"Omnibus" lawsuit challenges the transportation bill

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.

Henrico General District Court Judge dismisses civil remedial fee

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."

Reciprocal of America criminal investigation dropped

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.

Vick is in trouble

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.

Recent court activity

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.

Republican primary rules lead to lawsuit

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.

Governor, Speaker, and Attorney General file Motion to Intervene in Transportation Authority lawsuit

The lawsuit to determine the validity of the Northern Virginia lawsuit may have additional plaintiffs as set out in this press release.

Northern Virginia Transportation Authority files suit to establish its validity to raise taxes

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.

Recording Industry suffers setback in Newport News

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.

Knucklehead

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.

Updates

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."

Resource-Monarch Bank update

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.

Former Williamsburg voter registrar says he will sue

David Andrews, former voter registrar for the City of Williamsburg, says he has hired Jerry Kilgore to sue the City's electoral board. Andrews was placed on administrative leave in April, and a new registrar was hired. Andrews contends that he is a state appointee, and therefore cannot be placed on leave. The State Election Board says he is a local appointee.

Suffolk attorney passes away - won important case in the United States Supreme Court

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.

Creative attack on Intoxilyzer fails

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."

When a $100,000 fine may not be enough

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.

Courtroom account of Resource/Monarch battle over employee exodus

This article gives an interesting blow-by-blow of the injunction hearing in the Resource Bank v. Monarch Bank conflict we profiled earlier.

Yet Another article on Virginia Beach Prosecutor Harvey Bryant

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.

Colonial Parkway murders to be subject of show

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. . . .

Not surprisingly, disbarred attorney's lawsuit against William and Mary was dismissed

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."