The Court of Appeals of Virginia Celebrates Thirty Years of Service to the Commonwealth

The Court of Appeals of Virginia Celebrates Thirty Years of Service to the Commonwealth

The Honorable Stephen R. McCullough *

The Honorable Marla Graff Decker **

On June 2, 2015, the Supreme Court of Virginia convened a special session to celebrate the thirtieth anniversary of the Court of Appeals of Virginia. This anniversary affords the opportunity to look back on the court’s creation and to consider its evolution over the last three decades.

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*   Judge, Court of Appeals of Virginia. J.D., 1997, University of Richmond School of Law; B.A., 1994, University of Virginia. The views expressed in this article represent strictly the personal views of the author.

** Judge, Court of Appeals of Virginia. J.D., 1983, University of Richmond School of Law; B.A. 1980, Gettysburg College. The views expressed in this article represent strictly the personal views of the author.

The Court of Appeals of Virginia Celebrates Thirty Years of Service to the Commonwealth

The “Test” – or Lack thereof – for Issuance of Virginia Temporary Injunctions: The Current Uncertainty and a Recommended Approach based on Federal Preliminary Injunction Law

The Honorable David W. Lannetti *

Preliminary injunctive relief, where a movant[1] is awarded a court order prior to final judgment on the merits of a dispute, serves a necessary role in equity jurisprudence. Courts typically state that preliminary relief is an extraordinary remedy designed to preserve the status quo, with some courts opining that this purpose simply describes the abstract goal of preliminary relief [2] and others holding that movants must satisfy a higher burden when seeking injunctions that alter the status quo.[3] After significant evolution, federal courts developed a four-part test for preliminary injunctions,[4] which the circuit courts of appeals have universally accepted but inconsistently applied.[5] The Supreme Court of the United States subsequently resolved this circuit split in part,[6] yet the circuit courts still adhere to different approaches when applying the test.[7]

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* Judge, Fourth Judicial Circuit of Virginia. Adjunct Professor, Marshall-Wythe School of Law at the College of William & Mary and Regent University Law School. The views advanced in this article represent commentary “concerning the law, the legal system, [and] the administration of justice” as authorized by Virginia Canon of Judicial Conduct 4(B) (permitting judges to “speak, write, lecture, teach” and otherwise participate in extrajudicial efforts to improve the legal system). These views therefore should not be mistaken for the official views of the Norfolk Circuit Court or the author’s opinion as a circuit court judge in the context of any specific case. The author thanks 2014–15 Norfolk Circuit Court Law Clerks Jennifer Eaton and Gregory Chakmakas for their assistance in the research for and editing of this article.

        [1].    In this article, “movant” refers to the party requesting preliminary injunctive relief. It is meant to have the same meaning as “movant,” “petitioner,” or “plaintiff” as used in other articles pertaining to federal preliminary injunctions and Virginia temporary injunctions.

        [2].    See Thomas R. Lee, Preliminary Injunctions and the Status Quo, 58 Wash. & Lee L. Rev. 109, 110, 113, 115 (2001).

        [3].    See id. at 115.

        [4].    Id. at 111.

        [5].    See Bethany M. Bates, Reconciliation After Winter: The Standard for Preliminary Injunctions in Federal Courts, 111 Colum. L. Rev. 1522, 1529–30 (2011).

        [6].    See Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20–24 (2008).

        [7].    See Bates, supra note 6, at 1523, 1535–37.


The Court of Appeals of Virginia Celebrates Thirty Years of Service to the Commonwealth

The McDonnell Case: A Clarification of Corruption Law or a Confusing Application of Corruption Law

Henry L. Chambers, Jr. *

On September 4, 2014, Governor Robert F. McDonnell and his wife, Maureen G. McDonnell, were convicted in federal court of various crimes related to their relationship with Jonnie Williams, a Virginia businessman, and his company Star Scientific.[1] Earlier in the year, the McDonnells were charged in a fourteen-count indictment primarily consisting of public corruption charges.[2] Governor McDonnell faced one count of conspiracy to commit honest-services wire fraud, three counts of honest-services wire fraud, one count of conspiracy to obtain property under color of official right, six counts of obtaining property under color of official right, and two counts of providing false statements, one on a financial statement and one on a loan application.[3] Governor McDonnell was convicted on all counts except the two false statement charges.[4] Mrs. McDonnell faced the same charges as Governor McDonnell, except she faced only one of the two false statement charges and was also charged with obstructing an official proceeding.[5]

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*   Professor of Law, University of Richmond. The author thanks Kelsey Martin for her research assistance.

        [1].    Verdict, United States v. McDonnell, 64 F. Supp. 3d 783 (E.D. Va. 2014) (No. 3:14cr12-JRS), 2014 WL 4383056; see Rosalind S. Helderman & Matt Zapotosky, Ex-Va. Governor Robert McDonnell Guilty of 11 Counts of Corruption, Wash. Post (Sept. 4, 2014), iberations/2014/09/04/0e01ff88-3435-11e4-9e92-0899b306bbea_story.html.

        [2].    Indictment ¶¶ 108–23, United States v. McDonnell, 64 F. Supp. 3d 783 (E.D. Va. 2014) (No. 3:14cr12), 2014 WL 223601.

        [3].    Id. Conspiracy to commit honest-services wire fraud is codified at 18 U.S.C. § 1349 (2012). Honest-services wire fraud is codified at 18 U.S.C. § 1343 (2012). See also 18 U.S.C. § 1346 (defining scheme to defraud under the mail and wire fraud statutes to include a scheme “to deprive another of the intangible right of honest services”). Conspiracy to obtain property under color of official rights and obtaining property under color of official right, also known as Hobbs Act violations, are codified at 18 U.S.C. § 1951 (2012). The false statements statute at issue is codified at 18 U.S.C. § 1014 (2012).

        [4].    Verdict, supra note 1.

        [5].    See Indictment, supra note 2, ¶¶ 108–23. The relevant obstruction charge is codified at 18 U.S.C. § 1512(c)(2) (2012).


The Court of Appeals of Virginia Celebrates Thirty Years of Service to the Commonwealth

Developments in Animal Law: An Evolving Area in Virginia Law

Ryan Murphy *

On December 15, 2013, my wife and I welcomed a puppy into our family. We love dogs, grew up with them, but we had never raised one (or any living creature for that matter). As I drove to our Richmond Fan apartment from the foster home in Goochland, I felt helpless while he scratched at the carrier, frantic and screeching. During his first weeks with us, he smelled, relieved himself frequently and anywhere, and exhibited signs of abdominal distress that sent us on a trip to the companion animal equivalent of an emergency room.

Two years later he chases cats, retrieves sticks, splashes in mud, and chews and consumes things too obscene to mention. He learns tricks and the names of his toys.[1] He ignores commands. He has also begun grunting (no other word could describe the peculiar emanation) at 6:00 PM until I let him outside.[2] And I think he loves us.[3]

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*   J.D., 2014, University of Richmond School of Law; B.A., 2007, University of Virginia. I am grateful to Assistant Attorney General Michelle Welch for discussing the newly created Animal Law Unit and her comments on Part I of this article. Thank you also to Sarah Murphy, who provided comments and suggestions, and the University of Richmond Law Review staff. The views and opinions expressed herein are those of the author and do not necessarily reflect the position of his employer.

        [1].    See generally Monique A.R. Udell & C.D.L. Wynne, A Review of Domestic Dogs’ (Canis Familiaris) Human-Like Behaviors: Or Why Behavior Analysts Should Stop Worrying and Love Their Dogs, 89 J. Experimental Analysis of Behav. 247, 249, 253 (2008) (citing examples of dogs building “vocabularies”).

        [2].    See id. at 251–52 (citing a study indicating that dogs “cue” humans).

        [3].    See Gregory S. Berns, Andrew M. Brooks & Mark Spivak, Scent of the Familiar: An fMRI Study of Canine Brain Responses to Familiar and Unfamiliar Human and Dog Odors, 110 Behav. Processes 37, 44 (2015); Luke E. Stoeckel, Lori S. Palley, Randy L. Gollub, Steven M. Niemi & Anne Eden Evins, Patterns of Brain Activation when Mothers View Their Own Child and Dog: An fMRI Study, 9 PLOS ONE 1, 6, 9 (2014); cf. Marc Bekoff, Animal Emotions: Exploring Passionate Natures, 50 BioScience 861, 861, 864, 868 (2000) (positing that animals feel a variety of emotions, while recognizing arguments that humans indulge in a certain amount of projection).


The Court of Appeals of Virginia Celebrates Thirty Years of Service to the Commonwealth

Virginia’s Water Resource Law: A System of Exemptions and Preferences Challenging the Future of Public Health, the Environment, and Economic Development

Jefferson D. Reynolds *

There is plenty of water in Virginia. The problem is there are plenty of people, too. As population growth in the Commonwealth continues to place higher demands on water resources, competition among users naturally rises. Water for energy production, agriculture, domestic, industry, and other uses becomes more difficult to allocate, resulting in winners and losers based on availability of supply. Although Virginia has adopted a permitting framework[1] to improve water resource management, exemptions and preferential treatment provided to riparian landowners and historic users in the Virginia Code are increasingly problematic.[2] These classes benefit from preferred legal status for water without regard to water availability, effects on other users, or whether it is being put to the most beneficial use.

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* Director, Division of Enforcement for the Virginia Department of Environmental Quality. LL.M. (Environment), 1995, George Washington University; J.D., 1990, Hamline University School of Law. Member, State Bars of Virginia and New Mexico. The views expressed in this article are those of the author and do not reflect any policy or legal position of the Virginia Department of Environmental Quality or any other agency of the Commonwealth of Virginia.

Special thanks to Lara Dresser, J.D., M.L.S, for the thoughtful insights and supporting research that made this article possible.

        [1].    Va. Code Ann. § 62.1-44.2 to -44.34:28 (Repl. Vol. 2014).

        [2].    See id. § 62.1-82 (Repl. Vol. 2014) (Water Power Development); id. § 62.1-243 (Surface Water Management Areas); id. § 62.1-44.15:22 (Surface Water Withdrawals); id. § 62.1-259 to -270 (Groundwater Management Areas and Withdrawals).


The Court of Appeals of Virginia Celebrates Thirty Years of Service to the Commonwealth

Socioeconomic Integration and the Greater Richmond School District: The Feasibility of Interdistrict Consolidation

Barry Gabay *

Stark disparities in public education within the Greater Richmond area are commonplace and have been for over a century. Richmond Public Schools primarily consist of an impoverished student body attending dilapidated schools. Meanwhile Richmond’s bordering suburban counties, Chesterfield and Henrico, generally enjoy state-of-the-art learning facilities attended by far more economically diverse student bodies. Today’s inequities can only be understood with recognition of a history of institutionalized segregation in the Richmond area—a history that is ingrained within the municipal offices, along the public transportation system, and, especially, inside the schools. The problem is that in the Richmond area, a child’s place of residence, rather than his academic aptitude, greatly determines his educational ceiling, and the setup of local governments within Virginia inflames the problem.

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* J.D., 2015, University of Richmond School of Law; B.A., 2009, University of South Carolina. The author is intimately familiar with Richmond Public Schools, having received the majority of his pre-collegiate education from schools in the system and graduating from the Maggie L. Walker Governor’s School in Richmond, Virginia. This comment was inspired by the lifelong dedication of the author’s parents, Barry B. Gabay and Downy Roberts-Gabay, to the students of Richmond Public Schools, and it benefitted from the guidance of the Rev. Benjamin Campbell, Professor Kimberly Robinson at the University of Richmond School of Law, and Genevieve Siegel-Hawley, Assistant Professor of Educational Leadership at Virginia Commonwealth University.