Saturday, January 17, 2004

Friday's criminal law cases from the Virginia Supreme Court

In Hines v. Kuplinski, the Court in a per curiam opinion held that the trial court had not erred in its conclusion that the appellant's habeas corpus petition was untimely filed under Va. Code 8.01-654.

In Hudson v. Com., the Court in an opinion by Justice Keenan held that the defendant had not been denied a "speedy trial" within the meaning of Va. Code 19.2-243. Interestingly, the Court noted that "[t]he issue whether a defendant's statutory right to a speedy trial has been violated does not rest, even in part, on the existence of prejudice from any delay in his trial date, or on his failure to make an affirmative demand for a speedy trial," but concluded that the defendant had waived the provisions of the Act by agreeing to a later trial date.

In Com. v. Minor, the Court in an opinion by Justice Kinser reversed the Court of Appeals and concluded in the case of a defendant accused of assaulting three different victims, that "trial court abused its discretion in denying the defendant's motion to sever the charges because evidence of the other crimes was not relevant to the only contested issue, whether each victim did or did not consent to sexual intercourse."

In White v. Com., the Court in an opinion by Justice Koontz reversed the defendant's conviction of escape, because he was never in custody as required by the statute, Va. Code 18.2-479. I got Judge Flannagan to make a similar ruling in a case a few years ago, where the defendant was sitting in a police car and decided to make a run for it - one of my few triumphs as a criminal lawyer.

In Com. v. Jones, the Court in an opinion by Senior Justice Stephenson reversed the Court of Appeals and reinstated the defendant's convictions of robbery and use of a firearm in connection with a robbery. The defendant took some shoes outside a store, then showed the gun to the store employee who ran outside after him, and these facts together were held to be sufficient to support the convictions, even though the taking and the use of the gun did not occur at the same time and place.

In Alger v. Com., the Court in an opinion by Justice Agee held that the defendant could not possess a firearm anywhere, not even in her house, without violating Va. Code 18.2-308.2 as a convicted felon in possession of a firearm.

In Blevins v. Com., the Court in an opinion by Senior Justice Stephenson affirmed the trial court's denial of a motion for mistrial, despite evidence that a juror failed to give a correct answer in response to the question during voir dire about whether jurors or family members had ever been victims of serious crimes. The juror claimed she either didn't hear or didn't understand the question, but didn't mean to mislead anyone, and that she decided the case on the evidence. (Well, I'm not sure that makes the verdict more likely to be correct, if the jurors were not lying, but just didn't hear or understand what was going on.)

In Com. v. Jackson, the Court in an opinion by Justice Lemons reversed the Court of Appeals on the issue of whether a former Commonwealth's attorney as of the time of the defendant's original conviction had to recuse himself from sitting as judge on a later probation revocation hearing.

In Johnson v. Com., the Court in an opinion by Justice Keenan affirmed the death sentence given the appellant, in a case where the defendant claimed he was retarded, and also challenged the constitutionality of Va. Code 19.2-264.3, regarding resentencing before a different jury after a successful appeal in capital murder cases.

In Powell v. Com., the Court in an opinion by Justice Koontz affirmed the death penalty given to the defendant on his retrial following an earlier successful appeal.

In Hudson v. Com., the Court in an opinion by Justice Lacy affirmed the death sentence given to the defendant, in a case where appellate review was required by law even though the defendant had waived his right to appeal.

In Jackson v. Com., the Court in an opinion by Justice Kinser affirmed the death sentence for the defendant convicted of murdering an 88 year-old woman in Williamsburg.

Friday's property law cases from the Virginia Supreme Court

In Barter Foundation v. Widener, the Court in an opinion by Justice Koontz affirmed Judge Flannagan's ruling against the Barter on the issue of whether it could keep the public off property that was dedicated as a public right-of-way but never formally accepted by the Town. The right-of-way had been of record since 1944 but never used. Byrum Giesler argued for the Barter, Mike Bragg argued for the appellees.

In Jones v. Peacock, the Court in an opinion by Justice Lacy held that the trial court had erred in concluding that the petitioners' father was incompetent to claim an elective share of his wife's augmented estate. The Court concluded that "that the distinct nature of an election warrants a level of competency uniquely connected to that act." Strangely enough, having decided on the legal standard, since the parties agreed all the evidence was in the form of depositions, the Court went on to decide the merits of the case, which strikes me as a bit unusual. Is that how the Supreme Court deals with equitable distribution cases, I wonder?

In River Heights Associates Limited Partnership v. Batten, the Court in an opinion by Senior Justice Carrico affirmed the trial court's rulings in a declaratory judgment action regarding the enforceability of restrictive covenants proscribing commercial use of real estate along U.S. Route 29 north of Charlottesville. The trial court held the covenants were enforceable, and on appeal, the Court agreed that the declaratory judgment action was proper and that the ruling on the merits was correct.

In Richardson v. AMRESCO Mortgage Corp., the Court in an opinion by Justice Keenan reversed the trial court's rulings on the application of the Uniform Transfers to Minors Act, and on the efficacy of a quitclaim deed, in a case the custodian of a minor had tried to transfer real property from the minor's estate.

In Dogwood Valley Citizens' Assoc. v. Winkelman, the Court in an opinion by Chief Justice Hassell considered the question of "whether a non-stock Virginia corporation is a property owners' association within the intendment of the Property Owners' Association Act," and concluded that it was not, because it had no duty to maintain roads and common areas.

Friday's government liability cases from the Virginia Supreme Court

In Frederick County School Board v. Hannah, the Virginia Supreme Court in an opinion by Justice Agee held that the statutory liability limit for school boards in bus accident cases was inapplicable in a case where the school board had failed to obtain a certificate of self-insurance as required by the statute, Va. Code 22.1-194. The School Board claimed that it was self-insured under sub-section D of Va. Code 22.1-190, by virtue of its participation in the group self-insurance pool for school boards created pursuant to Va. Code 15.2-2704, but it had not received the required certificate. The School Board also relied on the language in section 22.1-194 which prohibits payment of a judgment from school funds. The Court found, however, that the insurance pool will pay the judgment, not school funds (even though there is nothing in the pool but school funds).

In Tazewell County School Board v. Brown, the Court in an opinion by Justice Kinser reversed the ruling of Circuit Court Judge Vanover, on the issue of whether a school principal was covered by the grievance procedure of the Tazewell County school system. Instead, the Court concluded that the principal was covered by the state system, under which his suspension was not a grievable issue. Va. Code 22.1-79(6) requires school boards to establish a local grievance procedure covering employees other than superintendents and those employees covered by Articles 2 and 3 of Chapter 15 of Title 22.1. The Court concluded that the state grievance procedure controlled, not the local procedure, and the principal's suspension was not a grievable issue under the state procedure, and that his only remedy was under the suspension statute, Va. Code 22.1-315, under which the principal had failed to request relief.

In Rector and Visitors of the University of Virginia v. Carter, the Court in another opinion by Justice Agee held that the trial court in overruling the University's plea of sovereign immunity, in a case where the plaintiff had failed to join the Commonwealth as defendant as required under the Virginia Tort Claims Act but proceeded only against a state agency, the University. Interestingly, the University sought certification of the immunity issue under Va. Code 8.01-670.1, a 2002 statute that allows for certification of interlocutory orders for appeal, somewhat in the manner that is allowed in federal procedure under 28 U.S.C. 1292(b). The Court agreed with the University's argument that the Virginia Tort Claims Act "provides an express, limited waiver only of the Commonwealth's sovereign immunity but does not disturb the sovereign immunity of the Commonwealth's agencies." It is interesting that this opinion came down the same day as the school bus opinion, in which the Court went somewhat out of its way to reconcile the statutes at issue there to go beyond what would appear to be the express limitation on the waiver of sovereign immunity in that case.

In Jones v. Commonwealth, the Court in an opinion by Justice Lemons held that the University of Virginia is a governmental entity for purpose of determining its status as a statutory employer under the worker's compensation laws, and therefore the plaintiff's claims were barred by the exclusive remedy of the worker's compensation laws.

Friday, January 16, 2004

Suits filed over law school shootings

According to this report in the Bristol paper, four lawsuits have been filed against Appalachian School of Law, its president, and one of its professors, over the shooting of four students two years ago at the law school.

Years ago, I did some work on a case involving the liability of a college for an assault on a student, and my recollection is that the burden of proof in such cases is quite difficult to sustain.

Commonwealth petitions for cert in VMI dinner prayer case

According to this post on the SCOTUSblog, Virginia is seeking review from the U.S. Supreme Court of the Fourth Circuit's ruling in the VMI dinner prayer case.

JMU backtracks on morning-after pill

How Appealing has this post with links to news articles on the decision (just in time for the General Assembly session) by the administration of James Madison University in Harrisonburg to reverse its decision to stop making available the so-called morning-after contraceptives for students. Last year, JMU stopped the pill in response to pressure from a Northern Virginia legislator.

Proposed amendments to FRAP

Howard Bashman wrote this article on the proposed amendments to the Federal Rules of Appellate Procedure, including the proposal regarding citation to unpublished opinions.

Microsoft wins before Fourth Circuit

As Howard Bashman explains here, the Fourth Circuit has reversed the District Court's findings against Microsoft in the Sun antitrust case. The decision was written by Judge Niemeyer, joined by Judge Widener, with Judge Gregory concurring in part and dissenting in part.

Thursday, January 15, 2004

Fourth Circuit judge commissions art for Baptist church

This article describes how Judge Karen Williams of the Fourth Circuit commissioned some art work for her church in South Carolina.

A lesson from my first school principal

Aubrey Brown died earlier this week at age 86. His obituary is among these in the Bristol paper. When I started school, he was the principal at Abingdon Elementary.

When I was in the second grade, someone at the school took the notion that I might skip the third grade. As part of this consideration, I had to read part of a book for Mr. Brown. The book was about Jefferson and his home, the name of which Mr. Brown informed me was pronounced, "Mon-ti-chello." Well, I was hooked on phonics, even before there was such a thing, and I knew he could not possibly be right about that. (By the way, Mom and Dad vetoed skipping the third grade.)

Thirty-some years later, I'm still trying to figure out how to avoid the same kind of mistake I made when reading to Mr. Brown.

Wednesday, January 14, 2004

Sixth Circuit slowing down

According to this AP report, the U.S. Court of Appeals for the Sixth Circuit is slowing down in terms of the average length of time from beginning to end of an appeal. That average has gone from 14 months to 16 months.

I don't know anything about this, but it looks to me like the senators from Michigan are mostly at fault and really in the wrong, and I'm sure they are really, really concerned about my opinion.

Zeroing in on public sodomy in Virginia

The AP reports here that Virginia's State Crime Commission on Tuesday endorsed a new law that makes sodomy out in public a crime in Virginia, anticipating that the regular old sodomy statute might somehow be held unconstitutional as applied to such acts.

Big Tom back in the big time

I have not watched any of the various Survivor programs, but I have read with much amusement of Smyth County's own Big Tom Buchanan, who briefly is or was back on TV among the Survivor all-stars. (This Roanoke Times article describes the end of his first adventure on Survivor, and how he exited with the phrase, "love, peace, and hair grease.")

I told one of my friends from Smyth County who has moved off to the big city that wherever she goes, for the rest of her life, she can always tell people that she went to the same schools as Big Tom.

Southwest Virginia lawyer in the U.S. Supreme Court

Monday morning I had my day as a spectator before the U.S. Supreme Court.

My impression was mostly how close the spaces were, how normal and reasonable both the questions and the answers were, how relatively unobtrusive the security was, how friendly the Clerk was to the new admittees. It was more like going to court any other place I've been than, say, attending the Opening of Parliament. Also, with all the justices in a row, their faces and voices familiar to me from television but never having seen them together, it made me think of how when I was a kid I especially liked the announcement of the starting line-ups for baseball's All-Star game, all the great players standing right next to each other on the base lines.

I won't comment on the substance, except that Justice Breyer did note that the language "any entities" in 47 U.S.C. 253(a) does not include absolutely anything, pointing out the example that it does not include "any fish."