Friday, February 29, 2008

Spammer’s nine-year sentence upheld

A divided Supreme Court of Virginia has affirmed the computer crime conviction and nine-year prison sentence of a North Carolina man who sent mass quantities of spam – unsolicited bulk e-mail – through AOL servers in Northern Virginia.

Defendant Jeremy Jaynes of Raleigh was considered among the top 10 spammers in the world when he was charged in 2003 in the nation’s first felony prosecution against illegal spamming.

A Loudoun County jury convicted him of three counts of violating the Virginia Computer Crimes Act for spamming AOL users with offers to sell products such as a “Penny Stock Picker,” a “History Eraser” and a FedEx refund claim.

The state high court upheld the conviction today in Jaynes v. Commonwealth. The majority opinion by Justice G. Steven Agee rejected the notion that Jaynes, whose conduct clearly was criminal under the statute, had standing to challenge the statute on First Amendment grounds that might cover other kinds of protected speech.

Agee said a criminal defendant such as Jaynes could not invoke First Amendment protections for some hypothetical defendant not charged with a crime in order to win a “Get Out of Jail Free” card in his own case.

But three dissenting justices said the court’s precedent granted Jaynes standing, and the statute is “unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mails,” including political, religious or other speech protected by the First Amendment.

Criminal cases divide court

The Supreme Court of Virginia split sharply today in deciding three criminal cases – one affirming the procedure in state law for submitting certificates of analysis at trial, a second upholding admission of the items seized in a search under the “good faith” exception to the Fourth Amendment, and the third reversing a drug conviction that stemmed from the “plain feel” of capsules in the defendants pocket.

In Magruder v. Commonwealth, consolidating three cases, the court said the failure of the defendants to subpoena the technician who prepared the certificate amounted to a waiver of the constitutional right to confront the defendant articulated in Crawford v. Washington, 541 U.S. 36 (2004). The dissenters, Justice Barabara Milano Keenan, Chief Justice Leroy Rountree Hassell Sr. and Justice Lawrence L. Koontz Jr., responded that the waiver of a statutory right under Code § 19.2-187.1 could not be extended to a wavier of the Sixth Amendment right to confrontation.

In Adams v. Commonwealth, the same justices dissented to the court’s holding the “good faith” exception excused the failure to specify in the search warrant affidavit that the defendant lived in the house that was the subject of a search for a murder weapon. The affidavit was detailed in other respects, and it could be read without realizing that it did not mention that the defendant lived in the home, Justice Cynthia D. Kinser wrote for the majority.

The dissenters responded that the affidavit should have been seen as defective by any properly trained police officer because it did not mention any particular suspect or state any connection between the defendant. Justice Kinser also wrote the majority opinion in Magruder.

In Cost v. Commonwealth, Justice Koontz wrote that the “feel” of the capsules in a pat-down of a passenger in an automobile was not enough for a policeman to remove them from the defendant’s pocket. Justice Donald W. Lemons, joined by Justice Kinser, countered the “feel,” bolstered by the defendant’s furtive gesture toward the pocket and the policeman’s training, provided the probable cause required for the search of the defendant’s pocket.

Foundation more like a business than a charity

The University of Virginia Health Services Foundation does not have charitable immunity, the Supreme Court of Virginia ruled unanimously today.

“HSF operates like a profitable commercial business with extensive revenue and assets. That portion of HSF’s services providing quality medical care to medically indigent patients is commendable,” Justice Donald W. Lemons wrote for the court in University of Virginia Health Services Foundation v. Morris. “However, when an organization is operated ‘in a manner calculated to produce a profit or gain,’ it is not entitled to charitable immunity.”

Judges in Norfolk and Portsmouth had granted charitable immunity to the HSF’s counterpart at the Eastern Virginia Medical Schools, but circuit judges sitting in Charlottesville Circuit Court had split on the issue with Judge Edward L. Hogshire of Charlottesville and H. Thomas Padrick Jr. of Virginia Beach, sitting by designation, finding it not to be charity, and Judge Randy I. Bellows of Fairfax, also sitting by designation, ruling that it is.

Supreme Court rejects transportation plan

The Supreme Court of Virginia ruled today that the regional transportation plan for Northern Virginia violates the state constitution.

The constitution bars the imposition of taxes by non-elected bodies such as the Northern Virginia Transportation Authority, Justice S. Bernard Goodwyn wrote for a unanimous court. It doesn’t matter that the all but two of the members of the authority are elected officials – representatives of the Northern Virginia localities, two members of the House of Delegates, a member of the Senate and two citizens appointed by the governor.

The designation of the seven taxes and fees and their rates by the General Assembly doesn’t save the proposal either because the authority still has the power to refuse to impose them, Goodwyn said.

The taxes and fees would have provided the revenue for $130 million in bonds designated for transportation projects in the area. They were part of a transportation plan that sharply divided the legislature in 2006 and 2007.

Goodwyn was appointed last year by Gov. Timothy M. Kaine and elected to a 12-year term as a justice earlier this month. Marshall v. Northern Virginia Transportation Authority is his first opinion for the court.

Effort to kill cash proffers fails for year

A comprehensive restructuring of the way localities pay for the costs of growth perhaps proved to be too comprehensive too soon.

Senate Bill 768 would have replaced cash proffers, the amount developers pay per unit to get a rezoning approved, with impact fees, an amount per unit when a building permit is approved, regardless of rezoning.

Sen. John Watkins, R-Powhatan, the sponsor of the bill, and the Home Builders Association of Virginia relied on a study by a George Mason University that concluded that the proposal would produce more money than proffers.

With some proffers topping $40,000 and the impact fees initially limited to $8,000 in Northern Virginia and $5,000 elsewhere, localities had trouble accepting that logic. The Virginia Association of Realtors and localities also were not fooled by an effort to label an increase in the grantor’s tax a “real property tax relief fee.”

Watkins got the bill through the Senate on a 21-19 vote by dropping the grantor’s tax increase and agreeing to increase the impact fees to $12,500 in Northern Virginia and $7,500 elsewhere.

Localities said they aren’t opposed to studying the issue but contended it was too much too soon. The House Rules Committee agreed yesterday and carried the bill over till next year.

Bill would give early disclosure of policy limits

The Virginia Trial Lawyers Association appears likely to get one of its principal legislative objectives for the year.

House Bill 172 allows plaintiffs’ attorneys to get the policy limits of a potential defendant before filing suit. The VTLA had to give a little, however. It accepted an amendment that would attorneys must give the insurer proof of medical bills or lost wages totaling at least $12,500 before the policy limits must be disclosed.

The measure cleared the House by a 55-43 vote before the $12,500 provision was added and passed 15-0 in the Senate Courts of Justice Committee yesterday. Chris LaGow, a lobbyist for insurers, said they did not oppose the bill.

VTLA President Chuck Zauzig said the measure is a common sense proposal that will let everyone know the practical limits of recovery and encourage early settlement.

Tuesday, February 26, 2008

Three candidates interview for SCC post

For the vacant seat on the State Corporation Commission, the House of Delegates wants Richmond lawyer/lobbyist Bernard McNamee. The Senate wants a former delegate, Barnie Day. The Richmond Times-Dispatch reports that yesterday, three new candidates for the post interviewed with the Senate Commerce and Labor Committee.

They are Henrico County Circuit Judge Catherine C. Hammond, Deputy Attorney General Frank Ferguson and Richard L. Savage, a lobbyist and former deputy attorney general.

The seat has been open since Feb. 1, when Judge Theodore V. Morrison retired.

Fairfax man can keep Declaration copy

Long before there were bloggers, there were preachers in pulpits charged with delivering momentous news.

Thus it was on July 17, 1776, that the Executive Council of Massachusetts took action to let colonists know that our nascent nation had severed its ties with England.

In order to broadcast the broadside, the council ordered that copies of the Declaration of Independence be printed and distributed to Massachusetts ministers to be read to their congregations, then delivered to town and district clerks to be recorded in local records “to remain as a perpetual Memorial thereof.”

Several years ago, a copy of one of those Massachusetts broadsides, rescued from an attic in 1995, came into the hands of Richard L. Adams Jr., who paid nearly a half-million dollars for the "Pownalborough Print." Documentation indicated the copy had been intended for the Town of Pownalborough, Massachusetts, which is now Wiscasset, Maine.

In 2004, the State of Maine sued for return of the document. But on Feb. 22, Fairfax Circuit Judge Terry Ney said that Maine failed to prove either that the document had been a public record or that it had been lost or stolen from town records before Adams bought it from reputable dealer.

Ney confirmed Adams’ ownership of the document in a 14-page opinion in Adams v. State of Maine (VLW 008-8-039).

LeClairRyan, Wright Robinson to merge

LeClairRyan will absorb Wright, Robinson, Osthimer & Tatum at the end of next month.

The merger of the two Richmond-based firms will give LeClairRyan a West Coast presence for the first time and increase the number of attorneys to more than 270. Wright Robinson has about 50 attorneys, with a quarter of them in Richmond.

It is perhaps best known for its representation of defendants in mass tort cases, and the firm’s emphasis on providing discovery solutions in large cases was a major attraction for LeClairRyan, according Gary D. LeClair, the firm’s chairman and co-founder.

The firm, which has expanded to Boston and New York in the last 18 months, also was interested in Wright Robinson’s offices in Los Angeles and San Francisco, which have a more traditional litigation practice.

Mark Yacano, a member of the Wright Robinson’s executive committee, said the LeClairRyan’s New York presence and its size and depth, especially in its litigation practice, were major attractions for his firm.

“We have a lot of complementary skill sets,” Yacano said. “It was a merger driven for all the right reasons, and we’re just as excited as we can be.”

Monday, February 25, 2008

Cook backed for circuit judgeship

The News & Advance reports this afternoon that the Lynchburg legislative delegation apparently has agreed upon a candidate for a pending circuit judgeship in the 24th Circuit: John Cook.

Cook would succeed Judge Sam Johnston of Campbell County, who is retiring June 1 after 30 years on the bench.

Cook, 50, is a partner with the firm of Caskie & Frost.

Mahoney to succeed Jeffries at U.Va.

Paul G. Mahoney, a corporate law expert at the University of Virginia, will become the 11th dean of the U.Va. law school on July 1.

In announcing the appointment today, U.Va. President John T. Casteen III had high praise for both Mahoney and the retiring Dean, John C. Jeffries Jr. Succeeding Jeffries, Casteen said, “is not a task for a timid mind or spirit.”

“Mr. Mahoney’s talents, wisdom, and capacity for visionary leadership assure that one of America’s great centers of scholarly excellence will continue to thrive,” Casteen said.

Mahoney, 49, is considered a pioneer in the use of empirical methods in legal scholarship, much of it focused on securities regulation, law and economic development, corporate finance, financial derivatives and contracts.

He is a graduate of the Massachusetts Institute of Technology and Yale Law School. He was a clerk for U.S. Supreme Court Justice Thurgood Marshall and practiced law with the New York firm of Sullivan & Cromwell before joining the law school faculty in 1990.

As academic associate dean from 1999 to 2004, Mahoney administered the school’s curriculum and academic policies. He is one of only five faculty members to hold the law school’s most prestigious teaching chair, the David and Mary Harrison Distinguished Professorship, and the youngest to have the title.

Friday, February 22, 2008

Full-text Circuit Court opinions free online

Virginia Lawyers Weekly is pleased to announce a new benefit for subscribers.

Starting today, you’ll be able to get a full-text copy of any Circuit Court opinion from 2007 onward that we digest in the paper for FREE.

Full-text PDF copies are available through the archives on our Web site,

The opinions will be available to any subscriber who has registered for the site.

If you have not registered, the process is easy. On our home page, select "Register for Web site benefits" in the left hand column and fill out the online form. You’ll need to have a copy of your newspaper with you when you sign up.

And if you do not presently subscribe, please take advantage of this great new benefit. Just use the coupon that appears on page 36 of this issue, or call 1-800-451-9998.

The VLW site already provides free full-text copies of opinions from the Supreme Court of Virginia and the Virginia Court of Appeals. Those opinions are available to everyone who comes to the site; the Circuit Court opinions will remain a subscriber-only feature.

VSB Council to consider mandatory insurance rule

The Virginia State Bar will seek comments on a proposal for mandatory legal malpractice insurance for attorneys who represent clients drawn from the public.

The VSB executive committee and council will get the proposal as an informational item at their meetings next week and is expected to vote on the proposal at its June 19 annual meeting. Comments on it are due by May 23.

Under the proposal, an attorney would have to purchase a policy on the open market with a minimum coverage of $100,000 per claim with a claim expense allowance of at least $50,000 outside the policy limits.

“While higher levels of per claim coverage would be desirable in most instances, as would an aggregate limit reflecting some multiplier of the pre claim limit, the Committee’s focus was on making the transition from uninsured to uninsured as economical as possible,” said Darrel Tillar Mason, the Richmond lawyer who chairs the Special Committee on Legal Malpractice Insurance.

The committee submitted the proposal to council this week without a recommendation on its adoption. That’s consistent with what Mason has said is a split on the committee over a “data driven” or “principle driven” view of the issue. Evidence of a serious problem for lawyers or their clients is slim, she acknowledges, but some lawyers believe that insurance against their own negligence is part of their fiduciary duty to their clients.

The committee has studied the issue for more than two years, and the VSB Council surprised many observers in October what it opted to continue the effort rather than to abandon it.

Thursday, February 21, 2008

New ERISA 401(k) claim

An employee who claims his 401(k) account lost value can sue the plan administrator for failure to follow the employee’s investment instructions.

On Feb. 20, the U.S. Supreme Court said in LaRue v. DeWolff, Boberg & Associates Inc. that the employee’s allegations stated a claim for breach of fiduciary duty in violation of § 502(a)(2) of the federal ERISA statute.

The high court reversed a 2006 decision by the Richmond-based 4th U.S. Circuit Court of Appeals that dismissed the employee’s suit. The Supreme Court rejected the 4th Circuit’s reasoning that the statute at issue did not provide a remedy for individual investors, only for an ERISA plan as a whole.

The retirement landscape has shifted from defined-benefit to defined-contribution plans, the Supreme Court said. Today’s 401(k) plans use individual investor accounts to fund retirement benefits. Under the Supreme Court’s ERISA interpretation, a plan participant’s individual account holds plan assets, so the individual can use the statutory remedy for an injury to the plan from a breach of fiduciary duty.

Griffith hearing set for next month

A hearing for Norfolk Circuit Judge Charles D. Griffith Jr. has been moved from tomorrow to March 3, when senators as well as delegates will participate.

Legislators had placed a hold on his appointment to a second term and gave him an opportunity to present his case for staying on the bench.

The earlier date was set by the House, and the refusal of Courts of Justice Chairman Henry L. Marsh III to bring his colleagues along that day was a source of irritation for his Republican predecessor, Sen. Kenneth W. Stolle of Virginia Beach.

Griffith’s principal obstacle to reappointent appears to be the rebuke the Supreme Court of Virginia delivered in Wilson v. Commonwealth in reversing a drug conviction.

The court said Griffith’s response to what he viewed as judge-shopping by defense attorney Allan D. Zaleski “raised concerns about the judge’s impartiality in the case and about the public’s perception of fairness in the case.” Some criminal defense attorneys believe that Griffith, who was the city commonwealth’s attorney when he was appointed to the bench, remains too prosecution-oriented.

Griffith’s appearance will coincide with interviews of candidates for more than 20 vacancies the legislature will have the opportunity to fill before adjournment on March 8. Election of the new judges is set for March 5.

Things could get hectic and acrimonious unless local delegations get much of their horse trading done the March 3 meeting.

Thursday, February 14, 2008

SCC rejects claims of retention groups

Read it and weep if you had a claim that you thought was covered by American National Lawyers Insurance Reciprocal or Doctors Insurance Reciprocal.

The State Corporation Commission ruled today that you have the same status as a general creditor in the receivership for Reciprocal of America, the parent of the retention groups. Because the commission estimates that ROA has a negative surplus of almost half a billion dollars, your chances of getting even a few cents on the dollar are minuscule.

ROA provided reinsurance for the risk retention groups, which are based in Tennessee, and they were declared insolvent shortly after ROA went under in January 2003.

Attorneys for the groups had contended that ROA and the groups were so closely related that they should be considered a single entity, with the policyholders of the groups having the same priority as those of ROA.

While acknowledging that irregularities probably occurred, the commission said it was powerless to change the priority status established in Virginia Code §38.2-1509.

Love stinks?

From the Love Stinks Department:

It’s not quite as provocative as the Chicago billboard last year featuring a buff dude and a scantily clad babe and proclaiming, “Life's short. Get a divorce.”

But the message is pretty much the same. The Associated Press reports that a radio station in Charleston, W.Va., is auctioning off a divorce. Today. Valentine’s Day. Love apparently doesn’t conquer all.

WKLC is taking applications from now until 4 p.m. this afternoon. A, um, “winner” will be drawn at 5 p.m.

Not mentioned is which divorce lawyer will acquire a client.

Food frenzy begins at end of March

Virginia Attorney General Bob McDonnell announced yesterday that the second annual Legal Food Frenzy will be held March 31- April 11.

The goal this year is a million pounds of food for the state’s foodbanks from Virginia law firms, a substantial increase over last year’s 679,000 pounds. The young lawyers division of the Virginia Bar Association is coordinating with the effort, with Katja H. Hill of LeClair Ryan and Christopher Gill of Christian Barton as co-chairs.

A press release from McDonnell’s office has the details about how firms can sign on for the event.

Tuesday, February 12, 2008

Nichol out at W&M

The Board of Visitors at the College of William and Mary announced in a statement this morning that President Gene Nichol had resigned following the board's decision not to renew his contract.

Nichol also released a statement, noting that he will return to the faculty of the William and Mary law school.

Nichol's 16-month tenure was marked by a number of controversies, including a dust-up over the presence of a cross in the school's historic Wren Chapel. This past week, several members of the board were called to appear before the General Assembly and to hear some members' displeasure with the recent Sex Workers' Art Show held on campus.

The board said that Dean W. Taylor Reveley of the law school will serve as interim president of the College while a search for a new leader begins.

Monday, February 11, 2008

Kelley will leave bench

Judge Walter D. Kelley Jr. will leave the federal district bench less than four years after he was appointed to the court.

In a letter to President Bush today, Kelley said May 16 will be his last day as a judge. “I have reluctantly concluded that my professional interests and the needs of my family are best met in the private sector. I therefore have accepted a partnership in the international law firm of Jones Day, resident in its Washington, D.C. office.”

The letter followed calls from Virginia Lawyers Weekly and other reporters about comments he made last week at a hearing in a patent case in Norfolk. Kelley told the attorneys before him that he has been offered a partnership in the Washington office of Jones Day and might well be leaving the bench shortly. The remarks were in the context of a case scheduled for trial in April, and he mentioned that it might be the last case he will preside over.

Asked earlier today about the remarks, Kelley acknowledged that he had made them but would not elaborate on them. He said he had not written to the White House announcing his resignation and added that any comment before he does so would be premature. Within a few hours of that response, he e-mailed a copy of the correspondence to the White House.

A native of Norfolk and a graduate of Washington and Lee University and its law school, Kelley was nominated in October 2003 to the seat vacated by Judge Henry C. Morgan. The Senate confirmed him in June 2004, and he received his commission two months later.

At the time, he was a partner in the Norfolk office of Troutman Sanders LLP. He specialized in commercial litigation, with particular emphasis on intellectual property and antitrust cases.

In his letter to the President, Kelley said, “Serving the citizens of this country as a United States District Judge has been the greatest honor of my professional career. Thank you for giving me this opportunity.”

However, as a judge, he earned a fraction of his income as a litigator, and he has presided over dockets heavy on drug and firearm cases with relatively little in the way of the business disputes he handled as an attorney. His assistant said he would not say anything today beyond what was in the letter.

4th Circuit hops e-filing bandwagon

Effective April Fool’s Day, lawyers can start electronic filing of documents in the 4th U.S. Circuit Court of Appeals.

The Richmond-based appellate court has served notice of its proposed adoption of Administrative Order 08-01 for a case management/electronic filing system. ECF systems already are in place in federal district and bankruptcy courts in Virginia.

The e-filing system is available for voluntary participation April 1, with electronic filing by counsel becoming mandatory on June 1, 2008, subject to certain exceptions. Exemptions from mandatory e-filing include case-initiating documents such as petitions for review and mandamus, appendices, formal briefs and Criminal Justice Act vouchers.

According to the court, an attorney may move for an exemption from e-filing for good cause shown. Lawyers and litigants are responsible for removing personal data identifiers and other sensitive information from public documents prior to filing.

The proposed order takes effect April 1, subject to amendment in light of comments received. Comments must be submitted by March 14.

Kelley ponders leaving bench

Walter D. Kelley Jr. is thinking about leaving the federal district bench less than four years after he was appointed to the court.

At a hearing in a patent case last week in Norfolk, Kelley told the attorneys before him that he has been offered a partnership in the Washington office of Jones Day. The remarks were in the context of a case scheduled for trial in April, and he mentioned that it might be the last case he presides over.

Asked today about the remarks, Kelley acknowledged that he had made them but would not elaborate on them. He said he has not written to the White House announcing his resignation and added that any comment before he does so would be premature.

A native of Norfolk and a graduate of Washington and Lee University and its law school, Kelley was nominated in October 2003 to the seat vacated by Judge Henry C. Morgan. The Senate confirmed him in June 2004, and he received his commission two months later.

At the time, he was a partner in the Norfolk office of Troutman Sanders LLP. He specialized in commercial litigation, with particular emphasis on intellectual property and antitrust cases.

As a judge, he has presided over dockets heavy on drug and firearm cases with relatively little in the way of the business disputes he handled as an attorney.

Policy limits bill clears committee

Plaintiffs’ attorneys would be able to get the policy limits of a potential defendant without filing suit under House Bill 172, which cleared the House Courts of Justice Committee Friday on a 19-3 vote.

Steven W. Pearson, a lobbyist for the Virginia Trial Lawyers Association, told the panel that the measure “will reduce unnecessary lawsuits” because plaintiffs’ attorneys will be able to make demands appropriate to the level of coverage before filing suit.

The bill had been amended to the satisfaction of insurers, the bill’s sponsor, Del. Terry G. Kilgore, R-Scott, told the committee. However, Robert N. Bradshaw Jr., a lobbyist for the Independent Insurance Agents of Virginia, opposed the bill. He said agents and insurers have told policyholders that they consider the information private and proprietary. Now, they will have to tell those policyholders, “We keep it private unless a lawyer wants to sue you,” Bradshaw said.

Friday, February 8, 2008

Goodwyn, Millette elected

Supreme Court Justice S. Bernard Goodwyn and Court of Appeals Judge LeRoy F. Millette Jr. won’t have a break in service after all.

Their appointments by Gov. Timothy M. Kaine would have expired tonight in the absence of action by the General Assembly, and they became the pawns in an assertion of institutional clout by Republicans in the House of Delegates described in a post on Monday and in more detail today by Jeff E. Schapiro in the Richmond Times-Dispatch.

Just how much horse trading went on wasn’t clear immediately, but Goodwyn and Millette were elected this afternoon by a unanimous vote in both houses.

It all seems a little silly, especially when the Republicans acknowledged all along that Goodwyn and Millette were excellent choices for their respective positions.

Voter registration applications can be inspected, court says

The Supreme Court of Virginia ruled today in an unpublished order that applications to register to vote in Norfolk were available for inspection once Social Security numbers are redacted from the applications.

Andrew A. Rivera, a Northern Virginia attorney who is a member of the Advancement Project, an organization that monitors voter registration, filed a Freedom of Information Act request in 2005 for the completed application forms and for the correspondence Registrar Elisa Long sent to the applicants.

The request was in response to an article in The Virginian-Pilot reporting that Norfolk rejected 55 percent of applications, while other area registrars rejected less than 10 percent. Long denied the request and Rivera appealed.

Norfolk Circuit Judge Everett A. Martin Jr. ruled that Rivera could inspect but not copy the correspondence but denied access to the application forms because they contained Social Security numbers and state election law bars the disclosure of such numbers by local registrars and the State Board of Elections. Rivera said he would be happy with the applications if the numbers were redacted, but Martin refused any inspection.

The Supreme Court said in Rivera v. Long, Record No. 070274, “Obviously, if the Social Security numbers are redacted from the registration records, the documents will no longer contain a Social Security number. Consequently, they will no longer be exempt from inspection.”

The ruling is of limited precedential value, however, because the General Assembly adopted a bill last year introduced at Long’s request that will permit the applications to be kept secret.

Still, said L. Steven Emmert, who represented Rivera along with Kevin E. Martingayle, Rivera should get access to the 2005 applications.

“This will enable citizens to know why the Norfolk registrar rejected applications at 10 times the rate of everyone else,” Emmert said.

Wednesday, February 6, 2008

Increase in judicial retirement age fails

The proposal to increase the mandatory retirement age for judges from 70 to 75 appears to be dead for the year.

The Courts of Justice Committees in both houses approved an increase, although the House committee lowered it to 73 in HB 783. However, on Monday the full House rejected the final draft of the bill. And yesterday, the Senate carried SB 19 over until next year after adopting it on a 22-18 vote on Monday and then reconsidering it and passing it by for the day.

The Virginia Judicial Council had sought the change. Sen. John S. Edwards, D-Roanoke, carried the bill in the Senate and Del. Terry G. Kilgore, R-Scott, was the chief patron in the House.

Baugh to become capital defender

David P. Baugh, the prominent Richmond criminal defense attorney, will become the capital defender for the central Virginia office of the Indigent Defense Commission on March 1.

Baugh will succeed John B. Boatwright III, who has been seriously ill for much of the last two years and transferred recently to commission’s central office as special capital counsel. Boatwright will coordinate the work of the commission’s four regional capital defender offices.

Baugh received the Virginia State Bar’s Lewis F. Powell Jr. Pro Bono Award in 2006 and is best known for representing such unpopular defendants as a terrorist in the bombing of the Kenyan embassy and a Ku Klux Klan member in a cross-burning case.

Tuesday, February 5, 2008

Legislative fix for DCSE questioned

The train has been on the track for 20 years, but five members of the Senate Courts of Justice Committee didn’t think that was enough of a reason to make sure it stays there.

The issue is the ability of the nonlawyer staff of the Division of Child Support Enforcement to start the process against parents who are delinquent in their child support by signing petitions and motions. The division contends that Virginia Code § 16.1-260 and a 1988 attorney general’s opinion gives those employees the authority to do so.

Last year, a juvenile and domestic relations district judge in Fairfax ruled that Code § 8.01-271.1 requires an attorney to sign such pleadings and vouch that they are well grounded in law and fact. Fearing that the nonlawyer employees could be charged with practicing law without a license, the division is seeking a legislative fix in Senate Bill 788 and House Bill 1382.

HB 1382 sailed through the House Courts of Justice Committee 22-0, but Sen. Kenneth W. Stolle, R-Virginia Beach, and Sen. Ryan T. McDougle, R-Hanover, balked yesterday at the suggestion that it’s “a workload issue.” The division’s 45 attorneys and 445 support enforcement specialists issue about 56,000 petitions a year.

McDougle said it would be more efficient in his office if an assistant could sign off on routine paperwork, too. Stolle asked, “Do we have any other law where we authorize nonlawyers to do this sort of thing?” The answer from the committee’s counsel was, “No.”

Stolle said he was unpersuaded that Code § 16.1-260 could be interpreted as the division contends. “I think it’s more likely that the AG’s office issued a bad opinion 20 years go,” he said.

In the end, the efficiency argument prevailed on a 10-5 vote.

Monday, February 4, 2008

Public records, gun rights at issue

The First and Second Amendments to the U.S. Constitution seldom are as juxtaposed as they were today before the Senate Courts of Justice Committee.

The debate was over Senate Bill 529, carried for the Freedom of Information Advisory Council by Sen. R. Edward Houck, D-Spotsylvania. The bill was largely a response to the posting last year by The Roanoke Times of the Virginia State Police database of holders of concealed weapon permits on its Web site.

The resulting furor was such that The Times quickly removed it. Houck’s bill generally prohibits public disclosure of the database but still allows anyone to go a circuit court clerk’s office and check to see whether anyone has a concealed weapon permit.

Gun rights advocates pressed to have even those records kept secret, or, at the very least, to allow permits issued at the request of crime victims or those with a law enforcement connection to be private.

Craig Merritt, representing the Virginia Press Association, said the group supported the legislation. He noted that judges can seal such records now if an applicant can show a compelling interest for doing so. Routine sealing of individual public records at a courthouse is inconsistent with the First Amendment, he said.

“I would urge you to be very careful about shrouding this process in secrecy,” said Sen. William Roscoe Reynolds, D-Martinsville, told his colleagues, noting that part of the tradeoff for the state’s relatively liberal concealed-weapon policy is a public record of who has such a permit.

The committee reported Houck’s bill to the full Senate on a 13-2 vote, with senators Ken T. Cuccinelli II, R-Fairfax, and Robert Hurt, R-Chatham, voting no.

Time running on Supreme Court, CAV nominees

Justice S. Bernard Goodwyn and Judge LeRoy F. Millette Jr. of the Virginia Court of Appeals could be out of a job Saturday.

Nobody expects that to happen, but their appointments by Gov. Timothy M. Kaine expire Friday in the absence of action by the General Assembly.

Del. David B. Albo, R-Fairfax, chairman of the House Courts of Justice Committee, said Goodwyn and Millette are excellent appointments, but the House has, in effect, placed a hold on electing them and also on reelecting court of appeals Judges Jean Harrison Clements on Robert J. Humphreys, whose terms expire later in the year.

Albo and Del. Jerry G. Kilgore, R-Scott, another powerful member of the courts committee and chairman of the House Commerce and Labor Committee, said the action is intended as a reminder to the Democratic governor and Senate they still have to deal with the House and Republicans on judicial appointments.

They suggested that House Republicans are looking toward having a substantial say in filling a vacancy on the State Corporation Commission created by the retirement of Theodore V. Morrison Jr. and an empty seat on the Workers’ Compensation Commission created by the departure of Lawrence D. Tarr.

The position of the Republicans may signal hardball in filling judicial vacancies in the lower courts as well. They were contentious enough when the Republicans controlled both houses and only figure to get worse with control split between the two houses.

The candidates historically have been chosen by a caucus of the party in control of each house of the legislature, with legislators from the area where the judge will serve typically having the final say.

Although it’s a little early for the horse-trading to start, Kilgore said, the governor and circuit judges may have more seats to fill than is usually the case. They pick lower court judges if the legislative session expires without a seat being filled.

Vick can keep Falcons' bonuses

Michael Vick, the former Atlanta Falcons quarterback now doing time in federal prison on dogfighting charges, can keep nearly $20 million in bonuses paid by the team, a federal judge in Minneapolis ruled this morning.

A special master found in October that Vick needed to pay back the money, but the judge said return of the funds would violate the NFL's collective bargaining agreement.

The Daily Press has an AP report on the ruling.

Flippin and Densmore move to Gentry Locke

Two big names in Roanoke’s legal community have changed addresses.

Frank Flippin and Doug Densmore, late of the firm that bears their names – LeClairRyan Flippin Densmore – have joined Gentry Locke Rakes & Moore LLP.

Both attorneys were founding members of Flippin Densmore Morse & Jessee, which was established in 1996. That firm merged with Richmond-based LeClairRyan in 2004 to become LeClairRyan Flippin Densmore.

Both men are business lawyers and Gentry Locke’s managing partner, Mike Pace, said in a release that their addition “greatly expands the depth and breadth of the firm's expertise in all areas of business law."

Flippin also is a past president of the Virginia Bar Association and past chair of the Virginia State Bar’s Business Law Section.

Densmore, who practices in the areas of corporate banking and securities law, has been a member of the Treasury Board of the Commonwealth of Virginia since 2005.

Friday, February 1, 2008

Magistrate reform survives committee challenge

A proposal for a sweeping reorganization of the magistrate system barely cleared the House Courts of Justice Committee today on a 12-10 vote.

“Good luck on the floor, Lacey,” committee Chairman David B. Albo, R-Fairfax, told the bill’s sponsor, Lacey E. Putney after the vote.

Putney, I-Bedford, is carrying HB 903 at the request of Chief Justice Leroy Rountree Hassell Sr., who has made reform of the system a priority. The bill is largely the work of a study group that included judges at all levels of the court system, three chief magistrates, two prosecutors, a public defender and a criminal defense attorney, a representative from the attorney general's office and several Supreme Court staff members.

Beth Turnbull, the chief magistrate in Norfolk and a member of the study group, said, “It will make us a more educated, a more professional and a more accountable system.”

The system would be based on regions rather than judicial districts, with seven regional managers reporting to a magistrate director in the Office of the Executive Secretary of the Supreme Court. The regional managers would supervise chief magistrates who would have authority over teams of 14 to 18 magistrates.

Now, chief circuit judges are responsible for hiring and supervising magistrates, and inconsistency over that process is a major reason for the proposed reforms. The goal is for all magistrates to have college degrees and for all chief magistrates to be lawyers. The higher education standards would be phased in over time and training and technology would be greatly enhanced.

Much of the magistrates’ work, especially in rural areas, would be by teleconference.

But several members of the committee said they see the proposal as a top-down bureaucratic solution that would make it much less likely that someone familiar with the community in which he lives will perform magistrate functions.

Norfolk’s Tripp quits seat

Alfred M. Tripp, the Norfolk circuit judge who has not been on the bench since October, has resigned, according to his lawyer.

The reason?

Tripp's lawyer, Carl Eason, isn't talking, citing client confidentiality.

The Virginian-Pilot quotes one source as saying that Tripp had been barred from the courthouse.

The reason?

Again, no one is talking, at least for the record. It's worth noting that reporters for Virginia Lawyers Weekly ran into the same problem as our colleagues at The Pilot. Their first story back in October was somewhat opaque. There have been stories swirling, but nothing that we were willing to publish. Still.

The bottom line: The General Assembly potentially will select three, count 'em, three new circuit judges for Norfolk, one of the biggest circuits in the commonwealth:
* Tripp has resigned.
* Judge Jerome James is retiring.
* Judge Chuck Griffith, at least for now, doesn't look likely to get another term.

Benitez business at Henrico Bench-Bar

Handed down a year ago, the decision in Ford Motor Co. v. Benitez was one of the top legal news stories in 2007. In Benitez, the Supreme Court of Virginia upheld a $2,000 sanction against a defense attorney who, after discovery and a nonsuit in a products liability case, continued to press affirmative defenses with no basis in fact or law.

The case left a lot of lawyers feeling like they were going to be poised between a waiver and a sanction, fearful of forfeiting an unpleaded claim or defense on the one hand, but afraid of sanctions for doubtful claims or defenses, on the other.

The balancing act continues.

The Benitez case was topic number one yesterday at the circuit court session of the Henrico County Bar Association Bench-Bar Conference at the courthouse.

The Henrico County bench thinks there may be Benitez-based sanctions motions on the horizon.

“I haven’t had one yet, but I can see it coming,” said Judge Al Harris. Both Harris and Judge Catherine Hammond said the nonsuit in Benitez was significant, but they also pointed to the mandatory language in Virginia’s sanctions statute, Va. Code § 8.01-271.1.

“Once the motion comes before the court, if the moving party establishes the failure to have a factual basis or legal basis, the court doesn’t have any choice,” Hammond said.

“The Supreme Court is very clear, it’s a ‘shall’ situation,” Harris said.

Judges on the panel said possible sanctions scenarios could include a contributory negligence defense asserted against a passenger injured in a car crash (a la Benitez), or a plaintiff’s request for punitive damages in a contract case, or a request for attorney’s fees and costs in a tort suit.

“The Supreme Court is placing a great burden on counsel to plead and develop the case,” said Judge Burnett Miller.

Several judges agreed that if pleadings are limited, lawyers likely will have more latitude in discovery.

The general district court session dealt primarily with collections work and the need for lawyers to clean up their cases ahead of time in order to streamline presentations in court.

But one GDC judge couldn’t resist getting in a dig on civil remedial fees.

General District Court Judge Neil Steverson said it was “good to see the circuit court judges over here getting CLE hours, since we were the ones who said civil remedial fees were wrong, and now the General Assembly is agreeing.”