Friday, March 27, 2015

On the BVU ex-employee

I read online that a fellow who used to work for Bristol Virginia Utilities has entered a guilty plea to federal charges involving money. That guy was a good friend of mine back when I was helping out as their junior varsity counsel and the fiber optic network was still in the works. I went with his group to meetings related to municipal broadband in Georgia, Maryland, and Charlottesville. He might have been with us when we went up to hear the argument in the Missouri preemption case before the United States Supreme Court. I sat next to him at most of the board meetings that I attended. As with a few others I have known who broke bad but were good to me, he was wrong to get into such a mess and it is upsetting that he must have caused a terrible hardship to my other friends who worked there, yet if we ever meet again he should not be surprised if I shake his hand and ask him if he has time to sit down and tell a few stories.

At my Grandma Minor's funeral, the story was told about how she would go into the jail and pray with the ladies there and one day she came across a young woman who had been in her group of Baptist girls at the church. 

"It could have been," the minister said, "an awkward moment. But Ms. Minor didn't hesitate. She lifted her up! She told her it was good to see her, and they had a fine time together."

On a good day, I follow her example.

Friday, March 20, 2015

Fourth Circuit requires writ of habeas corpus in Richmond murder case

In Lee v. Clarke, the Fourth Circuit in an opinion by Judge Gregory, joined by Judges Motz and Wynn, reversed the denial of the petitioner's claim for a writ of habeas corpus, concluding that that he was denied effective assistance of counsel by his lawyer's failure to request a "heat of passion" jury instruction in his murder case, which was tried in the Circuit Court for the City of Richmond in 2008.

Wednesday, March 18, 2015

Yelp wins in the Fourth Circuit

In Westlake Legal Group v. Yelp, Inc., the Fourth Circuit in an unpublished per curiam opinion for the panel of Judges Shedd, Floyd, and Thacker held that claims under Virginia law against the popular consumer review website Yelp were barred by section 230 of the Communications Decency Act.

Thursday, March 12, 2015

He said it

"[F]ormal rulemaking is the Yeti of administrative law."

Thomas, J., concurring, in Perez v. Mortgage Bankers Association, No. 13-1041, slip op. at 18 n.5 (U.S. March 9, 2015).

Artificial insemination performed at home

I listened to the argument just now by my friend Monica Monday and others in a case before the Court of Appeals, where the issue is whether artificial insemination performed at home using kitchen utensils meets the statutory definition for "assisted conception," which under Va. Code § 20-156 "means a pregnancy resulting from any intervening medical technology, whether in vivo or in vitro, which completely or partially replaces sexual intercourse as the means of conception. Such intervening medical technology includes, but is not limited to, conventional medical and surgical treatment as well as noncoital reproductive technology such as artificial insemination by donor, cryopreservation of gametes and embryos, in vitro fertilization, uterine embryo lavage, embryo transfer, gamete intrafallopian tube transfer, and low tubal ovum transfer." The panel seemed to be skeptical about whether the home procedure qualified as "intervening medical technology."

Thinking about the case, I was reminded of the wisdom of my friend Fred Rowlett, who explained to me some years ago that every stage of the human experience passes through the Virginia Court of Appeals.

Monday, March 09, 2015

On raising the mandatory retirement age for state court judges in Virginia

The General Assembly has passed legislation that would raise the retirement age for Virginia judges from 70 to 73. It applies to "justices of the Supreme Court of Virginia and judges of the Court of Appeals of Virginia effective July 1, 2015," and "those judges of the circuit, general district, and juvenile and domestic relations district courts who are elected or appointed to an original or subsequent term commencing on or after July 1, 2015."

In the past, I always wondered whether at the back of such legislation were old lawyers who wanted to finish their careers as judges, but I have not heard anyone say that in a while.

Locally, the federal Judges Dalton, Widener, Turk, Williams, and Michael all kept working long past the age of 73, and the current order for the division of cases in W.D. Va. shows that the three W.D. Va. judges over the age of 73 (who shall remain nameless) are still taking all the cases from the Abingdon, Big Stone Gap, Lynchburg, and Danville divisions, and some of the Roanoke and Charlottesville cases.

Tuesday, March 03, 2015

Speedy trial violation in Buchanan County attempted murder case

In Com. v. Keen, the Court of Appeals affirmed the ruling by Judge Vanover dismissing the felony charges brought against Ms. Keen for violation of her speedy trial rights. On the Commonwealth's appeal, the Court in an unpublished opinion by Judge Petty held that the Commonwealth had failed to account for significant periods of time in the history of the case.

Monday, March 02, 2015

Latest batch of opinions focuses on the law of lawyering

In its decisions issued on Friday, the Virginia Supreme Court dealt with the timeliness of a prisoner's collateral attack on his conviction based on involving prosecutorial misconduct in the failure to disclose exculpatory evidence (Hicks v. Director), the liability of a lawyer for the wrongful death of a process server that he hired to serve what proved to be a dangerous person (Brown v. Jacobs), what damages are recoverable in a legal malpractice case and whether an attorney is negligent in failing to anticipate changes in the law (Smith v. McLaughlin), who the lawyer needs to be name as a party to a zoning appeal (Frace v. Johnson), what attorney fees are recoverable on a motion for sanctions under Va. Code 8.01-271.1 (E.E. Mart F.C. v. Delyon), how to preserve error related to the denial of leave to amend (Roop v. Whitt), and the failure of defense counsel to advise a criminal defendant about the effect of his plea bargain on his immigration status (Zemene v. Clarke). Also, in two cases, the opinion writers addressed the effect in Virginia courts of determinations in the federal courts, in Toghill v. Com. and Cowser-Griffin v. Griffin.

Just reading every one of those opinions ought to be enough to fulfill the ethics CLE hours for the year, but here is the gist:

In Hicks, the Court held that the failure to disclose exculpatory material is the basis for tolling the statute of limitations under Va. Code 8.01-229(D), but the petitioner in that case could not prove that the exculpatory material was important enough to justify relief.

In Brown, the Court held that there was no legal relationship between the process server and the lawyer who hired him that would justify the imposition of tort liability on the lawyer for the criminal acts of someone else.

In Smith, the Court held that the lawyer is not liable for failure to anticipate changes in the law, and that non-pecuniary damages are not recoverable in a legal malpractice case.

In Frace, the Court held that special rules apply to a zoning appeal in naming the necessary parties, and the board of supervisors and not the board of zoning appeals was the necessary party to be joined and served under the certiorari statute as amended in 2010, and the omission of the necessary party could not be cured outside the appeal period.

In Roop, the Court held that the plaintiff had failed to preserver error related to the denial of his motion for leave to amend, where the record did not show "how the amendment would alter the pleading upon which the circuit court had ruled."

In E.E. Mart, the Court held that the sanctions under section 8.01-271.1 could not include attorney fees for prior litigation in another state.

In Zemene, the Court held that the circuit court applied the wrong standard in assessing the petitioner's claim of "prejudice" in connection with the failure to inform him about the effects on his immigration status.

In Toghill, the various opinions rejected the Fourth Circuit's decision on the facial invalidity of Virginia's anti-sodomy statute, and disagreed as to whether it even matter that the the Fourth Circuit had taken up the issue after the defendant's trial.

In Cowser-Griffin, Justice Millette in a dissenting opinion joined by Chief Justice Lemons and Senior Justice Koontz concluded that the Court of Appeals erred in its conclusion on a federal law question pertaining to the vesting of survivor benefits under a QDRO.