On the withdrawal of appeals from the Juvenile Court

I read with interest the opinion for the panel of Judges Alston, Chafin, and Haley in Spear v. Omary, decided today by the Court of Appeals. Somewhat unusually, the opinion cites two of our appeals from the Barrett cases, that I argued before the Court of Appeals.

I think the panel got it wrong in Spear, and the legislative history from the Boyd-Graves Conference is instructive. The intent behind the language of section 16.1-106.1(F) was that "upon withdrawal of any such appeal, the case should be remanded to the Juvenile Court unless the Circuit Court judge determined that the case should remain in Circuit Court" and therefore "[l]anguage setting out a presumption of remand" was added. 2007 Boyd-Graves Subcommittee Report, Withdrawal of Civil Appeals (September 17, 2007). The subcommittee included Judge Klein from Fairfax Circuit Court and Judge Tower from Virginia Beach Juvenile Court, along with Gail Starling Marshall (whose husband John was the chairman of the Philosophy Department during my undergraduate days at the University of Virginia).

The point of section 16.1-106.1 was to rationalize and codify the withdrawal of civil appeals from the District Courts, for which there was no express statute.

Section 16.1-106.1(F) provides, in pertinent part:

"Unless the circuit court orders that the case remain in the circuit court, the case shall be remanded to the juvenile and domestic relations district court for purposes of enforcement and future modification and shall be subject to all the requirements of § 16.1-297."

In my view, having spent way too many hours in this obscure nook of the law, section 16.1-106.1(F) passed in 2008 causes a remand for purposes of section 16.1-297 to occur as a matter of law, and "the requirements of § 16.1-297" include the provision that "thereafter such child or adult shall be and remain under the jurisdiction of the juvenile court in the same manner as if such court had rendered the judgment in the first instance." It makes no sense that to say that the provision that"unless the circuit court orders ... the case shall be remanded" does not apply unless the Circuit Court also enters a remand order in compliance with section 16.1-297.

The Court in Spear looked at this language, however, and went the other way, finding no remand where the Circuit Court said nothing, the opposite of what was intended.

The Barrett cases are not especially relevant to the Court's conclusion. The issue in Barrett II was the res judicata effect of a withdrawn appeal from the Juvenile Court, and the panel in that case concluded that the withdrawal had the effect of reviving the prior order of the Juvenile Court and making it the final order for purposes of the res judicata analysis.

The Court also cited Austin v. Com., which did not involve the withdrawal of an appeal, and was decided years before section 16.1-106.1 became law.

On the late Don Williams

From my clerkship with Judge Williams, I got to know his brothers, Lowell and Don. Later on Don was on the Board of Supervisors and the School Board when I did some work over there. He was a big character with a big smile and everyone in the County knew him, from his coaching days as well as his days as a politician. He spoke his mind and cared deeply about a lot of people. Thank you, my friend.

Microsoft to help expand rural broadband in 6 states. says Washington Post

The Washington Post has this account of a pilot program being launched by Microsoft in six states, including Virginia, which is "a multi-year, multi-million dollar investment to help teach computer science to students, expand rural broadband and help create and fill jobs, among other things."

On the Commonwealth's use of text messages and tweets

In Atkins v. Com., the Court of Appeals of Virginia in an opinion by Judge Decker joined by Judes Humphreys and O'Brien affirmed the defendant's convictions, where he objected that the Commonwealth had failed to lay a sufficient foundation to support the admission into evidence of text messages and a tweet from his phone. In a footnote, Judge Decker explained what is a "tweet." In the case, the appellant "admitted that the passcode-protected phone from which the tweet and text messages were sent was his phone." Unanswered by this opinion is what happens when the suspect denies that the phone is his, or refuses to give up the password.

On citation to unpublished orders of the Supreme Court of Virginia

Not too long ago, the Supreme Court of Virginia started putting its unpublished "orders" - i.e., unpublished opinions - on the courts website, and I look at those along with everything else that I can find on the website.

Back in April, the Court issued an unpublished order in the case of LongView International Technology Solutions Inc., et al. v. Terry Lin, et al., which has to do mainly with the standard for determining under Virginia law whether contract terms are sufficiently definite to be enforceable.

Today, I saw an opinion from Judge Jones of the W.D. Va., in which he referenced the LongView opinion at length.

In this information age, these unpublished orders should have been "published" long ago.

On admission to the W.D. Pa.

A little while ago, I added the Western District of Pennsylvania to the list of places where I am admitted to practice. One of the magistrate judges there clerked for Judge Williams, and so I got her to swear me in. I guess I know about 50 lawyers in Pennsylvania, most of them in Lancaster County, some in the Philadelphia area, including Howard Bashman, who just passed the 15 year mark of excellence in blogging.

The one that got away

Years ago, I followed a case involving the former director of the Grayson County Department of Social Services. In that case, one of the issues was whether the local department of social services was a state agency for purposes of the Eleventh Amendment, and Judge Wilson concluded that it was. A petition to the U.S. Supreme Court was filed in that case, but not on that issue.

Today, in Pittsylvania Department of Social Services v. Gosney, the Court of Appeals in an opinion by Judge Petty, joined by Judges Humphreys and Chafin (so three of my favorites) held that a local department of social services is not a state agency for purpose of the application of the Administrative Process Act. And so, social services wins coming and going.

The big CBM class action ruling

After many years of proceedings, Judge Jones has issued a lengthy opinion addressing the certification of classes for the coalbed methane royalty cases against CNX and EQT.

The opinion is interesting for many reasons - one is simply that the PDF file is bookmarked, to aid in navigating the document, which is more than 100 pages.

The Court concluded once more that the requirement of "ascertainability" is not reason enough to deny certification of some of the proposed classes. I think it is a much bigger problem than any legal issues. There are too many fractional interests split too many ways.

The Court refused to cite a class for the lessors of CNX. The vagaries of the family trees are a lot trickier than the differences between the leases that I've seen.

On standing to sue a Virginia school board for violation of state law

I listened with interest this morning on my walk with the dog to the oral arguments before the Supreme Court of Virginia in the case of Lafferty v. Fairfax School Board. The assignments of error are shown here.

It seems fair to say that the lawyers were challenged by the judges - the appellant's counsel faced hard questions about whether his side had abandoned its assignment of error related to denial of leave to amend to add additional facts to support standing, and counsel for the School Board was challenged to explain what does it take to have standing to assert a Dillon Rule challenge and what are the Dillon Rule limits on school board policies.

On the latter point, the breadth of the school board's express powers under the Virginia Constitution and the Code was the basis for AG Herring's opinion on this same sort of issue in 2015. The Supreme Court relied on the same in its decision in the Payne case. The plaintiff's claim on the merits is weak.

On standing, there is an old case from the Supreme Court of the United States which says that "[u]nlike federal or state taxpayers, municipal taxpayers may fulfill the injury requirement by pleading an alleged misuse of municipal funds." Smith v. Jefferson Cty. Bd. of Sch. Comm'rs, 641 F.3d 197, 210 (6th Cir. 2011) (citing Frothingham v. Mellon, 262 U.S. 447 (1923)). See Nichols v. City of Rehoboth, 836 F.3d 275 (3d Cir. 2016) (same). Virginia courts have acknowledged this rule. See, e.g., Goldman v. Landsidle, 262 Va. 364, 552 S.E.2d 67 (2001) ("The direct and immediate interest of the citizen in the operation of local government, whether based on issues arising from a local election or a local government's exercise of its fiscal authority, permits these citizen or taxpayer challenges.").

Even under the rule for standing in a claim against a municipality, "a plaintiff must not only show that he pays taxes to the relevant entity, he must also show that tax revenues are expended on the disputed practice." Doe v. Duncanville Indep. Sch. Dist., 70 F.3d 402, 408 (5th Cir. 1995). Nobody pays taxes to a Virginia school board.

I expect that if this case goes down on procedural grounds, there will be another one.

The outer limits on visitation

In Petersen v. Petersen, the father brought out the big guns, hiring William Hurd to represent him before the Court of Appeals. The most interesting issue in the case was whether the Circuit Court, on appeal from the Juvenile Court, violated the father's rights by prohibiting him from contacting his young daughter or participating in or being told about her school activities and denying him any visitation. The father's relationship with the child had soured after she learned that he planned to have the mother killed. The Juvenile Court, over a period of time, developed a plan for gradually increased visitation.

While the case was before the Circuit Court, the mother and the GAL moved to suspend visitation. The Circuit Court granted the motion, while observing that the father could seek modification of its order in the future, if there were changed circumstances.

The Court of Appeals, in an opinion for the panel of Judges Beales and Russell and Senior Judge Frank, affirmed the Circuit Court's order, notwithstanding the requirement in the Code that the trial court "shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children," and the constitutional rights of the father.

On brevity

I read with interest the latest essay by Steve Emmert on his website, in which he discusses how the new federal rule will reduce the length of briefs allowed without leave of court, and also discusses the recommendation from Bryan Garner that a lawyer should "strive to halve your page limits." I also studied an article titled "The 5 Edits I Make Most Frequently," from ATL, written by the same fellow who wrote the Curmudgeon's Guide some years ago, one of my favorites, and this post by Jay O'Keefe on the right number of assignments of error.

These ideas are distilled in a joke that Wade Massie told me long ago, where the lawyer appears before the Court and apologizes, saying "I didn't have time to write a shorter brief."

Recently, in reply to my opposition to a petition for appeal, the other side cited my use of only "1/3 of [the] available word count," as if the use of fewer words equals less merit. The shortest of arguments is often the best. "Brevity is enjoined," Rule 1:4 says, "as the outstanding characteristic of good pleading."

Game Day in Farmville

The Richmond paper has this report on the hoopla at Longwood University surrounding the upcoming vice-presidential debate. I've been to Farmville many times, it is about like Galax (they both have a Macados).

On the adverse spousal testimony privilege

I filed a motion to quash not too long ago in a federal criminal case, where the Government was seeking to have the defendant's husband testify against her. In federal law cases, testimonial privileges are determinined under the federal common law. In Trammel v. United States, the Supreme Court held that the adverse spousal testimony privilege would continue to be recognized, but limited the privilege to be asserted by the witness and not the defendant.

In criminal cases arising under Virginia law, the corresponding privilege is found in Va. Code 19.2-271.2, which begins: "In criminal cases husband and wife shall be allowed, and, subject to the rules of evidence governing other witnesses, may be compelled to testify in behalf of each other, but neither shall be compelled to be called as a witness against the other."

On Chief Judge Gregory

The Associated Press has this article about the Commonwealth's own Roger Gregory, the first African-American chief judge of the Untied States Court of Appeals for the Fourth Circuit. Judge Gregory holds the distinction also of having been nominated by both President Clinton and President Bush.

The abomination that is "smart search"

In the old days, if you wanted to search for a word in the Virginia Code online, you put in the word and what you got was limited to that word only. Put in "transfer" and you got no "transferring" or "transferee." In the name of progress, this is no more, at least not by default. The same progressive impulse that requires me to insert "adv:" before any WestlawNext search, so that each one of the search results will include the terms that I am searching. It considered an "advanced" search when you are researching a section of the Code to expect that the Code section will be cited in each case.

Learning about the Stored Communications Act

Recently, I was studying on search warrants under the Stored Communications Act, 18 U.S.C. 2701, et seq. It is an interesting area of the law for many reasons.

The Act, adopted in 1986,  includes some ideas that seem pretty strange now.

In section 2703(a), there is a distinction made between emails that contents of electronic communications that have been stored more than or less than 180 days, as if that makes any sense. I get a lot of email. I keep them longer than 180 days because I can't remember what is in them. Some of them I might keep as long as I have anything, because they are as important to me as my books or photographs. Evidently Congress assumed back then that if any got an important email, they would print it out and delete it after a while to make space for other email. I don't know the theoretical limits on how much email my inboxes could hold, a lot more data than my physical mailbox down by the street that gets clogged with the books and cosmetics and clothes that keeping showing up at the house.

The Act may or may not distinguish between opened and unopened email. I have a lot of unopened emails. They are not very interesting, the ones that go unopened for any length of time. The opened ones are the only ones worth reading, the unopened ones are mostly ads selling clothes or political ideas or travel or sporting goods or whatever else I have ever bought into at least once in my life. I don't read all of my email, and a great deal of it is deleted unread.

The Act provides for subscriber notice in some circumstances and not others. The Government can get an order under section 2705(b) prohibiting the service provider for giving notice to the subscriber. Some providers like Google say they will notify the subscriber if they can. It allows the Government to access content of electronic communications sometimes with a search warrant and sometimes without. The Government never gives notice of its search warrant applications. Remarkably, there is a growing body of case law in which the magistrate judges across the county have taken it upon themselves to deny or modify search warrant applications for the content of emails stored by Google, Microsoft, and other like service providers. The Washington Post published this article about opinions written by a Magistrate Judge in the District of Columbia. There is a law review with the pretty fun title, Let the Magistrates Revolt. There is this remarkable opinion from a magistrate judge in Kansas, and at the other end of the spectrum, this remarkable opinion from a magistrate judge in New York.

There is legislation that seems to have wide support and might get passed to address some of the areas of strangeness. The House of Representatives passed the Email Privacy Act, H.R. 699, in April of this year. The EFF thinks that this act is a historic step in the right direction.

Another judicial conference

We went to the Judicial Conference. It was great fun in a fabulous setting. We enjoyed the company of many people that I've known for years, and met some people I should have known before now, and heard the Chief Justice, and watched some judges dance up a storm. We also missed our absent friends, including the woman in this photograph I stole from elsewhere.

Judge Conrad's ruling on Dean Eramo's request for discovery from "Jackie"

In Eramo v. Rolling Stone LLC, Judge Conrad of the W.D. Va. granted in part and denied in part the plaintiff's request for discovery from the anonymous "Jackie," who was the subject of the withdrawn Rolling Stone article about a sexual assault that never occurred that was alleged to have been committed by people who don't exist.

Initially, Judge Conrad overruled "Jackie's" claim that Rule 412 affects what is discoverable in a case where the subject matter pertains to alleged sexual misconduct.

New sheriff does not rehire senior deputies

The Roanoke Times reports here that the new sheriff for Roanoke County chose not to rehire some of the senior deputy sheriffs who served under his predecessor. Historically, the federal courts have zigged and zagged a bit in trying to define the limits of the constitutional protections for deputies of constitutional officers against patronage dismissals. The decisions in Jones v. Dodson, Jenkins v. Medford, and Knight v. Vernon did not proceed in a straight line. Probably the higher-ranking officials in any government office have the lower level of First Amendment protection.

On the Supreme Court challenge to the Google copying project

JURIST's Paper Chase has this post with links to the petition to the United States Supreme Court challenging the Second Circuit's decision regarding the legality of Google's book-copying project.