Publisher's Notebook

The U.S. Supreme Court on April 29 upheld a Virginia law that says the commonwealth doesn’t need to respond to Freedom of Information requests from people who live out of state.

The high court’s reasoning in McBurney v. Young apparently hinged on economics. Virginia can draw a valid distinction between residents and nonresidents because the people of the commonwealth are the ones who pay the fixed costs required for agency recordkeeping.

And Attorney General Ken Cuccinelli crowed afterwards that the decision was “a victory for Virginia taxpayers.”

You can ignore the AG’s comment as election-year pablum but you can’t ignore the general disdain that the high court seems to have toward FOIA.

The FOIA and other good-government sunshine laws were passed to provide transparency for the public. They were designed to allow the public to know what was going on, without having to dig too terribly deep.

In the unanimous opinion, Justice Samuel Alito reduces the function of FOIA laws to providing a “service.”

“Virginia’s FOIA law neither ‘regulates’ nor ‘burdens’ interstate commerce; rather, it merely provides a service to local citizens that would not otherwise be available at all,” he wrote.

Really?

The plaintiffs in McBurney were a guy in Rhode Island seeking state child support info and a man from California seeking data on property assessments in Henrico County.

Those are somewhat typical of the types of requests that someone outside the commonwealth might have.

Megan Rhyne, executive director of the Virginia Coalition for Open Government, noted several others in a post on the VCOG website.

Other out-of-staters with requests might include a woman in Indiana trying to get nursing home data for placement of her elderly mother. Or a grad student in Alabama trying to get election data for a school project. Or a man in Bristol, Tenn., who is worried about the condition of a bridge across the state line in Bristol, Va., and seeks inspection data.

Rhyne, addressing her piece to the nine justices, put it this way: “I don’t think the opinion the lot of you embraced on Monday gives any thought to just how public records are used day in and day out by everyday citizens who are just trying to make sense of their world and how government is impacting it.”

Here’s the thing about the Virginia FOIA with its newly endorsed practice of spurning out-of-state requests.

It’s awfully easy for a nonresident to ask someone here to make the request. You might even see someone seeking to handle those services for a fee (FOIA ’R’ US, anyone?).

So it sets up an easily avoided hoop that makes this law pretty meaningless. Why have meaningless laws?

Some open-government advocates fear that other states will take a cue from McBurney and join the eight states that have resident-only FOIA laws. If that happens, you might see informal arrangements between businesses or companies to make FOIA requests in their states, similar to way that a law firm near a state border will work with a firm on the other side of the line. All it takes is a resident’s signature, and the FOIA request or lawsuit is ready for filing.

Rhyne noted that the lawyer for the commonwealth, when making his argument before the Supreme Court, referred to FOIA laws as a “fad” of the 1960s.

A fad? No, that’s wrong. A fad is something that goes out of style.

Some headlines are funny. Some are inspired. And some are wince-worthy.

When I saw this one, I felt their pain, remembering the number of times that we have caught “the Virginia Trail Lawyers Association” on galley — so far as I know they are plaintiff’s lawyers over there, not hikers.

Here is an item posted this morning on TheInterMountain.com in Elkins, W.Va.:

“Local lawyer named Fellor of the American College of Trail Lawyers”

Maybe the guy is a jolly good fellor…

H/T to Peter Vieth

Here’s something ironic.

More and more law students are graduating from law school without jobs. More and more people who live in rural parts of America are without local lawyers and have to drive far distances to hire same.

What is a way to get the jobless and the lawyer-less together?

Call it livin’ on a prairie (apologies to Bon Jovi).

South Dakota is the first state in the union to pass a law giving lawyers an annual subsidy to live and work in a rural area, reports the New York Times.

The new statute takes effect in June; as many as to 16 participants will receive an annual subsidy of $12,000 under a pilot program. A lawyer who participates must agree to a five-year commitment under the program.

South Dakota’s system is modeled after the federal program for doctors, dentists and nurses that has been in place for 40 years. The National Health Service Corps has nearly 10,000 participating professionals who serve 10.4 million people, half in rural areas.

In South Dakota, 65 percent of the lawyers live in four urban areas. In Bennett County, by the Nebraska border, the one lawyer who is there is retiring; right now a potential client has to drive 120 miles to find another lawyer.

The people behind the program are pretty sure they can convince jobless students that law practice in the hinterlands is actually pretty good, with interesting, varied and rewarding legal work.

You can bet the people at law schools who think the big thoughts and advise students on how to put that expensive new degree to work will be watching this new experience in the Mount Rushmore State.

Lawyers at big law firms often get accused of padding their high-rent bills.

Now there’s some apparent proof of the practice, at least at one really big firm.

The New York office of DLA Piper, the country’s largest law firm, sued a client for whom it handled a bankruptcy matter for $675,000 in unpaid legal fees.

That was the proverbial kick of the hornet’s nest.

The client, Adam Victor, an energy industry executive, fired back with a counterclaim accusing DLA Piper of “a sweeping practice of overbilling,” reported Dealb%k, a New York Times blog.

Victor’s lawyers sought discovery of the law firm records and got back 250,000 pages of documents.

Two of those 250,000 documents are getting a lot of attention – an internal email exchange between lawyers at the firm.

Only a month after the case had been filed, one lawyer seemed to acknowledge that there was a padding issue, warning that “I hear we are already 200K over our estimate – that’s Team DLA Piper!”

A colleague responded that a lawyer on the bankruptcy case “has random people working on random research projects in standard ‘churn that bill, baby!’ mode.”

“That bill shall know no limits,” he added.

DLA Piper, no surprise, declined comment on the suit or the emails.

Victor’s lawyer has amended his counterclaim to include a fraud claim and a demand for $22.5 million in punitive damages, or 1 percent of DLA Piper’s reported revenue last year.

Lawyers get paid to parse arcane rules and to figure out how they apply to a particular fact pattern.

Real estate practice has some rules that are so colorful, they get their own names. Anyone remember The Rule in Shelley’s Case and The Rule Against Perpetuities?

But the law has its match for arcane rules in the grand old game of baseball.

The official rulebook of baseball (you can download your very own copy at mlb.com) is thick for what is really a game for kids. And the rulebook is thorough, covering all kinds of fact patterns. A lawyer would be proud how many are included.

For example, there are 23 different ways a batter can get to first base. One of them is “hit a single.”

There are 15 different ways a pitcher can balk, defined in my downloaded rulebook  as “an illegal act by the pitcher with a runner or runners on base, entitling all runners to advance one base.”

“Illegal act.” See? Baseball and the law are practically one.

And baseball has its own judges. They wear masks and pads and stand behind home plate.

Recall U.S. Chief Justice John Roberts’ famous opening statement at his Senate confirmation hearing in 2005. He promised that he would “remember that it’s my job to call balls and strikes and not to pitch or bat.”

Law imitates baseball.

The MLB rulebook is practically a Bible to some sportscasters.

A few years back, I was watching a game on TV when a batter popped up a pitch.

“Infield fly rule,” one of the announcers was quick to say, way faster than any lawyer could assess a case and say, “Rule Against Perpetuities.”

Ah, the infield fly rule. It’s often cited in any discussion of complicated baseball rules.

The Infield Fly Rule comes into play if there are fewer than two outs and there are runners at first and second or the bases are loaded. Any playable pop fly within the infield is an automatic out. See MLB Official Baseball Rules, Rules 2.00, 6.05 (2013).

Why is it an out?

It would be easy for the infielder to say, oops, my bad, and let the ball drop, then pick it up and start a quick double play on base runners who thought the ball would be caught.

You don’t hear the Infield Fly Rule called very often. But the rules are there, waiting for the facts to align.

A legal scholar once wrote a law review article on the Infield Fly Rule. In 1975, the University of Pennsylvania Law Review published a note entitled, “The Common Law Origins of the Infield Fly Rule.”

It starts off, rather elegantly, with the line, “The Infield Fly Rule is neither a rule of law nor one of equity; it is a rule of baseball.”

For eight well-footnoted pages, the author slyly discusses the rule with the high tone and seriousness of purpose one finds in most law review articles. But he was, remember, talkin’ baseball.

The note was written by a man named William Stevens, who apparently was the first guy ever to have fun in a law review article.

When he died in 2008, the New York Times obituary quoted an observer who said that Stevens’ little baseball note started “a cultural revolution.”

Well, a revolution among those who write law review notes, anyway.

The best oddball baseball rule that I found was the Travesty Rule.

Its origins are kind of murky, but it’s a catch-all rule holding that when anyone, such as a player or manager, did something to make “a travesty of the game,” i.e., to disrespect it or to reduce it to a farce, then that action was null and void. Umpires could eject a player or manager, or call a man out, if the offender was committing an act that would be “a travesty of the game.”

In 1951, St. Louis Browns owner Bill Veeck pulled a publicity stunt that put him in the baseball history books: He signed Eddie Gaedel, a 3-foot-7-inch dwarf, and put him in as a pinch-hitter. The strike zone for Gaedel (who wore the number “1/8”) was about an inch and a half; he walked on four pitches, registering a lifetime on-base percentage of 1.000.

American League President Will Harridge banned Gaedel the next day, saying his appearance made a “travesty of the game.”

Pittsburgh sportswriter Tom Hritz credited the origin of the Travesty Rule to Don Hoak, a member of the Pirates in the early 1960s. Hoak once advanced 89 feet down the third-base line after a foul ball. The umps ordered him back to third, but Hoak said the rules didn’t require him to tag up. The guys in blue consulted the rulebook and realized he was right. As the pitcher wound up for the next pitch, Hoak stepped one more foot and scored. The Travesty Rule was written a few days later, along with the tag-up rule, according to Hritz.

Today, according to Rule 7.08(i), the Travesty Rule is limited to shenanigans such as “running the bases in reverse order.”

Just imagine if the law had a Travesty Rule. If opposing counsel tried oppressive hardball tactics at a deposition or overly theatrical antics at a trial, a lawyer could go to judge and argue his opponent was making “a travesty of the law” and should have his case dismissed.

Boy, there’s a rule I bet judges could get behind.

What do you get when you cross this month’s NCAA basketball tournament and the upcoming papal election in Rome?

The Wall Street Journal has the answer:

“March Madness, Vatican Style: Who’ll Come Out of the Sweet Sistine?”

San Diego lawyer Erubey Lopez had a meeting scheduled with a criminal client last Tuesday.

He arrived at the local jail, where the client was residing, turned over his cell phone per jail procedures and went to the waiting room where lawyers and clients confer.

An officer locked the door and presumably went to get Lopez’s client.

That was a big “presumably.”

A half hour passed.

An hour passed. Lopez was fuming. He kept punching an intercom button, trying to get the guards’ attention. No luck. He banged on the door. No better luck.

Finally he gave up and waited.

The good news is that the waiting room did not turn into the Tomb of the Forgotten Lawyer. After four hours, a guard heard Lopez and freed him.

An official from the sheriff’s office called with an apology, but it may not be enough. Lopez is mulling whether to file a lawsuit.

San Diego’s NBC 7 has the story.

H/T to Steve Emmert for the link.

Warren Buffett bought the Richmond Times-Dispatch and several other local newspapers last year. His company, Berkshire Hathaway Media, just bought the third-largest paper in North Carolina, The News & Record in Greensboro.

But in announcing the deal, the paper, well, misspelled the new boss’s name. Oops.

Yep, the front page story has the headline:

“Buffet media buys paper”

Unless someone can argue that “Buffet media” actually referred to a group of reporters lined up to chow down at the local Shoney’s, someone is headed to the doghouse.

H/t to jimromensko.com.

Several years ago, Roanoke lawyer Mike Pace was sitting at the dinner table with his wife Nancy and daughters Maggi and Cate.

They were talking about Maggi’s social studies class in school; the kids were studying the different branches of government – executive, legislative and judicial.

But as he talked with his daughter, Pace realized that schools taught how the government works, but not why it works. Students weren’t getting a sense of how the rule of law operates in the United States. Pace developed an idea about how to fix that.

With the Roanoke Bar Association, he launched a Rule of Law pilot project in 2009, recruiting in local lawyers, who fanned out to schools across the Roanoke Valley.

Pace had served as president of the Virginia Bar Association in 2008, and he sold them on the idea.

With the muscle and manpower of the VBA and the financial backing of the Virginia Law Foundation, the project spread to other parts of the state, with lawyers and judges picking up the chalk and spreading the project’s message in Virginia’s schools.

What do they teach? According to the website of what is now the VLF/VBA Rule of Law Project, the goal is to share the message that, under the rule of law, the people make the laws, which are to be fairly and equally applied to everyone. People agree to obey those laws, because there can be no legitimate government without the consent of the governed. The rule of law is the tie that binds citizens together as a nation of diverse people. That’s the why that may be missing from civics classes.

Bar groups in other states have taken a look at the project and followed Virginia’s lead. Pace and Tim Isaacs, who serves as the project’s director of education, have been taking the message to Europe and other international venues.

Last fall, Roanoke College established the Center for Teaching the Rule of Law; Pace serves as its CEO, and Isaacs is the center’s vice president.

On Jan. 25 in Williamsburg, the VBA bestowed its highest award, the Gerald L. Baliles Distinguished Service Award, to Pace for his service to the association and for his signature achievement, the Rule of Law Project. Past recipients include such luminaries as Baliles himself (who presented the award), Supreme Court Justice Lewis F. Powell Jr.; 4th Circuit Judge Roger L. Gregory; and Supreme Court Justices Harry L. Carrico, Leroy R. Hassell Sr. and Elizabeth B. Lacy, among others.

Pace was typically modest when he accepted the award, saying he did so on behalf of all the people who had been involved in the project.

But his idea remains bold. The stated mission of the VLF/VBA Rule of Law Project is nothing less than “to change fundamentally the way the rule of law is taught in America’s schools.”

Thanks to Pace, they are on their way. Well done, sir, well done.

WILLIAMSBURG–The Virginia Law Foundation inducted 17 Virginia lawyers last night as its 2013 Class of Fellows. The VLF holds its induction dinner each year in connection with the Virginia Bar Association winter meeting. Members of the Class of 2013 are:

David N. Anthony, Richmond – Troutman Sanders
William L. Babcock Jr., Alexandria – William L. Babcock Jr. PC
Jonathan T. Blank, Charlottesville – McGuireWoods LLP
Jack W. Burtch Jr., Richmond – Macaulay and Burtch PC
Robert L. Calhoun, Alexandria – Redmon, Peyton & Braswell
Clarence M. Dunnaville Jr., Midlothian – solo practitioner
Thomas R. Frantz, Virginia Beach – Williams Mullen
Jacob A. Lutz III, Richmond – Troutman Sanders
Albert M. Orgain IV, Richmond – Sands Anderson PC
J. Lee E. Osborne, Roanoke – Woods Rogers PLC
Don W. Piacentini, Henrico – Parker, Pollard, Wilton & Peaden, PC
Gregory B. Robertson, Richmond – Hunton & Williams, LLP
Melissa Walker Robinson, Roanoke – Glenn Robinson & Cathey PLC
Bruce C. Stockburger, Roanoke – Gentry Locke Rakes & Moore LLP
John Tarley Jr., Williamsburg – Tarley Robinson PLC
Lucia Anna Trigiani, Alexandria – MercerTrigiani
J. Page Williams, Charlottesville – Feil, Petit & Williams PLC

Induction as a Fellow of the Virginia Law Foundation is a special honor conferred by the VLF Board on selected Virginia attorneys, law professors, and retired members of the judiciary who are deemed to be outstanding in their profession and in their community.