Blackstone and you

I read with interest Judge Kelsey's article in the current VBA Journal about the current relevance of the common law of England, in which he addresses and contradicts various criticisms of the application of the English common law as precedent in Virginia, and cites a list of recent cases in which the common law was prominent in the bases for decision.

The list of recent cases included Wyatt v. McDermott and Jenkins v. Mehra, among others. I recall reading these when they came out and thinking how strange that they turned to such a significant degree on the common law when they seemed to be in areas of the law where the legislature has acted in considerable detail. In Wyatt, the Supreme Court concluded that there was a common law writ for interference with the relationship between parent and child, or close enough, while recognizing that there are many differences in the law as it is today. To me, the many differences swallow up the similarities, and the incorporation of medieval concepts of the status of children is and was unwarranted, and the dissenters seemed to have the better view. In Jenkins, the Court found that the legislature had not spoken clearly enough to overrule the common law on a point of appellate procedure, of all things. The Constitution of Virginia gives the legislature the exclusive power to define appellate jurisdiction, there is no appellate jurisdiction except by way of legislative enactment, and so it seems a rare thing that the legislature is limited by the common law.

In Jenkins and in Wyatt, the Court referenced opinions from other states in explaining the common law rule. For a long time, I thought the Virginia Supreme Court was particular hostile to authority from other states, or even more so from the federal courts. I often suspected that part of the reason for this was the view that there is a fish in the sea for every taste, when searching through case law - there are conflicting precedents within and among the several states. The federal courts often get it wrong in guessing what is the law of Virginia, much less what the Virginia Supreme Court will think was the law of England in 1607. Certain justices I can picture in my mind's eyes seemed to relish the idea that only way to get a case right was to look to the opinions of the Virginia Supreme Court.

At least, with the internet, it is surely easier now than it was in 1800 to research the common law. You can read Blackstone's Commentaries on your mobile device for free. There might even be an app for that.

For those who find these topics interesting, there is a session titled "Democracy of the Dead: The Relevance of Legal History in Modern Litigation” on the agenda for the winter meeting of The Virginia Bar Association in Williamsburg later this month.

The awesomeness of Twitter on the AG vote count developments

If you are not doing it, you should be following the back and forth over the adjustments to the vote totals including what Ben Tribbett @notlarrysabato, Dave Wasserman @redistrict, and others, particularly in regard to the "missing" Fairfax County absentee ballots described here (in the Washington Post) that if "found" would likely carry the day for Democratic candidate Mark Herring who otherwise still is trailing the Republican Mark Obenshain. 

On trying a case before Judge Wilson

Last week's trial in Big Stone Gap was before Judge Samuel G. Wilson, who came on the bench of the Western District of Virginia in 1990, while my clerkship was still going on, and so I met him at that time. When I went to work in Bristol, we had a case against the United Mine Workers, that went to trial twice before Judge Wilson, with Jim Vergara on the other side. In 1995, I tried the Wise County Electoral Board case before Judge Wilson, against Ed Stout and Jerry Gray. Some other time we had the MSHA employees case before Judge Wilson, with Don Huffman on the other side, and then an auto accident case in Roanoke where I represented a fellow from the Netherlands before Judge Wilson, with B.L. Conway and Zane Dale Christian for the plaintiff. Those were all interesting cases because of the people involved and the back and forth in the courtroom, and I have to laugh at the preposterous level of detail with which I can recall them all. Not everyone gets to try a civil case before a jury in federal court, much less seven before the same judge. Strangely, I still think of Judge Wilson as sort of a "new" judge and myself as sort of a "new" lawyer still learning the ways things are, despite the twenty-some years of our acquaintance. Last week's trial was not one for the record books, the details might soon be forgotten but the part I will remember was from after the verdict at the tippy tail end of the case, when one of the Marshals was upset that some people in the gallery refused to stand. The judge sent the jury on their way, then stood up and gave a little speech that has stuck in my head. One side is always upset with a jury's verdict, he said. We don't stand when the bailiff cries "all rise" at the end of a case because we believe there has been perfect justice. What we honor is the pursuit of justice, through this jury system we have that is the best system there is, however imperfect. So, he concluded, he would not punish them for protesting this particular verdict, if that was what they wanted to do, but he wanted them to know that it was earnest quest for justice that makes our justice system worthy of respect. Or that's the gist of what I heard. It was a unique courtroom moment, memorable and unexpected. Probably I won't try another case before Judge Wilson, the odds are against it, but I am grateful for all I have learned in court with him and from him, including in Big Stone Gap last week.

Classmate in the running for Tennessee Supreme Court

One of my William & Mary classmates, Steve Mulroy, is a candidate for the Tennessee Supreme Court. His resume is here. At one time there were Steve Marshall, Steve Minor, Steve Mister, Steve Morris, and Steve Mulroy in all of the same sections in our first year in law school.

On the passing of Judge Karen Williams

I read here that Judge Karen Williams died at her home on Saturday, at age 62. Judge Williams served on the Fourth Circuit. She sat on almost all of the panels for the cases with the best outcomes I ever had anything to do with in appellate practice - the Arnold case, the Terwilliger case, the Cooper case, the Wiley case. I liked everything about her, like a groupie.

Thinking skeptically about thinking

One of the best books I've read in 2013 was Robert Burton's "A Skeptic's Guide to the Mind: What Neuroscience Can and Cannot Tell Us About Ourselves." The title was of interest when Jill was in the process of being diagnosed about why she had her car wreck back in December. The book revisits issues from the philosophy of the mind that I studied in undergraduate days, namely how can we ever figure out how the mind works when we've only got our minds to figure with. Notwithstanding the discussion of technology and philosophy, the book is accessible and interesting.

On Roy Wolfe

I understand that Roy Wolfe, the former United States Magistrate, passed away this week. He was someone I saw every day during my clerkship in Abingdon, during the last few months before his retirement. He was a good-humored man who liked to egg on Judge Williams to tell stories, even though he knew as many himself, and he thought it was hilarious that one of the demonstrators outside the courthouse hollered out "there goes the judge and his henchman" as Roy and the judge walked to a car. Evidently, he was also a lion in the courtroom, back in the day. He was a good friend to me who helped make my year at the courthouse the great experience it was.

On Martha Weisfeld

Here is an obituary in today's Bristol paper for Ms. Weisfeld, who was the publisher of the Abingdon Virginian. When I moved back to Abingdon after law school in 1989, I was walking around town with my future first wife and looked in the big glass window at her office on Courthouse Hill and she looked back and beckoned us in. She cross-examined us at some length as to who we were and what we were doing there, and I told her I was going to start working for Judge Glen Williams. She said, "oh, I love Judge Williams. He always hugs me and kisses me whenever we meet. None of the other judges do that." When I recalled this story not too long ago at the judge's memorial service, I pointed out that I could not imagine a more courageous act. Ms. Weisfeld was not shy about voicing her disapproval in her newspaper about whatever or whoever was bothering her. Judge Williams back in the day thought it was funny that she was such a big fan of his, and confessed that he had read some of what she wrote, or at least the headlines. He told me that once when he had ruled against Washington County on some issue or another, the resulting headline in Ms. Weisfeld's paper was "County Attorney Screws Up Again." She was very nice to us, the one time we spoke at length, and no one who knew her at all will ever forget her.

Senator targets the Conference

In this article, Senator Coburn from Oklahoma complains about the Fourth Circuit Judicial Conference being held at the Greenbrier. Obviously, I disagree with his view of the value of the event, and hope to attend it many more times.

Summer of fun

The youngest in our house declared that this would be her summer of fun.

For me, the most fun this summer outside of time with the family was time with my lawyer friends - in their homes, and at the Fourth Circuit Judicial Conference, events for the new judges, even events for Jill's library. The last of the swearings-in is today, when Eric Thiessen is made a judge of the General District Court, with my friends Roy Jessee and Jim Hodges speaking on his behalf. Previously, there were the events for Circuit Court Judge Deanis Simmons and Juvenile Court Judge Kurt Pomrenke, my long-time friend and co-worker and occasional co-conspirator in fun, as we saw the Virginia Cavaliers lose a lot of ball games together (and win some, too). I never had more fun at the Judicial Conference than I did this year, never saw more judges singing and dancing even in the absence of the late Chief Justice Rehnquist. I used to feel like an impostor there, with so many fancy people, and yet there are so many people there whom I am delighted to see. It is an occasion for the retelling of the very kind of stories that I most enjoy collecting.

These gatherings, combined with the 30th Circuit bench-bar event, the VSB event in Abingdon, and the memorial for Judge Williams, make it seem like in the past few months I have reconnected with almost all of the lawyers, and especially the Southwest Virginia lawyers, whom I have known these many years.

Miss K seems to have had the summer she wanted, including most recently her week at camp on the New River.

Blast from the past

The new quarterback recruit who just signed to play at Virginia Tech had Jim Cantafio as his high school coach - as did I. Coach Cantafio has won more than 250 games since he started at the old high school in 1980.

New takes on the judicial conference

This year, I tried to explain to Erin that we were going to an event that would include the Chief Justice of the United States Supreme Court. To make sense of it to her, I said that "he is like the Lebron James of judges." She got my meaning.

Jill asked me what was the hashtag on Twitter for the event. I didn't know. I don't think anyone was tweeting from the Greenbrier, although the AP article on the Chief Justice's remarks showed up while we were having lunch a few minutes after the conference had ended.

Keeping score

In this week's opinions, the Supreme Court

1. Somewhat cracked down on affirmative action, in the Fisher case (7-1 vote),

2. Somewhat made it more difficult to employee plaintiffs to win in Title VII cases, in the Nassar case (5-4), and the Vance case (5-4),

3. Somewhat made it more difficult to sue drug manufacturers for bad products, in the Bartlett case (5-4),

4. Somewhat struck down the Voting Rights Act in the Shelby County case (5-4),

5. Somewhat cracked down on impact fees, in the Koontz case (5-4),

6. Somewhat cracked down on the Indian Child Welfare Act in the Baby Girl case (5-4),

7. Cracked down on DOMA, in the Windsor case (5-4),

8. Punted on Proposition 8 in the California case (5-4),

9. Overturned an extortion conviction in the Sekhar case (9-0).

What do all these cases have in common? I have no idea, other than that Justice Kennedy wins again. Probably the right won more than it lost - the impact fee case, the voting rights case, the products liability case, the Title VII cases, and the affirmative action cases sound like big victories for the right. Perhaps the experts will explain it all this weekend at the Fourth Circuit Judicial Conference, which you can watch live on C-SPAN on Saturday morning. The conference is at the Greenbrier as in 2011.

The Virginia Constitution of 1902 and the Voting Rights Act

The Virginia Bar Association is a product of the Progressive era. Forward-thinking lawyers joined together to promote the highest ideals of the profession. Many of the same lawyers who were leaders in the Bar Association were also delegates to the Virginia Constitutional Convention of 1901.

The Virginia Constitution of 1902 contained some remarkably progressive elements - for Virginia. It established the State Corporation Commission as an independent rate-setting entity for the railroads and public utilities. It incorporated an express Double Jeopardy clause.

It also sought to take the right to vote away from black Virginians. In this effort, the new constitution was a success. Black voting was suppressed for decades. At the distance of barely more than 100 years, it is troubling to think that the best and the brightest of Virginia's lawyers worked so carefully and intentionally to prevent black voters from voting.

The Twenty-Fourth Amendment was adopted in 1964, prohibiting the poll tax in federal elections. The Supreme Court did not rule until 1966, in a Virginia case, that the poll tax was illegal as a violation of Equal Protection in state elections. Congress passed the Voting Rights Act of 1965.

Yesterday, the Supreme Court held in the Shelby County case that the premises of the Voting Rights Act could no longer support the imposition on certain states of the burden of pre-approval for all voting law changes. The commentary I have read is full of the view that racism remains a fact of life for millions of Americans.

There has been a reversal, however, between 1901 and the attitudes of the legal elite. I have never met a lawyer who would say in private the outrageous things that Virginia's best lawyers were saying proudly on the record in 1901. Black voter turnout exceeded white voter turnout for the first time in 2012. Whether the Chief Justice got it right or wrong in his conclusions, I agree that a fundamental change has taken place since 1902, that is not going to change back. There will not ever be another Virginia constitutional convention for the express purpose of keeping racial minorities from voting.

New bankruptcy judge for the W.D. Va.

In today's email:

"The United States District Court and the United States Bankruptcy Court for the Western District of Virginia take great pleasure in announcing that Paul Markham Black has been designated by the United States Court of Appeals for the Fourth Circuit, subject to satisfactory completion of standard background checks, to succeed William F. Stone, Jr. as United States Bankruptcy Judge for the Western District of Virginia at Roanoke, Virginia. Mr. Black, a native of Roanoke who graduated from Northside High School, received his undergraduate degree from Washington and Lee University in 1982 and his law degree from the T. C. Williams School of Law of the University of Richmond in 1985. He then served as law clerk to the Honorable Blackwell N. Shelley, United States Bankruptcy Judge for the Eastern District of Virginia at Richmond. After practicing law in Richmond for several years with the firm of Mays & Valentine, he returned to Roanoke in 1991 to join the law firm of Melchionna, Day, Ammar & Black, P.C. Since then, his practice has involved representation of clients in the United States District Court and United States Bankruptcy Court in the Eastern and Western District of Virginia as well as numerous Virginia state courts. Currently, Mr. Black is a member of the firm of Spilman, Thomas & Battle, PLLC in Roanoke, where he is co-chair of the firm's bankruptcy and creditors' rights practice group. Since 2007, he has served as a member of the Virginia State Bar Disciplinary Board. Mr. Black lives in Roanoke, Virginia with his wife. They have three daughters. The term of the appointment will be fourteen years, and Mr. Black is expected to take the bench during the latter part of this year or the beginning of 2014."

Why I like RealClearPolitics

The No. 1 reason why I look at the RealClearPolitics web page almost every day is the juxtaposition of links to opposing or somewhat opposing views, such as these:

Item 1: Obama Readying Emissions Limits on Power Plants. This story describes how the Obama Administration is working as quickly as it can on the complicated task of promulgating regulations that will curb carbon dioxide emissions from existing power plants.

Item 2: Climate Expert von Storch: Why Is Global Warming Stagnating? This worthwhile interview includes the frank acknowledgement by one of the leading climate change experts that if global warming does not pick up again in the next five years, after fifteen years of little change despite increasing carbon emissions, the scientists will have to acknowledge, without abandoning their general thesis that man-made emissions affect the climate, that their models were wrong and recognize that either they have overestimated the connection between man-made emissions and global warming or underestimated the effects of other natural phenomena that affect the weather.

Over at RealClearEnergy, there was Item 3: King Coal Leaves America for Europe, which begins with reference to the fact that U.S. coal exports have reached record levels, and concludes that "[g]reen energy policy has been a catastrophic failure in Europe, hampering the continent’s global competitiveness without making the continent any greener."

On Ephrata

In Teleguz v. Pearson, the petitioner has raised as one of the factual issues in support of his actual innocence that a witness gave testimony that the petitioner killed a man in Ephrata, Pennsylvania, but in fact there was no such murder. Judge Jones ruled in the opinion that since it was stipulated that there was no such murder, there was no need for discovery on that point.

Apropos of nothing, I have been to Ephrata many times, it is still home of the Hilltop Restaurant, where my high school girlfriend's mom asked me thirty years and a couple of months ago, "you're not going to ask her to the prom, are you?"

Hearsay in the W.D. Va.

Judge Jones of the W.D. Va. has written two recent opinions in which important hearsay evidence was kept out of the case.

In Electro-Mechanical Corp. v. Power Distribution Products, Inc., the Court excluded the minutes of a meeting between the plaintiff and a potential customer, finding that the substance of the document along with the timing of when it was created "indicated a lack of trustworthiness," in the language of the business records exception to the hearsay rule, FRE 803(6).

In U.S. v. Benko, where Mr. Benko is accused of lying about something someone else did, and that someone else made a statement that he never did it, Mr. Benko is out of luck in trying to get that evidence admitted because the declarant has invoked the Fifth Amendment and refused to testify, the Court cannot require the government to give him immunity and make him testify, and the out-of-court statement is not admissible as a statement against interest under FRE 804(3) because the statement lacked "corroborating circumstances that clearly indicate its trustworthiness."

These opinions excluding highly relevant evidence because it was too obviously self-serving to the point of unbelievability are a far cry from what Magistrate Judge Roy Wolfe described to me as the only evidentiary rule of the Western District, "let it in for what it's worth," which I heard from the bench only once in an actual case.

On FOIA and the Attorney General

My old blog friend Waldo Jaquith has been in the news lately in connection with the claim stated on a response he received from the Virginia Attorney General that Virginia's Freedom of Information Act may not apply at all to the Attorney General, citing the 2011 decision by the Virginia Supreme Court in Christian v. State Corporation Commission. In that case, the Supreme Court gave three reasons why, despite the broad definition of "public body" in FOIA, the State Corporation Commission was not included. One of those reasons was the idea that the SCC derives its authority to act from the Virginia Constitution, rather than the legislature, suggesting sort of a separation-of-powers issue. The Court cited Connell v. Kersey, a 2001 case in which the Court held that a Commonwealth's Attorney was not subject to FOIA, explaining that the language of FOIA refers only to "entities to which responsibility to conduct the business of the people is delegated by legislative or executive action. By contrast, a Commonwealth's Attorney derives his or her authority from the Constitution." Along somewhat similar lines, the Court held in Taylor v. Worrell Enterprises, that the Governor could not be required by legislative act to provide certain records.

Interestingly, the General Assembly took action to overrule Connell, by chapter 393 of the 2002 Acts of the Assembly, which amended the definition of "public body" with the addition of this sentence: "For the purposes of the provisions of this chapter applicable to access to public records, constitutional officers shall be considered public bodies and, except as otherwise expressly provided by law, shall have the same obligations to disclose public records as other custodians of public records." In this act, the General Assembly expressly declared its intent to "address the recent Virginia Supreme Court holding in the case styled Connell v. Kersey, which held that attorneys for the Commonwealth are not 'public bodies' as defined in the Freedom of Information Act (§ 2.2-3700 et seq.), by clarifying that the Freedom of Information Act (FOIA) applies to constitutional officers and providing an exemption for attorneys for the Commonwealth." It is not obvious to me how the separation-of-powers rationale from Connell survives this amendment as to whatever is included within the term, "constitutional officers." In cases such as Blair v. Marye, 80 Va. 485 (1885), the Supreme Court has explained that the Attorney General is a "constitutional officer." In addition, the Supreme Court has already held that the Virginia Constitution "unequivocally permits the General Assembly to prescribe the duties of the Attorney General." Wilder v. Attorney Gen. of Virginia, 247 Va. 119, 127, 439 S.E.2d 398, 403 (1994). Unlike the SCC, FOIA includes several exemptions that expressly reference the records of the Attorney General.

In fact, the Attorney General never used the legal argument that his office is not subject to FOIA to avoid responding to FOIA requests, and has now abandoned that argument altogether. The Christian case provided a good-faith basis for raising the point, but it is not obvious that the weight of authority would place the Attorney General in the position of the SCC as opposed to other "constitutional officers."

The memorial for Judge Williams

Thanks to Judge Pam Sargent and all others who made possible the memorial yesterday afternoon for Judge Williams, and to Chief Judge Conrad, Judge Sargent, Judge Birg Sergent, Ronnie Montgomery, Joe Wolfe, David Harless, Randy Ramseyer, Jack White, and Don Williams for their words. I was glad to get a chance to speak about the Judge once more.

What the Supreme Court said about whether a tomato is a vegetable

Last night I caught the tail end of the seed library presentation at the library in Abingdon and one of the seed people said that a tomato is botanically a fruit but the Supreme Court has ruled that it is a vegetable. So, of course, I had to look up the case, which is Nix v. Hedden, 149 U.S. 309 (1893). The issue before the Court in Nix was whether the tax collector for the Port of New York could collect a federal tax on imported "vegetables in their natural state" with respect to imported tomatoes, where the tax did not apply to "fruit." The opinion was written by Justice Gray, who preceded Justice Holmes on the Court and had a similar background as a well-to-do Bostonian who had served on the appeals court in Massachusetts.

Justice Gray wrote that the terms "fruit" and "vegetables" did not have any special meanings, that the Court was bound to take judicial notice of their ordinary meanings, that dictionary definitions were not evidence but aids to the "memory and understanding of the Court" regarding the ordinary meanings, and that while "[b]otanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas," nevertheless, "in the common language of the people, whether sellers or consumers of provisions, all these are vegetables which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert." And so, a tomato is a vegetable, because of how we talk about it when we eat it, regardless of what the scientists say - and the tax collector wins. Surely, my old professor David Yalden-Thomson would have approved of this analysis, as he believed the most profound sentence ever written was that "the meaning of a word its use." The Nix case is sometimes cited for its use of dictionaries.

Referencing the Court's decision, this article makes the case for tomatoes as dessert. If tomato tarts and tomato yogurt took the notion by storm, would a tomato then become a fruit as that term was used in subsequent legislation? I wonder. Pictured below are what I think are some of what are my dad's favorite tomato, the Pink Lady.

On joining up with Bearing Drift

Norm Leahy has included me in the latest crop of new contributors to Bearing Drift, describing me as "[o]ne of the grand old men of the Virginia blogosphere." As long as I have been a blog writer, I have been a blog reader, and the Bearing Drift contributors include several grand old men and women of the Virginia blogosphere whose words I have pondered for many years. Thank you for the invitation.

On the black dog syndrome

I have read from time to time of the Black Dog Syndrome, which is probably a myth. It is interesting to think about why would there be a preference for or against a dog of a particular color, and how could it ever be proven. This topic is also of interest because of the three dogs I have owned since 1991, Ladybug (2010 - present), Chrissy (1991 - 2006), and Jenna (2007-2008).

Comparing law and science

I have been studying this article titled "The Law of Physics & the Physics of Laws," by Judge Kelsey, published in 2012 in the Regent University Law Review, in which he endeavors to "rake through the ashes of science (as well as some of its hot coals)" in the pursuit of "symmetries that reinforce our understanding of the law."

In the first section, titled "An Underlying Order," he points to the historical view of common law scholars that the law like sciences derived from universal truths, that were capable of being discovered incrementally through the process of deciding individual cases. It brings to mind the concept from Revolutionary times, that all men "are endowed by their Creator with certain unalienable Rights," that were natural laws that preceded the institutions of the legislatures and the courts. It also makes me think of the dismissal by Justice Holmes and other "legal realists" of the validity of the quest for natural law.

The second section makes interesting comparisons between the physical laws of inertia and the doctrine of stare decisis, and also between Newton's law of motion and the adversary system. He suggests that judicial precedents have "mass," that consist of "the strength of judicial consensus on the truth of the precedent and the longevity of its journey over time," that must be overcome for the law to change, and that absent sufficient force for change to overcome this mass, the precedents will "simply move from age to age along their original trajectories." He also suggests that the adversary system in its reliance on the concept that "truth can best be found in the competing contest between opposing forces" corresponds with the Newtonian concept that "all forces in come in pairs."

The third section compares the difficulty of categorizing and determining the truth, in law and in science. He compares the difficulty of scientists in characterizing the nature of light with the challenge for lawyers of drawing the line between law and equity - a task which continues into the modern age, for example, where there is an issue of the right to a jury trial. He concludes with the problem of "doubt," in science and the law, which seems to me the most interesting of these several points - how do we overcome the problem of knowing what is true, when the quest for truth itself may obscure the truth? The priority of the opposing parties is to win the case, with the result that " lawyers and jurists alike have known for centuries that irrefutable truth is almost always, if not invariably, garbled by the exercise of discovering it."

This article seems like the introduction to a seminar on the philosophy or history of law, the sort of class that I signed up for whenever I could, back in the day, when I had professors like John Simmons and Charles McCurdy.

On launching out into the deepest waters

A few days ago, Mitt Romney gave the commencement address at Southern Virginia University, as shown here, and advised the graduates to go out into the deep waters, like Jesus instructed Peter and the other fishermen. In particular, he told them to get married and have children. I can't say that I was trying to keep up with Romney, but I jumped into the deep end in 2011 and married Jill and started living with four step-children, three of them girls. My biggest regret to date is that the oldest - the prom girl in red with her old step-dad - will be gone from our house all too soon, but then again Romney in the same speech declared that is the "new American Dream," getting the children out of the house you own. It has been a few years since I last posed with a high school senior.

On whether a man be an idiot or not

In Ingram v. Com., the Virginia Court of Appeals in a published opinion by Judge Kelsey, joined by Judge McCullough and Senior Judge Haley, disposed of Mr. Ingram's claim that he was entitled to a jury trial on the claim that he should be required involuntarily to undergo psychiatric treatment. In reject Ingram's claim, Judge Kelsey noted the following:

"Though wholly unrelated to claims for monetary damages, the ancient common law writ of 'de idiota inquirendo' authorized juries to 'inquire whether a man be an idiot or not' and, if so, to transfer 'the profits of his lands and the custody of his person' to the king or his designee. 1 William Blackstone, Commentaries on the Law of England *303. A similar writ could be issued against a 'non compos mentis,' described in the common law as a mere 'lunatic' who 'by disease, grief, or other accident, hath lost the use of his reason' yet still has 'lucid intervals.' Id. at *304.

These common law writs, however, have little in common with a Code § 37.2-1101 proceeding."

Many is the case in which it might have been asked whether I or other counsel or a litigant or witness whether he "be an idiot or not."

Today Provo, tomorrow the world

This article explains how Google plans to take over wireless internet access from the telcos, one Google Fiber home at a time.

On Judge Lynn Brown

The Johnson City paper has this entertaining story on the retirement of Judge Lynn Brown from Northeast Tennessee.

One of those stories told was this: "Another memorable case was the two murder trials of Steven Allen Jones, who was convicted both times . . . . Jones became enraged after the second conviction and Brown ordered him gagged. The bailiffs used defense attorney Gene Scott’s spare tie as the gag."

On backdating

I heard of a case not too long ago where someone raised a fuss about a transaction where documents were "backdated." Backdating is surely neither good nor bad in itself without more facts, such as the intent to deceive or the opposite. Dealing broadly with this topic is this interesting article published in the ABA's Business Lawyer in 2008, which you can download for free from SSRN.

On appeals from district court to circuit court

With the elimination of the Circuit Court's removal jurisdiction and the increased jurisdictional limit for actions in General District Court, it seems like more complicated cases get tried in District Court than was the case when I was a young lawyer and anything with much complexity was removed. Clients of lesser means have no choice but to fight out the case in District Court, because a losing defendant generally cannot appeal without posting a bond as required by Va. Code 16.1-107.

We have seen from time to time, for example, the circumstance where the plaintiff in District Court sues more than one defendant. What is the effect of an appeal if the plaintiff gets a judgment against one defendant but not the other? Is it possible, for example, for the plaintiff to appeal as to the one defendant but not the other? The answer in the opinions I have seen is no, the nature of the de novo review in Circuit Court means that the whole case with all parties is appealed, and the appellant must take the bitter with the sweet and face retrial as to every issue and every party. See Khan v. Washington, 74 Va. Cir. 95 (City of Alexandria Cir. Ct. 2007) ("the appropriate circuit court has appellate jurisdiction over all the parties to the pending case"); Hansen v. McFarland, 27 Va. Cir. 383 (City of Richmond Cir. Ct. 1992) ("an appeal by any party of a district court decision serves to give an appropriate circuit court appellate jurisdiction over any other party against who such an appeal is perfected"); Nanney v. Navy Car Storage, Inc., 7 Va. Cir. 397 (City of Norfolk Cir. Ct. 1969) (defendant "is entitled not only to a review of plaintiff's judgment against it but also the finding of the court in favor of the [other] defendant . . . "); Grinnell Fire Protection Systems Co. v. Sills, 3 Va. Cir. 489 (City of Alexandria Cir. Ct. 1979) (holding that the appeal from General District Court "brings the entire case and all of the defendants" before the circuit court).

Suppose the plaintiff decides the appeal was a mistake? Claims before a Circuit Court for de novo review on appeal from a District Court can be non-suited, but then can only be refiled in the same Circuit Court. Davis v. County of Fairfax, 282 Va. 23, 710 S.E.2d 466 (2011). The effect of the nonsuit would be that the district court judgment is lost, as if the case had never been filed. He can withdraw his appeal, subject to the provisions of Va. Code 16.1-106.1. Section 16.1-106.1 deals separately with appeals from general district court and from juvenile and domestic relations district court, but the gist is that the circuit court is supposed to dispose of the appeal consistent with the district court judgment.

Suppose a defendant brings the appeal? A defendant cannot take a nonsuit. “Nonsuit remains,” the Supreme Court has explained, “distinctly a weapon in the arsenal of a plaintiff.” Trout v. Commonwealth Transp. Com'r of Virginia, 241 Va. 69, 73, 400 S.E.2d 172, 174 (1991). An appellant who is not a plaintiff cannot nonsuit an appeal. See Anonymous C v. Anonymous B, Record No. 2232-09-2, 2011 WL 65957 (Va. Ct. App. Jan. 11, 2011). The defendant who appeals to Circuit Court can only seek to withdraw the appeal.

News of the General Assembly session

I can't say that I was paying too much attention to this year's session of the General Assembly, before the redistricting maneuver in the Senate and the proposed electoral college bill sponsored by our own Senator Carrico became part of the national discussion that percolated down to my attention.

Evidently, there is a lot going on, and here is some of what I have been missing:

1. Some legislators want the DMV to study putting barcodes and/or RFIDs on license plates, as reported here. The summary of the DMV report is here. Maybe by the time the youngest step-daughter is driving, if she stays out too late I can just call up the DMV to tell me where she is, if they are tracking us all by then.

2. The Rutherford Institute is backing proposed legislation to lessen the regulatory burden on homeowners and small farm owners who want to raise food for themselves and their friends, as shown here. We have a can of unlicensed green beans at the house, I hope that is not a problem.

3. The City of Bristol is pushing a new law to allow it to recoup its investment in the new construction at Exit 5 through the sales tax from the new stores in that area, as shown here. I hope that the stores get built and the City gets its money back.

4. The newspaper trade association is opposing legislation that would allow localities to publish notices online instead of the classified ads in newspapers, as shown here. I guess they will agree the time has come for this change when there are no more printed newspapers. Coincidentally, the Cavalier Daily announced that it would discontinue its printed daily edition after 130 years.

5. Tazewell County have established a ridgeline protection ordinance to keep out wind power generation, a senator from the Tidewater is proposing a state law that would preempt the county ordinance, and the Bluefield paper is opposed, as shown here. The bill was stricken.

6. The Virginia Bar Association has endorsed a bill that would permit the members of a limited liability company to provide in their operating agreement that assigned membership interests would have the power to participate in the management of the LLC, which change would overrule the Supreme Court's holding in Ott v. Monroe. In the Ott case, the interest passed on the death of a member, and the Court held that the transferee had no management rights, notwithstanding the express language of the operating agreement between the members.

7. The General Assembly appears be on track to end the criminalization of cohabitation. I think this will finally overrule the "public policy" behind the Mitchem case, which has bothered me for years.

8. The General Assembly reappointed the first openly gay member of the judiciary, and might act against discrimination in state employment. It is absurd to think that anyone would tolerate discrimination that would exclude good people willing to serve in the public sector.

9. Senator Northam proposes to criminalizes smoking with children in the car. The bill has passed the Senate.

10. The House of Delegates rejected the views of Governor McDonnell and others in refusing to allow the restoration of civil rights to non-violent felons. This was a mistake that will fuel the perception that Republicans are out to keep non-Republicans from voting any way they can.

11. The Virginia Senate has passed the soccer goal safety act, for the purpose of keeping goals from falling on children Unrelated to this, the House has passed legislation regarding the participation of home-schoolers in interscholastic sports.

12. The General Assembly confirmed the reappointment of Helen Dragas, which seems ridiculous to me - some things aren't worth trying a second time. Unrelated to this, the Virginia Senate refused to agree to legislation that would allow the hunting of fast-moving, sharp-toothed beasts on Sundays.

13. The House Courts of Justice committee passed a bill that would prohibit the use of drones by state or local law enforcement in Virginia until 2014 or 2015.

No foolish consistency required

In Farmer v. Commonwealth, the Virginia Court of Appeals in a decision by the panel of Judges Humphreys, Kelsey, and Beales rejected the argument made by a criminal defendant that the Commonwealth violated his constitutional guarantee of Due Process by prosecuting him on a theory that was inconsistent with the Commonwealth's theory of the same crime in an earlier case against someone else that resulted in a conviction. In between the two cases, new DNA test results indicated that the second defendant, and not the first, was the principal in the first degree. The decision refused to follow the "overly broad holding" in Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000).

Fun fact of the day

"Coal-fired generation in the United States increased 6.2 percent compared to November 2011. This was the first year-over-year increase since coal-fired generation increased 0.5 percent from December 2009 to December 2010." - U.S. Energy Information Administration, monthly update for January 2013.

Opinions like this are worrisome

Here, the Supreme Court dismissed an appeal on finding a failure to preserve error, where the defendant at the trial argued that the search violated the Fourth Amendment, making some argument about whether the stolen property in his backyard was in "plain view," but the Court concluded his argument to the trial court did not match his argument to the appeals courts and he did not "cite any cases" in the trial court that dealt with the particular aspect of the "plain view" doctrine that he sought to raise in the appeals court.

Any time an appeal raising constitutional issues is dismissed because of what case law the trial counsel cited or did not cite, I have to wonder what's going on. In my opinion, it is not necessary to cite any cases to comply with Rule 5A:18.

More on "pleaded" v. "pled"

The ABA Journal had this piece on whether the preferred usage is "pleaded" as opposed to "pled." In 2008, I wrote this post, noting that one local judge frequently goes both ways in the same opinions.

Subsidizing NASCAR?

This article in the New York Times reports on the continuation of a statute allowing accelerated depreciation of investments in NASCAR and other auto racing tracks.

On Judge Williams

This post contains the text of a speech I gave about Judge Glen Williams in 2002. I went to his funeral a few weeks ago and did nothing really to comfort anyone, absorbed instead with my own thoughts about how my own life has been affected by having him as an employer, mentor, and friend. There have been many times when I have tried to get through the dilemmas of the moment by asking myself what would he think, how would this argument work with him, would this make sense to him. Sometimes I went so far as to call him up and ask him directly, but even when I did not, I could hear his voice in my head: "Steve, all in the world there is to this . . . ." I'm glad he is past the sufferings of age and illness, but I will miss him for the rest of my days.

On the need for more discovery in criminal cases in Virginia

The Washington Post had this recent editorial, which concluded that Virginia law should be changed to allow for wider rights of discovery for defendants in criminal cases.

It says in part: "A proposal by Virginia defense lawyers would compel prosecutors to grant defendants and their attorneys readier access to police reports following indictments, including witness statements in the aftermath of alleged crimes. That seems reasonable, provided that prosecutors are able to withhold the identity of certain witnesses out of concern for their safety."

Latest in a long line of wrongful wrongful discharge cases

In VanBuren v. Grubb, the Supreme Court in a 4-3 decision held that individuals other than an employer can be liable in tort for wrongful discharge. The decision makes a major change in Virginia law for the purpose, it seems, of making sure that bad apples like Dr. Grubb get to be punished in court.

The history in Virginia of wrongful discharge claims based on sex discrimination is complex. At one time, Virginia plaintiffs based wrongful discharge claims on the public policy against employment discrimination contained in the Virginia Human Rights Act. The VHRA prohibits employment discrimination based on "race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability." Va. Code § 2.1-715. A divided Supreme Court recognized a wrongful discharge claim based on the VHRA. See Lockhart v. Commonwealth Educ. Sys. Corp., 247 Va. 98, 439 S.E.2d 328 (1994). In response, the General Assembly deliberately modified the VHRA, to rule out any claims based not only on the VHRA itself but on any other statute reflecting the same policies as the VHRA. Va. Code § 2.1-725(D). The Supreme Court applied the amendment as the legislature intended in dismissing a number of wrongful discharge claims See Conner v. National Pest Control Ass'n, 257 Va. 286, 513 S.E.2d 398 (1999); Doss v. Jamco, 254 Va. 362, 492 S.E.2d 441 (1997).

The plaintiff in Mitchem v. Counts claimed that she was discharged because she refused to engage in unlawful sex with her employer. She based her claim not on the public policy against discrimination in employment, but rather on the public policy supporting the criminal statutes prohibiting assault and fornication. Another divided court approved this reasoning, despite the transparency of the plaintiff's rationale as a means to avoid the clearly expressed intention of the legislature in the amendments to the VHRA. In Mitchem, the majority reasoned that the public policy against fornication and other unlawful sexual acts stood separate and apart from the public policy reflected in the VHRA. The three dissenting justices pointed out that plaintiff's claim was no more or less than the type of claim outlawed by the legislature following Lockhart, and chastised the majority for overstepping the bounds of judicial authority in precisely the manner Justice Hassell recognized as improper in his concurring opinion in the Conner case.

Some years later, in Martin v. Ziherl, the Virginia Supreme Court overruled its decision in Zysk v. Zysk and held that a Virginia plaintiff is not prohibited by the illegality of fornication from suing his or her partner for giving him or her venereal disease. I complained about this decision at the time, but concluded that "this Martin case is officially the death of at least part of the much-maligned Mitchem decision, the wrongful discharge case based on the fornication statute." See Torabipour v. Cosi, Inc., 1:11-CV-1392 GBL/TCB, 2012 WL 2153168 (E.D. Va. June 12, 2012) ("The Court holds Plaintiff Torabipour fails to state a claim for wrongful termination because section 18.2–344 has been invalidated under the Fourteenth Amendment of the U.S. Constitution.").

Evidently I was wrong. Notwithstanding Martin, the Court in VanBuren had no problem concluding that "lewd and lascivious cohabitation" remains an enforceable crime in the Commonwealth. This seems like a surprising outcome to me - if someone was actually prosecuted for "lewd and lascivious cohabitation," it seems likely to me based on Martin that the crime of cohabitation would go the way of the crime of fornication in the Commonwealth. The theory of Mitchem fails once the criminal statutes on which it is based "have been invalidated." The Eastern District has rejected this argument, however - see Mercado v. Lynnhaven Lincoln-Mercury, Inc., 2:11CV145, 2011 WL 5027486 (E.D. Va. Oct. 21, 2011) (refusing to find the cohabitation statute unconstitutional) - and evidently now the Virginia Supreme Court has, too.

He said it

“You kind of expect your soldiers to go home at night and play Xbox and drink beer — which they do — but I’ve heard them talk about [the election] quite a bit,” the Army captain said. “They’re more dialed in than some might think.”

Military Times, "Military Times Poll: Romney bests Obama, 2-1," October 7, 2012.

On having Mitt Romney at Exit 13

Last Friday, I went with the girls to the Coal Country rally for Mitt Romney, and spotted my dad on the other side of the walkway. In this picture, my dad is taking a picture of Mitt Romney. Romney gave his standard stump speech, modified only to add emphasis on coal and to take out the reference to the unemployment rate as more than 8 per cent, on account of the new figures that came out that day.

On the Rules of Evidence

The Charlottesville paper has this article on how the adoption of the Virginia Rules of Evidence was a long-term project for law professor Kent Sinclair.

It begins: "A University of Virginia law professor spent 18 years sorting through centuries worth of case law to develop the Virginia Rules of Evidence, a comprehensive guide to govern the admission of evidence in civil and criminal trials across the state."

Interestingly, I never noticed before today that the new and improved version of Va. Code 8.01-3, dealing with the Rules of Evidence, includes this proviso: "The General Assembly may, from time to time, by the enactment of a general law, modify or annul any rules adopted or amended pursuant to this section. In the case of any variance between a rule and an enactment of the General Assembly such variance shall be construed so as to give effect to such enactment."

On getting the lower court to do what the higher court decided

A traditional office of the writ of mandamus is to "'confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.' " Will v. United States, 389 U.S. 90, 95 (1967) (quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943)). Mandamus to compel an inferior court to follow an appellate mandate is closely related to the doctrine of law of the case. Litigants who have proceeded to judgment in higher courts "should not be required to go through that entire process again to obtain execution of the judgment." General Atomic Co. v. Felter, 436 U.S. 493, 497 (1978). The Supreme Court long ago emphasized that when acting under an appellate court's mandate, an inferior court "is bound by the decree as the law of the case; and must carry it into execution, according to the mandate. That court cannot vary it, or examine it for any other purpose than execution." In re Sanford Fork & Tool Co., 160 U.S. 247, 255 (1895).

The same principles apply in Virginia state court. Mandamus is available to get lower courts to do what they should do. In re Commonwealth, 278 Va. 1, 22, 677 S.E.2d 236, 246 (2009) (mandamus directed to an inferior court “may be appropriately used and is often used to compel courts to act where they refuse to act and ought to act ...”); Page v. Clopton, 71 Va. (30 Gratt.) 415, 418 (1878) (mandamus "may be appropriately used and is often used to compel courts to act [when] they refuse to act and ought to act, but not to direct and control the judicial discretion to be exercised in the performance of the act to be done; to compel courts to hear and decide where they have jurisdiction, but not to pre-determine the decision to be made; to require them to proceed to judgment, but not to fix and prescribe the judgment to be rendered."). A ministerial act is “one which a person performs in a given state of facts and prescribed manner in obedience to the mandate of legal authority without regard to, or the exercise of, his own judgment upon the propriety of the act being done.” Dovel v. Bertram, 184 Va. 19, 22, 34 S.E.2d 269, 370 (1945). Under the “mandate rule,” a “trial court has no discretion to disregard [a] lawful mandate.” Rowe v. Rowe, 33 Va. App. 250, 257, 532 S.E.2d 908, 912 (2000), quoted in Powell v. Com., 267 Va. 107, 127-28, 590 S.E.2d 537, 549 (2004). The “mandate rule” is “merely a ‘specific application of the law of the case doctrine,’” and “in the absence of exceptional circumstances, it compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court.” United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993), cited in West v. West, 59 Va. App. 225, 230-31, 717 S.E.2d 831, 833 (2011).

We first heard the term "mandamus" in junior high civics, in connection with the case of Marbury v. Madison. Marbury wanted the writ to issue against Madison, requiring him to come across with Marbury's commission. Curiously, the Virginia rules require a different style for petitions for writ of mandamus against a judge: "A petition for writ of mandamus or writ of prohibition against a judge shall not bear the name of the judge but shall be entitled, 'In re , Petitioner.'" Rule 5:7(b)(4), Va. S.Ct.

On second depositions

Back in the day, I had a case that got tried a couple of times, various weird things happened in between the trials, and the magistrate judge ruled that my client had subject himself to a third deposition. While the case was going on, in 1993, Rule 30 of the Federal Rules of Procedure was amended to provide that leave of court was required to take a deposition if the deponent had already been deposed in the case. Rule 30(a)(2)(A)(ii), F.R.C.P. In 2000, Rule 30 was further amended, to provide that "a deposition is limited to 1 day." Rule 30(d)(1), F.R.C.P. The result is that in the absence of agreement, leave of court is always required for a second (or third) deposition of the same witness.

A few years later on, I had another case where the Magistrate Judge, affirmed by the District Judge, ruled that my clients should be deposed a second time. So we argued that at least the subject matter of the second depositions should be limited to new matter, citing Judge Urbanski's decision in Schwarz & Schwarz of Virginia, L.L.C. v. Certain Underwriters at Lloyd’s, Civil Action No. 6:07cv042, 2009 WL 1913234 (W.D. Va. July 1, 2009). In the Schwarz case, the poor fellow had been depose once, given a recorded statement, and suffered through an examination under oath.

The Schwarz & Schwarz case fit with other decisions we found. “Several courts faced with similar situations have granted a party the right to take a second deposition, but have limited that deposition to matters not addressed in the first deposition.” Christy v. Pennsylvania Turnpike Com’n, 160 F.R.D. 51, 53 (E.D. Pa. 1995) (citing cases). See also San Francisco Bay Area Rapid Transit Dist. v. Spencer, 2006 WL 2734289, 2 (N.D. Cal.) (limiting scope “to those areas not already covered in the previous depositions.”); Collins v. International Dairy Queen, 189 F.R.D. 496, 498 (M.D. Ga. 1999) (“these supplemental depositions should not involve substantial repetition of questions previously asked and answered and instead should focus on subjects not previously inquired about and facts or alleged facts and developments since their initial depositions.”); Schbley v. Gould, 1993 WL 135427, 1 (D. Kan.) (“The general rule adhered to by this court is that depositions of witnesses or parties already deposed will be permitted, but their depositions should be limited to those areas not covered in the earlier depositions.”); Perry v. Kelly-Springfield Tire Co., Inc., 117 F.R.D. 425, 426 (N.D. Ind. 1987) (“The second deposition of the plaintiff shall be limited to those areas not covered during the initial deposition.”).

This week we had a "discovery" deposition in a state court case; plaintiff's counsel said he would decide later whether he would re-depose the doctor "for trial." Neither the 1993 nor 2000 amendments to Rule 30 were ever adopted into the Virginia rules. Doctors are regarded as unavailable under the Virginia rules, Rule 4:7(a)(4)(e), and so their testimony is generally given by deposition. As Judge Welsh observed, "the use of trial depositions (both video-taped and stenographic transcriptions), taken after the close of pretrial discovery, have been routinely used efficiently and effectively for many years, both in this court and in the state courts of Virginia." Lucas v. Pactive Corp., No. 5:08cv00079 (W.D. Va. Dec. 22, 2009). Notwithstanding the common practice, "[t]here is no statute or Rule of Court specifically authorizing a de bene esse deposition." Boyer v. Dabinett, 74 Va. Cir. 19, 24 (City of Winchester Cir. Ct. Feb. 28, 2007). It is not obvious that a litigant is entitled to a second deposition of any witness, as a matter of right, or that the first deposition of a physician is any less "for trial" than a second one would be.

On Bullitt Park

The other weekend, I went to the football game at Bullitt Park in the company of my oldest step-daughter, who realized what an odd character I am for the umpteenth time when I explained to her that the park was named for a lawyer, Joshua Fry Bullitt, Jr., whose biography on Wikipedia I wrote myself. Below are pictures of the park and the man himself.

On Judge Joe Tate

In today's e-mail was a letter circulated to members of the Bristol Virginia Bar, from Judge Tate, indicating that he would retire in January after more than twenty years as General District Court Judge for the 28th District.

When I was a brand new lawyer, Judge Tate came around to the law firm to talk about the judgeship he was then seeking, and I asked him why would he want to be a general district court judge. It was a good thing that he did. He is a delightful, smart man who did a great job for us.

When I got married last year, the first person I saw in downtown Marion the next day was Judge Tate, who was well and truly amused by my answer when he asked how I was doing.

On Bill Poff

I read in today's Roanoke paper of the passing of William B. Poff, the distinguished lawyer from Roanoke. I had only a few professional dealings with him, but he knew who I was (he knew a lot of things), and he was a big friend of my partner down the hall, Lucas Hobbs, one of his many proteges.

Mr. Poff was interesting to me because my grandmother's maiden name was Poff, and so I tried to figure out if we were related. My grandmother denied that there was any connection, and so did he, and they both claimed that we were no kin to Justice and Congressman Richard Poff, either. Even so, Bill Poff the lawyer once represented by mom's uncle Bill Poff.

Bill Poff was also interesting to me because the judicial nomination that he did not get is the one that went to Judge Williams, my old employer. The ebb and flow of that judicial nomination was an extraordinary process of which many tales have been told. It was an unlikely way for Mr. Poff to make the history books, as the second of two nominees to the United States District Court for the Western District of Virginia who were not confirmed by the U.S. Senate.

On Judge Chafin's investiture

I enjoyed seeing the crowd and hearing the speeches at the event for Judge Teresa Chafin in Lebanon yesterday. The local legislators on the program directed their remarks to the long and difficult process that ended with her selection from among a group of well-qualified candidates in a late-night vote. It is difficult from the outside to imagine how much time and effort were required to make the case for a judge from the 29th Circuit for a statewide position.

Judge for the 29th Judicial Circuit- Jack S. Hurley, Jr.

Governor McDonnell announced on Friday that he was appointing Judge Hurley to the 29th Circuit vacancy, replacing Judge Chafin now of the Virginia Court of Appeals. The Governor's announcement included this biography:

"Jack S. 'Chip' Hurley, Jr. was elected to the General District Court in the 29th Judicial Circuit by the Virginia General Assembly in 2005 and currently serves as the chief judge. Prior to taking the bench, he practiced law in Southwest Virginia for 19 years, serving as a prosecutor for the Town of Tazewell and Bland County and in private practice. He is active in his community and a past officer of many civic and professional organizations. He has also been an instructor at several educational institutions, including Bluefield College. He is a graduate of Davidson College in North Carolina and T.C. Williams School of Law at the University of Richmond. He lives in Bluefield with his wife, Julie, and is the father of one daughter and one son."

On double recovery

The upcoming investiture of Judge Teresa Chafin to the Virginia Court of Appeals makes me think about what a pleasure but also a challenge it must be for her to join a court with the likes of Chief Judge Felton, Judge Humphreys, Judge Kelsey, and Senior Judges Baumgardner and Annunziata.

Also, it makes me think of a case she decided once where the issue was the extent to which, if any, the settlement between a truck owner and the repair shop over a claim related to the repair of an engine would bar the truck owner's recovery from the manufacturer for breach of warranty, where the manufacturer claimed the injury and damages for both claims were the same - a bad engine.

So, the manufacturer argued that the settlement with the repair shop gave the truck owner a single satisfaction and the owner was not entitled to a double recovery, citing Nizan v. Wells Fargo. In Cauthorn v. British Leyland, U.K., Ltd., 233 Va. 202, 355 S.E.2d 306 (1987), the Supreme Court held that “where there is one indivisible injury, as here, for which settlement has been consummated, unconditional release of one allegedly liable for the injury bars recovery against others also allegedly liable, regardless of the theory upon which liability is predicated.” 233 Va. at 207, 355 S.E.2d at 309. The same rule was applied in Cox v. Geary, 271 Va. 141, 624 S.E.2d 16 (2006), in an opinion by Justice Kinser. The point of both cases was that where the relief sought from the multiple defendants is identical, one satisfaction is all the plaintiff can have, regardless of the different legal theories of liability. In Virginia, “a party with two valid causes of action is entitled to ‘seek compensation in each, [but is], nonetheless, estopped from collecting the full amount [of damages] in the second action if they were partially paid therefor in the first.’” Nizan v. Wells Fargo Bank Minnesota National Association, 274 Va. 481, 491, 650 S.E.2d 497, 502 (2007) (quoting Katzenberger v. Bryan, 206 Va. 78, 85, 141 S.E.2d 671, 676 (1965)). “Katzenberger establishes that what is dispositive to a defense of double recovery is whether the damages claimed, on whatever theory of liability, are the same damages. If the element of damages is the same, it makes no difference that the potential payors are not joint tortfeasors or jointly and severally liable under the same theory of liability.” Nizan, 274 Va. at 499, 650 S.E.2d at 506.

Judge Chafin thought this was interesting but too clever, to argue that the settlement with the one defendant had released the other outright. She noted the 2007 amendment to Va. Code 8.01-35.1, which changed the language of the section from "persons liable in tort for the same injury" to "persons liable for the same injury." She held that consistent with that statute, the first settlement did not discharge the second claim, but the amount that could be recovered from the manufacturer would be reduced by the amount of the first settlement. It was a pretty good opinion, I thought, and impressed me quite a bit.

The free speech rights of lawyers to criticize quasi-judicial tribunals

Earlier this week in Berry v. Schmitt, the Sixth Circuit in an opinion by Judge Rogers, joined by Judge Daughtrey, held that the Kentucky Bar Association violated the First Amendment rights of a Kentucky lawyer by imposing a reprimand on him for his comments that were critical of the failure of Kentucky's legislative ethics commission to act against a well-known state legislator. The Bar did not claim that the lawyer made any false statements. The Court observed that "[e]ven assuming that Berry believed that the Commission had broken the law, he provided the public with the facts upon which his opinion relied. The majority distinguished this case from lawyers speaking in the courtroom, or lawyers speaking outside the courtroom in ways that involve the "unmitigated expression of disrespect for the law." The third judge on the panel concurred in the opinion but wrote separately to express his view that the lawyer's case was mostly an exaggeration borne of his "long-running feud" with the Kentucky Bar Association.

The Lexington paper, the Louisville paper, and the Associated Press had articles about the case.

It is impossible to read such a story without recalling the unfortunate Richmond lawyer, who at the time was only a few years younger than I am now, who received a show cause from the Virginia Supreme Court for words he delivered to Justice John Charles Thomas of the Virginia Supreme Court in at a Christmas party in 1987, along with the two other cases described in this VLW article.

When is unauthorized use not "use without authorization"

In WEC Carolina Energy Solutions LLC v. Miller, the Fourth Circuit in an opinion by Judge Floyd joined by Judge Shedd and Senior Judge Hamilton held that the defendant's alleged violation of his former employer's policies against downloading confidential company documents for personal use could not be the basis for a civil action under the federal Computer Fraud and Abuse Act, which provides a civil remedy for violations of the criminal act that defines a crime involving the use of computers "without authorization" or "in excess of authority."

Recognizing a split in the authority from other circuits, the Court joined with the more restrictive Ninth Circuit view stated in United States v. Nosal, 676 F.3d 854, 863 (9th Cir. 2012) and refused to follow the Seventh Circuit view stated in Int’l Airport Ctrs., LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006). The Court concluded: "[W]e adopt a narrow reading of the terms 'without authorization" and "exceeds authorized access" and hold that they apply only when an individual accesses a computer without permission or obtains or alters information on a computer beyond that which he is authorized to access.'"

Interesting, the Virginia Computer Crimes Act, adopted around the same time as the federal act, includes a definition of "without authority" - "A person is 'without authority' when he knows or reasonably should know that he has no right, agreement, or permission or acts in a manner knowingly exceeding such right, agreement, or permission." Va. Code 18.2-152.2. In 2005, the legislature removed the element of "without authority" in the criminal trespass statute, and replaced it with the element of "malicious intent." Acts 2005, c. 812. You'd think that the lack of authority would be the fundamental aspect of a computer trespass but evidently it is too problematic, as evidenced by the Fourth Circuit opinion and the amendment to the Virginia statute. Computer users do things all the time that might be beyond the scope of what they are supposed to be doing. The result is that the criminalization of all computer use beyond the scope of express authority casts too wide a net.

Hey, they spelled my name right

The latest Journal of Civil Litigation put out by the Virginia Association of Defense Attorneys includes an article I wrote on litigating fraud.

The proof they sent named the author as "Stephen."

On appellate procedure in child support enforcement cases

One of my interests of late has been child support enforcement.

Va. Code § 8.01-676.1(D) provides: “The court from which an appeal is sought may refuse to suspend the execution of decrees for support and custody.” By this provision, the General Assembly “specifically has addressed the suspension of a support order pending appeal.” Reid v. Reid, 245 Va. 409, 414, 429 S.E.2d 208, 211 (1993). As then-Judge Koontz wrote in the earlier panel decision of the Court of Appeals in the Reid case, “This statute reflects the legislative recognition that compelling public policy reasons exist to cause the judgment for support to remain in effect and unabated during the pendency of an appeal.” Reid v. Reid, 12 Va. App. 1218, 1232, 409 S.E.2d 155, 163 (1991). Consistent with the language of the statute, and the “compelling public policy” that supports it, the trial court can refuse to stay its orders while the appeal is pending. See Holzberlein v. Holzberlein, Record No. 0089-05-4, 2005 WL 1943240, *2 (Va. App. Aug. 16, 2005) (affirming denial of husband’s supersedeas bond motion). In the absence of a supersedeas bond, while an appeal of a child support order is pending, the lower court may not modify but may enforce the existing order. Howell v. Com. of Virginia, DCSE, ex rel. Fisher, No. 0123-01-2, 2001 WL 1359847, *2 (Va. App. 2001) (citing Decker v. Decker, 17 Va.App. 562, 564, 440 S.E.2d 411, 412 (1994)).

But what is a "decree for support"? Is it the judgment for the arrearage, which seems like a fairly ordinary money judgment, or is the judgment that establishes the ongoing monthly obligation, or both? The Court of Appeals has recognized that there is a difference between the two. At least with regard to spousal support, "the distinction that must be drawn between a spousal support order that establishes an ongoing, unliquidated support obligation and one that establishes a sum certain or liquidated amount due and owing at a particular time for purposes of the proper application of Virginia law to Virginia spousal support orders." Bennett v. Com., Dept. of Social Services, Div. of Child Support Enforcement ex rel. Waters, 15 Va.App. 135, 144, 422 S.E.2d 458, 463 (1992). In Bennett, the Court held that there was no time limit in which to bring an action to obtain an money judgment for an arrearage, but there was a time limit for enforcing the judgment for the arrearage, in the context of a support award from another state.

If the obligation to pay is not suspended, and the appellant tries to pay and proceed with the appeal, there is the risk that the effect of payment will be to render the appeal moot. See Briggman v. Com., Record No. 1911–09–4 (Va. Ct. App. Apr. 10, 2010) (dismissing child support appeal for mootness on account of payment); Walthall v. Com., 3 Va. App. 674, 353 S.E.2d 169 (1987) (dismissing child support appeal for mootness on account of payment). Further, it is likely that if he pays then he has no argument for restitution, even if he wins on appeal. Nordstrom v. Nordstrom, 50 Va. App. 257, 266, 649 S.E.2d 200, 205 (2007) (“a trial court has no statutory or inherent authority to order restitution of child support”); Meyers v. Meyers, No. 1920-03-4, 2003 WL 22887920 (Va. App. Dec. 9, 2003); Summers v. Summers, No. 2759-98-4, 1999 WL 1129977, *3 (Va. App. June 15, 1999); Wilson v. Wilson, 25 Va. App. 752, 760, 492 S.E.2d 495, 499 (1997) (in dicta, rejecting claim for restitution); Beckwitt v. Beckwitt, No. 1523-92-4, 1993 WL 381451, *4 (Va. App. Sept. 28, 1993) (upholding denial of restitution). These cases follow Reid, in which the Supreme Court held that there is no “statutory provision for restitution of support paid pursuant to an order that is later reversed,” and that there is no inherent power to order such restitution. 245 Va. at 415, 429 S.E.2d at 211. In Reid, the issue before the Court was spousal support, but the statute the Court addressed, section 20-112, applies equally to “support for a spouse or for a child.”

Even where the trial court agrees to set the bond, there is some ambiguity as to the proper amount. Section 8.01-676.1(C) provides: “An appellant who wishes execution of the judgment or award from which an appeal is sought to be suspended during the appeal shall . . . file an appeal bond or irrevocable letter of credit conditioned upon the performance or satisfaction of the judgment and payment of all damages incurred in consequence of such suspension.” This language “does not give the trial court discretion to set an appeal bond in an amount less than the judgment.” Tauber v. Com. ex rel. Kilgore, 263 Va. 520, 545, 562 S.E.2d 118, 132 (2002). The bond should be set high enough to include interest under Va. Code 8.01-682, the $50 fee under Va. Code 17.1-624, and printing costs under Va. Code 17.1-605 and Rule 5A:30(b). See O’Connor v. O’Connor, No. 2299-02-4, 2003 WL 22887978, *5 (Va. App. Dec. 9, 2003) (affirming supersedeas bond of $10,000 on judgment amount of $8,193.54). How is the trial court supposed to figure all that out when the duration of the appeal is unknown? In theory, the appellant can keep on litigating and relitigating the appeal through the Court of Appeals and on to the Virginia Supreme Court for a couple of years. A trial court might act within its discretion to set the bond at the the arrearage plus two years of interest plus the maximum recoverable costs.

Which case says that a hand under the shirt is not a gun?

In Mitchell v. Com., the Court of Appeals in an opinion by Judge Alston joined by Judges Petty and Beales denied relief on what sounded like a plausible appellate issue for failure to cite legal authority.

The issue was whether the defendant could be convicted under Va. Code 18.2-53.1 where a substantive element was that the defendant did "use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner" and the victim did not say that he ever saw a firearm. The appellant cited the language of the statute, and argued:

"In the instant case, the only evidence presented to establish the use of a firearm was the testimony of the clerk that the defendant had his hand under his shirt when he told her to give him the money and there was a protrusion in her direction. Immediately afterwards, the defendant leapt onto he [sic] counter, and with the same hand the clerk testified that he had up under his shirt, grabbed money from the drawer. The defendant never stated he had a gun, no gun was ever seen by either clerk, and the evidence in fact proved beyond a reasonable doubt that he did not have a gun in his hand."

The Court cited several cases, suggesting that counsel could or should have used them in support of the argument. One of them says: "Possession of a firearm is an essential element of the statutory offense, and the fact that Konchal merely thought or perceived that Yarborough was armed is insufficient to prove that he actually possessed a firearm." Yarborough v. Com., 247 Va. 215, 219, 441 S.E.2d 342, 344 (1994). The discussion in Yarborough suggests to me that the issue was one of plain meaning, and that this fellow Mitchell was wrongfully convicted.

Moreover, in my view, a citation to the express language of the Code should often satisfy the requirement under the appellate rules for legal authority, when the argument is based on the plain meaning of the statute and identifies the statutory element that was not proven. The need for case law would arise only where the tools of construction must be applied.

As Judge Posner once famously explained, in the context of qualified immunity for public officials under section 1983, where the state of law is an issue: "The easiest cases don't even arise. There has never been a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages liability because no previous case had found liability in those circumstances." K.H. Through Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990). You shouldn't need a case to make the point that a hand under a shirt is not a pistol, shotgun, rifle, or other firearm.

ESI opinion from Judge Jones of the W.D. Va.

In Adair v. EQT Production Company, Judge Jones overruled objections to Magistrate Judge Sargent's ruling, but modified it, where the subject matter was EQT's obligation to produce 370 GB of e-mails. Judge Jones agreed that EQT would have to produce certain segments of the e-mails, screened for specified search terms to increase the changes of avoiding privileged documents, but without screening by humans.

The Court explained:

"EQT’s position is that the only reasonable search for privileged and responsive documents is done by human beings on an individual document basis. As the bulk of trending case law and the recent amendments to the rules indicate, this is an untenable position."

Electronic appendices

The Fourth Circuit has given notice that the rules are being changed to require the appendix be filed in electronic form, in its entirety or in the form of an "excerpt" containing specified documents. How long will it be before that Court dispenses with paper filing?

Victory of the blue pencil, and how broccoli trumped wheat

We read in contract law, especially in Virginia, that the parties have freedom of contract and the courts do not get to make new contracts for the parties. In some other states, in some kinds of cases, courts are allow to enforce contracts to the extent that they are reasonable. The figure of speech for this sort of judging is the blue pencil.

Chief Justice Roberts took the blue pencil to the Affordable Care Act this week, in the National Federation of Independent Business v. Sebelius. He whacked out some bits and rewrote others, upholding the "mandate" on what the ABA Journal has noted was the "Solicitor General's third backup argument" that barely made it into the argument or the briefs. The characterization of the mandate as a "tax" was what led the Fourth Circuit to bypass the merits in one of its earlier panel decisions, because of the Anti-Injunction Act, in Liberty University v. Geithner.

It has been reported this week that Chief Justice Roberts fashioned himself after Justice Robert Jackson, who is one of my favorites, too. (My favorite story about Justice Jackson is retold here.) Justice Jackson's most famous opinion, I suspect, was his opinion for the Court in Wickard v. Filburn, upholding the Agricultural Adjustment Act as a valid exercise of Congress's power to regulate interstate commerce. Wickard is referenced at least 25 times in the Affordable Care Act opinions. Wickard was a case about wheat growing. Chief Justice Roberts' opinion imposes a new limit on Wickard where common wisdom supposed there was none.

Chief Justice Roberts rejected the Affordable Care Act as a valid exercise of the Commerce Clause, buying into what Justice Ginsburg called the "broccoli horrible" - and so the broccoli references (I counted 12) are second only to the wheat references (25) in the several opinions. Putting Wickard and Sebelius together, I conclude that the Interstate Commerce Clause allows Congress to prohibit you from growing your own vegetables, but does not allow Congress to pass a law that would punish you for refusing to eat them.

End of term fever

The Supreme Court issued four opinions today, but not the one that everyone was waiting for.

In Arizona v. U.S., the Court held that three provisions but not all of the Arizona statute dealing with illegal immigrants was preempted by federal law. Justices Scalia, Thomas, and Alito concurred in part and dissented in part in separate opinions.

In Miller v. Alabama, the Court by 5-4 vote struck down life sentences without the chance of parole for juvenile offenders. The dissenters pointed out that this is another in an increasing line of Eighth Amendment cases where the Court is just making it up based on its own reckoning of society's standards.

In Southern Union v. U.S., the Court held that the protections of the Sixth Amendment, that require a jury to make findings on elements of a criminal case that enhance sentencing, extend to matters involving criminal fines. In that case, the Defendant was fined $50,000 for 762 days for a continuing environmental law violation. The Defendant argued that the jury verdict had not necessarily determined a violation on more than one day.

Finally, in American Tradition Partnership v. Bullock, the Court summarily overturned a state court decision that corporations have no First Amendment rights in connection with campaign finance, citing Citizens United.

Of these, the one that is the least supportable is the Alabama case. It seems unreasonable to decide what is cruel and unusual based on a head count of what the different states are doing, and even more unreasonable to conclude that what 29 states are doing does not comport with the "evolving standards of decency." Justice Alito pointed out in his dissent, who says we are becoming more decent over time anyway?

On transfer orders

I have been studying venue motions in state court lately.

One question is, what if the transferor court got it wrong, is it possible to file a motion to reconsider?

The answer from most places is yes, the transferor court still has the power to reconsider the transfer order even after it has been entered, at least until the transferee court takes jurisdiction of the case.

But when does the transferee court take jurisdiction?

The answer from most places is, when the transferee court gets the file and dockets the case. There do not seem to be any Virginia cases on point.

Can a transfer order be appealed?

The answer to whether the transfer order is appealable is mixed, perhaps because some courts have more liberal rules about the appeal of interlocutory orders than others. Notionally, a transfer order leaves the whole case to be decided, and so it seems unlikely that it would ever be considered a "final" order. See Ferguson v. Carson, 235 S.W.3d 607 (Mo. App. 2007); State ex rel. Lyons v. Zaleski, 75 Ohio St.3d 623, 665 N.E.2d 212 (1996). Even so, in some places it is considered final, in the limited sense that the transferor court is through with the case. See DiNapoli v. Kent Island, LLC, 203 Md.App. 452, 38 A.3d 509 (2012).

The closest Virginia cases deal with transfer of cases from the law side to the equity side, and remarkably there is a case or two that says the transfer from one side of the court to the other is an appealable order, even if it is not final. The continuing validity of these precedents is suspect.

More on the new judges

The Bristol paper had this article on the investiture of Judges McKinney and Simmons. Next week is the same again for Judge Johnson in Circuit Court.

On the new judges

Last night, the General Assembly selected the following:

to the Court of Appeals -

The Honorable Teresa M. Chafin, of Russell, as a judge of the Court of Appeals of Virginia for a term of eight years commencing June 1, 2012.

to the Circuit Courts -

The Honorable Marcus H. Long, Jr., of Montgomery, as a judge of the Twenty-seventh Judicial Circuit for a term of eight years commencing July 1, 2012.

The Honorable Sage B. Johnson, of Washington, as a judge of the Twenty-eighth Judicial Circuit for a term of eight years commencing July 1, 2012.

to the General District Courts -

V. Blake McKinney, of Washington, as a judge of the Twenty-eighth Judicial District for a term of six years commencing July 1, 2012.

Clarence E. Phillips, of Dickenson, as a judge of the Thirtieth Judicial District for a term of six years commencing July 1, 2012.

to the Juvenile and Domestic Relations District Courts -

Bradley W. Finch, of Montgomery, as a judge of the Twenty-seventh Judicial District for a term of six years commencing July 1, 2012.

Monica Dawn Cox, of Galax, as a judge of the Twenty-seventh Judicial District for a term of six years commencing July 1, 2012.

Deanis L. Simmons, of Bristol, as a judge of the Twenty-eighth Judicial District for a term of six years commencing July 1, 2012.

That's what the defendant's lawyers are always telling me

A headline from today's VLW daily alert:

"Minor's suit a legal nullity."