The VLW Blog

A divided Supreme Court of Virginia has affirmed the computer crime conviction and nine-year prison sentence of a North Carolina man who sent mass quantities of spam – unsolicited bulk e-mail – through AOL servers in Northern Virginia.

Defendant Jeremy Jaynes of Raleigh was considered among the top 10 spammers in the world when he was charged in 2003 in the nation’s first felony prosecution against illegal spamming.

A Loudoun County jury convicted him of three counts of violating the Virginia Computer Crimes Act for spamming AOL users with offers to sell products such as a “Penny Stock Picker,” a “History Eraser” and a FedEx refund claim.

The state high court upheld the conviction today in Jaynes v. Commonwealth. The majority opinion by Justice G. Steven Agee rejected the notion that Jaynes, whose conduct clearly was criminal under the statute, had standing to challenge the statute on First Amendment grounds that might cover other kinds of protected speech.

Agee said a criminal defendant such as Jaynes could not invoke First Amendment protections for some hypothetical defendant not charged with a crime in order to win a “Get Out of Jail Free” card in his own case.

But three dissenting justices said the court’s precedent granted Jaynes standing, and the statute is “unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mails,” including political, religious or other speech protected by the First Amendment.

The Supreme Court of Virginia split sharply today in deciding three criminal cases – one affirming the procedure in state law for submitting certificates of analysis at trial, a second upholding admission of the items seized in a search under the “good faith” exception to the Fourth Amendment, and the third reversing a drug conviction that stemmed from the “plain feel” of capsules in the defendants pocket.

In Magruder v. Commonwealth, consolidating three cases, the court said the failure of the defendants to subpoena the technician who prepared the certificate amounted to a waiver of the constitutional right to confront the defendant articulated in Crawford v. Washington, 541 U.S. 36 (2004). The dissenters, Justice Barabara Milano Keenan, Chief Justice Leroy Rountree Hassell Sr. and Justice Lawrence L. Koontz Jr., responded that the waiver of a statutory right under Code § 19.2-187.1 could not be extended to a wavier of the Sixth Amendment right to confrontation.

In Adams v. Commonwealth, the same justices dissented to the court’s holding the “good faith” exception excused the failure to specify in the search warrant affidavit that the defendant lived in the house that was the subject of a search for a murder weapon. The affidavit was detailed in other respects, and it could be read without realizing that it did not mention that the defendant lived in the home, Justice Cynthia D. Kinser wrote for the majority.

The dissenters responded that the affidavit should have been seen as defective by any properly trained police officer because it did not mention any particular suspect or state any connection between the defendant. Justice Kinser also wrote the majority opinion in Magruder.

In Cost v. Commonwealth, Justice Koontz wrote that the “feel” of the capsules in a pat-down of a passenger in an automobile was not enough for a policeman to remove them from the defendant’s pocket. Justice Donald W. Lemons, joined by Justice Kinser, countered the “feel,” bolstered by the defendant’s furtive gesture toward the pocket and the policeman’s training, provided the probable cause required for the search of the defendant’s pocket.

The University of Virginia Health Services Foundation does not have charitable immunity, the Supreme Court of Virginia ruled unanimously today.

“HSF operates like a profitable commercial business with extensive revenue and assets. That portion of HSF’s services providing quality medical care to medically indigent patients is commendable,” Justice Donald W. Lemons wrote for the court in University of Virginia Health Services Foundation v. Morris. “However, when an organization is operated ‘in a manner calculated to produce a profit or gain,’ it is not entitled to charitable immunity.”

Judges in Norfolk and Portsmouth had granted charitable immunity to the HSF’s counterpart at the Eastern Virginia Medical Schools, but circuit judges sitting in Charlottesville Circuit Court had split on the issue with Judge Edward L. Hogshire of Charlottesville and H. Thomas Padrick Jr. of Virginia Beach, sitting by designation, finding it not to be charity, and Judge Randy I. Bellows of Fairfax, also sitting by designation, ruling that it is.

The Supreme Court of Virginia ruled today that the regional transportation plan for Northern Virginia violates the state constitution.

The constitution bars the imposition of taxes by non-elected bodies such as the Northern Virginia Transportation Authority, Justice S. Bernard Goodwyn wrote for a unanimous court. It doesn’t matter that the all but two of the members of the authority are elected officials – representatives of the Northern Virginia localities, two members of the House of Delegates, a member of the Senate and two citizens appointed by the governor.

The designation of the seven taxes and fees and their rates by the General Assembly doesn’t save the proposal either because the authority still has the power to refuse to impose them, Goodwyn said.

The taxes and fees would have provided the revenue for $130 million in bonds designated for transportation projects in the area. They were part of a transportation plan that sharply divided the legislature in 2006 and 2007.

Goodwyn was appointed last year by Gov. Timothy M. Kaine and elected to a 12-year term as a justice earlier this month. Marshall v. Northern Virginia Transportation Authority is his first opinion for the court.

A comprehensive restructuring of the way localities pay for the costs of growth perhaps proved to be too comprehensive too soon.

Senate Bill 768 would have replaced cash proffers, the amount developers pay per unit to get a rezoning approved, with impact fees, an amount per unit when a building permit is approved, regardless of rezoning.

Sen. John Watkins, R-Powhatan, the sponsor of the bill, and the Home Builders Association of Virginia relied on a study by a George Mason University that concluded that the proposal would produce more money than proffers.

With some proffers topping $40,000 and the impact fees initially limited to $8,000 in Northern Virginia and $5,000 elsewhere, localities had trouble accepting that logic. The Virginia Association of Realtors and localities also were not fooled by an effort to label an increase in the grantor’s tax a “real property tax relief fee.”

Watkins got the bill through the Senate on a 21-19 vote by dropping the grantor’s tax increase and agreeing to increase the impact fees to $12,500 in Northern Virginia and $7,500 elsewhere.

Localities said they aren’t opposed to studying the issue but contended it was too much too soon. The House Rules Committee agreed yesterday and carried the bill over till next year.

The Virginia Trial Lawyers Association appears likely to get one of its principal legislative objectives for the year.

House Bill 172 allows plaintiffs’ attorneys to get the policy limits of a potential defendant before filing suit. The VTLA had to give a little, however. It accepted an amendment that would attorneys must give the insurer proof of medical bills or lost wages totaling at least $12,500 before the policy limits must be disclosed.

The measure cleared the House by a 55-43 vote before the $12,500 provision was added and passed 15-0 in the Senate Courts of Justice Committee yesterday. Chris LaGow, a lobbyist for insurers, said they did not oppose the bill.

VTLA President Chuck Zauzig said the measure is a common sense proposal that will let everyone know the practical limits of recovery and encourage early settlement.

For the vacant seat on the State Corporation Commission, the House of Delegates wants Richmond lawyer/lobbyist Bernard McNamee. The Senate wants a former delegate, Barnie Day. The Richmond Times-Dispatch reports that yesterday, three new candidates for the post interviewed with the Senate Commerce and Labor Committee.

They are Henrico County Circuit Judge Catherine C. Hammond, Deputy Attorney General Frank Ferguson and Richard L. Savage, a lobbyist and former deputy attorney general.

The seat has been open since Feb. 1, when Judge Theodore V. Morrison retired.

Long before there were bloggers, there were preachers in pulpits charged with delivering momentous news.

Thus it was on July 17, 1776, that the Executive Council of Massachusetts took action to let colonists know that our nascent nation had severed its ties with England.

In order to broadcast the broadside, the council ordered that copies of the Declaration of Independence be printed and distributed to Massachusetts ministers to be read to their congregations, then delivered to town and district clerks to be recorded in local records “to remain as a perpetual Memorial thereof.”

Several years ago, a copy of one of those Massachusetts broadsides, rescued from an attic in 1995, came into the hands of Richard L. Adams Jr., who paid nearly a half-million dollars for the “Pownalborough Print.” Documentation indicated the copy had been intended for the Town of Pownalborough, Massachusetts, which is now Wiscasset, Maine.

In 2004, the State of Maine sued for return of the document. But on Feb. 22, Fairfax Circuit Judge Terry Ney said that Maine failed to prove either that the document had been a public record or that it had been lost or stolen from town records before Adams bought it from reputable dealer.

Ney confirmed Adams’ ownership of the document in a 14-page opinion in Adams v. State of Maine (VLW 008-8-039).

LeClairRyan will absorb Wright, Robinson, Osthimer & Tatum at the end of next month.

The merger of the two Richmond-based firms will give LeClairRyan a West Coast presence for the first time and increase the number of attorneys to more than 270. Wright Robinson has about 50 attorneys, with a quarter of them in Richmond.

It is perhaps best known for its representation of defendants in mass tort cases, and the firm’s emphasis on providing discovery solutions in large cases was a major attraction for LeClairRyan, according Gary D. LeClair, the firm’s chairman and co-founder.

The firm, which has expanded to Boston and New York in the last 18 months, also was interested in Wright Robinson’s offices in Los Angeles and San Francisco, which have a more traditional litigation practice.

Mark Yacano, a member of the Wright Robinson’s executive committee, said the LeClairRyan’s New York presence and its size and depth, especially in its litigation practice, were major attractions for his firm.

“We have a lot of complementary skill sets,” Yacano said. “It was a merger driven for all the right reasons, and we’re just as excited as we can be.”

The News & Advance reports this afternoon that the Lynchburg legislative delegation apparently has agreed upon a candidate for a pending circuit judgeship in the 24th Circuit: John Cook.

Cook would succeed Judge Sam Johnston of Campbell County, who is retiring June 1 after 30 years on the bench.

Cook, 50, is a partner with the firm of Caskie & Frost.