Virginia Legal Trends and More

Monday, August 29, 2011

Court to review ruling on Dead Man's Statute

Court to review ruling on Dead Man’s Statute

Aug 26th, 2011 by Alan Cooper

The Supreme Court of Virginia will review a Roanoke trial judge’s ruling that a physician’s medical notes provided corroboration for the physician’s testimony that he advised a patient to see an endocrinologist because he suspected the patient had Cushing’s syndrome. The patient’s widow alleged that he died from complications of the syndrome because the physician failed to refer him to an endocrinologist. The widow contended that the records could not be considered to be corroborative because they are the type of self-serving statements intended to be excluded by the Dead Man’s Statute, Virginia Code § 8.01-397.

The case is Mary Sue Robinson v. Medhat Elmasry, Record No. 110966.

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

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Friday, August 26, 2011

Red light cameras spawn debate over enforcement

Are red-light runners caught on tape liable?

THURSDAY, AUGUST 25 2011
By Derrick Perkins

Collecting a $50 fine from scofflaws caught on camera running red lights at three city intersections will take more effort on the part of local law enforcement than originally thought.

Cameras at the intersections of Duke and Walker streets, South Patrick and Franklin, and South Patrick and Gibbon have captured images of motorists running red lights since July. After a month-long trial period, when offenders were issued warnings only, city officials began mailing $50 tickets to violators caught on camera.

Almost as soon as the trial period ended critics raised questions about the program’s practicality. In an editorial blasting the cameras, the Washington Times indicated violators could ignore the tickets — the fines were only enforceable if delivered by a law enforcement officer.

Police officials countered by claiming unpaid fines would be turned over to Redflex Traffic Systems, the Australia-based third-party vendor running the cameras, and sent to a collection agency. Failure to pay could eventually hurt a violator’s credit score, said Deputy Chief Eddie Reyes at the time.

Police Chief Earl Cook stated that “payment of fines is not a voluntary act,” in a response to the editorial. “If violators fail to respond to the violation notice, the matter will be turned over to a collection agency.”

But officials with the city attorney’s office now say the process is more complicated than just referring the claim to a collection agency.

Violators caught on camera will be notified of the outstanding fine by mail twice, at which point the outstanding fine will be referred to a Redflex subcontractor for follow up. If subsequent mailings are ignored, the fine will return to city officials and they will pursue legal action, said George McAndrews, of the city attorney’s office.

That means violators could find law enforcement officials serving them with a warrant in debt for the $50 fine — enforceable only if an officer serves the violator personally or drops it off at his or her residence — but they needn’t fear getting reported to a credit bureau.

Instead, violators can expect a date in Alexandria General Court. Once a judgment is rendered the claim is a legal debt. City officials could opt to put a lien against the violator’s bank account or garnish wages, McAndrews said.

And failing to show up for court dates, unlike ignoring the $50 fine, ultimately leads to an arrest warrant, he said.

Another option would be to bring in another collection agency after the civil suit, though that likely would depend on the volume of ignored fines, McAndrews said. He anticipates handling any scofflaws in-house.

The process is more complex — and convoluted — than police officials originally claimed. The department did not respond to repeated requests for an explanation before the Times’ deadline.

Critics argue the department, and by extension the city, will use the camera program as a revenue generator. It’s an assertion police and city officials have flatly denied since they announced the return of the cameras, which operated until the General Assembly nixed the program in 2005 only to reapprove it in 2007.

If anything, the length to which officials will have to go to collect the $50 fine from scofflaws proves safety, not income, is the driving force behind the program, McAndrews said.

If violators begin ignoring the fines en masse, the city is prepared to go the full measure, he said.

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As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

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Thursday, August 25, 2011

Earthquake coverage? Probably not in your policy

August 25th, 2011 · No Comments · Insurance

Homeowners are likely on their own to pay for damage from Tuesday’s earthquake.

A number of Louisa County residents – some whose homes suffered more than $10,000 worth of damage – learned this the hard way, The Free Lance-Star reports.

While most home and business insurance policies cover fire and water damage, coverage for earth movement damage is usually not included. Many insurance companies offer an earth-movement rider for existing insurance policies, but because earthquakes aren’t common on the East Coast, few people sign up.

Unlike homes, automobiles are usually covered for earthquake damage under the comprehensive portion of vehicle insurance.

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

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Charlottesville, Virginia

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Wednesday, August 24, 2011

Sheriff was victim of secretary's fraud

Sheriff's ex-secretary gets jail time for overtime crime

By: Chris Dumond
Published: August 23, 2011

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APPOMATTOX --

Sheriff Wilson Staples hopes the jailing of his former secretary for stealing more than $9,200 from his office will be a step toward restoring public trust.

Staples spoke Tuesday from the unlikely position of the victim, in Appomattox Circuit Court. He said the theft was humiliating and that he felt personally betrayed.

“I think that in our capacity, we’re often held to a higher standard,” Staples testified. “Those wrongdoings affect not only the person, but the law enforcement department and law enforcement as a whole.”

Sandra Covington, 58, was sentenced to six months in jail.

Covington pleaded guilty in February to 10 counts each of grand larceny and money laundering. She was initially indicted on 20 counts each — one count of grand larceny and one count of money laundering for every pay period in which she was accused of billing the sheriff’s office for unapproved overtime. Her indictments cover a period of more than three of the four years she worked for Staples.

Commonwealth’s Attorney Darrel Puckett said he couldn’t indict her for anything before June 2007 because her earlier bank records couldn’t be retrieved. She was charged with laundering money through multiple bank accounts.

When pressed by Covington’s lawyer to explain why a county payroll manager caught the fraud and not the sheriff’s office, Staples explained that he trusted Covington to stamp his name on overtime approvals. She was the first to do that, he said, and will now be the last. The sheriff said he now personally reviews the payroll accounting.

Staples and Puckett contend she never worked those hours, either. No one saw her working early in the morning, Puckett said, nor did they see her staying late into the evening. She even paid herself overtime out of jail funds when she never worked in the jail-side operations, Puckett said.

Covington apologized for the embarrassment she caused herself, her family and the sheriff’s office, but denied stealing. As of Tuesday morning, she had completely reimbursed the sheriff’s office.

“I did not go through the proper procedure for time I did work,” she said.

Her lawyer, Marshall Ellett, cited cases in Richmond and Lynchburg where public employees convicted of embezzlement were not sentenced to active jail time. Three of Covington’s friends, including her employer in Farmville, testified she was trustworthy and would not get into trouble again.

Puckett recommended Covington be imprisoned for two years. He bristled at the comparison of Appomattox to other jurisdictions and the suggestion she should see no jail time. Part of the public’s lack of trust in the judicial system, he said, is that white-collar criminals too often don’t go to jail.

Judge Thomas Warren, a retired judge from Nottoway County, credited Covington for reaching the age of 58 without so much as a speeding ticket, but said it didn’t mean very much in the context of her charges. Most people who embezzle, Warren noted, gain a position of trust through their previously good reputations.

“You’ll go to your grave as a felon,” he told her.

The judge denied requests for work release and house arrest. He also denied Covington’s request not to serve her time at the Appomattox jail. Her lawyer said there was a security risk, but Warren left it up to Staples to decide whether she could be kept safely in his jail.

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

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Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Tuesday, August 23, 2011

VA Supreme Court to hear YMCA case of fitness clubs vs. Albemarle

By Brian Wheeler

Charlottesville Tomorrow
Monday, August 22, 2011

The Virginia Supreme Court has decided to hear arguments in a lawsuit brought by a coalition of fitness clubs challenging Albemarle County’s investment in the Piedmont Family YMCA facility in McIntire Park.

While the YMCA is not party to the lawsuit, its leaders said Monday that the court case has just caused them to lose their general contractor and a very competitive bid. Groundbreaking on the almost $14 million 77,000-square-foot aquatics and fitness center had been scheduled to begin in September or October.

“Not in our wildest dreams did we think the Supreme Court would accept this case,” said Denny Blank, CEO of the Piedmont Family YMCA. “[ACAC owner] Phil Wendell told us all he wanted was his day in local court. He said he would step aside if the courts didn’t rule in his favor, but he is not happy with that and has appealed it.”

Blank says the legal fight has put the YMCA project in jeopardy.

“The contractor has said their bid price is now null and void,” Blank said. “You can’t expect a contractor to hold their bid price indefinitely and the banks are saying they will only lend the money when the lawsuits are resolved.”

The Charlottesville Area Fitness Club Owners’ Association, formed specifically for the legal fight which began in 2010, is composed of ACAC Fitness & Wellness Centers and Gold’s Gym.

The suit maintains that Albemarle and the city of Charlottesville violated the Virginia Public Procurement Act by not giving the clubs the option of bidding on the aquatic services that will be offered by the YMCA.

“The Supreme Court saw fit to hear our arguments, and they saw some merit in the arguments that we were making against the county that they did not follow the Virginia Public Procurement Act,” said Greg Wells, CEO of ACAC. “It just means they will hear the case, it doesn’t mean that it will be decided in our favor or the county’s favor.”

Total Performance Sports and Fitness was previously involved in the lawsuit. Its owner, Todd Proctor, said in an interview Monday that he withdrew from the lawsuit shortly after Charlottesville Circuit Court Judge Cheryl Higgins dismissed the case against Charlottesville in April.

The city has designated $1.25 million for construction of the pool and signed a 40-year lease with the YMCA for $1 a year for the building site. Albemarle is expected to contribute $2.03 million to the project.

Greg Kamptner, deputy attorney for Albemarle County, said he expected the case to be scheduled for oral arguments in the spring. An appeal of the case against the city of Charlottesville could still be heard separately.

“The case presents some interesting issues because they raised a Dillon Rule challenge to the board’s actions, and those cases are always interesting,” Kamptner said.

Under the Dillon Rule, local government only has the power given to it by the General Assembly. He said the case against Albemarle was narrowly focused on whether the donation could be tied to a specific use agreement.

“The fitness clubs argue that the board of supervisors didn’t have the authority to make the charitable contribution to the YMCA subject to a written agreement,” Kamptner said. “The court has seemed to have an interest in Dillon Rule cases in recent years and this case does present a unique challenge to the board’s authority.”

YMCA officials say the cost to build the fitness center will likely increase and that other non-profits funded by local government could face consequences if the fitness clubs prevail.

“It came in under $14 million, which means we could do a lot more for a lot less if we act now,” Blank said. “It may be back to $16 million or more if we come back to this a year from now.”

“It’s time for the public to get outraged that one man has set about blocking this project for personal greed,” Blank said. “We have been trying to take the high ground and not mention his name, but now it’s really hurting us badly because we have lost our contractor and we have lost this price.”

“I don’t think the comment justifies any reaction,” responded the ACAC’s Wells. “I think it’s just a very inappropriate comment for him to make.”

Wells added that his organization supports what the YMCA does and that his own children have participated in YMCA youth basketball and soccer. He said ACAC was concerned about the use of taxpayer dollars to support a project that was not open to a competitive bid.

“The crux of the whole issue is that we were unjustly and unfairly denied the opportunity to participate,” Wells said. “Other solutions may rear their head that would actually be better than the currently proposed YMCA, and you save a park.”

Blank maintains the YMCA will not negatively impact other activities in the city’s McIntire Park and that the facility’s clientele is different from the for-profit fitness clubs.

“Our customers are lower to middle class, people who cannot afford to get these services elsewhere,” Blank said. “We are not a chain like ACAC or a franchise like Gold’s Gym — we are owned and funded by the community with a volunteer board and volunteers on staff.”

Posted at 06:42 PM on August 22, 2011 by cvilletomorrow in Albemarle County , Charlottesville , Daily Progress Partnership , Parks & Recreation | Permalink

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

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Charlottesville, Virginia

434-973-7474

Monday, August 22, 2011

Wife wants annulment, husband gets divorce

Wife Wants Annulment, Husband Gets Divorce

By Deborah Elkins
Published: August 22, 2011

Tags: Domestic Relations, Henrico County Circuit Court, Judge Catherine Hammond, Virginia Circuit Courts

An American citizen wife who met her Indian national husband through the Internet and married him in Henrico and then again five months later in an “elaborate religious wedding” in India is not entitled to an annulment on the ground that the marriage was not consummated; a Henrico Circuit Court says failure to consummate the marriage by sexual intercourse, by itself, is not grounds for annulment.

The marriage allowed husband to adjust his immigration status and he applied for permanent residence. He received his “Employment Authorization Card” and a job offer to work for Symantec in California for $70,000 a year. When wife later withdrew her immigration sponsorship, Symantec filed a petition seeking permission for husband to work in the U.S., which was granted June 11, 2010.

Wife is a resident of Henrico. Husband has never lived in Virginia. He has lived in California since 2008. After the ceremonies in India, on March 13, 2010, wife returned to the U.S. and joined husband in California. She testified he treated her very badly, denying her support, demanding that she limit her conversation and refusing to have sexual intercourse. According to wife, husband said they would only have children by artificial insemination, which was a reversal of his promises before marriage. According to husband, he wanted to marry wife based on shared values. He testified he tried numerous times to become intimate but wife refused. After only seven days together, wife left California on March 20, 2010 and the parties have been separated since then. On March 30, 2010, wife filed her complaint. Husband counterclaimed for divorce.

To win an annulment, wife must prove a false representation of a material fact, made intentionally and knowingly, with intent to mislead, on which she relied and by which she was damaged.

The evidence is in conflict. Wife asserts she was deceived by husband who wanted to obtain permanent resident status through marriage. However, this was not supported by other credible evidence and some of wife’s testimony was not credible. There was no reason for husband to lease a new apartment and seek wife’s approval of it, if his intent was to marry only for immigration reasons. Also, husband’s family gave wife expensive presents, and husband’s family spent nearly $150,000 on the wedding. This is inconsistent with fraud. As to husband’s immigration status, it was fairly easy for husband to obtain his employer’s sponsorship.

On the whole, the evidence did not establish any fraudulent purpose in the marriage. It appears the parties were not compatible and the marriage was formed without adequate preparation.

The divorce will be granted on the one-year separate ground.

Chhibber v. Nangia (Hammond) No. CL 10-943, June 30, 2011; Henrico Cir.Ct.; Harris Leiner, Michael HuYoung for the parties. VLW 011-8-147, 2 pp.

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

Thursday, August 18, 2011

Police Search Lacked ‘Reasonable Suspicion’

By Deborah Elkins
Published: August 17, 2011

Tags: 4th U.S. Circuit Court of Appeals, Judge Andre M. Davis, Search & Seizure

Police officers responding to an anonymous tip about “shots fired” in a high-crime neighborhood, who saw four young men several blocks from the reported gunfire, did not have reasonable, particularized suspicion to conduct a pat-down of one of the young men who appeared nervous and refused consent to search; the 4th Circuit reverses defendant’s conviction on marijuana and firearm charges.

In this appeal we are once again called on to determine whether evidence seized during a street encounter between law enforcement and citizens was properly admitted into evidence during a criminal prosecution.

At the suppression hearing, the government presented few objective bases for particularized suspicion of defendant. It was only able to point to the following: 1) defendant and his three friends were walking four blocks from the location of the shots reported by the tipster, the only people the responding officers encountered in the vicinity; and 2) several observations made by the officer of defendant’s allegedly “nervous behavior.”

The district court denied defendant’s suppression motion, holding that the search was lawful. It found that reasonable suspicion existed on the basis of six factors: 1) “a vague report of shots fired”; 2) the four men were encountered roughly two blocks from the location of the reported shooting incident and were the only people in the area; 3) this was a “high-drug, high-crime area”; 4) defendant was “acting nervously, looked down and refused to make eye contact and stood off from the group”; 5) defendant “continued to act strangely by making a series of two furtive movements”; and 6) the officer’s actions were informed by a “year’s worth of practical experience serving as a law enforcement officer.” After denial of the suppression motion, defendant entered a conditional guilty plea.

On the facts of this case, there is precious little to sustain the district court’s holding that the officer had reasonable, particularized suspicion of defendant such that a nonconsensual frisk was lawful under the Fourth Amendment.

Allowing officers to stop and frisk iiianyiii individuals in the neighborhood after even the most generic of anonymous tips would be tantamount to permitting a regime of general searches of virtually any individual residing in or found in high-crime neighborhoods, where “complaints” of “random gunfire” in the night are all too usual.

The government suggests that under the collective-knowledge doctrine (also called the “fellow officer” rule) another officers observation of a bulge in defendant’s jacket pocket should be imputed to the officer who conducted the pat-down, though, as the government concedes, the information was not shared. Because this novel application of the doctrine would stretch it well beyond its purpose, we decline to do so.

Though we have studied our sister circuits’ cases adopting an aggregation rule, we can find no convincing defense of it. Most courts to have adopted the rule appear to have done so simply on the grounds that officers working closely together are “a team.” We must frame the question in terms of deterrence, and for the purposes of deterrence we look to each individual officer’s decision-making process as she considers executing a search or effecting a seizure. Further, if the “team” or “single organism” theory should apply when the information at issue is incriminating, should it not apply when the information is exculpatory? Yet we recently held in iiiU.S. v. Holmesiii that the collective-knowledge doctrine does not impute uncommunicated exculpatory knowledge to fellow officers in similar circumstances.

Because we believe the aggregation rule runs contrary to the Supreme Court’s Fourth Amendment jurisprudence, would seriously erode the efficacy of the exclusionary rule’s deterrent purposes, and serves none of the legitimate ends of law enforcement, we reject it.

We hold the officer who conducted the pat-down lacked the reasonable suspicion needed to conduct a lawful nonconsensual frisk. The district court erred when it failed to suppress the fruits of the unlawful search.
Vacated, reversed and remanded.

U.S. v. Massenburg (Davis) No. 10-4209, Aug. 15, 2011; USDC at Richmond, Va. (Williams) Caroline s. Platt, FPD, for appellant; Michael A. Jagels, AUSA, for appellee. VLW 011-2-139, 27 pp.

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

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Charlottesville, Virginia

434-973-7474

Wednesday, August 17, 2011

No 'retaliation' claim for job applicant

No ‘retaliation’ claim for job applicant

August 16th, 2011 · No Comments · Uncategorized

A woman who alleges a job offer was withdrawn after a prospective employer learned she sued her last employer for overtime pay cannot sue the hiring company under the Fair Labor Standard Act’s anti-retaliation provision, says the 4th U.S. Circuit Court of Appeals.

Natalie Dellinger thought she had a new job. She alleged Science Applications International Corporation offered her a position, contingent on her passing a drug test, completing certain forms, and verifying and transferring her security clearance. Dellinger accepted the offer and began taking steps to satisfy those contingencies.

However, shortly before applying with SAI, Dellinger had sued her previous employer, CACI Inc., under the FLSA’s minimum wage and overtime pay provisions. She alleged SAI learned about the suit when Dellinger listed it on her security clearance form as a pending noncriminal action to which she was a party. She claimed that after she submitted the form to SAI, it withdrew the job offer.

When she sued SAI under the federal labor statute’s anti-retaliation provisions, 29 U.S.C. § 215(a)(3), Senior U.S. District Judge James C. Cacheris dismissed the suit. He agreed with SAI that the statute’s protections do not extend to job applicants.

Two judges of the 4th Circuit’s three-judge panel agreed in Dellinger v. Science Applications Int’l Corp. Judge Paul V. Niemeyer said an applicant who never began or performed any work could not, by the language of the FLSA, be an “employee.” He said the panel had been unable to find any case that extends FLSA protections to applicants or prospective employees.

Judge Robert B. King dissented. He said SAI had “jettisoned plaintiff’s paperwork in retaliation for her having exercised her lawful rights” and the majority gave “its thumbs-up to the company’s conduct,” paving the way for other employers to adopt similar practices.

The Dellinger decision is the first time any circuit court has considered this issue, said Dellinger’s lawyer, Zachary Kitts, of Fairfax. Kitts said that although the defendant in this case learned about Dellinger’s earlier FLSA suit through her security clearance form, prospective employers nowadays don’t even have to ask, they can do an online name search to see if an applicant has been involved in litigation.

SAI’s lawyer, Robert B. Sparks Jr., of McLean, said there are few reported decisions because the issue of protection for a job applicant “seldom comes up.” The vast majority of FLSA cases involve current or former employees.

Kitts said he plans to petition for rehearing en banc.

By Deborah Elkins

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

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Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474

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Tuesday, August 16, 2011

Norfolk judge awards rights to Titanic artifacts

Posted to: News Norfolk

The luxury liner Titanic leaves Southampton, England, on her maiden voyage April 10, 1912. The ship sank after it hit an iceberg on April 14 with the loss of more than 1,500 lives. In September 1998, the first tourists went to the floor of the North Atlantic to view the Titanic wreckage. (AP photo | National Maritime Museum)

By Deborah Elkins
Published: August 2, 2011

Tags: Contract, Fauquier County Circuit Court, Judge Jeffrey W. Parker, Virginia Circuit Courts

A homeowner can sue in 2008 for damages from water pipes that burst in 2007 after defendant contractor completed a home renovation project in 2003; a Fauquier County Circuit Court declines to reconsider its earlier ruling granting partial summary judgment to defendant contractor and allowing the homeowner to sue for an implied warranty.

The contractor argued initially at summary judgment, and the court ultimately agreed, that the problem with the water pipes became visible after the one-year time span express warranty in the written contract.

The contractor relied heavily on Richmond Redevelopment & Housing Authority v. Laburnum Constr. Corp., 195 Va. 827 (1954), for support. Defendant went further, however, and alleged this case compels the court to also dismiss the implied warranty claim. The trial court in Richmond Redevelopment applied both a five-year and one year statute of limitations to the implied warranty claim and a one-year limitation to the express warranty claim.

The Richmond Redevelopment case dismissed the implied warranty claim stating the limitation must be read as a whole and that when it was so read, it appeared the first sentence meant exactly what it said, that the defendant would not be liable for “faulty materials or workmanship” for a period beyond one year. However, a closer reading of this case does not compel a similar conclusion in the case at bar.

While the Supreme Court agreed with the logic of the trial court in applying the language of limitation of the express warranty to the implied warranty, agreement on this point was not necessary in order to sustain the trial court’s ruling.

It is clear from reading Richmond Redevelopment that the court relied on the five-year limitation for its ruling. However, what is most striking about the case is how the legal framework of Virginia has changed since 1954. This case concerns common law pleadings and a cause of action that no longer exists. The statutes of limitation applied have changed. The express warranties in the two cases are at variance.

This court cannot at the summary judgment stage apply what effectively was dicta in a 56- year-old case dismissing a cause of action no longer used (assumpsit in trespass on the case), as authority to dismiss this proceeding. Ultimately, it will be plaintiff’s burden to establish the breach and the proper application of the implied warranty to the facts in this case.

The court also needs to address whether to apply the three-year statute of limitations for unwritten contracts, or the five-year statute for written contracts. It is clear for the purposes of this motion that the alleged faulty workmanship could have occurred no later than the last date of work for the contract’s completion, which was July 28, 2003. As the suit was filed June 30, 2008, at a minimum, four years, 11 months and three days passed between a possible breach and the institution of the suit.

The action that has been filed is upon the written contract. The warranty as a theory of recovery is not a part of the contract, but the action is still ex contractu. Therefore, the five-year statute of limitations in Va. Code § 8.01-26(2) applies.

Motion to reconsider denied.

Zarabi v. MSH Construction Inc. (Parker) No. CL 08-457, Jan. 11, 2011; Fauquier County Cir.Ct.; Ann Callaway, James C. McCaa III for the parties. VLW 011-8-145, 3 pp.

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

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Charlottesville, Virginia

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Wednesday, August 03, 2011

Felony bigamy conviction upheld

August 2nd, 2011 · No Comments · Court of Appeals, Domestic Relations

Come listen to the tale of Tammy Taylor and Curtis Cole. Cole married Taylor in 1995. Somewhere along the way, the romance must have faded.

In 2005, Cole went through a marriage ceremony with Donna Vincent without first divorcing Taylor. Cole claimed on his marriage license application that he had never been married.

Cole claimed it was “legally impossible” for him to be convicted of bigamy under Va. Code § 18.2-362. He reasoned that because his marriage to Vincent was void under the statute, he did not “marry another person” as prohibited by the statutory language.

Cole missed the point, according to Judge D. Arthur Kelsey’s published opinion in Cole v. Commonwealth. Tracing Virginia’s law back to the bigamy statute of King James I, Kelsey said that statute’s phrase “do at any time marry” has historically been understood to mean the a “second marriage is merely void, and yet it maketh the offender a felon.”

The fact that the later marriage was void did not preclude criminal prosecution for bigamy, Kelsey said. He also rejected Cole’s constitutional arguments, including the claim that his two-year sentence constituted cruel and unusual punishment.

By Deborah Elkins

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

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Tuesday, August 02, 2011

Manassas resident shows document issued from 'Kingdom of Heaven' as driver's license

"Heavenly" driver's license leads police to bomb materials.

By Kaitlin Mayhew -- kmayhew@nvdaily.com

FRONT ROYAL -- A Manassas man was arrested in Front Royal on Sunday on two charges after showing police a driver's license issued by the "Kingdom of Heaven."

Randy R. Linamen, of 8724 Round Lane, Manassas, was stopped by Front Royal police during a DUI checkpoint on Commerce Avenue.

Linamen, who was operating a van when he was stopped, was asked for his driver's license by town police detective Jason Winner. He then produced a document titled "Drivers License" issued from the "Kingdom of Heaven."

When Winner questioned Linamen about the license, he stated that Winner was not upholding his oath and was committing treason, according to a Police Department news release.

While Winner was conversing with Linamen, another detective observed "what appeared to be two speed loaders in the center console of the van," the release states.

When Winner asked Linamen to exit his vehicle, Linamen attempted to drive away from the checkpoint, police said.

He was then physically removed from his vehicle by the officers. At that point, according to the release, a loaded Dan Wesson .357 caliber handgun was observed in the driver's door pocket of the van.

Linamen was charged with possession of a firearm after being convicted of a felony, and operating a motor vehicle after being declared a habitual offender. He was transported to the Warren County Jail, the release states.

A sweep of the vehicle produced what appeared to be three pipe bombs under the front driver seat of the van.

The vehicle was cleared and the items were deemed to be "safe and contained no explosive material," the release says.

Linamen was held without bond, and is scheduled to appear in Warren County General District Court at 10 a.m. Aug. 16.

As always, please consult with a Virginia attorney about legal issues raised in this article. Every situation is unique.

Tucker Griffin Barnes - Where deep insight equals powerful advantage.

Tucker Griffin Barnes P.C.

Charlottesville, Virginia

434-973-7474