Category Archives: Courts and law

Herring Makes the Right Call

Mark Herring

Virginia Attorney General Mark Herring supports abortion rights. He’s sympathetic to the intent behind a federal lawsuit filed by Planned Parenthood challenging states restrictions on abortion. But he has filed a motion to dismiss the lawsuit.

“Many of the challenged laws are decades old, some of the challenged regulations are under active review, and plaintiffs make power arguments that certain other requirements warrant reconsideration by the Virginia General Assembly,” Herring’s motion states. “But a federal courtroom is not the proper venue for debating the wisdom of these policies.” (See the Washington Post coverage here.)

Kudos to Herring. Given his over-reach in other matters, I never expected such restraint. But he is absolutely right. The place to reform Virginia’s abortion laws is in the Virginia legislature, not in the federal courts. Herring deserves credit for taking an action that cannot be popular with his political base.

“Pterodactyl Tim” Kaine Watch: Lying about SCOTUS Nominee

The Age of Innocence.  Tim Kaine was born in St. Paul, Minnesota, but grew up in Overland Park, Kansas. All that folksy Midwestern-ness seemed to imbue Kaine with a decency and honesty that people noticed. One imagines a young man so innocent and naive that he would sneak behind the barn and do nothing. Kaine even interrupted his studies at Harvard Law to help Jesuit missionaries in Honduras run the prophetically named El Progresso School.

Once upon a time in Virginia. Tim Kaine entered politics the old fashioned way – he married into it. While at Harvard, Kaine met his future wife, the daughter of former Virginia governor Linwood Holton. From there Kaine’s political career proceeded rapidly. 1994 – Richmond City Council, 1998 – Mayor of Richmond, 2001 – Lieutenant Governor of Virginia, 2005 – Governor of Virginia. Through all of those Virginia-based positions Kaine was seen as diligent and likable, even by those who disagreed with his leftist views.

Creature from the black lagoon. Kaine’s journey to the dark side began when he became the chairman of the Democratic National Committee in 2009. He was no longer operating within the corrupt-but-friendly confines of the bourbon-and-branch water set in Richmond. Now he was dealing with the mentally deranged, venomous reptiles-from-hell in the D.C. swamp. He went from Timmy the Sweet to the Lizard of Oz. His election as U.S. Senator from Virginia in 2013 may have pulled him from the deepest cesspool of Washington’s primordial ooze but he was about to make a move that would cement his position as a central character from the original Star Wars cantina scene.

When you lie down with dogs … …you get up with fleas. In the case of being Hillary Clinton’s running mate – bionic, radioactive killer fleas that infect their host dog with an overwhelming addiction to misrepresentation, deceit and outright lying. Pterodactyl Timmy was hatched in the nest of the high-flying reptiles of the Clinton crime family.

No such Gorsuch. After conversion to the reptilian class Kaine unleashed one of his most outlandish lies. Aiming his beady lizard gaze at then-Supreme Court nominee Neil Gorsuch Kaine claimed on Twitter that,

He has cavalierly referred to contraceptive use – a constitutionally protected right for 50+ yrs – as ‘the wrongdoing of others.’

Kaine’s quote refers to an opinion then Judge Gorsuch wrote in the famous (or infamous) Hobby Lobby case. He was trying to describe how the owners of the Hobby Lobby company felt about contraceptives. In no way, shape or form could anybody have interpreted Gorsuch’s words as being his own opinion of contraceptives. You can find Judge Gorsuch’s opinion here. You can read Mark Hemmingway’s take on the incident here. In true swamp-dweller fashion Kaine hoped that by telling the big lie he could perhaps sideswipe Neil Gorsuch’s nomination. In this case it turned out Kaine’s dishonesty was exceeded only by his incompetence. Neil Gorsuch is now a member of the U.S. Supreme Court.

General orders. Kaine could have simply apologized, perhaps claiming that Twitter was a poorly chosen vehicle for expressing that opinion. But he didn’t. Instead, he wrote a six-page explanation with a 1,000 word summary of how his lie was actually unvarnished truth. Kaine could have saved himself some time by studying General George Washington. It was he who said, “It is better to offer no excuse than a bad one.” Unfortunately, Pterodactyl Timmy couldn’t find that quote in his bag of carpet. His bad excuse fell on deaf ears. Ramesh Ponnuru over at Bloomberg was having none of it.

Here we go again. On Monday President Trump will put forth his nominee to fill the Supreme Court vacancy caused by Justice Anthony Kennedy’s retirement. Will the high-flying reptile of the D.C. swamp (Pterodactyl Timmy) be able to refrain from further lies about this nominee? Let’s hope so. The last three former governors of Virginia have been Pterodactyl Timmy, Rolex Bob and Terry McCronyCapitalism (whatever happened to that golf cart company, anyway?).  We’re getting a bad reputation.

— Don Rippert

Tennessee License Suspension For Unpaid Debts Ruled Unconstitutionally Unfair to Indigent

Image credit: novacriminalattorney.com.

A federal judge in the Middle District of Tennessee has ruled that Tennessee’s practice of suspending a driving license to compel the collection of delinquent court debts is unconstitutionally unfair to poor people.  She has ordered Tennessee to stop and to start restoring the licenses of people who simply could not pay, but an appeal is likely.

Similar cases are pending elsewhere including one in Virginia which was dismissed but is going back on remand. More than 40 states use the method in some form.  I have not yet been able to find the judge’s written opinion on line, but back in March she issued a memorandum laying out her likely reasoning for a summary judgement in favor of the debtors.

“The fact that it is difficult to collect debts from very poor debtors is a reality faced by people and entities, both public and private, in a wide array of circumstances; indeed, it is a problem as old, presumably, as debt itself,” she wrote.

Also: “Tennessee’s system has the actual effect of imposing a harsher punishment on indigent defendants than on non-indigent defendants based solely on their economic circumstances. A non-indigent defendant has a choice: pay or lose his license. Drivers like (plaintiffs) Thomas and Hixson, they argue, have no such choice. The plaintiffs challenge this differential treatment as unconstitutional pursuant to 42 U.S.C. § 1983.”

The plaintiffs also argued that license suspension is not an option for the collection of private debts, only court debts, 1s further evidence it was not fair.

My introduction to this issue came as the lobbyist for several Virginia law firms doing collection work for various local courts. About five years ago, in budget language that simply appeared in a final state budget document, an additional 17% fee was tacked on to all accounts sent out for collection. The attorney who initially contacted me wanted to know where that anonymous proposal came from, in part because he knew it made it harder for debtors to pay up.

In response to the pending Virginia case, the Virginia Supreme Court directed local courts to allow payment plans that took the defendant’s ability to pay into account. It is not clear whether that was the case in Tennessee or if that is a solution it may propose. It is also not clear yet if that has allowed more Virginians to get their licenses back. It is estimated that one in six Virginians have lost their license over unpaid fines and fees (which do not have to be driving-related at all).

The harsh reality is that state and local governments love this revenue. More than $470 million in fines and fees were assessed in Virginia’s courts in 2017, and more than $200 million were judged delinquent. As high as the basic fines have become, the processing fees and interest magnify the problem in delinquent cases. An annual state report tracks the collection of delinquent fines by the clerks, local commonwealth’s attorneys, local treasurers and a small group of private collectors. It does not appear that collections dropped off in 2017 because of the payment plans.

The even harsher reality is the opponents of this system are right that it ultimately is counterproductive to expect somebody who cannot afford to pay to dig themselves out of debt without basic transportation, which for most means a car. The end of this approach may be in sight, although the judge in her initial memorandum didn’t believe the system was unfair in the case of people who did have the ability to pay. Who decides what, and who is poor enough to be protected from that collection method? It will probably just go away.

Does Anyone Care about U.S. Children?

Youth for Tomorrow facility, Prince William County

Over the weekend, U.S. Senator Tim Kaine visited the Youth for Tomorrow facility in Prince William County that has been housing undocumented-immigrant children for the past six years. The visit highlighted his call the previous day for the Trump administration “to assure us that every single one of the children they separated from their parents is quickly and safely returned to their families.”

Last week Governor Ralph Northam ordered Virginia’s National Guard contingent serving on the U.S. Southwest border to come home. He ordered the Guard to withdraw four soldiers and one helicopter from Arizona, he said, “until the federal government ends its enforcement of a zero-tolerance policy that separates children from their parents.”

Now that they’ve made clear their antipathy to the policies of the Trump administration, perhaps Kaine and Northam can turn their attention to a near-identical problem that has festered here in Virginia for decades: the separation of children from their parents in the administration of criminal justice in the U.S.

While the separation of children and parents at the border has dominated national news coverage for a couple of weeks now, the issue of child-parent separation inside the U.S. had barely warranted any attention at all. Ever. A rare exception was a USA Today article published in 2014, “Who’s Watching the Kids?

The Justice Department and police officials across the nation are directing their agencies to deal with thousands of children who are left behind following the arrests of parents, from surprise raids at family homes to roadside traffic stops.

Few law enforcement agencies have policies that specifically address the continuing care of children after such arrests, despite an estimated 1.7 million children who have at least one parent in prison, according to the Bureau of Justice Statistics. The number of children jumps to about 2.7 million when parents detained in local jails are included. …

Justice and the International Association of Chiefs of Police, the nation’s largest organization of police officials, are beginning to roll out guidelines to agencies across the country. It is an unusual attempt to shield children — often forgotten in the chaotic moments before and after arrests — from unnecessary “trauma” related to their parents’ detention.

I’m trying to understand the logic of those who oppose the separation of children and parents. Does the objection extend to all children separated from parents who enter the criminal justice system? Or does the insistence upon non-separation apply only to those who are trying to enter the United States?

When Kaine said, “every single one of the children they separated from their parents [should be] quickly and safely returned to their families,” does his logic apply to U.S. families? What would such a policy look like? Should children be admitted into jails and prisons to reside with their mothers? Or should mothers be released from jails and prisons to be with their children? Did Kaine act to prevent such policies when he was mayor of Richmond? If child-parent separation is such a moral travesty, why didn’t he?

When Northam demands that the federal government “end its enforcement of a zero-tolerance policy that separates children from their parents,” how would he describe state policy toward the separation of children from Virginia parents who are arrested and put into jail? Do we have a “zero tolerance” policy in Virginia, or are there instances in which parents are released from incarceration on the grounds of humanity? Does Northam even know what the policies and practices prevail in Virginia?

If Kaine believes that illegal-immigrant children should not be separated from their parents entering the criminal justice system, is he prepared to submit legislation to prevent the same from happening to U.S. children? If not, why not?Does he think U.S.-born children are less deserving of compassion?

If Northam decries the Trump administration’s “zero tolerance” toward the separation of children, is he prepared to act against Virginia localities that also might have zero-tolerance policies? Does his heart not go out to Virginia children deprived of a mother’s embrace?

Young children are always innocent victims in these things, and they always deserve our compassion. But maybe, just maybe, the administration of justice in the real world gets really complicated and messy because the issues are inherently difficult. People in the law-enforcement community have been wrestling with these issues for years. I’d take Kaine and Northam a lot more seriously if they’d spoken up before now and if they’d addressed the practices in their own back yard.

Use the Tenant’s Money to Cure the Tenant’s Rent Shortfall

by Martin Wegbreit

Recently, Virginia drew national attention for reportedly high eviction rates, especially in central Virginia and Hampton Roads. This has inspired many efforts to address the issue. These include a Campaign to Reduce Evictions, an evictions workgroup at the Virginia Housing Commission, and a possible Eviction Diversion Program in Richmond and elsewhere. These initiatives may result in changes that decrease the number of evictions and benefit both tenants and landlords.

One partial solution requires no change at all: Use the tenant’s money to cure the tenant’s rent shortfall. The Sunday April 8, 2018, New York Times article about evictions reported that the median amount owed in a non-payment of rent eviction in Richmond was $686. By contrast, a Virginia landlord may hold a security deposit of up to two months’ rent. With an average monthly rent in Richmond of $1,269, a typical landlord may hold around $2,000 of the tenant’s money.

And the security deposit is the tenant’s money. It is not the landlord’s money. The landlord is a fiduciary, or a trustee, holding the tenant’s money and using it only for a permissible purpose.

In most cases, the tenant’s security deposit is not an issue until the tenant has moved and been gone for 45 days. During that time, the landlord either must refund the security deposit or provide a written accounting for how the funds were used, or some combination of the two.

A Virginia landlord also may use the security deposit during the tenancy for any permissible purpose. This includes payment of rent owed. The law, part of Code of Virginia §55-248.15:1, is clear: “The landlord shall notify the tenant in writing of any deductions provided by this subsection to be made from the tenant’s security deposit during the course of the tenancy. Such notification shall be made within 30 days of the date of the determination of the deduction and shall itemize the reasons.”

In 38 years of legal aid practice in Virginia, I never have seen or heard of a landlord deducting a rent shortfall from the security deposit, and seeking a repayment plan to replenish the funds, rather than undergo the time and expense of filing a non-payment of rent eviction. Unquestionably, tenants who intentionally or habitually fail to pay their rent deserve an eviction lawsuit, a judgment of possession, and eviction by the sheriff. But true hardship cases ought to be treated more humanely. Use the tenant’s money to cure the tenant’s rent shortfall.

A tenant’s non-payment of rent should not be subject to a “one size fits all” solution of an eviction lawsuit. Landlords have in their own hands a partial solution to lower eviction rates. Treat tenants like customers, not like a commodity to be disposed of whenever a problem arises.

Martin Wegbreit is director of litigation for the Virginia Legal Aid Society.

Supremes Reject “Compactness” Argument against 2011 Redistricting


Using the courts to reform Virginia’s politicians-pick-their-voters redistricting procedures got harder than ever, thanks to last week’s ruling by the Virginia Supreme Court.

One Virginia 2021, a nonpartisan redistricting reform group, had challenged the 2011 gerrymandering of five House of Delegates districts and six Senate districts on the grounds that they violated the state constitutional requirement that legislative districts must be “compact.” But the Supremes, concluding that reasonable, objective people can reach different conclusions about what constituts compactness, ruled against the challengers.

What Virginia house districts would look like if drawn by Brian Olson to be compact.

“We learn from today’s opinion that there’s a great deal of science in the redistricting process,” wrote Steve Emmert, publisher of the Virginia Appellate News & Analysis blog, immediately after the ruling, “but it’s a social science, not something as readily definable as physics. Both the challengers and the legislature … adduced expert testimony exploring the issue by various means of calculating compactness.”

The opinion written by Justice S. Bernard Goodwyn lays out the challengers’ argument in Rima Ford Vesilind versus the Virginia State Board of Elections as follows:

Article II… of the Constitution of Virginia … provides that legislative districts “shall be composed of contiguous and compact territory and shall be so constituted as to give, as nearly as is practicable, representation in proportion to the population of the district,” as well as federal requirements of “one person, one vote” and the Voting Rights Act. … The complaint asserts that “[w]hile the legislature may consider other rational public policy considerations, the mandates of the United States and Virginia Constitutions can never be subordinated to those considerations.”

The Challengers allege that the General Assembly “subordinated” the mandatory compactness requirements to other public policy considerations, and ignored compactness in favor of “nonconstitutional considerations,” such as “favor[ing] partisan interests” and “protect[in] particular incumbent[s],” “with the result that the Challenged Districts are not within any acceptable objective measures of compactness.”

During a three-day trial in March, Dr. Nicholas Mueller testified how he used software called Maptitude to draw an alternative district map to compare against the 2011 plan. He showed how it was possible to draw districts meeting the constitutional requirements while also refraining from splitting political subdivisions and refraining from pairing incumbents. Also, using the Reock, Polsby-Popper and Schwartsberg scores for measuring compactness, Dr. Michael McDonald showed how the districts enacted by the General Assembly degraded compactness scores by more than 50%.

However, wrote Goodwyn in his analysis of the testimony, “Compactness is a somewhat abstract concept.”

Determining compactness does not admit to a bright line approach in determining whether a legislative district is, in fact, compact. … Social scientists have developed at least 50 different methods of measuring compactness. The proliferation of measures does not provide clarity. It does exactly the opposite. In the social science community, there is no universal definition or consensus as to what constitutes the best measure for compact districts.

Furthermore, wrote Goodwyn:

Contrary to a core premise in Dr. McDonald’s test, the Constitution of Virginia does not require districts to be as compact as possible. [It] simply requires that districts “shall be … compact.” … As the Board observed, the compactness requirement is not based on the same type of objective comparative inquiry as the equal population requirement. …

Our Constitution speaks to the result of the redistricting process, and mandates that districts be compact in the end. It does not attempt to curtail the legislative process that creates the end result. Nor does it require that compactness be given priority over other considerations, much less establish a standard to determine whether the legislature gave proper priority to compactness.

While taking no issue with the Justice’s logic, blogger Emmert expressed his repugnance for the result. “I regard partisan redistricting as a form of blatant political corruption; as a cancer on our Republican form of government. The justices’ decision today means that we, the voters, are the surgeons who must remove this cancer. We can do so by telling our legislators that we insist upon it, and by voting for candidates who will pledge to commit the redistricting process to a nonpartisan group, as six states have already done.”

Visual Impacts and Transmission Lines

Will the Surry-Skiffes Creek transmission line look like this….

Last week the U.S District Court for the District of Columbia rejected a last-ditch appeal by the National Parks Conservation Association and allied groups to block  construction of the controversial high-voltage transmission line across the James River near Jamestown. Dominion Energy Virginia had embarked upon preliminary construction in February after winning a U.S. Army Corps of Engineers permit, and the ruling clears the utility to complete the project by the summer of 2019.

Apparently, a favorable ruling was not a foregone conclusion. At the preliminary injunction phase, wrote Judge Royce C. Lamberth, the plaintiffs made “a powerful argument on the merits” that the Corps had issued the permit improperly. However, he added, “now that the Court has dug into the administrative record and relevant case law it is evident that the Corps made a “fully informed and well-considered decision.”

Lamberth made clear that he was not saying that the Corps made the correct decision; rather, it met all relevant standards and criteria for issuing the permit. 

… or like this?

For those interested in the controversy, the guts of the ruling shed new light into aspects of the seemingly interminable Corps decision-making process.

Perhaps the most contentious issue was the visual impact of the 500 kV Surry-Skiffes Creek transmission line upon a relatively pristine stretch of the James River associated with Jamestown and the English settlement of Virginia. Early in the controversy Dominion prepared visualizations showing the transmission-line towers as barely visible on the horizon when viewed from Jamestown Island. Power line foes disputed the accuracy of the renderings.

The Corps studied the visual impact in detail, creating a 400-page visual effects assessment, entitled the Cultural Resources Effects Assessment (CREA). Employing various vantage points and line-of-sight analyses, expert consultant Truescape created photo simulations demonstrating how the river crossing would appear to the human eye.

After the Corps made the document public, opposition groups criticized the Truescape methodology, noting that the analysis failed to analyze how the project would impact a visitor traveling on the river in close proximity to where the power line would cross the Captain John Smith Chesapeake National Historical Trail. “In other words,” summarized Lamberth, “while the CREA’s visual analysis captured what the electrical line would look like from historical vantage points on land, it would not capture the impact to a visitor traveling by boat on the river. He continued:

In response, the PhotoSimulation Overview was updated in June 2016 to include nearly 80 pages of additional reference photographs and visual simulations depicting views from the river. … Moreover, the PhotoSimulation Overview was updated again in August 2016 to include additional simulations based on a second round of photographs taken from the river.

Moreover, from a process perspective, the Corps held discussions with [the National Park Service] regarding its its methodological concerns and received an NPS guidance document on how to evaluate visual impact assessments. … The Corps forwarded the document to Dominion, asking them to address whether the methods used were comparable and what the plan would be going forward. … Dominion demonstrated that the methodology used followed NPS guidance and provide[d] reliable simulations of how the Project would look. Upon considering the methodological concerns raised by NPS and reviewing Dominion’s updated analysis, the Corps concluded:

“Dominion’s simulations provided enough accuracy to sufficiently analyze effects to both historic properties and a visitor’s experience. … While there are various methods for predicting visual impact it is not likely that employing further methods will result in substantively different views or information.”

In the ruling Lamberth also alluded to the involvement of Secretary of the Interior Ryan Zinke in the controversy.

NPS sent a detailed letter in January 2017, in which it pointed to “fundamental flaws” with the decision-making process that “remain unresolved.” NPS specifically noted the flawed visual analysis. Although the Corps was not required to accept NPS’s critique, Lamberth wrote, senior staff met with Interior Department officials to discuss the comments.

In March 2017, the new Secretary of the Interior Zinkie (sic), who ultimately presides over NPS, stated that the information that had been provided by the Corps reflected “thoughtful and thorough consideration of the issues raised by my predecessor. …”

Secretary Zinkie’s letter effectively withdrew the Department of Interior’s previous stance that an [Environmental Impact Statement] was required. “As we all know, elections have consequences” and the Interior Department’s shift in position demonstrates to the Court that there is no longer active disagreement between the Interior Department and the Corps.”

As it happened, Lamberth agreed with the Corps that the visual impact would not be significant. Boaters traveling the James, he wrote, already are exposed to views of de-commissioned Navy ships comprising the Ghost Fleet, the water tower at Fort Eustis, the Surry nuclear power station, several large, modern houses on the shoreline, barges and other commercial vessels, and recreational boaters and water skiers from Kingsmill Resort.

“The Corps did enough,” concluded Lamberth. “It engaged in reasoned analysis, consulted experts, responded to criticisms of both its methodologies and conclusions, took a hard look at the potential impacts, and concluded that the impact of the Project would be ‘moderate at most.'”

Does Miles November Deserve a $6.5 Million Settlement?

Miles November before

In 2015 Miles Zachery-Cole November led Chesterfield County police on a high-speed chase, flipped his car, and resisted arrest, prompting a policeman to shoot him with a Taser. The jolt of electricity ignited gasoline that had spilled onto his body from the wreck, consuming him in flames. He suffered burns on 86% of his body and underwent 34 surgeries. November sued for $95 million. Yesterday, he settled with Chesterfield County for $6.5 million, roughly the cost of his medical bills, the Richmond Times-Dispatch reported.

Miles November after

The case is a fascinating one. Based on a review of 125 Taser incidents between 2012 to 2015, November’s attorneys argued that the Chesterfield police had engaged for years in systemic and unconstitutional misuse of the weapons, including use on handcuffed suspects, the mentally ill, and unarmed people on the ground surrounded by officers, and in retaliation. Chesterfield contended that the Tasing incident was justified.

Here are the background facts, extracted from the T-D article.

On Nov. 8, 2015, November led police on a pursuit that reached speeds of 120 miles per hour during which he lost control of his car, which flipped six times and landed on its roof, trapping him inside. Subsequent blood tests revealed that he had a blood alcohol level of 0.20%, or 2.5 times the legal limit for drivers.

Arriving on the scene, police smelled a strong odor of gasoline and observed fuel spilling from the car. Rather than wait for paramedics, they extracted him from the wreckage and pinned him to the ground. According to the complaint, November was startled when fire and medical trucks arrived with sirens and flashing lights. He tried to get up. The four officers surrounding him grabbed his arms and legs to keep him restrained. At one point during the struggle, he struck an officer in the face.

The altercation prompted officer Ryan Swope, who had been standing to the side, to intervene. Hearing yelling, he moved from the wreckage to the scene of the struggle. He then shouted “Taser, Taser, Taser!” The other officers stepped aside before he fired. The device’s two electrical probes struck November with a 50,000-volt current and ignited “flammable substances or vapors” on or around his body. Flames shot above the height of one of the nearby firetrucks. November burned for about 30 seconds before officers could extinguish the blaze.

In March 2017, a Chesterfield judge convicted November of felony assault for striking an officer, felony eluding of the police, drunken driving, and driving with a suspended license. He expressed sympathy for November’s burns and pain, but observed, “You were there because of what you did.” He also noted November’s arrest record, which included three prior assaults on police officers, two DUIs, grand theft, brandishing a firearm, carrying a concealed weapon, trespassing, and numerous traffic violations.

After reviewing the incident, Chesterfield police concluded that Swope and other officers fully complied with the police department’s use-of-force policy.

In the civil suit, November’s attorneys focused on the police’s use of Tasers as well as the fitness of Swope, the officer who fired on November. Swope, they alleged, was suffering from a post-traumatic stress disorder that produced symptoms of “defiant, impulsive, rash and hair-triggered behavior.” He had killed a suspect in a 2013 police shooting (that had been ruled justifiable), and was dismissed from the department seven months after the Tasering due to his association with an “outlaw motorcycle gang.”

Commercial insurance will cover $5 million of the settlement; the balance will come from a county self-insurance fund — in effect coming from taxpayers.

Bacon’s bottom line: November seems a pitiable case. In all likelihood, he will be permanently and hideously scarred and live a life of pain. The horrific outcome seems all out of proportion to his underlying crimes of driving while intoxicated, fleeing police, and resisting arrest. But, like the judge said, he brought the misfortune upon himself. Moreover, his actions during the incident were not isolated behaviors — they were consistent with previous offenses. He was a disaster waiting to happen.

Swope’s background strikes me as irrelevant to the case. The only germane question was whether the officer was justified in firing the Taser or not. One could argue that he should have been aware of the possibility that he might set November on fire. And one could counter that he had no reasonable way of knowing that, while gasoline was spilling from the car, it had somehow doused him while he was in the driver’s seat. What happened was a tragic and unpredictable confluence of events.

After his lawyers get their cut, November will receive a few million dollars. It would be interesting to know what he’ll do with that money. Will he repay the doctors and hospitals who provided his medical care? Somehow, I doubt it. Otherwise, why bother pursuing the civil suit? Maybe he’ll be able to cover the cost of future medical and nursing care. One way or the other — whether it’s through forking over additional health care dollars or re-stocking Chesterfield’s self-insurance fund — law-abiding citizens will end up paying for November’s recklessness. And that’s a tragedy all its own.

Oh, Not Him. He’s A Lobbyist!

“Will Republicans Put a Health Insurance Industry Lobbyist on the Powerful Virginia State Corporation Commission?” screams the headline on the website which to me epitomizes the intellectual depth of that particular political party.

It is responding of course to news that Richmond attorney and lobbyist David Clarke is now considered the most likely choice by the House of Delegates for the open seat on the SCC.  By House of Delegates I of course mean the Republicans in the House, since judicial selection remains a highly guarded prerogative of the majority. With the Special Session firing back up next week, somebody may finally be elected to replace the retired Commissioner James C. Dimitri.

David W. Clarke

“If Clarke ends up on the powerful SCC, he will be one of a few people overseeing the regulation of health insurance plans — and likely approve double digit increases — in Virginia,” is one of Blue Virginia’s points.  How about this point:  He will also be one of the few people who actually understand that industry and that market.  You cannot know what somebody will do once he’s put on the bench – it’s a liberating experience, I hear.  Judge Dimitri had Dominion Energy as a client, and then he was liberated.

I can’t stop the beloved public sport of lobbyist-bashing but I won’t pass up a chance to respond on behalf of my peers.  Clarke is one of four persons mentioned in the media as under consideration, and truth be told he’s not my favorite candidate.  But the fact that he is a lobbyist and a lawyer who has practiced in front of the SCC is what makes him extremely well qualified if he emerges as the consensus.  Everybody around the Capitol has had a chance to see him in action for years.

Like most of us who ply this benighted trade, Clarke actually has a very diverse list of clients over the years and the health care industry is hardly dominant on the list.  I’m a little surprised Blue Virginia didn’t focus on the gas industry.  The one time he and I crossed swords professionally, I was actually representing real estate lawyers and he was working for lay persons doing real estate closings.

The communication and study skills required to handle a long list of unrelated clients transfer well to other jobs. Few know better than lobbyists (or lawyers) where our clients are right and where they might be wrong.  There may be matters where he needs to recuse himself, but his personal financial entanglements (if any) may be more of a factor there than his old client list.

Despite the cheap partisan shot at Clarke, Blue Virginia is silent on the other known candidates:  a long-serving member of the Attorney General’s staff who specializes in utility matters, a former deputy AG who is now a university counsel, and a former member of the State Senate who is not an attorney (but that is not required by law.)  I suspect the qualifications of the candidates are secondary and any choice will become fodder for criticism.

“Don’t tell my mother I’m a lobbyist,” goes the old joke. “She thinks I play piano in a whorehouse.”  Well to the extent I did that, I listened and learned a few things along the way and it would be a very interesting experiment to try a session with none of us lobbyists around.  I predict you would not actually like the outcome.

Are Virginia’s Civil Courts Stacked Against the Poor?

Only one in 500,000 civil cases handled in Virginia’s general district courts each year have lawyers representing both plaintiffs and defendants, according to a new study by the National Center for State Courts.

And what does that mean?

“When only one side has an attorney and the other side doesn’t, then the system becomes dysfunctional, it’s a tilted playing field. Despite the judges’ best efforts to be fair, they cannot possibly make up for the lack of counsel,” says John E. Whitfield, executive director of Blue Ridge Legal Services in Harrisonburg, as reported by the Richmond Times-Dispatch.

The five-year-long study was funded with financial support of the Office of the Executive Secretary of the Supreme Court of Virginia and the Virginia Access to Justice Commission, and funneled through Blue Ridge Legal Services.

General district court data show that plaintiffs with lawyers won 60 percent of the cases where the defendant did not have a lawyer. But plaintiffs won only 20 percent of the cases when both parties were represented. Writes the T-D:

The study found that both plaintiffs and defendants have substantially higher success rates when they are represented by a lawyer.

“Clearly, representational status of the parties has an impact on the outcomes of cases in Virginia – not surprising, that’s why people hire lawyers,” Whitfield said.

“Our court system was designed with the implicit premise that the litigants were going to have lawyers on both sides. That’s the way the court system is set up: the rules of evidence, the rules of procedure, how you make objections, how get evidence in, how you draft pleadings – every aspect of litigation in our court system presumes the presence of counsel on both sides,” he said.

Debt cases in general district courts often end in default judgements when the defendant simply fails to show up, said Whitfield. “They understand they owe the money, they don’t know of any valid defense and it would seem like a waste of their time to go down there and say, ‘Yeah, I owe the money,'” he said.

But, said Whitfield, “Sometimes they may have a defense but they don’t know it because they don’t have access to an attorney who would explore that for them.”

Bacon’s bottom line: It’s one thing to have inequalities in wealth and status in U.S. society — that’s what you expect in a country where freedom is valued more highly than equality. But almost everyone would agree that all Americans should enjoy equal rights under the law. Poverty should not deny a person justice. This study makes it sound like that’s exactly what’s going on.

The analysis leaves out one critical consideration, however: Any person, no matter how poor, can endeavor to engage a lawyer. There is no shortage of lawyers who pursue general practice law. The problem for defendants is that lawyers won’t take many cases that have no merit. The reason defendants win a much higher percentage of cases when they have lawyers is that the lawyers filter out the weak cases and take only the stronger ones.

The T-D article points out that most civil cases fall into one of two categories: bad debts and evictions. Businesses and landlords usually have some basis for filing civil suits to collect the money — rarely do they make up claims out of whole cloth. And the reason most defendants don’t show up at court is that they know they failed to pay. Occasionally, the plaintiff may get his facts wrong, or there may be other extenuating circumstances. For instances like those, there are public defenders.

As a libertarian, I believe that the impartial administration of justice is a core government responsibility. As a conservative, I believe that no institution is so perfect that it can’t be made to work better. I interpret this study not as a wholesale indictment of Virginia’s civil courts but as a signal that the issues it raises may warrant closer scrutiny.