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Southwest Virginia Law Blog

Items of interest to lawyers in Southwest Virginia and beyond.
By Steven R. Minor

Post Frequency: 2.3/day

Last Entry: July 09, 2020 at 12:40:00

Appellate arguments that are not waived by the appeal waiver in a plea agreement

Posted on July 09, 2020
In U.S. v. Romero, the Fourth Circuit in a per curiam opinion for the panel of Judges Niemeyer, Agee, and Diaz ruled that the appellant's three arguments raised on appeal were each of them within exceptions to the general rule that appeal waivers are enforceable, but the arguments were not established by the record or premature.

On being the test cow as a district court judge

Posted on July 07, 2020
In U.S. v. Perry, the Fourth Circuit in an opinion by Judge Diaz for a panel including Judge Richardson and District Judge Johnston from West Virginia affirmed the sentence imposed by the district court, where the district court judge described himself as the "test cow" on the issue of whether a certain offense under North Carolina state law was a crime of violence.

When Judge Wilkinson argues for reversal by the Supreme Court

Posted on July 07, 2020
In U.S. v. Gary, Judge Wilkinson joined by Judges Niemeyer, Agee, Quattlebaum, and Rushing, wrote at considerable length explaining why the United States Supreme Court should reject the analysis of the panel decision in the case.The decision for the panel was written by Judge Gregory, joined by Judges Thacker and Floyd, about the holding of the Supreme Court in Rehaif v...

On tortious interference with parental rights in the context of custody litigation

Posted on May 16, 2020
With interest I listened to the arguments and read the opinion in Padula-Wilson v. Landry. In an opinion by Justice McCullough, the Court affirmed the dismissal of Ms. Wilson's claims of tortious interference with parental rights against the various professionals who got sucked into her custody litigation...

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On being "made"

Posted on April 23, 2020
I listened with interest to the arguments in Vest v. Mountain Valley Pipeline.The statute at issue is a mess: "C. Notice of intent to enter shall (i) be sent to the owner by certified mail, (ii) set forth the date of the intended entry, and (iii) be made not less than 15 days prior to the date of mailing of the notice of intent to enter...

Today's administrative law case

Posted on April 15, 2020
I was listening today to the arguments before the Supreme Court of Virginia by way of the live stream. One of the cases is about whether there is an implied cause of action to enforce a statute against a state agency that has refused to make a final decision, claiming lack of sufficient information from the aggrieved party...

Life during wartime

Posted on April 02, 2020
As I posted on Facebook, my first experience with the courts acting under the initial version of the Supreme Court's emergency order, that has since been renewed, was somewhat confusing. One judge took the position that he lacks "jurisdiction" to have any hearings by telephone or make any rulings except in the enumerated categories of essential cases...

When is other state law relevant

Posted on February 12, 2020
I was listening to the argument before the Supreme Court of Virginia in Everett v. Tawes, which seemed pretty high-powered to me, and part of the discussion was about the language in the Virginia Code that makes each installment of child support a judgment by operation of law, and part of the discussion was about the relevance of the law of other states on retroactive modification of support...

On the investiture of Justice Chafin

Posted on September 08, 2019
I missed the ceremony but got to the after-party for the swearing-in of Justice Teresa Chafin of the Supreme Court of Virginia, in time to say hello to the new justice and her husband and her brother. I'm sure that Justice Chafin will do well on the Court...

On the W.D. Va. vacancy

Posted on September 08, 2019
The White House is considering the nomination of U.S. Attorney Tom Cullen for the judicial vacancy in the W.D. Va., bypassing the two candidates Circuit Judge Kilgore and Magistrate Judge Ballou proposed by Senators Kaine and Warner. The senators get to decide whether to go along with any nomination...

On Wyatt Moseley Elliott

Posted on July 25, 2019
This week I learned about Wyatt Moseley Elliott, who was the first president of the VMI Alumni Association, and the leader of the City of Richmond's home guard unit during the Civil War that became known as "Elliott's Grays" for which there is somewhere a roadside historic marker, that he was captured as a prisoner-of-war and locked in D...

Temporary injunction entered against Title IX proceeding against U.Va. student for off-campus incident involving non-student

Posted on July 16, 2019
In Doe v. Rector and Visitors of the University of Virginia, Senior Judge Conrad entered a temporary injunction brought against a student of the University of Virginia based on an off-campus incident with a non-student.

When the Virginia sheriff detains people for the ICE

Posted on July 16, 2019
In Rios v. Jenkins, Senior Judge Conrad dismissed for failure to state a claim a section 1983 action challenging the policy of the sheriff of Culpepper County to detain persons arrested for misdemeanors for up to 48 hours at the request of the ICE.

On the constitutionality of the Virginia statute prohibiting the sale of alcohol to habitual drunkards

Posted on July 16, 2019
In Manning v. Caldwell, the Fourth Circuit in an opinion by Judges Motz and Keenan, joined by Chief Judge Gregory and Judges King, Wynn, Floyd, Thacker, and Harris, reversed the dismissal for failure to state a claim in a constitutional challenge based on vagueness to the provisions of Va...

Fourth Circuit affirms dismissal of claim based on unreliability of untrue statements made by former Governor McAuliffe and President Clinton's late brother-in-law

Posted on July 09, 2019
In Bi v. McAuliffe, the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judges Niemeyer and Duncan, affirmed the dismissal by Judge Hilton of the fraud claims of a group of Chinese investors against Terry McAuliffy and Tony Rodham.The opinion concluded that the allegations of misrepresentations were sufficient, but the plaintiffs failed to allege sufficient facts to show reasonable reliance, since many of them didn't speak English and also there were writings distributed to the investors that disclaimed what McAuliffe and Rodham were saying in their sales talks.

On Judge Fred Rowlett

Posted on July 05, 2019
Before my big trip to Orlando and my little trip to Pittsburgh, I got to see the swearing-in of Judge Fred Rowlett.Judge Rowlett was a law clerk for Judge Williams in the Abingdon federal courthouse the first time I went there in the summer of 1986, before I started law school, and I think Julie Campbell Dudley was there with him...

On the appeal to the U.S. Supreme Court in the Mountain Valley Pipeline cases

Posted on July 05, 2019
The Roanoke paper had this article about the appeal to the U.S. Supreme Court by the landowners who lost a decision before Judge Dillon of the W.D. Va. that was affirmed by the Fourth Circuit about the taking of their property for the Mountain Valley Pipeline before the valuation of the take was completed.

On the Class Action Fairness Act

Posted on June 28, 2019
Today in Dominion Energy, Inc. v. City of Warren Police and Fire Retirement System, the Fourth Circuit in a decision by Judge King, joined by Judge Thacker, and with Judge Motz dissenting, reversed the decision of the District Court in South Carolina regarding the removability under the Class Action Fairness Act of two class action cases filed in state court in South Carolina...

On waiver of the Eleventh Amendment

Posted on June 11, 2019
In Pense v. Maryland Department of Public Safety, the Fourth Circuit in an opinion by Judge King joined by Judges Motz and Wynn held that the District Court's ruling that the State of Maryland had waived its Eleventh Amendment protection from being subject to suit in federal court under Maryland's Fair Employment Practice Act was immediately appealable and also wrong...

What's wrong with juvenile court, anyway

Posted on June 11, 2019
I've written a few posts about withdrawal of appeals from the Juvenile Courts, and also the amendments to Va. Code 20-79(c), and I think that there is an increasing bias in some circles that I wouldn't have known about if I hadn't taken an interest against the Juvenile Courts...

Another view of the old Abingdon courthouse

Posted on March 23, 2019
The Library of Congress has this famous photo of Abingdon, including this view of the old courthouse and the Cummings farm behind it.

What to my wandering eye should appear

Posted on March 23, 2019
In a recent opinion by Justice Kelsey I saw the word "discernable."Is that even a word?This post says yeah but no.I looked around some more. In recent years, the appeals courts in Virginia use "discernable" over "discernible" about half the time...

Withdrawal of appeals, revisited

Posted on March 01, 2019
I listened with interest to the oral argument in the case of Spear v. Omary.The statutes authorizing the withdrawal of appeals from the juvenile court are new and untried, and they are the work product of the Boyd-Graves conference.Section 16.1-106.1(F) lists some things that might or might not happen "[u]pon the withdrawal of an appeal from a juvenile and domestic relations district court...

The legislation that re-created the post-Civil War Western District of Virginia

Posted on March 01, 2019
In 1871, Congress split the U.S. District Court for Virginia back into two districts, Eastern and Western, with court sessions to be held in the Western District at Lynchburg, Abingdon, Harrisonburg, and Danville. (Charlottesville, Roanoke, and Big Stone Gap were added later...

The old Abingdon federal courthouse

Posted on March 01, 2019
Here is an old postcard with the image of the Abingdon federal courthouse as it was before 1945.Here is a photograph of the same building taken in 1901.Here is another postcard view, with awnings and the flagpole.

On comity, abstention, and the Tax Injunction Act

Posted on March 30, 2011
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

Posted on March 01, 2011
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...

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

Posted on February 25, 2011
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

Posted on February 22, 2011
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...

On Chief Justice Hassell

Posted on February 09, 2011
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...

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