The top stories of 2022… so far

After the expiration of the Virginia Supreme Court’s 40th emergency COVID order, the commonwealth has steadily been returning to in-person hearings and trials. And the Supreme of Virginia and Court of Appeals – which now provide for civil appeals by right – have been issuing opinions at a faster pace than in 2021.

Virginia Lawyers Weekly’s most popular stories from January-June 2022 include decisions from both the state and federal courts. Many addressed matters of great importance to the legal community and public at large. Others, while significant, were a bit more offbeat in nature.

We hope you enjoy this recap of the year’s most popular stories so far.

Judicial discipline, immunity

Perhaps unsurprisingly, some of our most well-read stories involved judges. For example, one year after a judge’s 2021 suspension from the bench during her investigation by the Judicial Inquiry and Review Commission, or JIRC, the Supreme Court of Virginia upheld the “mandate of confidentiality” afforded to such proceedings in “Request to unseal JIRC records denied” (In re: Honorable Adrianne L. Bennett, VLW 022-6-024).

The case began when Judge Adrienne Bennett filed a mandamus petition with records about the JIRC investigation attached. The Supreme Court denied the judge’s petition and ordered all records be sealed.

When a newspaper publisher sought to unseal those records, the court agreed to unseal the mandamus pleadings. However, it noted that there is a statutory requirement that JIRC proceedings and records be kept confidential. Code § 17.1-913(A) provides that “[a]ll papers filed with and proceedings before the Commission … shall be confidential and shall not be divulged.”

While there are some exceptions, including one for “formal complaints” filed with the Supreme Court of Virginia, the court said that “refers to disciplinary proceedings against a judge, not a mandamus proceeding like this one.”

Because “[t]he mandamus filed by Judge Bennett was not ‘a formal complaint filed with’ this Court … the exception does not apply, and the mandate of confidentiality does apply.”

Two justices dissented, arguing that nothing in state law requires JIRC documents be sealed if they are filed with the state supreme court.

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Judicial immunity resulted in the dismissal of a suit against a federal judge and his assistant in “Immunity protects judge, assistant” (Cherdak v. O’Grady, VLW 022-3-092).

The suit, filed by an attorney acting pro se, alleged U.S. District Judge Liam O’Grady and his assistant “intentionally and maliciously engaged in improper ex parte communications” and claimed there was bias in a case in which the plaintiff was a party.

Ultimately, U.S. District Judge Paul W. Grimm granted a motion to dismiss claims against O’Grady and his assistant, citing “the important purpose served by the doctrine of judicial immunity.” Grimm noted that under Virginia law the alleged acts fell within the scope of O’Grady and his assistant’s employment, and that protections provided by judicial immunity extended to the pair.

Property issues

A dispute between neighbors in Fairfax County proved to be popular with readers, as a Fairfax County judge ordered a homeowner to “take permanent measures” to control bamboo planted along a fence line in “Court: Bamboo is nuisance, trespassory” (Willems v. Batcheller, VLW 022-8-013).

The defendants had relocated bamboo to the fence for aesthetic and privacy reasons, which posed issues when the bamboo began growing into the plaintiffs’ property and damaged the roof of a shed near the fence. The roof of the shed was replaced because of the damage, according to the plaintiffs.

A circuit judge ultimately sided with the plaintiffs, applying the “Hawaii Rule” to determine that bamboo was an actionable nuisance because it contributed to damage on the roof of the plaintiffs’ shed. The bamboo was further deemed trespassory, and the judge ordered the defendants to take measures to prevent it from encroaching on the neighboring property and contacting the neighboring shed.

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Our story in “County’s demand for commuter route payments fails” (Board of Supervisors of the County of Albemarle v. Route 29, LLC (VLW 022-6-029), concerned the owner of a shopping center that refused to pay when the county demanded $500,000 pursuant to a public transit proffer after a commuter route was established.

At trial, an associate of the owner testified that the area was busiest mid-day and on weekends, when the commuter bus didn’t run, and an expert said traffic had increased to the center, but not for retail purposes.

Minutes from county board meetings showed they discussed the owner’s obligation to pay if public transportation was established at the center, but not the actual effects of the commuter route.

The trial court granted judgment for the shopping center owner. On appeal, the Supreme Court of Virginia affirmed.

Chief Justice S. Bernard Goodwyn wrote for the court that the “unconstitutional conditions doctrine” prevents the government from regulating land use as a “cudgel to coerce concessions,” the enforcement of which an owner may “ignore or even enjoin.”

Here, Goodwyn concluded the county failed to show an essential nexus and rough proportionality between the proffer, its purpose and the projected impacts on the center, as required under the doctrine.

Criminal matters

In an opinion that addressed how technology is affecting search and seizures issues, the Fairfax County Circuit Court denied a request from the Fairfax County Police Department to issue a “geofence” search warrant in “‘Highly surveilled nation’: Judge denies geofence warrant in first-of-its-kind decision” (In the Matter of the Search of Information Stored at the Premises Controlled by Google, VLW 022-8-010).

Geofence warrants, a relatively new tool, allow police departments to request from Google a list of all cellphones active in the area around a crime scene.

The Fairfax County request, which stemmed from a shooting at a motel, was deemed overbroad by Fairfax County Circuit Judge David A. Oblon, who opined that the country has become “a highly surveilled nation.” The judge struck down the warrant request, citing privacy concerns for innocent hotel patrons who would be swept up in the search, as well as Fourth Amendment concerns.

Oblon noted the court “reserves for another day the question as to whether geofence search warrants are ever constitutional.”

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A controversial decision by Loudoun County Circuit Judge James P. Fisher to hold a witness in contempt after she admitted to using marijuana before testifying was revisited in January, with the witness’s motion to vacate her conviction partially granted in “Where there’s smoke: Judge partially grants witness’ motion to vacate conviction” (Commonwealth v. Orndoff, VLW 022-8-001).

Fisher’s original opinion holding witness Katie Orndoff in contempt generated national headlines and sparked a backlash and calls for his censure from critics of the decision. In his January ruling, Fisher denied the motion to vacate Orndoff’s conviction but granted the motion to commute her 10-day sentence to time served, releasing her from bail bond conditions imposed by the court.

The judge wrote that Orndoff “simultaneously ‘obstructed’ or ‘interrupted’ the administration of justice” by testifying after using marijuana.

Following the opinion, Orndoff filed an appellate brief highlighting 13 assignments of error. In that brief, she requested that the Court of Appeals determine whether Fisher’s findings of fact were credible and supported by existing audio and video tapes of the hearing.

Government decisions rejected

The 4th U.S. Circuit Court of Appeals reversed a Board of Immigration Appeals decision in May’s “4th Circuit: Noncitizen child can seek waiver of removal despite death of parent” (Julmice v. Garland, VLW 022-2-081).

Evens Julmice applied for and received an immigrant visa as an unmarried child of a U.S. citizen while his father was alive. He was later found to have misrepresented his marital status at the time of his application, which made him removable from the country.

Julmice sought waiver of removal. But the BIA interpreted the statute authorizing waiver of removal if a noncitizen is the child of a U.S. citizen to mean that the parent had to be living at the time the waiver was requested. Because Julmice’s father was now deceased, his request was denied.

On appeal, Julmice argued that the 9th U.S. Circuit Court of Appeals had rejected the BIA’s reasoning and concluded that a living-parent requirement was contrary to the statute.

Judge Toby J. Heytens sided with Julmice, concluding that the government “cannot invoke … silence ‘to impose unilaterally novel substantive requirements beyond those’ Congress enacted.”

According to the judge, “in ordinary English, we continue to refer to someone as the ‘son of’ or ‘daughter of’ their parent in the present tense even long after the parent has died.”

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“‘Inflexible and unforgiving’: Pavlov dogged by arbitrary USPTO decisions” (Hints, Inc., et al. v. Hirshfeld, VLW 022-3-139) involved a case described by Judge Leonie M. Brinkema of the Eastern District as one that “should give pause to those who engage in … patent prosecution.”

An attorney mistyped the correspondence address in filling out a patent application online. As a result, USPTO notices demanding payment and threatening withdrawal of the application were sent to the incorrect address and returned as undeliverable.

The USPTO rejected three attempts to pay the fee and reinstate the application, claiming the applicant had cited no instances where similar relief was granted.

But the judge rejected the USPTO’s approach. Finding that the address was correct elsewhere in the application file and that fraud wasn’t alleged, Brinkema called the USPTO’s decision “arbitrary and capricious” and ordered them to vacate the withdrawal.

Litigation privilege at issue

The Johnny Depp/Amber Heard case has stoked conversation about defamation in Virginia, but the absolute privilege defense against such claims is often misunderstood. The 4th U.S. Circuit Court of Appeals analyzed the privilege in “Sanctions vacated: Defamation, tortious interference claims not frivolous” (Lakhova v. Halper, VLW 022-2-084).

Svetlana Lakhova, a Russian-born author, sued Stefan A. Halper after he accused her of being a spy who seduced Gen. Michael Flynn. The Eastern District dismissed her 73-page complaint and threatened sanctions for “any further inappropriate or frivolous pleadings.”

Later, Lakhova sued Halper for defamation and tortious interference, claiming she lost a book deal due to letters he sent to publishers. The court concluded the letters were privileged, dismissed the complaint and ordered sanctions.

On appeal to the Fourth Circuit, Judge Paul V. Niemeyer noted a 2021 Supreme Court of Virginia decision which held that the absolute litigation privilege doesn’t apply to non-defamation torts, like tortious interference. Based on the “thin record,” the court said it could not resolve whether Halper sent the letters in genuine contemplation of filing a lawsuit, and therefore the district court had erred by concluding that Lakhova’s complaint had no chance of success due to the litigation privilege.

Student rights

A Williamsburg-James City County high school student who was suspended after discussing the 2018 mass shooting in Parkland, Florida with his fellow classmates saw his First Amendment claim against the county’s school board reinstated by the 4th U.S. Circuit Court of Appeals. In “Student’s First Amendment claim reinstated on appeal,” (Starbuck v. Williamsburg James City County School Board, (VLW 022-2-074), the court determined the former student’s complaint “plausibly alleges a First Amendment claim.”

The suspension came after the student, Jonathan Starbuck, “made remarks questioning the intent of the shooter, stating that the shooter would be capable of more harm had he wanted to.” While the plaintiff alleged the conversation was factual in nature, a teacher reported the conversation to local police, and the student ultimately was given an out-of-school suspension.

In evaluating the claim, Judge Diana Gribbon Motz wrote for a three judge panel that students “do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,’” adding that Starbuck “only engaged in a factual conversation with his peers about a current event that is uniquely salient to the lives of American teenagers, a school shooting.”

The court determined that the school could not bar the suit under Monell v. Department of Social Services and allowed the claim to be reinstated.

Structured settlement protections

In April, a Norfolk Circuit Court judge sought to shield a party from financial jeopardy in “Court rejects offer to buy structured settlement payments” (In re: Approval for transfer of structured settlement proceeds by and between ShWawnda Lancaster, payee, and Peachtree Settlement Funding, LLC, transferee, VLW 022-8-021).

ShWawnda Lancaster suffered neurocognitive injuries due to lead poisoning as a child. The court approved a settlement entitling her to monthly payments for life, which she began selling for lump sums once she turned 21 years old.

Defendant Peachtree offered to buy Lancaster’s payment rights from 2055-2066 for 7% of their present value. She had already sold payments at least through 2035.

Judge Mary Jane Hall concluded that that the statutory best interests standard was vague, and decided that the analysis “should focus on how the proposed transfer will improve the economic security of the transferor.”

Here, knowing that Lancaster was cognitively impaired and had squandered most of her settlement payments by age 35, the judge found it “difficult to fathom many circumstances in which a person’s best interests are advanced by” the proposed sale.

Down on the farm

When faced with the question of what constitutes as a “farm type vehicle,” the Supreme Court of Virginia reversed the decision of a lower court finding that an all-terrain vehicle qualified. The ruling in “Homeowner’s coverage for ATV denied” (Erie Insurance Exchange v. Jones, VLW 022-6-023) resulted in the defendant’s homeowner’s insurance policy not applying to an accident that occurred while using the ATV.

Per language in the policy, the policy did not cover injury that occurred on “any land motor vehicle,” but had exceptions for some vehicles, including “farm type vehicle[s].”

In determining what qualifies as a “farm type vehicle,” Justice Stephen R. McCullough noted ATVs are similar to pickup trucks and motorcycles, which have uses on farms but are not “farm type” for their primary usage.

“A combine or a tractor can be used for other purposes, of course,” McCullough wrote. “Still, what identifies a combine or a tractor as a ‘class or kind’ and the qualities that distinguish them from other vehicles is that they are designed to be primarily used on a farm.”