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.