Bon Mots: April 2018 Edition

As seasoned attorneys know, the lofty principles that attract aspiring lawyers can quickly be overshadowed by client emergencies, Sisyphean scheduling conundrums, unreasonable opposing counsel, billing targets, intrafirm politics, and understaffed courts. But from time to time, our esteemed judges take an opportunity to remind us of the law’s great written tradition, whether by powerful rhetoric, meticulous reasoning, devastating pithiness, or simple humor. In Bon Mots, VLW captures the month’s most notable, quotable phrasing* from Virginia’s state and federal jurists – because if you blink, you’ll miss it.

Judge Randolph A. Beales, Gibbs v. Commonwealth (Va. Ct. App. Apr. 3, 2018)

We certainly create no per se rule that a parent who leaves a five-year-old child at home by himself will be guilty of felony child neglect…. Circumstances – and children themselves – can be quite different. A parent has a right to decide, within reason, when and for how long, a child is sufficiently mature to be left alone at home. “This latitude, however, is not without bounds.”

Judge Henry F. Floyd, United States v. Hamidullin (4th Cir. Apr. 18, 2018)

[The Appellant] not only asks this [c]ourt to abdicate our duty to decide cases properly within our jurisdiction, but also asks us to ignore the legal determination already made by the President of the United States, and to instead authorize a panel of three mid-level, non-lawyer military officers to usurp our authority and responsibility…. Moreover, remanding this case to a military tribunal to make a legal determination that the Commander-in-Chief has already made could lead to an inconsistent application of the laws of war, would undermine the United States and its partners’ current application of the legal framework for non-international armed conflicts in Afghanistan, and, perhaps most troubling, would violate separation of powers principles by conferring our responsibility to hear cases properly within our jurisdiction upon a three-member military tribunal. We cannot allow [the Appellant]’s interpretation of [Army Regulations] to upend our system of governance.

Judge Stephanie D. Thacker, Am. Entertainers LLC v. City of Rocky Mount, N.C., (4th Cir. Apr. 27, 2018)

Quite simply, “erotic touching,” like “fondling,” has a sexual connotation that is plainly not present in mainstream artistic performances. Dancers performing a lift during a ballet surely do not intend for their touching to incite sexual arousal in the manner contemplated by the Ordinance. The same is true for athletic endeavors such as wrestling, where participants often come into contact with intimate body parts. Indeed, if “erotic touching” includes as broad a description as [the Appellant] ascribes to it, the sports world is in trouble. Given such an extensive reading, a sports arena may well be considered a sexually oriented business, considering, for example, players’ frequent celebratory slaps on the buttocks.

Judge Robert J. Humphreys, Hill v. Commonwealth (Va. Ct. App. Apr. 24, 2018)

The First, Fourth, Fifth, and Sixth Amendments to the Constitution of the United States find their origin in the Virginia Declaration of Rights of 1776. The Fourth Amendment’s parallel protections against warrantless searches and seizures have been enshrined in every Virginia constitution since, currently appearing as Article 1, Section 10 of the Constitution of 1971. Therefore, I find it sadly ironic that the shield the Fourth Amendment once provided from warrantless governmental intrusions for the innocent and guilty alike, has been diluted here in the place of its birth to the point that the majority today can seriously conclude that it provides no protection for a citizen, legally parked on a city street at 2:30 in the afternoon, who is dragged from his car for failing to follow police “commands” that he had no legal obligation to obey and then handcuffed while his vehicle is searched — all based upon his presence in what is only generally described as a “high crime, [high] drug area” and on what even an officer involved described as a “hunch” that he might be involved in drug activity. Because I disagree with both the analysis and judgment of the majority, I respectfully dissent.

Senior Judge Jackson L. Kiser, Draper v. Muy Pizza S.E. LLC (WDVA Apr. 27, 2018)

I find the imposition of a pre-filing injunction to be an appropriate measure. Plaintiff has a considerable history of filing “vexatious, harassing or duplicative lawsuits,” often filing multiple suits against the same party on the same day, and has provided no indication that he intends to relent….

For each complaint he files, court staff are confronted with the challenge of wading through often indecipherable claims, meritless filings and motions, and unsupported legal theories. For example, in his suit against several Virginia district courts, Plaintiff cited the “Misrepresentation Act [of] 1967” as the federal statute at issue. The Misrepresentation Act of 1967, however, is U.K. law ….

*Internal citations omitted.