The VLW Blog

U.S. District Judge Richard L. Williams ordered Virginia officials to protect any overseas ballots arriving after 7 p.m. on Election Day pending the resolution of a lawsuit filed by the McCain campaign.

William H. Hurd, a Richmond lawyer representing the McCain campaign, said that some jurisdictions in the state did not send absentee ballots out to the military 45 days in advance of the election as required and that, as a result, some may be returned late.  Judge Williams seemed to think that was a problem with an easy solution, but the newly-appointed lawyer for the defendant election officials had no authority to promise how late ballots would be handled.

As reported by the Richmond Times-Dispatch, another hearing in the matter is set for Nov. 10,  if necessary.

Posted by Peter Vieth

People with disabilities have a heightened interest in selecting the candidates who will govern the programs that the disabled depend on.  Nevertheless, some advocates say that one class of disabled people — those with mental disabilities — are too often discouraged from registering or voting.

On the other hand, some question the propriety of actively assisting the mentally ill in casting ballots, saying there is a danger of undue influence or outright fraud.

The Associated Press reported last week on efforts in Virginia and nationwide to make sure those with mental disabilities know their rights and exercise them on Election Day.

Advocates take issue with comments like the one from Sen. Steve Martin, R-Chesterfield: “If they were competent to do it, they wouldn’t be needing this help anyway.”

By Peter Vieth

A special prosecutor appointed to handle grand jury charges of official misconduct by four members of the Gloucester County Board of Supervisors decided to drop the entire case.   On the motion of Assistant Virginia Beach Commonwealth’s Attorney Catherine Dodson, Substitute Circuit Judge Thomas S. Shadrick last week dismissed all charges against the supervisors.

In July, prompted by county prosecutor Robert D. Hicks, the grand jury had charged the four supervisors with violating the state Freedom of Information Act.  According the the Daily Press, however, the special prosecutor now has determined that the four had avoided the open meeting statute without breaking the law.

“The evidence presented to the grand jury showed that the defendants deliberately acted to circumvent FOIA,” Dodson wrote and added, “Such behavior is not a crime under Virginia law, nor do such actions violate FOIA itself.”

Dodson also moved to dismiss charges that the supervisors unlawfully searched the county attorney’s computer.

The abrupt end of the prosecution dismayed Kirby Smith, foreman of the special grand jury that indicted the supervisors.  “I am totally amazed, astonished and bewildered,” he said.

A recall petition against the four supervisors remains pending.

By Peter Vieth

We have yet another example of the importance of precision in appellate practice in Virginia, even if the lack of precision ultimately turned out not to be fatal.The issue stemmed from the detention of Matthew Tremaine Moore in February 2005 after a Henrico patrolman noticed a peeling inspection sticker on the windshield of Moore’s rental car. The patrolman pulled Moore because he had often found a peeling inspection sticker an indication that it had been stolen from another vehicle.

Twelve of the 18 opinions from the Supreme Court of Virginia today are criminal cases – and another one was a sexually violent predator case.

Defendants prevailed in eight of the criminal cases and the SVP opinion was a split decision.

In the SVP case, Commonwealth v. Garrett, the court ruled that the trial judge erred in ruling that the defendant had a vested right in having his December 1985 criminal conviction in juvenile court destroyed after 20 years. They weren’t and the commonwealth attempted to use them as evidence in the SVP proceeding. On the other hand, the judge was right in refusing to admit the opinion of a psychologist who based the opinion in part on an incident for which the defendant was charged as a minor but never prosecuted.

Other reversals involved:

– A  flight instruction that a rape defendant objected to, Turman v. Commonwealth;

– A grand larceny conviction in which the prosecution failed to prove that $200 worth of items had been stolen, Britt v. Commonwealth;

– A B&E in which the evidence was insufficient to show intent to commit larceny, Vincent v. Commonwealth;

– Suppression of a statement by a motorist who was in handcuffs but not formally under arrest when he told police a handgun was under the driver’s seat, Hasan v. Commonwealth;

– Evidence insufficient to show that a woman was a principal in the second degree to the cocaine dealing of her boyfriend, Brickhouse v. Commonwealth;

– An improper revocation of first-offender drug status for drug use that occurred after the term of probation specified in the order granting first-offender status, White v. Commonwealth;

– A peeling, but valid inspection sticker that the court found provided no more than a hunch of criminal conduct and was therefore an insufficient reason to stop the vehicle, Moore v. Commonwealth;

– An anonymous tip that the court decided, 4-3, did not provide enough detail to justify the stop of the vehicle in question, Harris v. Commonwealth..

On the other hand, the court:

– Rejected several issues related to a rape conviction, including a request for an expert witness and a challenge to the state rape shield law, Ortiz v. Commonwealth;

– Affirmed the court of appeals decision that deliberately hitting another car can be the basis of a felony hit-and-run charge despite use of the word “accident” in the statute, Milazzo v. Commonwealth;

– Held that the prosecution need not show a supervisory or custodial relationship at the time a defendant takes indecent liberties with a minor with whom he has such a relationship at other times, Sadler v. Commonwealth; and

– Upheld the embezzlement convictions of a physician who did not remit funds withheld from employees to the Virginia Department of Taxation, Commonwealth v. George.

By Alan Cooper

The Supreme Court of Virginia issued decisions in two medical malpractice cases today. One, as expected, was a published order ruling that Eastern Virginia Medical School Academic Physicians and Surgeons Health Services Foundation does not have charitable immunity.Judges in Norfolk had ruled in three separate cases that the foundation has such immunity before the Supreme Court issued its decision that the University of Virginia Health Services Foundation had no such immunity.

Have you defamed a coworker when you say she faced conflict on the job because she was not always to work on time?

Fact versus opinion in the workplace was before the Supreme Court of Virginia this morning when the court heard oral argument in two defamation cases.

First up was Butler v. N.E.W. Customer Servs. Cos., a 2007 Fairfax case, tried twice, in which a woman claims she was defamed by a former colleague’s comments about the woman’s conflicts with coworkers over her work schedule. The woman said she left for a higher-paying job and the negative comments came to light several years later when she applied for a job that required a high-level security clearance.

Supreme Court Justice Barbara Keenan closely questioned Fairfax lawyer Ben Trichilo, representing plaintiff Kristen Butler, about the framing of an assignment of error. Trichilo previewed the next case on the docket when he argued that the Fairfax trial judge had applied Raytheon Technical Services v. Hyland as if the viewpoint of the speaker was the litmus test for regarding a comment as defamatory.

Richmond lawyer Duncan Getchell, who represented the employer N.E.W., argued that a “person’s assessment of someone else’s state of mind is always an expression of personal opinion,” which is a “core liberty.”

In the main bout, the justices took another look at Raytheon, back from last year’s remand in which the high court reversed a $1.85 million award to a former executive with a defense contractor who sued for a “defamatory” job evaluation.

The 2007 opinion said that only two of the five allegedly defamatory statements in the job evaluation could support a defamation claim, and the Supreme Court remanded “for a new trial consistent with this opinion.” But the mandate apparently directed remand for “further proceedings.”

So the lawyers, Fairfax lawyer Elaine Bredehoft for the executive and Richmond lawyer John Charles Thomas for the contractor, tangled over whether the trial judge followed the court’s instructions when it granted summary judgment to the employer.

With the tandem cases to consider, employers may be hoping for some more definitive word on workplace comments on employees, when the court hands down its next batch of opinions Jan. 16.
By Deborah Elkins

Richard Bonnie told members of the Mental Health Law Reform Commission today that the commission took a gigantic first step in the 2008 General Assembly session “but it was a first step.”

Bonnie, the University of Virginia law school professor who chairs the commission, said it will monitor the changes approved by the legislature and continue to make recommendations to improve the system. He spoke at the Williamsburg Hospitality House at the last meeting of the commission before the assembly convenes in January.

A major recommendation will be a revision of the advance medical directive statute that would “empower people [with mental health issues] to have the maximum amount of control over the treatment they receive.”

It would allow those persons to designate when they are competent who they want to make mental health decisions for them when they are not able to make those decisions themselves.

Another proposal would allow a magistrate to permit someone other than a law enforcement officer to provide transportation for a person for whom an emergency custody or temporary detention order has been entered.

Sheriffs long have chafed at the requirement that their deputies provide the transportation, and the condition of the person may be such that it would be much less traumatic for him to be transported by a family member, a community services board representative or someone from the facility where the person is being evaluated or detained, said Senior Assistant Attorney General Jane Hickey.

Most sheriff’s departments have a policy of requiring the person to be handcuffed while in their custody, and the restraint frequently adds to the trauma, Hickey said.

Dr. James S. Reinhard, commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services, told the group that cuts required by a state budget shortfall will limit the effectiveness of measures approved earlier this year that included more staff to monitor and provide therapy after a person has been committed for mental health treatment.

He noted that 39 of the 280 positions in the central office of the commission will be eliminated because of the shortfall. Leaving vacancies open and retirements will reduce the number of layoffs to four, he said.

By Alan Cooper

Circuit Judge Samuel E. Campbell today denied a defense request to allow former quarterback Michael Vick to plead guilty to state dog-fighting charges by video conference.

The judge agreed with Surry County Commonwealths Attorney Gerald Poindexter that Vick should have to enter his pleas in person, according to the Daily Press.  The county will pay to transport Vick from Leavenworth, Kan., where he is serving his 23-month sentence on federal dog-fighting convictions.

Posted by Peter Vieth

Some free speech advocates want to know how things go if you wear an Obama T-shirt or a McCain button to the polls on Tuesday.  As you have no doubt heard, the State Board of Elections says it is against the rules to wear campaign clothing into the voting booth.  You may be asked to cover up or remove the offending advocacy.

Specifically, the policy reads as follows:

“No person shall show, display, or exhibit any material, object, item, advertisement, or piece of apparel, which has the purpose of expressly advocating the election or defeat of a clearly identified candidate or issue.”

Today, three Virginia-based free speech organizations announced plans to mount a post-election legal challenge to that policy.  The Thomas Jefferson Center for the Protection of Free Expression, The Rutherford Institute and the ACLU of Virginia say they expect to ask a federal court to strike down the policy as unconstitutional before the next state and local elections in 2009.

First, however, the organizations say they want to find out how the policy is enforced at the Virginia polls on Tuesday.

“Our focus right now is on finding out what actually happens to voters on Election Day,” said the ACLU’s Kent Willis.  “Voters need to tell us their experiences so we’ll know how and where this unconstitutional rule is being enforced and what action we need to take.”

UPDATE:

As if to chime in, the Washington and Lee law school today posts the views of its dean and First Amendment scholar Rodney A. Smolla: “I think we have a First Amendment right to wear T-shirts promoting our political preference, even to the polling place,” Smolla said.

By Peter Vieth