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.

You can't lie by claiming to be honest

In Trustees of Hackberry Baptist Church v. Womack, Judge Kiser of the W.D. Va. held that a defendant's claim of "honesty and fair dealing" was not a representation of fact on which a claim of actual or constructive fraud could be based.

What happens if the clerk refuses to certify the record on appeal

In Ford v. Com., the Court of Appeals in an unpublished opinion by Senior Judge Clements, joined by Judges Frank and Beales, addressed the appellant's appellate issues arising out of the Circuit Court clerk's refusal to certify the record. The clerk sent the record to the Court of Appeals but with a disclaimer that she did not know whether the documents that she sent were accurate and complete. The appellant claimed that because the clerk could not certify the record, he was denied due process, and therefore the case should be retried or dismissed. The Court rejected the appellant's claims, because he made no attempt in the trial court or the court of appeals to have the problems with the record corrected, noting that the Circuit Court had jurisdiction to fix problems with the record up until the time when the appeal was docketed in the Court of Appeals. The Court also noted somewhat ominously in a footnote that "any future failure to certify the record on the basis that the clerk did not maintain the record could result in contempt proceedings against the clerk," citing Va. Code 17.1-242 as amended in 2014 and a Virginia Supreme Court case from 1780, Com. v. Beckley.

A decision on class certification in the CNX and EQT royalty cases

The long-running litigation in the W.D. Va. over coalbed methane royalties has been on hold since the oral argument in May before the Fourth Circuit on the appeal of Judge Jones's orders certifying the cases into five class actions. Yesterday in EQT v. Adair, the Fourth Circuit, in an opinion by Judge Diaz, joined by Judges Wilkinson and Keenan, reversed the District Court's rulings, indicating that additional matters need to be addressed before the requirements for class certification can be met.

With respect to the classes where the issue was the ownership of the coalbed methane, the appeals court held that the District Court did not address in sufficient detail the difficulties of figuring out who are the members of the class, when "numerous heirship, intestacy, and title defect issues plague many of the potential class members’claims to the gas estate." I can see how this is a problem, having wrestled with essentially this very task in miniature for a couple of years. The heirs are spread out, their wills were not always written with these royalties in mind, many of them died intestate, some of them are under-aged, some of them are incommunicado, every family has its own story. On the other hand, the gas companies are regularly gathering information about who owns what - they usually know what they are missing.

More interestingly, the appeals court ruled that the District Court has to rule in advance of class certification on the big legal issue in the case, which is whether the Virginia Supreme Court's decision in the Harrison-Wyatt case resolves the ownership of coalbed methane in all cases or even many cases where there is a split mineral estate. This is good news or bad news for the members of the class - if the District Court rules that there is a single answer for all the non-coal owners, then all that is left is proving who they are. If the Court rules that there is not a single answer, then there will be no class action and the non-coal owners are left to try to litigate or deal with the coal owners over the meaning of their respective deeds, which has resulted in some easy money for the coal owners in some cases. In other cases, the coal owners have not claimed to own the coalbed methane. The opinion seems to suggest that a single answer is unlikely, unless the classes are somewhat redefined and narrowed. The panel suggested that "Harrison-Wyatt may provide a common answer to the ownership question for a class of gas estate owners whose severance deeds convey coal and only coal" and that "the plaintiffs may be able to identify a finite number of variations in deed language, such that the ownership question is answerable on a subclass basis." The District Court did not attempt to figure out how many deeds are like other deeds. Similarly, the appeals court suggested that there needed to be more detailed analysis of the language pertaining to royalties in the different leases, in the classes involving leased interests, such that for example the commonality requirement would be satisfied for landowners who all signed the same standard form of lease from CNX.

Finally, the appeals court concluded that the District Court has erred in certifying a class on the issue of the underpayment of royalties, without getting farther into the merits of what if anything the gas companies were doing that affected the payment of royalties. The District Court needed to focus more on whether common practices in calculating royalties were the cause of invalid payments, and not merely the nature and existence of common practices.

Finally, the appeals court required the District Court to look harder at the question of whether class treatment in federal court in the best way to proceed, while acknowledging that "collective action may offer the only realistic opportunity to recover" for the many individuals with small claims that would not support collection efforts outside of a group, because of legal fees.

The opinion concludes: "We recognize that there are numerous CBM owners in Virginia  who haven’t received a penny of CBM royalties and others who may have gotten less than their due.  We are not unsympathetic to their plight. But sympathy alone cannot justify certification under Rule
23. We therefore vacate the district court’s grant of the plaintiffs’ motions for class certification, and remand the case for further proceedings consistent with this opinion."

The next Chief Justice

I read this morning that Justice Lemons has been elected to succeed Chief Justice Kinser as the next Chief Justice of the Virginia Supreme Court. He would be the first former member of the Virginia Court of Appeals to serve as the Chief Justice - and possibly the first former judge of the Circuit Court for the City of Richmond to serve as the Chief Justice (he would know). I have heard him speak many times, including mostly recently at a seminar in Charlottesville this summer, and he is a very articulate spokesman for the Rule of Law and the legal system in Virginia.

On the late Judge Turk

I enjoyed my dealings with Judge Turk of the W.D. Va., including a couple of jury trials and a bunch of hearings, and seeing him at the courthouse many times and a few times at the judicial conference.

Years ago I represented an older woman in a case before Judge Turk. She was a super lady, somehow referred to me by the NAACP. The lawyer on the other side was from D.C. The security officer asked if I wanted the hearing in the courtroom. I tried not to laugh and said no, so we all went back into the library, gathered around a single table - my client, her daughter, son-in-law, and grandchild, the judge, and opposing counsel. Baby Girl his little dog was there. It was more like a prayer meeting than a summary judgment hearing, with a few amens from the congregation. The judge talked to everybody - including the little girl - about everything, then declared the case needed to be settled and got the magistrate judge on the phone and set the date for a settlement conference on the spot, and told the D.C. lawyer to offer something. The D.C. lawyer was a bit non-plussed. The gist was that Judge Turk thought we had no case but wanted us not to go away empty-handed - even if all we got was some kind words from him.

Roy Wolfe, the former magistrate, told me that there were no rules in the Western District other than Judge Turk's hearsay rule, which was "I'll let it in for what it's worth." A few years later, at the first trial I had before Judge Turk, I impeached the plaintiff's expert pretty well I thought, to the point I asked Judge Turk to rule that his opinions were not even admissible. The judge said no, he would let it in for what it's worth, with an inflection that suggested it was worth nothing. It was all I could do not to laugh.

Judge Turk loved juries. He figured that they would get it right, and if they didn't he could fix it. Judge Williams used to tell the story that Judge Turk was the only judge in America to ever try an ERISA case to the jury. At the memorial service for Judge Williams, I told the story of the juror who called me after a trial, which scared me to death. When we went in for post-trial motions, the first thing the judge said was "fellas, it's good to see ya, now tell me, what have you heard about what the jury was thinking when they decided this case?" Again I tried not to laugh.

One of the security guys in Abingdon told me a story once about the case where Judge Turk did not shake the criminal defendant's hand. The defendant was in court for violating his house arrest. The judge was unconvinced by his excuses. He was a restaurant owner. One of his character witnesses testified how his goal in life was to own a restaurant, and how much the defendant had helped him toward that goal. "Stick around," Judge Turk said. "There's going to be a restaurant up for sale here in just a few minutes." I don't know if that story is true but if not it ought to be.

On the upcoming retirement of Chief Justice Kinser

I have been around Chief Justice Cynthia Kinser from time to time the whole time I have been a lawyer. Kurt Pomrenke, now a judge himself, used to tell a story about going to argue against her in the Fourth Circuit and she had her children with her, and all the judges were smiling at the children, and he felt like he was going up against motherhood and apple pie. When she became the Magistrate Judge, I remember her saying that she wasn't able to greet the lawyers with stories like Judge Williams did, because she didn't know that many stories, but in time she came to know a few. The funniest story I ever heard her tell of her days on the Virginia Supreme Court was the one where the hapless lawyer kept calling her "Justice Lacy," until Chief Justice Carrico had enough and explained that the woman on the bench was instead Justice Kinser, whereupon the lawyer said, "oh! you've changed your hair." When she first got on the Court, I rooted for her to do well and later I was pleased that she had done well, a gracious person but also a strong voice for common sense and the rule of law.

Virginia CLE in Bristol

The big boss of Virginia CLE, Ray White, is bringing the trial practice seminar from his years of teaching for NITA to Bristol on July 24 at the Holiday Inn at Exit 7. Check it out here.

Come see us at the Sweet 300

I had a call last week from a lady who agreed to send me a document if I told her the address, and she wrote down exactly what I said. The envelope reads: "110 Piedmont Avenue, Sweet 300." Life is good upstairs in the Sweet 300.