and waive the sovereign immunity of the Commonwealth and its counties and cities under the Act.

In Ligon, the Supreme Court held that the Act does not waive the immunity of Virginia's counties for wrongful discharge claims based on retaliation against whistleblowers.

In H.B. 1399, Delegate Janis proposes to insert language that would eliminate the sovereign immunity defense. The proposed waiver of sovereign immunity is entirely at odds with the policy of the Act. The taxpayers should be not be victimized a second time, suffering first whatever fraud the whistleblower spotted, and then having to pay in addition for the whistleblower's lawsuit.

Unlike private sector employees, government employees are already protected to some degree by the First Amendment, made applicable to the states by way of the Fourteenth Amendment, which prohibits state actors from retaliating against employees for speech on matters of public concern, which might include the much of the same subject matter as what is addressed by whistleblower protections of the Virginia Fraud Against Taxpayers Act.

On Judge Thomas Horne

In this article, a local newspaper for Loudoun County declares Circuit Court Judge Thomas Horne its "citizen of the year," and explains why in extensive detail. Among other things, Justice Mims credits Horne as the primary contributor to the bench book for circuit court judges.

On the NiSource royalty litigation in the W.D. Va.

In the famous Tawney case from Roane County, West Virginia, a group of royalty owners obtained a $405 million jury verdict against a group of natural gas companies on a variety of theories, including that the gas companies deducted more than they should have done from the sales price of the gas in calculating royalties and that the companies wrongfully included the below-market advance sales of gas in calculating royalties. Last year, in Kentucky, there was a class action settlement of claims related to some of the same transactions, in Thacker v. Chesapeake Appalachia.

The advance sales are an interesting story, that I have read a little bit about in the past. They are interesting because of the tie-in with Enron, the poster child for corporate greed. The record of one series of U.S. Senate hearings into the role of financial institutions in the collapse of Enron, which includes some discussion of the Mahonia transactions that also involved NiSource, can be accessed here. In those hearings, Senator Levin explained in his opening remarks:

"We will show how the banks arranged for Enron to carry out these so-called prepays by using offshore shell companies which the banks controlled, like Mahonia and Delta Energy--companies which have no employees, no offices, and operate in secrecy jurisdictions, that make it tough for law enforcement to uncover or understand their relationships to the banks behind them.

The offshore entities were passthroughs, controlled by banks, and helped disguise the loans so that they wouldn't show as debt on Enron's financial statements. Those offshore entities were not the independent entities which they needed to be in order for the promises of future delivery of commodities to them to be legitimate prepays. We will also hear how the banks acted to limit public disclosure of Enron's prepay obligations."

In other words, the claim is that transactions were set up to look like pre-paid sales of natural gas, when in fact they were loans. NiSource was not connected with Enron, but it allegedly engaged in similar transactions as those described by Senator Levin. The alleged effect on the royalty owners is that these prepays mixed in with real sales had the effect of reducing the average price on which the determination of royalties was based.

Claims of a similar nature as in the West Virginia and Kentucky cases have been raised in the case of Healy v. Chesapeake Appalachia, and in this opinion, Magistrate Judge Sargent dealt with the gas companies' motion to dismiss, which raised among other things the issue of the statute of limitations and whether there could be any tort claims for failure to pay accurate royalties. Judge Sargent recommended that the plaintiff's claims can go forward, for the most part.

One of the issues was the statute of limitations. The Defendants argued that notwithstanding the fact that they were obligated to pay royalties in installments, the breach if any occurred years ago and so the plaintiffs' cause of action accrued all at once. We argued a similar limitations issue years ago in United Mine Workers of America 1974 Pension Trust v. Big Star Coal Co., 1998 U.S. Dist. LEXIS 11530 (D.D.C. 1998), with somewhat better success. In that case, we argued that "[e]ven with respect to contracts requiring installment payments, when there is a repudiation or "total breach" of contract, the plaintiffs must bring suit on their whole claim in a single cause of action, and cited this quote from Corbin:

Suppose next that the contract requires performance in instalments or continuously for some period and that there has been such a partial failure of performance as justified immediate action for a partial breach. If this partial breach is accompanied by repudiation of the contractual obligation such repudiation is anticipatory with respect to the performances that are not yet due. In most cases the repudiator is now regarded as having committed a “total” breach, justifying immediate action for the remedies appropriate thereto. In determining the damages recoverable in such an action, it is necessary for the court to look into the future. In spite of the uncertainty involved in this, the trier of fact is permitted to make an estimate to be added to the damages awarded for the actual non-performance that has already occurred. In most cases this remedy is regarded as adequate and the injured party is allowed only one action for his wrong. The non-performance plus the repudiation constitute one and only one cause of action.

4 CORBIN ON CONTRACTS § 954, pp. 831-32.

Probably the most interesting issue in the opinion from the oil and gas lawyer's perspective is whether the plaintiff can bring claims for breach of implied duties. On the one hand, Virginia is not a big implied duty state - the tendency in Virginia law moreso than in more "liberal" jurisdictions is to enforce contracts as written. On the other hand, there is a wide body of case law in the jurisdictions where oil and gas production has been a way of life for over 100 years dealing with the implied duties of gas producers. Judge Sargent concluded: "I hold that Virginia courts would recognize an implied duty on the part of oil and gas lessees to operate diligently and prudently, including a duty to market the gas produced."

Interesting to me is the discussion of offensive collateral estoppel. In the Buchanan County RICO case, Judge Jones was convinced to apply offensive collateral estoppel in favor of the plaintiff and against the defendants on the issues necessarily determined by their criminal convictions. Judge Sargent concluded that the issue of collateral estoppel against the gas companies based on the outcome of the Tawney case would have to be determined at a later stage of the case.

On snow days

In the winter, I hear talk about schools cancelling classes because of snow.

One part of that discussion is that school officials are afraid of liability. In Virginia, the liability of school employees and school boards for simple negligence is limited by sovereign immunity and the school bus insurance statute, Va. Code 22.1-194, as Judge Wilson held in this opinion granting a motion to dismiss claims against individuals related a school bus accident in Botetourt County.

Another part of the discussion is what is the effect of school days on learning. The answer according to this article is that school days cause lower test scores.

The Media General article on Justice Kinser

I finally got around to checking out the fine article on Justice Kinser, who is becoming the Chief Justice of the Virginia Supreme Court. It seems like not so long ago that she joined the Supreme Court, yet with the retirement of Justice Koontz, all the other justices have less tenure than she does, but for current Chief Justice Hassell.

One fact in the article that I had never heard was that Judge Samuel G. Wilson of the W.D. Va. was one who urged her to apply for the Supreme Court position in 1997, but then Judge Wilson was U.S. Magistrate at the time when Justice Kinser was clerking for Judge Williams, and so perhaps they have known each other for many years.

Whatever works

In this VLW post, a Virginia legislator is cited for the proposition that the Governor proposed taking money from the Virginia State Bar to fund judgeships because the Virginia State Bar complained about the lack of funding for judgeships.

There ought to be a constitutional amendment that says the legislators are thrown out and barred from public office if they don't pass a budget and fill all the judgeships, in every session. Having said that, it is hard to imagine that the VSB surplus could be spent on anything more important.

Enzyte and the warrantless search (or is it seizure?) of e-mail

The Sixth Circuit ruled today in U.S. v. Warshak that the Fourth Amendment prohibited federal law enforcement from obtaining the defendant's e-mails from his internet service provider without a warrant. The case is a big deal to legal scholars, and is also interesting because the defendant was the owner of the company that puts on those late night ads with Smilin' Bob.

The FRCP amendments

The latest amendments to Rules 26 and 56 went into effect on December 1. The Rule 26 amendment limits the discoverability of draft reports by expert witnesses. The Rule 56 amendment is supposedly only procedural. Rule 56(b) specifies a default deadline for filing summary judgment motions, as 30 days after the close of all discovery. The typical scheduling order in the W.D. Va. shortens that period. It requires parties to cite to particular parts of the record to show the absence or presence of a genuine dispute of material fact, which seems odd. It says the Court can rely only on cited materials, or may use other parts of the record. It allows the Court to grant summary judgment for non-movants, on notice to the parties.

A further explanation of the rationale for the changes to the Rules is contained in this excerpt.

Judge Hudson strikes down health insurance mandate

I've read Com. v. Sebelius, and what struck me on the first reading was that Judge Hudson seemed to say that if the Congress and the Administration had characterized the individual insurance mandate as a revenue measure from the get-go, the outcome might have been different. "In concluding that Congress did not intend to exercise its powers of taxation under the General Welfare Clause, the Court's analysis begins with the emphatic denials by the Executive and Legislative branches that [the penalty for not buying health insurance] was a tax," Judge Hudson wrote.

In other words, by hedging on the extent to which the penalty for failure to buy health insurance was an outright money grab by the United States, the proponents of the scheme forfeited a potential basis for upholding its constitutionality.

On the constitutionality of the health insurance mandate

GMU law professor Ilya Somin has this take on the constitutionality of the health insurance mandate, which concludes if nothing else that the challenges to the mandate are not frivolous and what the law requires is something new, for which there is no binding precedent upholding its legality. Professor Barnett from GULC has this paper that concludes the individual mandate is unconstitutional.

By contrast, in this Bristol paper article about the lawsuit against the health insurance mandate filed by Gil Davis and Strother Smith on behalf of Smith, Tucker Davis and others, W & L law professor Tim Jost describes the claim as frivolous.

There is a website devoted to the litigation of this issue, called Health Care Lawsuits.

Court of appeals' "digital brief" guidelines

I read with some interest the "digital brief package" from the Virginia Court of Appeals. What is required is something quite different from the ordinary files we print to PDF and upload to federal court every day.

I enjoyed particularly the checklist of reasons for rejecting the digital briefs, such as "Paper Brief was not the same Brief on the CD."

Another part of what makes this interesting is that the Court evidently requires digital briefs, yet there is apparently no reference to such a requirement in the Rules, which were just amended - unlike in Rule 5:26(e), which says "(e) Copies for Filing. One electronic version, in Adobe Acrobat Portable Document Format (PDF) format, must be filed with the clerk of this Court and served on opposing counsel, unless excused by this Court for good cause shown."

In my opinion, most Virginia lawyers either lack the software necessary to insert bookmarks into PDF files or would not know how. I sometimes insert bookmarks to navigate around complaints and long contracts that other people send me.

The cheaper than Adobe Acrobat alternative software that I use is called NitroPDF, which is $99 as opposed to $299 for Acrobat 9 standard or $499 for Acrobat 9 pro. I think it could do what is required but I guess I'll send the work to one of the print shops in Richmond.

She said yes

Elliott Lawson & Minor is announcing this week that Dawn Figueiras has joined the ownership of the firm.

This is a great thing, as she is one of the best lawyers and best people I know.

On Justice Carrico

This article from the Richmond paper on Chief Justice Carrico of the Virginia Supreme Court at age 94 includes some interesting views on his five decades as a justice, chief justice, and senior justice. The article suggests that his most famous opinion as a justice was in the Loving case, affirming Virginia's ban on inter-racial marriage, the case that was then reversed by the United States Supreme Court, but that he makes no apology for applying the law as he found it at that point in time.

On sentencing in the W.D. Va.

The Roanoke Times had this interesting article on the role of the federal probation office in federal sentencing in Western District of Virginia cases. It quotes among others Judge Conrad and Judge Turk - and Paul Dull, distinguished graduate of the Appalachian School of Law and a fine fellow. The occasion for the article was the fuss raised by defense counsel in a case where the confidential part of a pre-sentence report was accidentally made available to him.

Wait, do I still have some of these?

The Virginia Gazette reports here on a William & Mary grad who returned an overdue book he checked out from the Williamsburg library in 1975. He told the library his lawyer had advised him to turn himself in. There was no fine since the library's records did not go back so far.

He said it.

"The judiciary acts as a ballast on our ship of state, and it prevents the ship from being wrecked on the reefs of inappropriate judgment, and should not be steered by the whims of hysterical opinion."

- Judge Burton Roberts, quoted today in his obituary in the New York Times.

Unusually high quality briefs lead to reprimand

Via this ABA Journal article, I saw this opinion about a lawyer who was sanctioned for plagiarizing page after page of an article and filing it as his own briefs.

The opinion from the Iowa Supreme Court says the trial court judge got suspicious having found the briefs to be of "unusually high quality," which surely is better than a plagiarized brief of unusually low quality but unethical nonetheless under the circumstances of this case.

The Court explained:

"We recognize that the term "plagiarism" is something of a scarlet letter that imposes a brand on a wide variety of behaviors. We do not believe our ethical rules were designed to empower the court to play a "gotcha" game with lawyers who merely fail to use adequate citation methods. This case, however, does not involve a mere instance of less than perfect citation, but rather wholesale copying of seventeen pages of material. Such massive, nearly verbatim copying of a published writing without attribution in the main brief, in our view, does amount to a misrepresentation that violates our ethical rules."

On the ethics of fake friending

An ethics committee for the Bar of the New York City Bar has concluded, unsurprising, that it is unethical for a lawyer to pretend to be someone else to become your friend on Facebook in order to get at your secrets.

The opinion concludes:

"Rather than engage in 'trickery,' lawyers can -- and should -- seek information maintained on social networking sites, such as Facebook, by availing themselves of informal discovery, such as the truthful 'friending' of unrepresented parties, or by using formal discovery devices such as subpoenas directed to non-parties in possession of information maintained on an individual’s social networking page. Given the availability of these legitimate discovery methods, there is and can be no justification for permitting the use of deception to obtain the information from a witness on-line."

When does $74,139.24 exclusive of interest and costs exceed $75,000

In Merial Limited v. Rasnic, Judge Sargent concluded that a claim for $74,139.24 satisfied the amount in controversy requirement under 28 U.S.C. 1332, which gives the federal courts subject matter jurisdiction of certain "civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs."

Back when I was law clerk, Judge Williams dealt with something similar in the case of Allstate v. Brown, 736 F. Supp. 705 (W.D. 1990), where the insurer brought a declaratory judgment related to the defendant's suit in state court, in which the claim was for precisely the jurisdictional amount. Judge Williams unlike some federal judges was always a big fan of diversity cases, and decided in favor of federal court jurisdiction in the Brown case.

The last to know

I finally noticed that the website of the W.D. Va. indicates that the Chief Judge is now Judge Glen Conrad, right next to where it says that Julie Dudley is the Clerk.

Judge Jones (like Jack Nicklaus) was born in 1940. Under 28 U.S.C. 136, no district judge gets to act as chief judge beyond the age of 70 if there are others who qualify to be chief judge.

On twenty years with Crohn's disease

In 1990, I was about to get married, and I knew there was something wrong with me, but didn't know what. I went to see old Dr. Shaffer, who referred me to a gastroenterologist, who figured out that I have Crohn's disease, and who has been my good friend and doctor for twenty years. The Crohn's diagnosis was more than confirmed in November 1996 or thereabouts when a Bristol surgeon removed eighteen inches of bad guts, that were tormenting me.

Over the years, I've taken some medicines that were gentle and did nothing, steroids that made me gain a pound day, other medicines that say on the label they can kill me, I've endured iron shots with the big needle, given myself B-12 shots with the little needles, munched on chewable children's vitamins, shared yogurt with my dogs almost every day. So far I've taken a pass on Remicade and Humira; maybe I get too many advertisements for plaintiff's products liability seminars.

Probably the last 150 pizzas have given me cause for regret, but I'll eat one every now and then. Green peppers, raw onions, orange juice, chocolate, bearnaise and hollandaise are all taboo, but I break bad and have some sometimes. My weight has fluctuated between 145 and 205, and so there are both fat boy and skinny man suits in my closet. I eat too fast, and often have dessert. On the upside, my blood pressure and cholesterol levels are no problem at all.

I've met some lawyers and witnesses with the same problem, and they are always relieved to find out what we have common. "Oh, I don't have to tell you about it," they say - about for example the perils of sitting around in a deposition for hours. Say, I flew to Europe and back a couple of times, imagine that. They could. One of my cousins has it. She and her lawyer husband Steve just flew to China and back to meet their new baby. When I heard this news, I thought about that plane ride.

I've been to a few meetings where the stomach rumblings were so loud I was surprised they were not made a part of the official minutes. ("... and Mr. Minor said grklbklmrkmogl.") One such occasion was at a VBA board meeting, when I was seated by Cheshire Eveleigh, who merely turned and gave me her broadest, crinkliest smile, leaving me no choice but to smile back. In this (and all matters, by the way), I recommend following her example.

A lot of my lawyer buddies or courthouse friends or even clients whom I see just every once in a while keep me up to date on how I'm doing, or at least whether I look better or worse than the last time they saw me. My assistant generally schedules my hearings and depositions for the afternoons, since the mornings are the iffiest part of the day (and I was a night owl even before). When I heard that a friend of mine's son was diagnosed with Crohn's, I said tell him it hasn't been fun but it hasn't held me back from doing what I wanted and going places. There are still some days though when the bad guts flat out betray me, like last November, and today, which gave me the notion to write this post.

Last night of Bluefield Orioles baseball, after 53 years

As reported here, tonight is the last home game of the Bluefield Orioles, ever.

The Bluefield Orioles figured prominently in a famous opinion by Judge Williams of the W.D. Va.

Justice Kinser to be the next Chief Justice

The Virginia Supreme Court has announced the selection of Justice Kinser as the next Chief Justice.

Justice Kinser clerked for Judge Williams, along with George Allen, who appointed her to the Supreme Court, after she had served for some years as magistrate judge for the W.D. Va. She was sworn in as a member of the Virginia Supreme Court in a memorable ceremony at the Lee High School in 1997, and many of the readers of this blog were there, as I was.

The funniest story I ever heard her tell was about the time she sat on a writ panel and some idiot lawyer (my words, not hers) kept addressing her as "Justice Lacy." She said nothing, but the lawyer persisted. Finally, unable to take it any longer, Chief Justice Carrico told the lawyer that in fact his colleague was Justice Kinser, not Lacy, whereupon the lawyer squinted up at the bench and said, "oh, you've changed your hair."

Justice Kinser is a soft-spoken, congenial person, who has been a free thinker on the Court, writing a fair share of separate opinions, including for example her dissent in Almy v. Grisham, with which I agree completely, no matter what the other six justices thought.

Two other college football favorites

A few of my other college football favorites:

1. Sharon Randall's account of taking her brother to a Clemson game, that starts off like this:

"Blind all his life, he has never seen a thing -- not a sunset or a baby's smile or even the nose on my face. Yet he often seems to "see" things the rest of us tend to miss -- things that light him up and make him smile in his own private delight.

You can always tell when he is especially happy because he flicks his hand back and forth really fast as if he's fanning off a big swarm of flies.

Joe's a huge fan of Clemson football. He wouldn't miss a game on the radio for anything -- not even, I suspect, to throw water on his sister if she burst, God forbid, into flames. But he had never been to a game.

So my husband, who is still new to the family and has a lot to learn, suggested that we fly to South Carolina, pick Joe up in Spartanburg, and take him to Death Valley to watch Clemson beat the fur off Furman, so to speak.

"What do you think of that?" I said, when I called my brother to tell him my husband's idea.

"Sister," he said, "I think you married a good man."

In the background, I heard his hand flicking up a storm.

Then I wrote a column about planning to take him to a game and I started hearing from all sorts of Clemson fans, who offered to give us their seats, if need be, and agreed that I had indeed married a good man."

2. Since I took a new member of the Highty-Tighties to Blacksburg a couple of weeks ago, I wonder whether he or his mother or his sister have any idea what the football team's entrance is like.

3. This post and this post and this post include some details about my own football-watching adventures, including hearing the prayer in Death Valley for "those who play, those who watch, and those who do push-ups in the end zone."

College football, for Jill and Joy Lee

This still tickles me, especially "we had some might good dogs." "Condredge Holloway hopping out of an ambulance to return to the UCLA game" in 1974 is about as far back as I go.
SRM, 8/30/2010.

Here's my alltime favorite piece of writing about college football in Tennessee. Probably I posted it last year and will again next year, until the IP police tell not to do it any more:

It's Football Time in Tennessee
by Jake Vest -- Orlando Sentinel -- Jake Vest is the creator of the comic strip That's Jake.

Re-printed in Knoxville News-Sentinel January 14, 1996

I grew up just down the river from Knoxville's Neyland Stadium in the poor direction -- out toward the rock quarries, dairy farms and tobacco patches.

On a crisp mid-October Saturday you could climb a hill, and if the wind was just right, you could hear the rich people booing Bear Bryant and the Tide.

I spent a lot of time climbing those hills and listening.

Football was the second favorite sport out in the greater Forks of the River metropolitan area, right behind squirrel hunting -- which you didn't need a ticket to do.

Sometimes the squirrel hunters would carry transistor radios so they could listen in on John Ward, the Voice of the Vols, calling the shots for that other sport. If Tennessee was driving for a score, there would be a general, temporary cease-fire.

Now that is devotion. Anything that gets a Tennesseean's mind off hunting is something special.

If it was a particularly big game, even the dogs would stop barking. They knew Ward's voice, and they could tell when he was getting serious, a fact that may seem like a stretch to some but you've got to remember we had some mighty good dogs.

Out in my part of the woods, an affection for the Big Orange was something you took up early in life and held onto.

One of my first memories is of sitting on the front porch in a swing with my grandfather, that's Pappaw in East Tennessean, listening on the radio to Tennessee play Ole Miss. That was back in the days when the forward pass was considered an alternative lifestyle, something you did if you weren't man enough to play real football, and both teams rushed about 300 times for a total of about 150 yards.

Every time Ole Miss would gain a step, Pappaw would cuss and spit tobacco juice. By halftime, the side yard looked like an oil spill.

What's most remarkable about this is that I don t think Pappaw had any notion of what a football game was. It wasn't mentioned in the Bible, so he had no reason to have ever read about it; and he sure had never attended a game. He had no idea what those Mississippians were doing. But he knew they were doing it to us. And he was against it. He never set foot in the University of Tennessee campus in his life, but he was a Vol and a mighty good one if I say so myself.

If you can understand my Pappaw, you can probably understand the relationship between Tennessee football and Tennessee football fans. If you can't, there's not much reason to try to explain it.

It's an us vs. them proposition. If you're one of us, you know how we feel; if you're not, I'm not sure you want to know.

Some people make the mistake of separating the game from all the stuff that surrounds the game and therefore can't see what's the big deal. College football in general, Southern college football in the particular and Tennessee Volunteer Go Big Orange college football, to be precise, is much much more than that.

It's crisp autumn afternoons with chicken barbecuing, bands playing and trees trying to out-pretty each other. It's riding down the river as part of the Vol Navy and singing Rocky Top 400 or 500 times in an afternoon. It's a cold beer and a turkey sandwich at Sam & Andy's down on Cumberland Avenue before the game. It's tailgating around Kent Boy Rose's orange and white motor home -- one of the hundreds of that color that line Neyland Drive on game day, right outside Neyland Stadium where General Neyland used to coach. It's memories of Tennessee Walking Horses strutting the sidelines and of cannons in the end zone. It's Old Smokey howling for a touchdown. It's John Ward hollering GIVE HIM SIX when the good guys score and hollering STOPPED BY A HOST OF VOLUNTEERS when the bad guys get stuffed. It's Bobby Denton calling the play by play and telling a fired-up crowd "It's fooootball time in TENN-E-SSEEEEE!" It's old women and little babies decked out in orange. It's African-Americans and redneck farmers high-fiving, hugging and saying "How bout them Vols?" after a touchdown.

It's touchdowns.

It's road trips to Birmingham, radio talk shows, shakers, and flags flapping in the wind. It's dancing to the Tennessee Waltz after the game and sipping illicit Tennessee whiskey during it.

It's memories: The time we beat the unbeatable Auburn and the unstoppable Bo Jackson couldn't go anywhere but backward; the undertalented Daryl Dickey shutting the overactive mouths of a Miami team in the Sugar Bowl we were supposed to lose by 22 but won by 28; holding Larry Csonka and Floyd Little out of the end zone to preserve a bowl victory over Syracuse; reminding Ken Stabler that left-handers can lose football games too; Condredge Holloway hopping out of an ambulance to return to the UCLA game and rally the troops to a tying touchdown; Jack Reynolds cutting his car in half after a loss and earning the nickname Hacksaw.

It's Doug Atkins, the Majors boys, Bob Johnson, Charlie Rosenfelder, Karl Kremser, Richmond Flowers, Herman "Thunderfoot" Weaver, Dewey "Swamp Rat" Warren, Tony Robinson, Curt Watson, Steve Kiner, Willie Gault, Carl Pickens and Reggie White and all our other heroes running through that big T while the Pride of the Southland band plays and over 100,000 of us holler and carry on like free-will Baptists having a spell. It's also memories of my daddy sitting on the front porch during the last autumn Saturdays of his life listening to the game on the radio and cussing and spitting tobacco juice every time an opponent gained a step on us. He would understand what I'm talking about.

So would Pappaw.

I could go on, but you probably get the picture. If you don't, you won't ever so there's no reason to go further.

I guess it's the kind of feeling that just runs in the family.

On Guy Tower

When The Virginia Bar Association hired Guy Tower as executive director, they got the right man, and so it's sad news to read that he is retiring, but happy news for him. Not many people can do so many things well, as the job requires and as he did, with good humor. I'm glad my time on the VBA board was while he was there.

Here he is on the left, with three other of my favorites - Patricia Epps, Judge Winship Tower, and John Epps.

NC nuisance law cannot be applied to TVA plants in Tennessee

Yesterday in State of North Carolina v. TVA, the Fourth Circuit in an opinion by Judge Wilkinson joined by Judges Shedd and Niemeyer held that North Carolina's common law of nuisance could not be applied to require the Tennessee Valley Authority to spend a billion dollars to retrofit its coal-powered generation plants in East Tennessee to comply with North Carolina's emissions laws.

Judge Wilkinson wrote, by way of introduction:

"If allowed to stand, the injunction would encourage courts to use vague public nuisance standards to scuttle the nation’s carefully created system for accommodating the need for energy production and the need for clean air. The result would be a balkanization of clean air regulations and a confused patchwork of standards, to the detriment of industry and the environment alike. Moreover, the injunction improperly applied home state law extraterritorially, in direct contradiction to the Supreme Court’s decision in International Paper Co. v. Ouellette, 479 U.S. 481 (1987). Finally, even if it could be assumed that the North Carolina district court did apply Alabama and Tennessee law, it is difficult to understand how an activity expressly permitted and extensively regulated by both federal and state government could somehow constitute a public nuisance. For these reasons, the judgment must be reversed."

Constitutional challenge to FOIA revived

The Virginia Freedom of Information Act limits the right of access to the public records of state and local government in Virginia to the citizens of the Commonwealth. Today in McBurney v. Cuccinelli, the Fourth Circuit in a somewhat split decision reversed the E.D. Va., concluding that some of the out-of-state plaintiffs have shown they have standing to bring a constitutional challenge to this limitation - but not against Mr. Cuccinelli.

Watch what you ask for

In MCI Constructors v. City of Greensboro, the Fourth Circuit in an opinion by Judge Duncan joined by Chief Judge Traxler and Judge Davis affirmed an arbitration award in favor of the City and against the contractor for over $14 million, arising under a $29 million contract for the construction of a wastewater treatment facility.

The case began when the Contractor filed suit against the City and its Engineer, then the City counterclaimed for breach of contract. The District Court granted summary judgment for the City on the counterclaim, in the amount of $13 million, but the Fourth Circuit reversed and remanded, in 2005.

On remand, the parties agreed to arbitration. The arbitration was heard in 2006, the arbitration panel decided the merits of the contract claim in 2007 and awarded $14 million as damages in 2008. The panel refused to modify its award and refused the Contractor's request for a "reasoned award." Back in District Court, the parties filed twenty-two briefs, including such issues as whether the $14 million award included or did not include the $9 million that was still owed to the Contractor for other parts of the contract.

It doesn't sound like the Contractor's decisions to file the suit and then to choose arbitration turned out well - and I've been there.

One for probation officers and riders of public transportation

Today in U.S. v. Alvarado Perez, the Fourth Circuit in a published opinion by Senior Judge Arthur L. Alarcon of the Ninth Circuit, joined by Judges Gregory and Shedd, affirmed an enhanced jail sentence in a gun case for an illegal immigrant gang member and sex offender who took a loaded revolver with him on a city bus to a meeting with his probation officer, where immigration officials seized him and found the pistol in his backpack.

Judge Alarcon, so it says here, "was the first Hispanic appointed to the Ninth Circuit Court of Appeals when former president Jimmy Carter named him to the bench in 1979. He previously served as Chief of Staff and legal counsel for Governor Edmund G. Brown and as chair of the California Parole Board."

On Kagan and Byrd

One of the raps on the Supreme Court nominee being considered this week, Elena Kagan, is that she has never been a judge, never tried a case, and never argued an appeal until just recently.

Off the top of my head, the last couple of Supreme Court justices who were not judges before they went on the Supreme Court were William Rehnquist and Virginia's own Lewis Powell, who were appointed by Nixon. Rehnquist was in the Justice Department after several years of private practice in Arizona, while Powell the former ABA president was with Hunton & Williams, as it is now known. I don't think that either of these two suffered from lack of influence on the Supreme Court on account of their lack of prior judicial experience.

The passing of Senator Robert Byrd from West Virginia reminds me that in his book, he claims that President Nixon considered him for the Supreme Court, before the "surprise" nominations of Rehnquist and Powell in 1971. Evidently having a lot of free time on his hands, Byrd graduated from law school in D.C. while he was a senator, but never took the bar examination. I'm almost certain that Elena Kagan is every bit as qualified as Robert Byrd was to be on the United States Supreme Court.

On Kagan and McChrystal

This morning I saw this article which says among other things: "The solution to a less politicized military can be accomplished via dilution, but for this to happen more political centrists and liberals would have to join the military. I doubt this will happen. According to tens of thousands of surveys conducted by University of Virginia social psychology professor Jonathan Haidt, politically conservative individuals disproportionately value both respect for authority and loyalty — values that perfectly align with military culture. By contrast, those on the political left disproportionally value caring for others and fairness. These are admirable preferences, but they don't immediately comport with a military career."

And, it reminds me of some things I've thought about before. One is that there is nothing wrong with making lawyers to change the world, notwithstanding for example the views of the critics of the law schools at Liberty and Regent. There are a few posts here about the start-up of the Liberty law school, a few years ago.

The Rumsfeld v. FAIR case always struck me as an outrage, both because it was legally unsustainable and because the means never fit the end. In the FAIR case, the law schools claimed that the Solomon Amendment that punished schools for banning military recruiters violated the First Amendment rights of the law school, or some part of it. The Supreme Court rejected this claim, 8-0.

One of the law school administrators at the front of the military recruitment ban was Supreme Court nominee Elena Kagan, whose hearings are this week. If people like her really wanted to change the military, they should have taken a page from Jerry Falwell and Pat Robertson's playbook and been trying to get more Harvard lawyers in the JAG corps, rather than less. The military recruitment ban was unjustified and unjustifiable, legally and practically. If it's true that liberals and centrists are less likely to choose the military of their own accord, then would-be liberal reformers like Ms. Kagan should have been trying to do more not less to encourage them to pursue military careers. It would appear that General McChrystal could have have used a few on his staff, so that he might at least have had more of a clue when he or others around him were saying stupid things.

The Goodlatte Building?

Rep. Goodlatte opposes the renovation of the federal building in Roanoke, named for former Congressman and Supreme Court Justice Richard Poff, preferring instead the construction of a new building.

Chief Justice Hassell on the state of the judiciary in Virginia

Here are the remarks of the Chief Justice to the assembled judges of the Commonwealth last month in Norfolk.

He discussed the problem of the various programs and funding challenges, and then a bit about himself, since it will be his last judicial conference as the chief judge:

"I was born in Norfolk, at Norfolk Community Hospital, which is about 20 minutes from this hotel, adjacent to the campus of Norfolk State University.

I went to elementary school in Norfolk. Judge Jerrauld Jones and I were among 14 black kids who voluntarily integrated Lake Taylor Junior High School in Norfolk. I was one of the first in a group of students who was bussed across town in an effort to integrate the Norfolk public schools.

I attended church in Norfolk, and my great faith in God was birthed, developed, nurtured and matured in Norfolk. My parents met in Norfolk; they were married in Norfolk; and I was raised in Norfolk.

My grandmother, who was a widow with five children at the age of 20 – she was married, but her husband, after whom I was named, died unexpectedly – came to Norfolk in search of work because she had to support her children. She was a domestic worker, and she worked for a Norfolk lawyer whose name appears on probably more deeds of trust than any other lawyer in Virginia, that being Samuel White. He was very kind to my grandmother, and not only did he provide legal help to her, but he helped her acquire real property, which in turn improved her standard of living.

The first time I ever met a lawyer was in Norfolk, Judge Joseph Jordan, who was a member of the Norfolk City Council, and who later became the first black general district court judge in Norfolk.

I have many wonderful memories of Norfolk. I also had the pleasure of attending a hearing in which a young lawyer by the name of Henry Marsh successfully argued to the federal district court in Norfolk that in order to achieve meaningful integration, bussing was a necessary tool. Henry Marsh won his case, and henceforth, I and thousands of other Norfolkians who were enrolled in the public schools began the experiment of racial integration in our public school system.

Some of my mentors are also from Norfolk: Judge James Benton, who was the first judge of color on the Court of Appeals of Virginia, Justice John Charles Thomas, who was the first judge of color on the Supreme Court of Virginia. They were my mentors, they are my friends, and they encouraged me throughout my career. As a matter of fact, when I was a student at the Harvard Law School, John Charles Thomas, who was then a lawyer at Hunton & Williams, would regularly write letters to me. I guess he thought he was my older brother, and he made sure I was attending class and completing my studies."

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.