Ruling in First Amendment Suit Strikes Down Charlottesville Panhandling Ordinance

My office off of Charlottesville’s downtown mall provides me with a great view of each day’s activities in this lively pedestrian space.  On any given day,  I can see the street musicians, vendors, or the blindfolded gentleman who gives away free hugs.  However, an interesting First Amendment case out of the Western District of Virginia is likely to ensure even more activity on Charlottesville’s downtown mall. 

In a recent case, Judge Moon found that a Charlottesville ordinance, which prohibits panhandling on the downtown mall, violates the First Amendment of the Constitution.  The challenged ordinance specifically prohibited solicitation in a 50-foot “buffer zone” of portions of the mall.  The suit challenging the ordinance was filed in federal court over three years ago on behalf of several homeless Charlottesville residents and was initially dismissed by Judge Moon.  But after the Supreme Court struck down a Massachusetts “buffer zone” law last year, localities around the country have seen similar laws overturned by the courts.  In this suit, Judge Moon found that the City improperly focused on panhandlers when creating its ordinance and struck down the ordinance because it prohibits a certain type of speech.  Free speech advocates seem pleased with the ruling, while downtown business owners seem concerned about aggressive solicitation in areas with high foot-traffic. 

For more information on the case, check out a recent Daily Progress article, found here.  

US Attorney Investigating Puckett Resignation

The Richmond Times Dispatch is reporting that the United States Attorney's Office for the Western District of Virginia is investigating the recent and surprising resignation of state Senator Phillip Puckett.  There is a report of a grand jury convening in Abington to hear testimony on the matter.

Puckett's resignation gave the balance of power in the Virginia Senate to the Republicans who now hold a 20-19 advantage.  Prior to Puckett's resignation, the Senate was deadlocked, with the Lieutenant Governor, a Democrat, providing the tie breaking vote. 

Puckett stated that his decision to resign was motivated, in part, by Republican opposition to his daughter receiving a full-time appointment as a Juvenile and Domestic Relations judge.  She was not considered for that position, prior to Puckett's resignation, because of a belief that the Senate should not appoint judges who are family members of a sitting senator.

The Times Dispatch reports that Puckett's resignation may also have been tied to his appointment to the state tobacco commission.  Delegate Terry Kilgore, a Republican from Southwest Virginia and brother of former gubernatorial candidate Jerry Kilgore, stated that he had spoken with Puckett before his resignation about taking a job with the commission.  Puckett says that he was never officially offered a job by the tobacco commission.

The Washington Post reports that Puckett has hired Thomas J. Bondurant Jr. to represent him.  Bondurant is a former federal prosecutor in WDVa.  I saw him in action many days when I was a law clerk for Judge Wilson.  He was always one of my favorite attorneys to watch.

Novel Copyright Action Involving Webcasting and Geofencing to be Decided in Harrisonburg

Radio stations that stream over the Internet typically have to pay performance royalties to the copyright owners of the songs that are being broadcast over the Internet.  Last month, a group of radio broadcasters in Virginia brought a copyright lawsuit challenging whether they had to pay royalties for streaming Internet if their audience was restricted to a 150-mile radius from the station's transmitter. 

Technological advances, such as geo-fencing, allows websites to restrict access to those within a certain geographic area.  If the audience of a streaming radio station is limited to a 150-mile radius, then the web-based audience is arguably the same as the AM/FM broadcast audience. 

More importantly for purposes of this case, there is a specific provision of the Copyright Act that exempts broadcasters from having to pay performance royalties for digital retransmissions of their broadcasts provided the retransmissions do not go "more than a radius of 150 miles from the site of the radio broadcast transmitter."  17 U.S.C. 114(d)(1)(B)(i).

When that provision of the Copyright Act was adopted more than a decade ago, it was not technologically possible to restrict the audience of an Internet broadcast.  Therefore, radio stations that live-stream their content have been paying performance royalties under the Copyright Act.  The technological development of geo-fencing, however, makes it possible to restrict the geographic scope of the audience and raises this novel issue of copyright law.  This is the first time that a court has been asked to consider this issue.

Digital retransmission is a major issue in all media.  A case involving the delivery of television signals over the Internet--involving very different issues of what constitutes public verses private performance under a separate provision of the Copyright Act--is currently pending before the Supreme Court and is one of the blockbuster cases that the Supreme Court has yet to decide this term.

The radio broadcast case is styled WTGD 105.1 FM v. Soundexchange, Inc. and is going to be heard by Judge Urbanski in the Harrisonburg Division of the Western District of Virginia.  The defendant was granted an extension of time in which to respond and will file an answer or motion to dismiss on June 23.

Out of Trial

I just finished a very interesting, week-long trial in Albemarle County regarding stormwater management and streams within a new shopping center.  It was fascinating to learn about how much engineering and construction goes into dealing with water issues -- most of which is all underground!  Now that I am out of trial, I hope to be able to post about some of the interesting WDVa cases and developments of the past month.

WDVa Judge Certifies Class Action in Same Sex Marriage Case

Judge Michael Urbanski has certified as a class action a lawsuit challenging Virginia's constitutional ban on same-sex marriage.  This WDVa lawsuit, filed by the ACLU on behalf of two Shenandoah Valley couples, is proceeding parallel with a similar action in the EDVa (Norfolk).  Given the speed of the "rocket docket," the EDVa case is expected to be decided before the WDVa action, although both are destined for review by the Fourth Circuit.

Newly sworn-in Attorney General Mark Herring made news last week by deciding not to defend the ban because he wanted to put Virginia "on the right side of history."  Herring specifically referenced Virginia's sordid history opposing school desegregation, opposing interracial marriage, and insiting upon single-sex education at Virginia Military Institute.

As a native Virginian, I remember some of these battles and live with the history of others.  For example, my daughter goes to one of the public schools that Governor Lindsay Almond decided to close in 1958 instead of obeying federal Judge John Paul's order to desegregate Lane High School and Venable Elementary in Charlottesville, Virginia.  Massive resistance is a dark stain on Virginia's proud history.  Regardless of how the same-sex marriage cases are resolved, I am confident that we will not have the same state political resistance to federal court rulings.

WDVa Denies Transfer of Same-Sex Marriage Case

Judge Urbanski denied a motion to transfer venue in an action challenging Virginia's ban on same sex marriage.  The State had asked the Court to transfer the lawsuit, which is pending in the Harrisonburg Division, to Norfolk so it could be consolidated with a similar lawsuit pending there.  The Court, however, declined the motion to transfer venue, finding "meaningful differences" among the plaintiffs.  One interesting difference is that the Harrisonburg case is a class action lawsuit.  It was brought by a couple in Staunton who were denied a marriage license after the Supreme Court struck down the Defense of Marriage Act this summer.  For more information about the case, click here.

Government Shutdown Not To Impact WDVa

Attorneys in the Western District of Virginia received this notice via email today:

Impact of a Government Shut-Down on the District Court: Should Congress fail to enact a continuing resolution by October 1, 2013, the District Court for the Western District of Virginia will manage with its normal business and operations until further notice. All court proceedings will take place as scheduled and the Clerk's Office will be open to file, process and manage cases.

 I'm a member of the bar of several other U.S. District Courts, and some of these other courts have issued similar notices.  How long does a shutdown have to last before the courts shutdown?  Let's hope we don't have to find out.

Mandatory Minimum Sentences for Drug Cases in the Western District of Virginia

Although the focus of this blog is civil litigation, I read an interesting story in the Roanoke Times about mandatory minimum sentencing in the Western District of Virginia.  In a recent speech to the American Bar Association, Attorney General Eric Holder announced that he was directing US Attorneys to change the way they charged certain non-violent, low-level drug offenses in order not to trigger the "draconian" mandatory minimum sentences.

According to Timothy Heaphy, the US Attorney for the WDVa, no major change is needed for the Western District of Virginia because drug offenders are not being subject to the harsh measures that concerned Attorney General Holder.  For the most part, Heaphy said that he has already been operating as Holder requested, stating: "This is an evolutionary step, not a new thing for us."  The Roanoke Times also quotes Chief Judge Glen Conrad as saying "This United States Attorney's Office has been fair in the way it charges individuals."

The article contained some interesting statistics that appear to show that, as a percentage, there are more criminal drug cases in the Western District of Virginia than the national average.  And that the average drug-related sentence (91 months) was higher in the WDVa than the national average (72 months).  Heaphy explained that this was because he has focused on major drug cases: "We probably more than some places around the country have already changed our approach to drug charging... We have pivoted toward charging only folks that are more sophisticated," with the rest being charged in state courts.

When drug cases are broken down by drug type, the statistics show that there are fewer marijuana and cocaine cases in WDVa than in the rest of the country, but more meth and "other" cases.  I suspect a good portion of the "other" category is Oxycontin, given the history of that drug's abuse in Southwest Virginia.  In 2011, the kingpin of a multi-state OxyContin distribution ring was convicted and sentenced to 10 years imprisonment in the Western District of Virginia.

Heaphy said that he plans to further tighten charging and sentencing practices, by bringing charges that would impose mandatory minimums only in cases in which there are certain aggravating circumstances.  One interesting statistic that was not available in the article is the percentage of cases in which defendants were subject to mandatory minimums in the Western District of Virginia as compared to the national average.

Summary Judgment For Assignee of Note and Guaranty

On July 26, 2013, Judge Turk entered summary judgment in the amount of $3.2 million in favor of the assignee of a note and personal guaranty.  See City National Bank v. Tress (WDVa 2013).  The defendants had agreed to guaranty the repayment of a note that secured commercial loans made to their LLC.  The LLC, however, soon stopped making payments on the note and went into receivership.  Plaintiff purchased the note and guaranty, but apparently there were problems with how the note was endorsed by the original noteholder.  Defendants, therefore, argued that the personal guaranty was not enforceable since the underlying note was arguably not enforceable by plaintiff.  The Court, however, ruled that under McDonald v. National Enterprises Inc., 547 S.E. 2d 204 (Va. 2001), the guaranty was an independent contract that could be enforced even if plaintiff would not have been able to enforce the note.  The enforceability of the guaranty depended on whether the note had been repaid.  Since the obligation on the note remained outstanding, the personal guaranty could be enforced even if plaintiff could not enforce the note itself.