Wednesday, August 15, 2007
Wednesday, August 8, 2007
Deciding to take a broad swipe at the transportation bill, attorney Patrick McSweeney, representing eighteen plaintiffs, filed a lawsuit attacking the constitutionality of the transportation bill on many different levels. The article notes that Delegate Robert Marshall, one of the plaintiffs, requested a legal opinion on the new law from the attorney general but did not receive one. The only public response from the attorney general's office on the constitutionality of the new law is that "Virginia's laws are presumed to be constitutional. The Supreme Court of Virginia has concluded that reasonable doubt as to the constitutionality of a legislative enactment must be resolved in favor of its validity." Seems like that answer begs the question.
After Prince William County and Loudoun County passed ordinances to limit services to persons determined to be "illegal immigrants," James City County Supervisors decided to look into the matter. However, county attorney Leo Rogers told the Board that "the cost of such a campaign would outweigh any benefits."
Thursday, August 2, 2007
Although the case was immediately appealed to the Circuit Court, Henrico County Judge Archer L. Yeatts III wrote that he believed the new law was unconstitutional, "A 'dangerous' driver is a 'dangerous' driver, whether he or she is a life-long resident of Virginia or simply passing through on his or her way to another state or country."
Tuesday, July 31, 2007
We missed it, but the SW Virginia law blog noted that the Virginia Lawyers Weekly blog had linked to this article describing how the Justice Department dropped the criminal investigation into the fall of the Reciprocal of America, the former insurer of choice for Virginia lawyers and doctors. We had posted in April about this possibility following an article on the case that appeared in Virginia Lawyers Weekly.
Virginia attorney Bob Battle announced that he is supporting a petition to repeal the civil remedial fees imposed by the General Assembly and has designed a tee shirt: Virginia is for speed traps. Meanwhile, more legislators say they will support a repeal of the law.
Monday, July 30, 2007
The statement of facts presented to the court is pretty specific and detailed. Included in Paragraph 27 of the statement is the allegation that the Bad Newz Kennels hosted a dog fight involving a pit bull owned by an unnamed person from Williamsburg.
Friday, July 27, 2007
Boston law firm Choate Hall & Stewart has a number of cool recruiting videos here. The videos are derivative of the Mac v. PC commercials (do lawyers do anything that isn't derivative?) but are short enough to keep your attention, and are well made. From Ben Glass' website is a link to this video on tort reform from the plaintiffs' bar perspective. Ben himself has several YouTube marketing videos like this one.
Wednesday, July 25, 2007
This article in the Washington Post, which was referenced in a comment to one of our earlier posts, includes additional details supporting much of what we wrote: much of the money is not collected, leading to additional license suspensions "creating a permanent underclass;" in New Jersey (and Michigan as we noted) studies showed that "there is no way to determine whether the fees 'conclusively impact highway safety;'" Michigan "has issued 750,000 suspension notices for failure to pay the fees;" and a Michigan judge said that prior to passage of the bill he "e-mailed all 140 legislators [in the General Assembly], explaining why he thought the program was a failure in Michigan." A study commissioned in New Jersey in response to complaints about the program found the fees disproportionately effected lower income residents, but the recommendation was not to abandon the program because "it's an integral part of New Jersey's finance system." Henry County Commonwealth's Attorney Bob Bushnell said "The way this thing works out, it is going to have an absolutely ruinous effect on financially challenged Virginians. . . To my knowledge, no one from the police was consulted. [Commonwealth's Attorneys] weren't consulted. The court clerks weren't consulted. Had it come up, I think the General Assembly would have been aware of all kinds of concerns from Virginians about the unanticipated downside to this program."
In another article, Del. L. Scott Lingamfelter, R-Prince William, now says he opposes increased fees on bad drivers."
A fundraiser for Jin Nam Chung and Soo Chung, the owners of Custom Cleaners, netted $64,000. The Chungs are still waiting the court's decision on whether to award the Chungs their attorneys' fees after prevailing in their case.
Tuesday, July 24, 2007
The office of the Virginia Attorney General filed a lawsuit against Financial Alternatives, Inc. The AG alleges that the company entered contracts with consumers whereby the consumers would pay for computers, but the company subsequently failed to deliver the computers.
An employee filed a racial discrimination case against Northrop Grumman. The article states that this company is the second the employee "has sued with racial discrimination allegations in the past several years. . . He [was] one of 26 African-American plaintiffs who sued Liebherr America, a Newport News maker of heavy trucks, for race discrimination." Liebherr paid a hefty settlement claim in that case, and the employee has the same attorney, James H. Shoemaker Jr., of Patten, Wornom, Hatten and Diamonstein, as in the Liebherr case.
Another set of parents has been convicted and sentenced to jail for serving alcohol to underage teenagers at their house.
Resource Bank (now Fulton) filed an amended complaint against Monarch Bank in their dispute.
Monday, July 23, 2007
This study, to be published in the Columbia Law Review, provides some surprising and useful information for criminal defense attorneys. UVA Professor Brandon L. Garrett reviewed the first 200 cases in which DNA evidence exonerated wrongfully convicted defendants. The study is full of disturbing conclusions, but among them are these: 79% of the wrongful convictions were based upon eyewitness identification; "One hundred and ten cases (55%), involved introduction of forensic evidence at trial, with serology analysis of blood or semen the most common (76 cases) followed by expert comparison of hair evidence (42 cases), fingerprint evidence (3 cases), DNA tests (3 cases), bite mark evidence (3 cases), spectrographic voice evidence (1 case), shoe prints (1 case) and fibers (1 case);" and "In thirty-five cases (18%), an informant, jailhouse informant, or cooperating alleged co-perpetrator provided testimony that was false." This study can be an important source to investigate ways in which the criminal justice system can improve.
The Republican primary for the House of Delegates 96th District was close, Sheila Noll lost to Brenda Pogge by 23 votes, and Noll alleges that improper enforcement of voting rules cost her the win in the June 9 balloting. According to Noll, the primary rules were supposed to exclude voters who had voted recently in a Democratic primary. She alleges that the rule was enforced in York County, but not in James City County. In this earlier letter to the editor, Republican candidate for Commonwealth's Attorney Richard Hill implored Noll to support Pogge.
This article profiles a commission that aims to "to cut the state's divorce rate." The executive director for The Family Foundation says that "Everyone agrees there is a problem, and no one is attempting to solve it." Here's the group's position paper which seems to imply even more government intrusion on our lives. Yet, according to the article, "Attorney General Bob McDonnell and Lt. Gov. Bill Bolling have appointed representatives to the commission. Gov. Timothy M. Kaine likely will do the same, said Kevin Hall, the governor's spokesman."
Saturday, July 21, 2007
As we surmised here when Creigh Deeds moved to the Framme Law Firm, the Virginia State Bar retracted LEO 1829. The bar received only 3 requests supporting the change that would permit state lobbyists to be employed in the same law firms as state legislators. Two of those requests came from Kaufman & Canoles, home to Senators Norment and Stolle, and Delegate Oder.
This article suggests that Front Royal's town council will vote to "opt out" from enforcement of the new civil remedial fees statute. That action will certainly generate some litigation, as Attorney General Bob McDonnell said, "We do not believe a locality can get out from a statewide provision."
Friday, July 20, 2007
Yesterday, the Governor and leaders from the General Assembly defended the imposition of civil remedial fees, sample stories are here and here. Their defense focused on the basic premise that civil remedial fees "make the roads safer." First, as we pointed out here, there is no support for that statement. No study has shown that the imposition of civil remedial fees in other states has increased road safety. Second, the spin ignores the first sentence in the new law: "The purpose of the civil remedial fees imposed in this section is to generate revenue." The word "safe" is not found anywhere in the statute. Addressing the "increase safety" argument, we ask again: If the plan achieves something not seen anywhere else and "road safety" increases, in turn decreasing the amount of civil remedial fees imposed and collected, does that mean the transportation bill will be underfunded?
Thursday, July 19, 2007
Lost amongst the uproar of the wrongheaded civil remedial fees is the General Assembly's broad delegation of authority to regional transportation authorities. While the General Assembly contemplates a special session to review the civil remedial fees, the Northern Virginia Transportation Authority has filed this Complaint in the Arlington Circuit Court seeking "judicial authority for the validity" of the various powers delegated to the Authority. The most egregious power granted to the regional authorities is the power "To decide and vote to impose certain fees and taxes authorized under law for imposition or assessment by the Authority, provided that any such fee or tax assessed or imposed is assessed or imposed in all counties and cities embraced by the Authority." Therefore, members of the General Assembly can continue to maintain a "no tax" policy with somewhat of a straight face, because the legislature delegated that authority to several regional authorities composed of unelected board members.
Wednesday, July 18, 2007
Loudoun County became at least the second Virginia locality to "limit illegal immigrants' access to county services and penalize employers who hire them." This issue will continue to simmer, as we noted earlier.
Tuesday, July 17, 2007
We previously sketched an outline of the typical recording industry lawsuit: "(1) the mass lawsuit against a large number of 'John Does'; (2) the "ex parte" order of discovery; and (3) the subpoenas demanding the names and addresses of the 'John Does'." Courts have begun denying the ex parte order of discovery in certain cases. Judge Kelley denied such a request for a subpoena served on the College of William and Mary ruling that the College does not fall within the definition of "cable operator" as set forth in 47 U.S.C. § 522(5), and even if it did, the RIAA could not obtain a subpoena because it is not a governmental entity. As this blog asserts, similar rulings could eliminate the RIAA's ability to obtain a subpoena for such records without providing the potential defendants with an opportunity to contest.
This article details a Williamsburg man who tried to get around the obvious problems of carrying a 10-pound box of marijuana onto an airplane. He purchased the marijuana in California and mailed it to his Williamsburg address. Postal workers in Williamsburg alerted police and arrested the man who apparently confessed to the whole plan.
DC Administrative Judge Roy Pearson's Motion for Reconsideration was denied. However, this case is so far from over, it's only worth a passing mention. The prevailing defendants have a pending motion for the award of attorney's fees, and the District still is considering whether to reappoint Pearson. Pearson will probably appeal every adverse ruling. And so it goes. . . .
Civil Remedial Fees dissension continues to gain momentum. Even Portfolio Weekly, a publication distributed in the Tidewater area primarily highlighting entertainment news, has an article. An internet petition has gathered nearly 100,000 "signatures."
Monday, July 16, 2007
This article profiles Shores of York, billed as "exclusive beachfront home sites near Williamsburg, Virginia." Lot prices start at $899,000, and according to the article, York County Supervisor Walt Zaremba, who also maintains a Williamsburg-area law practice, made the first lot purchase in the new development. Who knew New Kent County had such splendid waterfront property?
This article reviews Virginia's statute providing an inmate the right to file a writ of actual innocence to the Court of Appeals. The article highlights the tension between the "need for finality" in court cases and the rights of innocents wrongly convicted. The article highlights that no writs have been issued either because a) we do not convict innocent people or b) the process is too complicated, depending upon which side of the issue you take. The petition is only available if the convicted person did not plead guilty. As the article highlights, at least two inmates cleared by DNA testing had pleaded guilty, which, but for the DNA testing, would have made this process unavailable to them.
Thursday, July 12, 2007
The Rutherford Institute, a public interest law firm located in Charlottesville, has threatened to challenge the civil remedial fees imposed by the General Assembly. In a letter, Institute president John Whitehead called the fees "a misguided way of pursuing a policy of road improvement, as well as being legally questionable."
Wednesday, July 11, 2007
Without any direction from the federal government, we will see more local ordinances like this one from Prince William. There, county officials can require a person to show evidence of legal immigration status before providing services to that person. Although the chief of police spoke against the proposed policy, in a community where the Hispanic population approaches 20%, illegal immigration is a hot topic.
This article discusses Newport News' approval of photo monitoring equipment at 18 intersections. The article states that "Localities across the region are now eyeing the cameras as a way to make intersections safer." As we pointed out earlier, studies show the opposite, intersections become more dangerous.
Monday, July 9, 2007
The Virginian Pilot wrote about improvements in Virginia's indigent defense system. According to the report card, attorney training and availability have improved. However, disparate resources and workload management continue to pose serious problems with our system.
Using a somewhat unusual strategy, the managers and employees of Resource Bank conducted an interview for an article in the Virginian Pilot. "Unusual" because trial attorneys do not like to see quotes from their clients in the newspaper regarding facts relevant to pending litigation. The article puts forth their case theory that the employees followed the two managers to Monarch Bank from Resource Bank.
Friday, July 6, 2007
Among a new study's findings: "After cameras were installed, total crashes increased. The reason for this increase is that in general—whether cameras are present or not—there are more rear-end crashes than red light running crashes." The study also suggested that "red light cameras should not be implemented without an intersection-specific study of the intersection’s crash patterns and geometric characteristics." The researchers concluded that "the study did not show a definitive safety benefit associated with camera installation." The results were not surprising, because a prior VDOT study, to which we linked in a February post, reported that rear-end crashes increased after cameras were installed.
Thursday, July 5, 2007
Although the recently implemented law regarding civil remedial fees continues to generate discussion, it is reasonable to assume the law will not go away. Other states, Michigan, Texas, New Jersey and New York have implemented similar programs (although their programs are enforced against non-resident drivers, as well). Citizens have complained that the fees create a "Debtor's Prison" where less than half the fees are actually collected and in Michigan, where only 40% of the fees have been collected, there has been no confirmation that road safety has increased. The law will be tweaked, but it will not go away because, as it says in its text, the law will "generate revenue" for the government to spend. Legislators find it easier to turn on a source of revenue than to shut it off.
Wednesday, July 4, 2007
Tuesday, July 3, 2007
Before you celebrate July 4th in James City County, Williamsburg, York County and Newport News, sparklers are illegal.
This article provided a reminder that Virginia law prohibits fireworks for private use. Although fireworks are prohibited, Section 3301.7 of the State Fire Prevention Code permits "sparklers, fountains, Pharaoh’s serpents, caps for pistols, or pinwheels commonly known as whirligigs or spinning jennies." I googled to find information on "Pharaoh's serpent," and the James City County Fire Prevention Code came up. Certain localities have modified the SFPC, so sparklers (and Pharaoh's serpent) have been made illegal. I guess there's a law for everything.
Sunday, July 1, 2007
Herman T. Benn passed away last week. His obituary noted that Mr. Benn was co-counsel in a winning case before the United States Supreme Court, Johnson v. Commonwealth of Virginia. In that case, a college student, Ford T. Johnson, was charged with a traffic violation. At trial, Mr. Johnson sat in the section of the courtroom reserved for "whites." He refused to comply with the court's order to move to the section reserved for "Negroes." The court charged Mr. Johnson with contempt and he was convicted. The Virginia Supreme Court of Appeals refused to hear the writ, so the case was appealed to the United States Supreme Court. The Supreme Court reversed the conviction stating "State-compelled segregation in a court of justice is a manifest violation of the State's duty to deny no one the equal protection of its laws." I didn't know Mr. Benn, but that victory is an important and lasting legacy for him.
*Postscript - I found this article discussing the day Mr. Benn and his wife closed their law practice.
Saturday, June 30, 2007
Roscoe Reynolds was the patron of the now controversial bill that imposed the civil remedial fees on top of fines, court costs and other charges for certain traffic offenses. In this article, Senator Reynolds said that he "can foresee serious potential problems with the new law." He added that "Those consequences are that people will lose their licenses because they cannot pay the large fines, be forced to drive anyway because they must work and then end up in jail, where they will become an additional drain on taxpayers." He didn't say that he was the patron of the bill that passed. What is missing from this entire discussion is somebody from the General Assembly standing up to say, "Yeah, I voted for that bill because its a good law, and I'm proud I did it." They are hoping it goes away, like it usually does.
Friday, June 29, 2007
This heartwarming story profiles Portsmouth Circuit Court Judge Johnny E. Morrison. For 16 years, Judge Morrison has challenged students in his church to make the honor roll. In return, he promised to take the students out for lunch. This year, 70 students made the honor role and 45 students showed up for lunch. Judge Morrison will continue his challenge because as he said, "It's worth the money." A nice lesson for all of us on being part of your community.
Governor Kaine acknowledged the firestorm raging and stated on his radio show that "I think that's something the legislature may address in the future." Although it can be argued that the whole concept is ridiculous, the issue that is raising the most ire is the fact that the civil penalty applies only to Virginia residents. In this article, Del. G. Glenn Oder or Newport News said the new law is "clearly a mistake. The most egregious part is that it only hits Virginia drivers." Yet, he voted for the law.
Thursday, June 28, 2007
In Rockingham County, defense attorney Robert Keefer noted that the government agency responsible for testing the Intoxilyzer 5000 had requested updated equipment because the current Intoxilyzer was "outdated, unstable and unreliable." Mr. Keefer ran with that agency self-assessment and requested the court appoint an outside expert to test the equipment. If the Intoxilyzer was inaccurate, then the results of the test should not be admissible. The court denied his request. The government agency has since disavowed the language in the funding request and called its machines "accurate."
Wednesday, June 27, 2007
With only days left before new Va. Code Ann. § 46.2-206.1 (you have to scroll down to read the text of this section) takes effect, we are finally paying attention. The stated purpose in the new statute is "to generate revenue from drivers whose proven dangerous driving behavior places significant financial burdens upon the Commonwealth" (somebody will have to explain that one to me). The Virginia Supreme Court has published an explanation of the so-called "civil remedial fees." The court has no discretion over assessing the fees. The fees are only assessable against Virginia residents. The Washington Post has an article detailing the chilly reception received by Governor Kaine at his regular WTOP call-in show. The Fredericksburg Free-Lance Star called for voters to demand "the repeal of a schedule of afflictions that reflects the spirit of the Sheriff of Nottingham a lot more than that of any of our Founders." Is it too late to do that, or will a combination of apathy and inertia prove too daunting?
The Virginia Marine Resources Commission issued a $100,000 civil charge against a developer "who mowed dozens of acres of marshland to improve a subdivision's water views." Here's an aerial photo of the marshland showing the extensive damage. According to the article, the developer had "mowed dozens of acres, compacting the soft, muddy wetland bottom with the Marsh Buggy's 6-foot-tall, tank-like treads. The ruts are still visible at the site. One VMRC board member suggested the land might not recover for 10 years." In this previous article, VMRC "analysis showed 142,054 feet of tread tracks criss-crossing the land." That article states that the "1,500-acre development is being carved up into only 155 lots. Originally the company planned to sell lots for $250,000 to $1 million." If true, the civil charge, although substantial, can probably be recovered through a slight increase in lot prices as a result of the improved water views.
Tuesday, June 26, 2007
The Virginian-Pilot has another profile of Harvey Bryant discussing the bar complaint filed by the Virginia Beach Circuit Court judges. As we have noted, this article makes at least the sixth in that newspaper.
Monday, June 25, 2007
From the Institute for Legal Reform comes this study "to explore how reasonable and balanced the tort liability system is perceived to be by U.S. business." In the report, Virginia dropped from number 3 to 12, but still ranks in the study's "best" category. Of the 102 respondents, 61 gave Virginia's civil liability system a grade of "B." Without the benefit of trial experience in the courts of other states, it's impossible to comment on the accuracy of the report. I did note, however, that our neighbor, West Virginia, ranked 50th.
Thursday, June 21, 2007
Sensing Murder, a Discovery Channel show, will present a program on the unsolved Colonial Parkway murders from 1988. Apparently the show brought in a couple of "psychics" for input on solving the murders. A quick google search found a Wikipedia site on The Colonial Parkway Killer, and from there a crimeshadows.com page. Warning: don't read these articles before taking a moonlight drive on the Parkway. . . .
Somehow, it appears that the College of William and Mary's student newspaper scooped everybody with a June 1 article covering the dismissal of George Leach's lawsuit against the College over the Wren Cross controversy. As we posted here, Leach lost his license to practice law several years ago. According to this article, Leach called the dismissal decision a "tragedy" but as The Flat Hat article noted, "Leach was absent at his scheduled May 22 hearing for the case." The judge stated that Leach "'utterly failed to demonstrate' that he had standing to bring the suit."