The VLW Blog

In this week’s issue of Virginia Lawyers Weekly, we presented the recipients of our 2007 “Unsung Legal Heroes” awards.

The awards program honors professionals who work behind the scenes in law offices and courthouses throughout the commonwealth, including: legal secretaries/assistants, law librarians, paralegals, firm administrators and IT professionals.

These 15 individuals were nominated by their colleagues and selected based upon their outstanding contributions to the legal community.

Congratulations to all!

A second circuit judge has upheld the constitutionality of Virginia’s civil remedial fees.

Westmoreland Circuit Judge George Mason III reversed last week a ruling by Hanover General District Judge Peter L. Trible that the fees violate the Virginia and U.S. constitutions’ guarantee of equal protection under the law.

Mason heard the case after Hanover Circuit Judge John Richard Alderman disqualified himself because his father-in-law, Del. Frank D. Hargrove Sr., R-Hanover, voted for the legislation.

At least three general district judges—Archer L. Yeatts III in Henrico and Thomas O. Jones in Richmond in addition to Trible—have ruled that the fees are unconstitutional. However, Henrico Circuit Judge L.A. Harris Jr. reversed Yeatts in the only published opinion so far.

Mason referred to Harris’ opinion in ruling from the bench and did not issue a written opinion.

Richmond Circuit Judge Walter W. Stout III heard arguments last week in the appeal of Jones’s ruling and indicated that he would provide a written decision.

The fees drew little attention during the 2007 General Assembly session because they were a relatively small part of a $3 billion transportation package. They require the payment of $750 to $3,000 in three installments over 26 months and are projected to generate about $65 million annually for state transportation needs.

Publicity about the fees shortly before their effective date of July 1 generated a firestorm of opposition over their high cost and their application to Virginians but not out-of-state drivers.

The Supreme Court of Virginia may yet reach the merits of the effort of a lesbian mother to sever the parental rights of her former partner.

“May” because attorneys for the partner, Janet Jenkins, contend that Virginia law bars consideration of issues in a second Virginia appeal that already were determined in an earlier appeal.

That appeal was to the Virginia Court of Appeals, which ruled in November that Vermont had jurisdiction over issues of custody and visitation for Isabella, the daughter of Lisa Miller who was conceived by artificial insemination. Miller failed to file a proper notice of appeal to the Supreme Court, and the high court refused to consider the case.

While the first appeal was before the court of appeals, Frederick County Circuit Judge John R. Prosser refused to register the Vermont order on the parental rights and responsibilities of Jenkins and Miller. A second court of appeals decision reversed that ruling in light of the court’s holding in the first appeal.

In her petition for appeal to Supreme Court on the validity of the Vermont order, Miller repeats many of the arguments she made in the petition that the Supreme Court dismissed on procedural grounds.

Not so fast, Jenkins responded in her brief in opposition. Because those issues already were decided on appeal, they became the law of the case and cannot be reviewed by the Supreme Court, she contends. The Supreme Court agreed on Sept. 12 to hear the case, Record No. 070933.

In essence, Jenkins contends that the federal Defense of Marriage Act and the Virginia public policy against recognition of gay marriage or civil unions prevent Virginia courts from giving full faith and credit to the Vermont decisions in the case.

A Suffolk general district judge has delayed the verdict in an assault case after getting assurances from the defense attorney, a member of the General Assembly, that lower court judges can do so, The Virginian-Pilot reports.

Judge James A. Moore delayed judgment for a year in a case brought by a church secretary against a minister. The secretary claimed the minister, unhappy with her leaving early one day, came around her desk and choked her. Her mother, who works at the church, backed her story. The minister’s wife, also present that day, said her husband never went around the desk and didn’t touch the secretary. A total of nine witnesses appeared, including Sen. L. Louise Lucas, D-Portsmouth, who was a character witness for the defendant.

According to the account in the Pilot, Moore said “he wished the General Assembly gave lower court judges the power to delay verdicts.” Del. Kenneth Melvin, D-Portsmouth, represented the defendant. He told Moore that “judges have the power inherently” to delay verdicts.

The Virginia Court of Appeals offered a different point of view three weeks ago. In Gibson v. Commonwealth, the appeals court found that in the absence of explicit legislative authority, judges can’t defer judgment in a criminal case. In the Gibson opinion, Judge Jean Harrison Clements listed the offenses in which judgment can be deferred; assault was not on that list.

Andrew Marsinko, a Botetourt County poultry farmer, wasn’t happy when he learned that a photo taken of him at the 1996 Virginia State Fair showed up on a greeting card.

The card shows him wearing a cowboy hat and holding a goose on his knee. The speech balloon on the cover says, “Since it’s your birthday, you decide — Would you rather get spanked …” (Open the card) “Or goosed? Happy birthday!”

Marsinko is a figure of note in poultry circles and went to fairs and auctions where people would rib him about the photo.

His response: a $7.5 million lawsuit against the photographers, the greeting card company, just about everyone involved. He claims defamation, unauthorized use of image and infliction of emotional distress, among other things. The Roanoke Times reports that Marsinko says he never signed a release for the photo, the key to whether he can recover anything.

Former University of Mary Washington President William J. Frawley was in court yesterday on the first of two drunken-driving hearings he will have this week.

The Richmond Times-Dispatch reports that in Fredericksburg general district court, he entered an Alford plea, in which he did not admit guilt but acknowledged the prosecution had enough evidence to convict him. Frawley is scheduled to appear in Fairfax on Friday.

Retired Judge Jack Coulter died last Thursday at the age of 83. He served on the 23rd Circuit, covering Roanoke, Roanoke County and Salem, from 1973 to 1989. In the 1980s, Judge Coulter twice was under consideration for a seat on the Supreme Court of Virginia. The judge practiced law with his son Philip in Roanoke after leaving the bench.

The Roanoke Times has the story.

A box cutter is not a weapon and a pistol is no longer “about the person” if its owner immediately moves away from it after placing it in a car console, the Supreme Court of Virginia ruled today in reversing two convictions for carrying a concealed weapon after having been convicted of a felony.

The box cutter case, Harris v. Commonwealth, reversed Obanion v. Commonwealth, a 2000 opinion from the Virginia Court of Appeals. Although the box cutter in question contained two razor blades and a razor is listed as a weapon that can be concealed, “the item must be designed for fighting purposes or commonly understood to be a ‘weapon’ ” before it will support a conviction, the court said.

In Pruitt v. Commonwealth, the court distinguished the defendant’s actions from those in which the suspect had a weapon in a saddlebag and a purse. “[T]he weapon is not as readily accessible,” the court said.

In another criminal case, Anderson v. Commonwealth, the court rejected a challenge to Virginia Code § 19.2-310.2:1, which requires the collection of a DNA sample after the arrest of a defendant for specific offenses. The collection is analogous to the taking of fingerprints and does not implicate the Fourth Amendment’s ban on unreasonable searches and seizures, the court said.

Here’s a nugget for the employment bar from Banks v. Mario Industries of Virginia Inc., decided today by the Supreme Court: Disclaimers about no expectation of privacy in the use of company computers will be upheld, and attorney-client privilege is no help to an ex-employee on the point.

The Banks case was a business-tort claim against an employee who wanted to leave his employer and start a competing business.

He tapped out a memorandum outlining his plan, ideas and ambitions for his new business. He used his employer’s computer, printed it out on the office printer and erased the file from the hard drive. He sent the plan to his lawyer for review.

The guy left and followed through on the plan; the inevitable lawsuit followed. A computer forensics expert found the wiped file on the hard drive, and the info was used at trial, which the employer won more than $1.6 million in damages, including more than $50K in punitives.

On appeal, the guy claimed error on admission of the memo, based on attorney-client privilege. The company let employees use office computers for personal business, but their handbook stated that there was no expectation of privacy in that use.

The court moved this point of evidence into the computer age. In a 1988 case, the court said that when parties allow their conversations to be overheard, any privilege is waived. Citing that decision, the court found it was OK to let the memo come in.

Overruling a 68 year-old precedent, the Supreme Court of Virginia has uprooted a rule that limited a neighbor’s remedies when confronted by the tree next door.

In a case from Fairfax Circuit Court, Richard Fancher sued townhouse neighbor Joseph Fagella, alleging the spreading root system of a sweet gum tree in Fagella’s back yard had clogged Fancher’s sewer system, and undermined his foundation, backyard patio and a retaining wall.

Based on the 1939 case of Smith v. Holt, the circuit judge denied injunctive relief. Smith said a landowner could only use self-help remedies against intrusive roots and branches from a neighbor’s plantings, if the encroaching vegetation is not “noxious in nature” and causes no “sensible injury.”

But the high court said today “noxious” depends on the viewpoint of the beholder, citing poison ivy and kudzu as questionable flora.

Adopting the more modern “Hawaii rule,” the Supreme Court said that encroaching trees and plants that cause actual harm or pose an imminent danger of actual harm to adjoining property may be regarded as a nuisance, and their owner may be required to cut back or remove the plant material.

The appellate court remanded Fancher v. Fagella for consideration of injunctive relief along with Fancher’s claim for damages.