Bon Mots: May 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 David Bernhard, Darab v. Commonwealth (Fairfax Cir. Ct. May 2, 2018)

The District Court Judge granted the nolle prosequi after first swearing a witness, memorialized this circumstance in writing, realized Jeopardy had attached, and prompted the Prosecutor to reconsider whether he wished to end the prosecution with permanence. . . . In this instance, the District Court Judge acted in a manner which may be interpreted as appearing to cross the line between prosecuting and judging the case, a circumstance adverse to promoting public confidence in the impartiality of the Judiciary.

Judge Elizabeth K. Dillon, Mountain Valley Pipeline v. Easements to construct, operate, and maintain a natural gas pipeline over tracts of land in Giles County, Craig County, Montgomery County, Roanoke County, Franklin County, and Pittsylvania County (W.D. Va. May 4, 2018)

The Terrys and many of their supporters have expressed their belief that the [Mountain Valley Pipeline] project is ill-advised and a threat to their land and the area’s water supplies. Many landowners – and others – have engaged in lawful attempts to prevent or stop the construction of the pipeline . . . . But the Terrys have resorted to actions that clearly violate this court’s order and [Mountain Valley Pipeline]’s rights under it.

Even if their conduct is viewed as a form of civil disobedience intended to focus the public’s attention or to express their opposition to the project, those who disobey valid orders or a court should be prepared to face the consequences of doing so.

Chief Judge Roger L. Gregory, Nero v. Mosby (4th Cir. May 7, 2018)

The Officers allege that Mosby used their arrests “for her own personal interests and political agendas” and thus acted outside the scope of her employment. But their argument is entirely devoid of support. . . . The people of Baltimore elected Mosby to deliver justice. A young African-American man had been killed in the custody of the Baltimore City Police Department, and the city was rioting. Pursuing justice – i.e., using the legal system to reach a fair and just resolution to Gray’s death – was not a political move. It was Mosby’s duty. And Mosby was well within her role to tell the people of Baltimore, and the nation, that she was carrying out that duty. . . .

That the Officers disagree with Mosby’s decision to prosecute – as most defendants do – or with the information in the application for Statement of Charges – which inherently contains defamatory information – does not entitle them to litigate their disagreement in court . . . . Perhaps to the Officers’ chagrin, they must accept that they are subject to the same laws as every other defendant who has been prosecuted and acquitted.

Justice D. Arthur Kelsey, The Game Place LLC v. Fredericksburg 35 LLC (Va. May 10, 2018)

[W]e … pause briefly over the trial court’s reflection that “the law looks at substance not form.” Though it is more properly understood as a maxim of equity, we nonetheless acknowledge and respect this principle and its underlying sentiment. Even so, taken at face value, this aphorism itself lacks substance. Both the common law and statutory law create a virtual architecture of rules that necessarily draw lines. At the margins the lines may seem arbitrary. But those lines create a structure, and when viewed as a systemic whole they provide predictability and stability.

Senior Judge Glen E. Conrad, Innotec LLC v. Visiontech Sales Inc. (W.D. Va. May 18, 2018)

[T]he proposed discovery plan … includes a provision in which the parties agreed to “request a settlement conference to be administered by the Court upon a date mutually agreeable.” Rather than following this approved course of conduct, the defendants hired their own “debt negotiator,” who bypassed plaintiff’s counsel and engaged in ex parte settlement negotiations with [the plaintiff]. In the court’s view, such tactics on the part of the defendants are, at a minimum, troubling and fall well beyond the scope of alternative dispute resolution practices and processes countenanced by [WDVA Local Rule 83].

Judge Arenda L. Wright Allen, Grimm v. Gloucester Cnty. Sch. Bd. (E.D. Va. May 22, 2018)

Before evaluating whether discrimination on the basis of a plaintiff’s transgender status constitutes sex discrimination under Title IX, the Court must address the difficulties inherent in the Board’s view of “sex” under Title IX. That construction may be an appealingly simple way of interpreting the term “sex.” However, the Board argues that the Policy “distinguishes boys and girls based on physical sex characteristics alone,” but fails to acknowledge that there are individuals who possess both male and female physical sex characteristics. As Mr. Grimm contends, attempting to draw lines based on physiological and anatomical characteristics proves unmanageable: how would the Board’s policy apply to individuals who have had genital surgery, individuals whose genitals were injured in an accident, or those with intersex traits who have genital characteristics that are neither typically male nor female? In Mr. Grimm’s situation, how would the Board have continued to implement the Policy after Mr. Grimm’s medical procedures? Mr. Grimm had attained some secondary male physical sex characteristics after hormone therapy and chest reconstruction surgery. Accordingly, acts of discrimination on the basis of physiological sex certainly could have occurred.

The Policy in question assigned restrooms based on “biological gender,” not physiological characteristics. This term has not been accepted by the medical community, because “sex” – the “attributes that characterize biological maleness or femaleness” (such as sex-determining genes, sex chromosomes, internal and external genitalia, and secondary sex characteristics) – is distinct from “gender,” or the “internal, deeply held sense” of being a man or a woman. Given the Policy’s disregard for these distinctions, its use of the term “biological gender” functioned as a proxy for physiological characteristics that a student may or may not have had. The term allowed the Board to isolate, distinguish, and subject to differential treatment any student who deviated from what the Board viewed a male or female student should be, and from the physiological characteristics the Board believed that a male or female student should have.

Judge Robert G. Doumar, Schwab v. Hansen (E.D. Va. May 25, 2018)

Putting aside the merits of his policy goals, Mr. Gurdziel was a passionate citizen advocate-turned-civic-leader who represented the interests of like-minded neighbors to pursue a dredging project in their neighborhood…. In pursuit of such project, … he volunteered countless hours of his time, attended numerous civic league and City hall meetings, drafted community newsletters, and engaged with his neighbors. Such civic involvement, regardless of its desired end, is essential to a healthy democracy. In turn, the free exercise of one’s constitutional rights to speech, association, and petition are essential to encourage and protect such civic engagement. For this reason, too, political battles like the one between Plaintiffs and Mr. Gurdziel must be fought in the marketplace of ideas and in the voting booth, not through groundless lawsuits.

When Plaintiffs named Mr. Gurdziel as a defendant in this lawsuit, he was forced to retain counsel at his own expense in order to defend the suit. To date, he has incurred thousands of dollars in legal fees and has been unable to obtain reimbursement for such fees from other sources. To the extent other private citizens are aware of his case, such individuals may hesitate to volunteer or engage their local governments in order to avoid risk of similar litigation. For this reason, the Court finds that an award of attorneys’ fees in this case is further justified by the need to deter a potential chilling effect on the exercise of First Amendment rights.

*Internal citations omitted.