He said it

“You kind of expect your soldiers to go home at night and play Xbox and drink beer — which they do — but I’ve heard them talk about [the election] quite a bit,” the Army captain said. “They’re more dialed in than some might think.”

Military Times, "Military Times Poll: Romney bests Obama, 2-1," October 7, 2012.

On having Mitt Romney at Exit 13

Last Friday, I went with the girls to the Coal Country rally for Mitt Romney, and spotted my dad on the other side of the walkway. In this picture, my dad is taking a picture of Mitt Romney. Romney gave his standard stump speech, modified only to add emphasis on coal and to take out the reference to the unemployment rate as more than 8 per cent, on account of the new figures that came out that day.

On the Rules of Evidence

The Charlottesville paper has this article on how the adoption of the Virginia Rules of Evidence was a long-term project for law professor Kent Sinclair.

It begins: "A University of Virginia law professor spent 18 years sorting through centuries worth of case law to develop the Virginia Rules of Evidence, a comprehensive guide to govern the admission of evidence in civil and criminal trials across the state."

Interestingly, I never noticed before today that the new and improved version of Va. Code 8.01-3, dealing with the Rules of Evidence, includes this proviso: "The General Assembly may, from time to time, by the enactment of a general law, modify or annul any rules adopted or amended pursuant to this section. In the case of any variance between a rule and an enactment of the General Assembly such variance shall be construed so as to give effect to such enactment."

On getting the lower court to do what the higher court decided

A traditional office of the writ of mandamus is to "'confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.' " Will v. United States, 389 U.S. 90, 95 (1967) (quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943)). Mandamus to compel an inferior court to follow an appellate mandate is closely related to the doctrine of law of the case. Litigants who have proceeded to judgment in higher courts "should not be required to go through that entire process again to obtain execution of the judgment." General Atomic Co. v. Felter, 436 U.S. 493, 497 (1978). The Supreme Court long ago emphasized that when acting under an appellate court's mandate, an inferior court "is bound by the decree as the law of the case; and must carry it into execution, according to the mandate. That court cannot vary it, or examine it for any other purpose than execution." In re Sanford Fork & Tool Co., 160 U.S. 247, 255 (1895).

The same principles apply in Virginia state court. Mandamus is available to get lower courts to do what they should do. In re Commonwealth, 278 Va. 1, 22, 677 S.E.2d 236, 246 (2009) (mandamus directed to an inferior court “may be appropriately used and is often used to compel courts to act where they refuse to act and ought to act ...”); Page v. Clopton, 71 Va. (30 Gratt.) 415, 418 (1878) (mandamus "may be appropriately used and is often used to compel courts to act [when] they refuse to act and ought to act, but not to direct and control the judicial discretion to be exercised in the performance of the act to be done; to compel courts to hear and decide where they have jurisdiction, but not to pre-determine the decision to be made; to require them to proceed to judgment, but not to fix and prescribe the judgment to be rendered."). A ministerial act is “one which a person performs in a given state of facts and prescribed manner in obedience to the mandate of legal authority without regard to, or the exercise of, his own judgment upon the propriety of the act being done.” Dovel v. Bertram, 184 Va. 19, 22, 34 S.E.2d 269, 370 (1945). Under the “mandate rule,” a “trial court has no discretion to disregard [a] lawful mandate.” Rowe v. Rowe, 33 Va. App. 250, 257, 532 S.E.2d 908, 912 (2000), quoted in Powell v. Com., 267 Va. 107, 127-28, 590 S.E.2d 537, 549 (2004). The “mandate rule” is “merely a ‘specific application of the law of the case doctrine,’” and “in the absence of exceptional circumstances, it compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court.” United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993), cited in West v. West, 59 Va. App. 225, 230-31, 717 S.E.2d 831, 833 (2011).

We first heard the term "mandamus" in junior high civics, in connection with the case of Marbury v. Madison. Marbury wanted the writ to issue against Madison, requiring him to come across with Marbury's commission. Curiously, the Virginia rules require a different style for petitions for writ of mandamus against a judge: "A petition for writ of mandamus or writ of prohibition against a judge shall not bear the name of the judge but shall be entitled, 'In re , Petitioner.'" Rule 5:7(b)(4), Va. S.Ct.

On second depositions

Back in the day, I had a case that got tried a couple of times, various weird things happened in between the trials, and the magistrate judge ruled that my client had subject himself to a third deposition. While the case was going on, in 1993, Rule 30 of the Federal Rules of Procedure was amended to provide that leave of court was required to take a deposition if the deponent had already been deposed in the case. Rule 30(a)(2)(A)(ii), F.R.C.P. In 2000, Rule 30 was further amended, to provide that "a deposition is limited to 1 day." Rule 30(d)(1), F.R.C.P. The result is that in the absence of agreement, leave of court is always required for a second (or third) deposition of the same witness.

A few years later on, I had another case where the Magistrate Judge, affirmed by the District Judge, ruled that my clients should be deposed a second time. So we argued that at least the subject matter of the second depositions should be limited to new matter, citing Judge Urbanski's decision in Schwarz & Schwarz of Virginia, L.L.C. v. Certain Underwriters at Lloyd’s, Civil Action No. 6:07cv042, 2009 WL 1913234 (W.D. Va. July 1, 2009). In the Schwarz case, the poor fellow had been depose once, given a recorded statement, and suffered through an examination under oath.

The Schwarz & Schwarz case fit with other decisions we found. “Several courts faced with similar situations have granted a party the right to take a second deposition, but have limited that deposition to matters not addressed in the first deposition.” Christy v. Pennsylvania Turnpike Com’n, 160 F.R.D. 51, 53 (E.D. Pa. 1995) (citing cases). See also San Francisco Bay Area Rapid Transit Dist. v. Spencer, 2006 WL 2734289, 2 (N.D. Cal.) (limiting scope “to those areas not already covered in the previous depositions.”); Collins v. International Dairy Queen, 189 F.R.D. 496, 498 (M.D. Ga. 1999) (“these supplemental depositions should not involve substantial repetition of questions previously asked and answered and instead should focus on subjects not previously inquired about and facts or alleged facts and developments since their initial depositions.”); Schbley v. Gould, 1993 WL 135427, 1 (D. Kan.) (“The general rule adhered to by this court is that depositions of witnesses or parties already deposed will be permitted, but their depositions should be limited to those areas not covered in the earlier depositions.”); Perry v. Kelly-Springfield Tire Co., Inc., 117 F.R.D. 425, 426 (N.D. Ind. 1987) (“The second deposition of the plaintiff shall be limited to those areas not covered during the initial deposition.”).

This week we had a "discovery" deposition in a state court case; plaintiff's counsel said he would decide later whether he would re-depose the doctor "for trial." Neither the 1993 nor 2000 amendments to Rule 30 were ever adopted into the Virginia rules. Doctors are regarded as unavailable under the Virginia rules, Rule 4:7(a)(4)(e), and so their testimony is generally given by deposition. As Judge Welsh observed, "the use of trial depositions (both video-taped and stenographic transcriptions), taken after the close of pretrial discovery, have been routinely used efficiently and effectively for many years, both in this court and in the state courts of Virginia." Lucas v. Pactive Corp., No. 5:08cv00079 (W.D. Va. Dec. 22, 2009). Notwithstanding the common practice, "[t]here is no statute or Rule of Court specifically authorizing a de bene esse deposition." Boyer v. Dabinett, 74 Va. Cir. 19, 24 (City of Winchester Cir. Ct. Feb. 28, 2007). It is not obvious that a litigant is entitled to a second deposition of any witness, as a matter of right, or that the first deposition of a physician is any less "for trial" than a second one would be.

On Bullitt Park

The other weekend, I went to the football game at Bullitt Park in the company of my oldest step-daughter, who realized what an odd character I am for the umpteenth time when I explained to her that the park was named for a lawyer, Joshua Fry Bullitt, Jr., whose biography on Wikipedia I wrote myself. Below are pictures of the park and the man himself.

On Judge Joe Tate

In today's e-mail was a letter circulated to members of the Bristol Virginia Bar, from Judge Tate, indicating that he would retire in January after more than twenty years as General District Court Judge for the 28th District.

When I was a brand new lawyer, Judge Tate came around to the law firm to talk about the judgeship he was then seeking, and I asked him why would he want to be a general district court judge. It was a good thing that he did. He is a delightful, smart man who did a great job for us.

When I got married last year, the first person I saw in downtown Marion the next day was Judge Tate, who was well and truly amused by my answer when he asked how I was doing.

On Bill Poff

I read in today's Roanoke paper of the passing of William B. Poff, the distinguished lawyer from Roanoke. I had only a few professional dealings with him, but he knew who I was (he knew a lot of things), and he was a big friend of my partner down the hall, Lucas Hobbs, one of his many proteges.

Mr. Poff was interesting to me because my grandmother's maiden name was Poff, and so I tried to figure out if we were related. My grandmother denied that there was any connection, and so did he, and they both claimed that we were no kin to Justice and Congressman Richard Poff, either. Even so, Bill Poff the lawyer once represented by mom's uncle Bill Poff.

Bill Poff was also interesting to me because the judicial nomination that he did not get is the one that went to Judge Williams, my old employer. The ebb and flow of that judicial nomination was an extraordinary process of which many tales have been told. It was an unlikely way for Mr. Poff to make the history books, as the second of two nominees to the United States District Court for the Western District of Virginia who were not confirmed by the U.S. Senate.

On Judge Chafin's investiture

I enjoyed seeing the crowd and hearing the speeches at the event for Judge Teresa Chafin in Lebanon yesterday. The local legislators on the program directed their remarks to the long and difficult process that ended with her selection from among a group of well-qualified candidates in a late-night vote. It is difficult from the outside to imagine how much time and effort were required to make the case for a judge from the 29th Circuit for a statewide position.

Judge for the 29th Judicial Circuit- Jack S. Hurley, Jr.

Governor McDonnell announced on Friday that he was appointing Judge Hurley to the 29th Circuit vacancy, replacing Judge Chafin now of the Virginia Court of Appeals. The Governor's announcement included this biography:

"Jack S. 'Chip' Hurley, Jr. was elected to the General District Court in the 29th Judicial Circuit by the Virginia General Assembly in 2005 and currently serves as the chief judge. Prior to taking the bench, he practiced law in Southwest Virginia for 19 years, serving as a prosecutor for the Town of Tazewell and Bland County and in private practice. He is active in his community and a past officer of many civic and professional organizations. He has also been an instructor at several educational institutions, including Bluefield College. He is a graduate of Davidson College in North Carolina and T.C. Williams School of Law at the University of Richmond. He lives in Bluefield with his wife, Julie, and is the father of one daughter and one son."

On double recovery

The upcoming investiture of Judge Teresa Chafin to the Virginia Court of Appeals makes me think about what a pleasure but also a challenge it must be for her to join a court with the likes of Chief Judge Felton, Judge Humphreys, Judge Kelsey, and Senior Judges Baumgardner and Annunziata.

Also, it makes me think of a case she decided once where the issue was the extent to which, if any, the settlement between a truck owner and the repair shop over a claim related to the repair of an engine would bar the truck owner's recovery from the manufacturer for breach of warranty, where the manufacturer claimed the injury and damages for both claims were the same - a bad engine.

So, the manufacturer argued that the settlement with the repair shop gave the truck owner a single satisfaction and the owner was not entitled to a double recovery, citing Nizan v. Wells Fargo. In Cauthorn v. British Leyland, U.K., Ltd., 233 Va. 202, 355 S.E.2d 306 (1987), the Supreme Court held that “where there is one indivisible injury, as here, for which settlement has been consummated, unconditional release of one allegedly liable for the injury bars recovery against others also allegedly liable, regardless of the theory upon which liability is predicated.” 233 Va. at 207, 355 S.E.2d at 309. The same rule was applied in Cox v. Geary, 271 Va. 141, 624 S.E.2d 16 (2006), in an opinion by Justice Kinser. The point of both cases was that where the relief sought from the multiple defendants is identical, one satisfaction is all the plaintiff can have, regardless of the different legal theories of liability. In Virginia, “a party with two valid causes of action is entitled to ‘seek compensation in each, [but is], nonetheless, estopped from collecting the full amount [of damages] in the second action if they were partially paid therefor in the first.’” Nizan v. Wells Fargo Bank Minnesota National Association, 274 Va. 481, 491, 650 S.E.2d 497, 502 (2007) (quoting Katzenberger v. Bryan, 206 Va. 78, 85, 141 S.E.2d 671, 676 (1965)). “Katzenberger establishes that what is dispositive to a defense of double recovery is whether the damages claimed, on whatever theory of liability, are the same damages. If the element of damages is the same, it makes no difference that the potential payors are not joint tortfeasors or jointly and severally liable under the same theory of liability.” Nizan, 274 Va. at 499, 650 S.E.2d at 506.

Judge Chafin thought this was interesting but too clever, to argue that the settlement with the one defendant had released the other outright. She noted the 2007 amendment to Va. Code 8.01-35.1, which changed the language of the section from "persons liable in tort for the same injury" to "persons liable for the same injury." She held that consistent with that statute, the first settlement did not discharge the second claim, but the amount that could be recovered from the manufacturer would be reduced by the amount of the first settlement. It was a pretty good opinion, I thought, and impressed me quite a bit.

The free speech rights of lawyers to criticize quasi-judicial tribunals

Earlier this week in Berry v. Schmitt, the Sixth Circuit in an opinion by Judge Rogers, joined by Judge Daughtrey, held that the Kentucky Bar Association violated the First Amendment rights of a Kentucky lawyer by imposing a reprimand on him for his comments that were critical of the failure of Kentucky's legislative ethics commission to act against a well-known state legislator. The Bar did not claim that the lawyer made any false statements. The Court observed that "[e]ven assuming that Berry believed that the Commission had broken the law, he provided the public with the facts upon which his opinion relied. The majority distinguished this case from lawyers speaking in the courtroom, or lawyers speaking outside the courtroom in ways that involve the "unmitigated expression of disrespect for the law." The third judge on the panel concurred in the opinion but wrote separately to express his view that the lawyer's case was mostly an exaggeration borne of his "long-running feud" with the Kentucky Bar Association.

The Lexington paper, the Louisville paper, and the Associated Press had articles about the case.

It is impossible to read such a story without recalling the unfortunate Richmond lawyer, who at the time was only a few years younger than I am now, who received a show cause from the Virginia Supreme Court for words he delivered to Justice John Charles Thomas of the Virginia Supreme Court in at a Christmas party in 1987, along with the two other cases described in this VLW article.

When is unauthorized use not "use without authorization"

In WEC Carolina Energy Solutions LLC v. Miller, the Fourth Circuit in an opinion by Judge Floyd joined by Judge Shedd and Senior Judge Hamilton held that the defendant's alleged violation of his former employer's policies against downloading confidential company documents for personal use could not be the basis for a civil action under the federal Computer Fraud and Abuse Act, which provides a civil remedy for violations of the criminal act that defines a crime involving the use of computers "without authorization" or "in excess of authority."

Recognizing a split in the authority from other circuits, the Court joined with the more restrictive Ninth Circuit view stated in United States v. Nosal, 676 F.3d 854, 863 (9th Cir. 2012) and refused to follow the Seventh Circuit view stated in Int’l Airport Ctrs., LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006). The Court concluded: "[W]e adopt a narrow reading of the terms 'without authorization" and "exceeds authorized access" and hold that they apply only when an individual accesses a computer without permission or obtains or alters information on a computer beyond that which he is authorized to access.'"

Interesting, the Virginia Computer Crimes Act, adopted around the same time as the federal act, includes a definition of "without authority" - "A person is 'without authority' when he knows or reasonably should know that he has no right, agreement, or permission or acts in a manner knowingly exceeding such right, agreement, or permission." Va. Code 18.2-152.2. In 2005, the legislature removed the element of "without authority" in the criminal trespass statute, and replaced it with the element of "malicious intent." Acts 2005, c. 812. You'd think that the lack of authority would be the fundamental aspect of a computer trespass but evidently it is too problematic, as evidenced by the Fourth Circuit opinion and the amendment to the Virginia statute. Computer users do things all the time that might be beyond the scope of what they are supposed to be doing. The result is that the criminalization of all computer use beyond the scope of express authority casts too wide a net.

Hey, they spelled my name right

The latest Journal of Civil Litigation put out by the Virginia Association of Defense Attorneys includes an article I wrote on litigating fraud.

The proof they sent named the author as "Stephen."

On appellate procedure in child support enforcement cases

One of my interests of late has been child support enforcement.

Va. Code § 8.01-676.1(D) provides: “The court from which an appeal is sought may refuse to suspend the execution of decrees for support and custody.” By this provision, the General Assembly “specifically has addressed the suspension of a support order pending appeal.” Reid v. Reid, 245 Va. 409, 414, 429 S.E.2d 208, 211 (1993). As then-Judge Koontz wrote in the earlier panel decision of the Court of Appeals in the Reid case, “This statute reflects the legislative recognition that compelling public policy reasons exist to cause the judgment for support to remain in effect and unabated during the pendency of an appeal.” Reid v. Reid, 12 Va. App. 1218, 1232, 409 S.E.2d 155, 163 (1991). Consistent with the language of the statute, and the “compelling public policy” that supports it, the trial court can refuse to stay its orders while the appeal is pending. See Holzberlein v. Holzberlein, Record No. 0089-05-4, 2005 WL 1943240, *2 (Va. App. Aug. 16, 2005) (affirming denial of husband’s supersedeas bond motion). In the absence of a supersedeas bond, while an appeal of a child support order is pending, the lower court may not modify but may enforce the existing order. Howell v. Com. of Virginia, DCSE, ex rel. Fisher, No. 0123-01-2, 2001 WL 1359847, *2 (Va. App. 2001) (citing Decker v. Decker, 17 Va.App. 562, 564, 440 S.E.2d 411, 412 (1994)).

But what is a "decree for support"? Is it the judgment for the arrearage, which seems like a fairly ordinary money judgment, or is the judgment that establishes the ongoing monthly obligation, or both? The Court of Appeals has recognized that there is a difference between the two. At least with regard to spousal support, "the distinction that must be drawn between a spousal support order that establishes an ongoing, unliquidated support obligation and one that establishes a sum certain or liquidated amount due and owing at a particular time for purposes of the proper application of Virginia law to Virginia spousal support orders." Bennett v. Com., Dept. of Social Services, Div. of Child Support Enforcement ex rel. Waters, 15 Va.App. 135, 144, 422 S.E.2d 458, 463 (1992). In Bennett, the Court held that there was no time limit in which to bring an action to obtain an money judgment for an arrearage, but there was a time limit for enforcing the judgment for the arrearage, in the context of a support award from another state.

If the obligation to pay is not suspended, and the appellant tries to pay and proceed with the appeal, there is the risk that the effect of payment will be to render the appeal moot. See Briggman v. Com., Record No. 1911–09–4 (Va. Ct. App. Apr. 10, 2010) (dismissing child support appeal for mootness on account of payment); Walthall v. Com., 3 Va. App. 674, 353 S.E.2d 169 (1987) (dismissing child support appeal for mootness on account of payment). Further, it is likely that if he pays then he has no argument for restitution, even if he wins on appeal. Nordstrom v. Nordstrom, 50 Va. App. 257, 266, 649 S.E.2d 200, 205 (2007) (“a trial court has no statutory or inherent authority to order restitution of child support”); Meyers v. Meyers, No. 1920-03-4, 2003 WL 22887920 (Va. App. Dec. 9, 2003); Summers v. Summers, No. 2759-98-4, 1999 WL 1129977, *3 (Va. App. June 15, 1999); Wilson v. Wilson, 25 Va. App. 752, 760, 492 S.E.2d 495, 499 (1997) (in dicta, rejecting claim for restitution); Beckwitt v. Beckwitt, No. 1523-92-4, 1993 WL 381451, *4 (Va. App. Sept. 28, 1993) (upholding denial of restitution). These cases follow Reid, in which the Supreme Court held that there is no “statutory provision for restitution of support paid pursuant to an order that is later reversed,” and that there is no inherent power to order such restitution. 245 Va. at 415, 429 S.E.2d at 211. In Reid, the issue before the Court was spousal support, but the statute the Court addressed, section 20-112, applies equally to “support for a spouse or for a child.”

Even where the trial court agrees to set the bond, there is some ambiguity as to the proper amount. Section 8.01-676.1(C) provides: “An appellant who wishes execution of the judgment or award from which an appeal is sought to be suspended during the appeal shall . . . file an appeal bond or irrevocable letter of credit conditioned upon the performance or satisfaction of the judgment and payment of all damages incurred in consequence of such suspension.” This language “does not give the trial court discretion to set an appeal bond in an amount less than the judgment.” Tauber v. Com. ex rel. Kilgore, 263 Va. 520, 545, 562 S.E.2d 118, 132 (2002). The bond should be set high enough to include interest under Va. Code 8.01-682, the $50 fee under Va. Code 17.1-624, and printing costs under Va. Code 17.1-605 and Rule 5A:30(b). See O’Connor v. O’Connor, No. 2299-02-4, 2003 WL 22887978, *5 (Va. App. Dec. 9, 2003) (affirming supersedeas bond of $10,000 on judgment amount of $8,193.54). How is the trial court supposed to figure all that out when the duration of the appeal is unknown? In theory, the appellant can keep on litigating and relitigating the appeal through the Court of Appeals and on to the Virginia Supreme Court for a couple of years. A trial court might act within its discretion to set the bond at the the arrearage plus two years of interest plus the maximum recoverable costs.

Which case says that a hand under the shirt is not a gun?

In Mitchell v. Com., the Court of Appeals in an opinion by Judge Alston joined by Judges Petty and Beales denied relief on what sounded like a plausible appellate issue for failure to cite legal authority.

The issue was whether the defendant could be convicted under Va. Code 18.2-53.1 where a substantive element was that the defendant did "use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner" and the victim did not say that he ever saw a firearm. The appellant cited the language of the statute, and argued:

"In the instant case, the only evidence presented to establish the use of a firearm was the testimony of the clerk that the defendant had his hand under his shirt when he told her to give him the money and there was a protrusion in her direction. Immediately afterwards, the defendant leapt onto he [sic] counter, and with the same hand the clerk testified that he had up under his shirt, grabbed money from the drawer. The defendant never stated he had a gun, no gun was ever seen by either clerk, and the evidence in fact proved beyond a reasonable doubt that he did not have a gun in his hand."

The Court cited several cases, suggesting that counsel could or should have used them in support of the argument. One of them says: "Possession of a firearm is an essential element of the statutory offense, and the fact that Konchal merely thought or perceived that Yarborough was armed is insufficient to prove that he actually possessed a firearm." Yarborough v. Com., 247 Va. 215, 219, 441 S.E.2d 342, 344 (1994). The discussion in Yarborough suggests to me that the issue was one of plain meaning, and that this fellow Mitchell was wrongfully convicted.

Moreover, in my view, a citation to the express language of the Code should often satisfy the requirement under the appellate rules for legal authority, when the argument is based on the plain meaning of the statute and identifies the statutory element that was not proven. The need for case law would arise only where the tools of construction must be applied.

As Judge Posner once famously explained, in the context of qualified immunity for public officials under section 1983, where the state of law is an issue: "The easiest cases don't even arise. There has never been a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages liability because no previous case had found liability in those circumstances." K.H. Through Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990). You shouldn't need a case to make the point that a hand under a shirt is not a pistol, shotgun, rifle, or other firearm.

ESI opinion from Judge Jones of the W.D. Va.

In Adair v. EQT Production Company, Judge Jones overruled objections to Magistrate Judge Sargent's ruling, but modified it, where the subject matter was EQT's obligation to produce 370 GB of e-mails. Judge Jones agreed that EQT would have to produce certain segments of the e-mails, screened for specified search terms to increase the changes of avoiding privileged documents, but without screening by humans.

The Court explained:

"EQT’s position is that the only reasonable search for privileged and responsive documents is done by human beings on an individual document basis. As the bulk of trending case law and the recent amendments to the rules indicate, this is an untenable position."

Electronic appendices

The Fourth Circuit has given notice that the rules are being changed to require the appendix be filed in electronic form, in its entirety or in the form of an "excerpt" containing specified documents. How long will it be before that Court dispenses with paper filing?

Victory of the blue pencil, and how broccoli trumped wheat

We read in contract law, especially in Virginia, that the parties have freedom of contract and the courts do not get to make new contracts for the parties. In some other states, in some kinds of cases, courts are allow to enforce contracts to the extent that they are reasonable. The figure of speech for this sort of judging is the blue pencil.

Chief Justice Roberts took the blue pencil to the Affordable Care Act this week, in the National Federation of Independent Business v. Sebelius. He whacked out some bits and rewrote others, upholding the "mandate" on what the ABA Journal has noted was the "Solicitor General's third backup argument" that barely made it into the argument or the briefs. The characterization of the mandate as a "tax" was what led the Fourth Circuit to bypass the merits in one of its earlier panel decisions, because of the Anti-Injunction Act, in Liberty University v. Geithner.

It has been reported this week that Chief Justice Roberts fashioned himself after Justice Robert Jackson, who is one of my favorites, too. (My favorite story about Justice Jackson is retold here.) Justice Jackson's most famous opinion, I suspect, was his opinion for the Court in Wickard v. Filburn, upholding the Agricultural Adjustment Act as a valid exercise of Congress's power to regulate interstate commerce. Wickard is referenced at least 25 times in the Affordable Care Act opinions. Wickard was a case about wheat growing. Chief Justice Roberts' opinion imposes a new limit on Wickard where common wisdom supposed there was none.

Chief Justice Roberts rejected the Affordable Care Act as a valid exercise of the Commerce Clause, buying into what Justice Ginsburg called the "broccoli horrible" - and so the broccoli references (I counted 12) are second only to the wheat references (25) in the several opinions. Putting Wickard and Sebelius together, I conclude that the Interstate Commerce Clause allows Congress to prohibit you from growing your own vegetables, but does not allow Congress to pass a law that would punish you for refusing to eat them.

End of term fever

The Supreme Court issued four opinions today, but not the one that everyone was waiting for.

In Arizona v. U.S., the Court held that three provisions but not all of the Arizona statute dealing with illegal immigrants was preempted by federal law. Justices Scalia, Thomas, and Alito concurred in part and dissented in part in separate opinions.

In Miller v. Alabama, the Court by 5-4 vote struck down life sentences without the chance of parole for juvenile offenders. The dissenters pointed out that this is another in an increasing line of Eighth Amendment cases where the Court is just making it up based on its own reckoning of society's standards.

In Southern Union v. U.S., the Court held that the protections of the Sixth Amendment, that require a jury to make findings on elements of a criminal case that enhance sentencing, extend to matters involving criminal fines. In that case, the Defendant was fined $50,000 for 762 days for a continuing environmental law violation. The Defendant argued that the jury verdict had not necessarily determined a violation on more than one day.

Finally, in American Tradition Partnership v. Bullock, the Court summarily overturned a state court decision that corporations have no First Amendment rights in connection with campaign finance, citing Citizens United.

Of these, the one that is the least supportable is the Alabama case. It seems unreasonable to decide what is cruel and unusual based on a head count of what the different states are doing, and even more unreasonable to conclude that what 29 states are doing does not comport with the "evolving standards of decency." Justice Alito pointed out in his dissent, who says we are becoming more decent over time anyway?

On transfer orders

I have been studying venue motions in state court lately.

One question is, what if the transferor court got it wrong, is it possible to file a motion to reconsider?

The answer from most places is yes, the transferor court still has the power to reconsider the transfer order even after it has been entered, at least until the transferee court takes jurisdiction of the case.

But when does the transferee court take jurisdiction?

The answer from most places is, when the transferee court gets the file and dockets the case. There do not seem to be any Virginia cases on point.

Can a transfer order be appealed?

The answer to whether the transfer order is appealable is mixed, perhaps because some courts have more liberal rules about the appeal of interlocutory orders than others. Notionally, a transfer order leaves the whole case to be decided, and so it seems unlikely that it would ever be considered a "final" order. See Ferguson v. Carson, 235 S.W.3d 607 (Mo. App. 2007); State ex rel. Lyons v. Zaleski, 75 Ohio St.3d 623, 665 N.E.2d 212 (1996). Even so, in some places it is considered final, in the limited sense that the transferor court is through with the case. See DiNapoli v. Kent Island, LLC, 203 Md.App. 452, 38 A.3d 509 (2012).

The closest Virginia cases deal with transfer of cases from the law side to the equity side, and remarkably there is a case or two that says the transfer from one side of the court to the other is an appealable order, even if it is not final. The continuing validity of these precedents is suspect.

More on the new judges

The Bristol paper had this article on the investiture of Judges McKinney and Simmons. Next week is the same again for Judge Johnson in Circuit Court.

On the new judges

Last night, the General Assembly selected the following:

to the Court of Appeals -

The Honorable Teresa M. Chafin, of Russell, as a judge of the Court of Appeals of Virginia for a term of eight years commencing June 1, 2012.

to the Circuit Courts -

The Honorable Marcus H. Long, Jr., of Montgomery, as a judge of the Twenty-seventh Judicial Circuit for a term of eight years commencing July 1, 2012.

The Honorable Sage B. Johnson, of Washington, as a judge of the Twenty-eighth Judicial Circuit for a term of eight years commencing July 1, 2012.

to the General District Courts -

V. Blake McKinney, of Washington, as a judge of the Twenty-eighth Judicial District for a term of six years commencing July 1, 2012.

Clarence E. Phillips, of Dickenson, as a judge of the Thirtieth Judicial District for a term of six years commencing July 1, 2012.

to the Juvenile and Domestic Relations District Courts -

Bradley W. Finch, of Montgomery, as a judge of the Twenty-seventh Judicial District for a term of six years commencing July 1, 2012.

Monica Dawn Cox, of Galax, as a judge of the Twenty-seventh Judicial District for a term of six years commencing July 1, 2012.

Deanis L. Simmons, of Bristol, as a judge of the Twenty-eighth Judicial District for a term of six years commencing July 1, 2012.

That's what the defendant's lawyers are always telling me

A headline from today's VLW daily alert:

"Minor's suit a legal nullity."

The citizen-lawyer from Roanoke

I was delighted to read this morning that Hampden-Sydney College has selected Mike Pace, a former president of The Virginia Bar Association, to receive the Patrick Henry Award, given by the Wilson Center for Leadership in the Public Interest. Only a handful of other Virginia lawyers have received this award, including William T. Wilson of Covington, Julious Smith of the Williams Mullen firm, Judge Jere M.H. Willis, Jr. of Fredericksburg, Judge Joseph A. Leafe of Norfolk, and former U.S. Senators Spong and Trible.

I am a big fan of Mike Pace.

Making up another cause of action - the self-serving derivative suit

In Virginia, the derivative action for shareholders is a creature of statute. Under the statute, Va. Code 13.1-672.1, a shareholder cannot bring a derivative action on behalf of the corporation unless he or she can show four facts, in addition to fulfilling the procedural prerequisites to such an action:

A shareholder shall not commence or maintain a derivative proceeding unless the shareholder:

1. Was a shareholder of the corporation at the time of the act or omission complained of;

2. Became a shareholder through transfer by operation of law from one who was a shareholder at that time; or

3. Became a shareholder before public disclosure and without knowledge of the act or omission complained of; and

4. Fairly and adequately represents the interests of the corporation in enforcing the right of the corporation.

In Cattano v. Bragg, the Virginia Supreme Court in a 6-1 decision held that in the circumstance of a corporation with two shareholders, a minority shareholder with personal claims as a creditor against the corporation could also have standing under section 13.1-672.1 to bring suit on behalf of the corporation to recover money from the other shareholder, so that there would be more money to satisfy the personal claims.

Justice McClanahan dissented, and I agree with her view, that at least where the corporation was already defunct, the proper remedy was simply judicial dissolution. Unless I am mistaken, fees and costs of about $289,228.71 were charged to the corporation, so that the plaintiff could get 27.35% of $234,412.18 that the defendant was held to have owed the firm. It seems to me that the court-appointed receiver should have been the one to decide what if anything the corporation should have spent to recover the $234,412.18, of which most would evidently go back to the Defendant if the shareholders are going to get a distribution. The opinion notes that the circuit court could have empowered the receiver to garner the assets of the corporation, instead of allowing the derivative claims to proceed.

The majority opinion has a footnote about why this was not done. It concludes: "the amended complaint was a sufficient alternative mechanism to allocate assets without authorizing additional suits by the receiver." On the face of things, the description of the plaintiff's claims as "a sufficient alternative mechanism" suggests that somehow the majority was indifferent to the possibility that the receiver might have been more efficient than the plaintiff.

Making up a new cause of action for the Commonwealth

Today, the Virginia Supreme Court decided in Wyatt v. McDermott to recognize in response to a certified question a claim for "tortious interference with parental rights."

The context was a lawsuit by the father of a child against the lawyers who arranged for the adoption of the child by a couple in Utah, along with the new parents, and the agency that was involved with the adoption - everyone but the mother. The federal court certified to the Virginia Supreme Court two questions:

1. Whether the Commonwealth of Virginia recognizes tortious interference with parental rights as a cause of action?
2. If so, what are the elements of the cause of action, and what is the burden of proof of such a claim?

The Supreme Court answered yes, by a 4-3 vote with Justices Mims, McClanahan, and Goodwyn in dissent. Justice Millette wrote the opinion for the majority. The Court concluded: "although no Virginia court has had occasion to consider the cause of action, the tort in question has indeed existed at common law and continues to exist today." The Court added: "Furthermore, rejecting tortious interference with parental rights as a legitimate cause of action would leave a substantial gap in the legal protection afforded to the parent-child relationship." The authorities cited in the majority and dissenting opinions show that both these propositions are debatable and have been debated.

The best thing that can be said for the opinion is the extent to which it closes the door on the use of this new-to-Virginia tort as a weapon between the parents themselves. "We share these courts' concern for the well-being of children caught in intra-familial disputes, a concern that was not as prominent an issue in 1607, when only a male parent could bring this cause of action. The fear that this cause of action would be used as a means of escalating intra-familial warfare can be largely disposed of by barring the use of this tort between parents, as other state courts have done." Even so, many of the cases cited were inter-familial claims.

The majority's conclusions about the state of the common law before 1607 bring to mind Judge Wilkinson's criticism of various schools of constitutional interpretation summarized in the recent George Will column. Whether the question is a matter of constitutional law or the common law, evidently it is a hard thing for smart justices confronted with injustice to say go across the street to the legislature.

The Court distinguishes the interest with parental rights from alienation of affections, barred by statute under Va. Code 8.01-220, with the idea that interference with parental rights means "that the offending party has removed parental or custodial authority from the complaining parent." The opinion does not cite McDermott v Reynolds, wherein the Court held that the statute barring actions for alienation of affections applied with equal measure to a claim for intentional infliction of emotional distress.

The district court denied the defendants' motions to dismiss based on fraud. Nevertheless, the Court found it necessary to recognize this "new" cause of action, claiming that there would be no fraud remedy in some cases. It is difficult to understand why this should be so, how innocent parents can be swindled out of their parental rights without some actionable misrepresentation or concealment that kept the parent from protesting against the adoption or whatever step was being taken to cause the loss of the parental rights. UPDATE: I didn't notice the first time through that Justice Goodwyn joined with Justice McClanahan in her dissent, which only adds to my view that she got it right in this case.

In the Chicago style of lawyering

Years ago, I told this story, including a reference to Clarence Darrow. Recently, I read Clarence Darrow: Attorney for the Damned, and it is an outstanding book.

One part of it came to mind recently when I read of the recent statements by President Obama, pressuring the Supreme Court into upholding the Affordable Care Act. In the trial of Leopold and Loeb, Darrow got the two killers to plead guilty without an agreement on sentencing. In the same manner as President Obama, the prosecutor applied extra-legal arguments to shame the judge into giving the killers the death penalty. Darrow knew better than to respond in kind, based on his view that likeability wins cases. The judge's comments suggest that the prosecutor's over-reaching might have been the main reason why he gave the killers life in prison, instead of sentencing them to death.

Perhaps Darrow was a better Chicago lawyer than is the President.

Also, one of the Tennessee lawyers who figured in the Scopes trial, another subject of the book, was a fellow named Sue Hicks, whose name might have been the basis for the Johnny Cash song about a boy named Sue.

On traveling to New York City

Our gang took a road trip to New York City, where I had not been since a DRI conference in 2005 and not just for fun since 1995.

In the circumstances, it was a great adventure - the Amtrak to Penn Station, the subway, the Top of the Rock, the ferry to the Statue of Liberty, seeing The Phantom of the Opera again at the Majestic. It was no less of an adventure for having done some of the same things thirty or twenty or seven years ago.

Along the way, the train passed by among other things the Philadelphia Zoo, where I saw their oldest gorilla in the Spring of 1983. The train crossed the Susquehanna, skirted the Chesapeake, and cruised past the D.C. monuments and some of the Johns Hopkins buildings in Baltimore.

And, passing by all these places and thinking of different times I had been there, I thought of another part of the Roger Ebert book, where he described the comfort he derived from familiar places, with the thought that "I have been here, I am here now, I will be here again."

On eating with dogs

"I never met a dog that didn't beg at the table. If there is a dog that doesn't, it has had all the dog scared out of it. But a dog is not a sneak thief like a cat. It doesn't snatch and run, except if presented with an irresistible opportunity. It is a dinner companion. It is delighted that you are eating, thinks it's a jolly good idea, and wants to be sure your food is as delicious as you deserve. You are under a psychological compulsion to give it a taste, particularly when it goes into convulsions of gratitude. Dogs remember every favor you ever do for them and store those events in a memory bank titled Why My Human Is a God."

Roger Ebert, Life Itself.

On a tie vote in the Fourth Circuit

In U.S. v. Foster, the Fourth Circuit denied a petition for rehearing by a 7-7 vote on an issue involving the Armed Career Criminal Act, with Judges Motz, King, Gregory, Davis, Keenan, Wynn, and Floyd in favor of rehearing, and Chief Judge Traxler and Judges Wilkinson, Niemeyer, Shedd, Duncan, Agee, and Diaz, and which is the subject of this Howard Bashman post.

It is interesting that Judge Diaz joined with Judge Wilkinson, et al, but Judge Floyd did not.

On picking judges for the 27th

The Roanoke Times has this article that says Senators Puckett and Edwards want to be the deciders for one of the judicial vacancies in the 27th District, if Judge Long is elevated to the Circuit Court.

In the 27th District, there has been a vacancy on the juvenile court since Judge Blankenship left the bench. I met him for the first time not too long ago, and shook his hand.

Separately, The Virginia Bar Association released this statement, urging the General Assembly to fill the 48 vacant judgeships plus the 13 additional vacancies expected next year from retirements. Two local judges whom I understand will retire next year are Judge Tate and Judge Freeman.

Perhaps, the new judges for the 28th District

This schedule of interviews for judicial candidates shows Blake McKinney and Deanis Simmons as the only persons being interviewed for the General District and Juvenile and Domestic Relations District Court positions in the 28th District.

It also shows that a fellow I met on the VBA Board, Glenn Pulley, is a candidate for the 22nd Circuit - a Virginia gentleman if ever there was one and the only practicing lawyer in Danville who is a member of the American College of Trial Lawyers.

On the apex deposition rule

Brian Peterson links here to an interesting decision by the West Virginia Supreme Court, applying the apex deposition rule to protect high-ranking corporate officials who know nothing about a particular claim from being subjected to depositions.

On prosecutorial misconduct and the prosecutor and other lawyers

In Hash v. Johnson, Judge Turk of the W.D. Va. held that Virginia inmate Michael Hash should be released from prison and that the Virginia Supreme Court erred in its 2009 opinion rejecting his post-conviction claims for relief on account of prosecutorial misconduct - based in part on a stack of letters that a prison snitch had written to another judge of the W.D. Va., hoping to get out of his federal time for testifying against Mr. Hash.

The Commonwealth's Attorney for Culpeper was and is Gary Close, who seems to be an interesting fellow, and who graduated from U.Va.-Wise, the University of Tennessee, and the law school at William & Mary. Mr. Close was re-elected without opposition in 2011.

One of the lawyers for Hash in his original trial was named Michael Hemenway. I don't know whether it is the same guy, but there is a lawyer blogger in Charlottesville named Mike Hemenway, also an interesting fellow who gets to court on his motorcycle.

The lawyer who filed the summary judgment motion for Mr. Hash in the case before Judge Turk was Matthew Bosher of Hunton & Williams (not to be confused with the Matt Bosher who kicked a field goal and seven extra points against Virginia in 2009). The challenge of overturning a murder conviction twice affirmed by the Virginia Supreme Court can only be overcome by outstanding legal work.

The Richmond paper had this article about Judge Turk's decision.

On the Second Amendment rights of persons convicted of domestic violence

In United States v. Chester, the Fourth Circuit in an opinion by Chief Judge Traxler remanded the case of a West Virginia man convicted under the federal statute, 18 U.S.C. 922(g)(9), which makes it a federal crime to possess a firearm after having been convicted of a misdemeanor offense of domestic violence, for consideration under the Supreme Court's Second Amendment decision in D.C. v. Heller.

On remand, Judge Copenhaver of the S.D. W.Va. in an opinion dated February 16 applying the intermediate level of scrutiny required by Heller that the Second Amendment did not prohibit Chester's conviction. The opinion addresses a considerable volume of empirical evidence on the question of whether the gun statute bears a reasonable nexus to the important government interest in reducing the use of firearms as a weapon in domestic violence.

On whether a motion to remand is dispositive

In Deskins v. Consol Energy, Inc., Judge Jones sustained the Defendant's objections to the recommendations of the Magistrate Judge on whether to grant the Plaintiffs' motion to remand the case to state court. It happens sometimes, but rarely - that the District Judge and the Magistrate Judge disagree on the application of the law.

Interestingly, some district courts (but no appeals courts) have held that a remand motion is not a dispositive motion, in the sense that a Magistrate Judge has the power to decide it directly, instead of merely making a report and recommendations. See Peter J. Gallagher, IN SEARCH OF A DISPOSITIVE ANSWER ON WHETHER REMAND IS DISPOSITIVE, Seton Hall Circuit Review, Volume 5, Number 2, Spring 2009, 303. As Mr. Gallagher wrote, "Nearly every district court has treated remand as nondispositive and thus within the scope of this authority, but all four circuit courts that have confronted the issue have deemed remand dispositive and thus beyond the scope of a magistrate's authority. Although seemingly trivial, the difference is significant because district courts review magistrate judges' findings on dispositive motions under a de novo standard, while nondispositive motions receive the less stringent review only for clear error of law."

On not getting costs

In perhaps the last opinion from the hard-fought case of Musick v. Dorel Juvenile Group, Judge Jones denied the Defendant's request for costs, citing the plaintiff's family's inability to pay, and relying on its prior decision in Crusenberry v. Boddie-Noell Enterprises, Inc.

In a footnote, the Court considered whether it was improper for defense counsel having won the case in the trial court to propose that the defendant would not seek its costs if the plaintiff agreed not to appeal, and concluded in the circumstances that there was nothing wrong with such an offer, even though the Court declined to award costs. I was glad to read this, having done the same thing myself a time or two.

Musical chairs in the 28th Circuit

Last night in Marion, almost a dozen lawyers spoke at a meeting of the Smyth County Bar, seeking endorsements for either the Juvenile Court position being vacated by the retirement of Judge Charles Lincoln, or the General District Court position that would become vacant if Judge Sage Johnson, who has just been reappointed, is selected to fill the position of retiring Circuit Court Judge Larry Kirksey. Just over the horizon are the retirements of District Judge Joseph Tate and Circuit Judge Isaac Freeman, in 2013.

The candidates included among others Melissa Carico, Adrian White, David Hutton, Eric Thiessen, Helen Phillips, Larry Harley, Kurt Pomrenke, Mike Bishop, Mark Haugh, and our own Lucas Hobbs. Jeff Campbell is a candidate but not seeking endorsements and Blake McKinney sent in a resume. It was interesting to listen to the philosophical ruminations of many good friends.

The Winter Meeting

Again this year as in '06, '07, '08, '09, and '11, I am in Williamsburg for the winter meeting of The Virginia Bar Association, and pleased to see many of my favorite people. This morning ends Pia Trigiani's year as president of the Association, and I was amused to meet her law partner David Mercer yesterday at the meeting of this committee, he is a hoot and a half.

The next president Hugh Fain told me he saw where I had blogged about the suit he filed for the Rick Perry campaign.

I saw the Chief Justice at the venue yesterday with her husband, and was reminded that she told me when I first met him years ago he was a much better-known local celebrity as a high school football coach than she was as a federal magistrate judge.

No brainer

I hope that you will agree that the Stop Online Piracy Act is an abomination, sponsored by Southwest Virginia's own Congressman Goodlatte of all people for no apparent reason.

It seems to me that empowering the courts to close off parts of the Internet through injunctions in the name of copyright protection is anti-business and anti-American - sounds more like China or Iran - and would represent the triumph of a small group of well-connected companies over the public interest. People are choosing to own fewer albums, legally or illegally, and messing with the Internet is not going to do anything to make more money for record companies.

The next ASL dean from Louisiana

I read today that the Appalachian School of Law has appointed Lucy S. McGough, a law professor on the faculty of the Louisiana State University, as its next Dean, to replace my good friend Wes Shinn, who himself was a Louisiana lawyer.

The press release is here.