Friday, November 08, 2013
Wednesday, November 06, 2013
Tuesday, November 05, 2013
Sunday, November 03, 2013
Saturday, November 02, 2013
Friday, November 01, 2013
Friday, October 04, 2013
Thursday, August 29, 2013
Monday, July 22, 2013
Monday, July 01, 2013
Jill asked me what was the hashtag on Twitter for the event. I didn't know. I don't think anyone was tweeting from the Greenbrier, although the AP article on the Chief Justice's remarks showed up while we were having lunch a few minutes after the conference had ended.
Wednesday, June 26, 2013
Tuesday, June 25, 2013
Thursday, June 20, 2013
Wednesday, June 19, 2013
Tuesday, May 21, 2013
Tuesday, May 14, 2013
Wednesday, May 08, 2013
Monday, May 06, 2013
Friday, May 03, 2013
Wednesday, May 01, 2013
Tuesday, April 23, 2013
"Though wholly unrelated to claims for monetary damages, the ancient common law writ of 'de idiota inquirendo' authorized juries to 'inquire whether a man be an idiot or not' and, if so, to transfer 'the profits of his lands and the custody of his person' to the king or his designee. 1 William Blackstone, Commentaries on the Law of England *303. A similar writ could be issued against a 'non compos mentis,' described in the common law as a mere 'lunatic' who 'by disease, grief, or other accident, hath lost the use of his reason' yet still has 'lucid intervals.' Id. at *304.
These common law writs, however, have little in common with a Code § 37.2-1101 proceeding."
Many is the case in which it might have been asked whether I or other counsel or a litigant or witness whether he "be an idiot or not."
Monday, April 22, 2013
One of those stories told was this: "Another memorable case was the two murder trials of Steven Allen Jones, who was convicted both times . . . . Jones became enraged after the second conviction and Brown ordered him gagged. The bailiffs used defense attorney Gene Scott’s spare tie as the gag."
Wednesday, March 13, 2013
I heard of a case not too long ago where someone raised a fuss about a transaction where documents were "backdated." Backdating is surely neither good nor bad in itself without more facts, such as the intent to deceive or the opposite. Dealing broadly with this topic is this interesting article published in the ABA's Business Lawyer in 2008, which you can download for free from SSRN.
Tuesday, March 12, 2013
With the elimination of the Circuit Court's removal jurisdiction and the increased jurisdictional limit for actions in General District Court, it seems like more complicated cases get tried in District Court than was the case when I was a young lawyer and anything with much complexity was removed. Clients of lesser means have no choice but to fight out the case in District Court, because a losing defendant generally cannot appeal without posting a bond as required by Va. Code 16.1-107.
We have seen from time to time, for example, the circumstance where the plaintiff in District Court sues more than one defendant. What is the effect of an appeal if the plaintiff gets a judgment against one defendant but not the other? Is it possible, for example, for the plaintiff to appeal as to the one defendant but not the other? The answer in the opinions I have seen is no, the nature of the de novo review in Circuit Court means that the whole case with all parties is appealed, and the appellant must take the bitter with the sweet and face retrial as to every issue and every party. See Khan v. Washington, 74 Va. Cir. 95 (City of Alexandria Cir. Ct. 2007) ("the appropriate circuit court has appellate jurisdiction over all the parties to the pending case"); Hansen v. McFarland, 27 Va. Cir. 383 (City of Richmond Cir. Ct. 1992) ("an appeal by any party of a district court decision serves to give an appropriate circuit court appellate jurisdiction over any other party against who such an appeal is perfected"); Nanney v. Navy Car Storage, Inc., 7 Va. Cir. 397 (City of Norfolk Cir. Ct. 1969) (defendant "is entitled not only to a review of plaintiff's judgment against it but also the finding of the court in favor of the [other] defendant . . . "); Grinnell Fire Protection Systems Co. v. Sills, 3 Va. Cir. 489 (City of Alexandria Cir. Ct. 1979) (holding that the appeal from General District Court "brings the entire case and all of the defendants" before the circuit court).Suppose the plaintiff decides the appeal was a mistake? Claims before a Circuit Court for de novo review on appeal from a District Court can be non-suited, but then can only be refiled in the same Circuit Court. Davis v. County of Fairfax, 282 Va. 23, 710 S.E.2d 466 (2011). The effect of the nonsuit would be that the district court judgment is lost, as if the case had never been filed. He can withdraw his appeal, subject to the provisions of Va. Code 16.1-106.1. Section 16.1-106.1 deals separately with appeals from general district court and from juvenile and domestic relations district court, but the gist is that the circuit court is supposed to dispose of the appeal consistent with the district court judgment. Suppose a defendant brings the appeal? A defendant cannot take a nonsuit. “Nonsuit remains,” the Supreme Court has explained, “distinctly a weapon in the arsenal of a plaintiff.” Trout v. Commonwealth Transp. Com'r of Virginia, 241 Va. 69, 73, 400 S.E.2d 172, 174 (1991). An appellant who is not a plaintiff cannot nonsuit an appeal. See Anonymous C v. Anonymous B, Record No. 2232-09-2, 2011 WL 65957 (Va. Ct. App. Jan. 11, 2011). The defendant who appeals to Circuit Court can only seek to withdraw the appeal.
Monday, February 04, 2013
I can't say that I was paying too much attention to this year's session of the General Assembly, before the redistricting maneuver in the Senate and the proposed electoral college bill sponsored by our own Senator Carrico became part of the national discussion that percolated down to my attention.
Evidently, there is a lot going on, and here is some of what I have been missing:
1. Some legislators want the DMV to study putting barcodes and/or RFIDs on license plates, as reported here. The summary of the DMV report is here. Maybe by the time the youngest step-daughter is driving, if she stays out too late I can just call up the DMV to tell me where she is, if they are tracking us all by then.
2. The Rutherford Institute is backing proposed legislation to lessen the regulatory burden on homeowners and small farm owners who want to raise food for themselves and their friends, as shown here. We have a can of unlicensed green beans at the house, I hope that is not a problem.
3. The City of Bristol is pushing a new law to allow it to recoup its investment in the new construction at Exit 5 through the sales tax from the new stores in that area, as shown here. I hope that the stores get built and the City gets its money back.
4. The newspaper trade association is opposing legislation that would allow localities to publish notices online instead of the classified ads in newspapers, as shown here. I guess they will agree the time has come for this change when there are no more printed newspapers. Coincidentally, the Cavalier Daily announced that it would discontinue its printed daily edition after 130 years.
5. Tazewell County have established a ridgeline protection ordinance to keep out wind power generation, a senator from the Tidewater is proposing a state law that would preempt the county ordinance, and the Bluefield paper is opposed, as shown here. The bill was stricken.
6. The Virginia Bar Association has endorsed a bill that would permit the members of a limited liability company to provide in their operating agreement that assigned membership interests would have the power to participate in the management of the LLC, which change would overrule the Supreme Court's holding in Ott v. Monroe. In the Ott case, the interest passed on the death of a member, and the Court held that the transferee had no management rights, notwithstanding the express language of the operating agreement between the members.
7. The General Assembly appears be on track to end the criminalization of cohabitation. I think this will finally overrule the "public policy" behind the Mitchem case, which has bothered me for years.
8. The General Assembly reappointed the first openly gay member of the judiciary, and might act against discrimination in state employment. It is absurd to think that anyone would tolerate discrimination that would exclude good people willing to serve in the public sector.
9. Senator Northam proposes to criminalizes smoking with children in the car. The bill has passed the Senate.
10. The House of Delegates rejected the views of Governor McDonnell and others in refusing to allow the restoration of civil rights to non-violent felons. This was a mistake that will fuel the perception that Republicans are out to keep non-Republicans from voting any way they can.
11. The Virginia Senate has passed the soccer goal safety act, for the purpose of keeping goals from falling on children Unrelated to this, the House has passed legislation regarding the participation of home-schoolers in interscholastic sports.
12. The General Assembly confirmed the reappointment of Helen Dragas, which seems ridiculous to me - some things aren't worth trying a second time. Unrelated to this, the Virginia Senate refused to agree to legislation that would allow the hunting of fast-moving, sharp-toothed beasts on Sundays.
13. The House Courts of Justice committee passed a bill that would prohibit the use of drones by state or local law enforcement in Virginia until 2014 or 2015.
Wednesday, January 30, 2013
Wednesday, January 23, 2013
Friday, January 18, 2013
Any time an appeal raising constitutional issues is dismissed because of what case law the trial counsel cited or did not cite, I have to wonder what's going on. In my opinion, it is not necessary to cite any cases to comply with Rule 5A:18.
Thursday, January 17, 2013
The Washington Post had this recent editorial, which concluded that Virginia law should be changed to allow for wider rights of discovery for defendants in criminal cases.
It says in part: "A proposal by Virginia defense lawyers would compel prosecutors to grant defendants and their attorneys readier access to police reports following indictments, including witness statements in the aftermath of alleged crimes. That seems reasonable, provided that prosecutors are able to withhold the identity of certain witnesses out of concern for their safety."
Wednesday, January 16, 2013
In VanBuren v. Grubb, the Supreme Court in a 4-3 decision held that individuals other than an employer can be liable in tort for wrongful discharge. The decision makes a major change in Virginia law for the purpose, it seems, of making sure that bad apples like Dr. Grubb get to be punished in court.
The history in Virginia of wrongful discharge claims based on sex discrimination is complex. At one time, Virginia plaintiffs based wrongful discharge claims on the public policy against employment discrimination contained in the Virginia Human Rights Act. The VHRA prohibits employment discrimination based on "race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability." Va. Code § 2.1-715. A divided Supreme Court recognized a wrongful discharge claim based on the VHRA. See Lockhart v. Commonwealth Educ. Sys. Corp., 247 Va. 98, 439 S.E.2d 328 (1994). In response, the General Assembly deliberately modified the VHRA, to rule out any claims based not only on the VHRA itself but on any other statute reflecting the same policies as the VHRA. Va. Code § 2.1-725(D). The Supreme Court applied the amendment as the legislature intended in dismissing a number of wrongful discharge claims See Conner v. National Pest Control Ass'n, 257 Va. 286, 513 S.E.2d 398 (1999); Doss v. Jamco, 254 Va. 362, 492 S.E.2d 441 (1997).
The plaintiff in Mitchem v. Counts claimed that she was discharged because she refused to engage in unlawful sex with her employer. She based her claim not on the public policy against discrimination in employment, but rather on the public policy supporting the criminal statutes prohibiting assault and fornication. Another divided court approved this reasoning, despite the transparency of the plaintiff's rationale as a means to avoid the clearly expressed intention of the legislature in the amendments to the VHRA. In Mitchem, the majority reasoned that the public policy against fornication and other unlawful sexual acts stood separate and apart from the public policy reflected in the VHRA. The three dissenting justices pointed out that plaintiff's claim was no more or less than the type of claim outlawed by the legislature following Lockhart, and chastised the majority for overstepping the bounds of judicial authority in precisely the manner Justice Hassell recognized as improper in his concurring opinion in the Conner case.
Some years later, in Martin v. Ziherl, the Virginia Supreme Court overruled its decision in Zysk v. Zysk and held that a Virginia plaintiff is not prohibited by the illegality of fornication from suing his or her partner for giving him or her venereal disease. I complained about this decision at the time, but concluded that "this Martin case is officially the death of at least part of the much-maligned Mitchem decision, the wrongful discharge case based on the fornication statute." See Torabipour v. Cosi, Inc., 1:11-CV-1392 GBL/TCB, 2012 WL 2153168 (E.D. Va. June 12, 2012) ("The Court holds Plaintiff Torabipour fails to state a claim for wrongful termination because section 18.2–344 has been invalidated under the Fourteenth Amendment of the U.S. Constitution.").
Evidently I was wrong. Notwithstanding Martin, the Court in VanBuren had no problem concluding that "lewd and lascivious cohabitation" remains an enforceable crime in the Commonwealth. This seems like a surprising outcome to me - if someone was actually prosecuted for "lewd and lascivious cohabitation," it seems likely to me based on Martin that the crime of cohabitation would go the way of the crime of fornication in the Commonwealth. The theory of Mitchem fails once the criminal statutes on which it is based "have been invalidated." The Eastern District has rejected this argument, however - see Mercado v. Lynnhaven Lincoln-Mercury, Inc., 2:11CV145, 2011 WL 5027486 (E.D. Va. Oct. 21, 2011) (refusing to find the cohabitation statute unconstitutional) - and evidently now the Virginia Supreme Court has, too.