The VLW Blog

A school superintendent who refused to release a student’s school records to police investigating a threat of school violence was within her rights under federal law, Attorney General Ken Cuccinelli has ruled.

In an official opinion, Cuccinelli said the Family Educational Rights and Privacy Act authorized the school chief to deny access to a pupil’s records for a law enforcement officer seeking information about a threatened school shooting in Page County.

The letter was prompted by an apparent conflict between the county school superintendent and a police captain after a student posted an online message saying, “Remember Columbine.”

Police searched the student’s home and found no weapons and searched him when he arrived at school the next day, again finding no weapon. Police apparently were unable to get a court order for detention. School officials told police the student had threatened to bring a gun to school after conflict with other students.

The police captain told the superintendent the student’s records were “essential” to establish the threat level. The superintendent said she was not required to provide the information, having determined there was “no emergency.” The police captain said there was a “potential emergency.”

Police obtained the records by search warrant several days later.

There is no indication that any violence ever occurred.

Cuccinelli found no conflict between federal and state law regarding disclosure of student records. The default rule is non-disclosure under both laws, he said.

The federal law allows disclosure only if the school system finds an “articulable and significant threat” to others’ safety, Cuccinelli said. School officials, not law enforcement, get to make the call, he said.

Whether the superintendent correctly assessed the circumstances was “beyond the scope of this opinion,” Cuccinelli said.

The request for Cuccinelli’s opinion came from Page County Commonwealth’s Attorney Kenneth Alger II.

A week after airing differences over the way Virginia picks its judges, two legislators are back with their rebuttal arguments in Sunday’s Roanoke Times.

Dels. Ben Cline, R-Lexington, and Creigh Deeds, D-Hot Springs, clash over whether a bi-partisan commission should be involved in screening candidates for the bench. Currently, judges are elected by the General Assembly in a process largely outside the public view and often infused with politics and cronyism.

Cline said legislators nonetheless “take great care to evaluate all relevant factors when nominating a candidate.”

“Formalizing that role … would only add bureaucracy to the selection process,” Cline argued.

Deeds called for commissions of lawyers and lay members to vet candidates, with an expanded role for state and local bar associations. The current process, he said, “is fraught with smoky-room politics.”

WASHINGTON – A group of small businesses has filed a lawsuit challenging a rule imposed by the Internal Revenue Service under the federal health care law, alleging the agency exceeded its authority by expanding the law’s employer mandate.

Business owners in Virginia and five other states claim the IRS rule places burdens on small businesses in states that have declined to set up health care exchanges under the Affordable Care Act.

The Act authorizes health insurance subsidies for qualifying individuals in states that set up the exchanges, but the subsidies also trigger the law’s employer mandate, which imposes a $2,000-per-employee penalty on employers who fail to maintain a minimum level of health insurance coverage for their employees.

But in the lawsuit filed May 2 in federal court in the District of Columbia, the plaintiffs claim that the IRS rule expands the employer mandate to all 50 states — something only Congress has the power to do.

“The IRS rule we are challenging is at war with the Act’s plain language and completely rewrites the deal that Congress made with the states on running these insurance exchanges,” said the plaintiffs’ attorney Michael A. Carvin, of Washington, D.C., in a statement announcing the lawsuit. Carvin argued before the U.S. Supreme Court last year on behalf of businesses challenging the constitutionality of the health care law.

The plaintiffs in the suit claim their businesses will be harmed by the IRS regulation. The rule would force them to choose between laying off workers or paying for costly insurance packages they don’t need or want, they argue.

To date, 33 states have declined to set up health care exchanges that trigger the mandates. In December, Virginia Gov. Bob McDonnell told federal officials that the state would not set up an exchange under the health care law.

The lawsuit is the latest chapter in ongoing litigation over the health care law and its employer mandate. A constitutional challenge to the employer mandate is currently pending before the 4th U.S. Circuit Court of Appeals and is expected to reach the Supreme Court as soon as next term.
— Kimberly Atkins, Dolan NewsWire

In the wake of the Sandy Hook school massacre in Connecticut, applications for concealed weapons permits in Virginia have more than doubled in the first three months of the year, according to caseload figures from the Supreme Court of Virginia.

The number of applications went from 21,732 for the three-month period last year to 48,943 for the same period this year.

The trend is fairly consistent in courts across the state. Even in urban Arlington County, the pace has picked up to the point the circuit court clerk’s staff spends four to five hours a day on carry permits, according to a recent report in the Arlington Sun Gazette. The county saw applications increase from 249 in the first quarter of 2012 to 458 for the same period this year.

Arlington Circuit Court Clerk Paul Ferguson told the paper he traced the increase back to last summer, when fingerprint requirements were lifted. The real boost came after the Connecticut shootings, however.

In Fairfax County, Clerk John Frey told the paper he hired additional part time staff to help handle the increase. Fairfax applications went from 1,377 to 2,913.

In Suffolk, where the first quarter numbers grew from 268 to 594, Clerk Randy Carter told the Suffolk News-Herald the increase is driven in part by a fear the government will try to disarm the citizenry. Other applicants are just worried about their safety, he said.

Come July 1, it will no longer be possible to check on who has a concealed weapon permit. A new law will close the records to public inspection.

A divorce decree that called for a father to continue paying part of his son’s health care coverage until the son was “no longer an eligible dependent” meant the father had to pay past the son’s 18th birthday, the Virginia Court of Appeals said on April 30.

The parties’ agreement, incorporated in the divorce decree, said the father was responsible for the dependent coverage “as long as such insurance is reasonably available to him through his place of employment.”

When the couple’s son turned 18 and graduated from high school in June 2010, the father asked the trial court to terminate the order requiring him to pay health and dental insurance for the son. A Henrico County Circuit Court denied the motion and ordered the father to reimburse the mother for one-half the cost of the son’s hospitalization insurance, including dental if available, for so long as the child was deemed a dependent, “per Southern Health.”

In an unpublished opinion by Judge Robert J. Humphreys, the appellate court said the clear intent of the parties’ property settlement agreement is that the duration of the father’s obligation is not defined by the son’s age, but by the availability of an insurance policy to the father through his employer, for coverage of the son.

Humphreys said the phrase “eligible dependent,” when used in the context of insurance coverage, does not exclude a child who has reached the age of majority and graduated from high school. The panel affirmed the order to pay in Kolmetz v. Hitchcock.
– Deborah Elkins

Virginia does not have to extend public-records access to persons outside the commonwealth, the U.S. Supreme Court said today, denying out-of-staters’ requests under the Virginia Freedom of Information Act for records on a child support case and on county real estate data.

Rhode Island resident Mark McBurney filed a VFOIA request with the Virginia Division of Child Support Enforcement, seeking information about why DCSE had delayed in filing a child support petition on his behalf, which he said had cost him nine months’ worth of support.

McBurney argued that DCSE’s denial of his request hindered his right to advocate on his own behalf and prohibited him from using Virginia’s dispute resolution procedures, thus violating the federal Privileges & Immunities Clause. However, McBurney was able to get much of the information he sought from Virginia’s Government Data Collection and Dissemination Practices Act, according to the Supreme Court.

California resident Roger Hurlbert, owner of Sage Information Services, sued over Henrico County’s denial of records from the county assessor’s office, which Hurlbert said interfered with his fundamental right to earn a living in his chosen profession of obtaining property records for his clients.

After denying Hurlbert’s FOIA request, the county provided Hurlbert with an electronic copy of its 2008 real estate assessment database, which his lawyer declined to review. Real estate tax assessment records maintained by court clerks already are open to public inspection, the Supreme Court pointed out, including through online posting.

Virginia court rules provide noncitizens access to nonprivileged documents necessary for litigation, and Virginia law gives both citizens and noncitizens access to judicial records, the Supreme Court said in its unanimous opinion in McBurney v. Young, written by Justice Samuel A. Alito Jr.

But a statute like the Government Data Collection and Dissemination Practices Act, used by McBurney, only offers a partial workaround, as it applies exclusively to government records about the person making the request, said Megan Rhyne, executor director of the Virginia Coalition for Open Government.

The high court said FOIA laws are meant to make public officials accountable to citizens, and Virginia can draw a valid distinction between citizens and noncitizens because it’s the citizens of the commonwealth who foot the bill for the fixed costs underlying agency recordkeeping.

Alito’s opinion cited several other state FOIA statutes that discriminate against noncitizens, and the Supreme Court’s validation of a financial reason for the distinction may encourage other budget-strapped states to change their laws.

National open-government advocacy groups were aware of that risk, according to Rhyne, who serves on the board of the National Freedom of Information Coalition, a group that signed onto an amicus brief filed by Washington, D.C., lawyer Samir Jain on behalf of transparency groups.

But the availability of alternative methods for the McBurney plaintiffs to get the information they wanted – a point emphasized by Alito – meant the state wouldn’t necessarily avoid costs for data gathering and production.

“I don’t think [McBurney] is carte blanche for a total lockdown for information being sought by noncitizens,” Rhyne said. “It’s sort of a pointless restriction” that won’t necessarily save state officials any time. Out-of-state data seekers will just turn to in-state middlemen to get what they want, Rhyne said.

Further clamp-down by states could provoke a stronger reaction from the data industry, which also filed an amicus brief in McBurney, according to Rhyne.

–By Deborah Elkins

The controlling shareholders in a closely held family corporation have won the chance to ask the Supreme Court of Virginia to block a court-ordered breakup of the company.

The granting of an appeal in the case involving The Disthene Group Inc. marks the second of two prominent cases last week in which disappointed litigants won an appeal from the Supreme Court after first striking out with a three-judge panel. In the other case, two families of Virginia Tech shooting victims won the chance to appeal a ruling that put a $100,000 cap on each family’s potential recovery.

The Supreme Court’s allowance of an appeal in the Disthene case puts a hold on plans to break up the family corporation and sell off its assets, which include a profitable Kyanite mine in Buckingham County and the somewhat less profitable Cavalier Hotel in Virginia Beach.

Circuit Judge Jane Marum Roush ordered the corporate dissolution in August based on her conclusion that majority shareholders engaged in a “squeeze out” of minority owners.

The majority owners failed to persuade members of a three-judge panel to grant an appeal, but their petition for rehearing found favor with at least one of the seven justices.

“Corporate governance will be thrown into confusion” by Roush’s ruling, the majority owners argued in their petition for rehearing, according to the Richmond Times-Dispatch.

The writs granted in the Disthene and Virginia Tech cases affirm the vitality of the Supreme Court’s procedures for requesting a “second look” by the court.

Requests for appeals are initially considered by panels of three justices. A petition for rehearing is circulated to all of the sitting justices and any one of them can grant a rehearing and allow the appeal.

An indisposed lawyer and a questionable juror are the bases of the two issues that may be considered by the Court of Appeals of Virginia in the case of George Huguely V, the former University of Virginia lacrosse player convicted of killing his ex-girlfriend.

Huguely was found guilty of second degree murder and sentenced to 23 years in prison for the 2010 death of fellow UVa student Yeardley Love.

Huguely’s lawyers raised a number of issues in their bid for an appeal. A single judge of the Court of Appeals last week granted the appeal, but on only two issues.

The first issue is whether Huguely was denied a fair trial when the trial judge refused to delay the proceedings after one of Huguely’s trial lawyers became ill. The other issue is whether one juror should have been struck from the panel because of doubts about her impartiality.

In a 14-page order dated April 23, the court rejected consideration of the absence of malice. Huguely’s lawyers argued the evidence failed to show malice and supported only manslaughter. The reviewing judge – the judge’s identity is not disclosed – reviewed the evidence of the couple’s turbulent relationship and the details of Love’s death.

“Appellant’s behavior indicates his violent anger toward Love,” the judge wrote. “The evidence supports the jury’s finding that appellant acted with malice.”

The appeals court judge also rejected the suggestion that the trial was tainted by the prosecution’s failure to disclose details of the Love family’s planned civil lawsuit against Huguely. The prosecution had signaled the possibility of a civil suit, and Huguely’s lawyers – with reasonable diligence – could have learned the details, the judge said.

Either side can ask for a review of the writ decision by a three-judge panel.

Two General Assembly members highlighted differences over Virginia’s method of selecting judges on a newspaper op-ed page Sunday.

Sen. Creigh Deeds, D-Hot Springs, and Del. Ben Cline, R-Lexington, disagreed on whether the current method – election by the Assembly – needs reform.

Deeds urged more public input and a more objective review of the candidates’ qualifications. The current process, he said, is “rife with subjective considerations.”

Cline said the current system would not benefit from an unelected, bureaucratic selection commission proposed by some.

“While occasionally messy, often cantankerous, and always political, our current system of appointing judges by the democratically elected representatives of the people is preferable to all other systems,” Cline said.

Their views were published by The Roanoke Times.

The Supreme Court of Virginia now says it will consider appeals from both sides of the Virginia Tech wrongful death trial.

The court has agreed to hear an argument from the families of two victims of the 2007 shootings that – if they prevail on appeal – could allow recovery of more than $100,000 each.

The two families won jury verdicts of $4 million each, but each award was capped at $100,000 under the Virginia Tort Claims Act.

The Supreme Court already had agreed to hear the state’s argument that the families were not entitled to any recovery because university officials owed no duty to warn of danger from a third party.

The court decided Thursday to also consider whether Virginia Tech president Charles Steger should have remained in the case. Trial Judge William Alexander ruled the families’ claim against Steger was barred because Steger had been sued in an earlier action that was dismissed.

With Steger as a defendant, the plaintiffs would have a chance to avoid the $100,000 cap of the VTCA.

The families had asked the Supreme Court to reconsider its earlier decision not to take up the Steger issue.

The original petition for appeal would have been considered only by a three-judge panel. The petition to reconsider went before the full court, with any judge having the ability to grant an appeal. The court’s order granting the writ does not reflect which justice, or justices, agreed to take up the Steger issue.

The families’ successful petition for rehearing highlights the choice facing a lawyer who fails to get a writ. Two Supreme Court justices had some advice Friday for lawyers considering a request for a second look.

A lawyer might worry about appearing a sore loser, but neither Chief Justice Cynthia D. Kinser nor Justice Elizabeth A. McClanahan suggested the lawyer’s reputation should be a consideration.

“I can’t think of any reason not to do it if you believe you have a reason to do it,” McClanahan said, addressing lawyers at the Virginia State Bar’s Solo & Small Firm Practitioner Forum in Abingdon.

McClanahan said the court does not keep any tally of which lawyers ask for rehearings, and the lawyer’s name does not appear on the cover page.

Kinser said a petition for rehearing after denial of a writ will bring the issue before the entire court, improving the odds of success, but she urged lawyers not to hide their best arguments deep in a brief.

“I think the important thing, if you’re going to file one, is you need to catch our attention in the first paragraph,” Kinser said. “We have so much to read, it’s really important to tell us right in the beginning why somebody should grant your petition.”