The VLW Blog

Harrisonburg city treasurer Rebecca Neal is under indictment for alleged fraud. She faces a petition to have her removed from office. Just this week, an employee of her office sued her for alleged harassment.

But apparently Neal is not hiding or giving up. Her lawyer has fired back with a demurrer claiming the petition to remove her from office is legally defective, according to WHSV television. Furthermore, Neal up and fired a key employee on Friday, says the Daily News Record.

A hearing on the citizens’ petition to remove Neal from the treasurer’s job is set for Thursday at 9 a.m. before Rockingham County Circuit Judge James Lane.

UPDATE:
Thursday’s hearing is continued to June 12, according to WHSV.

UPDATE AGAIN:
Judge Lane says he likely will rule Friday on the prosecutor’s motion to suspend Neal from the treasurer’s job, according to the Daily News Record.

Even the most even-tempered judge knows. Sometimes the lawyers in your courtroom are just going to yank your chain.

But a judge can be too quick to pull the trigger on a summary contempt citation under Va. Code § 18.2-456, as the Court of Appeals points out in Scialdone v. Commonwealth, decided yesterday.

In a 2-1 decision, the appellate court reversed summary contempt, including jail terms, for two Virginia Beach lawyers and their law clerk. The lawyers, Claude Scialdone and Barry Taylor, were defending their client Frankie Dulyea on criminal charges stemming from online conversations in 2005 with an undercover cop pretending to be a pubescent girl. Virginia Beach Circuit Judge Patricia West ordered the lawyers to jail for offering into evidence an altered document purporting to show Internet chat-room rules at the time of Dulyea’s chats.

Then there was the matter of the law clerk’s screen name – westisanazi – that appeared on a document the lawyers brought to court.

West relied on the contempt statute, but Judge Larry Elder said in a 44-page opinion that West violated the appellants’ due process rights when she haled both partners, the clerk and a secretary into court to give sworn testimony about how the document came to be printed and brought to court. The judge even sent a court deputy back to the firm to watch the legal secretary as she attempted to duplicate her efforts to print out the document.

The appellate panel majority said the lawyers and law clerk should have had a chance to defend themselves. Quoting a 1958 U.S. Supreme Court opinion, Brown v. U.S., Elder said trial courts must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.

Here’s more follow-up: While serving a three-year sentence for using the Internet to try and entice a minor to perform in sexually explicit material, Frankie Dulyea was acquitted last year of charges that he solicited someone to kill Judge West. On Sept. 11, 2007, the VSB suspended Scialdone’s law license on impairment grounds.

Two vastly different stories emerge from the pleadings in a Newport News federal lawsuit where a woman claims she was refused service at an IHOP restaurant, according to the Virginia Gazette.

The Supreme Court of Virginia has granted a rehearing petition in the case of the country’s first felony spam conviction. As explained by the Richmond Times-Dispatch, the issue is whether Virginia’s anti-spam law is unconstitutional on its face.

The nomination of Virginia Supreme Court Justice Steven Agee to the federal appeals bench has turned into a political football as U.S. senators wage their long-running battle over judicial nominations. Despite the wrangling, however, there is no suggestion that the prospects for Agee’s confirmation are threatened.

The skirmishing plays out against a background of political conflict over President Bush’s appointees to the federal courts. Accused of foot-dragging on confirmations, the Democratic leadership of the Senate Judiciary Committee promised to get three appeals court judges confirmed by Memorial Day. Now, Republicans are crying foul because it looks like the Democrats are cherry-picking which nominees they will confirm.

Even though he has Republican roots, Agee is considered one of the Democrats’ “cherries,” since he was approved by both Virginia senators, Democrat Jim Webb and Republican John Warner.

Judiciary Committee chairman Patrick Leahy last week announced a confirmation hearing for Agee to take place Thursday at 2:15 p.m. Republicans immediately grumbled about the fact that two other nominees to the Fourth Circuit have been waiting for many months without any hearings scheduled.

Those other nominees are U.S. District Judge Robert Conrad of Charlotte (a UVA Law grad who practiced for three years in Charlottesville) and South Carolina lawyer Steve Matthews.

With the delays in nominations and confirmations, the Fourth Circuit bench remains one third vacant.

Roanoke Circuit Judge Swanson noted today that Chris Clemens was appointed to the district court bench by a “majority” of the circuit court judges. The Roanoke Times has more on the impact of the decision on Clemens’ law office and his role as member of the Salem City Council. Having given up his offices as attorney and city councilman, Clemens could be “unbenched” next year if the General Assembly decides to name someone else for the permanent judgeship.

The General Assembly earlier this week elected judges for many of the open seats across the commonwealth. One of the positions that remained vacant after Wednesday was a general district judgeship in Roanoke County. Judge Julian Raney retired at the end of December.

Local legislators were deadlocked between Roanoke Commonwealth’s Attorney Donald Caldwell and Salem City Councilman Christopher Clemens.

According to Peter Vieth of our western Virginia bureau, this morning at a Roanoke bench-bar conference, Roanoke Circuit Chief Judge James Swanson announced that the judges of the circuit met this morning had selected Clemens for the position.

Clemens, who practices in Salem, had won endorsements from the Roanoke Bar Association and the Salem/Roanoke County Bar Association.

The General Assembly elected 22 judges late yesterday but failed to fill vacancies on the State Corporation Commission and in Norfolk, Virginia Beach, Hampton and Roanoke.

Court of Appeals Judges Robert J. Humphreys and Jean Harrison Clements won reappointments, and the other elections were for vacancies in circuit, general district and juvenile and domestic relations district court.

The failure to reappoint Humphreys promptly was viewed as the most embarrassing aspect of the legislative wrangling over judgeships. He went off the bench April 15 when his term expired even though there was no opposition to his reappointment.

A deal brokered by Del. Bill Janis, R-Henrico, and Sen. Don McEachin, R-Henrico, to appoint Henrico Circuit Judge Catherine Hammond to the SCC and replace her with Mary Bennett Malveaux fell apart. The Richmond Times-Dispatch describes the impasse.

The Daily Press has an analysis of the legislative discord in Hampton, and The Virginian-Pilot has a story on the Norfolk-Virginia Beach squabbling.

In Roanoke, the delegation has been unable to decide between Roanoke Commonwealth’s Attorney Donald S. Caldwell and Salem City Council Member J. Christopher Clemens for the general district seat held by retiring Judge Julian Raney.

The Division of Legislative Services has a list of the appointments.

The nexus between debt and divorce has occupied the Virginia Court of Appeals this week.

In a published opinion out of Hanover County, the appellate court said in Marvin v. Marvin that a husband’s debt of attorney’s fees to wife in her proceeding charging violations of a court visitation order could not be discharged in husband’s bankruptcy, because the fee award to wife is “in the nature of child support.”

In Stacy v. Stacy, a wife tried to insulate the husband’s ongoing mortgage payments from a possible bankruptcy by calling them “in the nature of support” in the parties’ PSA. But a panel majority said the husband still could terminate the mortgage payments when wife admitted to cohabitation with another man. Judge Elizabeth McClanahan dissented in the unpublished opinion in the case out of Buchanan County, saying the parties expressly waived their rights to spousal support in the PSA and the trial court had no authority to terminate the husband’s obligation to a third party, the mortgage lender.

A unanimous U.S. Supreme Court ruled today that the illegality of a search under Virginia law does not require the suppression of evidence seized during the search.

Writing for the court in Virginia v. Moore, Justice Antonin Scalia said in that the high court long has held that probable cause to arrest justifies a search. Virginia is free to make exclusion of evidence seized in violation of Virginia Code Sect. 19.2-74(A)(1) a remedy for an arrest that is illegal under state law but allowed by the Fourth Amendment, Scalia said. The state has not done so, however, and the Fourth Amendment cannot be used as a remedy for an act that does not violate the constitution, he wrote.

The case from Portsmouth involved the arrest of David Lee Moore on a charge of driving without an operator’s license, a misdemeanor for which state law required his release on a summons. Although the attorney general’s office conceded that he was arrested in violation of state law, it contended that the search did not violate the Fourth Amendment because police had probable cause to search Moore. The search produced 16 grams of crack cocaine and $516 in cash. Moore was sentenced to 3 1/2 years in prison.