The VLW Blog

A Harrisonburg federal district judge has rejected a challenge to federal Title IX guidelines that led to the demise last year of multiple men’s sport teams at James Madison University.

On Aug. 21, U.S. District Judge Glen Conrad denied a preliminary injunction against enforcement of the gender-equity regulations that allegedly allow colleges to use gender-conscious capping or cutting of male athletic programs.

Plaintiff Equity in Athletics Inc., a nonprofit coalition of coaches, student-athletes, alumni, fans and booster clubs, said the regulations led JMU to drop men’s teams for swimming and diving, track and field, cross country and wrestling programs. The university also eliminated men’s and women’s archery and gymnastics programs, as well as women’s fencing.

The university made the changes in response to Title IX’s proportionality requirements, which it said mandated that a school’s athletic programs mirror its undergraduate gender mix. In JMU’s case, that’s 61 percent female and 39 percent male.

Conrad said in his published opinion in Equity in Athletics Inc. v. Dep’t of Education that the harms identified by the plaintiff – including students’ athletic careers interrupted or halted – were “emotionally compelling,” but Equity’s arguments against the time-tested legal framework for the university’s actions were unlikely to succeed on the merits.

Please, guys, give us—and yourselves—a break.

That was the clear message, although it was said more judiciously—not judicially—because U.S. District Judge Henry E. Hudson was in a suit rather than in his robe, even if he did speak from the bench.

Hudson took the extraordinary step today of personally telling the news media that a defendant had agreed to plead guilty and when he would do so. Of course, it is Michael Vick who will appear next Monday at 10:30 a.m. Vick is expected to plead guilty to the same charge that three co-defendants already have pleaded to: one count of engaging in an interstate dogfighting conspiracy.

The judge emphasized that Vick is most unlikely to be at the courthouse before then and that any unexpected appearance would be posted on the court’s Web site in plenty of time for the media to gather. “You will be advised of everything as it occurs,” Hudson said. “Govern yourselves accordingly.”

Hudson prefaced his marks by noting the constant presence of the media on the courthouse steps in recent days.

Mary Kay Hatton, the chief deputy clerk for the Richmond Division, made a rare courtroom appearance to hear Hudson’s remarks. “He knows these people want a life,” she said with a nod to reporters. “He’s trying to do it in a nice way.”

The New York Times Magazine to be published Sunday has an extended article questioning the validity of the convictions of four sailors who confessed to the rape and murder of a woman in Norfolk in 1997.

The story by free-lance writer Alan Berlow cites inconsistencies between the confessions and the physical evidence and among the four confessions by defendants Joseph Jesse Dick Jr., Danial Williams, Derek Tice and Eric Wilson.

Moreover, DNA evidence at the scene of the death of Michelle Moore-Bosko did not match any of the four and does match that of Omar Abdul Ballard, who has been convicted of another rape and wrote a female friend that he had killed Moore-Bosko.

The four have filed a request for a pardon from Gov. Timothy M. Kaine. They contend that their confessions were made at the end of lengthy and abusive interrogations by a Norfolk detective.

Four former Virginia attorneys general, including Richard Cullen, also a former U.S. attorney and now chairman at McGuireWoods, believe the defendants are innocent, Berlow reports. The victim’s family and police, prosecutors and the defense attorney for one of the defendants continue to insist on their guilt.

Here’s one for the alums of Their Majesties’ Royall Colledge of William and Mary in Virginia: The Delly has been saved.

The College Delly, that is.

Back story: Last September, a plan filed with the Williamsburg Architectural Review Board provided a shock: Starbucks was going to buy The College Delly, and turn it into…well, a Starbucks.

The spelling-challenged Delly, at its current location since 1976, is a W&M institution. It’s a place to get a sandwich, to go on a casual and cheap date, to see and be seen. After the Starbucks announcement, someone started a Facebook group seeking to save The Delly. Current students started an online petition. Alums moaned and groaned, figuring each trip to Williamsburg and The Delly might be the last.

Well, fall gave way to winter, and The Delly still was there. Come spring…still there.

Happy news in The Daily Press today: The owner of The Delly, Dean Tsamouras, has sold to a local businessman, Jerry Tsitsidopoulos, who plans to keep The Delly as a restaurant and sandwich shop. The closing was held last night at the office of Williamsburg lawyer John Konstaninou.

The Virginia attorney general’s office has offered to help put Anthony O. Price on a fast track to the Supreme Court of Virginia in his attack on the constitutionality of the state’s civil remedial fees.

Esther Windmueller, who is representing Price along with Craig S. Cooley in Henrico County courts, said the AG’s office told her it would agree to an interlocutory appeal provided by Virginia Code § 8.01-670.1.

J. Tucker Martin, a spokesman for the AG’s office, said, “While the Henrico Circuit Court’s decision is correct, we believe that it is imperative for the state Supreme Court to hear the case and affirm the Henrico court’s reasoning as soon as possible. To that end, we will support any effort by Price to expedite proceedings.”

Windmueller said she is not inclined to accept the offer because she wants to raise issues in addition to the equal protection argument that Circuit Judge L.A. Harris Jr. rejected on Monday. She also questioned whether the civil procedure statute applies to a law with both civil and criminal aspects.

On another front in the civil remedial fees war, you may be wondering about the authority for Mary Elizabeth Minter to be the “virtual representative” for anyone who faces the fees, as Roanoke attorney John P. Fishwick Jr. is requesting in Roanoke Circuit Court.

Fishwick says he is relying on the concept that plaintiffs in equity can sue for themselves and others similarly situated as outlined in § 5.18 [D][2] of the 2003 edition of Sinclair and Middleditch’s treatise on Virginia Civil Procedure. U.S. District Judge James P. Jones mentions the concept favorably in dictum in Indian Creek Monument Sales v. Adkins (VLW 004-3-038).

Working Mother magazine and Flex-Time Lawyers LLC, a consulting outfit, have published for the first time a list of “The Best Law Firms for Women.”

Fifty firms nationally were named, based on an application that covered issues important “to the retention and promotion of women lawyers.” Those topics included workforce profile, benefits and compensation, parental leave, child care, flexibility and retention and advancement of women.

Two of the big firms based in Richmond, Hunton & Williams and McGuireWoods, made the list.

And a number of DC-based firms, some of whom have Virginia offices, were on there as well:
• Arnold & Porter
• Covington & Burling
• Dickstein & Shapiro
• Hogan & Hartson
• Howrey
• Miller & Chevalier Chartered
• Patton Boggs
• Sidley Austin
• WilmerHale

Other firms on the list were based in different locales, but have offices here in the Old Dominion:
• DLA Piper US, New York
• Morrison & Foerster, San Francisco
• Pillsbury Winthrop Shaw Pittman, New York
• Reed Smith, Pittsburgh
• Womble Carlyle Sandridge & Rice, Winston-Salem, NC

Attorneys for an 81-year-old woman filed suit today in Roanoke County Circuit Court to block enforcement of Virginia’s civil remedial fees.

The attorneys—John P. Fishwick Jr. and John E. Lichtenstein of Roanoke and Charles Van Hoback of Salem—contend that Virginia Code § 46.2-206.1 violates the U.S. Constitution by applying to Virginia residents but excluding non-residents and by imposing “discriminatory sanctions and penalties upon indigent defendants with no regard to their ability to pay.”

The complaint alleges that the plaintiff, Mary Minter, is indigent and would immediately lose her right to drive because she is unable to pay the fees that would be associated with the reckless driving charge she is facing.

The attorneys allege that the law violates the Virginia Constitution by requiring court clerks to pay what are in fact punitive fines rather than civil fees to the state’s general fund instead of the Literary Fund. Moreover, requiring the clerks to collect a tax violates the constitutional separation of powers because it has no bearing on the cost of prosecutions, the suit alleges.

The papers request a preliminary injunction and ask the court to allow Minter to proceed “as the virtual representative and party by representation of all Virginia citizens who have been assessed or will be assessed such charges.”

In Commonwealth v. Price, an opinion released this afternoon, Henrico County Circuit Judge L.A. Harris Jr. upheld the civil remedial fees for “dangerous drivers” under Virginia Code § 46.2-206.1.

Defendant Anthony O. Price argued the fees are unconstitutional, in that they are levied against Virginia drivers, but not against drivers from other states traveling through Virginia and charged with the same offenses.

Earlier, General District Judge Archer L. Yeatts III convicted Price on a fifth offense of driving on a suspended license but refused to impose the extra $750 in civil fees because the judge said the statute violated equal protection principles.

But Harris found the statute bears a rational relationship to a legitimate legislative purpose

“Clearly, Virginia residents have more of an obligation to finance their own roads, than do non-residents driving through on Virginia’s highways,” Harris wrote in his Aug. 13 opinion.

Harris also said the legislature may have rationally decided to exclude non-residents in this civil remediation fee scheme because “the costs of collecting on a judgment outweighs any benefits with respect to out-of-state motorists.”

The Henrico judge concluded Price had not met his burden to negate “every conceivable basis” to support the legislative classification, and the statute must stand.

So you got one of those EZ-Pass things that you stick on your windshield, allowing you to zip through a toll plaza and avoid a long line.

Better stay on the marital straight and narrow.

The Associated Press has a story that may strike fear among philanderers: Divorce lawyers have discovered that records for E-ZPass, originally known as Smart Tag in Virginia, can be useful to prove where a cheating spouse was.

Or as Jacalyn Barnett, a New York divorce lawyer, colorfully put it, “E-ZPass is an E-ZPass to go directly to divorce court, because it’s an easy way to show you took the off-ramp to adultery.”

Okay, that’s a nice turn of phrase, but per the AP, lawyers are finding the E-ZPass info to be a useful tool to prove or disprove a wandering spouse’s whereabouts, or a way to impeach credibility.

Twelve states, mostly along the Atlantic coast, are on the E-ZPass system. State agencies in seven of those states, including Virginia, will turn over records in response to a court order in either a criminal or civil case, including a divorce. Four states will let the records be used only in criminal cases; West Virginia doesn’t have a policy.

Moral of the story, if there is one: If you’re going to stray, pack that E-ZPass away.

McGuireWoods, the Richmond-based legal giant, has a new managing partner, Thomas E. Cabaniss (see picture at right).

Cabaniss, a partner in the firm’s Charlotte office and the first managing partner from outside Richmond, succeeds William J. Strickland, who held the post for 11 years. Strickland will return to full-time practice in the firm’s capital markets department.

Cabaniss joined the firm’s Norfolk office from Kaufman & Canoles in 1985, moved to the Tysons Corner office in 1992 and helped establish the Charlotte office in 1998. He was on the executive committee from 1992 to 1998 and chaired the finance committee from 1996 until his election as managing partner.

He concentrates his practice in the areas of real estate and commercial lending, banking and creditors’ rights.

A native of Farmville, Strickland graduated from North Carolina State University in 1972 and from the University of Virginia law school three years later.

“Tom’s in-depth understanding of the firm, his passion for excellence and his devotion to client service will serve us well as we take McGuireWoods to the next level,” said Richard Cullen, the firm’s chairman. It has about 750 lawyers in 15 offices in this country, Europe and Central Asia.