Category Archives: Courts and law

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.

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.

— JAB

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.

— JAB