Definition of residence key to avoiding fees

Narrow legal analysis may be a more effective way to attack Virginia’s civil remedial fees than broad constitutional and public policy arguments.

That could be a lesson from the case of Rajesh Cherkukuri, an Indian national who was convicted earlier this month of drunken driving in Prince William County.

Cherukuri has a Virginia driver’s license and has lived in the state for about a year. Prosecutors insisted that those circumstance made him a Virginia resident and subject for payment of $2,250 in civil fees over 26 months. The exclusion of nonresidents from liability for the fees has been the major argument opponents of the law have raised in saying that it violates the equal protection clauses of the state and federal constitutions.

Not so fast, Cherukuri’s attorney, Lou Brooks of Manassas, countered. The definition of resident in Code § 46.1-206.1 is ambiguous enough that interpretation of the term requires a look at the use of the word in other sections of Title 46.2, Brooks insisted.

General District Judge Craig D. Johnston agreed. A key concept of residence is domicile, which generally requires “the intention to remain [in a place] for an indefinite period of time.” Cherukuri doesn’t fit that definition because he is in this country on a temporary student visa and intends to return to India, Johnston wrote on Sept. 25 in Commonwealth v. Cherukuri (VLW 007-12-03).

“I conclude that the statutory exemption of nonresident students from those persons who are deemed residents for purposes of Title 46.2, including impositions of the civil remedial fee, was a deliberate exemption,” Johnston said in refusing to impose the fees on Cherukuri.

Arlington judge rules ‘fees’ unconstitutional

Arlington General District Judge Dorothy Clarke ruled Tuesday that the state’s new fees for “abusive drivers” are unconstitutional.

Clarke bought the defendant’s equal protection argument. The scheme applies only to state residents.

The Washington Post has the story.

Roanoke judge won’t stop collection of driver fees

A Roanoke County circuit judge has rebuffed a request to stop statewide collection of “civil remedial fees” from “abusive drivers.” The Roanoke Times reports that Judge Jim Swanson denied an injunction to a team of lawyers representing several drivers who face assessment of the new hefty fees.

The judge expressed some skepticism about their lawsuit challenging the constitutionality of the new scheme, but he delayed ruling for another day.

Chesterfield judge upholds 'fees'

Yet another general district judge has upheld Virginia's new scheme of "civil remedial fees" for "abusive drivers." This time, the venue is Chesterfield County.

The Richmond Times-Dispatch reports that Chesterfield General District Judge Philip V. Daffron has ruled that the statute establishing the fees is constitutional. Turning back a challenge by five drivers, Daffron found that the General Assembly had a rational basis for passing the law.

The lawyer for one of the defendants said he may appeal the ruling.

The latest on Michael Vick

Before suspended Atlanta Falcons quarterback Michael Vick pleaded guilty in Richmond federal court to a dogfighting charge a few weeks ago, it seemed like the news in central Virginia was all Vick, all the time. Since then his name mostly has been showing up low in the stories about yet another Falcons loss.

But today's papers have two new items about him.

This one is no surprise: Surry County Commonwealth’s Attorney Gerald G. Poindexter says that he will ask a grand jury for state indictments of Vick on dogfighting-related charges today. The Associated Press has the story.

And The Daily Press has an item about a bank that is suing Vick for $2.3 million, claiming default on a loan. Claiming his indefinite suspension by NFL Commissioner Roger Goodell may be a change in employment jeopardizing his ability to repay, the Royal Bank of Canada says that Vick is in default and it wants its money back. The bank filed papers in Newport News federal court last week.

Gould to be executive director of VSB

Karen A. Gould, the immediate past president of the Virginia State Bar, will succeed Thomas A. Edmonds as executive director of the agency.

The appointment is not yet official because the VSB Council must act on it at its October meeting, and the Supreme Court of Virginia must approve the council’s recommendation.

However, Gould was recommended Friday by a committee that searched for almost a year for Edmonds’ replacement. The chairman of the committee, former VSB President Phillip V. Anderson of Roanoke, said in a letter to past presidents of the agency, “The Supreme Court has been kept advised of the process along the way and has given its support to the process and has agreed to accept the Council’s recommendation.”

The committee was prepared to recommend a replacement in March, but the leading candidate withdrew at the last minute to accept another offer in the private sector.

The committee decided to start over and, in addition to readvertising for the post, decided that committee members should approach candidates they knew personally and believed could perform the job. Gould, who had been an ex officio member of the search committee, was one of those approached. She then immediately withdrew from further participation in the committee other than as a candidate.

After two rounds of interviews, Gould was the unanimous choice of the committee on the first ballot, Anderson said.

“I look at this as an opportunity to do a job that I feel very passionate about,” Gould said.

Edmonds, 69, is retiring at the end of the year after 18 years as the chief administrative officer for VSB.

Morva trial to be moved from Montgomery County

A circuit judge has ruled that the capital murder trial of William Morva, charged with killing two law enforcement officials, should be moved from Montgomery County, reports the Roanoke Times. A manhunt for Morva around Blacksburg briefly closed the Virginia Tech campus on the first day of classes of the 2006 school year.

The judge found that too many people in the jury pool had ties to the case, which touches a number of localities in the New River Valley and Tech.

It is the first case to be moved out of the county in nearly 30 years.

Supreme Court takes R-MWC cases

The Supreme Court of Virginia will review the decision of Randolph-Macon Woman’s College to admit men after all.

Students and graduates opposed to the decision filed two suits challenging the action in Lynchburg Circuit Court, one alleging breach of contract because the college had promoted its status as an all-woman institution in recruiting students and in soliciting contributions, and the second contending that the college had changed its charitable purpose without first getting court approval.

Both suits were dismissed on demurrer, and a three-judge panel of the Supreme Court rejected a request to review the contract claim. However, the plaintiffs filed a request for a rehearing, and the court agreed this week to hear the claim at the same time it decided to review the charitable immunity claim in the first instance.

26 life terms

When the 11-year-old girl’s mother confronted her daughter about her suspicion that the girl’s stepfather had been abusing her, the girl at first denied it.

The mother took her for a medical examination anyway in July 2006. Not only was the stepfather’s DNA found inside the girl’s vagina, she was pregnant by him.

A Washington County jury took a very dim view of those facts at the end of a three-day trial on Wednesday. It recommended that Sixto Lopez Laines, 31, serve life in prison on each of 26 sexual assault counts—12 for sodomy and seven each for rape and object sexual penetration.

Heather Howard, the assistant commonwealth’s attorney who prosecuted the case, said Laines is an illegal immigrant who first entered the country from Mexico when he was 17. He and the girl’s mother had lived together in the county since 2001.

The assaults began in January 2004 and lasted for more than two years, Howard said. Most of them occurred while the mother was out of the home on errands, she said.

Virginia Beach judge upholds abusive driver fees

In what appears to be the first ruling in Hampton Roads on civil remedial fees, Virginia Beach General District Judge Calvin Depew Jr. has found them to be constitutional.

The Virginian-Pilot reports that Depew heard arguments Friday in a misdemeanor aggressive driving case and issued an opinion late Tuesday.

General district judges in Hanover and Henrico counties and the city of Richmond have ruled that the fees are unconstitutional because they apply only to Virginians but not to out-of-state residents.

However, circuit judges in Hanover and Henrico reversed the lower court judges, and Richmond Circuit Judge Walter W. Stout III heard arguments last week in an appeal of the city case.

Depew's opinion is at the VLW Web site along with other articles and opinions on civil remedial fees.

In Memoriam: H. Emory Widener Jr.

Senior Judge H. Emory Widener Jr. of the 4th U.S. Circuit Court of Appeals died yesterday at his home in Abingdon, reports the Bristol Herald Courier. He was 83. Appointed to the bench by President Nixon in 1972, Judge Widener took senior status in July.

Honoring the 'Unsung Legal Heroes'

In this week's issue of Virginia Lawyers Weekly, we presented the recipients of our 2007 "Unsung Legal Heroes" awards.

The awards program honors professionals who work behind the scenes in law offices and courthouses throughout the commonwealth, including: legal secretaries/assistants, law librarians, paralegals, firm administrators and IT professionals.

These 15 individuals were nominated by their colleagues and selected based upon their outstanding contributions to the legal community.

Congratulations to all!

Second circuit judge rules on abusive driver fees

A second circuit judge has upheld the constitutionality of Virginia’s civil remedial fees.

Westmoreland Circuit Judge George Mason III reversed last week a ruling by Hanover General District Judge Peter L. Trible that the fees violate the Virginia and U.S. constitutions’ guarantee of equal protection under the law.

Mason heard the case after Hanover Circuit Judge John Richard Alderman disqualified himself because his father-in-law, Del. Frank D. Hargrove Sr., R-Hanover, voted for the legislation.

At least three general district judges—Archer L. Yeatts III in Henrico and Thomas O. Jones in Richmond in addition to Trible—have ruled that the fees are unconstitutional. However, Henrico Circuit Judge L.A. Harris Jr. reversed Yeatts in the only published opinion so far.

Mason referred to Harris’ opinion in ruling from the bench and did not issue a written opinion.

Richmond Circuit Judge Walter W. Stout III heard arguments last week in the appeal of Jones’s ruling and indicated that he would provide a written decision.

The fees drew little attention during the 2007 General Assembly session because they were a relatively small part of a $3 billion transportation package. They require the payment of $750 to $3,000 in three installments over 26 months and are projected to generate about $65 million annually for state transportation needs.

Publicity about the fees shortly before their effective date of July 1 generated a firestorm of opposition over their high cost and their application to Virginians but not out-of-state drivers.

Lesbian partners’ parental rights back before Supreme Court

The Supreme Court of Virginia may yet reach the merits of the effort of a lesbian mother to sever the parental rights of her former partner.

“May” because attorneys for the partner, Janet Jenkins, contend that Virginia law bars consideration of issues in a second Virginia appeal that already were determined in an earlier appeal.

That appeal was to the Virginia Court of Appeals, which ruled in November that Vermont had jurisdiction over issues of custody and visitation for Isabella, the daughter of Lisa Miller who was conceived by artificial insemination. Miller failed to file a proper notice of appeal to the Supreme Court, and the high court refused to consider the case.

While the first appeal was before the court of appeals, Frederick County Circuit Judge John R. Prosser refused to register the Vermont order on the parental rights and responsibilities of Jenkins and Miller. A second court of appeals decision reversed that ruling in light of the court’s holding in the first appeal.

In her petition for appeal to Supreme Court on the validity of the Vermont order, Miller repeats many of the arguments she made in the petition that the Supreme Court dismissed on procedural grounds.

Not so fast, Jenkins responded in her brief in opposition. Because those issues already were decided on appeal, they became the law of the case and cannot be reviewed by the Supreme Court, she contends. The Supreme Court agreed on Sept. 12 to hear the case, Record No. 070933.

In essence, Jenkins contends that the federal Defense of Marriage Act and the Virginia public policy against recognition of gay marriage or civil unions prevent Virginia courts from giving full faith and credit to the Vermont decisions in the case.

Judge delays verdict in workplace altercation

A Suffolk general district judge has delayed the verdict in an assault case after getting assurances from the defense attorney, a member of the General Assembly, that lower court judges can do so, The Virginian-Pilot reports.

Judge James A. Moore delayed judgment for a year in a case brought by a church secretary against a minister. The secretary claimed the minister, unhappy with her leaving early one day, came around her desk and choked her. Her mother, who works at the church, backed her story. The minister’s wife, also present that day, said her husband never went around the desk and didn’t touch the secretary. A total of nine witnesses appeared, including Sen. L. Louise Lucas, D-Portsmouth, who was a character witness for the defendant.

According to the account in the Pilot, Moore said “he wished the General Assembly gave lower court judges the power to delay verdicts.” Del. Kenneth Melvin, D-Portsmouth, represented the defendant. He told Moore that “judges have the power inherently” to delay verdicts.

The Virginia Court of Appeals offered a different point of view three weeks ago. In Gibson v. Commonwealth, the appeals court found that in the absence of explicit legislative authority, judges can’t defer judgment in a criminal case. In the Gibson opinion, Judge Jean Harrison Clements listed the offenses in which judgment can be deferred; assault was not on that list.

Goose pic prompts farmer's $7.5M lawsuit

Andrew Marsinko, a Botetourt County poultry farmer, wasn't happy when he learned that a photo taken of him at the 1996 Virginia State Fair showed up on a greeting card.

The card shows him wearing a cowboy hat and holding a goose on his knee. The speech balloon on the cover says, "Since it's your birthday, you decide -- Would you rather get spanked ..." (Open the card) "Or goosed? Happy birthday!"

Marsinko is a figure of note in poultry circles and went to fairs and auctions where people would rib him about the photo.

His response: a $7.5 million lawsuit against the photographers, the greeting card company, just about everyone involved. He claims defamation, unauthorized use of image and infliction of emotional distress, among other things. The Roanoke Times reports that Marsinko says he never signed a release for the photo, the key to whether he can recover anything.

Ex-Mary Wash president guilty of DUI

Former University of Mary Washington President William J. Frawley was in court yesterday on the first of two drunken-driving hearings he will have this week.

The Richmond Times-Dispatch reports that in Fredericksburg general district court, he entered an Alford plea, in which he did not admit guilt but acknowledged the prosecution had enough evidence to convict him. Frawley is scheduled to appear in Fairfax on Friday.

In Memoriam: Jack Coulter

Retired Judge Jack Coulter died last Thursday at the age of 83. He served on the 23rd Circuit, covering Roanoke, Roanoke County and Salem, from 1973 to 1989. In the 1980s, Judge Coulter twice was under consideration for a seat on the Supreme Court of Virginia. The judge practiced law with his son Philip in Roanoke after leaving the bench.

The Roanoke Times has the story.

Concealed weapon convictions reversed

A box cutter is not a weapon and a pistol is no longer “about the person” if its owner immediately moves away from it after placing it in a car console, the Supreme Court of Virginia ruled today in reversing two convictions for carrying a concealed weapon after having been convicted of a felony.

The box cutter case, Harris v. Commonwealth, reversed Obanion v. Commonwealth, a 2000 opinion from the Virginia Court of Appeals. Although the box cutter in question contained two razor blades and a razor is listed as a weapon that can be concealed, “the item must be designed for fighting purposes or commonly understood to be a ‘weapon’ ” before it will support a conviction, the court said.

In Pruitt v. Commonwealth, the court distinguished the defendant’s actions from those in which the suspect had a weapon in a saddlebag and a purse. “[T]he weapon is not as readily accessible,” the court said.

In another criminal case, Anderson v. Commonwealth, the court rejected a challenge to Virginia Code § 19.2-310.2:1, which requires the collection of a DNA sample after the arrest of a defendant for specific offenses. The collection is analogous to the taking of fingerprints and does not implicate the Fourth Amendment’s ban on unreasonable searches and seizures, the court said.

Moral: Don’t write that stuff on the company computer

Here’s a nugget for the employment bar from Banks v. Mario Industries of Virginia Inc., decided today by the Supreme Court: Disclaimers about no expectation of privacy in the use of company computers will be upheld, and attorney-client privilege is no help to an ex-employee on the point.

The Banks case was a business-tort claim against an employee who wanted to leave his employer and start a competing business.

He tapped out a memorandum outlining his plan, ideas and ambitions for his new business. He used his employer’s computer, printed it out on the office printer and erased the file from the hard drive. He sent the plan to his lawyer for review.

The guy left and followed through on the plan; the inevitable lawsuit followed. A computer forensics expert found the wiped file on the hard drive, and the info was used at trial, which the employer won more than $1.6 million in damages, including more than $50K in punitives.

On appeal, the guy claimed error on admission of the memo, based on attorney-client privilege. The company let employees use office computers for personal business, but their handbook stated that there was no expectation of privacy in that use.

The court moved this point of evidence into the computer age. In a 1988 case, the court said that when parties allow their conversations to be overheard, any privilege is waived. Citing that decision, the court found it was OK to let the memo come in.

Neighbor’s tree may be fair game, Supreme Court says

Overruling a 68 year-old precedent, the Supreme Court of Virginia has uprooted a rule that limited a neighbor’s remedies when confronted by the tree next door.

In a case from Fairfax Circuit Court, Richard Fancher sued townhouse neighbor Joseph Fagella, alleging the spreading root system of a sweet gum tree in Fagella’s back yard had clogged Fancher’s sewer system, and undermined his foundation, backyard patio and a retaining wall.

Based on the 1939 case of Smith v. Holt, the circuit judge denied injunctive relief. Smith said a landowner could only use self-help remedies against intrusive roots and branches from a neighbor’s plantings, if the encroaching vegetation is not “noxious in nature” and causes no “sensible injury.”

But the high court said today “noxious” depends on the viewpoint of the beholder, citing poison ivy and kudzu as questionable flora.

Adopting the more modern “Hawaii rule,” the Supreme Court said that encroaching trees and plants that cause actual harm or pose an imminent danger of actual harm to adjoining property may be regarded as a nuisance, and their owner may be required to cut back or remove the plant material.

The appellate court remanded Fancher v. Fagella for consideration of injunctive relief along with Fancher’s claim for damages.

Supreme Court affirms large awards

It was a good day in the Supreme Court of Virginia for the holders of big verdicts.

The court affirmed seven-figure judgments in four cases with nothing in common other than the size of the awards.

In Commonwealth Transportation Commissioner v. Target Corp., the court upheld an award of $3.3 million in damages to the residue of the property taken in the condemnation of land taken for the expansion of Roberts Parkway in Fairfax County.

The retailer contended that the project hampered the visibility of its store. The court ruled that the commissioner had not preserved its objection to visibility as an element of damages but emphasized that whether it can be remains unresolved.

In John Crane Inc. v. Jones, the court affirmed a $3.4 million award for estate of a man who died from mesothelioma contracted while installing asbestos insulation on ships at Newport News Shipbuilding & Dry Dock Co.

In King v. Cooley, the court upheld a $1.65 million judgment for a woman who contended that she suffered a permanent brain injury from complications of gastric bypass surgery.

In Banks v. Mario Industries, the court affirmed a $1.6 million judgment for a lighting manufacturer and supply company against former employees who left the company to form a competing business. The company alleged tortious interference with contract, breach of fiduciary duty and related legal theories.

Supreme Court of Virginia: Odds on appeal?

The Supreme Court of Virginia releases its latest batch of opinions tomorrow.

If you have a case pending in the high court, some new numbers may help you figure out whether it will be thumbs up or thumbs down for your client.

In a case that has been argued, but not yet decided by order, the odds are good that the lower court judgment won’t hold up on appeal.

According to 2006 data, of the 116 cases decided last year by full opinion, nearly 60 percent reversed or remanded. On the flip side, the court affirmed the trial court judgment in about 40 percent of last year’s cases decided by opinion. The high court decided another 59 cases by order.

This latest set of numbers has good odds for appellants. Over the past five years, the reversal rate for cases decided by opinion has ranged from a low of about 43 percent in 2003 to about 56 percent in 2002.

Of course, the numbers don’t tell the whole story. There is always the merit of a particular case. Oh yes, and the skills of the advocate. But you have both of those things going for you, right?

If you’re not happy with the high court’s decision in your case, don’t count on getting a chance to change the court’s mind.

Last year, the Supreme Court granted only 17 of 383 petitions for rehearing.

The court released the new data today on its Web site.

Hearts no longer aflame, but prenup holds

Was it a grand gesture on a moonlit night? That first flush of new parenthood?

We don’t really get the details in Miller v. Miller, decided yesterday by the Virginia Court of Appeals. But we do know now that just throwing a prenuptial agreement into a fire did not revoke the prenup, whatever the couple may have thought at the time.

A few months after the birth of their first child in 1988, Chester and Linda Miller agreed they no longer needed their prenup and “threw the only known copy of it into a fire,” writes Court of Appeals Judge Randolph A Beales in the unpublished opinion. After the parties separated in 2004, a copy turned up with the wife’s mother.

The wife tried this argument to escape the prenup’s property split: The agreement contained a clause that the couple could “mutually agree to its termination.” Because a Virginia statute says a prenup can cover anything the parties want that does not “violate public policy or a statute imposing a criminal penalty,” wife claimed they had revoked the agreement by casting the only known copy into the fire in 1988.

Their marriage may have gone down in flames, but the agreement didn’t.

Virginia Code § 20-153 trumped Code § 20-150(8), and the agreement could only be revoked in writing, the appellate court said.

You can burn your bridges, but not your prenup.

Two more Dolan Media blogs debut

Congratulations to two of our Dolan Media Company sister papers for the debuts of their respective blogs.

Our colleagues at the Daily Journal of Commerce in Portland have been blogging since mid-August and went live last week.

And our colleagues at Michigan Lawyers Weekly started their blog, called Michigan Lawyer, last Friday.

Cheers!

No civil remedial fees ruling in Arlington

Northern Virginia will have to wait a while longer for a ruling on the constitutionality of the state’s civil remedial fees.

Thaddeus Furlong, an attorney for a Centreveille man charged with reckless driving for traveling 75 mph in a 55 mph zone, had challenged the statute.

However, Arlington General District Judge Thomas J. Kelly Jr. ruled on Aug. 20 that it would be premature to rule on the fees before a reckless-driving conviction.

Yesterday, the charge was amended to driving 74 mph, and the defendant was convicted of speeding and fined $95 and costs, a typical disposition for a driver with a good record. Because speeding is an infraction instead of a misdemeanor or felony, the civil remedial fees statute does not apply.

The Washington Post has the details.

High court hears request to remove judge

Today the Supreme Court of Virginia heard argument in JIRC v. Shull, the case in which the Judicial Inquiry and Review Commission is seeking censure or removal of a Wise County juvenile judge who had a woman lower her pants in the courtroom to let the judge examine a knife wound above her knee.

When she appeared before Judge James Michael Shull Dec. 15, 2006, Tammy Giza claimed her husband had stabbed her. But in a separate incident nine months earlier, Giza admitted she had accused her husband of inflicting another knife wound that in fact had been self-inflicted.

JIRC counsel Donald Curry cited three reasons to censure or remove Shull, who was suspended last December. In the Giza case, Shull asked Giza not once, but twice, to lower her pants in the courtroom, and he made an ex parte telephone call from his chambers during the hearing to a hospital where Giza was treated for the knife wound. In a separate case, Shull used a coin toss to determine the order of Christmas visitation.

Richmond lawyer Russ Palmore, who represented Shull, tried to put the judge’s admittedly improper conduct into context. The wife had a protective order against the husband, set to expire at the end of December. Shull, who also sits in Lee and Scott Counties, was running out of Wise County court dates so close to Christmas. With the husband and wife trading accusations, Shull was trying to decide whether the parties’ two little boys should be with “a stabber or a cutter.”

In his brief, Shull also tried another time-honored tactic: I may have been bad, but not as bad as some others. Only three other sitting Virginia judges have been removed from office: one in 1903, when he beat a preacher with a horsewhip; one in 1908, when he failed to appear in court because he refused to leave a brothel; and more recently, a judge was removed in 1977 after he misappropriated firearm and alcohol evidence, and consumed the beers in chambers.

Remedial fees appeal heard

A second Virginia Circuit Court judge was asked today to overrule a lower court decision holding the state’s civil remedial fees unconstitutional.

Richmond Circuit Judge Walter W. Stout III told traffic defense attorney G. Barton Chucker and Commonwealth’s Attorney Michael N. Herring at the end of a 30-minute hearing, “I’m not going to give you an opinion off the cuff.” He said he would issue a written opinion shortly.

Three general district courts—in Richmond and in Henrico and Hanover counties—have declared Code Sect. 46.2-206.1 unconstitutional, but Henrico Circuit Judge L.A. Harris Jr. upheld the statute on appeal, the only circuit level ruling so far. A hearing in Hanover Circuit Court is set for Sept. 25.

Chucker acknowledged that the only issue before Stout is whether the General Assembly had a rational basis for excluding out-of-state drivers from the fees, which range from $750 to $3,000 payable over 26 months for traffic-related misdemeanors and felonies.

He contended that excluding out-of-state drivers is inconsistent with the stated purpose of the legislation: “to generate revenue from drivers whose proven dangerous driving behavior places significant financial burdens upon the Commonwealth.” Those revenues logically apply only to the cost of prosecuting cases and responding to traffic accidents, not to road maintenance and construction.

Herring responded that he shares some of Chucker’s concerns about the statute. “Does it need to be improved? Certainly. But the need for improvement doesn’t make it unconstitutional.” He suggested that the legislature could have concluded rationally to exclude non-resident drivers because of the administrative burden of collecting the fees from them.

The bill drew little attention during debates over how to find more money for road construction, but a firestorm developed after publicity about it near its effective date of July 1. Opponents have been irate about the exclusion of out-of-state drivers, the high cost of the fees and the relatively trivial nature of some of the offenses to which they apply.

Bar groups review state appeals court candidates

The judicial nominations committee of the Virginia State Bar has found five candidates highly qualified to fill the vacancy created by the retirement Court of Appeals Judge James W. Benton Jr.

They are:

● Chesterfield County Circuit Judge Michael C. Allen
● Frank K. Friedman, a partner in the Roanoke firm of Woods Rogers PLC
● Chesapeake Circuit Judge S. Bernard Goodwyn
● Prince William County Circuit Judge William D. Hamblen
● Prince William County Circuit Judge Leroy F. Millette Jr.
● Chief Deputy Attorney General William C. Mims

The committee earlier had found all but Friedman to be highly qualified to fill the vacancy created by the retirement of Elizabeth B. Lacy. Friedman did not offer himself as a candidate for the Supreme Court spot. The committee found L. Thomas Booker Jr., a military judge based in Norfolk, and Mary Jane Hall, a partner at Kaufman & Canoles PC in Norfolk, to be qualified.

The Virginia Women Attorneys Association highly recommended Friedman and Goodwyn and recommended Allen and Millette for the court of appeals seat. It found Booker, Hall, Hamblen, Mims and Sharon M.B. Pigeon, an assistant attorney general to be qualified.

The association had highly recommended Goodwyn and Richmond Circuit Judge Margaret P. Spencer for Lacy’s seat and recommended Allen and Court of Appeals Judges Walter S. Felton Jr. and Robert P. Frank.

The Old Dominion Bar Association found Felton, Goodwin, Kelsey and Spencer to be highly qualified for Lacy’s seat and urged Gov. Timothy M. Kaine to appoint Spencer to fill it. It found Allen, Booker, Frank, Hamblen, Millette, Mims and Arelia S. Langhorne, a sole practitioner from Lynchburg, to be qualified.

For the court of appeals vacancy, the ODBA found Goodwyn and Friedman to be highly qualified and Allen, Booker, Hamblen and Millette to be qualified.

Kaine will fill both seats, but he is expected to confer with legislative leaders before doing so because the General Assembly will have the final say on the appointments.

Getchell tapped for 4th Circuit, Webb angry

President Bush yesterday nominated Richmond lawyer E. Duncan Getchell Jr. for a seat on the 4th U.S. Circuit Court of Appeals.

But minutes after the announcement, the Richmond Times-Dispatch reports, Sen. Jim Webb issued a statement blasting the choice.

He and Republican Sen. John Warner, in a bipartisan effort, had submitted five names to Bush for the court. Getchell was not on their list, although he had been backed by Warner and then-Sen. George Allen last year.

"Despite our good-faith, bipartisan effort to accommodate the president, the recommendations that Sen. Warner and I made have been ignored," Webb fumed.

Warner was a little more restrained, noting simply, "I steadfastly remain committed to the recommendations stated in my joint letter with Senator Webb to the president."

Getchell, if confirmed, would take the seat of retiring Judge H. Emory Widener Jr. But given the fact that the Democrats control the Senate and the judge-making machinery and the Senate tradition that a nomination won't move forward over the objections of a member, you can bet the seat may remain open just a little bit longer.

Bush also tapped Steve A. Matthews of South Carolina for another seat on the court.

Plastic bag not a tool of trade for thief

Paper or plastic?

It was a plastic bag that Kenney Williams pulled out of his pocket at a shopping-mall shoe store on July 3, 2005. Into that bag he stuffed a boxed pair of shoes. Without paying for the shoes, he left the store, only to be apprehended in the mall parking lot.

Concealing the shoes in the bag, which had shoe store printing, appeared to be a critical part of his ploy. A Chesterfield County prosecutor charged Williams with petit larceny and “possession of burglarious tools” under Va. Code § 18.2-94. Williams pleaded guilty to the larceny charge, but argued that the plastic bag was not an “implement” of larceny under the statute.

Yesterday, a panel of the Virginia Court of Appeals agreed in Williams v. Commonwealth. The panel reversed the possession charge, saying the plastic bag was not an “implement” under the statute because “it serves no particular purpose in furtherance of a trade, occupation, profession or work.”