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Roanoke Valley lawyers used to reminding clients to turn off their cellphones when they go to court soon will have to tell the clients to leave the phones at home.

A new policy for the 23rd Circuit (Roanoke City, Roanoke County and Salem) bars possession and use of electronic devices for the general public. The previous standing order required only that cellphones be turned off in and near courtrooms.

Chief Judge William Broadhurst said enforcement of the new no-cellphone order will begin Nov. 1 to allow for signs to advise the public.

The language of the order has been expanded to cover cameras and text capabilities as well as voice communication. “It takes care of just about anything we can think of that can transmit information out of the courthouse,” Broadhurst said.

Lawyers are excepted from the rule, but using an electronic device in a courtroom still is forbidden without express permission.

By Peter Vieth

Attorney General Ken Cuccinelli says district courts have the same authority to impose sanctions as circuit courts under both Virginia Code § 8.01-271.1 and their inherent authority to protect the public and the judicial process.

Cuccinelli reached that conclusion in an opinion requested by Barbara J. Gaden, chief judge of the Richmond General District Court.

Gaden expressed two concerns in her request: a pro se litigant with a history of filing harassing and frivolous litigation and individuals who engage in the unauthorized practice of law or attorneys who engage in unprofessional or unethical conduct.

She said she wants to be sure she has the authority to impose a requirement that the pro se litigant cannot file cases in her court without prior review by the court, a practice used frequently in federal court and, less commonly, state courts.

Gaden said she sought assurance that she can bar a lawyer or litigant from appearing in her court if she determines, after a hearing, that he or she has engaged in the unauthorized practice of law or unprofessional or unethical conduct.

Cuccinelli responded that § 8.01-271.1 is not limited to circuit courts so district courts have the authority to impose a pre-filing requirement under it.

Although the Supreme Court of Virginia has at times limited its discussion of the inherent authority of courts to courts of record, its rationale has been the need to protect and the courts. “The need to protect the public and the integrity of the judicial process is no less in district courts than in other courts,” Cuccinelli wrote.
By Alan Cooper

Mark Rubin, a senior advisor to former Gov. Tim Kaine, yesterday became the chief lobbyist for Virginia Commonwealth University.

Rubin’s official title is executive director government relations, slightly different than that of his predecessor, Don Gehring, who was vice president for government relations, but VCU spokeswoman Pam Lepley said Rubin’s duties will be essentially the same.

She said Rubin will be the primary representative for both the university and its health system in their dealings with local, state and federal governments. “He’s very well respected in all those areas.”

Before joining Kaine’s staff, Rubin was a partner for many years in the firm of Shuford, Rubin & Gibney, where he lobbied for the Virginia Trial Lawyers Association, among others, and a mediator with The McCammon Group.

By Alan Cooper

Virginia State Bar disciplinary charges against former York County assistant prosecutor Cathy Krinick have been dropped in the wake of dismissal of a companion case against commonwealth’s attorney Eileen Addison.

VSB Counsel Edward Davis confirmed the head of a three-judge panel has signed the order dismissing charges against Krinick, who is now in private practice in Newport News.

Last month, the judicial panel dismissed the case against Addison after a hearing into charges she improperly coached a slow-witted witness in a death penalty case.

By Peter Vieth

Altria spent the most in the last legislative year in lobbying Virginia public officials, according to the annual report by the Virginia Public Access Project. The holding company that has Philip Morris USA as its principal asset spent $328,848, according to VPAP.

A name that isn’t but so well known, the Northern Virginia Technology Council, was next at $311,942. NVTC says it is the membership association for the Northern Virginia technology community.

Rounding out the top five are more familiar suspects: Verizon at $259,071, the Virginia Association of Health Plans at $246,461, and Dominion at $241,959.

Those five are clearly the big dogs in the lobbying game because there’s a drop of almost $100,000 to the next entity, the Virginia Automobile Dealers Association. In fact, there’s a bigger drop between fifth and sixth place than there is between the VADA at $146,419 and the 25th largest contributor, the Virginia Independent Power Producers at $92,306.

Here’s a link to the top 25 spenders.

VPAP warns that its numbers aren’t but so reliable. “Lobbyist disclosure laws are general in nature and therefore, in practice, lobbyists report expenditures in different ways,” the organization says. The state had 885 registered lobbyists for the May 2009 to April 2010 reporting period.

We warn you that once you click on one of the numbers and start drilling down through the links to individual lobbyists and types of expenditures, a morning can disappear pretty quickly.
By Alan Cooper

The Supreme Court of Virginia today selected Justice Cynthia D. Kinser to be the first woman to serve as chief justice of the court.

Kinser is third in seniority on the court to the current chief, Leroy Rountree Hassell Sr., and Justice Lawrence L. Koontz Jr. Hassell will step down on Jan. 31 after eight years as the state’s chief judicial officer. He will remain as one of the court’s seven justices. Koontz has reached the mandatory retirement age of 70 and must leave the court next year.

Kinser was appointed to the court in 1997 by Gov. George Allen after the General Assembly was unable to agree on a candidate to replace Justice Roscoe B. Stephenson Jr.

Read the full story here.

By Alan Cooper

Retired Albemarle County Circuit Judge Paul M. Peatross Jr. has sided with the University of Virginia in its effort to block Virginia Attorney General Ken Cuccinelli’s investigation of records from a climate change researcher.

In a letter opinion today, Peatross finds the attorney general failed to set forth an objective basis to support his issuance of a civil investigative demand to UVa. The opinion allows Cuccinelli the option of trying again with a more specific request for documents.

Peatross’ decision was hailed by the object of the AG’s investigation, climatology professor Michael Mann. “It is a victory not just for me and the university, but for all scientists who live in fear that they may be subject to a politically motivated witch hunt when their research findings prove inconvenient to powerful vested interests,” Mann told The Daily Progress.

Mann researched climate change at UVA from 1999 to 2005. Cuccinelli is investigating whether Mann fraudulently obtained government research grants by falsifying climate change data.

In a news release, Cuccinelli said that he is pleased with other aspects of the Peatross opinion. The judge ruled UVa may properly be served with a CID and the attorney general may investigate grants made to professors with commonwealth funds. “We are going to issue a new CID that conforms to the judge’s ruling,” Cuccinelli said in the release.

By Peter Vieth

A group of Richmond music lovers charged with violation of the city’s new noise ordinance are willing to risk conviction to get a ruling on their claim that the law is unconstitutional.

“What happened in this case was inexcusable,” said Steven Benjamin, attorney for the defendants, who were charged after six police officers allegedly “raided” a house where a band was playing on Easter Sunday.

Benjamin said he had prepared to argue Monday before General District Judge Phillip Hairston that the recently enacted city noise ordinance runs afoul of the First Amendment. He expressed frustration that a newly assigned assistant city attorney appeared in court admittedly unprepared for battle on the constitutional issues.

Benjamin said the judge offered to toss the case, given the city’s failure to timely oppose Benjamin’s motion. Benjamin said his clients want more than acquittal, however. “They’re in it to vindicate everybody’s rights,” he said.

The challenge to the Richmond noise ordinance now is set for Oct. 18.

Among other things, the ordinance makes it a class 2 misdemeanor to play a musical instrument after 11 p.m. that is plainly audible to any person other than the operator.

By Peter Vieth

A fee collection lawsuit in Fairfax has turned into a battle pitting a former president of the Virginia Bar Association against a former president of the Virginia State Bar amid allegations of legal malpractice and overbilling.

The Lewis Law Firm is a Virginia firm based in Washington; it is headed by Glenn C. Lewis, who led the VBA in 2007. The firm sued a former client to collect unpaid portions of its bill from a divorce case, plus interest. But the client then filed a counterclaim alleging legal malpractice, among other things, and seeking $500,000 in damages.

Representing the former client is Alexandria lawyer Bernard J. DiMuro, who served as VSB president in 2002-2003. DiMuro said information disclosed in the case shows the Lewis firm billed the husband nearly nine times the amount the wife was charged by her lawyers.

Virginia Lawyers Weekly subscribers can read the full story here.

U.S. District Judge Henry Hudson has upheld a Virginia law that will keep a Spotsylvania County man from appearing on the 7th District congressional election ballot.

Herb Lux lives in the 1st District but wants to run for Congress in the 7th District, something he is allowed to do under the Virginia Constitution. But Virginia election law says the people who circulate ballot petitions must be from the district at issue. Because too many of his ballot signatures were gathered by Lux himself, the State Board of Elections denied him a spot on the ballot.

The Virginia law passes constitutional muster, Hudson ruled in an Aug. 26 opinion. “States have a well-settled interest in protecting the political process and to that end may enact regulations to safeguard against frivolous candidacies,” he wrote.

By Peter Vieth

A group of tenants attacked in a letter from Roanoke white supremacist Bill White has won a jury verdict against White and his American National Socialist Workers Party in a federal civil trial. The jury awarded compensatory damages of $265,000 against White and $280,000 against the party on Aug. 27.

Based on a jury finding, the victims of White’s vitriol can attach his assets despite his bankruptcy, reports The Roanoke Times.

White is serving time for criminal convictions for sending threatening messages to various targets. He appears to own several rental properties in Roanoke, according to an online tax database.

By Peter Vieth

A second panel of the Court of Appeals for the Federal Circuit today upheld a special master’s finding that there is no connection between autism and a mercury-based preservative in the measles-mumps rubella vaccine.

The first panel issued its opinion in May. Judge Pauline Newman was the only judge on both panels, but she was not the author of either opinion.

Some parents contend that their children were normal until they took the vaccine and then developed symptoms of autism. If a link could be established, the parents would be entitled to compensation under the National Childhood Vaccine Injury Act of 1986.

A hat tip to the Blog of the Legal Times, which has more detail and links to an article about the controversy.
By Alan Cooper

Charles Edward Reed III might well have been as guilty as a Stafford County Circuit Court jury found him to be in June 2005.

But there was a significant problem in the trial for murder and three related counts that netted Reed a sentence of life plus 38 years for what witnesses said was a killing during a drug transaction.

The foreman of the grand jury that indicted Reed didn’t sign the indictments – an oversight that does not appear to be in dispute. Reed challenged his convictions on that basis last year in circuit court, but Judge Charles S. Sharp upheld the convictions, relying largely on Virginia Code § 19.2-227.

The statute says judgment shall not be reversed after a conviction “unless it be so defective as to be a violation of the Constitution.” That presumably is the Virginia Constitution, which – unlike the U.S. Constitution – says nothing about grand juries and mentions indictments only in the context of impeachment of public officials. (A failure to impeach does not eliminate the possibility of indictment for the same conduct).

Whatever the ultimate merits of the case, the Supreme Court of Virginia was troubled enough by the omission to grant Reed’s pro se petition for appeal.

Not that Reed will get to argue the case himself. The court appointed Steve Emmert from Virginia Beach and John Davidson from Charlottesville to represent Reed on the appeal in Record No. 100506.
By Alan Cooper

U.S. Magistrate Judge Michael Urbanski recommends limiting attorneys’ fee to 33 1/3 percent for child and wrongful death claims arising from the Salmonella outbreak from products made by the Lynchburg-based Peanut Corporation of America.

A report and recommendation issued by Urbanski on Wednesday recommends approval of $12 million in settlements from a fund established to pay personal injury claims related to the outbreak. 122 claimants would share in the fund. Claim amounts were negotiated in a process involving an appointed claims administrator who is an expert in food borne illness litigation.

The total amount of claim values was $15 million. Reducing the total to $12 million would mean claimants will get about 80 cents on the dollar.

Claims for infants and death cases demanded extra judicial scrutiny. Urbanski noted two lawyers sought fees of 40 and 45 percent, which he recommended be cut down to 33 1/3 percent.

By Peter Vieth

Norfolk City Council has learned that an employee of its Community Services Board collected a salary and benefits for 12 years without going to work.

The identity of the employee – who has been fired – and the circumstances that allowed such absenteeism haven’t been disclosed, but City Council members said they expect to discuss them and other recent embarrassments at a retreat next month.

The disclosure follows reports about allegedly improper use of a city credit card by the commissioner of revenue and the purchase of a cell phone for a gang member by an assistant to the city manager.

One council member said such incidents are doing “serious damage” to the city’s image. The Virginian-Pilot has details.

A fire marshal threw the book at two Herndon bartenders for their pyrotechnics, but Fairfax Commonwealth’s Attorney Ray Morrogh said felony charges will be dismissed.

The Jimmy’s Old Town Tavern employees were arrested in July after performing the “flaming bartender,” a trick that involved spitting alcohol onto a flame to create a bigger ball of fire.

They were each charged with the felonies of manufacturing and using an explosive device; setting a fire capable of spreading; and burning or destroying a meeting house, according to the Fairfax Times.

After reviewing the case, Morrogh found no evidence to support the felony charges.

The two bartenders, however, are still charged with fire prevention code misdemeanors, which carry the possibility of imprisonment and fines.

U.S. District Judge James R. Spencer affirmed yesterday a $19.3 million intellectual property verdict for the manufacturer of a computer keyboard support system.

The lawsuit pitted CompX International Inc. and its subsidiary, Waterloo Furniture Components Limited, and Humanscale Corp., the two largest companies in the field of ergonomic office products.

The case started as a patent infringement suit by Humanscale in Richmond, but CompX prevailed on its counterclaims during a seven-day trial that began in February. Our account of the trial is here.

The two companies have been involved in IP litigation since 1998, and a proceeding before the U.S. International Trade Commission was resolved recently largely in CompX’s favor as well.

In his 40-page opinion, Spencer rejected motions by Humanscale for entry of judgment as a matter of law or for a new trial.

By Alan Cooper

Ellen Marie Rix thought she was helping out the driver of the car when she switched seats after a Virginia Beach policeman pulled over the vehicle. Bad move – and not just because the policeman saw the switch.

The other occupant of the car, Veselina Stoilova, subsequently testified that she asked Rix to switch seats because she did not have her driver’s license. Rix testified that she moved because she feared Stoilova would be deported if she was arrested.

The difference in testimony might have been because neither woman was thinking too clearly at the time. Both were convicted of drunken driving, the first offense for Stoilova but the second for Rix, who also was convicted of refusing to take a blood or breath test.

Stoilova pleaded guilty and was fined $250 and ordered to pay $186 in court costs, but Rix appealed.

She contended that she couldn’t be convicted because she never actually operated the car. Neither Virginia Beach Circuit Judge William R. O’Brien nor Court of Appeals Judge Elizabeth A. McClanahan was impressed by that argument.

Cases from Supreme Court of Virginia and the Court of Appeals have held operation of a motor vehicle encompasses more than putting a vehicle in motion, McClanahan wrotetoday. In this case, Rix was behind the wheel with the engine running, which gave her “actual physical control of the vehicle” and made her the operator of it.

By Alan Cooper

A Norfolk federal judge has dismissed piracy charges against a band of Somalis accused of trying to board and rob a U.S. Navy ship.

The defense attack on the piracy counts called for interpretation of a U.S. statute that had not been applied since the days of Blackbeard. As The Wall Street Journal reported, the lawyers built their arguments on court decisions both ancient and foreign.

Tuesday, U.S. District Judge Raymond Jackson held the piracy law did not apply to alleged bandits who only tried - without success - to commit robbery on the high seas.

As The Virginian-Pilot reports, the decision leaves the band of six Somalis facing lesser charges. The threat of life sentences is removed, at least for now.

By Peter Vieth

Gov. Bob McDonnell announced today that Tom Davis and Owen Pickett, both lawyers former members of Congress, will be co-chairmen of his Commission on Military and National Security Facilities.

McDonnell said he decided to establish commission in response to a February meeting with the state’s congressional delegation and, more recently, the proposal of Defense Secretary Robert Gates to close U.S. Joint Forces Command, one of Hampton Roads’ largest employers.

Davis, a Republican, represented Northern Virginia’s 11th Congressional District from 1994-2008. He recently was named director of federal government affairs for Deloitte LLP.

Pickett, a Democrat, represented the 2nd Congressional district in Hampton Roads from 1987-2001.

The governor’s press release has more detail about Davis and Pickett. It said he will announce members of the commission in the coming weeks.

The Virginia State Bar Disciplinary Board has summarily suspended the license of Winchester lawyer Gary Lance Smith on impairment grounds.

In its order entered Tuesday, the board said Smith suffers from diabetes, “the complications of which prevent him from practicing law at the current time.”

Earlier this month, the VSB’s office of bar counsel asked the Winchester Circuit Court to appoint a receiver for Smith’s practice, and the court named Patricia A. Woodward to fill that position.

The receivership petition said Smith’s license has been suspended administratively since June. It said Smith has not occupied his office for at least six months, utilities and telephone have been connected for nonpayment, and the office has unopened mail with postmarks that are several months old.

Clients have contacted the bar and said they have been unable to get in touch with Smith, according to the petition.

Although faulty eyewitness identification has been the basis for most of the convictions overturned by DNA evidence, it’s tough to get an appellate writ granted, much less have a conviction reversed, when the judge or jury believes the witness.

So it was no surprise that Maurice James Ward’s challenge to a robbery victim’s identification of him as the culprit met a familiar fate in the Virginia Court of Appeals’ two-step screening process. One judge initially looked at the case, found it wanting, and a three-judge panel then decided the case didn’t merit full review. The conviction was affirmed without even an unpublished opinion.

But the Supreme Court of Virginia granted Ward a writ yesterday. According to the petition for appeal, the witness said a man she had never seen before came to her Portsmouth home, asked for a man who sometimes stayed there and then pulled a gun and robbed her and her husband.

A month later, the woman saw Ward outside a Walmart, and her sister called police when she said he was the gunman. At a bench trial, Ward said he was at his girlfriend’s home at the time of the robbery, but the woman stood by the identification even though she said she had identified Ward two days after the robbery and gave inconsistent testimony about the type of gun the robber wielded.

The trial judge convicted Ward of two counts each of robbery and using a firearm in a felony and sentenced him to eight years in prison.

The assignment of error is that the inconsistencies in the woman’s testimony made her testimony insufficient for conviction. The case is Ward v. Commonwealth, Record No. 100539.

On Wednesday, the Supreme Court granted a writ on an issue in a civil case that started in 1994, when a British company that sold construction materials for horse stalls and its American agent had a disagreement.

That disagreement led to the attachment of materials for construction of the stalls by the agent in 1996. That attachment was determined in 2004 to have been wrongful, and the issue before the court is the amount of damages caused by the wrongful attachment.

The two sides appeared to agree on the measure of damages – the value of the property when it was attached minus its value when the attachment was lifted. The trial judge put the figure at about $83,000, but the agent contends that the evidence of value was speculative while the company argues that the award was much too low. The court agreed to hear both the appeal and the cross-appeal. The case is Pittkin v. Loddon (U.S.) Ltd., Record No. 100486.
By Alan Cooper

Albemarle County Circuit Judge Paul Peatross announced Friday he would decide in ten days the University of Virginia’s court challenge to civil investigative demands issued by Virginia Attorney General Ken Cuccinelli seeking documents related to climate change research.

As reported by The Daily Progress, the judge heard oral arguments Friday afternoon. Cuccinelli’s office followed with a statement defending its position. “This office has far exceeded the statutory standard required to execute this demand for documents,” read the news release.

By Peter Vieth

The Virginia Judicial Inquiry and Review Commission has elected a new chairman and vice chairman.

Effective Sept. 15, Fauquier lawyer James P. Fisher will succeed Norfolk lawyer Martin A. Thomas as chair of the commonwealth’s judicial oversight agency. Fisher, Chief Deputy Commonwealth’s Attorney in Loudoun County, is the current vice chairman. The commission elected Olivia A. Welsh as its new vice chair. Welsh is the owner of Livia Properties in Staunton and a former member of the Commonwealth Transportation Board.

JIRC stays busy trying to help judges avoid trouble. The agency invests a lot of time responding to telephone and written inquiries, from a lot of different players in the legal system. But sometimes things get serious.

Figures reported to the General Assembly for 2009 show that the commission opened 20 files, with complaints coming from multiple categories: Five each from attorneys and judges, four each from litigants and the commission, and one each from court staff and from an inmate.

The agency reported 33 dispositions for 2009, including 16 matters dismissed and two instances in which JIRC issued formal charges. The full report is here.
By Deborah Elkins

Update 2010/08/24, 9:20 a.m.

While Dennis Belcher’s expertise in handling big-dollar arrangements for families no doubt played a role in the firm’s representation of Elin Nordegren in her divorce from Tiger Woods, there’s a more direct connection. Nordegren’s twin sister, Josefin Lonnborg, is an associate in MW’s London office.

McGuireWoods LLP is one of the firms representing Elin Nordegren in her divorce from Tiger Woods, and if you’re wondering how it got that assignment, you need look no further than the first sentence of the firm biography of Richmond attorney Dennis I. Belcher.

“Mr. Belcher routinely represents both high-net worth individuals and families on a variety of sensitive and complex estate and business planning matters,” and if ever a divorce fit that description, it’s the Woods case.

Belcher is past president of the American College of Trust and Estate Counsel and was previously chair of the American Bar Association’s Real Property, Trust & Estate Law Section.

McGuireWoods and Sasser, Cestero and Sasser PA, Woods’ counsel from West Palm Beach, Fla., announced the divorce this afternoon.

The papers were filed in Bay County Circuit Court in Florida, and it was not immediately clear how much detail would be available about the terms of the settlement. What was clear is that the couple wants to make the split as dignified as possible.

The announcement contained a short, joint statement from Woods and Nordegren that said they were sad their marriage was over but wished “each other the very best for the future.”

The rest of the statement is here, emphasizing that the happiness of their two small children “has been, and will always be, of paramount importance to both of us,” as is the list of law firms and attorneys who worked on the case.
By Alan Cooper

Virginia could tighten regulations on clinics providing first trimester abortions according to an opinion released Monday from state Attorney General Ken Cuccinelli.

Reviewing Virginia’s health regulatory scheme and a 2000 opinion from the 4th U.S. Circuit Court of Appeals, Cuccinelli said regulations addressing medical and safety aspects of providing abortions, as well as record keeping and administrative practices, would be permissible as long as they do not interfere with the woman’s status as the ultimate decisionmaker.

Cuccinelli’s opinion comes in response to inquiries from two state lawmakers, Del. Bob Marshall (R-Manassas) and Sen. Ralph Smith (R-Roanoke).

An abortion rights supporter quoted in published reports claimed the AG’s opinion was an effort to circumvent the General Assembly’s rejection of bills to increase restrictions on outpatient abortion clinics.

By Peter Vieth

Troutman Sanders LLP expected to do well by doing good for the city of Richmond.
The law firm agreed to build its new office building on the James River in exchange for an abatement in the taxes on the increase in the assessed value of the property after the project was completed.
The city in return would have a centerpiece and incentive for additional development along Brown’s Island and its Canal Walk.
But the firm and the city had different ideas about how the abatement would be determined. Their difference of opinion has the two sides sparring before the Supreme Court of Virginia.
Subscribers to Virginia Lawyers Weekly can read the full story here.

Gary D. LeClair, the co-founder, CEO and chairman of LeClairRyan, will step down as CEO at the end of a two-year management transition program at the firm.

He will be replaced by David C. Freinberg, a shareholder in the firm’s office in Newark, N.J., who will serve as chief practice officer during the transition.

The firm’s other co-founder and COO, Dennis M. Ryan, will become vice chairman and firm president Michael L. Hern will take on COO duties.

Freinberg, a resident of Maplewood, N.J., holds an undergraduate and MBA from Columbia University and graduated from the Benjamin M. Cardozo School of Law in New York City.

Details of the transition plan are in this press release, which quotes LeClair as saying “our best days are indeed ahead of us.”

A firm spokeswoman said Freinberg will be based in Newark but will have an office in Richmond and spend substantial time at the firm’s other offices.

By Alan Cooper

Roanoke-based Woods Rogers PLC has announced the opening of a new office in Charlottesville, where the firm has not had a physical presence for more than five years.

Partner Rusty Schundler, formerly of Roanoke, will head the Charlottesville office, with Mac Thompson and Peter Rosden also aboard.

In addition to its Roanoke headquarters, Wood Rogers also has offices in Richmond and Danville.

By Peter Vieth

There’s etiquette, there’s ethics and then there’s the law.

When a couple’s engagement ends, does the woman have to return the ring to her former fiancé?

Virginia trial courts are split but the latest word from Richmond Circuit Court is no, then yes.

That is, Richmond Circuit Court Judge Melvin Hughes initially rejected the jilted lover’s demand for the ring, then changed his mind. Upon further reflection, Hughes said in Hicks v. Jordan that the plaintiff proved the ring was “a gift made in contemplation of marriage and as such, is conditional.

“Upon breach of the engagement to be married, the property may be recovered by the donor,” Hughes said on June 16.

In 2006, a Newport News Circuit Court said a man had no claim to a ring costing nearly $25,000. Judge Timothy Fisher reviewed circuit court decisions from Fairfax and Amherst Counties that allowed the claim. But he cast his lot with a 2005 Salem Circuit Court decision that rejected the claim.

The Richmond court based its decision for the man on a 1921 Missouri case cited with approval by the Supreme Court of Virginia in a 1941 case, Pretlow v. Pretlow.
By Deborah Elkins

A barn in a remote part of Culpeper County has given up up secrets about a  World War II and Cold War era clandestine espionage agency viewed as one of the predecessors of the CIA.

The operation, bearing the enigmatic name “the Pond,” was responsible for the 1947 rescue of an anti-communist leader in Hungary along with other intelligence successes.

We’re just hearing about the Pond because its leader, fervent anti-communist John V. Grombach, retired to an estate in rural Boston, Va., bringing with him tens of thousands of documents he intended to keep secret. Grombach died in 1982 and the cache of papers emerged by accident in 2001.

The nation’s current spy agencies have finally finished going through the papers and the Associated Press got a look at many of them in April.

The editors of the Culpeper Star-Exponent take understandable pleasure in helping bring out the story of the mysterious Longlea property where Grombach held forth in his later years. They should not overlook another piece of Cold War history in their own backyard - the Mount Pony facility where, for 19 years, the Federal Reserve Board hid a substantial wad of cash in case of nuclear Armageddon.

By Peter Vieth

Virginia Gov. Bob McDonnell has asked the Department of Homeland Security to designate state troopers as federal immigration officers.

McDonnell made the request in a letter to DHS Secretary Janet Napolitano under § 287(g) of the Immigration and Nationality Act.

Enforcement of immigration laws generally is a federal responsibility, but federal law allows state and local law enforcement to enter into a memorandum of agreement with the federal agency to assist in that effort.

McDonnell’s letter asks Napolitano to help develop and implement such an agreement on “how participating State Police personnel will be nominated, trained, authorized, and supervised in performing the immigration enforcement functions specified in the agreement.”

“We contemplate addressing those aliens who are engaged in major drug offenses or violent offenses such as murder, manslaughter, rape, robbery, and kidnapping, as well as DUI offenses,” McDonnell wrote.

The so-called 287(g) agreements have been controversial with some police departments, which contend that they undermine efforts of local to work with immigrant communities because of the fear of victims that they will be deported if they report crimes.

Although the letter does not mention the incident specifically, the DUI reference follows the death of a nun in a crash in Northern Virginia caused by an illegal alien from Honduras who had been released pending deportation proceedings despite two prior DUI convictions.

The alien has been in this country since he was nine years old.
By Alan Cooper

Salem lawyer Mark Claytor is looking to fill a seabag with donated used eyeglasses when he heads to Honduras in October for a medical mission trip.

Claytor isn’t a medical professional - he says his role with the mission is primarily “rolling pills and handing out stuff.” He’ll travel with four physicians, a psychiatrist, and several nurse practitioners and RNs to the village of Trinidad in Honduras.

Claytor said this will be his second trip to the medically under-served community. “People would hike four hours or more to get treatment for easily treatable diseases,” he said.

Claytor is looking for donations of eyeglasses. Any kind will do - prescription, readers, sunglasses, or others. “That seemed to me what was needed most,” he said. He’s also looking for small toys for the kids - matchbox-sized are preferred.

Claytor assures donors the items will be put to good use, and he promises pictures by e-mail on his return.

Contact Mark at:

By Peter Vieth

A North Carolina judge nominated for promotion more than a decade ago finally has been cleared to join the Richmond-based 4th U.S. Circuit Court of Appeals, the Associated Press reports.

Judge James Wynn Jr. was confirmed by the U.S. Senate to a seat on the intermediate appellate court, which covers Virginia, Maryland, North Carolina, South Carolina and West Virginia. President Barack Obama nominated Wynn last fall. He first was nominated by President Bill Clinton in 1999 but was not confirmed. Wynn currently sits on the North Carolina Court of Appeals.

Wynn was nominated to the federal appeals court with Charlotte judge Albert Diaz. Diaz was not confirmed by the Senate with Wynn late Thursday. Sen. Kay Hagan, D-N.C., says she will work to get Diaz confirmed as quickly as possible.

- Deborah Elkins

Federal authorities in Roanoke Monday arrested former restaurateur Roland “Spanky” Macher on bankruptcy fraud and tax evasion charges.

Macher is known as the founder of a chain of “Spanky’s” restaurants in Central and Southwest Virginia. More recently, he gained infamy for towing cars from his parking lot across from Roanoke’s Taubman Museum of Art and imposing hefty fees on the vehicles’ owners.

The Roanoke Times reports Macher was released on bond by U.S. Magistrate Judge Michael F. Urbanski.

The U.S. Attorney for the Western District of Virginia has scheduled a news conference for Tuesday to discuss the charges and unveil a bankruptcy fraud task force.

By Peter Vieth

Six years after opening, Liberty University’s law school has been awarded full accreditation by the American Bar Association.

Approval came Aug. 5 from the ABA Council of the Section of Legal Education and Admissions to the Bar at the ABA’s annual meeting in San Francisco.

Liberty’s law school opened in 2004 and obtained provisional ABA approval in February 2006.

“Now that the law school has reached this milestone in only six years since it opened, we are ready to move forward with new and exciting programs,” said Dean Mat Staver in a news release.

The school has plans for LL.M. degrees, a masters in public policy, and a Ph.D. in law, according to the news release.

By Peter Vieth

Insurance coverage disputes are among the 20 cases, about half of them criminal, for which the Supreme Court of Virginia has recently granted petitions for appeal.

One of the coverage cases, The AES Corp. v. Steadfast Insurance Corp., Record No. 100764, is from Arlington and stems from a California case filed by Native Americans in Alaska alleging that global warming created by such major energy producers as AES has destroyed their village and way of life.

AES is attempting to bring its comprehensive general liability insurer into the fray, but the trial judge says AES hasn’t alleged an “occurrence” that triggers a duty to defend and indemnify.

The other coverage dispute is from Roanoke, Dabney v. Augusta Mutual Insurance Co. Inc., Record No. 100841, and involves the effort of an elderly woman to track down homeowner’s insurance that would cover the injuries she suffered when she fell after pit bulls converged on her. She alleges that the trial judge didn’t instruct the jury properly on whether the insured had properly notified the carrier of the incident.

Perhaps the most interesting criminal case, Hernandez v. Commonwealth, Record No. 092524, is yet another effort to get the court to address an issue it has said it has never had properly before it: whether trial judges have the inherent authority to defer judgment and ultimately dismiss a charge if a defendant gets in no further trouble.

In this case from Alexandria, the defense attorney asked the judge to defer a finding of guilt on a charge of assault on a police officer, and she responded that she had no authority to do so.

Some of the granted writs are here and we have notes on them and on a few that haven’t hit the court’s website yet here.

The lawsuit filed by Minerals Development & Supply Company charges Hunton with tortious interference with contract, aiding and abetting a tort, and business conspiracy.

Identified in the lawsuit, but not named as defendants, are Hunton lawyers Sean Ducharme, Jeffery Edwards and Kim Magee. The suit claims they urged a supplier of industrial sand to terminate its contract with Minerals Development in order to sell directly to Hunton’s client.

The lawsuit was filed July 30 in the Circuit Court of Monroe County, Wis.

“This suit was filed by an adversary of one of our clients,” said a Hunton representative. “These allegations have no merit, and we plan to vigorously defend against them.”

By Peter Vieth

Virginia Attorney General Ken Cuccinelli this week gave the green light for clerks to make recordings of court proceedings and provide copies for a fee, a practice that might help litigants who can’t afford to hire court reporters.

Cuccinelli’s position on the issue is described in an attorney general opinion in response to a request by Del. Scott Surovell (D-Mount Vernon). Surovell sponsored legislation to explicitly authorize court recordings, but his bill was defeated in a House subcommittee.

In a blog post about the opinion, Surovell said Cuccinelli “basically  says that my legislation is unnecessary because Clerks already have the authority to proceed and charge for the recordings.”

Surovell, a traffic lawyer, said federal courts have been making digital recordings “for as long as I can remember.” He said clerks in Northern Virginia hesitated to install recording systems, however, because there was no clear legal authority.

“I cannot tell you how many times I would have liked to have a record but did not have one because my client would not pay for a court reporter,” Surovell wrote.

Even if the Cuccinelli opinion provides the assurance clerks need to start recording court proceedings, there is still the matter of funding, as Surovell notes. “I believe the only thing holding this back will be the money to pay for the equipment on the front end.”

By Peter Vieth

University of Richmond law school Dean John Douglass has announced he will step down as dean next June and return to teaching at the school.

Douglass will have served four years as dean when his term ends next year. “I think things have gone really, really well,” he said. “I think it’s a good time for a transition.”

Douglass was named acting dean in April 2007 when former UR law Dean Rod Smolla departed for Washington & Lee’s law school. Douglass became dean in 2008.

Douglass said he is looking forward to returning to faculty duties. “Teaching is where my heart lies,” he said.

By Peter Vieth