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.

Womble Client Wins Stormwater Case in Charlottesville

Another victory in Central Virginia for Womble Carlyle.  Last week, Albemarle County Circuit Court Judge Cheryl Higgins ruled in favor of the Shops at Stonefield (also known as Albemarle Place), finding the stormwater management plan for the shopping center was reasonable and lawful.  In so ruling, the Court denied the requested injunction and is set to dismiss the trespass and nuisance claims filed by a neighboring shopping center.  This ruling comes after a week long bench trial before Judge Higgins in June 2014.  More information about the case and the real estate development at issue is in the following article from Charlottesville Tomorrow.  Womble Carlyle attorneys Paul Kaplan and Jason Hicks represented Stonefield in this matter.

Court Declines To Dissolve Prayer Injunction After Supreme Court's Town of Greece Decision

In March 2013, Judge Urbanski issued an injunction prohibiting Pittsylvania County from opening its board of supervisors meetings with sectarian prayers associated with any one religion as a violation of the Establishment Clause.  That case is currently on appeal before the Fourth Circuit.

In May 2014, the US Supreme Court issued a 5-4 decision upholding the constitutionality of non-coercive sectarian invocations by invited clergy and laypeople at city council meetings.  See Town of Greece v. Galloway, 572 U.S. ___ (2014).    Given this new Supreme Court decision on public prayer, many localities that had been subject to injunctions have petitioned courts to modify those injunctions to conform with Town of Greece. 

Pittsylvania County filed a Rule 60(b)(5) motion in Western District of Virginia seeking to modify the Court's prior order.  The Court, however, held that it was without jurisdiction to modify its permanent injunction because the matter was on appeal to the Fourth Circuit.  There is a limited exception allowing the Court to rule on matters "in aid of the appeal."  Under this exception, the Court is permitted to entertain the motion and issue a short order if the Court is inclined to grant the motion, thus allowing the movant to request a limited remand from the Fourth Circuit for that purpose. 

After considering the merits of Pittsylvania County's request, Judge Urbanski determined that the Court was inclined to modify the injunction "to a very limited extent, i.e., to make it clear, consistent with Town of Greece, that opening prayers offered at the start of the Pittsylvania County Board of Supervisors meetings need not be generic or nonsectarian."  The Court, however, would deny the request to dissolve the injunction altogether because of factual differences between this case and Town of Greece. 

First, Pittsylvania County did not invite clergy or laypersons to offer invocations, as was the case in Town of Greece.  Instead, the prayers were led by the board members themselves.  "Thus, in contrast to Town of Greece, where the town government had no role in determining the content of the opening invocations at its board meetings, the government of Pittsylvania County itself, embodied in its elected Board members, dictated the content of the prayers opening official Board meetings."

Second, the Pittsylvania board of supervisors often directed the public to participate in the prayers by asking them to stand.  For example one board of supervisor began his prayer by stating: "If you don't want to hear this prayer, you can leave.  Please stand up."

In summary, the Court held that the active role of the board of supervisors in leading the prayers, dictating their content and directing public participation distinguished this case from Town of Greece.

It will be interesting to see how the Fourth Circuit rules in the appeal.

While it must have been irresistible for Pittsylvania County to try to dissolve the permanent injunction order after Town of Greece, given the decision by Judge Urbanski, it would have been better for the County not to have filed the Rule 60(b)(5) motion.  The Fourth Circuit can now see that the District Court would have granted the injunction anyway, even after considering the new Supreme Court precedent.  Thus, not only does this case involve an interesting constitutional question, but it is also instructive on matters of litigation and appeal strategy.

Judge Urbanski Awards Attorney Fees in Breach of Consent Injunction

Judge Urbanski recently issued an interesting opinion that highlights one of the difference between litigation in the Eastern District of Virginia and Western District of Virginia.

The case involved the defendant's breach of a non-disparagement clause in a consent injunction.  The plaintiff rented vacation cabins in the Shenandoah Valley and had previously sued defendant over certain online advertising for its vacation rentals.  That case ended with a consent injunction that required defendant to provide ads for plaintiff on its travel websites.  The injunction also included a non-disparagement clause, which plaintiff claimed defendant violated by posting an ad that advised users to beware of hidden fees and charges for plaintiff's rental property.  Judge Urbanski agreed that this ad violated the non-disparagement clause, but rejected other arguments (i.e., that defendant violated the consent order by not placing ads at the top of the webpage).

Judge Urbanski also awarded attorneys fees to plaintiff, but reduced the hourly billing rate from $650 to $350.  Plaintiff's lawyer, from Washington DC, stated that his normal billing rate was $720 per hour, which he reduced to $650 for this matter.  The court, however, stated "while an hourly rate of $650 (or $720) may be well and good for Washington, D.C., and lawsuits involving multinational corporations, it is simply an enormous rate for Harrisonburg, Virginia and and a case involving two local small businesses."  The court also reduced the fee request by one-third because plaintiff had only prevailed on one-third of its arguments in the motion to enforce.

Judge Urbanski's approach to attorney fees stands in stark contrast to some of the recent attorney fees that have been awarded by the Eastern District of Virginia.  As recently reported by Virginia Lawyers Weekly, "[a]ttorneys handling complex civil litigation in Northern Virginia are making use of a new benchmark to win higher fee awards from federal judges."

The case is Allstar Lodging Inc. v. Rookard, No. 5:13cv53 (W.D. Va. Nov. 12, 2013)