Criminal liability of teachers as affected by school board policies

In Lambert v. Com., the Virginia Court of Appeals in an opinion by Chief Judge Huff joined by Judge Humphreys and Senior Judge Bumgardner held that the Scott County Circuit Court erred in its holding that the statutory exception for physical contact incidental to the work of teachers in Va. Code 18.2-57(G) did not apply where School Board policy prohibited physical contact.

The Code section provides:

G. "Simple assault" or "assault and battery" shall not be construed to include the use of, by any school security officer or full-time or part-time employee of any public or private elementary or secondary school while acting in the course and scope of his official capacity, any of the following: (i) incidental, minor or reasonable physical contact or other actions designed to maintain order and control; (ii) reasonable and necessary force to quell a disturbance or remove a student from the scene of a disturbance that threatens physical injury to persons or damage to property; (iii) reasonable and necessary force to prevent a student from inflicting physical harm on himself; (iv) reasonable and necessary force for self-defense or the defense of others; or (v) reasonable and necessary force to obtain possession of weapons or other dangerous objects or controlled substances or associated paraphernalia that are upon the person of the student or within his control.

The best evidence rule in Virginia

In Jennings v. Com., the Virginia Court of Appeals in a written opinion by Judge AtLee, joined by Chief Judge Huff and Judge Decker, reversed the convictions of a man accused of shoplifting, where the only testimony regarding the value of the property was a witness who testified about what she remembered seeing on the price tags of the property, and not the tags themselves.

That is chutzpah

Quoted today by the Virginia Court of Appeals: “The most famous definition of 'chutzpah' is, of course, itself law-themed: chutzpah is when a man kills both his parents and begs the court for mercy because he’s an orphan.” Alex Kozinski & Eugene Volokh, Lawsuit, Shmawsuit, 103 Yale L.J. 463, 467 (1993), in King William County v. Jones, Record No. 0576-15-2, by Judge Russell

Two opinions from Judge Chafin, wherein the Commonwealth lost

2107141 Joseph Andre Moore v. Commonwealth of Virginia 11/24/2015 

Trial court erred in finding evidence was sufficient to prove appellant was aware of the drugs found under the seat of the vehicle and no considerable evidence beyond appellant’s mere proximity to the drugs and his occupancy of the vehicle linked him to the contraband

2165141 Henry H. Russell, Jr. v. Commonwealth of Virginia 11/24/2015 

Evidence was insufficient to support convictions of grand larceny and larceny with intent to sell where evidence proved appellant was a co-owner of the personal property taken from the house

The new venue statute

In 2015, the General Assembly amended Va. Code 19.2-244, to add a new paragraph B, which provides:

B. If an offense has been committed within the Commonwealth and it cannot readily be determined within which county or city the offense was committed, venue for the prosecution of the offense may be had in the county or city (i) in which the defendant resides; (ii) if the defendant is not a resident of the Commonwealth, in which the defendant is apprehended; or (iii) if the defendant is not a resident of the Commonwealth and is not apprehended in the Commonwealth, in which any related offense was committed.

The primary sponsor of the legislation, Acts 2015, c. 632, was Rob Bell. This is a pretty big change in Virginia law, that eliminates a problem that sometimes occurs in a case where there is no way to know where the alleged crime was committed. The language evidently was taken from similar statutes in other statutes, such as O.R.S. 131.325 in Oregon and Tex Code Crim. Proc. article 13.19. One might expect that cases from those states will be cited in connection with the application of the new Virginia law. It is a bit of a paradox for the Commonwealth to be required to prove that something "cannot readily be determined," but there are evidently many such cases, where the Commonwealth or the victim has reason to know that the crime took place in Virginia but not where it happened in relation to the boundaries of the cities and counties.

In some of the other states, the constitutionality of these statutes has been challenged. There is a "vicinage" requirement in the Virginia Constitution, Art. I, section 8, but surely a prosecution where the defendant resides satisfies that requirement.

New Commonwealth's attorneys and others in Southwest Virginia

Evidently, we will have new Commonwealth's Attorneys in Lee County, Wise County, Dickenson County, and Washington County, and a somewhat less new one elected to an open seat in Tazewell County. Incumbents were re-elected in Scott County, Buchanan County, Carroll County, Grayson County, Wythe County, and Smyth County - and in Russell County, where former blogger Brian Patton was unopposed. My fellow Legal Aid board member Herb Clay came in third in his run for Town Council, Rob Hines got in for School Board in Lee County.

On Bristol's Judge Flannagan

Yesterday was the portrait hanging in the Bristol Circuit Court for Judge Charles B. Flannagan. The speakers included Judges Smith, Lowe, and Kirksey, among others, and every word they said was true, or close enough.

When it came time for him to speak, Judge Flannagan took the opportunity to point out the other six portraits in the courtroom. Three of those judges have articles on Wikipedia: William Rhea, Joseph Kelly, and Floyd Roberts. Each of the three went on to "higher" office - Rhea was a controversial selection to the State Corporation Commission, Kelly was twice named to the Virginia Supreme Court, and Roberts was briefly a judge of the United States District Court for the Western District of Virginia, a recess appointee denied confirmation by the Senate. The other three are Judges Cantwell, Davis, and Bell, who were before my time but well-known to Judge Flannagan. Judge Bell was a college classmate of Judge Flannagan and was in the courtroom yesterday.

On the way out, I caught up with Judge Kirksey and we told each other a story, standing in the street. My story was about how I asked the judge for a letter in support of my application to join the bar in Tennessee, and told him that I realized in making this request that he might tell the Tennessee authorities all that he knew about me. Sometime later, he sent me a copy of what he wrote to Tennessee, with a cover letter to me that he hoped I did not find his reference letter to be "too honest." Judge Kirksey told me that when he put in for the judgeship, Judge Flannagan had disclosed that he had once been cited for fishing without a license (on a church trip), and the committee picked up on this, as in he must be a pretty good guy if that's the only thing he ever did wrong. Judge Flannagan is that good and you can't be too honest telling stories about him.

On the federal judiciary

Back in the spring, I did a presentation to a high school class, and while I was there I noticed that someone had misspelled the names of three of the nine Justices of the United States Supreme Court. This was irritating to me, and so I pointed it out to the teacher, who was irritated by my pointing it out. That same day I tried to explain to a Republican blogger and activist about President Bush 43 and how I thought he had done poorly in getting vacancies filled on the Fourth Circuit, and what difference this would make for the next 25 years, and she had no idea what I was talking about. Somebody will be picking more federal judges after 2016, but I guess fewer people pay attention to such things than I would have realized, if civics teachers and party regulars can't figure it out.

The end of the Friday morning opinions

I read today that the Virginia Supreme Court has issued this statement:

"Effective immediately, the Supreme Court of Virginia will no longer hold opinions for release during a session of Court following oral argument. Instead, opinions will be released when deemed ready by the Justices and will typically be issued and posted on the Court's website on a Thursday."

My reaction was that it seemed like an especially civilized practice to have opinions issue predictably on Friday mornings of the argument weeks, but to look at opinions mostly on Thursdays I suppose is no different than looking for Court of Appeals opinions on Tuesdays.

Social media protection for Virginia employees

The General Assembly passed and Governor McAuliffe signed legislation with these provisions:

"An employer shall not require a current or prospective employee to:
1. Disclose the username and password to the current or prospective employee's social media account; or
2. Add an employee, supervisor, or administrator to the list of contacts associated with the current or prospective employee's social media account. . . .

If an employer inadvertently receives an employee's username and password to, or other login information associated with, the employee's social media account through the use of an electronic device provided to the employee by the employer or a program that monitors an employer's network, the employer shall not be liable for having the information but shall not use the information to gain access to an employee's social media account. . . .

 An employer shall not:
1. Take action against or threaten to discharge, discipline, or otherwise penalize a current employee for exercising his rights under this section; or
2. Fail or refuse to hire a prospective employee for exercising his rights under this section."

The statute defines "social media account" as "a personal account with an electronic medium or service where users may create, share, or view user-generated content, including, without limitation, videos, photographs, blogs, podcasts, messages, emails, or website profiles or locations." A "social media account" does not include "an account (i) opened by an employee at the request of an employer; (ii) provided to an employee by an employer such as the employer's email account or other software program owned or operated exclusively by an employer; (iii) set up by an employee on behalf of an employer; or (iv) set up by an employee to impersonate an employer through the use of the employer's name, logos, or trademarks."

The term "employer" is defined to include "(i) any unit of state or local government and (ii) any agent, representative, or designee of a person or unit of government that constitutes an employer."

More on Daubert

In Padula-Wilson v. Wilson, the Court of Appeals in an unpublished opinion by Judge Decker decided the appeal of a custody case between two lawyers.

Among other things, the Court held that the trial court erred by its reliance on the opinions of a non-testifying expert that were cited by a testifying expert, and by its explicit reliance on Daubert as the standard for the admissibility of expert testimony. Related to Daubert, the opinion cites Justice Kelsey's article, Virginia’s Answer to Daubert’s Question Behind the Question, 90 Judicature 68 (2006).

I don't recall another case that has made the point any more explicitly, that not only is Daubert not the law of Virginia, but also its use may be reversible error in Virginia state court, and was reversible error in that case.

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.

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.

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.

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.

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.

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.

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.

On the Juvenile Court judgeship in the 28th

I understand that the General Assembly, or at least the House of Delegates, voted to appoint Joe Lyle who practices here in Bristol to the new seat on the Juvenile and Domestic Relations District Court for the 28th District. Congratulations to Joe, who started out at about the same time that I did, and has been a good guy to know these many years.

Heard from an oral argument

One of my friends arguing recently before the Virginia Supreme Court said this:

"The train had already come, it had run over me, and I'm trying to save the case, at the very last stage."

I guess we've all been there.

Ten children and one skillet

In the book "The Minor Family of Virginia," published in 1923, my favorite entry has always been this one:

As it turns out, James Minor Quarles was also a member of Congress from 1859 to 1861, an officer during the Civil War in the infantry regiment led by his brother William A. Quarles (who was taken prisoner twice), and a state court judge again after the war.

Somehow, I can relate better now to "10 children and one skillet" than when I first read this book years ago.

It pays to poll the jury

In Webb v. Com., the Court of Appeals in a published opinion by Judge Annunziata reversed and remanded the sentence imposed in a drug case, where the sentence was thirty years plus a half million dollar fine, because when the jurors were polled as to whether that was their verdict on sentencing, one of them said "no." The Court also ruled that the issue was not waived by failure to take it up while the trial court could have acted on it, even though it did not rise to the level of a constitutional violation.

Why not let your client write the brief

That patent lawyer who has gotten his name in the news for filing an incomprehensible and weird-looking petition for certiorari in the U.S. Supreme Court that was supposedly mostly written by the client is an engineering graduate of Virginia Tech and a member of the Virginia State Bar.

I generally root for engineers from Virginia Tech and fellow members of the Virginia State Bar but that petition would have bothered me. The one United States Supreme Court petition I filed was as smooth and comprehensible as I could possibly make it. I was still thinking about how to make it better for years after it was denied. Some years later, I filed an amicus brief for Congressman Boucher in the Missouri municipal telecommunications case but that was a different sort of writing, and so it said what he wanted it to say no more and no less.

On the exclusion of witnesses at trial and in depositions

In Vince v. Com., the Virginia Court of Appeals in an unpublished opinion by Judge Decker held that the defendant had an absolute right to the exclusion of witnesses (other than the "victim") from her criminal trial under Va. Code § 19.2-265.1, but that the trial court's error in allowing the Commonwealth's expert witness to remain in the courtroom to hear the defendant's testimony was harmless error.

In its discussion, the Court rejected analogies to Rule 615 of the Federal Rules of Evidence, which gives the trial court discretion that the Virginia statute explicitly does not.

The parallel statute for civil cases, Va. Code § 8.01-375, includes a partial exception for expert witnesses, but only "[w]here expert witnesses are to testify in the case" and "at the request of all parties," or when the case involves equitable distribution or child support or spousal support. 

The Rule was not always so in Virginia, evidently mandatory exclusion of witnesses on the motion of the parties became the law by way of an amendment to the Code in 1975, which makes one wonder why the legislature saw fit at that to eliminate judicial discretion on this issue, not a progressive decision in my view.

Arguably, the civil  statute applies during the taking of depositions by way of Rule 4:5(c), which provides that "[e]xamination and cross-examination of witnesses may proceed as permitted at trial." The federal rule on depositions Rule 30(c) excepts Rule 615 from the rules of evidence that apply during the taking of depositions. About this provision, the Rules Advisory Committee wrote:

"[T]he revision addresses a recurring problem as to whether other potential deponents can attend a deposition. Courts have disagreed, some holding that witnesses should be excluded through invocation of Rule 615 of the evidence rules, and others holding that witnesses may attend unless excluded by an order under Rule 26(c)(5). The revision provides that other witnesses are not automatically excluded from a deposition simply by the request of a party. Exclusion, however, can be ordered under Rule 26(c)(5) when appropriate; and, if exclusion is ordered, consideration should be given as to whether the excluded witnesses likewise should be precluded from reading, or being otherwise informed about, the testimony given in the earlier depositions. The revision addresses only the matter of attendance by potential deponents, and does not attempt to resolve issues concerning attendance by others, such as members of the public or press."

Judge Sargent approves $300 hourly rate in Abingdon Title VII case

In Atkins v. VDOT, Magistrate Judge Sargent awarded fees for plaintiff's counsel in a Title VII case at the hourly rate of $300. As part of her decision, she specifically rejected VDOT's argument that the hourly rate for cases in the Abingdon jury division should be lower than the rate for cases in the Roanoke jury division. Judge Sargent appears to have read every one of the time entries and disallowed the ones that caught her eye as unnecessary. Back in the day, Judge Sargent had to submit her time in some federal court-appointed cases and I expect that she expects counsel to give their time entries something like the same level of attention that she did.

When should a federal court stay a civil case pending the outcome of a criminal case?

In Skinner v. Armet Armored Vehicles, Judge Kiser of the W.D. Va. denied the defendants' motion for a stay of their False Claims Act case pending the outcome of the criminal case against them. Judge Kiser's analysis makes it sound like a stay should rarely be granted. In some other courts, there is almost a presumption in favor of such a stay in some circumstances, and Judge Jones granted a stay in the one case where I raised the issue, even though the result was a delay of some years in the civil cases.

At the time, I wrote something like this:

"The determination by a district judge in granting or denying a motion to stay proceedings calls for an exercise of judgment." United States v. Georgia Pac. Corp., 562 F.2d 294, 296 (4th Cir. 1977). Many courts have recognized that a stay of a civil case is most appropriate when the civil defendant has been indicted over the same subject matter. See In re Julmice, 458 B.R. 657, 662 (Bankr. E.D.N.Y. 2011) ("When an indicted criminal defendant is also a defendant in a related civil action, courts in this Circuit generally grant a stay of the civil matter."); Avalonbay Communities, Inc., v. San Jose Water Conservation Corp., CIV A 07-306, 2007 WL 2481291 (E.D. Va. Aug . 27, 2007), aff'd, 325 Fed. App'x 217 (4th Cir. 2009) ("a stay is most appropriate in situations where a party is under indictment for a serious offense") (citing SEC v. Dresser Indus. Inc., 628 F.2d 1368, 1376 (D.C. Cir. 1980)); Trustees of Plumbers & Pipefitters Nat. Pension Fund v. Transworld Mech., Inc., 886 F. Supp. 1134, 1139 (S.D.N.Y. 1995) ("A stay of a civil case is most appropriate where a party to the civil case has already been indicted for the same conduct"); Volmar Distributors, Inc. v. New York Post Co., Inc., 152 F.R.D. 36, 39 (S.D.N.Y. 1993) (“The strongest case for granting a stay is where a party under criminal indictment is required to defend a civil proceeding involving the same matter.”); In re Par Pharm., Inc. Sec. Litig., 133 F.R.D. 12, 13 (S.D.N.Y. 1990) (“The weight of authority in this Circuit indicates that courts will stay a civil proceeding when the criminal investigation has ripened into an indictment”). When the individuals who own and operate business entities are indicted, courts granting a stay for the individuals will often do the same for any unindicted co-defendant business  entities. See, e.g., Am. Express Bus. Fin. Corp. v. RW Prof’l Leasing Services Corp., 225 F. Supp. 2d 263, 265-66 (E.D.N.Y. 2002).  


Indeed, the fact that the indictment has been returned is critical because it dictates both the degree of risk of self-incrimination and the length of potential delay to the civil case. See U.S. S.E.C. v. Trujillo, 09-CV-00403-MSK-KMT, 2010 WL 2232388 (D. Colo. June 1, 2010) (holding that after an indictment is returned, “The potential for self-incrimination is greatest during this stage, and the potential harm to civil litigants arising from delaying them is reduced due to the promise of a fairly quick resolution of the criminal case under the Speedy Trial Act.”); Parker v. Dawson, 06-CV-6191 JFB WDW, 2007 WL 2462677 (E.D.N.Y. Aug. 27, 2007) (“although a stay pending resolution of the criminal action may result in an immediate delay in the progress of the civil actions, it is likely that the resolution of the criminal action will, ultimately, further this Court’s interest in the efficient disposition of the civil actions.”); Crawford & Sons, Ltd. v. Besser, 298 F. Supp. 2d 317, 319 (E.D.N.Y. 2004) (“A stay would promote efficiency and avoid duplication as this Court and the parties would have the benefit of the transcripts and rulings in the criminal action. In addition, the public’s interest is also served by preserving the integrity of the criminal case.”); Sterling Nat. Bank v. A-1 Hotels Int’l, Inc., 175 F. Supp. 2d 573, 577 (S.D.N.Y. 2001) (“When a defendant has been indicted, his situation is particularly dangerous, and takes a certain priority, for the risk to his liberty, the importance of safeguarding his constitutional rights, and even the strain on his resources and attention that makes defending satellite civil litigation particularly difficult, all weigh in favor of his interest. Moreover, if the potential prejudice to the defendant is particularly high post-indictment, the prejudice to the plaintiff of staying proceedings is somewhat reduced, since the criminal litigation has reached a crisis that will lead to a reasonably speedy resolution.”)."

Best meal in 2014

If it is not too late for a retrospective, it seems like the best meal of the whole year that was came from Hamiltons and was served by the lady behind me.

Who would have thought the states would not want to run their own ACA exchanges?

I read over the amicus brief filed by the Virginia Attorney General and others in the case of King v. Burwell now pending before the United States Supreme Court. This is the case about whether all of the "exchanges" are created equal.

I think the words in the Affordable Care Act that support the Petitioner's arguments are in there because of haste and hubris. The proponents of the ACA were sloppy because they did not have much time before they would lose their majority in Congress, and so they made mistakes. They also were naive about the willingness of the states, even the blue states, to set up their own exchanges, so there is language in there that is written in the vocabulary of "cooperative federalism" but with no intention that the "stick" would ever be applied. By cooperative federalism I mean the power of the federal government to get the states to do its  bidding by giving money with conditions - like the federal highway money that the states would have lost by failure to raise the drinking age.

Much the same thing was done with the Medicaid expansion, where the "stick" of losing all of the state's federal funds was viewed by the Chief Justice as so terrible that the Supreme Court struck it down as unconstitutional. The drafters used the vocabulary of "cooperative federalism" with no idea that the states would do anything but cooperate. The choice of words was deliberate, but based on the mistaken assumption that the inclusion of language about the effect of non-compliance was a matter of form and not substance.

Seen on Facebook

This is hilarious.

On Grundy

Here is Whitney Caudill's rebuttal to the article in The Atlantic Monthly, the one that called her hometown of Grundy the "sickest" town in America.

Once I had Whitney's father as a witness on my side of a case, and I called her up and asked her what is great about your dad that he would never tell me, and I sat back and listened to her talk for a long time.

On whether to take the big step

I heard this question from Judge Petty of the Court of Appeals in the audio recording of an oral argument held in January 2015:

"Virginia has never adopted Daubert, and we have recently adopted Rules of Evidence that do not include Daubert. Now, if we were to say that is the appropriate standard for the admissibility of scientific evidence, that would not just apply in this case. It would apply in criminal cases, it would apply in other civil cases, and that would be a pretty big step for us to take. Why should we go there?"

And the answer given was something like, hopefully you don't have to do it, which was a pretty good answer, because the perception has been for many years that it would indeed be a "big step" that would keep out evidence that gets in now.

I posted this note about a discussion with Judge Kelsey (now appointed to the Supreme Court), Judge Ney (a delightful man, in my limited time around him which was mostly at VBA meetings), and Bumgardner (likewise) at a VBA meeting in 2006, about how the Virginia Supreme Court has tiptoed around anything like wholesale adoption of Daubert because of the perception that it leads to the increased exclusion of expert testimony.

A few weeks later in 2006, Judge Petty got his seat on the Court of Appeals, for which Judge Ney had been a popular candidate, as the Washington Post reported here. Last year, the Post had this obituary for Judge Ney. He literally wrote the book on appellate practice in Virginia. I imagine that Judge Ney would have wanted to know the answer to the very same question, if history was rewritten and he had been sitting in the panel in 2015.

Unsportsmanlike conduct in legal research

In Aratoon v. Roberts, decided today by the Virginia Court of Appeals, one of the issues was Mr. Aratoon's claim that the Circuit Court erred by its reliance on an unpublished opinion of the Court of Appeals. He claimed that by relying on an unpublished opinion, the court "violated 'well-settled principles of legal research and allow[ed] for an uneven playing field' and thereby acted in a manner 'unfair and patently prejudicial' to Aratoon."

In the opinion by Judge Kelsey, the Court dismissed this argument by pointing out that unpublished opinions are not binding authority.

Years ago, there was the famous Anastasoff opinion, in which Judge Richard Arnold of the Eighth Circuit concluded that "unpublished" opinions are as binding as published ones, and any court rule to the contrary was unconstitutional.

Sometime later, Rule 32.1 of the Federal Rules of Appellate Procedure was proposed, to establish a nationwide rule that prohibited the federal courts of appeals from outright prohibition against citation to "unpublished" opinions. As I noted here, some famous lawyers were opposed Rule 32.1. Part of the debate about was sort of what Mr. Aratoon was claiming, that some litigants might have less access to the "unpublished" law than others. In particular, the government would have more access to the law, in those areas of the law such as the criminal law and tax law, where it is a party to every case.

In the age of Google, such a claim is increasingly preposterous. The Aratoon decision itself, though unpublished, will live on and become part of what researchers find when they search the internet with the terms "unpublished" and "level playing field." The unpublished Court of Appeals opinions are mostly accessible online, to those who chose to read them - including the Smith opinion, that Mr. Aratoon claims was unfairly used against him.

The late Monroe Jamison

Somewhere along the way I met Monroe Jamison, when he was a lawyer with the Penn Stuart firm. He was the mainstay of the live music at the Virginia Highlands Festival in Abingdon, back when there was a festival to speak of. Some years later, we tried a case on opposite sides in Scott County, before Judge Kilgore. Some years after that, he became one of the new Public Defenders in the Western District of Virginia. About 20 years ago, his little band played at my sister's house, and my dad has uploaded some of this music to this video on YouTube.

Does the "Law of the Case" apply to subject matter jurisdiction in Virginia?

One of the most widely studied series of appeals in recent legal history to come out of the courts of Virginia has been the Miller-Jenkins cases, which involved a great many issues. The cases were about two women (Janet and Lisa) and a baby. They get a custody order in Vermont. Lisa files a case in Virginia and gets a different custody order in Virginia. The case goes up on the first appeal in Virginia. The Court of Appeals ruled that by operation of the federal Parental Kidnapping Prevention Act, the Circuit Court in Virginia lacked jurisdiction to contradict the Vermont order. Lisa files for an appeal to the Virginia Supreme Court but the petition was untimely. 

Meanwhile Janet applies to the Juvenile Court to have the Vermont order registered in Virginia under the Uniform Act. Lisa appeals the registration order to Circuit Court, then to the Court of Appeals,  then to the Virginia Supreme Court. On the second round of appeals, the Court of Appeals held and the Virginia Supreme Court agreed that all the issues that Lisa argued about why the Vermont custody order should not be registered in Virginia were barred by the prior rulings of the Court of Appeals in the first appeal, which became the "law of the case."

One of the cases that was cited by the Supreme Court in Miller-Jenkins is Norfolk & W.R. Co. v. Duke, 107 Va. 764, 60 S.E. 96 (1908). The Duke case says some very interesting things related to the "law of the case" doctrine. In Duke, the appellant in the second appeal claimed that the trial court lacked subject matter jurisdiction all along. The Supreme Court held that the issue of subject matter jurisdiction had not been discussed at all in the first appeal, by remanding the case, the issue of subject matter jurisdiction had of necessity been determined as part of the prior appeal, and therefore the issue of subject matter jurisdiction could not be reconsidered on the second appeal.

That is a strangely advanced ruling for the Virginia Supreme Court in 1908. The federal courts generally recognize that the law of case applies or can apply to the issue of subject matter jurisdiction, but tthey did not always. See Bishop v. Smith, 760 F.3d 1070, 1084-85 (10th Cir. 2014); Alexander v. Jensen–Carter, 711 F.3d 905, 909 (8th Cir. 2013); Sierra Club v. Khanjee Holding (US) Inc., 655 F.3d 699, 704 (7th Cir. 2011). When a lawyer argued to Judge Turk that a decision was too old to still be good law, he would ask when had the "Age of Enlightenment" occurred that made the judges smarter now than they were back then.

On the selection of Judge Kelsey to the Virginia Supreme Court

I was on the road yesterday, but saw by way of the Virginia Lawyers' Weekly that the General Assembly has selected Judge Kelsey from the Court of Appeals for the vacancy on the Supreme Court created by the retirement of Chief Justice Kinser.

This was my recommendation more then seven years ago, which is not to cast aspersions on those who have been made members of the Court during that interval - particularly since that would include every single one of them other than the new Chief Justice. The vacancies left by the retirements of Justices Lacy and Koontz, the appointments to the Fourth Circuit of Judges Agee and Keenan, and the passing of the former Chief Justice Hassell have all been filled been filled in the past seven years.

I like to think that I am up to date, but I'm not sure whether I would recognize any of these new justices off the bench other than the one from Southwest Virginia.

On the late Patrick Mannix

Over a period of almost twenty years, I had a number of dealings with Patrick Mannix, now deceased. Mr. Mannix was a self-appointed government watchdog, focused on Washington County, Virginia, and the City of Bristol. Some people hated him, including some of my clients. Others thought he was great, including one of my lawyer friends. I saw him at a few government meetings and court hearings where his comments were quite offensive and unjustified, in my opinion. The last two cases I had in court with him, however, he was in good humor. In the next-to-last case, I showed up just before the time for the hearing and sat down next to him and explained that I would be his opposing counsel for the day. He laughed and said, "I'm glad you're here, I was feeling kind of lonely." In the last case he sued two parties, my client and another, the case was dismissed as to my client and a default judgment in his favor entered as to the other party. Later on the other party was trying to get out of the default and I was there complaining that the case could not be reopened, which was sort of Mannix's position as well. He grinned and told the judge, "whom am I to disagree with Mr. Minor's legal expertise? I agree with everything he said," which was the first and only time he ever said anything like that.

On contempt in Juvenile Court in Virginia

There was a seminar put on for the Richmond Bar Association in October 2013, with a discussion about the enforcement of orders in Juvenile Court, that included these materials. It included an article dated July 1, 2013, by Peter Vieth published in the Virginia Lawyers Weekly, about what is or was the practice in some Virginia courts of allowing the non-lawyer non-custodial parent to serve as the prosecutor in criminal contempt cases against the custodial parent related to visitation. Almost simultaneously, as a coincidence or not, the Unauthorized Practice of Law Committee considered and approved Proposed Opinion 217, which addressed this particular scenario. The proposed opinion concludes that the non-custodial parent as an extremely interested party is particularly unsuited to fulfill the ethical obligations of the prosecutor to pursue the public interest, and not merely to advocate one side of a dispute, citing In re: Richland County Magistrate's Court, 699 S.E.2d 161 (S.C. 2010). The State Bar Council never approved Proposed Opinion 217, for reasons that may have related to Va. Code § 19.2-265.01, which allows an exception to the rule on excluding witnesses for the "victims" of criminal offenses. "Victim" is a defined term under Title 19.2. Proposed Opinion 217 was sent back to the UPL committee for "further study."

In the usual visitation case, fines or imprisonment would only be "criminal" contempt sanctions, because they are neither prospective nor remedial. As the United State Supreme Court explained in the Bagwell case (that went from Southwest Virginia to the highest court), "a 'flat, unconditional fine' totalling even as little as $50 announced after a finding of contempt is criminal if the contemnor has no subsequent opportunity to reduce or avoid the fine through compliance." Sending someone to jail for what happened in the past is a criminal punishment. The classic civil remedial measure in the context of missed visitation would seem to be "make-up" visitation, which is not much discussed in the Virginia cases. In Florida, by contrast, there is an express statutory provision for makeup visitation: "When a parent refuses to honor the time-sharing schedule in the parenting plan without proper cause, the court . . . [s]hall, after calculating the amount of time-sharing improperly denied, award the parent denied time a sufficient amount of extra time-sharing to compensate for the time-sharing missed, and such time-sharing shall be ordered as expeditiously as possible in a manner consistent with the best interests of the child and scheduled in a manner that is convenient for the parent deprived of time-sharing." Florida Statutes 61.13.

 

There is no Virginia case law that suggests that the non-custodial parent can be made whole by way of money damages for lost time with the child. It seems to me, anyway, that Virginia law does not permit compensatory damages for lost visitation time in any kind of case. The statute barring claims for alienation of affections, Va. Code § 8.01-220, applies to emotional distress damages. See McDermott v. Reynolds, 260 Va. 98, 103, 530 S.E.2d 902, 904 (2000). Virginia law bars a civil action against the custodial parent for money damages on account of missed visitation. See Wyatt v. McDermott, 283 Va. 685, 701, 725 S.E.2d 555, 563 (2012) (such claims “would be used as a means of escalating intra-familial warfare”). Compensatory damages in civil contempt claims are limited to "pecuniary loss," see Deeds v. Gilmer, 162 Va. 157, 262, 174 S.E. 37, 79 (1934), which some courts have held to not include emotional distress damages. See, e.g., McBride v. Coleman, 955 F.2d 571, 577 (8th Cir. 1992) (overturning civil contempt award of emotional distress damages); In re Walters, 868 F.2d 665, 670 (4th Cir. 1989) (same). The only case where such an award was enforced in Virginia that I have seen was with respect to a judgment entered by a Tennessee court under Tennessee law. Lutes v. Alexander, 14 Va. App. 1075, 421 S.E.2d 857 (1992).

 

It is even less likely that such damages can be awarded in Juvenile Court. Juvenile Court practice is constrained by statute. There are statutes which authorize "civil" and "criminal" contempt  sanctions in Juvenile Court. Reference to the right statute should make a difference, since it is the first and perhaps the only indication at the beginning of the case as to the nature of the proceeding. A show cause summons citing Va. Code § 18.2-456 or Va. Code § 16.1-69.24 would seem to be the start of a criminal contempt case. See Storozum v. Chernin, Record No. 1073-03-4 (Va. Ct. App. Nov. 23, 2004) (contempt case was "criminal" where the motions filed in juvenile court cited Va. Code § 18.2-456). The somewhat gratuitous reference to section 16.1-69.24 as providing for the appeal of "judgments for civil contempt" in a footnote to Justice Mims's dissenting opinion in DRHI, Inc. v. Stanback, 765 S.E.2d 9 (Va. 2014) probably does not trump the reference by the Court to section 18.2-456 as a "criminal contempt statute" in a footnote in Singleton v. Com., 278 Va. 542, 685 S.E.2d 688 (2009), even though section 16.1-69.24 does no more than to make section 18.2-456 applicable in the district courts. A summons citing Va. Code § 16.1-278.16 or Va. Code § 16.1-292 could be civil or criminal. One source that explains the difference between civil and criminal contempt is this page posted on behalf of the Juvenile Court in Lynchburg. There is a much more elaborate discussion of contempt in the District Courts in the District Court Judges' Benchbook, at pages 274 through 301. The Benchbook is perhaps the best resource on law and practice in the district courts.

In 2011, the United States Supreme Court decided Turner v. Rogers, which deals with the right to counsel in cases against parents who are hailed into to court in civil contempt cases for failure to pay child support. The Supreme Court held that there was no constitutional right to counsel as such, despite the risk of significant incarceration as a civil contempt sanction to coerce the payment of support. One of the considerations on which the decision was based was the simple fact that "sometimes, as here, the person opposing the defendant at the hearing is not the government represented by counsel but the custodial parent unrepresented by counsel." (Emphasis in the original.) The Court observed that giving a lawyer to the non-custodial parent to fight the civil contempt case would create an "asymmetry of representation" that would bog down the enforcement of the child support enforcement laws. A similar asymmetry results where visitation is enforced by criminal contempt. The custodial parent is entitled to counsel, and to all the rights of the criminal defendant, in a criminal contempt case - including a different and higher burden of proof, the testimonial privilege against self-incrimination, and at some level the right to trial by jury. The remedy for this imbalance is to funnel the cases toward civil rather than criminal contempt proceedings, instead of depriving persons charged criminally of their important statutory and constitutional rights.