Category Archives: Courts and law

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.

Clean Power Plan Stalled, Green Energy Still Viable

In a five-to-four vote, the U.S. Supreme Court derailed, at least temporarily, President Obama's Clean Power Plan. Regulatory uncertainty ensues.

In a five-to-four vote, the U.S. Supreme Court derailed, at least temporarily, President Obama’s Clean Power Plan. Regulatory uncertainty ensues.

by James A. Bacon

The U.S. Supreme Court has halted implementation of the Clean Power Plan until challenges to its constitutionality can be resolved, creating uncertainty at the state level, including here in Virginia, on how to proceed.

The high court gave no explanation for its stay, but foes of the plan, which would compel electric power companies to make major cuts to CO2 emissions by 2030, argued that it would “force massive … changes in terms of state policies and resources, power plant shutdowns, and investments in wind and solar power,” which could not be reversed if it were later declared unconstitutional.

As a practical matter, the decision will delay implementation of the plan until the next administration. A federal appeals court is not expected to hear the case until June. If the case were appealed again, the Supreme Court likely could not render a decision until 2017, reports the Washington Post. While a Democratic president probably would press on with the plan, a Republican president likely would reverse it even if the Supreme Court ruled it to be constitutional.

The stay could create a dilemma for the McAuliffe administration, which supports the plan and has been working to implement it. Under the Clean Power Plan, Virginia’s Department of Environmental Quality is required to submit a state plan by June 2016, with the possibility of an extension until June 2017, or June 2018 if it adopts a multistate plan.

The response here in Virginia is mixed.

“Today’s unfortunate decision by the Supreme Court hits pause on the country’s strongest action to lower harmful carbon pollution, but it won’t stop the massive shift to cleaner, cheaper energy already underway in the Southeast and across the nation,” says Frank Rambo, senior Attorney and clean energy leader for the Southern Environmental Law Center. “The goals of the Clean Power Plan reflect this energy shift: we’re embracing cleaner energy options that would be happening with or without this plan. ”

“This comes as no real surprise,” says Dominion Virginia Power spokesman David Botkins. “It continues to be a legal and policy cloud of uncertainty for the country and the energy industry.” But Dominion will continue to move forward with the Clean Power Plan. “We will work constructively with the Commonwealth and other stakeholders on a compliance plan that has our customers as the first priority, ensures reliability, and maintains a diverse mix of electric generation.  We continue to prepare for implementation (of CPP) unless we are notified that Virginia is delaying or halting their development process.”

What does this mean for green energy in Virginia?

While a stay of the Clean Power Plan will slow the transition of Virginia’s electric grid to cleaner energy sources, it will not halt it. Dominion still is planning to shut down two aging, coal-fired units at its Yorktown Power Station, and its long-term investment plan calls for more gas-fired electric power, which emits less CO2 per unit of electricity than coal, and more solar. Indeed, Dominion announced plans two days ago to partner in a 20 megawatt solar facility in Chesapeake that will produce the energy equivalent needed to power 5,000 homes. (Substantial reliance on offshore wind energy still seems to be a distant prospect.)

The economics of wind and solar continue to improve, and many energy consumers — ranging from Amazon Web Services to the Norfolk Naval Station here in Virginia — are willing to pay a premium for renewable energy. Meanwhile, expansion of the electric transmission grid may make it realistic for Virginia power companies to import cheap wind-powered electricity from the Midwest.

Update: I have updated the Dominion quote to reflect company’s assertion that it will continue to move forward with the Clean Power Plan.

Update: A statement from Governor Terry McAuliffe: “Over the last several months my administration has been working with a diverse group of Virginia stakeholders that includes members of the environmental, business, and energy communities to develop a strong, viable path forward to comply with the Clean Power Plan. As this court case moves forward, we will stay on course and continue to develop the elements for a Virginia plan to reduce carbon emissions and stimulate our clean energy economy.”

A quote from John Shepelwich, spokesman for Appalachian Power Co.:  “The Supreme Court’s decision confirms that the legal justification for the Clean Power Plan should be examined by the courts before scarce state and private resources are used to develop state plans. The accelerated schedule for briefing and argument in the lower court assures that the case will be heard promptly.”

Uber and Lyft Are Wonderful, but Not that Wonderful

car_crashes

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.

— JAB

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.