BLOGS: Western District of Virginia Law Blog

Jason grew up in Lynchburg, Virginia, clerked for Judge Samuel G. Wilson in Roanoke, Virginia, and practices law in Charlottesville, Virginia.

Monday, August 24, 2015, 5:29 PM

Judge Moon's Denial of Preliminary Injunction in Route 29 Lawsuit

Several months ago, business owners on Route 29 filed a lawsuit against federal and state transportation officials challenging the plan to build a grade separated interchange at Route 29 and Rio Road.  The plaintiffs claimed that defendants improperly segmented a single construction project into three individual projects in order to avoid the requirements of certain federal environmental regulations. After holding an evidentiary hearing on June 1, Judge Moon denied plaintiff's request for a preliminary injunction.  The ruling was based on a finding that plaintiffs were not likely to succeed on the merits of their claim and a balancing of the equities.

Judge Moon began his opinion with the observation that "[t]he question of how to best address congestion on Route 29 in the Charlottesville and Albemarle County areas has long been a source of contention in the area"--quite an understatement!  Traffic on Route 29 has been a hot topic of debate since a western bypass was first proposed 36 years ago in 1979.

Judge Moon's opinion is available here.  Plaintiffs voluntarily dismissed their lawsuit shortly after Judge Moon denied the preliminary injunction, and construction has been progressing since then.

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Tuesday, August 11, 2015, 5:03 PM

Judge Moon and Civil Rights Lawsuits Against Bedford County Public Schools

Judge Moon has ruled on two cases in the past month involving constitutional civil rights issues and public schools.

In L.E.A. v. Bedford County School Board, Judge Moon denied a preliminary injunction prohibiting the School Board from closing Body Camp Elementary School pursuant to its redistricting plan.  Plaintiffs argued that the decision to close Body Camp -- which has a higher percentage of African American students than other elementary schools that were not closed -- violated the Equal Protection Clause of the 14th Amendment and Civil Rights Act of 1964.

Judge Moon, however, denied the requested preliminary injunction after determining that plaintiffs failed to establish a likelihood of success on the merits.  The Court pointed to evidence
"that the School Board closed Body Camp because the school's long-term maintenance needs were substantially greater than those at Moneta Elementary School [the other school under consideration for closing], which is supported by the findings in [an independent consultant's] review.  Moreover, the circumstances surrounding the School Board's decision do not necessarily indicate an intent to discriminate against minority students."
In R.M.B. v. Bedford County School Board, Judge Moon considered another civil rights action brought by a student claiming that his 364-day suspension from Bedford Middle School violated the Due Process Clause of the 14th Amendment.

The student was suspended for possession of marijuana after the assistant principal found "crumpled leaves" and a lighter in his backpack after hearing rumors that the student was bragging about possessing marijuana.  A sheriff's deputy and school resource officer field tested the leaves twice and the results were negative for marijuana.  Plaintiff claims that he and his parents were not told about the negative test results at the suspension hearing, and only learned about them when the criminal charges were dismissed.  Judge Moon denied the defendant's motion to dismiss the student's civil rights case and is allowing the case against some of the individual defendants to proceed to discovery, although the claims against the School Board were dismissed.

I should disclose that my father is a member of the Bedford County School Board and that many years ago, prior to law school and before the age of zero tolerance policies, I was a teacher at Bedford Middle School.

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Monday, August 3, 2015, 6:42 PM

Judge Kiser Dissolves Injunction Allowing Confederate Flag on License Plates

On Friday, July 31, 2015, in  Danville, Virginia -- the last capital of the Confederate States of America -- U.S District Court Judge Jackson Kiser presided over a court hearing about whether the Commonwealth of Virginia could ban the display of the confederate flag on DMV-issued license plates.

The Sutherlin Mansion in Danville, Virginia, the last capital of the Confederacy, is now the Danville Museum of Fine Arts & History and is a short walk down Main Street from the US District Court.

Specifically, the question was whether the U.S. Supreme Court's recent decision allowing Texas to ban the confederate flag from its license plates in Texas also applied to Virginia.  Pursuant to an older 2001 decision from the Fourth Circuit, Virginia was prohibited from disallowing an image of the confederate flag on vanity license plates for the Sons of Confederate Veterans.  The Fourth Circuit had held that Virginia's rule was an impermissible content-based restriction (viewpoint discrimination) under the First Amendment.  Since then, nearly 1602 Sons of Confederate Veterans license plates have been issued for cars and motorcycles.

In March 2015, however, the Supreme Court held that Texas's specialty license plate design constitutes government speech, and therefore content-based restrictions on the design and message of the license plates did not run afoul of the First Amendment.  The majority opinion explained that states can use license plate slogans to urge action, promote tourism and tout local industries, and that in doing so, the state can choose to promote some slogans, images and messages, but not others.  The Court compared messages on vanity license plates to message-conveying monuments in public parks.

Given this ruling, the Commonwealth of Virginia asked Judge Kiser to dissolve the 2001 injunction that prohibited it from disallowing the confederate flag on its license plates.  In his ruling from the bench, Judge Kiser agreed that the recent Supreme Court case effectively overruled the prior Fourth Circuit decision, and thus the injunction would be dissolved when he issues a written order.  Judge Kiser rejected the Sons of Confederate Veterans' argument that the process for obtaining a vanity plate in Virginia was so different from Texas that the US Supreme Court case should not apply.  A question that still needs to be answered, however, is what will happen to the existing Sons of Confederate Veterans license plates that have already been issued.  Judge Kiser's written ruling is expected to address whether his decision applies just to new plates or also retroactively to include the existing plates.

Attorney General Mark Herring said in a statement: "This ruling will allow Virginia to remove a symbol of oppression and injustice from public display on its license plates.  Virginia state government does not have to and will not endorse such a divisive symbol.  I appreciate Gov. McAulliffe's leadership in calling for the removal of the flag and those on my team who moved quickly to get it done."

Personally, I think that not only was Judge Kiser's ruling the right decision but it was the only decision possible given the Supreme Court's prior ruling in the Texas case.

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