The VLW Blog

They take their cocktails seriously, those folks in Alexandria. And because the folks at the state Department of Alcoholic Beverage Control take the rules seriously, it look legislation from the 2008 General Assembly to make it legal for Northern Virginians (and the rest of us) to get such treats as sangria wine and frozen beer on a stick. As of Tuesday, both will be legal for sale at Virginia restaurants.

The sangria controversy apparently arose from charges brought against La Tasca restaurant in Alexandria in 2006. Sangria wine is often served fortified with brandy. Virginia law forbade premixing wine or beer with harder liquor (a rule that technically outlawed the martini and well as sangria and boilermakers).

Similarly, Alexandria’s Rustico restaurant was barred from serving “brew pops,” frozen beer-flavored desserts.

Sympathetic lawmakers came to the rescue with a bill to reform the ABC statutes. Now signed by Governor Kaine, the liberalized libation legislation takes effect July 1.

Virginia Court of Appeals Judges D. Arthur Kelsey and LeRoy F. Millette Jr. and Fairfax County Circuit Judge R. Terrence Ney have won the endorsement of both the Virginia Bar Association and the Virginia Association of Defense Attorneys for a vacancy on the Supreme Court of Virginia.

The VBA also endorsed Arlington Circuit Judge Joanne F. Alper, Chief Court of Appeals Judge Walter S. Felton Jr., Loudoun County Circuit Judge Thomas D. Horne, Chief Deputy Attorney General William C. Mims and Roanoke Circuit Judge Clifford R. Weckstein.

The VADA endorsed only one other candidate, Chesterfield Circuit Judge Michael C. Allen.

The Virginia State Bar, the Virginia Women Attorneys Association and the Old Dominion Bar Association had scheduled interviews of candidates for today and are expected to announce their endorsements next week as is the Virginia Trial Lawyers Association.

Gov. Timothy M. Kaine has asked the statewide bar groups to submit recommendations to him in case he has to fill the vacancy created by the appointment of Justice G. Steven Agee to the 4th U.S. Circuit Court of Appeals.

The General Assembly is in session and could appoint someone to a 12-year term. If it adjourns without doing so, the task will fall to Kaine to make an appointment that will be effective only until February, when the General Assembly would have another opportunity to fill the seat.
By Alan Cooper

Fairfax Circuit Judge Randy Bellows today upheld the constitutionality of a Virginia statute that governs how property rights are determined in a church split, in a case that has pitted the mainline Episcopal Diocese of Virginia against 11 breakaway congregations.

In an April 3 decision, Bellows said the division in the church was such that the statute, Va. Code § 57-9, could apply to resolve the parties’ dispute. The critical next step in the case was to decide whether the 140-year-old statute passed constitutional muster.

Today Bellows said in In re: Multi-Circuit Episcopal Church Property Litigation that the statute, as applied, does not violate the First Amendment or the 14th Amendment’s Equal Protection Clause or the Fifth Amendment’s Takings Clause. Nor is the statute unconstitutional because it requires a court to make findings of fact in case that involves religious organizations.

There is a constitutionally significant difference, he said, “between a finding involving a religious organization and a religious finding.”

Bellows said that “57-9(A) did not parachute into this dispute from a clear blue sky,” and its “existence cannot have been a surprise to any party to this litigation.”

The case is set for trial in October.
By Deborah Elkins

You’ve briefed and argued your Virginia circuit court case. Weeks go by and the judge still has it under advisement. Your client wants to know what’s taking so long.

The remedy under the Virginia Code: tell it to the Chief.

That’s right. Under Virginia Code § 17.1-107, if Chief Justice Leroy Hassell, or his designee on the high court, believes a circuit or appellate judge is taking “an unreasonable length of time” to rule in a case, he “shall inquire into the cause of such delay” and can designate another judge to help out.

Now we have a number for “reasonable.” It’s 90 days.

This year the General Assembly amended the statute to provide that if a circuit judge holds a civil case under advisement for more than 90 days after its final submission, the court has to tell the parties or their counsel, in writing, when they may expect a decision.

If the trial judge fails to report to the parties, or to issue a decision within the promised time frame, any party can notify the Chief, who then can apply the “reasonableness standard” and assign help for the slow-poke.

Richmond litigator Ben Ackerly, who mentioned the statutory change at the June 19 “Recent Developments in the Law” update at Virginia Beach, said he’s “not sure this solves the problem.”

If you’re waiting for the trial judge to presumably make a decision in your client’s favor, you don’t want to harass the judge.

But under the statute, the trial judge probably is going to know who gave the nod that led to a nudge from the Supreme Court.
By Deborah Elkins

Debtors’ lawyers left hanging by the “hanging paragraph” controversy for car buyers don’t have to hang around any more. And creditors don’t have to hang back.

Yesterday, the 4th U.S. Circuit Court of Appeals said that when a Chapter 13 debtor owes money for a car and surrenders the vehicle, but its sale nets less than the car buyer owed, a creditor can split its claim and pursue an unsecured deficiency claim against the car buyer.

The 4th Circuit panel acknowledged in Tidewater Finance v. Kenney that “a majority of bankruptcy courts in other circuits” – and several courts in Virginia – have concluded that the “hanging paragraph” in the 2005 amendments to the federal Bankruptcy Code protected a debtor from the creditor’s deficiency claim. That interpretation allowed debtors who purchased their vehicles within 910 days of the bankruptcy filing to surrender the vehicles in full satisfaction of the car debt.

In Kenney, the 4th Circuit reversed a Norfolk bankruptcy court’s approval of a Chapter 13 plan for Jennifer Kenney, who still owed over $5,000 on her 2003 Chevy Impala, and joined the 7th, 8th and 10th Circuits in holding that the creditor could still use state law remedies for the unsecured deficiency.

The court said the car debt, like Kenney’s other unsecured debts, didn’t necessarily have to be paid in full, “but it can’t be written off in toto while other unsecured creditors are paid some fraction of their entitlements.”
By Deborah Elkins

Troutman Sanders LLP will merge with D.C.-based Ross, Dixon & Bell on Jan. 1 in a deal that will double the Atlanta-based firm’s Washington contingent and give it its first offices in the Midwest and on the West Coast.

Robert W. Webb Jr., Troutman’s chairman, said the merger is “very important to our national footprint.” Ross Dixon has about 100 lawyers, half of them in Washington and the rest in Chicago and in California in Irvine and San Diego.

He said the firm’s long-term business plan calls for a significant expansion in the offices in Chicago and California. Ross Dixon has a national reputation for its insurance practice related to corporate officers and directors mass tort and environmental matters, but it has limited transactional capabilities, Webb said.

Troutman hopes to exploit its depth in real estate and finance and mergers and acquisitions, capital markets and other general corporate work in the expansion of the Ross Dixon offices, Webb said.

Troutman now has about 650 lawyers, including more than 175 lawyers in four offices in Virginia that it acquired when it merged with Mays & Valentine in 2001.
By Alan Cooper

The war of words is escalating over the General Assembly’s failure to appoint judges to fill vacancies in the Hampton courts. In this Daily Press op-ed piece apparently penned by two Democratic senators from Hampton, the writers accuse Delegate Tom Gear, R-Hampton, of holding up the appointments because of his insistence on getting his sister named as a judge.

There are three Hampton judgeships open, one each on the circuit court, district court, and J&DR court. According to the disgruntled senators, Gear is holding out for appointment of his sister, Kathy Gear Owens, to the J&DR court bench, despite opposition from within Gear’s own party.

“Until Gear stops holding the judicial system hostage and drops his insistence on his sister, the people of Hampton will suffer,” huffed the senators.

The Daily Press, for its part, calls for binding arbitration by the Hampton Bar Association.

The General Assembly appears poised to fill at least three judicial vacancies, but legislators are still scrambling to find a Supreme Court justice, an SCC member and judges in Hampton and Norfolk.

Likely to be appointed are Fredericksburg Commonwealth’s Attorney Charles S. Sharp to replace Circuit Judge John W. Scott Jr., who died in April; Stafford sole practitioner Michael E. Levy to a general district seat in the 15th Circuit to replace Judge J. Overton Harris, who was elevated to the circuit court; and Uley M. Norris, a partner in the firm of Damiani & Damiani in Alexandria, to a juvenile and domestic relations district court seat created by the elevation of Judge Nolan B. Dawkins to Alexandria Circuit Court.

There was talk yesterday of elevating Chief Judge Walter S. Felton Jr. to the Supreme Court vacancy created by the appointment of Judge G. Steven Agee to the 4th U.S. Circuit Court of Appeals and of appointing Richmond Circuit Judge Richard D. Taylor Jr. to the SCC.

Some legislators had qualms about Taylor’s lack of experience in regulatory matters, which led to talk of Chesterfield Circuit Judge Cleo E. Powell for the SCC and Taylor to the court of appeals. Powell was a staff attorney for Dominion Power and also did regulatory work while in private practice. Powell also is a candidate for the court of appeals. She and Taylor are black, and the state has never had a black SCC member, and the court of appeals has no black judges now.

The movement for Taylor was strong enough that Courts of Justice Committee members interviewed three candidates to replace him: General District Judges Joi Jeter Taylor and Gregory L. Rupe and McGuireWoods partner Steve C. McCallum.
By Alan Cooper

A doctors’ group can’t sue dairy companies that claim milk promotes weight loss under Virginia consumer protection laws, the 4th U.S. Circuit Court of Appeals ruled June 19.

One print ad for the “Milk Your Diet” angle of the ubiquitous “Got Milk?” campaign featured a svelte Brooke Shields sporting a milk moustache beside revised text that claims studies show that nutrients in skim or low-fact milk “can help maintain a healthy weight.”

A report in the LA Times also noted those studies were funded by the dairy industry and that last year “the Federal Trade Commission forced two national dairy organizations to stop claiming that dairy consumption can cause weight loss.”

The Physicians Committee for Responsible Medicine took up the cause in Virginia, suing dairy producers and trade associations under the Virginia Consumer Protection Act and under Virginia’s false advertising statute. The doctors’ group wanted a permanent injunction preventing future weight-loss claims in ads and a “corrective market campaign.”

U.S. District Judge Leonie Brinkema dismissed the suit, saying there is no private cause of action for injunctive relief under either statute.

In a 15-page unpublished opinion in Physicians Committee for Responsible Medicine v. General Mills Inc., Judge Paul Niemeyer affirmed Brinkema’s dismissal of the doctors’ suit.

By Deborah Elkins

“This is not a game of ‘Gotcha,’ ” insisted Senior Virginia Supreme Court Justice Elizabeth B. Lacy. “We want to deal with substantive issues.”

But she acknowledged that the two state appellate courts are refusing to address more and more of those issues because of procedural defaults. She said she didn’t know whether the blame lay with sloppier lawyering or increased pickiness by the courts.

Lacy said one factor is that the appellees “are doing a better job of scouring the record” to emphasize the defaults.

Whatever the reason, “We can’t just blink and pretend it didn’t happen,” she said. “I can assure you it’s not going to go away.”

Lacy offered the comments Friday at a program at the Virginia State Bar annual meeting on “The Bermuda Triangle of New Litigation Pitfalls – Sanctions, Waivers and Pleadings.”
By Alan Cooper