The VLW Blog

Any number of divorcing couples has learned – usually the hard way – that you can’t use child support as a bargaining chip in trying to strike a deal on a property settlement agreement.

A couple in Roanoke is the latest to get this lesson. In Wykle v. Wykle (VLW 007-8-130), the husband and wife entered into a PSA: The dad, “in lieu of” paying child support, would pay the first and second mortgages on the house where the mom and their minor daughter, Savannah, lived until the girl turned 21.

As some point, the dad decided he didn’t like this arrangement and moved to have the PSA declared to be unenforceable. The mom argued that the dad was supporting his daughter by paying the mortgage.

But Roanoke Circuit Judge Charles N. Dorsey struck the PSA. He found that the arrangement, which called for the payment of fixed mortgage payments, deprived the court of its jurisdiction to modify or enforce child support. That violated one of the tests set out in Shoup v. Shoup, the 2001 case from the Court of Appeals on the issue.

As a result, the agreement was unenforceable. Motion granted.

Many lawyers in Virginia may never take an appeal to the Supreme Court of Virginia, let alone the U.S. Supreme Court.

But law students at the University of Virginia, working in the school’s Supreme Court Litigation Clinic, will be able to put a trip to the nation’s high court on their resumes. One of their cases, on behalf of a Louisiana inmate named Michael Watson, won a writ of certiorari from the U.S. high court, according to The Daily Progress.

The clinic filed four petitions this term, and the court chose a case that could resolve a split in the federal circuits – the issue is just what constitutes “use” of a firearm in furtherance of drug trafficking. Watson, who was convicted on drug and weapons charges, got an extra 10 years in prison for trading drugs for a gun. Prosecutors argued he was “using” the weapon.

A lawyer might understand a distinction between “illegal conduct” by a judge and a lack of statutory authority for judicial action, but everybody at a Republican breakfast in Virginia Beach on Feb. 3 probably wasn’t a lawyer.

Or maybe it’s a distinction without a difference to Virginia Beach’s nine circuit judges.

The Virginian-Pilot reports that Bryant acknowledged in a news release that he mentioned to the gathering that he was keeping track of instances in which judges act without statutory authority.

But he insisted that he had not accused the judges of illegal conduct.

He said the judges have filed a complaint with the Virginia State Bar that the alleged “illegal conduct” comment violates legal ethics.

Bryant issued the press release after he learned that the newspaper intended to run a story about the controversy and said at the most recent breakfast that he has been praying for the judges since the allegations was made. “Maybe I should have started a long time ago,” he said, according to The Virginian-Pilot. He did not say in the press release what the actions without statutory authority might have been.

Here’s one for the public-sector employment lawyers.

Those lawyers know that public employees have First Amendment rights and can sue employers who abridge those rights.

But the First Amendment only protects employee speech on matters of “public concern.” A lot of workplace speech can involve issues peculiar to that workplace and personal to that employee. It isn’t always easy to see when an employee crosses the line.

Even a case close to the line can result in qualified immunity for the defendant, the 4th U.S. Circuit Court of Appeals ruled last week. The “speech” at issue was of public concern but the defendants were off the hook because it wasn’t clear from existing case law that it was, the court said in Campbell v. Galloway (VLW 007-2-061).

Amy Campbell contended that she was fired from the Southern Pines, N.C., police force after she wrote a 13-page memo to the chief. Some of the complaints in the memo were clearly personal and peculiar to the police department—the male cops didn’t invite her to breakfast, for example—but other allegations of sexual harassment were another matter, the court said. Campbell cited one instance in which a male officer reached down Campbell’s pants to retrieve a gun and another in which a male officer required a female DUI suspect to use the toilet with the door open, even though Campbell was available to act as escort.

The 4th Circuit said that sexual harassment complaints are not “per se” a matter of public concern. But its decision in Campbell might be the type of case law that “clearly establishes” just what type of sexual harassment allegation is a matter of public concern and make qualified immunity a more difficult plea to sustain.

The Washington Post reports that the Bush administration has given up its efforts to block Wiccans from putting their religious symbol, a pentacle (a five-pointed star in a circle), on the tombstones of soldiers who are buried in a military graveyards, including Arlington National Cemetery. Wicca, apparently one of the nation’s fastest growing faiths, is a “blend of witchcraft and nature worship,” the Post notes.

It took a lawsuit to get this result, though – one that will cost taxpayers $225,000. The government agreed to pay that much in attorney’s fees to settle; the VA also will approve immediately the 10 pending applications seeking a pentacle.

The Wiccans argued that there are over 30 other religious emblems one can have placed on a military tombstone. If you’re wondering what they are, here is the list. Many of the symbols represent variations of Christianity, although there are several Muslim symbols, the Star of David, a Buddhist wheel and an atom for atheists.

The only reference on the VA Web site to the Wiccan controversy is a note at the link to the list of permissible symbols stating, “A new emblem of belief has been added to the list.”

Last week, the U.S. Supreme Court, by a 5-4 vote, upheld the Partial Birth Abortion Ban Act passed by Congress in 2003.

The ruling already is causing a ripple in Virginia. The high court has ordered the 4th U.S. Circuit Court of Appeals to revisit a ruling from 2005 in which a three-judge panel found a Virginia statute outlawing the same procedure to be unconstitutional, according to the Washington Post.

The Supremes vacated the 4th Circuit’s decision and told the court to reconsider “in light of” its new ruling. The 8th Circuit, which struck a similar law in Missouri, also has been ordered to review its prior decision.

Roanoke lawyer David Nixon claimed that two senators – Ken Stolle and Tommy Norment – broke the conflict of interest of rules when they worked to rewrite Virginia’s eminent domain laws during the past General Assembly session. Their firm, Kaufman & Canoles, represents a number of local governments that could benefit from the changed condemnation statutes, he said. Even though Attorney General Bob McDonnell said a vote would be OK, both Stolle and Norment abstained when the measure came to a vote. The Senate Ethics Advisory Panel looked at Nixon’s claims and even held a closed hearing last week. But as The Virginian-Pilot reports, the panel dismissed all the charges against Stolle and Norment.

The plant was built in 1949 but in recent years has become a point of concern as residential development that has crept closer and closer to it. However, the stratagems the city attempted to use to authorize the plant’s removal ran afoul of Virginia Code § 15.2-2307 Justice Elizabeth B. Lacy wrote for a unanimous court in Alexandria City Council v. Mirant Potomac River LLC.

That statute generally prohibits localities from the impairment “the impairment of any vested right,” and that was precisely the effect of the city’s effort to remove the plant, Lacy wrote.

In the second case, the city attempted to block the subdivision of one parcel into two parcels that even in their subdivided state would have been larger than the typical site in an established neighborhood. Residents there objected because they feared the construction of “McMansions” out of scale with other homes.

The high court ruled, however, in Seymour v. City of Alexandria, that the city subdivision ordinance governed only the consistency of lots, not the type of structure that goes on them.

A new rack of cases came down from the Supreme Court of Virginia this morning…

Among the holdings: The court says that there is no statutory cause of action for personal injury in the Virginia Residential Landlord and Tenant Act.

Justice Cynthia Kinser wrote the unanimous opinion in Isbell v. Commercial Investment Assocs. Inc.

The judicial nominations committee of the Virginia State Bar announced its endorsements for seats on the 4th U.S. Circuit Court of Appeals at the VSB’s Executive Committee meeting at Stratford Hall yesterday and this morning.

Committee chair Joe Condo, VSB President Karen Gould and several others met with Sens. John Warner and Jim Webb earlier this week. Condo said Webb was “delighted” with the format the VSB chose, naming potential nominees as either “highly qualified” and “qualified,” and including a detailed summary of the candidate’s qualifications. Condo added that Webb pressed the bar to rank the candidates, but the VSB declined to do so, citing confidentiality concerns.

But Condo said that for the “highly qualified” candidates, the bar was providing the committee votes on those people, and that the senators could let those tallies be a reflection of any ranking.

Of the “highly qualified” candidates, Virginia Supreme Court Justice Donald W. Lemons and Charlottesville lawyer Thomas E. Albro both gained a 12-0 vote. The others were:

• U.S. District Judge Glen E. Conrad, 11-1
• Roanoke lawyer Frank E. Friedman, 10-2
• Richmond lawyer E. Duncan Getchell Jr., 9-3
• Washington DC lawyer H. Christopher Bartolomucci, 7-5

The committee found three potential nominees to be “qualified.” The bar does not announce vote totals for candidates in this category. They are:
• Virginia Supreme Court Justice G. Steven Agee
• Richmond lawyer Orran L. Brown
• William and Mary law school Professor Alan J. Meese