Virginia’s Top 5 Civil Opinions of January 2019

1. Davison v. Randall (P), No. 17-2002, Jan. 7, 2019. 4th Cir. (Wynn) from EDVA at Alexandria (Cacheris).

The interactive component of a Facebook Page administrated by the Chair of the Loudoun County Board of Supervisors was a public forum, and the Chair engaged in unconstitutional viewpoint discrimination when she banned the plaintiff from that forum.

The plaintiff has standing to sue based on record evidence that he intends to continue to use the Chair’s Facebook Page and that he faces a credible threat of future banning. These facts establish an injury in fact.

The district court properly concluded that the circumstances surrounding the Chair’s creation and administration of her Facebook Page, and banning of the plaintiff from that page, were actions under color of state law. She used the Chair’s Facebook Page as a tool of governance,” providing information to the public about her and the Board’s official activities, as well as soliciting public input on policy issues she and the Board confront.

The Chair’s Facebook page was a public forum. She intentionally opened the public comment section for public discourse, inviting “ANY Loudoun citizen” to post comments “on ANY issues, request, criticism, complement or just your thoughts.” She placed no restrictions on the public’s access to the page or use of the interactive component, and the public made numerous posts on matters of public concern. The record amply supports the district court’s finding that the Chair banned the plaintiff because he posted a comment alleging corruption in the school board – constituting black-letter viewpoint discrimination.

The district court also correctly dismissed claims against the Chair in her official capacity, finding that no policy played any role in the decision to ban the plaintiff from the Chair’s Facebook Page. There was no evidence that the Board knew of the Chair’s Facebook Page, let alone that it acquiesced in her administration of it.

Affirmed. Judge Keenan concurred, highlighting the need for more guidance from the Supreme Court about the interaction between the internet as a “public square” and First Amendment rights.

2. May v. R.A. Yancey Lumber Corp. (P), No. 171708, Jan. 10, 2019. SCV (Goodwyn) from Albemarle (Higgins).

Code § 13.1-724(A) requires approval by shareholders if a disposition would leave their corporation without a significant continuing business activity, and Code § 13.1-724(E) requires that such dispositions must be authorized by “an affirmative vote of more than two-thirds of the corporation’s shareholders.” The circuit court erred in determining that the statute allows a majority of shareholders to obviate the need for more than two-thirds shareholder approval via corporate bylaw.

The plain language of § 13.1-724 does not support the corporation’s claim that it can adopt a bylaw that redefines the meaning of “significant continuing business activity” to be anything that the majority designates it to be. The statute’s safe-harbor provision providing for an exception to the statutory threshold does not give a corporation the authority to amend or create a new threshold that will be deemed sufficient as a matter of law to constitute a “significant continuing business activity.”

Here, a shareholder with over one-third ownership never abandoned her claim that the company’s proposed sale was unlawful. Given her continuous warnings on this point putting the company on notice, the circuit court abused its discretion when it found that laches barred the corporation’s request for a temporary injunction.

Reversed and remanded.

3. Bates v. Purdon, No. CL18-4589, Jan. 25, 2019. Norfolk (Lannetti).

Where mediation was a condition precedent to filing suit, an action was improper when the parties didn’t engage in mediation and the defendants didn’t waive their right to enforce it.

Here, the plaintiffs suggested mediation and the defendants didn’t respond. But the lack of response didn’t constitute waiver of the right to mediate. A party claiming waiver must prove it by clear, precise, and unequivocal evidence. The absence of response doesn’t meet that standard. The plaintiffs were in a situation not contemplated by their agreement to mediate, but instead of a complaint they should have filed a petition to compel mediation or a specific-performance action. However, the court will deny sanctions against the plaintiffs, who were forced to seek the court’s involvement.

Plea in bar sustained.

4. Marsh v. Curran, No. 1:18cv787, Jan. 25, 2019. EDVA at Alexandria (O’Grady).

A plaintiff has sufficiently alleged intentional infliction of emotional distress arising from surreptitious recordings of his private conversations, which he claims were made by his ex-wife and her family and lawyers for use in their divorce proceedings. He has also sufficiently alleged computer crimes and aiding and abetting illegal wiretapping, assuming without deciding that such claim exists in Virginia.

Contrary to the defendant-attorneys’ argument, their alleged use of information obtained via the recordings is not privileged. Further, the crime-fraud exception to attorney-client privilege means that the attorneys will not be prevented from defending themselves. The attorneys were allegedly at least once on inquiry notice that information their client shared was obtained via unauthorized wiretap. The court will not strike the portions of the complaint alleging violations of Virginia’s Rules of Professional Conduct.

Motions to dismiss denied in part and granted in part.

5. McClellan v. City of Alexandria, No. 1:18cv1083, Jan. 28, 2019. EDVA at Alexandria (Brinkema).

An opera singer arrested for singing on the streets of Alexandria may proceed on claims that the arrest violated her First Amendment rights and that the city ordinance she was said to have violated is void for vagueness.

Alexandria’s Noise Control Code contains two sets of regulations: One applying to the entire city, and another applying only in an area known as the “central business district,” where the plaintiff was singing. There are also two types of standards for unlawful noise within the central business district: a decibel threshold to be measured with an approved device from more than 10 feet away and a statutory presumption based on “normal hearing acuity.” The best reading of the Code is that people making noise in the central business district are subject to liability under both the city-wide and district-specific provisions.

The plaintiff’s performances on public sidewalks in Alexandria’s central business district are core First Amendment activity, and she has adequately alleged that the Noise Control Code is not narrowly tailored to serve the City’s interest. She alleges that her performance was not dangerously loud, disturbing, annoying, or disruptive, but rather was pleasant, relatively quiet, and appreciated by many of the passersby-including the City’s former mayor. Further, the performance took place in the central business district, a place with significant foot and motor vehicle traffic, businesses, pedestrians, and even other performers.

These allegations, if proved, would indicate that she was arrested while making noise below the ordinance threshold, which gives the lie to defendants’ claim that all she had to do to comply with the ordinance was to lower her volume. Moreover, the Noise Control Code could nonetheless deprive her of ample alternative channels if the threshold was unreasonably low and thus precluded her from exercising her First Amendment right to speak (or sing) freely in a reasonable way.

As to the plaintiff’s vagueness claim, the Noise Control Code includes some provisions employing vague, standardless language that may fail to satisfy the notice and separation-of-powers principles undergirding the vagueness doctrine. It also contains multiple and overlapping types of noise regulations that may prove difficult for laymen to understand.

Motion to dismiss granted in part and denied in part.



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