The VLW Blog

Is using your office e-mail with its signature stamp the same as using office letterhead?

Should anyone down a chain of distribution that you can’t control assume that your e-mail speaks for your employer?

Office e-mail comes pretty close to company letterhead, according to one federal judge who considered the question in an unpublished opinion in Bowers v. Rector and Visitors of the University of Virginia (VLW 007-3-092), a case that has generated some buzz in Charlottesville over the past two years

“The law on the use of office e-mail systems is in its infancy,” said U.S. District Judge Norman K. Moon. He drew on precedent involving more traditional modes of communication to dismiss the First Amendment suit filed by Dena Bowers, a former employee of the human relations department at U.Va.

Bowers had used her university e-mail account to send a coworker and fellow NAACP member documents generated by that group that purportedly were critical of a university restructuring proposal. The e-mail was successively forwarded and ultimately went to hundreds of people, according to the court opinion.

The university contended that Bowers had been less than cooperative in helping to clear up the matter, and several weeks later it fired her.

In deciding how much protection the law afforded Bowers’ speech, Moon said his most serious concern arose “from the use of the signature or ‘stamp’ at the end of the e-mail that identified the sender” as a university HR employee.

Moon said that although Bowers “was not officially authorized to speak for the University, her e-mail misled others into thinking that she was,” and the court had to “hold her to the standards of those who are actually permitted to speak for government agencies: she must stick to the party line or face discipline,” Moon wrote.

“[N]obody would think to use University letterhead for personal messages, and e-mail signatures like the one in this case resemble official letterhead closely enough that the two should be treated the same way,” the judge said.

Bowers’ associational claims were not so easily dismissed, Moon wrote.

She “was justified in defending her rights and those of her fellow opponents of University restructuring by refusing to answer questions about the sources of data and preparation of her e-mail attachments.” But the associational right Bowers asserted was not clearly established, so the defendants were entitled to qualified immunity, Moon ruled.

Bowers has noted an appeal.

In an ongoing, never-ending effort to figure out how to generate money for transportation, the 2007 General Assembly came up with at least a partial source for funds: bad drivers.

In House Bill 3202, the transportation funding bill, the Assembly established a new system of “civil remedial fees,” the purpose of which is “to generate revenue from drivers whose proven dangerous driving behavior places significant financial burdens upon the Commonwealth.”

The laws establishing these fees will take effect July 1.

The Office of the Executive Secretary of the Supreme Court has put together a very nice explanatory guide for the public. It should be a good starting point for a lawyer having to explain to a client charged with DUI why said client will be paying a total of $2,250 to the Department of Motor Vehicles should he be convicted.

Virginia remains only one of two states where the legislature elects judges. Critics complain, sometimes with justification, about our system. Some argue that it has become a way to dispense political patronage (as if that element hadn’t always been part of the scheme). Bar groups, whose members may know candidates best, seemingly have been marginalized in the selection process.

It could be a lot worse.

Ruth Marcus has a column in this morning’s Washington Post that indicates that nasty attack ads have been on the uptick in states that hold popular elections for judges. A candidate for the Kentucky Supreme Court was savaged with an ad Marcus calls “Willie Horton Goes to Court.”

And the races are getting costly. Chief Justice Sue Bell Cobb of the Alabama Supreme Court spent just $5,000 in her first race in 1982, running for a lower-level judgeship. But for seeking a seat on the high court this past year, Cobb’s tab was a cool $2.6 million.

It looks so easy when they do it on Antiques Roadshow.

Experts on the popular public television series who examine stuff brought down from the attic appear to take their cues from certain elements of a painting or an objet d’art, and then fill in the blanks to come up with an estimated value.

But unfortunately for two federal employees who sued over a missing painting, it takes more to recover damages in a court of law.

Richard and Donna Riney had a painting stored when they were assigned to positions abroad. When they observed mold on the stored painting upon their return, the storage company hired a mold remediation company to treat the mold. The remediation company later admitted that it had not restored the painting, but instead had discarded it.

In Riney v. Park Moving & Storage Co. (VLW 007-8-140), the Rineys argued the painting had a value of $80,000. They also argued in a companion case (VLW 007-8-139) that the destruction of the painting entitled them to certain assumptions in proving the worth of the painting.

But Fairfax Circuit Judge Arthur B. Vieregg rejected expert testimony based on assumptions that the painting had been created by a European master of the top tier within a 200-year period between the late 17th and 19th centuries, and therefore had a value of at least $80,000.

Noting that the plaintiffs apparently never bothered to have the painting appraised or insured, Vieregg said the owners simply presented no authority to support the requested damages, absent the owners’ groundless testimony of what the painting was worth.

Instead, the Rineys were entitled to $2,500, the value conceded by the remediation company, plus costs, the court held.

Kimberly B. O’Donnell, a judge of the Richmond Juvenile and Domestic Relations District Court since November 1994, has announced her resignation, effective Sept. 9.

Before taking the bench, O’Donnell worked in Richmond as an assistant public defender and as an assistant commonwealth’s attorney. She was admitted to the bar in 1985 after graduating from Mary Baldwin College and the University of Richmond law school. She also holds a master’s degree in pastoral studies from Loyola University.

She has served on several judicial committees and working groups and taught new judges in the court system’s pre-bench orientation programs. She served from 2003-06 on the John D. and Catherine T. MacArthur Foundation’s Research Network on Adolescent Development and Juvenile Justice.

O’Donnell said she plans to return to her childhood home in Floyd County.

The following selected stories appeared in the Virginia Lawyers Weekly Daily E-Mail Alert from May 21 to May 25. The originating source of a story is indicated within the item. Please note that not all links may remain active. If you are not presently receiving the Daily Alert, please click here to sign up.

May 21

Lawsuit filed over Pittsylvania hunting accident

A man hurt in a 2005 hunting accident has filed a $1.3 million lawsuit, reports the Danville Register & Bee. According to the suit, one hunter fired his 12-gauge shotgun at in deer standing in the direction of the injured man.

Moderate Republican tapped to run for Chichester’s seat

Westmoreland County lawyer Richard Stuart has won the GOP nomination to run for the Senate seat held by retiring Sen. John Chichester, reports The Free Lance-Star. Stuart was the most moderate Republican in a field of four; he had the backing of both Chichester and House Speaker Bill Howell. Stuart will face Democrat Albert Pollard Jr., a former delegate, in November.

FAA: Proposed Arlington high-rises a problem for airport

The Federal Aviation Administration has ruled that proposed high-rise building projects in Arlington could imperil air travel in and out of Reagan National Airport, reports the Washington Post. The FAA has no legal authority to stop the projects, but local officials say they will work to address the agency’s concerns.

Frederick County Circuit Clerk will run again

Rebecca P. Hogan, who has served as Frederick County Circuit Clerk since 1997, will seek reelection, reports the Winchester Star. Hogan has worked in the clerk’s office since 1970, starting as a secretary.

Trial set for grocer’s claims against distributor

Grocer and entrepreneur Johnny Johnson claims that Supervalu Inc., the country’s largest grocery wholesale distributor, wrecked his small chain of Community Pride stores. The trial in his lawsuit begins today in Richmond Circuit Court, according to the Richmond Times-Dispatch.

Trial of Episcopal Church suit begins today in Fairfax

The trial of an extensive lawsuit filed by the Episcopal Church and its Virginia Diocese against 11 churches that voted to leave starts today in Fairfax Circuit Court, reports the Washington Times.

May 22

Man enters Alford plea on charges arising from manhunt

Last October, a man named Elvis G. Shifflett led Albemarle County police on a week-long manhunt that ended when he was shot trying to steal a truck. The Daily Progress reports that he entered Alford pleas to a number of charges related to the incident, including eluding police and possession of a weapon as a felon. He will be sentenced in July in Charlottesville, where he faces other charges.

High court: Stafford appeal filed too late

The Supreme Court of Virginia has upheld a circuit judge’s ruling that residents and Stafford County officials waited too long to file an appeal of a decision of the local zoning board, reports The Free Lance-Star. The appellants wanted to challenge an administrator’s ruling that an anti-terrorist training facility called The Crucible should be classified as a school.

Surry officials confer on dogfighting case

Surry County officials met Monday to discuss the possible dogfighting at a home owned by Atlanta Falcons quarterback Michael Vick, but no charges have been filed yet, reports The Virginian-Pilot.

Bolt-in-neck case from Roanoke settled

The Roanoke Times reports that a confidential settlement has been reached in the case of a Bassett woman who claimed that her doctor left a bolt-like object in her neck after emergency surgery. She hit her head on a glass bedside table; the bolt, removed by another doctor a year later, had been part of that furniture.

May 23

Northern Virginia Senate candidate indicted

Mark Tate, a candidate for the GOP nomination for the Senate seat of retiring Sen. H. Russell Potts Jr., has been indicted in Loudoun County on charges of election fraud and perjury, reports the Washington Post. His lawyer decried the indictments, handed down three weeks before the June 12 primary.

Caroline’s Latney draws opponent for first time in 29 years

Harvey Latney has been commonwealth’s attorney in Caroline County for more than 29 years without facing a challenger in an election. No longer. Yesterday, Tony Spencer, a former deputy prosecutor in Richmond now living in Caroline, filed the papers to run for the seat in November, reports The Free Lance-Star.

Liberty U. student arrested for bombs before Falwell funeral

The News & Advance reports that a 19-year-old Liberty University student has been arrested for manufacturing homemade bombs after his family told police he made them in preparation for yesterday’s funeral of the Rev. Jerry Falwell. Police are investigating a motive; the man apparently had issues with members of a Kansas church who came to Lynchburg to protest at the funeral.

May 24

Leighty, Kaine’s chief of staff, to step down

Bill Leighty, Gov. Tim Kaine’s chief of staff, will leave his post on Friday, reports the Richmond Times-Dispatch. Leighty served in the same position for the full term of Kaine’s predecessor, Gov. Mark Warner. Wayne Turnage, the current deputy chief of staff, will succeed Leighty at the governor’s top lieutenant.

Liberty U. student now faces federal charge

The Liberty University student apprehended with homemade bombs in the trunk of his car at the Rev. Jerry Falwell’s funeral now faces a federal charge of possessing an explosive device, reports the Roanoke Times. State charges were dropped; he remains in custody.

Two men charged with building meth lab in Orange County

Orange County authorities have arrested two men they say were putting together a methamphetamine lab in an empty barn at a farm, reports The Daily Progress. No drugs had been manufactured yet.

Fairfax supervisors want to close additions loophole

Fairfax County supervisors will seek to close a local loophole that they say allows a builder essentially to erect new a house while calling it an addition, reports the Washington Post.

May 25

Supremacist accused of harassing child

A self-proclaimed white supremacist facing child pornography charges previously harassed a local 9-year-old girl, according to a revealing pre-trial motion filed Thursday by federal prosecutors, The Daily Progress reports.

Nursing home dropped from Medicare program

Carriage Hill Rehabilitation and Nursing Center was dropped from the federal Medicare program this month, 10 days after a resident strangled to death on a nurse-call cord, The Free Lance-Star reports.

Supreme Court to hear Norfolk voting case

The state Supreme Court has agreed to hear a case seeking access to voting applications that were rejected by Norfolk’s voter registrar, The Virginia-Pilot reports.

Former Henry sheriff pleads guilty

In the recorded conversations played Thursday in federal court, disgraced former Henry County Sheriff Frank Cassell seemed almost grandfatherly as he reached out to reassure a one-time employee down on his luck, The Roanoke Times reports.

Goode criticizes Mexican flag displays

Rep. Virgil Goode says he’s riled by restaurants in his region that display a Mexican flag, and he thinks President Bush is wrong on the new immigration bill, the Richmond Times-Dispatch reports.

Legislative hearings set for Virginia Tech shootings

The Virginia House of Delegates will hold hearings this summer to consider solutions to problems in the mental health system exposed after Seung Hui Cho’s shooting rampage at Virginia Tech, The Washington Post reports.

In this afternoon’s e-mail: a solicitation from a necktie company called Capital Ties. The headline screamed out: “Every litigator will enjoy this new Sharks necktie!”

Uh oh, you say, another lame lawyer-shark professional-courtesy joke. Ha ha ha. Like we haven’t heard this one before. Or before that.

The copy burbles, “Sharks is being targeted - tongue firmly in cheek - to the legal community. On our web site, we explain that ‘Shark’ comes from the German ‘schurke,’ meaning greedy parasite and that ‘while no brave soul has gotten close enough to determine where lawyers come from, logic and common sense dictate a similar derivation.’

Then it continues: “I trust that lawyers will accept this design in the spirit in which it is intended,” says designer Nick Hotchkiss. “If they don’t, then I suppose we’ll have to switch gears and go after the subprime lending industry.”

Take a look at the tie, pictured above. (Photo credit: Detail taken from the picture of the tie that came in the e-mail). It has little sharks chasing dollar signs. Perhaps an ambulance was too hard to stitch on there.

A quick thought while pausing at the “Delete” key: Just what were they thinking?

At this newspaper a few years back, we had a potential advertising client, a caterer interested in reaching the legal audience. We were all set to sell him a full-page ad until he insisted on advertising his food as “shark bait.” When we gently, then firmly, declined to run that copy, explaining that maybe it wasn’t a good idea to insult someone you’re trying to sell to. Didn’t work. The deal fell through.

We’ll wait and see whether this tie company ever shows up at one of the commonwealth’s bar meetings. Until then, the “Delete” key works wonders.

Undaunted by a unanimous opinion from the Supreme Court of Virginia last month in Isbell v. Commercial Investment Associates Inc. (VLW 007-7-044), Richmond attorney Roger T. Creager has asked the court to rehear the case, and the Virginia Trial Lawyers Association has filed a friend-of-the-court brief in support of the request.

The Supreme Court held that the Virginia Residential Landlord and Tenant Act does not create a personal injury action for damages to tenants that result from violations of the act by landlords. The General Assembly did not clearly abrogate the common law that a landlord is not liable in tort for injuries caused by the landlord’s failure to repair premises under the tenant’s control, Justice Cynthia D. Kinser wrote. She said the act applies only to contractual remedies.

The briefs of Creager and the VTLA contend that the court erred in writing the word “contract” to restrict provisions of the act where the legislature expressed no such limitation. The court also incorrectly gave a narrow interpretation of such words as “action” and “person” to limit the declared legislative intent to “revise and modernize” the law, the briefs say.

A Middleburg man running for the Republican nomination for a state Senate seat has been indicted in Loudoun County on charges of election fraud and perjury. The Washington Post reports that the indictments were made public today, three weeks before voters go to the polls.

Mark Tate, a restaurateur and the former vice mayor of Middleburg, faces Jill Holtzman Vogel, a Warrenton lawyer, for the GOP nod for the seat of retiring Sen. H. Russell Potts Jr., I-Winchester. The seat’s district covers parts of Loudoun and Fauquier counties, all of Clarke and Frederick counties and the City of Winchester.

Tate’s lawyer, Ed MacMahon, told the Post that Tate would plead not guilty to the charges. MacMahon blasted the timing of the indictments, so close to the June 12 primary date. The prosecutor who brought the charges, Jim Plowman, said politics had nothing to do with it. He added that a special prosecutor, King George County Commonwealth’s Attorney Matt Britton, will handle the case from now on.

The Judicial Inquiry and Review Commission recommended on Wednesday that the Supreme Court of Virginia censure or remove Juvenile and Domestic Relations District James Michael Shull.

JIRC found that Shull on Dec. 15 twice directed a woman involved in a custody dispute to twice lower her pants in the courtroom, while at least six other people were present. The woman contended that the father of her two children had stabbed her thigh, while the father responded that he had not done so and alleged that any such wound was self-inflicted.

In addition to examining the injury, Shull recessed the hearing and called from his chambers the emergency room where the woman said she had received stitches.

The commission also concluded that Shull had violated judicial ethics by tossing a coin to decide which parent would have the preferred custodial time for their children on Christmas Day.

In a formal response to the commission’s initial allegations, Shull acknowledged that he should have handled the first hearing in a more sensitive manner. But he emphasized that only court personnel, the father and his attorney were in the courtroom at the time and that the nature and severity of the mother’s injury were “absolutely critical to resolve the factual and credibility issues before the Court.”

Shull said he decided the Christmas custody by a coin toss because “the equities were in equipoise” and he wanted to illustrate to the parents there were in the best position to resolve such issues. He usually sits in Scott County in the state’s 30th Judicial District, but both of the cases cited by JIRC were in Wise County. He was appointed to the bench in April 2003.

JIRC suspended Shull with pay shortly after the December hearing and held hearings in the case in January and in April.