The VLW Blog

So much for bipartisanship.

All members of the Senate Courts of Justice Committee appeared to agree yesterday about the best response to the state’s much-maligned civil remedial fees: repeal them as soon as possible and make refunds to those who have paid them already.

Somehow, however, the committee split along partisan lines, 8-7, on several votes merely to repeal them with no emergency provision or mention of refunds.

Democrats saw that as the best way to get repeal and emergency action through the House of Delegates, which has several bills pending that would tweak the fees rather than repealing them outright. The House requires an 80 percent vote to make legislation effective on the governor’s signature, and several senators said they think that is unlikely.

On the other hand, several legislators noted, Gov. Timothy M. Kaine could sign the repeal as emergency legislation on his own hook, and it would take only a simple majority vote in each house to sustain the governor’s action.

That was way too clever for Virginia Beach Sen. Kenneth W. Stolle and his Republican colleagues. They wanted the measure to include an emergency provision and refunds. “We’re letting politics cloud our judgment,” Stolle said. “The right thing to do, and everybody at the table knows this, is to repeal this thing as quickly as we can.’ ”

Six bills that would repeal the fees were rolled into a bill sponsored by R. Edward Houck, D-Spotsylvania and eventually referred the Senate Finance Committee on a majority vote with no emergency or refund provisions.

Sen. Richard L. Saslaw, D-Fairfax, said $13 million in fees had been assessed and $4.8 million had been collected by Dec. 31. Those numbers suggest that the fees would generate far less than the $65 million that were projected for the transportation program enacted last year.

Animal rights activists have tried for years to get Virginia’s laws on animal fighting changed to protect the four-legged of the world, with little to show for it. After the embarassment of the Michael Vick dogfighting case here in the Old Dominion, legislators apparently now are listening.

The Washington Post reports the 2008 session has been flooded with pro-animal bills.

And continuing the animal law news roundup, cats may be able to claim some degree of parity with dogs, if House Bill 334 becomes law.

Proposed by Del. Jennifer McClellan, D-Richmond, the measure would make it a class 5 felony to steal a cat. It’s already a felony to steal a dog. Dogs apparently have had better lobbyists in years past. The Virginian-Pilot has details.

Our DC-based colleague over at Lawyers USA, Kim Atkins, was down at the U.S. Supreme Court today, listening to argument in a case from Portsmouth, Virginia v. Moore.

It’s a search case that has already been through the Supreme Court of Virginia, where the defendant prevailed.

But 18 attorneys general from other states have backed the Virginia authorities in the case, even if the ABA and the NACDL are supporting Mr. Moore.

Justice Antonin Scalia, in a line of questions for Stephen McCullough, the deputy solicitor general appearing on behalf of the commonwealth, played “what if.” He asked what if he had a neighbor near his home in McLean who was growing dope and what if he conducted a search on behalf of the commonwealth.

Check out the DC Dicta post to see just how far Scalia took this one.

The federal criminal case of former Lynchburg Mayor Carl R. Hutcherson Jr. is over.

Hutcherson was convicted last year of fraud and other counts but appealed those convictions to the 4th U.S. Circuit Court of Appeals. The government also appealed, contending that the sentence imposed by U.S. District Judge James C. Turk was unreasonable.

Federal sentencing guidelines recommended a minimum sentence of 36 months in prison, but Turk instead sentenced Hutcherson to probation and 200 hours of community service and ordered him to pay about $15,000 in fines and restitution.

Turk cited Hutcherson’s poor health, his history of honorable public service and his model behavior while awaiting trial and sentencing as reasons to depart from the guidelines.

The sentence became much more reasonable last month, when the U.S. Supreme Court decided Gall v. U.S. The decision gave trial judges much more leeway in imposing sentences and said those sentences must be interpreted by appellate courts under an abuse of discretion standard.

Gall involved a defendant in an ecstasy distribution conspiracy who also had received probation when the guidelines called for at least 36 months in prison. He acknowledged netting $30,000 from it, but he voluntarily withdrew from the conspiracy several years before he was charged and had graduated from college and started his own business in the interim.

In a statement today, Hutcherson’s attorneys, John P. Fishwick Jr. and John E. Lichtenstein of Roanoke, said the 4th Circuit has entered an order dismissing the appeals of both Hutcherson and the government. “We always believed that the Court’s sentence accurately and appropriately reflected Carl’s lifetime of service to the City of Lynchburg and to so many of its citizens,” the lawyers said.

Attorney General Bob McDonnell has filed papers for the state to intervene in the Episcopal Church case in Northern Virginia.

The case, tried last fall, pits the diocese against 11 congregations that want to break away; millions of dollars in church property hangs in the balance. McDonnell said that since the constitutionality of a state statute was challenged in the case, the commonwealth needs to be a party.

The Washington Post has details.

You probably don’t have this much interest in interest.

The Supreme Court of Virginia takes 49 pages, including a five-page concurrence, to untangle the mess created by two jury trials, two earlier appeals, the specification by a jury of an interest rate higher than the one the trial court allowed, and the possible accrual of post-judgment interest on pre-judgment interest.

The bad news is that wading through Upper Occoquan Sewage Authority v. Blake Construction Co. may well become the first step toward resolving any dispute in which interest is an issue.

If the case doesn’t satisfy your civil procedure jones, try Ahari v. Morrison, in which plaintiff filed an amended complaint and a motion to for leave to amend three days before the statute of limitations expired. The trial judge took two months to act on the papers. The defendants contended that the amended complaint was filed outside the statute because the date of filing is the date the court acts on the motion, not the date it is filed with the clerk.

Because Rule 1:8 requires leave of court to amend any pleading after it is filed, the defendants are correct, the court ruled.

No expert testimony is needed to establish that a dialysis center was negligent in placing a patient in a chair that collapsed—twice, the Supreme Court of Virginia ruled today.

“The issue of the defendant’s acts of medical negligence regarding the defective chair is quite simple and within the common knowledge of a lay jury,” the court held.

The case of Coston v. Bio-Medical Applications of Virginia Inc. was one of two medical malpractice cases the court reinstated.

In the second, Lloyd v. Kime MD, the court held that a neurologist who no longer performs surgery or has an active clinical practice nevertheless could testify about postoperative treatment by an orthopedist of a man who underwent a cervical diskectomy. The neurologist also could testify about the proximate cause of the plaintiff’s injuries, but he could not testify about the standard of care during the operation itself, the court held.

A new specialized license plate could be coming soon to Virginia.

Its focus group? Drunken drivers.

A newly proposed law would order Virginia drivers with three or more DUI convictions to sport bright yellow license plates with red characters – a “Scarlet Letter” of sorts for repeat offenders.

The bill, sponsored by Del. Lionel Spruill Sr., D-Chesapeake, would require offenders to purchase the plate for $500 and keep it on their vehicles for five years after retaining their driver’s licenses. According to the DMV, three drunken driving convictions in 10 years results in indefinite license revocation. Third-time offenders also face over $1000 in fines and mandatory jail time.

In an article from The Virginian-Pilot, opponents of the bill call the proposed law a violation of civil liberties, and claim that similar laws passed in other states failed to curb instances of drunken driving.

Others argue that the proposed law is too lenient, preferring harsher punishments such as specialized plates after a first DUI offense and vehicle repossession for second and third convictions.

Spruill stands by the measure, likening it to the public database that identifies repeat child molesters. He says the plates would warn other drivers of a potential danger on the road.

But critics – and drunks – should probably rest easy. A similar bill, proposed by Spruill last year, never made it past committee.

A Department of Motor Vehicles record that a defendant was notified of his habitual offender status by law enforcement did not establish that he received actual notice of his determination as an habitual offender, the Supreme Court of Virginia ruled today.

The DMV record entry, “Notified: 2001/03/10 by law enforcement,” “does not specify the content of any notification that may have been provided to [the defendant], and this entry does not identify the person, agency, or entity that constituted law enforcement,’ ” the court said.

Despite the reversal in Bishop v. Commonwealth, it was a good day for the Virginia Court of Appeals and the attorney general’s office. The high court upheld convictions in six other cases and reversed a grant of a new trial by a Norfolk Circuit judge granted in a widely publicized murder case. That contrasts with recent Supreme Court opinion days in which most decisions were in favor of criminal defendants.

In Wright v. Commonwealth, the court said a trial judge can impose additional terms of suspended incarceration and post-release supervision after accepting a plea agreement under Rule 3A:8(c)(1)(C).

In Malbrough v. Commonwealth, the court held that the trial judge properly ruled that a defendant consented to a search of his person after he was told that he was free to leave at the end of a traffic stop.

In Phelps v. Commonwealth, the court said the person endangered under a charge of felony eluding and endangerment under Code § 46.2-817(B) can be the defendant himself.

In Parker v. Commonwealth, the court affirmed a conviction for larceny under false pretenses of a man who sold fake ecstasy pills to an undercover police office.

In Glenn v. Commonwealth, the court agreed that a grandfather had the authority to allow the search of a backpack in the room of the house the grandson occupied.

In Bolden v. Commonwealth, the court upheld the conviction of constructive possession of a firearm that was found in a plastic bag in the seat that had been occupied by the driver of a vehicle. The trial judge also could infer that the presence of drugs in the car supported the finding that the defendant had dominion and control over the gun, the court said.

In the habeas case, Johnson v. Tice, the court rejected the trial judge’s finding that counsel for Derek Elliott Tice had been ineffective in failing to file a motion to suppress his confession. Tice is one of four defendants who pleaded guilty to the murder of Michelle Moore-Bosko in 1997. Four former Virginia attorneys general have questioned the validity of the convictions, citing inconsistencies in the confessions and DNA evidence the implicates a fifth suspect not charged in Moore-Bosko’s death but convicted of another rape.

Paybacks are, well, um, we won’t say what paybacks are.

But televangelist Pat Robertson, who has been unhappy with The Virginian-Pilot and its coverage of him and his activities, may buy the newspaper.

Norfolk-based Landmark Communications Inc. announced earlier this month that it will explore selling its assets, including The Pilot and The Weather Channel. Robertson said The Pilot would be useful in providing journalism internships for Regent University, the school he founded.

Who better to have the story than The Pilot itself?