The Virginia Verdict Review

Comprehensive and Informative Commentary on State and Federal Legal Matters

Category Archives: General Commentary

Let the People Tweet: NLRB Condemns Illegal Social Media Policy

For all those out there suffering under the abject tyranny of their employer’s oppressive social media policy, hope is on the horizon.  According to a report published last month by the National Labor Relations Board (NLRB), the social media policies enforced by a number of Virginia employers may be overly broad, and therefore unenforceable.

The Board’s report, now the third of its kind, examines seven cases in which acting General Counsel Lafe Solomon found fault in the social media policy enforced by an employer on its employees.  In six of cases, Solomon concluded that “at least some of the provisions in the employer’s policies and rules are overbroad and thus unlawful under the National Labor Relations Act.”

To help differentiate between lawful and unlawful policies, the report cited the following provisions as examples of overly broad and, therefore, unlawful policies:

TREAT EVERYONE WITH RESPECT

Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if they are unintentional. We expect you to abide by the same standards of behavior both in the workplace and in your social media communications.

OTHER [EMPLOYER] POLICIES THAT APPLY

Think carefully about ‘friending’ co-workers . . . on external social media sites. Communications with coworkers on such sites that would be inappropriate in the workplace are also inappropriate online, and what you say in your social media channels could become a concern in the workplace. 

In each of these examples, it was determined that the wording overstepped the boundaries of labor laws by failing to properly define the parameters of the policy and by infringing on the employee’s ability to communicate with co-workers via social media.

A full version of the Board’s report, which includes a full-length example of a lawful social media policy, can be found in the links on the NLRB’s site, here.  For more information on contract law, or to discuss the legality of your employer’s social media policy, feel free to contact Westlake Legal Group.  You can find us on Twitter and Facebook via the links at the bottom of this blog.

Virginia Supreme Court Opinion Creates Unintended Incentive to Drive Drunk

Given the most recent decision of the Virginia Supreme Court with respect to passive “operation” of a vehicle and the application ofVa. Code § 18.2-266, I wonder how many more citizens of the Commonwealth have to die before the General Assembly and the Supreme Court stop providing unintended incentives for drunk drivers to stay on the road.

In January of last year, in Nelson v. Commonwealth, 281 Va. 212 (2011), the Virginia Supreme Court affirmed the conviction of a man who, after being found asleep behind the wheel of his car with the radio running, was charged with DUI.  In support of this conviction, the Court reasoned that, by placing the car in the “on” or ‘accessory” position so as to activate the radio but not the ignition, the defendant was, in effect, operating the vehicle and was therefore in violation of Code 182.-266.  Alarmed by the implications of this ruling, I have been anxiously anticipating some form of retort or rebuttal from the legal community for the last year.  On March 2nd, that response finally arrived.  Unfortunately, it was not exactly the response I was looking for.  Instead of objecting to or overturning last year’s ruling, the Supreme Court of Virginia further solidified their opinion by affirming the DUI conviction of a man found sleeping behind the wheel. Enriquez v. Commonwealth, 2012Va. Lexis 49,March 2, 2012.  In doing so, I believe the Supreme Court has inadvertently signed the death warrant of untold drivers and passengers onVirginia highways.

In Enriquez,  the Defendant was originally investigated by the police after a parking meter attendant tried to ticket his car for being illegally parked in a bus zone and discovered him asleep inside.  Unable to rouse the man by knocking on the window, the attendant called the police and the situation progressed from there.  Ultimately, he was charged with (and later convicted of) DUI because he had the keys in the ignition so he could listen to the radio while his engine was off and car in park.

While some may not question the Defendant’s eventual conviction, my issues lies with the logic applied by the Supreme Court in reaching its decision.  Following previous cases, the Supreme Court engaged in an analysis  that focussed on whether a key was in a particular position in the ignition.  Va. Code § 18.2-266 prohibits a person under the influence from driving or operating a motor vehicle on the highways.  In Enriquez, the Supreme Court spends considerable effort stretching the definition of “operate” to now include merely having the keys in the ignition, even if the engine is off and the car is in park.  In its efforts in expanding the logical definition of “operate”, the Supreme Court has created a perverse incentive for drivers that will result in more deaths on theVirginia highways.

Because the Supreme Court’s reasoning criminalizes the simple act of turning on the heat on a cold night, or of listening to the radio, while  being drunk in a car, this opinion creates an incentive for drunk drivers, or those who feel the beginnings of impairment, to stay on the road.  There is no benefit to these drivers in stopping and resting and ensuring they are going to be safe.  As such a driver faces a criminal penalty if he stops and is caught, he has an incentive to keep going and to try to reach the safety of home.  Frankly, that is the last thing I want:  implicit encouragement to drunk drivers to stay on the road.  Based on the Court’s extension of previous cases, I fully expect it to find that the mere possession of car keys, when one has a push button ignition in his car, to be construed as “operating” the vehicle.  Again, more incentive not to stop, more incentive to stay on the road, more likelihood of killing someone.

I understand that drunk driving is a hot political button.  Every officer in the state makes a DUI inquiry during every traffic stop.  However, in non-alcohol related cases, the General Assembly has already provided an incentive for tired drivers to get off the road.   Under Virginia Code 46.2-830.1, the act of parking one’s car on the shoulder in order to rest is encouraged by removing any serious penalty for drivers who do so because they are feeling drowsy or tired.   Conviction for sleeping on the side of the road is a no demerit point offense.  The General Assembly has recognized that it wants tired drivers to get off the road.  It shouldn’t matter if he is tired because he has been up for twenty-four hours or because he has had too much to drink.  That driver needs to be off the road.  Instead, if the driver who has too much to drink does what society wants and pulls over to sleep, he faces a greater chance of being discovered and punished as a criminal, especially if one were to pull over in winter and need heat to stay alive while he sleeps.   Faced with that outcome, many a drunk driver will take the chance of getting home.  And, more people will be in accidents and more people will die.  It is the law of unintended consequences.

Now that the Supreme Court has spoken in Enriquez, our only hope is that the General Assembly overturns the Supreme Court’s decision through legislation.  I am not holding my breath.

How to File a Complaint with the Sheriff’s Office

The purpose of this post is to inform Loudoun County residents  of their ability to file a civilian complaint against any deputy or employee of the Loudoun County Sheriff’s Office, should they find reason to do so.  As a disclaimer, I have no intention of being malicious or confrontational towards the Sheriff’s department, nor do I mean to suggest that they have done anything as of late to warrant a complaint.  I was simply motivated by watching the following YouTube video, in which a number of citizens are threatened, harassed, and even arrested solely because they asked how to file a complaint with their local police department.

Fortunately,  Loudoun County residents should never have to worry about being subjected to such extreme treatment for filing a complaint, as the  Sheriff’s Office provides an online form that allows complaints to be sent in at any time.  For a link to that site, click here.

If you are a resident of any other county in Virginia, or if you would like assistance in filling out a complaint, please feel free to leave a message at the bottom of this post and we will do our best to provide you with further information.

10 Rules for Dealing with the Police

As a criminal defense attorney, I routinely encounter people who could have avoided legal trouble if they had simply known how to exercise their rights when talking to the police.  Every time I see this,  I lament the fact that so few Americans have a real, working knowledge of their rights.  It seems to me that whether the topic is traffic stops or full-scale police searches, most people have little or  no knowledge of their rights and how to exercise them in daily life.

In an effort to help people become more informed about their rights, I’d like to share the following video, “10 Rules for Dealing with the Police.”  I originally came across this video series while perusing the internet, but,after watching it, I am convinced that it is a phenomenal resource for all citizens.  Personally,  I think all Virginians (and Americans, for that matter) should watch this video and take the time to properly  educate themselves about their rights and how to use them.

The video, provided by flexyourrights.org, can be viewed in its entirety by following this link to the FlexYourRights YouTube channel.

VA Senator Introduces Bill to Abolish Court of Appeals

According to a report recently published by Virginia Lawyers Weekly,  Virginia Senator Creigh Deeds (D-Bath Co.) has introduced a bill that calls for the abolition of the Virginia Court of Appeals.

The bill, Senate Bill 630, would do away with the Commonwealth’s intermediate appeals court starting October 1, 2012, thereby restoring the Virginia Supreme Court’s authority to hear all criminal, traffic, domestic and administrative appeals.  Deeds’ proposal is in direct opposition to House Joint Resolution 111, a piece of legislation introduced by Del. Sal Iaquinto (R-Virginia Beach) calling for an expansion of the Court of Appeals’ authority.

Though some see this piece of legislation as an attack on the court, Deeds has been adamant that his actions were not prompted by any ill-will toward the Court, but rather by a desire to promote fiscal responsibility.  According to Deeds, the abolition of the Court of Appeals would save the Commonwealth 8 million dollars annually, a significant sum for a state in the midst of wide-spread budget cuts.

The bill has been referred to the Senate Courts committee.

Christmas Displays Spark First Amendment Fight in Loudoun County

For many Americans, the Christmas season is synonymous with a big, jolly man dressed in red, a pile of presents stuffed under a sparkling tree, and fun-filled times with loved ones and friends.  In Loudoun County, however, an entirely different and far less holly-jolly set of practices are beginning to encroach on the good-spirited traditions of the season.  Rather than making gingerbread houses and planning caroling with neighbors, many residents of the county have spent considerable time over the last few years arguing over Christmas displays.  In fact, the debate has grown so heated in the past that it has not only gained significant press coverage, but it prompted local officials to convene a number of special meetings and town discussions.

In each of these town-hall meetings, the first of which was in 2009, the issue at hand was whether residents should be allowed to erect Christmas-themed displays on the lawn of the Loudoun County Courthouse.  On the one hand, proponents of the displays argue that they are simply expressing their holiday cheer on public property and that, as a result, their right to do so is protected as a matter of free speech.  Others are quick to point out that the groups that erect the displays–most notably the Knights of Columbus–have tradition on their side, as they have been placing Christmas displays there for the past 50 years.

Those that oppose the notion of Christmas-themed displays, however, do not buy in to this logic.  For local atheist groups and other non-Christian residents, it is difficult to see the consistent display of Christmas symbols on government property as anything other than state sponsorship of religion.  It is this logic, in fact, that drove local residents to complain to the Facilities and Grounds Committee of the Loudoun County Courthouse in the first place.  In the two years since, the County’s stance on the issue has transformed numerous times.  The current policy states that, while erecting displays on the Courthouse lawn is allowed, permits to do so will only be granted to the first ten applicants each year.  As this year’s displays demonstrate, what results is a cacophony of unique displays that are representative of a variety of religious views, including atheism.

Presumably, since a variety of viewpoints are expressed under the current system, it would be safe to assume that a reasonable compromise has been reached.  Unfortunately, one of this year’s displays (a crucified skeleton in a Santa suit that was later torn down) seems to have struck a chord; the issue is again being debated throughout the county.  Given all of this, I thought it might be helpful to take a quick look at this issue from a legal prospective.  Regardless of whether you are religious, having a better understanding of the logical rationale surrounding the Board of Supervisors’ decisions might help to shed some much needed light on this debate.

All religious issues aside, the debate at hand is really one over the proper interpretation of the First Amendment to the U.S. Constitution, which states in part that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.”  While proponents of the displays cite the Amendment’s Free Speech Clause as justification for placing the signs up each year, opposition groups look for similar support in the Amendment’s Freedom of Religion Clause.  Needless to say, the conflict between these two clauses is not new, nor is it one that has been ignored by the courts.  However, in sorting through Supreme Court decisions on the issue, I have found a relatively articulate passage that I think speaks to the heart of the current debate.  An amalgamation of numerous decisions, it reads as follows:

“The First Amendment does not guarantee access to property simply because it is owned or controlled by the government. The crucial question is whether the manner of expression is basically compatible with the normal activities of a particular place at a particular time.  Thus, by the nature of the use to which the property is put or by tradition, some sites are simply not as open for expression as streets and parks are.  But if government does open non-traditional forums for expressive activities, it many not discriminate on the basis of content or viewpoint in according access.” (Emphasis added)

Additionally, when ruling as to whether religious groups should be granted access to public school facilities, the Supreme Court found that “although government may not promote religion through its educational facilities, it may not bar student religious groups from meeting on public school property if it makes these facilities available to nonreligious student groups.”

Put into context, the Supreme Court seems to be saying that while all citizens of Loudoun do enjoy concurrent rights to free speech and freedom of religion, these rights are not immune from limitation.  Instead, one’s ability to exercise these rights can be a function of location and all locations are not created equal.  In instances where public property is being used as the platform for an expressive act (as is the case in Loudoun), the Court seems to be saying, first and foremost, that all government-run properties are not created equal and that the government is not obligated to make all such facilities available to the public. In other words, while the government may not be able to regulate expressive acts in open forums such as town streets and parks, it can regulate such acts in less-open areas, such as state-run buildings and governmental properties.  However, should the decision be made to open these properties to expressive activities, the Court is very clear that it must be done in a manner that does not “discriminate on the basis of content or viewpoint.”  Likewise, the opportunity to use the facility or property cannot be restricted based on religious preference.  Rather, if a property is made available to a religious group, it must be made available in an equal and non-exclusive manner to any interested non-religious groups, and vice versa.

Given this information, I have to say that I find the Loudoun County Board of Supervisors’ current system of allocating space for holiday themes rather well-thought-out and fair.  By granting permits for displays to the first ten groups to apply, the County is guaranteeing equivalent access to the space regardless of religion or content.  In doing so, the county is promoting the notions of fairness and equality for all, both of which are fitting sentiments to espouse during the Christmas season.  Unfortunately, it seems that many of the citizens of Loudoun have lost sight of the importance of these values, not to mention the true meaning of the holiday.  I have probably said this fewer times than Santa has reindeer, but I have to admit it: I think the government got it right on this one…

Political Parties Stir Up Controversy Over Supreme Court’s Review

Having given the appropriate amount of patriotic thanks over the holiday, Congressional leaders are back at it again this week, this time arguing over which members of the Supreme Court should be allowed to hear the up-coming health care reform case.  Despite having lauded the Court’s decision to settle the health care debate once and for all just last month, Republicans and Democrats alike are attempting to discredit Supreme Court judges who they feel might be detrimental to their cause.

This new squabble was kicked off last week when House Judiciary Committee Chairman Lamar Smith (R-Tex.) called for an investigation into the role that Justice Elena Kagan played as Obama’s solicitor general prior to joining the Supreme Court.  While Kagan denies that she was involved in drafting or preparing the current health care reform legislation, Congressional Republicans contend that emails recently released to them as matters of public record paint a different picture.  Though none of these emails conclusively show that Kagan was directly involved in the development of the bill, at least one email, sent from then-Deputy Solicitor General Neal Katyal, states that she made efforts to ensure that her office was involved in the strategic process.  Interestingly enough, had she not been appointed to the Court, Kagan would be defending the health-care law at the Supreme Court rather than deciding whether it is constitutional.

Less than an hour after Congressman Smith requested further information on Kagan’s background, Congressional Democrats launched an attack at Justice Clarence Thomas.  In this case, Rep. Earl Blumenauer (D-Ore.) and Rep. Louise Slaughter (D.-NY) sent a letter to the House Judiciary Committee requesting that the committee hold hearings on alleged ethical violations surrounding Thoma’s past financial history.  By showing that Justice Thomas left his wife’s income out of his required financial disclosure reports for a number of years–a mistake he has already admitted to and made efforts to correct–the Democrats hope to show that he lacks the moral integrity required of a Supreme Court judge and that he should therefore not be involved in the up-coming heath care hearing.

It remains to be seen how (if at all) this political-motivated name calling will effect the Supreme Courts actions when reviewing the health care legislation.  However, given that Supreme Court justices cannot be compelled to step down from a case, but rather must make the decision on their own, it seems more likely than not that all of this bantering will ultimately result in a whole lot of nothing.  At the end of the day, this most-recent conflict is little more more than an attempt by legislators to exert whatever influence they can on the judicial process.  Based on Congress’ track record as of late, I wouldn’t advise either party to hold their breath.

More Than Just a Mandate: taking a closer look at the health care debate

As someone who regularly peruses the legal blogosphere, tirelessly searching for tidbits of real reporting among a deluge of repetitive editorializing, I was pleased to find that a number of intelligent articles have been written regarding yesterday’s announcement that the Supreme Court will hear challenges to the Obama administration’s health care plan.  What many of these articles fail to do, however, is to take an in-depth look that this potentially historic announcement from a legal prospective.  So, at the risk of editorializing, let’s take a few minutes to peer a bit deeper into the legal reasoning behind, and potential consequences of, the Supreme Court’s decision to hear arguments in this case.

To begin at the beginning, here is a brief timeline of the events that have lead to yesterday’s announcement:

December 24, 2009:  The Senate (with a vote of 60-39) votes to pass the Patient Protection and Affordable Care Act.

March 21, 2010: The House (voting 219-212) votes to pass the act, thereby sending it on to President Obama to sign into law.  This vote marked the first time in modern history that a piece of legislation passed through both houses of Congress without a single vote from Republican law makers.

March 23, 2010:  President Obama signs the Patient Protection and Affordable Care Act into law.  The new law is also known as PPACA, or “Obamacare.”

September 2010-January 2011:  A majority of U.S. states, as well as a number of independent organizations file suit, both individually and jointly, against the United States.  Though these suits challenge various aspects of the health care bill, the major issue is whether Congress has the Constitutional power to mandate that all American citizens buy health care plans. Chief among these law suits was Florida et al v. United States Department of Health and Human Services , a joint suit representing 26 states.

January 1, 2011: U.S. District Jude Roger Vinson, ruling in the above mentioned case, declares the individual mandate clause of the health care act unconstitutional.  Given that the PPACA was not written in such a way that sections of it could be excluded or nullified without the entire act being so treated, Judge Vinson further concludes that the entire act must be struck down as unconstitutional.

August 12, 2011: A three-judge panel from the 11th Circuit Court of Appeals reviewed Judge Vinson’s ruling.  In their conclusion, the Court of Appeals chose to uphold it in part and to overturn it in part.  The Court found that while the individual mandate was unconstitutional, the rest of the Act was not in violation of the Constitution.  In other words, the Act is legal as long as the individual mandate is taken out.

September 2011: Multiple petitions for writs of certiorari were filed with the Supreme Court.  These petitions were essentially formal requests to the Supreme Court to act as an arbitrator in the case and were filed by parties on both sides of the debate.

November 14, 2011:  The Supreme Court granted the writ of certiorari and agreed to hear argument on the issue of whether the Obama administration’s health care plan is enforceable under the Constitution.

The debate at hand is one that is largely, if not entirely, based on Constitutional interpretations and broader theories of legal reasoning and governance.  On the one hand, the Obama administration and other supporters of the Act contend that Congress has the power to mandate health care and that the passage of the Act constitutes a historic achievement that will provide a better future for all Americans.  Conversely, Republicans nationwide, as well as other groups who oppose the Act, have deemed its passage a profound abuse of Congressional power and a classic example of the dangers of ever expanding Federal government.  It is their view that the Act will open the door to further degradation of individual rights and liberties, as well as to future weakening of states’ rights.

With a number of federal courts found fault with in the Act, the ant-Obamacare view has gained considerable coverage in the press as of late.  However, that is not to say that the argument for the PPACA has fallen on deaf ears.  In fact, the Obama administration gained what is perhaps its biggest legal victory just last week when the D.C. Circuit Court of Appeals upheld the constitutionality of the PPACA.   By applying an “originalist” interpretation of the Constitution and a restrained view of judicial power, the Court concluded that the Commerce clause of the Constitution—which states that “Congress shall have Power … To regulate commerce … among the several states”—enables the legislator to enforce the individual mandate aspect of Obama’s plan.  Defining “regulate” as “to prescribe certain measures,” or “to adjust by rule or method,” D.C.’s Judge Silberman concludes that the Commerce Clause permits the Federal government to “require action.”  Additionally, the D.C. judge addressed the concern that the Act’s individual mandate is a violation of individual rights, guaranteed by the Due Process Clause of the Constitution, by stating that the following:

“[The individual mandate] certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race…The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local—or seemingly passive—their individual origins.”

While many disagree with this interpretation of the Constitution, the D.C. Circuit Court’s finding remains salient simply because it adds a new and intellectually-exciting component to the health care debate.  With high-level courts weighing in with hard-hitting, Constitutionally-based arguments both for and against the Act, the national debate over health care reform has transformed into a political and legal battle that cuts right to the heart of the American system of government.  For a nation that constantly complains of disenfranchisement and of feeling removed from the political process, no issue could be better suited to spark a response from the masses.  Not only is the on-going debate on Obamacare tremendously important on the individual level (its outcome will undoubtedly effect all Americans), but it also provides the platform for a more open debate on American political values and the future of American governance than this country has seen in some time.  Individually, the concern might be “Do I, as a citizen, want to be forced to buy healthcare under penalty of law?”  Nationally and collectively, however, the question at hand is, “What type of America do we, the people, want to live in: one in which Federal powers dictate private actions in an effort to provide equality of outcome, or one in which individual liberty remains sacrosanct and private effort and market forces, not Federal mandates, are left to rule the economic world?”

Regardless of how we chose to weigh in on this question, what is important is that we actually weigh in.  It is not every day that we, as a country, are presented with such an ideal platform through which we can debate issues that are of fundamental importance to the future of our great nation.  Rather than allowing ourselves to get caught up in the endless sea of pundit chatter or turned off by the prolonged nature of the political process, we must remain patiently and vigilantly engaged in this issue.  It is essential that the people of America join in this debate and make our voices heard, for there is much more at stake here than just health care reform.  The way this Act is addressed has the potential to either reaffirm or redefine the structure through which we govern ourselves.  As such, the issue at hand is about more than just how the Supreme Court will decide, it is about how the future ofAmerica will be shaped.

“In God We Trust”…Seriously, we promise.

As the Washington Post happily announced yesterday, members of Congress have finally managed to put partisan differences aside, show some much-desired unity, and actually pass a bill with relative ease.  Though House Democrats and Republicans remain divided on major economic issues, members of Congress have confidently reaffirmed that “In God We Trust”  is STILL the nation’s motto.

Speculated to have been written in response to President Obama’s botching of the national motto last year, the passage of this most recent bill marks the 3rd time the national motto has been declared by Congress in the nation’s history and the second time it has been “reaffirmed” in ten years.  And to think, this particular re-reaffirmation only took 25-35 minutes of passionate political debate to hash out.  Perhaps now that this pressing issue of patriotic slogan-making has been cleared up our elected officials can get back to work solving, or at least arguing over, issues of real importance that are relevant to real Americans.

VA Judge Cracks Down on Absent Jurors

When you hear the phrase “service to your country,” what comes to mind? While I have never studied it, I would be willing to bet that the average American comes up with a  fairly standard list of professions and actions that meet this criteria.  Sparked by this familiar phrase, the mind quickly conjures up images of soldiers, firefighters, police officers, EMTs, and civil servants.  One type of service that constantly fails to make the cut is serving on a jury.  It seems that despite all the high school civics lectures we sat through concerning the importance of civic responsibilities, a growing portion of Americans no longer feel that a notice to report for jury duty requires the same strict compliance as it once did.

Apparently, this is exactly what happened last week in  Franklin and Southampton counties, where some 40 people received their notices and either didn’t appear or failed to return a questionnaire.

According to the Tidewater News, Circuit Court Judge Rodham H. Delk Jr. did not approve of these absences and took action to do something about them.  He scheduled show cause hearings for every single one of these potential jurors this past Friday. While Circuit Court Clerk Rick Francis said the judge didn’t intend to throw anyone in jail, Delk did have the option of finding them in contempt of court, among other penalties.

So let this be a lesson to all of us in the Commonwealth–when you are asked to report for jury duty, it is in your best interest to at least respond.  After all, if you fail to appear, you might still end up spending a day in court, only for a much less pleasant reason.