The VLW Blog

A defendant who pleaded guilty to a reduced traffic charge could have the more serious charge expunged from his record, a Fairfax Circuit Court has ruled.

Virginia’s statute on expungement of records, Virginia Code § 19.2-392.2(A), prescribes certain rules. If a person is acquitted of a crime, if a nolle prosequi is taken, or if the charge is “otherwise dismissed,” a former defendant may petition a circuit court for expungement of the record.

It was the “otherwise dismissed” that raised questions for Neil Perry MacDonald last November. MacDonald had been arrested in 2001 for sale and/or distribution of marijuana in violation of Code § 18.2-248.1. The prosecutor nolle prossed that charge. When MacDonald sought expungement of that record, he clearly qualified, according to Judge Lorraine Nordlund’s decision in MacDonald v. Commonwealth (VLW 012-8-006).

Any entitlement to expungement was less clear for MacDonald’s 2010 charge for reckless driving. The commonwealth reduced that charge to improper driving, and MacDonald pleaded guilty and paid a fine.

The commonwealth argued MacDonald’s reckless driving charge had not been “otherwise dismissed” when he was convicted of the reduced charge, which was not a lesser included offense of reckless driving.

But MacDonald never pleaded guilty to reckless driving, and there was no finding of guilty on that charge. Nordlund found the reckless driving charge was “otherwise dismissed” under the statute, and retention of that record could cause a manifest injustice to MacDonald.

The court granted his motion to remove all police and court records relating to the reckless driving charge.

- Deborah Elkins

Hampton Roads attorneys John M. Cooper (pictured above, left) and James G. Hurley Jr. (right) have formed a new personal injury law firm, Cooper Hurley, in Norfolk.

Hurley has most recently been practicing as the Hurley Law Firm and Cooper was previously a partner with Shapiro, Cooper, Lewis & Appleton in Virginia Beach. Cooper currently serves as a district governor for the Virginia Trial Lawyers Association.

The new firm will focus primarily on cases involving motor vehicle accidents.

Revisiting the issue after a Virginia Supreme Court remand, a Fairfax County judge says the Episcopal Diocese of Virginia can keep the church buildings sought by breakaway congregations.

Circuit Judge Randy Bellows Tuesday ordered all church property involved in the protracted litigation be turned over to the diocese.

A copy of Bellows’ 113-page opinion is available at this site.  A news release from the breakaway congregations is here.

Original rulings by Judge Bellows favored the breakaway group, but – as the Falls Church News-Press reports – those decisions were based on a Civil War-era Virginia statute later  found to be unconstitutional by the Supreme Court of Virginia.

A federal judge cited that ‘70s anthem last week when he decided a mine worker who hadn’t toked up since high school should get a chance to return to work.

Employer Dickenson-Russell Coal Company had a strict “zero tolerance” drug policy that called for random screening and disciplinary sanctions ranging up to termination. After the policy went into effect in 2006, three employees at the Cherokee Mine tested positive for drugs and each was terminated. The union did not arbitrate any of those terminations.

Robert Gilbert worked in the coal industry for 32 years, and his work for D-R involved electrical and mechanical repair and was “safety sensitive.”

On Sept. 23, 2010, Gilbert was playing poker with two buddies when one of them pulled out a joint.

“Although he had not smoked marijuana since high school, Gilbert ‘toked it’ twice,” Big Stone Gap U.S. District Judge James P. Jones wrote in Dickenson-Russell Coal Co. v. Int’l Union, UMW. A footnote defined “toke,” with reference to Merriam-Webster and the song by Michael Brewer and Tom Shipley.

As luck would have it, Gilbert faced a random drug screen the next day, his fourth test that year. He tested positive and the company suspended him with intent to discharge.

When the union took the matter to arbitration, the arbitrator said Gilbert’s lengthy clean work record made him the “poster boy” for mitigating circumstances that supported a lesser penalty. The arbitrator directed that Gilbert be reinstated without his six months of back pay. The coal company refused to reinstate Gilbert and the case went to court.

Jones upheld the award for Gilbert, saying the company drug policy did not require termination as the only possible punishment and reinstatement did not violate public policy.
By Deborah Elkins

Rebecca B. Connelly – the standing Chapter 13 bankruptcy trustee in the Western District – has been selected as a U.S. bankruptcy judge by the 4th U.S. Circuit Court of Appeals.

Connelly will succeed Bankruptcy Judge Ross W. Krumm as his term ends in August, according to a release from Chief U.S. District Judge Glen E. Conrad and Chief Bankruptcy Judge William F. Stone Jr.

Connelly practiced in both the Eastern and Western Districts before becoming trustee in 2000. A graduate of the Washington & Lee law school, she lives in Lexington.

The Appalachian School of Law has appointed LSU law Prof. Lucy McGough as its eighth dean.

McGough will succeed Clinton Shinn who returns to teaching as of June 30.

McGough has been on the Louisiana State faculty for more than 25 years where she has written extensively on juvenile justice and family law. She was a member of the American Bar Association panel that granted accreditation for ASL.

-Peter Vieth, with hat tip to the SW Virginia Law Blog.

Last August, former Virginia House Majority Leader Bill Janis, R-Glen Allen, gave up his seat to run as an independent for Henrico County commonwealth’s attorney. His campaign was ultimately unsuccessful, leaving some to speculate what his next move might be.

Now we know.

According to the Richmond Times-Dispatch, Gov. Bob McDonnell has tapped Janis for a political appointment in the Department of Veterans Services.

On Jan. 11, Janis will assume the deputy commissioner post, a full-time job with a salary of $100,000.

Janis is a University of Virginia law school graduate and former Navy officer. In addition to his legislative career, he also worked as an attorney in a private practice.

Any Virginia court could create a special docket to address the “specialized needs of similarly situated defendants” under legislation proposed by Del. Joe Morrissey, D-Richmond.

House Bill 123 appears to be a reaction to a recent memo from Chief Justice Cynthia Kinser advising judges that specialized dockets are limited to those expressly approved by the General Assembly. Morrissey’s bill would give judges a free hand to set up courts for addicts, military veterans, the mentally impaired or other defendants with special concerns.

Under the bill, such judge-created special courts would be on their own to find financial support. The General Assembly would have to approve any state funding or creation of a “formal specialized court.”

Meanwhile, Del. Terry Kilgore, R-Gate City, has offered legislation to create drug treatment courts that would serve defendants in 10 Virginia counties. No general fund money would be provided for those programs under the bill.

By Peter Vieth

The couple who gained notoriety after crashing a White House state dinner have once again filed for divorce.

Pleadings filed by both sides in the breakup of the celebrated Salahis of Warren County offer accusations of abuse and adultery, including details of Michaele’s backstage encounter with rock guitarist Neal Schon.

The Northern Virginia Daily has the story as well as portions of the pleadings.

Judge James W. Haley Jr. has announced his plan to retire from the Court of Appeals of Virginia on March 1. His retirement will give the General Assembly an opportunity to fill his seat on that court during the 2012 session.

Haley was elected to the Court of Appeals in 2005 after serving 15 years on the circuit court bench in Stafford and King George Counties. He previously was a general district judge and commonwealth’s attorney for King George County.

Haley said he will reach Virginia’s mandatory judicial retirement age of 70 next year.

“I leave with the most profound respect for and devotion to and appreciation of the friendship of every member of the court I served, both active and senior,” Haley said, adding, “We’ve got an extraordinarily able group of judges.”

Haley said he announced his planned retirement in a letter to the Governor.

By Peter Vieth