Category Archives: Courts and law

Virginia’s Email Scandal

House District 72 - does this look compact to you?

House District 72 – does this look compact to you?

by Brian Cannon

Today the Supreme Court of Virginia will hear a case about emails politicians don’t want you to see.  You may miss the story in the news because this has nothing to do with presidential politics. Rather it’s about Virginia’s 2011 gerrymander.

Five years ago, Virginia was split with Democrats in control of the Virginia Senate and Republicans in control of the House of Delegates. Governor Bob McDonnell appointed a blue-ribbon commission to propose less partisan maps for Virginia. Unfortunately, legislators did not take the directive seriously. Instead of agreeing to a reasonable approach that benefited Virginia voters, the partisan political leaders of both chambers agreed to feather their own nests. The Republicans in the House passed the Democratic gerrymander of the Senate and the Democrats in the Senate passed the Republican gerrymander of the House. Bi-partisanship at its worst.

Which lawsuit is this again? In 2015, Citizens from across the political spectrum joined to sue the Commonwealth over the lack of compactness in Virginia’s General Assembly districts. A quick look at the districts will give you a clear view of how non-compact these districts actually are. They include six drawn by the Democrats in the Senate and five drawn by the Republicans in the House. By specifically avoiding districts affected by the complication of the Voting Rights Act, the suit is a clear shot at Article II Section 6’s requirement for compactness without all of the complications of the moving target that is today’s VRA.

This lawsuit is funded by the non-partisan OneVirginia2021 with lawyers and a significant discount provided by Wyatt Durrette’s firm DurrettCrump. This is not the same initiative as the Democratic National Redistricting Trust challenge of racial gerrymandering. One of those cases changed Virginia’s congressional boundaries and the other is before the Supreme Court of the United States this fall.

So how do emails work into this?  In the discovery phase of this compactness trial (yeah, we still haven’t gotten to trial yet), the trial judge in Richmond made a ruling about the scope of legislative privilege. The plaintiffs argued legislative privilege should be narrowly construed — about a foot wide.  The defendants argued it is a broad privilege — about a mile wide. Judge Marchant of the Richmond Circuit Court ruled, in effect, that the privilege was a few feet wide. The House of Delegates complied and has been turning over emails and other related documents since.

In an unprecedented move to avoid turning over their emails, four sitting state senators requested instead to be held in contempt of court. The court obliged, fining each senator $100 a day since early April. The four sitting senators are all Democrats — the same ones behind the gerrymandering in 2011. Originally, the group included one sitting Republican Sen. Richard Stuart, R-Westmoreland, but he complied with the court order, stating to the Washington Post:

I’m a lawyer and I’m never going to refuse a court order. … You just don’t do that. Number two, I’m a public servant and I’m doing the public’s work. Number three, I believe in transparency.

If only Senators Dick Saslaw, D-Springfield, George Barker, D-Alexandria, John Edwards, D-Roanoke, and Dave Marsden, D-Burke, saw it that way and complied with the trial court’s order.

Brian Cannon is executive director of OneVirginia2021.

The Moral Ambiguity of Drunken Party Sex

Non-sanctioned block party near UVa like that where the incident took place.

Non-sanctioned block party near UVa like that where the incident took place.

T. Rees Shapiro with the Washington Post has written an excellent article describing how the University of Virginia’s drunken party culture leads to unfortunate sexual encounters, and how difficult it is to sort out afterwards what happened.

The story focuses on a single incident in which first-year woman Haley Lind and a first-year athlete, who asked to remain unidentified, met at a party, got drunk and went to an upstairs bathroom to have sex. The next day Lind woke up feeling that she had been violated in some way but was unable to remember the details. Basically, her argument was this: She was too drunk to have given consent to sex. The athlete was surprised by the allegation. Lind, he said, never objected. Indeed, she had put a condom on him.

According to UVa’s sexual assault policy, someone who is incapacitated by drink cannot give informed consent. But the athlete accused of sexual assault was himself too drunk to know that Lind was too drunk to give consent.

Writes Shapiro:

Their ordeal provides a sobering portrait of the real-world consequences of college party culture. It exposes the challenges students face in deciphering consent while drunk and in piecing together fragmented memories. It also shows how schools are placed in an almost untenable position of trying to determine what happened and who is at fault — if anyone.

Real, unambiguous cases of rape do occur on college campuses, but they are a small fraction of the “sexual assault” incidents that take place. There is a huge problem in America’s colleges and universities, but it is not an “epidemic of rape,” as it has been described for political purposes. The problem is the culture of drunken party sex, and that’s what needs to be addressed.

— JAB

McDonnell Wins Appeal

Photo credit: New York Times

Photo credit: New York Times

In a unanimous ruling, the U.S. Supreme Court has overturned Bob McDonnell’s bribery conviction. The former Governor had been found guilty in 2014 of accepting more than $165,000 in gifts and loans from Richmond businessman Jonnie Williams in exchange for using his office to promote a dietary supplement.

Prosecutors had charged that McDonnell had committed at least five “official acts” on behalf of Williams, including hosting and attending events at the Governor’s Mansion and arranging meetings for Williams with state employees. He was convicted in a Richmond jury trial, and the conviction was upheld in appeals court.

As Justice John Roberts said in his opinion, the case revolves around the proper interpretation of the phrase “official act.”

We reject the Government’s reading … and adopt a more bounded interpretation of “official act.” Under that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an “official act.”

“There is no doubt that this case is distasteful; it may be worse than that,” wrote Roberts. “But our concern is not with tawdry tales of Ferraris, Rolexes and ball gowns. it is instead with the broader legal implications of the government’s boundless interpretation of the federal bribery statute. A more limited interpretation of the term ‘official act’ leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this court.”

I’m no legal scholar, but Roberts’ thinking is precisely why I found McDonnell’s conviction so incomprehensible in the first place. The governor opened doors for Williams, but he never strong-armed anyone or intervened in any way to get Williams the state funds he craved.

The trial revealed unseemly behavior and poor judgment by McDonnell that, in my mind, disqualified him from public office — and the Supreme Court ruling does not change that. But McDonnell’s deeds did not rise to the level of a criminal offense. I’m glad to see McDonnell cleared of criminal charges. He has spent two years in purgatory. At last the man can go about rebuilding his life.

— JAB

McAuliffe’s Dangerous Game

by James A. Bacon

Once upon a time, when he helped run L. Douglas Wilder’s history-making gubernatorial campaign, Paul Goldman was regarded as a progressive voice in Virginia politics. If he writes many more op-eds like the one published Sunday in the Richmond Times-Dispatch, he could well become anathema to progressives. Not because he has changed his principles, mind you, but because progressives have come to toss around accusations of racism with such reckless abandon.

Goldman’s topic was Governor Terry McAuliffe’s executive order restoring full civil and voting rights to 206,000 felons convicted of both violent and non-violent crimes. The Richmond attorney and political activist makes two critical points that dovetail with my critique of contemporary progressivism.

One is that McAuliffe’s defenders make unsupported accusations of racism and discrimination that only “make it harder for those fighting for honest change.” Specifically, Goldman tackles the notion that Article II, Section 1 of the Virginia Constitution — “no person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority” — was intentionally written to disenfranchise African-Americans.

To the contrary, notes Goldman, disenfranchisement of felons dates back to colonial times when only white men were allowed to vote. Moreover, Virginia civil rights legend Oliver Hill reviewed and approved the provision for inclusion in the 1971 Virginia constitution.

A second point is that the people who get so agitated about the injustice done to felons are remarkably quiet about the injustices the felons inflicted upon their victims. While felons in Virginia are disproportionately African-American, so are crime victims.

As Goldman writes, “For the government to suggest a victim or loved one is anti-black because she opposes automatic restoration [of civil rights] without any showing of contrition is unjustified. It demeans the victim.”

A strong case can be made that the process of restoring rights to non-violent felons should be made easier — no individual petition necessary. But blanket restoration for violent felons without giving the victim an opportunity for input or any requirement for the predator to show contrition should be prohibited, Goldman writes. “The petitioning process must not itself be punitive. Yet it can’t be pro forma.”

Lastly, Goldman didn’t make this point but I will: Finding the proper balance for restoring felon rights is not the sole prerogative of the governor. McAuliffe needs to engage in give and take with the legislature. Sadly, the rule of law is regarded among political elites as increasingly optional — something to be enjoined when they can harness it to advance their aims and sidestepped when it cannot. A couple of years back, I said that progressives should be cautious with the precedents they set — just imagine how worried they would be if Sarah Palin were elected president with the power to re-write laws through executive decree. Now they face an even more terrifying prospect — an imperial presidency run by Donald Trump, the man for whom everything is negotiable and “so sue me” is a business best practice. Granting presidents and governors power to re-write laws at will cuts both ways.

Update: General Assembly Republicans are filing suit to halt enforcement of McAuliffe’s executive order.

What the Virginia “Education” Association Is Trying to Hide

by John Butcher

It’s a strange state we live in. The meetings of our legislators are open to the public; their work product goes in the newspaper and on the Internet. The public is free to evaluate their positions, express opinions, and hold them accountable by voting them in or out of office.

Virginia’s judges perform in open court. Their work product is public and subject to legal review by the appellate courts. Judicial Performance Evaluations based on feedback from attorneys and jurors go to the General Assembly, which has the power to fire judges, and to the public, which can fire members of the General Assembly.

By contrast, the data showing how effectively public school teachers are educating our children are treated as a state secret.

The Virginia “Education” Association says that performance data might let the public make “prejudicial judgments about teacher performance.” They want teacher evaluation to be left to the school systems, which are free to ignore ineffective teaching — and do. So, Virginia parents are deprived of information to evaluate their children’s teachers or even to gauge how school divisions are managing — or mismanaging — inadequate teachers whom parents are taxed to pay.

Brian Davison of Loudoun sued the Department of Education and punched a small hole in this conspiracy against Virginia’s schoolchildren. (See Davison v. Virginia Education Dep’t, No. CL14 -4321; circuit court, city of Richmond, final order, 12 April 2016). Now the Virginia “Education” Association has threatened to sue VDOE, Brian, and me, seeking court orders to prevent, among other things, our disseminating and commenting upon Student Growth Percentiles (SGPSs) and, perhaps, other data regarding teacher effectiveness.

At the outset, this demonstrates that the Virginia “Education” Association is too stupid to count to “one.” The First Amendment bars this attempted prior restraint of our truthful speech.

As well, the information already available provides a window into what the Virginia “Education” Association is trying to hide.

We know that the Standards of Learning are an imperfect measure of teacher performance. The scores go down as there is a strong correlation between SOL scores and the socioeconomic disadvantage of students increase. In contrast, the Student Growth Percentile (“SGP”) provides an indicator of effective instruction, regardless of a student’s scaled score. Indeed, the SGP, which measures improvement, not absolute scores, appears to be insensitive to economic disadvantage.

VDOE calculated SGPs in reading and math for three or four years, ending in 2014. Here are the 2014 statewide distributions of average SGPs by teacher.

2014_reading_math

Here we see, as expected, a few very good teachers, a few ineffective ones, and a whole bunch who get average or nearly average performance from their students.

The 2014 data allows us to take a close-up look at individual teachers, albeit with personal identification data stripped away.

Continue reading

Lawsuit Pries Loose Warmist Emails

Playing with fire

Playing with fire

by James A. Bacon

The Competitive Enterprise Institute (CEI) has prevailed in a lawsuit to obtain emails detailing how GMU climatologists organized a call for a federal investigation into corporations that “knowingly deceived” the public about climate change. The campaign was organized by Jagadish Shukla, director of the Institute for Global Environment and Society (IGES), who subsequently drew notoriety for paying himself lavishly with federal research grant monies on top of his university salary.

Quoting from the account in the Watts Up With That? blog:

The [Richmond Circuit Court] judge ruled for CEI on all counts in an April 22 ruling in Christopher Horner and CEI v. George Mason University that the court released [Friday]. The ruling concluded that by leaving it to faculty who simply told the school’s FOIA officer they had no responsive records, GMU failed to conduct an adequate search; the judge also ruled that documents including emails from GMU Professor Ed Maibach must be released to CEI.

“This victory puts on notice those academics who have increasingly inserted themselves into politics, that they cannot use taxpayer-funded positions to go after those who disagree with them and expect to hide it,” said Chris Horner, CEI fellow and co-plaintiff. “These records … will be of great assistance to the public in trying to understand how their tax dollars are being used for political fights.”

Here are the emails:

Pages 1- 59
Pages 60-102
Pages 103-133
Pages 134-178
Pages 179-190

I haven’t had a chance to read through them, but judging from the highlights I’ve read in the Global Warming (GW) skeptic blogs, there are no smoking guns here. Some hint that the email haul could be as big as the so-called East Anglia “Climate Gate” scandal, but I don’t see it. The scandal in this case was right out in the open — scientists calling for a federal investigation into Exxon Mobil and other entities for allegedly lying to the public. The emails flesh out the details but don’t illuminate any fresh efforts at quashing threats to GW orthodoxy.

However, the emails do illuminate the thinking behind the controversial letter calling for the investigation. Marc Morano, author of the Climate Depot blog, sums up the tone of the correspondence:

It quickly emerges that some of the involved scientists (unwittingly) meandered out of their academic realm, with which they are comfortable and familiar, and into a political one that is very unfamiliar to them. Their scheme was ultimately aimed at intimidating and silencing scientific dissent. … Early on they were even advised that their case was very weak, and probably best left aside. … Yet [Ed Maibach] seemed unable to resist the opportunity of getting ‘lots of media attention.’ … Clearly the political arena was a new one for scientist Shukla.

The Climate Gate emails revealed how a handful of activist scientists conspired to keep dissenting views out of peer-reviewed journals, thus corrupting the scientific process. By contrast, the GMU emails show how a group of politically naive scientists wanted to suppress dissent from Global Warming orthodoxy in the political sphere — an odious sentiment, to be sure, but not one that undermines the scientific process.

The real scandal, brought to light by Climate Warming skeptics who were punching back against Shukla, has gone relatively unremarked upon: the potential for professors to enrich themselves with federally funded research grants and the inability of conflict-of-interest forms and in-house academic review to either spot or do anything about such double dipping. We still don’t know whether Shukla’s practices, which included putting his wife on the payroll and funding a private charity in India, is widespread among research scientists — not just climate change scientists, but researchers of all stripes. The sad thing is that no one in the media or punditocracy seems remotely interested in knowing the answer. Having put Shukla in his place, even the skeptics don’t seem interested.

Update: The emails may be more significant than I thought. Katie Brown with the Energy in Depth blog argues that the emails “pull back the curtain further on the level of collusion between anti-fossil fuel activists, their funders, and the attorneys general that have launched climate investigations into people, companies, and think tanks with which they disagree on the issue.”

Rule by Edict Comes to Virginia

mcauliffeby James A. Bacon

A persuasive moral case can be made to restore the civil rights of former felons. Once a man has served his time and repaid his debt to society, he should be allowed to participate fully in that society.

As Governor Terry McAuliffe stated Friday in announcing his restoration of civil rights to 206,000 Virginians:

If we are going to build a stronger and more equal Virginia, we must break down barriers to participation in civic life for people who return to society seeking a second chance. We must welcome them back and offer the opportunity to build a better life by taking an active role in our democracy. I believe it is time to cast off Virginia’s troubling history of injustice and embrace an honest, clean process for restoring the rights of these men and women.

Former Governor Bob McDonnell thought much the same thing. In 2013, he proposed a series of bills meant to fast-track the restoration of voting rights for non-violent felons. The bill died in committee, but McDonnell recognized what governors like Tim Kaine had acknowledged before him: that the United States is a nation of laws and he did not have the authority to rewrite the law as he pleased.

Perhaps anticipating difficulty in convincing the Republican-dominated General Assembly to pass the law he wanted, McAuliffe has borrowed from the Barack Obama playbook — rewrite the law by executive decree.

Not surprisingly, his sweeping action is being negatively received. ” I am stunned at his broad and unprecedented view of executive power, which directly contradicts how past Governors have interpreted their clemency powers,” said House Speaker William J. Howell, “and I am stunned at his willingness to restore the rights of the most heinous criminals without batting an eye.” He continued:

There are significant constitutional and legal questions regarding the Governor’s authority to take such drastic action.  No Governor in the history of Virginia has accepted such a sweeping view of executive power.  A.E. Dick Howard notes in his commentaries that Governors have considered the “restoration of civil disabilities on an individual basis.”  The Supreme Court has acknowledged the Governor’s authority on the restoration of rights, but only in the context of requests made by individuals.  The Court does not appear to have ever contemplated the view taken by the Governor.  Most recently, in 2010, counsel to Governor Tim Kaine said ‘a blanket order restoring the voting rights of everyone would be a rewrite of the law rather than a contemplated use of the executive clemency powers.’

We’re not talking about technicalities here. An important policy question is whether restoration should extend to all felons regardless of their crimes, such as murder, rape, child rape, and kidnapping. Any policy, suggested Howell, “should take into account the nature of the crimes committed, whether they have paid back their victims and the court system, and their willingness to serve as productive members of society.”

Another question is how to implement the law. Writing to the American Civil Liberties Union of Virginia in 2010, Mark Rubin, counselor to Kaine, warned of several practical problems that McAuliffe will be sure to encounter as he tries to implement his edict:

Neither the information about voting registration concerning whether a felon has completed his sentence are completely available in centralized state records as they are in other states you cited as models. For example, information about whether a felon has complied with court orders including the payment of restitution to the crime victim or whether the individual has successfully met the terms of probation or parole supervision is only available in local court records. Without having this information available in centralized data bases, a blanket restoration of rights for those who have completed their sentences would place an unprecedented burden on local registrars to determine whether a felon is actually qualified to register. It could also lead to significant confusion in the election process with disputes about an individual’s voting status. The risk of undermining the integrity of the election process is not one the Governor is willing to take as he leaves office.

Kaine said individual felons should be encouraged to petition to have their rights restored, and the law should be changed to see to it that lifelong voting disenfranchisement is not an automatic consequence of felony conviction. But the governor could not unilaterally change the law himself. “The Governor,” wrote Rubin, “will be glad to continue to work … to ultimately persuade the General Assembly that this distinction is one to erase.”

Remarkably, in his announcement Friday, McAuliffe provided no legal justification whatsoever for his action — not even a fig leaf of a justification — nor did he refer to any bills he failed to get bills through the legislature as justification for conducting an end run around the General Assembly. His action looks like a raw power grab times designed to infuriate Republicans and mobilize the African-American vote in November.

Bacon’s bottom line: I defended McAuliffe when legislators tried to pack the GoVirginia board with their own appointees, an unjustified legislative intrusion into executive authority. (See, “Here, Piggy, Piggy!”) Now it’s time to call McAuliffe on the reverse — an usurpation of legislative power. I’m not sure what happens from here. Presumably, lawsuits will be filed. Perhaps the General Assembly will take some official action. One way or the other, McAuliffe needs to be reigned in.