On transfer orders

I have been studying venue motions in state court lately.

One question is, what if the transferor court got it wrong, is it possible to file a motion to reconsider?

The answer from most places is yes, the transferor court still has the power to reconsider the transfer order even after it has been entered, at least until the transferee court takes jurisdiction of the case.

But when does the transferee court take jurisdiction?

The answer from most places is, when the transferee court gets the file and dockets the case. There do not seem to be any Virginia cases on point.

Can a transfer order be appealed?

The answer to whether the transfer order is appealable is mixed, perhaps because some courts have more liberal rules about the appeal of interlocutory orders than others. Notionally, a transfer order leaves the whole case to be decided, and so it seems unlikely that it would ever be considered a "final" order. See Ferguson v. Carson, 235 S.W.3d 607 (Mo. App. 2007); State ex rel. Lyons v. Zaleski, 75 Ohio St.3d 623, 665 N.E.2d 212 (1996). Even so, in some places it is considered final, in the limited sense that the transferor court is through with the case. See DiNapoli v. Kent Island, LLC, 203 Md.App. 452, 38 A.3d 509 (2012).

The closest Virginia cases deal with transfer of cases from the law side to the equity side, and remarkably there is a case or two that says the transfer from one side of the court to the other is an appealable order, even if it is not final. The continuing validity of these precedents is suspect.

More on the new judges

The Bristol paper had this article on the investiture of Judges McKinney and Simmons. Next week is the same again for Judge Johnson in Circuit Court.

On the new judges

Last night, the General Assembly selected the following:

to the Court of Appeals -

The Honorable Teresa M. Chafin, of Russell, as a judge of the Court of Appeals of Virginia for a term of eight years commencing June 1, 2012.

to the Circuit Courts -

The Honorable Marcus H. Long, Jr., of Montgomery, as a judge of the Twenty-seventh Judicial Circuit for a term of eight years commencing July 1, 2012.

The Honorable Sage B. Johnson, of Washington, as a judge of the Twenty-eighth Judicial Circuit for a term of eight years commencing July 1, 2012.

to the General District Courts -

V. Blake McKinney, of Washington, as a judge of the Twenty-eighth Judicial District for a term of six years commencing July 1, 2012.

Clarence E. Phillips, of Dickenson, as a judge of the Thirtieth Judicial District for a term of six years commencing July 1, 2012.

to the Juvenile and Domestic Relations District Courts -

Bradley W. Finch, of Montgomery, as a judge of the Twenty-seventh Judicial District for a term of six years commencing July 1, 2012.

Monica Dawn Cox, of Galax, as a judge of the Twenty-seventh Judicial District for a term of six years commencing July 1, 2012.

Deanis L. Simmons, of Bristol, as a judge of the Twenty-eighth Judicial District for a term of six years commencing July 1, 2012.

That's what the defendant's lawyers are always telling me

A headline from today's VLW daily alert:

"Minor's suit a legal nullity."

The citizen-lawyer from Roanoke

I was delighted to read this morning that Hampden-Sydney College has selected Mike Pace, a former president of The Virginia Bar Association, to receive the Patrick Henry Award, given by the Wilson Center for Leadership in the Public Interest. Only a handful of other Virginia lawyers have received this award, including William T. Wilson of Covington, Julious Smith of the Williams Mullen firm, Judge Jere M.H. Willis, Jr. of Fredericksburg, Judge Joseph A. Leafe of Norfolk, and former U.S. Senators Spong and Trible.

I am a big fan of Mike Pace.

Making up another cause of action - the self-serving derivative suit

In Virginia, the derivative action for shareholders is a creature of statute. Under the statute, Va. Code 13.1-672.1, a shareholder cannot bring a derivative action on behalf of the corporation unless he or she can show four facts, in addition to fulfilling the procedural prerequisites to such an action:

A shareholder shall not commence or maintain a derivative proceeding unless the shareholder:

1. Was a shareholder of the corporation at the time of the act or omission complained of;

2. Became a shareholder through transfer by operation of law from one who was a shareholder at that time; or

3. Became a shareholder before public disclosure and without knowledge of the act or omission complained of; and

4. Fairly and adequately represents the interests of the corporation in enforcing the right of the corporation.

In Cattano v. Bragg, the Virginia Supreme Court in a 6-1 decision held that in the circumstance of a corporation with two shareholders, a minority shareholder with personal claims as a creditor against the corporation could also have standing under section 13.1-672.1 to bring suit on behalf of the corporation to recover money from the other shareholder, so that there would be more money to satisfy the personal claims.

Justice McClanahan dissented, and I agree with her view, that at least where the corporation was already defunct, the proper remedy was simply judicial dissolution. Unless I am mistaken, fees and costs of about $289,228.71 were charged to the corporation, so that the plaintiff could get 27.35% of $234,412.18 that the defendant was held to have owed the firm. It seems to me that the court-appointed receiver should have been the one to decide what if anything the corporation should have spent to recover the $234,412.18, of which most would evidently go back to the Defendant if the shareholders are going to get a distribution. The opinion notes that the circuit court could have empowered the receiver to garner the assets of the corporation, instead of allowing the derivative claims to proceed.

The majority opinion has a footnote about why this was not done. It concludes: "the amended complaint was a sufficient alternative mechanism to allocate assets without authorizing additional suits by the receiver." On the face of things, the description of the plaintiff's claims as "a sufficient alternative mechanism" suggests that somehow the majority was indifferent to the possibility that the receiver might have been more efficient than the plaintiff.

Making up a new cause of action for the Commonwealth

Today, the Virginia Supreme Court decided in Wyatt v. McDermott to recognize in response to a certified question a claim for "tortious interference with parental rights."

The context was a lawsuit by the father of a child against the lawyers who arranged for the adoption of the child by a couple in Utah, along with the new parents, and the agency that was involved with the adoption - everyone but the mother. The federal court certified to the Virginia Supreme Court two questions:

1. Whether the Commonwealth of Virginia recognizes tortious interference with parental rights as a cause of action?
2. If so, what are the elements of the cause of action, and what is the burden of proof of such a claim?

The Supreme Court answered yes, by a 4-3 vote with Justices Mims, McClanahan, and Goodwyn in dissent. Justice Millette wrote the opinion for the majority. The Court concluded: "although no Virginia court has had occasion to consider the cause of action, the tort in question has indeed existed at common law and continues to exist today." The Court added: "Furthermore, rejecting tortious interference with parental rights as a legitimate cause of action would leave a substantial gap in the legal protection afforded to the parent-child relationship." The authorities cited in the majority and dissenting opinions show that both these propositions are debatable and have been debated.

The best thing that can be said for the opinion is the extent to which it closes the door on the use of this new-to-Virginia tort as a weapon between the parents themselves. "We share these courts' concern for the well-being of children caught in intra-familial disputes, a concern that was not as prominent an issue in 1607, when only a male parent could bring this cause of action. The fear that this cause of action would be used as a means of escalating intra-familial warfare can be largely disposed of by barring the use of this tort between parents, as other state courts have done." Even so, many of the cases cited were inter-familial claims.

The majority's conclusions about the state of the common law before 1607 bring to mind Judge Wilkinson's criticism of various schools of constitutional interpretation summarized in the recent George Will column. Whether the question is a matter of constitutional law or the common law, evidently it is a hard thing for smart justices confronted with injustice to say go across the street to the legislature.

The Court distinguishes the interest with parental rights from alienation of affections, barred by statute under Va. Code 8.01-220, with the idea that interference with parental rights means "that the offending party has removed parental or custodial authority from the complaining parent." The opinion does not cite McDermott v Reynolds, wherein the Court held that the statute barring actions for alienation of affections applied with equal measure to a claim for intentional infliction of emotional distress.

The district court denied the defendants' motions to dismiss based on fraud. Nevertheless, the Court found it necessary to recognize this "new" cause of action, claiming that there would be no fraud remedy in some cases. It is difficult to understand why this should be so, how innocent parents can be swindled out of their parental rights without some actionable misrepresentation or concealment that kept the parent from protesting against the adoption or whatever step was being taken to cause the loss of the parental rights. UPDATE: I didn't notice the first time through that Justice Goodwyn joined with Justice McClanahan in her dissent, which only adds to my view that she got it right in this case.

In the Chicago style of lawyering

Years ago, I told this story, including a reference to Clarence Darrow. Recently, I read Clarence Darrow: Attorney for the Damned, and it is an outstanding book.

One part of it came to mind recently when I read of the recent statements by President Obama, pressuring the Supreme Court into upholding the Affordable Care Act. In the trial of Leopold and Loeb, Darrow got the two killers to plead guilty without an agreement on sentencing. In the same manner as President Obama, the prosecutor applied extra-legal arguments to shame the judge into giving the killers the death penalty. Darrow knew better than to respond in kind, based on his view that likeability wins cases. The judge's comments suggest that the prosecutor's over-reaching might have been the main reason why he gave the killers life in prison, instead of sentencing them to death.

Perhaps Darrow was a better Chicago lawyer than is the President.

Also, one of the Tennessee lawyers who figured in the Scopes trial, another subject of the book, was a fellow named Sue Hicks, whose name might have been the basis for the Johnny Cash song about a boy named Sue.

On traveling to New York City

Our gang took a road trip to New York City, where I had not been since a DRI conference in 2005 and not just for fun since 1995.

In the circumstances, it was a great adventure - the Amtrak to Penn Station, the subway, the Top of the Rock, the ferry to the Statue of Liberty, seeing The Phantom of the Opera again at the Majestic. It was no less of an adventure for having done some of the same things thirty or twenty or seven years ago.

Along the way, the train passed by among other things the Philadelphia Zoo, where I saw their oldest gorilla in the Spring of 1983. The train crossed the Susquehanna, skirted the Chesapeake, and cruised past the D.C. monuments and some of the Johns Hopkins buildings in Baltimore.

And, passing by all these places and thinking of different times I had been there, I thought of another part of the Roger Ebert book, where he described the comfort he derived from familiar places, with the thought that "I have been here, I am here now, I will be here again."

On eating with dogs

"I never met a dog that didn't beg at the table. If there is a dog that doesn't, it has had all the dog scared out of it. But a dog is not a sneak thief like a cat. It doesn't snatch and run, except if presented with an irresistible opportunity. It is a dinner companion. It is delighted that you are eating, thinks it's a jolly good idea, and wants to be sure your food is as delicious as you deserve. You are under a psychological compulsion to give it a taste, particularly when it goes into convulsions of gratitude. Dogs remember every favor you ever do for them and store those events in a memory bank titled Why My Human Is a God."

Roger Ebert, Life Itself.

On a tie vote in the Fourth Circuit

In U.S. v. Foster, the Fourth Circuit denied a petition for rehearing by a 7-7 vote on an issue involving the Armed Career Criminal Act, with Judges Motz, King, Gregory, Davis, Keenan, Wynn, and Floyd in favor of rehearing, and Chief Judge Traxler and Judges Wilkinson, Niemeyer, Shedd, Duncan, Agee, and Diaz, and which is the subject of this Howard Bashman post.

It is interesting that Judge Diaz joined with Judge Wilkinson, et al, but Judge Floyd did not.

On picking judges for the 27th

The Roanoke Times has this article that says Senators Puckett and Edwards want to be the deciders for one of the judicial vacancies in the 27th District, if Judge Long is elevated to the Circuit Court.

In the 27th District, there has been a vacancy on the juvenile court since Judge Blankenship left the bench. I met him for the first time not too long ago, and shook his hand.

Separately, The Virginia Bar Association released this statement, urging the General Assembly to fill the 48 vacant judgeships plus the 13 additional vacancies expected next year from retirements. Two local judges whom I understand will retire next year are Judge Tate and Judge Freeman.

Perhaps, the new judges for the 28th District

This schedule of interviews for judicial candidates shows Blake McKinney and Deanis Simmons as the only persons being interviewed for the General District and Juvenile and Domestic Relations District Court positions in the 28th District.

It also shows that a fellow I met on the VBA Board, Glenn Pulley, is a candidate for the 22nd Circuit - a Virginia gentleman if ever there was one and the only practicing lawyer in Danville who is a member of the American College of Trial Lawyers.

On the apex deposition rule

Brian Peterson links here to an interesting decision by the West Virginia Supreme Court, applying the apex deposition rule to protect high-ranking corporate officials who know nothing about a particular claim from being subjected to depositions.

On prosecutorial misconduct and the prosecutor and other lawyers

In Hash v. Johnson, Judge Turk of the W.D. Va. held that Virginia inmate Michael Hash should be released from prison and that the Virginia Supreme Court erred in its 2009 opinion rejecting his post-conviction claims for relief on account of prosecutorial misconduct - based in part on a stack of letters that a prison snitch had written to another judge of the W.D. Va., hoping to get out of his federal time for testifying against Mr. Hash.

The Commonwealth's Attorney for Culpeper was and is Gary Close, who seems to be an interesting fellow, and who graduated from U.Va.-Wise, the University of Tennessee, and the law school at William & Mary. Mr. Close was re-elected without opposition in 2011.

One of the lawyers for Hash in his original trial was named Michael Hemenway. I don't know whether it is the same guy, but there is a lawyer blogger in Charlottesville named Mike Hemenway, also an interesting fellow who gets to court on his motorcycle.

The lawyer who filed the summary judgment motion for Mr. Hash in the case before Judge Turk was Matthew Bosher of Hunton & Williams (not to be confused with the Matt Bosher who kicked a field goal and seven extra points against Virginia in 2009). The challenge of overturning a murder conviction twice affirmed by the Virginia Supreme Court can only be overcome by outstanding legal work.

The Richmond paper had this article about Judge Turk's decision.

On the Second Amendment rights of persons convicted of domestic violence

In United States v. Chester, the Fourth Circuit in an opinion by Chief Judge Traxler remanded the case of a West Virginia man convicted under the federal statute, 18 U.S.C. 922(g)(9), which makes it a federal crime to possess a firearm after having been convicted of a misdemeanor offense of domestic violence, for consideration under the Supreme Court's Second Amendment decision in D.C. v. Heller.

On remand, Judge Copenhaver of the S.D. W.Va. in an opinion dated February 16 applying the intermediate level of scrutiny required by Heller that the Second Amendment did not prohibit Chester's conviction. The opinion addresses a considerable volume of empirical evidence on the question of whether the gun statute bears a reasonable nexus to the important government interest in reducing the use of firearms as a weapon in domestic violence.

On whether a motion to remand is dispositive

In Deskins v. Consol Energy, Inc., Judge Jones sustained the Defendant's objections to the recommendations of the Magistrate Judge on whether to grant the Plaintiffs' motion to remand the case to state court. It happens sometimes, but rarely - that the District Judge and the Magistrate Judge disagree on the application of the law.

Interestingly, some district courts (but no appeals courts) have held that a remand motion is not a dispositive motion, in the sense that a Magistrate Judge has the power to decide it directly, instead of merely making a report and recommendations. See Peter J. Gallagher, IN SEARCH OF A DISPOSITIVE ANSWER ON WHETHER REMAND IS DISPOSITIVE, Seton Hall Circuit Review, Volume 5, Number 2, Spring 2009, 303. As Mr. Gallagher wrote, "Nearly every district court has treated remand as nondispositive and thus within the scope of this authority, but all four circuit courts that have confronted the issue have deemed remand dispositive and thus beyond the scope of a magistrate's authority. Although seemingly trivial, the difference is significant because district courts review magistrate judges' findings on dispositive motions under a de novo standard, while nondispositive motions receive the less stringent review only for clear error of law."

On not getting costs

In perhaps the last opinion from the hard-fought case of Musick v. Dorel Juvenile Group, Judge Jones denied the Defendant's request for costs, citing the plaintiff's family's inability to pay, and relying on its prior decision in Crusenberry v. Boddie-Noell Enterprises, Inc.

In a footnote, the Court considered whether it was improper for defense counsel having won the case in the trial court to propose that the defendant would not seek its costs if the plaintiff agreed not to appeal, and concluded in the circumstances that there was nothing wrong with such an offer, even though the Court declined to award costs. I was glad to read this, having done the same thing myself a time or two.

Musical chairs in the 28th Circuit

Last night in Marion, almost a dozen lawyers spoke at a meeting of the Smyth County Bar, seeking endorsements for either the Juvenile Court position being vacated by the retirement of Judge Charles Lincoln, or the General District Court position that would become vacant if Judge Sage Johnson, who has just been reappointed, is selected to fill the position of retiring Circuit Court Judge Larry Kirksey. Just over the horizon are the retirements of District Judge Joseph Tate and Circuit Judge Isaac Freeman, in 2013.

The candidates included among others Melissa Carico, Adrian White, David Hutton, Eric Thiessen, Helen Phillips, Larry Harley, Kurt Pomrenke, Mike Bishop, Mark Haugh, and our own Lucas Hobbs. Jeff Campbell is a candidate but not seeking endorsements and Blake McKinney sent in a resume. It was interesting to listen to the philosophical ruminations of many good friends.

The Winter Meeting

Again this year as in '06, '07, '08, '09, and '11, I am in Williamsburg for the winter meeting of The Virginia Bar Association, and pleased to see many of my favorite people. This morning ends Pia Trigiani's year as president of the Association, and I was amused to meet her law partner David Mercer yesterday at the meeting of this committee, he is a hoot and a half.

The next president Hugh Fain told me he saw where I had blogged about the suit he filed for the Rick Perry campaign.

I saw the Chief Justice at the venue yesterday with her husband, and was reminded that she told me when I first met him years ago he was a much better-known local celebrity as a high school football coach than she was as a federal magistrate judge.