Waltrip Appointed to Defend Accused Child Rapist

Attorney Brandon C. Waltrip has been appointed to represent a local man on charges of rape of a child under thirteen years of age; indecent liberties with a child; and assault and battery of an infant. Mr. Waltrip was appointed to represent the defendant on December 21, 2012. The defendant was denied bond by the Court, which was appealed to the Wililamsburg James-City County Circuit Court. At the bond appeal, Mr. Waltrip argued that the defendant would plead not guilty to the charges.
    Circuit Court Judge McGinty denied bond and the matter was remanded to the Williamsburg Juvenile and Domestic Relations Court for pre-liminary hearing. The pre-liminary hearing is scheduled for January 25, 2013 at 10:00 AM.

Virginia DUI Laws: "Driving or Operating"

        The Virginia laws on Driving Under the Influence are fairly set in stone. The Legislature in Richmond, however, continues to change the laws in respects to punishment. Each year they try to raise the mandatory minimum as to Fines, Incarceration Periods, and Periods for a Loss of License. But, that doesn't change the case law. Here is an overview of different Virginia Cases involving "Driving or Operating" decided over the years.

1. To operate a vehicle is to "drive or be in actual physical control of a motor vehicle." Nicolls v. Commonwealth, 212 VA. 257
2. The ability to move a vehicle from place to place, in a functional sense, is not required in order to "operate." Keesee v. Commonwealth, 32 VA. App. 263
3. There is no bright line rule for "operating" or "driving," the motor need not be running or its ignition switch be in the "on" position for a conviction of DUI. Propst v. Comm., 24 Va App. 791
4. Violation may occur in a parking lot; driving or operating must not occur on a public highway. Gray v. Comm., 23 VA. App. 351
5. Defendant did not drive or operate car since key ignition did not engage car .... because the presence of the key in the ignition switch in the off position did not engage the mechanical or electrical equipment of the carthe defendant did not "drive or operate" the car within the meaning of the statute. Stevenson v. City of Falls Church, 243 VA. 434.

        Propst and Stevenson seem to contradict one another as to ignition systems. Propst is the more recent Virginia Supreme Court case and is likely controlling. An interesting point to consider though is regarding keys and ignitions in the new keyless start vehicles. Hypothetically, if a driver is seated in a car with a keyless ignition, or a push-button ignition system, the vehicle can be started at anytime by simply pushing a button. Would Courts consider this in the "on" position? Is the vehicle even "operable" prior to ignition? There is no "ignition switch" to put a key in and turn to the "on" position?

Stern v. Marshall, What's the Deal with More Work?

        People don't like change. People also don't like change that brings more work. When an idea comports with the belief, philosophy, or ideology we've developed, if it involves more work, most people want none of it. That is what has resulted in the Supreme Court's recent decision of Stern v. Marshall. 
        In this opinion published June 23, 2011 the Supreme Court dropped what some call a "bombshell" on the world of Bankruptcy. The case involved the estates of Vickie Lynn Marshall, better known as Anna Nicole Smith, and Pierce Marshall, son to the Oil Tycoon J. Howard Marshall who Vickie was married to for 14 months. The Court found bankruptcy courts "lacked constitutional authority to enter a final judgment on a state law counterclaim that is not resolved in the process of ruling on a creditor's proof of claim."
        What that ultimately means is in each filing of bankruptcy the court will have to determine (1) whether the bankruptcy court has statutory authority, and (2) whether the bankruptcy court has constitutional authority. This problem results in more work for the judiciary. But, it also means an avenue of appeal for debtors and creditors in the joust of bankruptcy.
        In the facts of Stern, Pierce Marshall filed a proof of claim asserting rights to recover damages from Vickie's (Anna Nicole) bankruptcy estate alleging Vickie had defamed him. Vickie responded with a counterclaim for tortious interference under Title 28 USC 157(b)(2)(C). After losing in Bankruptcy court Pierce objected that the court lacked jurisdiction as the counterclaim was not a "core proceeding." The Supreme Court followed the ruling of the Court of Appeals who had reversed the decisions of the Bankruptcy and the District Court.
        The most important facet of all this, in my opinion, is that debtors and creditors alike can appeal the decisions of the Bankruptcy court for a lack of constitutional jurisdiction. In the short run this a load of work for District Courts. A decision disliked in Bankruptcy will be appealed to the District Courts for a lack of constitutional jurisdiction. The District Courts across the country will hammer out modes of analysis and throw as much back to the bankruptcy court as possible. After a few years a case will come on appeal and if judges, clerks, and courts are lucky the Supreme Court will outline the proper constitutional analysis for a bankruptcy court.
        So, for practioners on the other-side of the bench, does it mean more work? Yes. For judges, clerks, and courts, does it mean more work? Yes. The question then becomes how do you feel about it?