Category Archives: Courts and law

Uber and Lyft Are Wonderful, but Not that Wonderful


Click for larger image

It makes a great story: The Department of Motor Vehicles registered some 86,000 drivers under new “transportation service company” rules in 2015, Virginians are availing themselves of Uber and Lyft ridership services in record numbers, and the rate of alcohol-related automobile crashes declined markedly last year. It stands to reason, more Virginians are taking rides with Uber and Lyft instead of driving under the influence.

“While it may be too soon to say definitively that the availability of Uber and Lyft in Virginia played a major role in that, there appears to be a causal connection,” said DMV Commissioner Richard D. Holcomb in a statement reported by the Richmond Times-Dispatch.

As regular Bacon’s Rebellion readers know, I’m a big fan of Uber and Lyft. They are spearheading the greatest transportation revolution since the invention of the automobile. But let’s not get carried away. It is too soon to credit the transportation service companies with playing a “major” role in reducing drunk driving.

The chart above is taken from DMV data, with provisional 2015 numbers plugged in. It shows clearly that the steep decline in alcohol-related accidents started in 2013, two years before the surge in Uber-Lyft activity. My working hypothesis is that Virginia courts and police intensified their crackdown of drunk driving around that time (as well they should have, given the soaring numbers before then). It’s fantastic that Uber and Lyft give late-night revelers a convenient alternative to driving while intoxicated, and I’m sure they helped in 2015. But I suspect that the bulk of the credit goes to the courts and police.


The New Virginia Way

Virginia Beach Mayor Will Sessoms

Virginia Beach Mayor Will Sessoms

In the cause of chronicling the endless pageantry of corruption and abuse of power in Virginia, we turn today to an article in the Virginian Pilot:

[Virginia Beach] Mayor Will Sessoms pleaded no contest Monday to a single misdemeanor charge of violating the state’s Conflict of Interest Act. The remaining four charges against him were dropped as part of a plea agreement with a special prosecutor.

The deal included prosecutor Mike Doucette’s recommendation that the mayor not be removed from office and that Sessoms make a donation of $1,000 to the Virginia Coalition for Open Government. A $500 fine – the maximum penalty for the Class 3 misdemeanor – was suspended. …

Doucette said he recommended that the mayor not be removed from office because he didn’t believe the circumstances called for it.

The no-contest plea stemmed from a 2011 incident in which Sessoms voted for a proposal by Madison Landing LLC to rezone a site to build 14 condominiums in Virginia Beach. While the request was unanimously approved, Sessoms cast his vote without disclosing he had served as trustee on two loans obtained by Madison Landing in the months before the vote.

For a recap of Sessoms’ conflict-of-interest embroglios, click here.

Bacon’s bottom line: Once upon a time, shady politics used to be the province of big-city and rural-courthouse political machines. But suburban skullduggery has been on the rise ever since big-time real estate development raised the stakes in Virginia’s fast-growth counties. There is huge money in real estate development, and a thicket of laws, regulations and subsidies (in the form of transportation projects that create value for newly developed land) combined with aggressive NIMBYism creates incentives for developers and their political allies to take short cuts. It’s usually difficult to spot the conflicts of interest because so many real estate entities are privately held partnerships with minimal requirements for ownership disclosure.

We don’t need more laws and penalties, but Virginia could use more transparency. One good place to start would be to require real estate partnerships to publicly file ownership interests.

Commissioner Questions Constitutionality of Electricity Rate Freeze

SCC commissioners Christie, Dmitri and Jagdmann

SCC commissioners Christie, Dimitri and Jagdmann

by James A. Bacon

The Virginia state Constitution clearly delegates to the State Corporation Commission the power to set electric rates. States Article IX, Section 2: “Subject to such criteria and other requirements as may be prescribed by law, the Commission shall have the power and be charged with the duty of regulating the rates, charges and services … [of] electric companies.”

But legislation enacted in the 2015 session of the General Assembly, with the McAuliffe administration and Republican legislators signing on, froze base electric rates from from mid-2015 through 2022. (Base rates comprise roughly half the electric bill; fuel adjustments and major capital expenditures are not included.)

In effect, the legislature is setting rates, argues James C. Dimitri, one of the SCC’s three commissioners, and the act of freezing the base rates exceeds the General Assembly’s constitutional authority. While neither Dimitri nor the other two commissioners — Mark C. Christie and Judith Williams Jagdmann — spoke out publicly against the legislative deal at the time, Dimitri broke ranks and wrote a dissent in a November SCC ruling directing Dominion to refund $19.7 million to customers.

Under Senate Bill 1349, wrote Dimitri:

Major categories of rising costs can be passed onto customers, but lower costs or savings cannot. That is, for virtually any significant infrastructure or related costs (such as new power plants, demand-side management investment, or transmission lines), separate rate increases are mandated through rider provisions … which effectively guarantee recovery of those costs to the utility, plus a profit and, in some cases, a rate-of-return bonus. Conversely, Senate Bill 1349 fixes base rates (and any excess revenues currently built therein) at existing levels; base rates cannot be lowered by the Commission.

Dimitri’s dissent “revives the debate over Dominion’s exercise in power politics,” wrote Jeff Schapiro, who broke the story in Sunday’s Richmond Times-Dispatch. And it conceivably could propel the issue to the Virginia Supreme Court.

Schapiro quoted the Virginia Committee for Fair Utility Rates in a subsequent SCC pleading: “The constitutional issue raised by the dissent, moreover, has not been addressed by any participant — not by staff, or by any respondent — in this proceeding.”

Dominion justified the rate freeze as a way to ensure rate stability for consumers during a period of tremendous uncertainty about the impact of the Environmental Protection Agency’s Clean Power Plan on Virginia. Last year, SCC staff had estimated that the plan, which would force the shut-down of several coal-fired generators in order to reduce carbon dioxide emissions, could raise electric rates by as much as 20%, although environmentalists suggested that the impact would be much lower.

“Dominion strongly disagrees with any suggestion that the law is unconstitutional,” said spokesman David Botkins. “The SCC order rejecting a request for rehearing on the issue speaks for itself, as does the plain language of the law.”

Bacon’s bottom line: Seems like the operative words in the Constitution are, “Subject to such criteria and other requirements as may be prescribed by law.” In other words, does the Constitution give the General Assembly the authority to set rates when it wants? I’m not a lawyer. I don’t know.

Blankenship Convicted

Bacon’s Rebellion readers will remember that former long-time contributor Peter Galuszka devoted much of his time and energy to chronicling the activities of former coal mogul Donald L. Blankenship. Although Blankenship was better known in West Virginia where he lived and worked, he had a Virginia connection as CEO for many years of Richmond-headquartered Massey Energy. Blankenship made national headlines in 2010 when the Upper Big Branch mine in West Virginia erupted in an explosion that killed 29 miners.

After a trial yesterday in U.S. District Court in Charleston, W.Va., Blankenship, whom Peter colorfully describes as the “Dark Lord of the Coalfields,” was found guilty of a misdemeanor for conspiring to evade federal mine safety laws. He was acquitted on two counts of making false statements.

You can read Peter’s take on the trial in Slate.

Also, check out the video excerpt above from “Blood on the Mountain,” a documentary about the Upper Big Branch disaster. Peter, author of “Thunder on the Mountain: Death at Massey and the Dirty Secrets Behind Big Coal,” is interviewed around the 3:30 minute mark.


Speaking of Gay Rights…

gay_marriageLike a lot of other Americans, I have been slow to embrace the right of gays to marry. That’s because I respect the sanctity of an institution — marriage as the union between a man and a woman — that evolved over thousands of years. But, ultimately, my libertarian instincts prevailed.

As a libertarian/conservative, I espouse a win-win view of human rights. I don’t think, for example, that there is a fundamental human right to education or health care. Those so-called “rights” are derived, or subsidiary, rights. Financing one person’s “right” to health care can be achieved only by taking someone else’s property, thus harming that person. That’s not to say that society shouldn’t provide health care to all, but universal access to health care is something to be bestowed through legislation, not as a fundamental right.

What is a fundamental right? The right to vote is fundamental. Giving John the right to vote does not deprive Mary of the right to vote. Giving John the right of free speech does not deprive Mary of the right to free speech. Giving John the right to a trial by jury does not deprive Mary of the right to a trial by jury. Giving all citizens equal treatment under the law is a fundamental right.

By the same logic, giving Heather’s mommies the right to be married, along with all the privileges and appurtenances permitted under the law, does not deprive John and Mary of the right to marry.  So, while my heart tells me to support the traditional idea of marriage (not because I’m anti-gay, but because I’m pro-traditional marriage), reason tells me to support gay marriage. In this particular matter, I follow my head over my heart.


Federal Judge OKs Pipeline Surveys

pipelineby James A. Bacon

A federal judge has dismissed a lawsuit filed by landowners seeking to block the Atlantic Coast Pipeline (ACP) from surveying their land for the purpose of building a pipeline.

Three landowners in the path of the proposed 550-mile project had challenged the constitutionality of a state law permitting the pipeline to survey their lands, as long as it abode by certain formalities of notification. After filing the suite, ACP altered the proposed route to bypass the properties of the three plaintiffs.

“The court concludes that the plaintiffs’ facial challenges to the statute fail because the statute does not deprive a landowner of a constitutionally protected property right,” wrote Elizabeth K. Dillon, with the U.S. District Court in Roanoke. Additionally, Dillon ruled, the challenges fail because they are not “ripe,” that is, they are abstract and hypothetical now that ACP has announced that it no longer intends to survey their property. The plaintiffs “face no immediate threat of injury.”

The ruling removes another legal obstacle to surveying and ultimately constructing the pipeline, which its owners, including managing partner Dominion, say will help meet the growing demand for natural gas in Virginia and North Carolina as electric utilities substitute natural gas for coal. In theory the plaintiffs can appeal to the U.S. Supreme Court, although it is not clear if they intend to do so.

In an email response, Charlotte Rea, one of the plaintiffs and co-chair of the “All Pain No Gain” group opposing the pipeline, stated the following:

As you might expect, I am disappointed.  I don’t think our forefathers when they wrote the Constitution expected its interpretation to allow for private investor owned corporations to violate the property rights of private citizens.  The Constitution only allows for private property to be taken if it is for proven public need and just compensation is provided the landowner.  Surveys by private corporations on private property should not be allowed.  There has been no determination made that the Atlantic Coast Pipeline project is for the public good.  Until that determination is made, private property owners should not have to cede any property rights.

In a press release, Dominion stated:

From the beginning, we have always believed that the Virginia law is consistent with the U.S. Constitution and allows surveys with proper notification and landowner protections. Yesterday’s ruling affirmed that belief and our actions.

ACP has followed the procedure as laid out in the Virginia law to survey the best route with the least environmental impact. The Virginia law allows survey only as necessary to meet regulatory requirements.

The plaintiff’s attorneys argued that the Takings clause of the Constitution protects property rights, specifically the right to exclude — to forbid others from trespassing. However, wrote Dillon, common law has long recognized that the right to exclude is not absolute. “Courts also have long recognized the common-law privilege to enter private property for survey purposes prior to exercising eminent domain authority.”

Consistent with the common law, Virginia has long permitted governmental entities to conduct surveys on private property before exercising eminent domain authority. For instance, Dillon wrote, the Code of 1819 gave a turnpike company “full power and authority to enter upon all lands and tenements through which they may judge it necessary to make said road.”

Foes have questioned whether the Atlantic Coast Pipeline provides a public purpose, given that it is one of four pipelines proposed to run through Virginia and that pipelines are being built to serve New York and nearby markets, freeing up capacity by the existing Transco mega-pipeline serving Virginia.

However, Dillon wrote:

In the Natural Gas Act, Congress ‘declared that the business of transporting and selling natural gas for ultimate distribution to the public is affected with a public interest.’ …  [The Virginia survey law] allows a natural gas company to gather … information required for the certificate by giving it the ability to enter property and conduct a minimally invasive survey. The statute thus facilitates the ‘transportat[ion] and selling’ of natural gas, and thereby serves a public purpose.”

Breaking the Cycle of Debt and Suspended Licenses

Joe Herbin, driving worry-free and working as a forklift operator at Frito-Lay.

Joe Herbin, driving legally and working as a forklift operator at Frito-Lay.

by James A. Bacon

Joe Herbin has always been a hard worker. When he was 15 years old, he’d accumulated the $1,200 it took to buy an old Cadillac. The fact that he didn’t have a driver’s license — or was too young even to get one — wasn’t a deterrent. He installed a bad-ass sound system and drove around town like the king of the world for about a week, then had an accident in a gas station. The policeman gave him tickets for about four different violations — the first of many to come.

Herbin kept driving, though, and he kept racking up tickets in and around the City of Richmond, often while driving to or from work at Wal-Mart, Target or his cousin’s music CD shop. He prayed every day that he wouldn’t get stopped and slapped with another fine, penalty or gig in jail. He was around 22 years old when he was driving his pregnant girl friend to the hospital, when he got stopped again. This time someone finally told him about the Drive to Work program, a not-for-profit group dedicated to helping people with suspended licenses restore their driving privileges so they can function as productive members of society.

When Drive to Work staff tallied up all the fines, penalties and back interest, they found that Herbin owed a total of $7,500 to courts in five jurisdictions, each with its own set of procedures for collecting the money. By his own admission, Herbin is a “careless person,” lacking the temperament to make payments to so many court clerks on a regular basis. Drive to Work created a plan whereby he made a single monthly payment of $357 to the non-profit, and staff made sure each court clerk received the money on time. Drive to Work also negotiated a deal allowing Herbin to receive a restricted driver’s license allowing him to drive between home and work, home and church, and home and daycare.

Today, Herbin has worked his fines down to under $1,000 and his monthly payments to less than $50. He now drives a forklift for Frito-Lay making $17 an hour, as well as a part-time job for extra cash, and he lives in a committed relationship with the mother of his three children.

Herbin’s story is surprisingly common in Virginia. A recent study conducted of 606 of Drive to Work’s clients found that fines, penalties and interest ranged as high as $33,000, with average debt about $4,800. Clients owned money to an average of 3.6 different courts.

At an awards and recognition banquet Monday, Drive to Work President O. Randolph Rollins described the predicament of another client. Of the $8,000 in obligations he’d amassed, 35% consisted of unpaid fines, 45% of court penalties relating to hearing his case, and 20% interest.

The system creates a vicious cycle for poor and working class people who build up fines they cannot hope to repay, Rollins said. Many continue driving because they can’t get to work any other way, lose their license and lose their jobs. The situation is a Catch 22: Without work, they have no hope of generating earnings to repay the fines. Indeed, the inability to repay fines accounts for 37% of all suspended licenses in Virginia, Rollins said  — affecting nearly 200,000 people across the state.

Recognition of the need to restore drivers licenses became a political issue during the McDonnell administration and with bipartisan support has continued during the McAuliffe administration. The Department of Corrections has implemented a program to help felons prepare while still in prison to get their licenses when they re-enter society. And Del. Manoli Loupassi, R-Richmond, submitted a bill in the 2015 session to study the use of drivers license suspensions as a collection method for unpaid court costs. Although that bill failed because of a technicality, said Rollins, there strong support for passing it next year.

The initiative to restore driving privileges is part of a larger movement to reintegrate felons into society upon their release. The days of giving an offender $20 and bus ticket home are long over. Virginia has one of the best track records in the country for recidivism, said Harold W. Clark, director of the Department of Corrections. Second only to the state of Oklahoma, the recidivism rate is just under 23%. The rate ranges as high as 60% in other states.

While the biggest risk factors for recidivism include antisocial personality, antisocial associations and dysfunctional family, the ability to find employment is one of the “top eight,” Clark said. “Not having a driver’s license is a serious problem. People without driving privileges are effectively excluded from many jobs.”

Many offenders don’t know why their license was suspended or how to get it back, said Clark. A program like Drive to Work helps them navigate the bureaucratic maze, create plans for repaying fines and get offenders a license, even if just a restricted one, that allows them to seek employment.