Thursday, April 17, 2008

The VLW Blog has moved!

The VLW blog has moved to its new home on Virginia Lawyers Weekly's brand new Web site!

To continue following our blog coverage of the latest legal news from across the commonwealth, make sure to update your bookmarks to this link:

Brownlee to resign

John Brownlee, the U.S. Attorney for the Western District of Virginia, has announced his resignation, according to WDBJ. The resignation is to be effective on May 16.

Brownlee was appointed to the prosecutor's job by President Bush in 2001. He has been mentioned as a possible G.O.P. contender for Virginia Attorney General.

A link to a news release on Brownlee's resignation is here.

Wednesday, April 16, 2008

Lethal injection upheld

As reported on SCOTUSblog: In a widely splintered decision, the Supreme Court on Wednesday cleared the way for death-row executions to resume across the country, concluding that the most common method of lethal injection does not violate the Constitution.

The Washington Post notes that Governor Kaine acted quickly to reinstate the death penalty in Virginia.

It’s all oxycodone to the court of appeals

To say that Jimmy Roger Lane was caught with the goods would be an understatement.

In one pants pocket he had 62 tablets of oxycodone , 17 tablets of hydrocodone and two plastic bags with a total of $4,128 in cash. In the other, he had $181 in cash and 28 tablets of Endocet, a combination of oxycodone and acetaminophen. In his garage, police found a plastic bottle with a dropper lid that contained 7.8 milliliters of liquid oxycodone.

Lane didn’t contest that he was guilty of one count of possessing oxycodone with intent to distribute it, but he was convicted of three counts on the theory that he had different types of the drug in three different locations.

That was a bit much for the Virginia Court of Appeals on Tuesday. The relevant double jeopardy inquiry is whether the defendant had a different intent for each stash, the court said in Lane v. Commonwealth. There was no evidence on that point and, “[w]ithout such evidence, we could only speculate as to whether location, packaging or different physical appearance would prove three separate intents,” the court said.

The question remains as to how much good a remand for resentencing on one count rather than three will do Lane. He did not appeal his conviction of four counts of distributing oxycodone.

He lost on the point that might have exonerated him on all the possession with intent counts. He contended that the search warrant that led to his arrest was defective because the only assertion in the affidavit as to an informant’s reliability was that he had “given information in the past that has led to the seizure of illegal narcotics.”

The court of appeals found that the “good faith” exception to the Fourth Amendment applied, although its analysis listed factors that appeared to go more to the observations alleged by the informant than to his reliability.

Tuesday, April 15, 2008

Bell unrung

Scratch one name from the list of potential candidates for Attorney General. According to this item from the Daily Progress, Charlottesville delegate Rob Bell will trade a campaign for the pleasures of fatherhood.

Not to be outdone, Republican State Senator Mark Obenshain of Harrisonburg also chooses not to run for A.G., citing family concerns, according to his e-mail to supporters.

Monday, April 14, 2008

Dodd speaks at Holocaust Museum

In reinforcing the rule of law, the Nuremberg Trials established and highlighted the fact of the Holocaust, Sen. Christopher J. Dodd, D-Conn. said Saturday evening at the Virginia Holocaust Museum.

Dodd is the son of Thomas J. Dodd, the late senator who is generally regarded as the most effective prosecutor at the trials. Christopher Dodd published last year “Letters from Nuremberg,” which includes much of the daily correspondence that his father sent to his mother during the trials.

The senator was in Richmond to attend a policy retreat of Senate Democrats at the Jefferson Hotel. He signed copies of the book with the recently completed replica of the Nuremberg courtroom to his right. Senatorial colleagues Harry Reid of Nevada, Carl Levin or Michigan and Patrick Leahy of Vermont stopped by briefly for the festivities.

Dodd said his father believed that World War II “was about fundamental rights.” If the defendants had not been accorded those rights, vengeance would have been all they produced, he said.

As the primary force behind the trials, the United States accumulated moral authority from them, Dodd said.

He said he believes that decisions of the Bush Administration – from condoning torture to its policies involving the terrorists at Gu├íntanamo and weakening privacy rights through warrantless surveillance of telephone conversations and e-mail – have undermined that authority.

“You don’t become stronger by giving up your rights,” he said. “You become weaker as a people.”

The Nuremberg Courtroom will be formally dedicated on May 1 in a ceremony that will include a speech by Justice Rosalie Silberman Abella of the Supreme Court of Canada.

Programs earlier in the day at a Rule of Law Conference at the museum will include appearances by Gov. Timothy M. Kaine, Virginia Chief Justice Leroy R. Hassell Sr. and Richmond Mayor L. Douglas Wilder.

The Richmond Bar Association will hold its Law Day luncheon at the museum with remarks from Virginia Supreme Court Justice Donald W. Lemons.

Court hears R-MWC arguments

An attorney told the Supreme Court of Virginia today that the court has never addressed the relationship between a college and its students.

Wyatt B. Durrette Jr., representing alumnae and students of Randolph-Macon Woman’s College, contended that the relationship is essentially contractual. The contract is determined by the material sent to its students by a college and what the student should understand from the material.

Before the R-MWC decided in 2006 to admit men and changed its name to Randolph College, students reasonably believed they had a contract for four years of liberal arts education at an all-woman school, he said.

Edward J. Fuhr, representing the college, countered that the trial court had properly granted a demurrer because such documents as the academic catalog and the admissions letter did not come close to establishing an enforceable contract.

In a related case, many of the same plaintiffs, represented by William H. Hurd, also contended that the college’s board of trustees exceeded its authority by taking assets for one charitable purpose – operation of an all-woman college – and using them for another such purpose – a coed school – without court approval.

Fuhr responded that charitable institutions often change and evolve without court approval. Because charitable trusts don’t have beneficiaries, “public officials must enforce them,” he said. The attorney general has that authority in Virginia and he has refused to intervene in the case, Fuhr said.

The court is expected to issue a decision in the cases, Record Nos. 070843 and 071248, on June 6.

Friday, April 11, 2008

Bad dog

The pit bull that belonged to the son of Elsie Campbell was a bad dog all right.

So bad, in fact, that Campbell wouldn’t get out of her car when she went to the house that she owned and allowed her son to live in rent-free. When Campbell stayed in the car, the dog would bite the tires of the vehicle. Knowing that the dog had bitten someone, Campbell told her son to get rid of it.

Predictably, the dog seriously mauled a friend of the son at the house, and the friend sued. The jury awarded him $175,000 in damages from the estates of Campbell and her son.

The Supreme Court of Virginia awarded Campbell an appeal, but affirmed the verdict today in an unpublished order, King, executrix v. Meyer, Record No. 070570. She had failed to object to an instruction aimed at establishing the duty of a property owner to protect a licensee from a known danger, the court said. Under Rule 5:25, it couldn’t consider that assignment of error, the court held.

The court also found the evidence sufficient to support the verdict. “Campbell was aware that the dog had previously bitten someone. Campbell’s knowledge of the dog’s dangerousness was confirmed when she demanded the removal of the dog from the premises. Campbell was aware of the violent tendencies of the dog and did not remove the dog or post any warning signs.”

SCC ruled properly on rate increase, Supreme Court holds

State law and a memorandum of understanding did not require the State Corporation Commission to give Allegheny Power a rate increase, the Supreme Court of Virginia ruled today in an unpublished order.

The Supreme Court said that Allegheny had asked the SCC to rule as a matter of law that it was entitled to the rate increase. The SCC properly found that it was not obligated to grant one, the court said in Potomac Edison Co. d/b/a Allegheny Power v. SCC, Record No. 071566.

However, the court noted, “Whether AP is entitled to a modification of the rate based upon financial distress, present circumstances, confiscation, or any other legal theory engaging the Commission’s legislative function was not before the Commission and is not before the Court.”

Amendments to Virginia Code § 56-582 in 2004 “invoke[] the Commission’s legislative discretion but do[] not compel adjustment of capped rates as a matter of law,” the court said.

The order indicates that much of Allegheny’s argument was based on its contention that it had invoked the SCC’s ratemaking authority, but the commission and the court found that the utility had not done so. while the case was on appeal, AP filed a request for a rate increase under the SCC's ratemaking authority and were awarded a lesser increase than the utility tought it was due. It has appealed that case as well.

Allegheny’s demand for the rate increase is in the context of the abandonment of the effort to provide electricity customers with the opportunity to buy power from more than one retailer. Allegheny and other utilities in the state agreed in 2000 to forego rate increases if the they were allowed to separate power generation and the retail transmission and distribution of power.

The retail competition envisioned by the legislation never developed, and the General Assembly voted to end the capped rate at the end of 2008, rather than in 2010as contemplated by earlier legislation.

Supreme Court limits notice of disciplinary actions

The Supreme Court of Virginia has told the Virginia State Bar not to put any information about disciplinary complaints on its Web site “until a decision has been made adverse to the lawyer and the the time for filing an appeal from that decision to the Supreme Court has expired.”

“The Supreme Court would like this policy implemented immediately,” Chief Justice Leroy Rountree Hassell Sr. said in a letter to VSB President Howard W. Martin Jr. last month that included other topics.

“That creates some issues for us,” VSB President Howard Martin told the agency’s executive committee yesterday. He said the a response is being prepared that will explain the ramifications of the new policy.

Martin said he understood the action was in response to a complaint by an attorney who had a disciplinary citation dismissed on appeal.

Under VSB rules, disciplinary matters become public only after a disciplinary committee finds probable cause that a disciplinary violation has occurred. Once that happens, the VSB publishes hearing dates for the attorney before the Disciplinary Board or three-judge panels on the Web site.

When a finding of misconduct that warrants at least a public reprimand is made, the VSB posts the case on the “Disciplinary Actions” page of the site. Appeals and other matters that occur after the posting appear at the bottom of the posting with an asterisk and an explanation in contrasting red type.

Since Martin received the letter, no new listings of pending disciplinary actions have been posted on the Web site. The information remains public at the bar offices.

That bothered Theophani Stamos, a Fairfax prosecutor who is a member of the EC. “If it’s a public record, it’s a public record” and ought to be readily available, she said.

Comeback story

Bruce C. Britton has been without a valid Virginia law license for 19 years. According to this announcement, on June 27, the State Bar disciplinary board will hear his request for reinstatement. Mr. Britton told the VSB that he wants to return to practice as a solo to help clients who would otherwise lack the aid of an attorney.

Finger splint infringement

A new copyright law opinion from U.S. District Judge Norman Moon gains our notice for several reasons. It sheds light on a niche market -- "fine quality jewelry" finger splints. It includes a citation to Green Eggs and Ham. And it underscores what we all learned in grade school -- paraphrasing someone else's words and passing them as yours can get you into trouble.

We just hope that this book cover image constitutes fair use.

Coaches wearing blinders?

High school coaches in Harrisonburg are under scrutiny for allegedly turning a blind eye to student criminal activity, according to the Daily News Record. The article claims that state law requires teachers and coaches to report substance abuse activity, but a criminal defense attorney said that the law has no teeth. A law professor is quoted on the procedures for firing school personnel.

Bar stays out of judicial appointments

Judy Rosenblatt wanted her colleagues on the executive committee of the Virginia State Bar to send a letter to General Assembly members stating the committee's displeasure at the failure of the legislature to fill judicial vacancies.

Almost 30 appointments are pending, but Rosenblatt was most upset yesterday about Court of Appeals Judges Robert J. Humphreys and Jean Harrison Clements. All the other appointments involve open seats, but Humphreys will go off the bench for at least eight days on April 15. Clements' term doesn't expire until June.

The General Assembly will reconvene April 23 and is expected to take up the appointments then.

EC member Irv Blank disagreed with Rosenblatt. “The best thing we can do is not put our foot in that tar baby. . . . That is a lose-lose situation” for the VSB, he said.

“I think we need to support our own judiciary,” Rosenblatt insisted.

Blank responded, “If it's not taken care of on the 23rd, we ought to raise holy hell. It's really silly juvenile politics.”

VSB President Howard Martin sided with Blank and, with that, the committee moved on to another topic.

Thursday, April 10, 2008

CRESPA bond is doubled

The CRESPA bond requirement is being increased, according to this announcement from the Virginia State Bar.

An amendment to Code § 6.1-2.21 increasing the minimum CRESPA surety bond from $100,000 to $200,000 will be effective on July 1, 2008.

- - - - - - - - - - - - - - -

UPDATE: Here's an update on Thursday afternoon, direct from the VSB. Bar leaders anticipated that they would be able to provide a grace period for compliance, but the bar has determined that that's not possible.

The VSB site now contains this statement: "An original rider or a replacement bond must be received in the office of the Virginia State Bar by July 1, 2008, or your CRESPA registration will be revoked, and you will not be able to perform residential real estate closings."

As the poet once said, govern yourself accordingly.

Va. Tech families settle, AP says

Lawyers for families of 21 of the Virginia Tech shooting victims said today they have agreed to an $11 million settlement with the Commonwealth of Virginia, according to an AP account in The Roanoke Times and other newspapers.

At least 20 families earlier filed notice with the state that they might sue. Published accounts of the settlement talks said settlement was contingent on a waiver of that right.

The $11 million figure includes attorneys' fees and a fund for charities.

In October, the families and surviving victims received payments ranging from $11,500 to $208,000 from the Hokie Spirit Memorial Fund, which will remain open for contributions to scholarships for five years.

Next Wednesday, April 16, is the first anniversary of the attack by deranged student Seung-Hui Cho.

Inquiring nostrils want to know

For suspects who weren’t sure, you have no privacy interest in the way you smell.

The Virginia Court of Appeals didn’t have to hold its nose to embrace the “plain smell” doctrine, which gives cops the right to go into your pockets if you smell like marijuana.

“While some have questioned our willingness” to embrace the doctrine, sniffed Judge D. Arthur Kelsey in Bunch v. Commonwealth, it’s clear to the court that an individual “has no privacy interest in his odors. He cannot broadcast an unusual odor” and “reasonably expect” others to take no notice.

“We concur with the accepted view that there is no reasonable expectation of privacy from lawfully positioned agents with inquisitive nostrils,” Kelsey quoted in the court's published opinion April 8.

So be careful who’s standing downwind.

Wednesday, April 9, 2008

One injury, one recovery

As we reported recently, it's an open issue in Virginia whether a plaintiff's lawyer has to choose between a wrongful death and a survival action before trial. In case we needed reminding, here comes a Maryland federal court decision (by way of the Maryland Daily Record) that clarifies the importance of that issue: Virginia allows only one recovery for a single injury.

That finding means disappointment for the mother of a man shot to death by a Maryland police officer in Virginia. She could have recovered on her survival action under Maryland law. Because the fatal encounter happened in Virginia, however, and because the victim's estate already recovered under Virginia's wrongful death statutes, the mother's survival claim is barred.

Scalia in Charlottesville Thursday

According to this website, Supreme Court Justice Antonin Scalia will speak at UVA Law School Thursday on "The Wall of Separation." Apparently, he will address Jefferson's view of church and state, although it is not known if he will comment on the recent Virginia decision in the Episcopal Church property dispute.

Scalia is to speak at 4 p.m. in Caplin Auditorium.

The event is free and open to the public. As usual, however, certain restrictions apply for techno types: Recording devices are not allowed during the lecture except for note-taking purposes. Videotaping will not be permitted.

Justice Scalia has a long history of discomfort with electronic media, although he apparently has overcome that discomfort to some extent in recent days to promote his forthcoming book.

Roanoke child advocacy agencies to merge

Two nonprofit agencies that work with courts as advocates for abused children have announced plans to merge, according to this item from the Roanoke Times.

The merger will join the Children's Advocacy Center of the Roanoke Valley and the Roanoke Valley chapter of Court Appointed Special Advocates for Children to form Children's Trust Roanoke Valley.

Tuesday, April 8, 2008

Picking our own bosses?

State Senator Ralph Smith of Troutville thinks lawyers have too much say in who becomes a judge in Virginia. He sees bar endorsements as a conflict of interest for those who have to practice before the judge. Today, he ventured to defend that opinion before the Roanoke Bar Association. "It's like getting to pick your own bosses," he told the gathering.

His main concern, he explained after the bar meeting, is the appearance of conflict when lawyer-legislators appear before the judges they helped put on the bench.

The freshman Republican says that he is not lobbying for elected judges, and he acknowledges that he does not have an alternative to Virginia's method of legislative appointment of judges. He just wants to limit the influence of those who will practice before the judges they help to select.

Friday, April 4, 2008

‘Kiss my sanctions’ may not be enough

Once again, when trial judges and lawyers convene, the talk turns to Benitez, the Virginia Supreme Court sanctions case. The venue this time? A panel of circuit court judges at the Virginia Trial Lawyers Association annual meeting on March 28, moderated by Arlington Circuit Court Judge Joanne Alper.

The subject is irresistibly personal.

“Sanctions motions are different and more difficult because they’re personal,” said Albemarle County Circuit Judge Cheryl Higgins. Basically, “you want a finding that the other attorney is a jerk.” You’ve got to use “e-mail, faxes, voice-mail, letters,” all kinds of lawyer-to-lawyer communications to prove your point.

Higgins is seeing more sanctions motions, but she cautions against filing just because you think you’ve got grounds.

Some lawyers see a flimsy claim or defense and fire off a “kiss my sanctions” motion, without any cite to authority. Higgins, who took the bench in Albemarle County in 2007, said “you would not believe what I’ve read in the last year.”

Higgins said it’s important to “think strategically before you file a motion for sanctions. What is it you’re trying to accomplish for your client,” given the time and expense of pursuing a sanctions motion.

“When you bring a sanctions motion, you’re putting your credibility on the line,” Alper said.

What about giving opposing counsel a chance to back down? The consensus among this group, which also included Richmond Circuit Judge Brad Cavedo, seemed to be it’s not necessary under the current statute, but it might be as a matter of professional courtesy.

In practice, “you try to work it out,” said Hampton Circuit Judge Wilford Taylor Jr. “We don’t want to sanction lawyers.”

Word is, a Boyd-Graves committee is looking at drafting a “safe harbor” provision for Va. Code § 8.01-271.1, similar to the one in Fed. R. Civ. P. 11, that requires a warning shot over the bow before a sanctions motion is filed.

Thursday, April 3, 2008

Judge sees parents as key to preventing underage drinking

Salem and Roanoke County Juvenile Court Judge Philip Trompeter says, in his perfect world, parents would have to undergo training in the dangers of alcohol and drugs before their children move up to middle school and beyond. Speaking to a meeting on underage drinking prevention Thursday night, Trompeter emphasized parental responsibility: "There's not a child who does anything that a parent does not let them do," he said.

Trompeter wishes parents would tell their children two things each day: I love you, and the use of alcohol and drugs will not be tolerated.

A certification program for parents would help, Trompeter said. "That's my dream if I were king."

The event in Roanoke was one of a nationwide series of town hall meetings on prevention of underage drinking.

Obenshain ponders run for AG

State Senator Mark Obenshain of Harrisonburg is considering a run for the G.O.P. nomination for Attorney General, according to the Daily News Record.

The perils of lawyering

A Richmond lawyer representing plaintiffs in a racial discrimination lawsuit claims that he and his wife were threatened with harassment by a Roanoke hate group leader, according to this item in The Virginian-Pilot. Troutman Sanders attorney Kevin Mottley is seeking a criminal contempt finding against the white supremacist who posted internet items about Mottley.

Ironically, Mottley's web biography indicates that he defended an apartment complex against allegations of racial discrimination in a 1998 case.

File pass-off can’t pump fee award

As March Madness wanes, like a hoopster’s fadeaway jumper, indulge us please in one more basketball reference. We can’t let a good one get away.

Charlottesville’s U.S. Magistrate Judge B. Waugh Crigler already had decided to award fees to lawyers for Pacel Corporation in Calkins v. Pacel Corp. for its opponent’s violation of federal discovery rules and the parties’ own joint discovery plan. But the amount the lawyers asked for on March 25 made Crigler blow the whistle.

Pacel’s lawyers requested $23,498.60, based on hourly rates ranging from $215 to $370. The hourly rate was the first sticking point. Crigler pointed out that Western District courts generally find $250 to be a reasonable hourly rate. Beyond that, he was “concerned with how many attorneys were reasonably necessary to pursue discovery compliance” in the case, especially in light of the $155 per hour spread in lawyer rates.

“While in basketball, the ‘three touch’ rule may lead to effective scoring opportunities, such a practice raises substantial issues of reasonableness in the context of fee shifting. In other words, a party’s default in providing discovery does not, ipso facto, expose that party to all that could be billed to a client who voluntarily engages the services of a well-stabled law firm,” Crigler wrote. Paring the hourly rate, he ultimately awarded $18,850.

So if you’re feeling like a Harlem Globetrotter, save it for that other court.

Tuesday, April 1, 2008

Kaine stops executions

As reported here and here, Governor Kaine has ordered a temporary halt to executions in Virginia pending a United States Supreme Court ruling on lethal injections.

Douglass named UR law dean

John G. Douglass, the acting dean at the University of Richmond law school who at first said he wasn’t interested in the permanent job, has been named dean of the school.

In announcing the appointment, UR President Edward L. Ayers said, “Dean Douglass has provided strong interim leadership, and I am delighted that he has agreed to lead the school for the longer term and build on its ever-increasing momentum.”

A graduate of Dartmouth College and Harvard Law School, where he was editor of the law review, Douglass joined the UR faculty in 1996. He had worked for 15 years before that as a federal prosecutor and as a civil litigator for two Richmond law firms.

He teaches evidence and criminal law and procedure and received UR’s distinguished educator award in 1999.

Douglas was named interim Dean after his predecessor, Rodney A. Smolla left UR to become dean of the Washington and Lee University law school.