Friday, August 31, 2007

Latin’s not dead … it’s just resting

A federal circuit court opinion about whether a joint with a liquor license can let its topless dancers dance fully nude is probably the last place you’d expect to find judges debating the health, or lack thereof, of Latin.

Latin – the noble language of the Romans – recently has enjoyed a bit of a comeback in schools, if you believe the education articles in the popular press.

Judge Boyce F. Martin Jr. doesn’t buy it. He wrote the opinion in the Aug. 30 case handed down by the 6th Circuit, Hamilton’s Bogarts Inc. v. State of Michigan. In the case, the court reversed a district judge, and granted an injunction to the adult bar and topless dancer who were the plaintiffs.

But there was some confusion about whether the state of Michigan was arguing res judicata or collateral estoppel. Martin said that the court would treat the argument as one of collateral estoppel since, he wrote in a footnote, “Latin is a dead language anyway.”

Judge Alice M.Batchelder concurred, noting, “I write separately only to express my suspicion that, like the reports of Mark Twain’s death … the report of the death of Latin in the majority opinion’s footnote 5 is greatly exaggerated.”

Which is nice way of saying, “Et tu, Boyce?”

Thanks to Baker McClanahan for the tip.

Former attorney sentenced

A former bankruptcy attorney was sentenced yesterday to a year and a day in prison for conspiracy to commit bank fraud.

Leslie W. Lickstein, 54, of Fairfax, was accused of preparing a false settlement statement in the sale of a property in Great Falls in July 2002.

As a result, Lehman Brothers Bank made a multimillion dollar home mortgage loan to a home buyer who was not creditworthy. The loan went into default, and the bank sold the property at a loss of $1.1 million. Lickstein was ordered to pay that amount in restitution.

Chuck Rosenberg, U.S. attorney for the Eastern District of Virginia, identified Lickstein as the first president of the Northern Virginia Bankruptcy Bar Association.

Lickstein’s license to practice law was suspended for five years in 2004 by the U.S. Bankruptcy Court in Alexandria and by the Virginia State Bar. He was found to have failed to disclose to the court a fact necessary to avoid assisting in a criminal or fraudulent act.

Beach prosecutor’s position vindicated

Virginia Beach Commonwealth’s Attorney Harvey L. Bryant III has personal and institutional reasons to be pleased with Tuesday’s ruling by the Virginia Court of Appeals that judges can defer findings of guilt only with the express approval of the General Assembly.

Bryant is the president of the Virginia Association of Commonwealth’s Attorneys. Gibson v. Commonwealth “substantiates the position we have taken all along,” he said.

From a personal standpoint, it vindicates his insistence that Virginia Beach judges not defer judgment in drunken driving cases, as some of them have done. That insistence got him in trouble with the judges, who filed a complaint with the Virginia State Bar contending that he undermined the integrity of the legal system by accusing them of illegal conduct.

Bryant responded that the complaint overstated his comments to a Republican breakfast gathering but acknowledged that he had told the group that he thought judges were exceeding their authority in deferring judgment without legislative authority to do so. He also admitted that he has kept a record of instances in which judges have done so and suggested that he would make that record available when they come up for reappointment. The bar complaint remains under investigation.

He noted that Gibson is still subject to possible review by the full court of appeals or by the Supreme Court of Virginia. “I don’t suppose this is the end of it, but I hope we’re getting close to the end of it,” he said.

See Monday’s VLW for a fuller account of the opinion and the issue.

Wednesday, August 29, 2007

VSB rates candidates to replace Lacy

Four judges from the Virginia Court of Appeals are among nine candidates the judicial nominations committee of the Virginia State Bar has found to be highly qualified to fill the Supreme Court of Virginia vacancy created by the retirement of Justice Elizabeth B. Lacy.

The committee found two candidates to be qualified and made no finding on three others.

The VSB Executive Committee accepted the nominations committee’s report today and transmitted it to Gov. Timothy M. Kaine, who will name Lacy’s replacement. The governor is expected to confer with key legislators before making the appointment because the General Assembly will have the final say when it convenes next year.

Those found highly qualified are:

● Chesterfield County Circuit Judge Michael C. Allen
● Chief Judge Walter S. Felton Jr. of the Court of Appeals
● Court of Appeals Judge Robert P. Frank
● Chesapeake Circuit Judge S. Bernard Goodwyn
● Prince William County Circuit Judge William D. Hamblen
● Court of Appeals Judge Robert J. Humphreys
● Court of Appeals Judge D. Arthur Kelsey
● Prince William County Circuit Judge Leroy F. Millette Jr.
● Chief Deputy Attorney General William C. Mims

Found qualified are:

● Judge L. Thomas Booker Jr., a military judge based in Norfolk
● Mary Jane Hall, a partner at Kaufman & Canoles PC in Norfolk

The committee made no finding on the qualifications of:

● Arelia S. Langhorne, a sole practitioner from Lynchburg
● Sharon M.B. Pigeon, an assistant state attorney general
● Richmond Circuit Judge Margaret P. Spencer

The Virginia Association of Defense Attorneys found eight of those candidates to be qualified: Allen, Felton, Goodwyn, Hall, Hamblen, Kelsey, Millette and Mims.

Arlington judge upholds transportation authorities

Arlington Circuit Judge Benjamin N.A. Kendrick yesterday upheld the new law allowing for the establishment of regional transportation authorities that can issue bonds and impose taxes.

This 2007 General Assembly, as part of a comprehensive transportation package, authorized the creation of authorities in Northern Virginia and Hampton Roads.

Richmond lawyer Patrick McSweeney and the challengers he represents call the plan taxation without representation. McSweeny said he will seek to take the matter to the Supreme Court of Virginia.

The Washington Post has the story.

Monday, August 27, 2007

Priorities, priorities

Two judicial proceedings were conducted at the same time today. In one, a defendant pleaded guilty to a felony with a maximum punishment of five years, and the government will be asking for a fifth of that.

In the other, high-powered lawyers argued about the constitutionality of Virginia’s $3 billion transportation plan, which includes projects, taxes and fees that affect everyone in the state. Guess which hearing attracted 31 satellite trucks and a Richmond Times-Dispatch blogging crew that included at least four reporters and an editor.

Granted, the criminal case involves conduct by one of the country’s best known athletes that NFL Commissioner Roger Goodell succinctly described as “cruel and reprehensible.” But the relative attention given Michael Vick and the most important public policy issue confronting the state suggest that it’s all celebrity, all the time for the media.

Abusive driver fees: Making it a little personal

The controversy over Virginia’s new “civil remedial fees” for “abusive drivers” has generated a lot of ink in the last two months.

The Washington Post has made the brouhaha a little personal for the commonwealth’s lawmakers.

Quite a few public officials, from Gov. Tim Kaine to Speaker Bill Howell to other members of the General Assembly, have been given traffic tickets, mostly for speeding, over the past few years. Not indicated is whether they were rushing to Richmond to get the people's business done or fleeing from the capital to get the hell out of Dodge.

Would these lawmakers qualify as “abusive drivers” and get nailed for the hefty fees?

Actually, probably not, since many of the offenses detailed in the Post piece fall just this side of reckless driving.

A Kaine spokesman, while denying the governor would be classified as an “abusive driver,” tries to take the Tim-as-everyman approach: “Like many Virginians, the Governor has been cited for speeding…”

“Like many Virginians”? The guy must have been talking about all the officials named in the Post article.

Facial recognition system at Beach a failure

Virginia Beach spent $200,000 in 2002 to put together a facial recognition security system at the Oceanfront, but the system has essentially been scrapped, reports The Virginian-Pilot. It was designed to match facial images to a computer database, but it suffered from technical problems and has not been used in two years.

The Beach chief of police noted that the systems work very well in a closed environment such as a casino or an airport. But the facial-recognition technology just doesn’t cut it at an outdoor venue.

Virginia Beach was the second U.S. city to try the technology, following the lead of Tampa, Fla. But Tampa also encountered problems and abandoned its project in 2003.

Friday, August 24, 2007

4th Circuit reverses business noncompete damage award

Last year, VLW reported a Richmond federal court decision that highlighted the difference between a noncompete in the sale of a business, versus an employment contract noncompete.

In Western Insulation LP v. Moore, U.S. District Judge James R. Spencer awarded nearly $1 million in damages to a Henrico County insulation company that alleged the business sellers, a married couple, breached the sales contract’s restrictive covenant.

The buyers alleged the sellers leased office and warehouse space and two pickup trucks to their former COO to set up a competing business, and helped the COO with bank financing.

Spencer enforced the sales contract’s seven-year noncompete that covered California and the metropolitan Phoenix area, where the sellers had been operating their business.

In its per curiam unpublished opinion released last month, the 4th Circuit upheld the enforceability of the covenant. The panel also agreed the wife committed a breach by entering into the guaranties and related agreements, and the husband by hiring two former employees.

But the appellate court vacated the damage award, saying neither the valuation of the noncompete promises at $250,000, nor the buyer's evidence of lost profits, supported the damage award.

In addition to vacating the damage award, the 4th Circuit also reversed the district court’s denial of injunctive relief to the disappointed buyer.

Thursday, August 23, 2007

AG’s Cup presented for Food Frenzy

The Norfolk office of McGuireWoods received the Attorney General’s Cup today for collecting the most food per capita of any law firm in the state during the first statewide “Legal Food Frenzy” in April.

Attorney General Bob McDonnell presented the Revere bowl to John Padgett, the office’s managing partner, and Shana Jones, an associate who coordinated the office’s effort, at the Southeastern Virginia Foodbank in Norfolk.

Other winners recognized at the event included Norfolk’s Vandeventer Black LLP, which won the award for the most food collected per capita by a large law firm, and Regent University law school, which topped the collection efforts of state law schools.

With 169 law firms participating, the frenzy produced 679,000 pounds of food, well above the goal of 500,000 pounds.

In presenting the award, McDonnell said, “I hope this is the start of the statewide ‘Legal Food Frenzy’ becoming a tradition in the Virginia legal community, and I look forward to next year’s event.”

Judge rejects JMU male jocks’ Title IX claim

A Harrisonburg federal district judge has rejected a challenge to federal Title IX guidelines that led to the demise last year of multiple men’s sport teams at James Madison University.

On Aug. 21, U.S. District Judge Glen Conrad denied a preliminary injunction against enforcement of the gender-equity regulations that allegedly allow colleges to use gender-conscious capping or cutting of male athletic programs.

Plaintiff Equity in Athletics Inc., a nonprofit coalition of coaches, student-athletes, alumni, fans and booster clubs, said the regulations led JMU to drop men’s teams for swimming and diving, track and field, cross country and wrestling programs. The university also eliminated men’s and women’s archery and gymnastics programs, as well as women’s fencing.

The university made the changes in response to Title IX’s proportionality requirements, which it said mandated that a school’s athletic programs mirror its undergraduate gender mix. In JMU’s case, that’s 61 percent female and 39 percent male.

Conrad said in his published opinion in Equity in Athletics Inc. v. Dep’t of Education that the harms identified by the plaintiff – including students’ athletic careers interrupted or halted – were “emotionally compelling,” but Equity’s arguments against the time-tested legal framework for the university’s actions were unlikely to succeed on the merits.

Monday, August 20, 2007

Vick judge talks to media

Please, guys, give us—and yourselves—a break.

That was the clear message, although it was said more judiciously—not judicially—because U.S. District Judge Henry E. Hudson was in a suit rather than in his robe, even if he did speak from the bench.

Hudson took the extraordinary step today of personally telling the news media that a defendant had agreed to plead guilty and when he would do so. Of course, it is Michael Vick who will appear next Monday at 10:30 a.m. Vick is expected to plead guilty to the same charge that three co-defendants already have pleaded to: one count of engaging in an interstate dogfighting conspiracy.

The judge emphasized that Vick is most unlikely to be at the courthouse before then and that any unexpected appearance would be posted on the court’s Web site in plenty of time for the media to gather. “You will be advised of everything as it occurs,” Hudson said. “Govern yourselves accordingly.”

Hudson prefaced his marks by noting the constant presence of the media on the courthouse steps in recent days.

Mary Kay Hatton, the chief deputy clerk for the Richmond Division, made a rare courtroom appearance to hear Hudson’s remarks. “He knows these people want a life,” she said with a nod to reporters. “He’s trying to do it in a nice way.”

Thursday, August 16, 2007

Murder, rape convictions questioned

The New York Times Magazine to be published Sunday has an extended article questioning the validity of the convictions of four sailors who confessed to the rape and murder of a woman in Norfolk in 1997.

The story by free-lance writer Alan Berlow cites inconsistencies between the confessions and the physical evidence and among the four confessions by defendants Joseph Jesse Dick Jr., Danial Williams, Derek Tice and Eric Wilson.

Moreover, DNA evidence at the scene of the death of Michelle Moore-Bosko did not match any of the four and does match that of Omar Abdul Ballard, who has been convicted of another rape and wrote a female friend that he had killed Moore-Bosko.

The four have filed a request for a pardon from Gov. Timothy M. Kaine. They contend that their confessions were made at the end of lengthy and abusive interrogations by a Norfolk detective.

Four former Virginia attorneys general, including Richard Cullen, also a former U.S. attorney and now chairman at McGuireWoods, believe the defendants are innocent, Berlow reports. The victim’s family and police, prosecutors and the defense attorney for one of the defendants continue to insist on their guilt.

Tuesday, August 14, 2007

Williamsburg's College Delly won't be a Starbucks

Here's one for the alums of Their Majesties' Royall Colledge of William and Mary in Virginia: The Delly has been saved.

The College Delly, that is.

Back story: Last September, a plan filed with the Williamsburg Architectural Review Board provided a shock: Starbucks was going to buy The College Delly, and turn it into...well, a Starbucks.

The spelling-challenged Delly, at its current location since 1976, is a W&M institution. It's a place to get a sandwich, to go on a casual and cheap date, to see and be seen. After the Starbucks announcement, someone started a Facebook group seeking to save The Delly. Current students started an online petition. Alums moaned and groaned, figuring each trip to Williamsburg and The Delly might be the last.

Well, fall gave way to winter, and The Delly still was there. Come spring...still there.

Happy news in The Daily Press today: The owner of The Delly, Dean Tsamouras, has sold to a local businessman, Jerry Tsitsidopoulos, who plans to keep The Delly as a restaurant and sandwich shop. The closing was held last night at the office of Williamsburg lawyer John Konstaninou.

Let’s go to the Supreme Court, AG says

The Virginia attorney general’s office has offered to help put Anthony O. Price on a fast track to the Supreme Court of Virginia in his attack on the constitutionality of the state’s civil remedial fees.

Esther Windmueller, who is representing Price along with Craig S. Cooley in Henrico County courts, said the AG’s office told her it would agree to an interlocutory appeal provided by Virginia Code § 8.01-670.1.

J. Tucker Martin, a spokesman for the AG’s office, said, “While the Henrico Circuit Court's decision is correct, we believe that it is imperative for the state Supreme Court to hear the case and affirm the Henrico court’s reasoning as soon as possible. To that end, we will support any effort by Price to expedite proceedings.”

Windmueller said she is not inclined to accept the offer because she wants to raise issues in addition to the equal protection argument that Circuit Judge L.A. Harris Jr. rejected on Monday. She also questioned whether the civil procedure statute applies to a law with both civil and criminal aspects.

On another front in the civil remedial fees war, you may be wondering about the authority for Mary Elizabeth Minter to be the “virtual representative” for anyone who faces the fees, as Roanoke attorney John P. Fishwick Jr. is requesting in Roanoke Circuit Court.

Fishwick says he is relying on the concept that plaintiffs in equity can sue for themselves and others similarly situated as outlined in § 5.18 [D][2] of the 2003 edition of Sinclair and Middleditch’s treatise on Virginia Civil Procedure. U.S. District Judge James P. Jones mentions the concept favorably in dictum in Indian Creek Monument Sales v. Adkins (VLW 004-3-038).

Locals fare well on ‘Best Firms for Women’ list

Working Mother magazine and Flex-Time Lawyers LLC, a consulting outfit, have published for the first time a list of “The Best Law Firms for Women.”

Fifty firms nationally were named, based on an application that covered issues important “to the retention and promotion of women lawyers.” Those topics included workforce profile, benefits and compensation, parental leave, child care, flexibility and retention and advancement of women.

Two of the big firms based in Richmond, Hunton & Williams and McGuireWoods, made the list.

And a number of DC-based firms, some of whom have Virginia offices, were on there as well:
Arnold & Porter
Covington & Burling
Dickstein & Shapiro
Hogan & Hartson
Miller & Chevalier Chartered
Patton Boggs
Sidley Austin

Other firms on the list were based in different locales, but have offices here in the Old Dominion:
DLA Piper US, New York
Morrison & Foerster, San Francisco
Pillsbury Winthrop Shaw Pittman, New York
Reed Smith, Pittsburgh
Womble Carlyle Sandridge & Rice, Winston-Salem, NC

Monday, August 13, 2007

Suit to block civil fees filed in Roanoke

Attorneys for an 81-year-old woman filed suit today in Roanoke County Circuit Court to block enforcement of Virginia’s civil remedial fees.

The attorneys—John P. Fishwick Jr. and John E. Lichtenstein of Roanoke and Charles Van Hoback of Salem—contend that Virginia Code § 46.2-206.1 violates the U.S. Constitution by applying to Virginia residents but excluding non-residents and by imposing “discriminatory sanctions and penalties upon indigent defendants with no regard to their ability to pay.”

The complaint alleges that the plaintiff, Mary Minter, is indigent and would immediately lose her right to drive because she is unable to pay the fees that would be associated with the reckless driving charge she is facing.

The attorneys allege that the law violates the Virginia Constitution by requiring court clerks to pay what are in fact punitive fines rather than civil fees to the state’s general fund instead of the Literary Fund. Moreover, requiring the clerks to collect a tax violates the constitutional separation of powers because it has no bearing on the cost of prosecutions, the suit alleges.

The papers request a preliminary injunction and ask the court to allow Minter to proceed “as the virtual representative and party by representation of all Virginia citizens who have been assessed or will be assessed such charges.”

Henrico Circuit judge upholds civil remedial fees

In Commonwealth v. Price, an opinion released this afternoon, Henrico County Circuit Judge L.A. Harris Jr. upheld the civil remedial fees for “dangerous drivers” under Virginia Code § 46.2-206.1.

Defendant Anthony O. Price argued the fees are unconstitutional, in that they are levied against Virginia drivers, but not against drivers from other states traveling through Virginia and charged with the same offenses.

Earlier, General District Judge Archer L. Yeatts III convicted Price on a fifth offense of driving on a suspended license but refused to impose the extra $750 in civil fees because the judge said the statute violated equal protection principles.

But Harris found the statute bears a rational relationship to a legitimate legislative purpose

“Clearly, Virginia residents have more of an obligation to finance their own roads, than do non-residents driving through on Virginia’s highways,” Harris wrote in his Aug. 13 opinion.

Harris also said the legislature may have rationally decided to exclude non-residents in this civil remediation fee scheme because “the costs of collecting on a judgment outweighs any benefits with respect to out-of-state motorists.”

The Henrico judge concluded Price had not met his burden to negate “every conceivable basis” to support the legislative classification, and the statute must stand.

On the off-ramp to adultery

So you got one of those EZ-Pass things that you stick on your windshield, allowing you to zip through a toll plaza and avoid a long line.

Better stay on the marital straight and narrow.

The Associated Press has a story that may strike fear among philanderers: Divorce lawyers have discovered that records for E-ZPass, originally known as Smart Tag in Virginia, can be useful to prove where a cheating spouse was.

Or as Jacalyn Barnett, a New York divorce lawyer, colorfully put it, “E-ZPass is an E-ZPass to go directly to divorce court, because it's an easy way to show you took the off-ramp to adultery."

Okay, that’s a nice turn of phrase, but per the AP, lawyers are finding the E-ZPass info to be a useful tool to prove or disprove a wandering spouse’s whereabouts, or a way to impeach credibility.

Twelve states, mostly along the Atlantic coast, are on the E-ZPass system. State agencies in seven of those states, including Virginia, will turn over records in response to a court order in either a criminal or civil case, including a divorce. Four states will let the records be used only in criminal cases; West Virginia doesn’t have a policy.

Moral of the story, if there is one: If you're going to stray, pack that E-ZPass away.

Friday, August 10, 2007

McGuireWoods names new managing partner

McGuireWoods, the Richmond-based legal giant, has a new managing partner, Thomas E. Cabaniss (see picture at right).

Cabaniss, a partner in the firm’s Charlotte office and the first managing partner from outside Richmond, succeeds William J. Strickland, who held the post for 11 years. Strickland will return to full-time practice in the firm’s capital markets department.

Cabaniss joined the firm’s Norfolk office from Kaufman & Canoles in 1985, moved to the Tysons Corner office in 1992 and helped establish the Charlotte office in 1998. He was on the executive committee from 1992 to 1998 and chaired the finance committee from 1996 until his election as managing partner.

He concentrates his practice in the areas of real estate and commercial lending, banking and creditors’ rights.

A native of Farmville, Strickland graduated from North Carolina State University in 1972 and from the University of Virginia law school three years later.

“Tom’s in-depth understanding of the firm, his passion for excellence and his devotion to client service will serve us well as we take McGuireWoods to the next level,” said Richard Cullen, the firm’s chairman. It has about 750 lawyers in 15 offices in this country, Europe and Central Asia.

Former governor’s son pleads guilty

Lawrence D. Wilder Jr., son of the Richmond mayor and former governor, pleaded guilty today to two misdemeanor counts related to his role as treasurer of his father’s gubernatorial campaign fund.

Richmond Circuit Judge Walter W. Stout III sentenced Larry Wilder to 12 months in jail, suspended, on each of the counts and fined him $1,000.

The younger Wilder, 45, pleaded guilty in federal court in 2000 to a misdemeanor count of possession of cocaine. The fund, which at one time had about $172,000 after the 1989 election, had dwindled to a few thousand dollars by then. Larry Wilder acknowledged that he was addicted to cocaine from 1992 to 1999.

Under state law at the time—since amended largely because of the case—money in a campaign fund essentially belonged to the candidate, and he was free to do with it as he pleased, so long as it went to charitable or political purposes or the candidate paid taxes on money he used for personal purposes.

Taxes on the money were paid as part of the resolution of the federal case, and the Wilder family thought the matter was over, according to James W. Morris III, who represented Larry Wilder.

However, an internal audit performed by the Virginia Board of Elections in 2004 disclosed that no campaign finance report had been filed since Jan. 15, 1999. Paul Goldman, a former political confidant of the mayor, was named treasurer of the campaign and reported that only about $3,000 was left. Goldman disclaimed any knowledge of what might have happened to the money.

The board referred the matter to Commonwealth’s Attorney David M. Hicks in September 2005, who did nothing on it until Michael N. Herring replaced him the following January.

Herring said he asked for access to the federal investigation documents and finally received them this March. He had Chris Bullard, a top assistant, and Lynchburg Commonwealth’s Attorney Michael R. Doucette review those materials for possible prosecution.

Because Larry Wilder had authority to spend the money as treasurer of the fund, a felony theft charge could have been prosecuted only with testimony from his father that he had used it for an improper or illegal purpose, Herring said.

Herring said he used the possibility of the felony charge as leverage to get an acknowledgement of wrongdoing from Larry Wilder, which required the waiver of the statute of limitations for misdemeanor offenses.

“Any trial of this would have become protracted and ugly,” Herring said. With the resolution of the case, “I am relieved beyond all description, primarily because it used a disproportionate amount of time.”

Game on? Judge not happy over discovery

Pretrial discovery can be a matter of strategy, and some lawyers even approach it as a game.

But one circuit judge in Norfolk isn’t pleased with what he saw as game-playing in a medical-malpractice case. In Oakley v. Warren, Judge Everett A. Martin Jr. reamed both plaintiff’s and defense lawyers, resorting to elementary school terms.

“If this case is representative of the way expert witness disclosure is usually handled in medical malpractice cases, the noble aims of discovery have been twisted into a grown-up version of hide-and-seek,” he wrote.

He castigated the plaintiff’s lawyers for not timely disclosing information, but defense counsel wasn’t blameless. The judge called a defense maneuver a “game of blind man’s buff.” The defense had proposed setting aside a number of days for depositions, but neither side would need to disclose names or specialties.

Ultimately, the plaintiff’s side lost this round, since the judge disallowed the use of their two belatedly designated experts. But the judge fired a parting shot at both: “In future cases, rather than delaying designations until the deadline and scheduling depositions in a 'blind' fashion I suggest counsel follow the rules and the scheduling order and try, instead, honesty and candor.”


Arlington is next venue for 'fees' challenge

The next battleground for the fight over the commonwealth's new scheme of "civil remedial fees" for "abusive drivers" will be Arlington.


Charles Mason, a Navy veteran, has been charged with driving 75 mph in a 55 mph zone. He could be hit for a fee of $1,050 if convicted. He is scheduled to appear in Arlington General District Court on Monday, and his lawyer, Kyle Courtnall, has filed a motion testing the constitutionality of the fees.

The Washington Times had an item Wednesday and the Washington Post has the story this morning.

So why the "maybe" above? As Del. Dave Albo, a former traffic court prosecutor, told both Washington newspapers, and as other traffic lawyers told us for our story in this coming Monday's edition, in many if not most traffic courts, standard practice would be to knock this charge down to improper driving or speeding, offenses not impacted by the new fee scheme.

Courtnall vows to press forward. Stay tuned.

Wednesday, August 8, 2007

Character counts, according to sentencing court

A criminal defendant whose character and connections generated more fan mail than an Alexandria federal judge has seen in 25 years won a reduction of his guidelines sentence for obstruction of justice and lying to a grand jury and to an FBI agent about his activities in Pakistan and alleged contacts with a jihad training camp controlled by al-Qaeda affiliate Lashkar-e-Taiba.

Senior U.S. District Judge James C. Cacheris said in his Aug. 3 opinion in U.S. v. Benkahla that defendant Sabri Benkahla, an American citizen born and educated in Northern Virginia, has “strong, positive relationships with friends, family and the community.” According to Cacheris, correspondence addressed to the court attested to Benkahla’s “honor, integrity, moral character, opposition to extremism and devotion to civic duty.”

But the government’s evidence showed that eight persons to whom Benkahla was connected went to foreign jihad training camps, one was convicted of soliciting treason, and the government was able to get cooperative testimony leading to convictions for specific terrorist acts in Australia, France and England.

Although Benkahla’s convictions made him eligible for a sentence up to 21 years under a special enhancement for felonies involving terrorism, Cacheris said Benkahla was the “quintessential candidate for a downward departure,” and ruled that a 10-year sentence would satisfy federal sentencing policy.

Civil fees ruling due next week

The first circuit judge to consider the constitutionality of Virginia’s civil remedial fees said he hopes to rule next week.

Henrico Judge L.A. Harris Jr. heard brief arguments today from prosecutor Duncan P. Reid and from defense attorney Craig S. Cooley, who is representing Anthony O. Price along with Esther J. Windmueller.

General District Judge Archer L. Yeatts III convicted Price last week of a fifth offense of driving on a suspended license but refused to impose $750 in civil fees because he found them unconstitutional.

Yeatts said he could conceive of no rational basis for applying the fees to Virginia residents but not to out-of-state drivers in light of the legislative purpose set forth in Virginia Code § 46.2-206.1: “to generate revenue from drivers whose proven dangerous driving behavior places significant financial burdens on the Commonwealth.”

Harris then granted the expedited review required by Code § 16.1-131.1.

He asked Cooley today whether the legislature could have been rational in assuming that residents use state roads more than non-residents and that the state would have a much greater chance of collecting the fees from Virginians.

Cooley responded that there is “no reason to distinguish between an out-of-state and an in-state dangerous driver” in the context of providing money for transportation.

Tuesday, August 7, 2007

Gun-toting felon wins ‘justification’ claim

Convicted felons caught with guns may tell stories they think justify carrying a weapon.

The 4th Circuit finally has heard a story strong enough to act on. In U.S. v. Mooney, a published case released yesterday, the court granted post-conviction relief to a West Virginia man sentenced to 180 months in jail after he turned in a firearm he wrestled away from his drunken ex-wife.

John Mooney left his job at 2:00 a.m. at a Huntington bar to return to the home he shared with his ex-wife, according to the 4th Circuit opinion. Mooney’s ex-wife came into his bedroom and pointed a gun at his head. He knew she had been drinking and knew she was trigger-happy. She had pulled a gun on Mooney before, had fired a gun at a boyfriend, and wounded a different ex-husband with the same gun touching the side of Mooney’s head.

Mooney wrested the gun away from the ex-wife, who thwarted his attempts to call 911. He called his boss and said he wanted to come back to the bar, where he turned in the gun to the police.

But when Mooney was charged with possession of the weapon, his lawyer told him and the court Mooney had no defense, and advised Mooney to plead guilty. The lawyer’s representation fell short of the Sixth Amendment standard, and Mooney gets another chance, the 4th Circuit panel said.

The appellate court said previously it had identified and described the “justification defense,” but never applied it. The district court record in Mooney’s case presented “one of those rare occasions” when the allegations, if proven at trial, would require the court to present the defense to the jury “and would likely persuade the jury,” said Judge Paul V. Niemeyer.

Suit takes aim at driver 'fees,' transportation plan

A group of anti-tax conservative activists filed a lawsuit yesterday in Richmond Circuit Court, challenging the state’s new scheme of “abusive driver” fees and the transportation plan passed by the 2007 General Assembly, reports The Associated Press. The 25-page, 13-count lawsuit was filed by Richmond lawyer Patrick McSweeney.

Plaintiffs in the suit include Del. Robert G. Marshall of Prince William County, former Del. Dick Black and a Warren County woman who could be assessed the "civil remedial fees." She was cited July 24 for driving 66 mph in a 45-mph zone.

Defendants include Gov. Tim Kaine, Attorney General Bob McDonnell and House Speaker Bill Howell. McDonnell's office will defend the law.

Sunday, August 5, 2007

Oliver Hill dies at 100

Retired Richmond civil rights lawyer Oliver W. Hill Sr. died this morning at the age of 100, reports The Associated Press.

Mr. Hill was one of the lawyers in the 1954 landmark decision, Brown v. Board of Education. He and his colleague Spotswood W. Robinson represented black students from Prince Edward County. Mr. Hill's law school classmate, Thurgood Marshall, was lead counsel when the case went to the U.S. Supreme Court.

Gov. Timothy M. Kaine said in a statement, "As a pioneer for civil rights, an accomplished attorney, and a war veteran, Mr. Hill’s dedication to serving the Commonwealth and the country never failed. And, despite all of the accolades and honors he received, Mr. Hill always believed his true legacy was working to challenge the conscience of our Commonwealth and our country."

Monday morning update:

The news of Mr. Hill's passing prompted a number of stories in the Aug. 6 editions of several newspapers. The Richmond Times-Dispatch has a career retrospective, as does the Washington Post.

Mr. Hill grew up in the Star City, and the Roanoke Times offers this article. The Associated Press has a piece containing reaction and tributes from a number of Virginia's elected officials.

Not included in the AP item is a statement from the judges of the Richmond Juvenile & Domestic Relations Court, who work in the Oliver Hill Courts Building in downtown Richmond.

Chief Judge Kimberly B. O’Donnell noted, “Oliver Hill inspired many people in our nation by his extraordinary advocacy for equal justice under the law. His entire career was focused upon improving the lives of ordinary people and their families. He greatly honored this Court by allowing it to bear his name.”

Friday, August 3, 2007

Beach officials rethink ABC restrictions

It seemed like a good idea at the time.

After all, Ernestine Combs really needed a liquor license for her lounge, Uroma.

And Virginia Beach really wanted to keep Virginia Beach’s notorious “Block,” the area near 17th Street and Pacific Avenue, as orderly as possible.

So the city agreed not to object to the liquor license so long as Combs agreed to certain restrictions: No do-rags; no sneakers, T-shirts or athletic wear after 9 p.m.; and certainly no hip hop or gangsta rap “that could incite violence.”

A lawyer in the office of City Attorney Les Lilley signed off on the deal, which was negotiated by public safety attorney Kathy Rountree.

It was such a good idea that the folks responsible didn’t perceive that those restrictions might be viewed as insensitive, if not racist.

As Kerry Dougherty points out in a column in The Virginian-Pilot, some of those folks are having second thoughts.

Lilley says he was outraged and offended when he learned of the restrictions. Rountree says she was so excited that Combs agreed to close her doors at 2 a.m. that she lost focus on some of the other restrictions.

Lilley says he plans to ask the AG’s office to remove the restrictions.

Two courts find fees unconstitutional

Two days. Two rulings that Virginia’s civil remedial fees are unconstitutional.

Yesterday, it was Henrico General District Judge Archer L. Yeatts III, who acknowledged that he is obliged to enforce the law if there is any rational basis for it. However, “The court rejects the speculations postulated by the Commonwealth, and mindful of its of its own obligation to do so, has exhausted its speculation quotient in trying to conceive of any others,” Yeatts wrote.

Today it was Richmond General District Judge Thomas O. Jones, who said, “The court finds that there is no rational speculation to support the distinction between [resident] and non-resident ‘dangerous’ drivers where the purpose of the statute is to generate revenue.” He called the constitutional analysis “an absolute no-brainer.”

A more complete story of Yeatts’ case and a link to his opinion are at The two rulings will go to the respective circuit courts for the expedited review mandated by Code § 16.1-131.1.

Meanwhile, as The Daily Progress reports in an article by Bob Gibson, outrage at the fees continues to mount with 171,000 signatures on online petitions to remove them, and politicians up for re-election in November talking about “tweaking” or repealing them.

Daily Record in Baltimore starts blog

Congratulations to our colleagues at The Daily Record in Baltimore, who have joined the blogosphere.

Their new blog, On the Record, debuted this past Wednesday.

The TDR blog is now the seventh maintained by a Dolan Media Company operation. Look in the right column for a list.

Thursday, August 2, 2007

VLW parent company went public today

MINNEAPOLIS – Dolan Media, the parent company of Virginia Lawyers Weekly, went public today.

The Minneapolis-based firm’s shares opened on the New York Stock Exchange under the ticker symbol “DM,” with an initial public offering price of $14.50.
When trading commenced at 10 a.m., shares opened at $16.40 apiece and quickly climbed to trade above $17 per share.

The operator of niche business and law publications said net proceeds from the offering are expected to be approximately $138.6 million and will be used to redeem all outstanding shares of the company’s preferred stock, to repay $30 million of outstanding debt under the company’s credit facility, and for general corporate purposes, including acquisitions and working capital.

In 2006, the company's revenue increased to $111.6 million from $77.9 million. However, net loss widened to $14 million from $7.5 million in the previous year, according to an April Securities and Exchange Commission filing.

Goldman, Sachs & Co. and Merrill Lynch & Co. are acting as joint bookrunners and as representatives of the underwriters. Piper Jaffray & Co. and Craig-Hallum Capital Group LLC are acting as co-managers.

Dolan Media owns niche newspapers in 19 markets, including Richmond, New Orleans, Baltimore, St. Louis and Boston. It acquired the Lawyers Weekly chain of publications in 2004.