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.