The VLW Blog

Narrow legal analysis may be a more effective way to attack Virginia’s civil remedial fees than broad constitutional and public policy arguments.

That could be a lesson from the case of Rajesh Cherkukuri, an Indian national who was convicted earlier this month of drunken driving in Prince William County.

Cherukuri has a Virginia driver’s license and has lived in the state for about a year. Prosecutors insisted that those circumstance made him a Virginia resident and subject for payment of $2,250 in civil fees over 26 months. The exclusion of nonresidents from liability for the fees has been the major argument opponents of the law have raised in saying that it violates the equal protection clauses of the state and federal constitutions.

Not so fast, Cherukuri’s attorney, Lou Brooks of Manassas, countered. The definition of resident in Code § 46.1-206.1 is ambiguous enough that interpretation of the term requires a look at the use of the word in other sections of Title 46.2, Brooks insisted.

General District Judge Craig D. Johnston agreed. A key concept of residence is domicile, which generally requires “the intention to remain [in a place] for an indefinite period of time.” Cherukuri doesn’t fit that definition because he is in this country on a temporary student visa and intends to return to India, Johnston wrote on Sept. 25 in Commonwealth v. Cherukuri (VLW 007-12-03).

“I conclude that the statutory exemption of nonresident students from those persons who are deemed residents for purposes of Title 46.2, including impositions of the civil remedial fee, was a deliberate exemption,” Johnston said in refusing to impose the fees on Cherukuri.

Arlington General District Judge Dorothy Clarke ruled Tuesday that the state’s new fees for “abusive drivers” are unconstitutional.

Clarke bought the defendant’s equal protection argument. The scheme applies only to state residents.

The Washington Post has the story.

A Roanoke County circuit judge has rebuffed a request to stop statewide collection of “civil remedial fees” from “abusive drivers.” The Roanoke Times reports that Judge Jim Swanson denied an injunction to a team of lawyers representing several drivers who face assessment of the new hefty fees.

The judge expressed some skepticism about their lawsuit challenging the constitutionality of the new scheme, but he delayed ruling for another day.

Yet another general district judge has upheld Virginia’s new scheme of “civil remedial fees” for “abusive drivers.” This time, the venue is Chesterfield County.

The Richmond Times-Dispatch reports that Chesterfield General District Judge Philip V. Daffron has ruled that the statute establishing the fees is constitutional. Turning back a challenge by five drivers, Daffron found that the General Assembly had a rational basis for passing the law.

The lawyer for one of the defendants said he may appeal the ruling.

Before suspended Atlanta Falcons quarterback Michael Vick pleaded guilty in Richmond federal court to a dogfighting charge a few weeks ago, it seemed like the news in central Virginia was all Vick, all the time. Since then his name mostly has been showing up low in the stories about yet another Falcons loss.

But today’s papers have two new items about him.

This one is no surprise: Surry County Commonwealth’s Attorney Gerald G. Poindexter says that he will ask a grand jury for state indictments of Vick on dogfighting-related charges today. The Associated Press has the story.

And The Daily Press has an item about a bank that is suing Vick for $2.3 million, claiming default on a loan. Claiming his indefinite suspension by NFL Commissioner Roger Goodell may be a change in employment jeopardizing his ability to repay, the Royal Bank of Canada says that Vick is in default and it wants its money back. The bank filed papers in Newport News federal court last week.

Karen A. Gould, the immediate past president of the Virginia State Bar, will succeed Thomas A. Edmonds as executive director of the agency.

The appointment is not yet official because the VSB Council must act on it at its October meeting, and the Supreme Court of Virginia must approve the council’s recommendation.

However, Gould was recommended Friday by a committee that searched for almost a year for Edmonds’ replacement. The chairman of the committee, former VSB President Phillip V. Anderson of Roanoke, said in a letter to past presidents of the agency, “The Supreme Court has been kept advised of the process along the way and has given its support to the process and has agreed to accept the Council’s recommendation.”

The committee was prepared to recommend a replacement in March, but the leading candidate withdrew at the last minute to accept another offer in the private sector.

The committee decided to start over and, in addition to readvertising for the post, decided that committee members should approach candidates they knew personally and believed could perform the job. Gould, who had been an ex officio member of the search committee, was one of those approached. She then immediately withdrew from further participation in the committee other than as a candidate.

After two rounds of interviews, Gould was the unanimous choice of the committee on the first ballot, Anderson said.

“I look at this as an opportunity to do a job that I feel very passionate about,” Gould said.

Edmonds, 69, is retiring at the end of the year after 18 years as the chief administrative officer for VSB.

A circuit judge has ruled that the capital murder trial of William Morva, charged with killing two law enforcement officials, should be moved from Montgomery County, reports the Roanoke Times. A manhunt for Morva around Blacksburg briefly closed the Virginia Tech campus on the first day of classes of the 2006 school year.

The judge found that too many people in the jury pool had ties to the case, which touches a number of localities in the New River Valley and Tech.

It is the first case to be moved out of the county in nearly 30 years.

When the 11-year-old girl’s mother confronted her daughter about her suspicion that the girl’s stepfather had been abusing her, the girl at first denied it.

The mother took her for a medical examination anyway in July 2006. Not only was the stepfather’s DNA found inside the girl’s vagina, she was pregnant by him.

A Washington County jury took a very dim view of those facts at the end of a three-day trial on Wednesday. It recommended that Sixto Lopez Laines, 31, serve life in prison on each of 26 sexual assault counts—12 for sodomy and seven each for rape and object sexual penetration.

Heather Howard, the assistant commonwealth’s attorney who prosecuted the case, said Laines is an illegal immigrant who first entered the country from Mexico when he was 17. He and the girl’s mother had lived together in the county since 2001.

The assaults began in January 2004 and lasted for more than two years, Howard said. Most of them occurred while the mother was out of the home on errands, she said.

In what appears to be the first ruling in Hampton Roads on civil remedial fees, Virginia Beach General District Judge Calvin Depew Jr. has found them to be constitutional.

The Virginian-Pilot reports that Depew heard arguments Friday in a misdemeanor aggressive driving case and issued an opinion late Tuesday.

General district judges in Hanover and Henrico counties and the city of Richmond have ruled that the fees are unconstitutional because they apply only to Virginians but not to out-of-state residents.

However, circuit judges in Hanover and Henrico reversed the lower court judges, and Richmond Circuit Judge Walter W. Stout III heard arguments last week in an appeal of the city case.

Depew’s opinion is at the VLW Web site along with other articles and opinions on civil remedial fees.

Senior Judge H. Emory Widener Jr. of the 4th U.S. Circuit Court of Appeals died yesterday at his home in Abingdon, reports the Bristol Herald Courier. He was 83. Appointed to the bench by President Nixon in 1972, Judge Widener took senior status in July.