Opinions like this are worrisome

Here, the Supreme Court dismissed an appeal on finding a failure to preserve error, where the defendant at the trial argued that the search violated the Fourth Amendment, making some argument about whether the stolen property in his backyard was in "plain view," but the Court concluded his argument to the trial court did not match his argument to the appeals courts and he did not "cite any cases" in the trial court that dealt with the particular aspect of the "plain view" doctrine that he sought to raise in the appeals court.

Any time an appeal raising constitutional issues is dismissed because of what case law the trial counsel cited or did not cite, I have to wonder what's going on. In my opinion, it is not necessary to cite any cases to comply with Rule 5A:18.

More on "pleaded" v. "pled"

The ABA Journal had this piece on whether the preferred usage is "pleaded" as opposed to "pled." In 2008, I wrote this post, noting that one local judge frequently goes both ways in the same opinions.

Subsidizing NASCAR?

This article in the New York Times reports on the continuation of a statute allowing accelerated depreciation of investments in NASCAR and other auto racing tracks.

On Judge Williams

This post contains the text of a speech I gave about Judge Glen Williams in 2002. I went to his funeral a few weeks ago and did nothing really to comfort anyone, absorbed instead with my own thoughts about how my own life has been affected by having him as an employer, mentor, and friend. There have been many times when I have tried to get through the dilemmas of the moment by asking myself what would he think, how would this argument work with him, would this make sense to him. Sometimes I went so far as to call him up and ask him directly, but even when I did not, I could hear his voice in my head: "Steve, all in the world there is to this . . . ." I'm glad he is past the sufferings of age and illness, but I will miss him for the rest of my days.

On the need for more discovery in criminal cases in Virginia

The Washington Post had this recent editorial, which concluded that Virginia law should be changed to allow for wider rights of discovery for defendants in criminal cases.

It says in part: "A proposal by Virginia defense lawyers would compel prosecutors to grant defendants and their attorneys readier access to police reports following indictments, including witness statements in the aftermath of alleged crimes. That seems reasonable, provided that prosecutors are able to withhold the identity of certain witnesses out of concern for their safety."

Latest in a long line of wrongful wrongful discharge cases

In VanBuren v. Grubb, the Supreme Court in a 4-3 decision held that individuals other than an employer can be liable in tort for wrongful discharge. The decision makes a major change in Virginia law for the purpose, it seems, of making sure that bad apples like Dr. Grubb get to be punished in court.

The history in Virginia of wrongful discharge claims based on sex discrimination is complex. At one time, Virginia plaintiffs based wrongful discharge claims on the public policy against employment discrimination contained in the Virginia Human Rights Act. The VHRA prohibits employment discrimination based on "race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability." Va. Code § 2.1-715. A divided Supreme Court recognized a wrongful discharge claim based on the VHRA. See Lockhart v. Commonwealth Educ. Sys. Corp., 247 Va. 98, 439 S.E.2d 328 (1994). In response, the General Assembly deliberately modified the VHRA, to rule out any claims based not only on the VHRA itself but on any other statute reflecting the same policies as the VHRA. Va. Code § 2.1-725(D). The Supreme Court applied the amendment as the legislature intended in dismissing a number of wrongful discharge claims See Conner v. National Pest Control Ass'n, 257 Va. 286, 513 S.E.2d 398 (1999); Doss v. Jamco, 254 Va. 362, 492 S.E.2d 441 (1997).

The plaintiff in Mitchem v. Counts claimed that she was discharged because she refused to engage in unlawful sex with her employer. She based her claim not on the public policy against discrimination in employment, but rather on the public policy supporting the criminal statutes prohibiting assault and fornication. Another divided court approved this reasoning, despite the transparency of the plaintiff's rationale as a means to avoid the clearly expressed intention of the legislature in the amendments to the VHRA. In Mitchem, the majority reasoned that the public policy against fornication and other unlawful sexual acts stood separate and apart from the public policy reflected in the VHRA. The three dissenting justices pointed out that plaintiff's claim was no more or less than the type of claim outlawed by the legislature following Lockhart, and chastised the majority for overstepping the bounds of judicial authority in precisely the manner Justice Hassell recognized as improper in his concurring opinion in the Conner case.

Some years later, in Martin v. Ziherl, the Virginia Supreme Court overruled its decision in Zysk v. Zysk and held that a Virginia plaintiff is not prohibited by the illegality of fornication from suing his or her partner for giving him or her venereal disease. I complained about this decision at the time, but concluded that "this Martin case is officially the death of at least part of the much-maligned Mitchem decision, the wrongful discharge case based on the fornication statute." See Torabipour v. Cosi, Inc., 1:11-CV-1392 GBL/TCB, 2012 WL 2153168 (E.D. Va. June 12, 2012) ("The Court holds Plaintiff Torabipour fails to state a claim for wrongful termination because section 18.2–344 has been invalidated under the Fourteenth Amendment of the U.S. Constitution.").

Evidently I was wrong. Notwithstanding Martin, the Court in VanBuren had no problem concluding that "lewd and lascivious cohabitation" remains an enforceable crime in the Commonwealth. This seems like a surprising outcome to me - if someone was actually prosecuted for "lewd and lascivious cohabitation," it seems likely to me based on Martin that the crime of cohabitation would go the way of the crime of fornication in the Commonwealth. The theory of Mitchem fails once the criminal statutes on which it is based "have been invalidated." The Eastern District has rejected this argument, however - see Mercado v. Lynnhaven Lincoln-Mercury, Inc., 2:11CV145, 2011 WL 5027486 (E.D. Va. Oct. 21, 2011) (refusing to find the cohabitation statute unconstitutional) - and evidently now the Virginia Supreme Court has, too.

He said it

“You kind of expect your soldiers to go home at night and play Xbox and drink beer — which they do — but I’ve heard them talk about [the election] quite a bit,” the Army captain said. “They’re more dialed in than some might think.”

Military Times, "Military Times Poll: Romney bests Obama, 2-1," October 7, 2012.

On having Mitt Romney at Exit 13

Last Friday, I went with the girls to the Coal Country rally for Mitt Romney, and spotted my dad on the other side of the walkway. In this picture, my dad is taking a picture of Mitt Romney. Romney gave his standard stump speech, modified only to add emphasis on coal and to take out the reference to the unemployment rate as more than 8 per cent, on account of the new figures that came out that day.

On the Rules of Evidence

The Charlottesville paper has this article on how the adoption of the Virginia Rules of Evidence was a long-term project for law professor Kent Sinclair.

It begins: "A University of Virginia law professor spent 18 years sorting through centuries worth of case law to develop the Virginia Rules of Evidence, a comprehensive guide to govern the admission of evidence in civil and criminal trials across the state."

Interestingly, I never noticed before today that the new and improved version of Va. Code 8.01-3, dealing with the Rules of Evidence, includes this proviso: "The General Assembly may, from time to time, by the enactment of a general law, modify or annul any rules adopted or amended pursuant to this section. In the case of any variance between a rule and an enactment of the General Assembly such variance shall be construed so as to give effect to such enactment."

On getting the lower court to do what the higher court decided

A traditional office of the writ of mandamus is to "'confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.' " Will v. United States, 389 U.S. 90, 95 (1967) (quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943)). Mandamus to compel an inferior court to follow an appellate mandate is closely related to the doctrine of law of the case. Litigants who have proceeded to judgment in higher courts "should not be required to go through that entire process again to obtain execution of the judgment." General Atomic Co. v. Felter, 436 U.S. 493, 497 (1978). The Supreme Court long ago emphasized that when acting under an appellate court's mandate, an inferior court "is bound by the decree as the law of the case; and must carry it into execution, according to the mandate. That court cannot vary it, or examine it for any other purpose than execution." In re Sanford Fork & Tool Co., 160 U.S. 247, 255 (1895).

The same principles apply in Virginia state court. Mandamus is available to get lower courts to do what they should do. In re Commonwealth, 278 Va. 1, 22, 677 S.E.2d 236, 246 (2009) (mandamus directed to an inferior court “may be appropriately used and is often used to compel courts to act where they refuse to act and ought to act ...”); Page v. Clopton, 71 Va. (30 Gratt.) 415, 418 (1878) (mandamus "may be appropriately used and is often used to compel courts to act [when] they refuse to act and ought to act, but not to direct and control the judicial discretion to be exercised in the performance of the act to be done; to compel courts to hear and decide where they have jurisdiction, but not to pre-determine the decision to be made; to require them to proceed to judgment, but not to fix and prescribe the judgment to be rendered."). A ministerial act is “one which a person performs in a given state of facts and prescribed manner in obedience to the mandate of legal authority without regard to, or the exercise of, his own judgment upon the propriety of the act being done.” Dovel v. Bertram, 184 Va. 19, 22, 34 S.E.2d 269, 370 (1945). Under the “mandate rule,” a “trial court has no discretion to disregard [a] lawful mandate.” Rowe v. Rowe, 33 Va. App. 250, 257, 532 S.E.2d 908, 912 (2000), quoted in Powell v. Com., 267 Va. 107, 127-28, 590 S.E.2d 537, 549 (2004). The “mandate rule” is “merely a ‘specific application of the law of the case doctrine,’” and “in the absence of exceptional circumstances, it compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court.” United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993), cited in West v. West, 59 Va. App. 225, 230-31, 717 S.E.2d 831, 833 (2011).

We first heard the term "mandamus" in junior high civics, in connection with the case of Marbury v. Madison. Marbury wanted the writ to issue against Madison, requiring him to come across with Marbury's commission. Curiously, the Virginia rules require a different style for petitions for writ of mandamus against a judge: "A petition for writ of mandamus or writ of prohibition against a judge shall not bear the name of the judge but shall be entitled, 'In re , Petitioner.'" Rule 5:7(b)(4), Va. S.Ct.

On second depositions

Back in the day, I had a case that got tried a couple of times, various weird things happened in between the trials, and the magistrate judge ruled that my client had subject himself to a third deposition. While the case was going on, in 1993, Rule 30 of the Federal Rules of Procedure was amended to provide that leave of court was required to take a deposition if the deponent had already been deposed in the case. Rule 30(a)(2)(A)(ii), F.R.C.P. In 2000, Rule 30 was further amended, to provide that "a deposition is limited to 1 day." Rule 30(d)(1), F.R.C.P. The result is that in the absence of agreement, leave of court is always required for a second (or third) deposition of the same witness.

A few years later on, I had another case where the Magistrate Judge, affirmed by the District Judge, ruled that my clients should be deposed a second time. So we argued that at least the subject matter of the second depositions should be limited to new matter, citing Judge Urbanski's decision in Schwarz & Schwarz of Virginia, L.L.C. v. Certain Underwriters at Lloyd’s, Civil Action No. 6:07cv042, 2009 WL 1913234 (W.D. Va. July 1, 2009). In the Schwarz case, the poor fellow had been depose once, given a recorded statement, and suffered through an examination under oath.

The Schwarz & Schwarz case fit with other decisions we found. “Several courts faced with similar situations have granted a party the right to take a second deposition, but have limited that deposition to matters not addressed in the first deposition.” Christy v. Pennsylvania Turnpike Com’n, 160 F.R.D. 51, 53 (E.D. Pa. 1995) (citing cases). See also San Francisco Bay Area Rapid Transit Dist. v. Spencer, 2006 WL 2734289, 2 (N.D. Cal.) (limiting scope “to those areas not already covered in the previous depositions.”); Collins v. International Dairy Queen, 189 F.R.D. 496, 498 (M.D. Ga. 1999) (“these supplemental depositions should not involve substantial repetition of questions previously asked and answered and instead should focus on subjects not previously inquired about and facts or alleged facts and developments since their initial depositions.”); Schbley v. Gould, 1993 WL 135427, 1 (D. Kan.) (“The general rule adhered to by this court is that depositions of witnesses or parties already deposed will be permitted, but their depositions should be limited to those areas not covered in the earlier depositions.”); Perry v. Kelly-Springfield Tire Co., Inc., 117 F.R.D. 425, 426 (N.D. Ind. 1987) (“The second deposition of the plaintiff shall be limited to those areas not covered during the initial deposition.”).

This week we had a "discovery" deposition in a state court case; plaintiff's counsel said he would decide later whether he would re-depose the doctor "for trial." Neither the 1993 nor 2000 amendments to Rule 30 were ever adopted into the Virginia rules. Doctors are regarded as unavailable under the Virginia rules, Rule 4:7(a)(4)(e), and so their testimony is generally given by deposition. As Judge Welsh observed, "the use of trial depositions (both video-taped and stenographic transcriptions), taken after the close of pretrial discovery, have been routinely used efficiently and effectively for many years, both in this court and in the state courts of Virginia." Lucas v. Pactive Corp., No. 5:08cv00079 (W.D. Va. Dec. 22, 2009). Notwithstanding the common practice, "[t]here is no statute or Rule of Court specifically authorizing a de bene esse deposition." Boyer v. Dabinett, 74 Va. Cir. 19, 24 (City of Winchester Cir. Ct. Feb. 28, 2007). It is not obvious that a litigant is entitled to a second deposition of any witness, as a matter of right, or that the first deposition of a physician is any less "for trial" than a second one would be.

On Bullitt Park

The other weekend, I went to the football game at Bullitt Park in the company of my oldest step-daughter, who realized what an odd character I am for the umpteenth time when I explained to her that the park was named for a lawyer, Joshua Fry Bullitt, Jr., whose biography on Wikipedia I wrote myself. Below are pictures of the park and the man himself.

On Judge Joe Tate

In today's e-mail was a letter circulated to members of the Bristol Virginia Bar, from Judge Tate, indicating that he would retire in January after more than twenty years as General District Court Judge for the 28th District.

When I was a brand new lawyer, Judge Tate came around to the law firm to talk about the judgeship he was then seeking, and I asked him why would he want to be a general district court judge. It was a good thing that he did. He is a delightful, smart man who did a great job for us.

When I got married last year, the first person I saw in downtown Marion the next day was Judge Tate, who was well and truly amused by my answer when he asked how I was doing.

On Bill Poff

I read in today's Roanoke paper of the passing of William B. Poff, the distinguished lawyer from Roanoke. I had only a few professional dealings with him, but he knew who I was (he knew a lot of things), and he was a big friend of my partner down the hall, Lucas Hobbs, one of his many proteges.

Mr. Poff was interesting to me because my grandmother's maiden name was Poff, and so I tried to figure out if we were related. My grandmother denied that there was any connection, and so did he, and they both claimed that we were no kin to Justice and Congressman Richard Poff, either. Even so, Bill Poff the lawyer once represented by mom's uncle Bill Poff.

Bill Poff was also interesting to me because the judicial nomination that he did not get is the one that went to Judge Williams, my old employer. The ebb and flow of that judicial nomination was an extraordinary process of which many tales have been told. It was an unlikely way for Mr. Poff to make the history books, as the second of two nominees to the United States District Court for the Western District of Virginia who were not confirmed by the U.S. Senate.

On Judge Chafin's investiture

I enjoyed seeing the crowd and hearing the speeches at the event for Judge Teresa Chafin in Lebanon yesterday. The local legislators on the program directed their remarks to the long and difficult process that ended with her selection from among a group of well-qualified candidates in a late-night vote. It is difficult from the outside to imagine how much time and effort were required to make the case for a judge from the 29th Circuit for a statewide position.

Judge for the 29th Judicial Circuit- Jack S. Hurley, Jr.

Governor McDonnell announced on Friday that he was appointing Judge Hurley to the 29th Circuit vacancy, replacing Judge Chafin now of the Virginia Court of Appeals. The Governor's announcement included this biography:

"Jack S. 'Chip' Hurley, Jr. was elected to the General District Court in the 29th Judicial Circuit by the Virginia General Assembly in 2005 and currently serves as the chief judge. Prior to taking the bench, he practiced law in Southwest Virginia for 19 years, serving as a prosecutor for the Town of Tazewell and Bland County and in private practice. He is active in his community and a past officer of many civic and professional organizations. He has also been an instructor at several educational institutions, including Bluefield College. He is a graduate of Davidson College in North Carolina and T.C. Williams School of Law at the University of Richmond. He lives in Bluefield with his wife, Julie, and is the father of one daughter and one son."

On double recovery

The upcoming investiture of Judge Teresa Chafin to the Virginia Court of Appeals makes me think about what a pleasure but also a challenge it must be for her to join a court with the likes of Chief Judge Felton, Judge Humphreys, Judge Kelsey, and Senior Judges Baumgardner and Annunziata.

Also, it makes me think of a case she decided once where the issue was the extent to which, if any, the settlement between a truck owner and the repair shop over a claim related to the repair of an engine would bar the truck owner's recovery from the manufacturer for breach of warranty, where the manufacturer claimed the injury and damages for both claims were the same - a bad engine.

So, the manufacturer argued that the settlement with the repair shop gave the truck owner a single satisfaction and the owner was not entitled to a double recovery, citing Nizan v. Wells Fargo. In Cauthorn v. British Leyland, U.K., Ltd., 233 Va. 202, 355 S.E.2d 306 (1987), the Supreme Court held that “where there is one indivisible injury, as here, for which settlement has been consummated, unconditional release of one allegedly liable for the injury bars recovery against others also allegedly liable, regardless of the theory upon which liability is predicated.” 233 Va. at 207, 355 S.E.2d at 309. The same rule was applied in Cox v. Geary, 271 Va. 141, 624 S.E.2d 16 (2006), in an opinion by Justice Kinser. The point of both cases was that where the relief sought from the multiple defendants is identical, one satisfaction is all the plaintiff can have, regardless of the different legal theories of liability. In Virginia, “a party with two valid causes of action is entitled to ‘seek compensation in each, [but is], nonetheless, estopped from collecting the full amount [of damages] in the second action if they were partially paid therefor in the first.’” Nizan v. Wells Fargo Bank Minnesota National Association, 274 Va. 481, 491, 650 S.E.2d 497, 502 (2007) (quoting Katzenberger v. Bryan, 206 Va. 78, 85, 141 S.E.2d 671, 676 (1965)). “Katzenberger establishes that what is dispositive to a defense of double recovery is whether the damages claimed, on whatever theory of liability, are the same damages. If the element of damages is the same, it makes no difference that the potential payors are not joint tortfeasors or jointly and severally liable under the same theory of liability.” Nizan, 274 Va. at 499, 650 S.E.2d at 506.

Judge Chafin thought this was interesting but too clever, to argue that the settlement with the one defendant had released the other outright. She noted the 2007 amendment to Va. Code 8.01-35.1, which changed the language of the section from "persons liable in tort for the same injury" to "persons liable for the same injury." She held that consistent with that statute, the first settlement did not discharge the second claim, but the amount that could be recovered from the manufacturer would be reduced by the amount of the first settlement. It was a pretty good opinion, I thought, and impressed me quite a bit.

The free speech rights of lawyers to criticize quasi-judicial tribunals

Earlier this week in Berry v. Schmitt, the Sixth Circuit in an opinion by Judge Rogers, joined by Judge Daughtrey, held that the Kentucky Bar Association violated the First Amendment rights of a Kentucky lawyer by imposing a reprimand on him for his comments that were critical of the failure of Kentucky's legislative ethics commission to act against a well-known state legislator. The Bar did not claim that the lawyer made any false statements. The Court observed that "[e]ven assuming that Berry believed that the Commission had broken the law, he provided the public with the facts upon which his opinion relied. The majority distinguished this case from lawyers speaking in the courtroom, or lawyers speaking outside the courtroom in ways that involve the "unmitigated expression of disrespect for the law." The third judge on the panel concurred in the opinion but wrote separately to express his view that the lawyer's case was mostly an exaggeration borne of his "long-running feud" with the Kentucky Bar Association.

The Lexington paper, the Louisville paper, and the Associated Press had articles about the case.

It is impossible to read such a story without recalling the unfortunate Richmond lawyer, who at the time was only a few years younger than I am now, who received a show cause from the Virginia Supreme Court for words he delivered to Justice John Charles Thomas of the Virginia Supreme Court in at a Christmas party in 1987, along with the two other cases described in this VLW article.

When is unauthorized use not "use without authorization"

In WEC Carolina Energy Solutions LLC v. Miller, the Fourth Circuit in an opinion by Judge Floyd joined by Judge Shedd and Senior Judge Hamilton held that the defendant's alleged violation of his former employer's policies against downloading confidential company documents for personal use could not be the basis for a civil action under the federal Computer Fraud and Abuse Act, which provides a civil remedy for violations of the criminal act that defines a crime involving the use of computers "without authorization" or "in excess of authority."

Recognizing a split in the authority from other circuits, the Court joined with the more restrictive Ninth Circuit view stated in United States v. Nosal, 676 F.3d 854, 863 (9th Cir. 2012) and refused to follow the Seventh Circuit view stated in Int’l Airport Ctrs., LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006). The Court concluded: "[W]e adopt a narrow reading of the terms 'without authorization" and "exceeds authorized access" and hold that they apply only when an individual accesses a computer without permission or obtains or alters information on a computer beyond that which he is authorized to access.'"

Interesting, the Virginia Computer Crimes Act, adopted around the same time as the federal act, includes a definition of "without authority" - "A person is 'without authority' when he knows or reasonably should know that he has no right, agreement, or permission or acts in a manner knowingly exceeding such right, agreement, or permission." Va. Code 18.2-152.2. In 2005, the legislature removed the element of "without authority" in the criminal trespass statute, and replaced it with the element of "malicious intent." Acts 2005, c. 812. You'd think that the lack of authority would be the fundamental aspect of a computer trespass but evidently it is too problematic, as evidenced by the Fourth Circuit opinion and the amendment to the Virginia statute. Computer users do things all the time that might be beyond the scope of what they are supposed to be doing. The result is that the criminalization of all computer use beyond the scope of express authority casts too wide a net.

Hey, they spelled my name right

The latest Journal of Civil Litigation put out by the Virginia Association of Defense Attorneys includes an article I wrote on litigating fraud.

The proof they sent named the author as "Stephen."