Category Archives: Courts and law

Herring Substitutes Emotion for Logic in Price-Gouging Case

Face masks? You want face masks? Have we got face masks.

by James A. Bacon

Attorney General Mark R. Herring has joined 30 other state attorneys general in filing an amicus brief in a federal appeals court to support the right of states to enforce price-gouging regulations against Amazon retailers.

National and local emergencies, such as the COVID-19 epidemic, create shortages of essential items, says a press release from Herring’s office today. State price gouging laws are necessary to ensure that goods can be “fairly allocated” among residents and prevent “bad actors” from profiting from the shortages.”

“The COVID-19 pandemic has highlighted just how unscrupulous some businesses will be in taking advantage of a situation like a public health crisis to try and make more money,” said Herring. “It is critical that each state has the ability to protect its consumers and enforce its own price gouging laws during emergencies to make sure all consumers have the same access to essential goods.”

Nobody likes price gougers. Everyone reacts with disgust toward profiteers who exploit the insecurity and suffering of others in a time of crisis to make a quick buck. The only people worse than price gougers are… the people who would sve us from price gougers. Continue reading

Reinforcing a Constitutional Right

By Dick Hall-Sizemore

While there are several high-profile bills on police and criminal justice reforms making their way through the General Assembly, another, less-noticed bill, SB 5007 (Morrissey, D-Richmond), ending jury sentencing, has the potential to have as great an impact on the Commonwealth’s criminal justice system as any of the others.

Currently, in Virginia, if there is a jury trial in a criminal case, the jury determines the guilt of a defendant and, if it finds him guilty, makes a sentencing recommendation to the judge. The judge may impose a lower sentence than recommended by the jury, but not a higher one. It is unusual for a judge to impose a sentence other than the one recommended by the jury. SB 5007 would restrict the role of the jury to the question of guilt, with the judge determining the sentence, unless the defendant requested that the jury also determine the sentence. Continue reading

Job Recovery Is Not the Special Session’s Focus

This building remains boarded up, and legislators are not there (except the House Speaker and Clerk, pantomiming a real session on Zoom.)

By Steve Haner

With the Virginia General Assembly’s “Cops and COVID” special session moving into its third week, it seems likely to impede rather than assist the state’s economic recovery from the pandemic. It may also greatly expand COVID-19’s financial burdens in the years to come.

The highly publicized issues of unpaid rents and utility bills, threatening tens of thousands with choices between eviction, disconnection, or years of additional debt, are clearly related to un- and under-employment from the COVID-19 recession. But getting people back to work does not seem the top priority for legislators.

The original stated purposes for the session starting August 18 were to amend the state budget in response to the recession, and make other adjustments responding to the viral disease. Deadly confrontations between police and Black suspects in several American cities, and the violent response, added police and judicial reform issues to the agenda.  Continue reading

Murder and Marijuana in Northern Virginia

By DJ Rippert

Risky business, reccless behavior.  Federal prosecutors recently charged members of a Northern Virginia drug gang, the Reccless Tigers, with a variety of felonies.  A US News & World Report article claims multiple members of the gang have been charged with “murder in a sweeping new indictment that blames the northern Virginia street gang with two deaths, multiple fire bombings and a sophisticated bi-coastal drug operation that supplied marijuana-laced vape pens to kids throughout the region’s school systems.”  This is not the gang’s first brush with the law.  Nearly 20 members of the gang and associates of the gang already pleaded guilty to federal charges stemming from drug related activities.

New kids in town.  Government sources say that the Reccless Tigers were formed in 2011 in the Centreville area of Fairfax County.  The gang mounted a fairly sophisticated operation.  Drug dealers would be induced to go into debt to the Reccless Tigers for the purchase of marijuana to be sold in Northern Virgina.  When the dealers struggled to pay back the debt they would be forced to work at a marijuana farm in Hayfork, California which had ties to the gang.  In essence, the gang operated a vertically integrated farm-to-vape-pen business.  The farm was raided in July 2019.

The cost of cooperation.  As the USN&WR article states, “Brandon White was given a choice, prosecutors say: If he opted not to testify against a member of the Reccless Tigers street gang who had assaulted him, a gang member would pay him $8,000 for his injuries. But if he testified, he’d be killed. White testified. Less than three months later, he was dead, his body left in the Virginia woods.”

The profit of illegality.  It’s hard to imagine how the Reccless Tigers would have been able to fund their criminal enterprise if Virginia was one of the eleven states which have legalized the recreational sale and use of marijuana.  In Virginia, the penalty for possessing small amounts of marijuana was decriminalized effective July 1.  However, there are still severe criminal penalties for the manufacture, transport and distribution of marijuana.  Criminals willing to bear the risks of providing the marijuana are able to profit handsomely.  And, as with almost all criminal enterprises, turf, territory and violence accompany the crimes.  The cost of Virginia’s intransigence on legalizing marijuana is more than lost taxes and lost legitimate jobs.  It also includes lost lives.

Maybe We Can Sue

by James C. Sherlock

Updated August 30, 3:30 pm

I wrote yesterday about a House of Delegates bill that ultimately was passed by the House Committee for Courts of Justice as House Bill No. 5074 Amendment In the Nature of A Substitute (the bill).  

I wrote of its effects on public officials and owners and managers of private companies for violations of COVID-19 regulations. The bill makes them not just accountable to state and federal regulators, but also personally civilly liable for the slightest violation of any part of the virtually unclimbable wall of applicable regulations. And Virginia has the strictest COVID-19 occupational safety regulations in the nation.

This essay will discuss the ethics of two different original bills and reveal the secretive process by which the final substitute was developed in committee. It will ask the General Assembly to clean up a scandal of its own making.

Some may say this “goes on all the time.” It may, but that does not mean it should.

Continue reading

McEachin Punts on Stoney Contract Inquiry

by James A. Bacon

Richmond Commonwealth’s Attorney Collette McEachin said Friday she will not investigate Mayor Levar Stoney’s awarding of a $1.8 million contract to businessman Devon Henry, a Stoney campaign contributor, on the grounds that Henry also donated money in 2011 to her husband’s 2011 state Senate campaign.

“Although the amount of money donated over nine years ago may not be significant and my husband is no longer in that elective position, it is incumbent upon me to maintain the public trust in this office and to avoid even the appearance of impropriety because of any actions taken by my office,” McEachin wrote to Councilwoman Kim Gray. An opponent of Stoney in the mayor’s race, Gray had called for an investigation into the circumstances of the contract award.

Collette McEachin, who is married to U.S. Rep. Donald McEachin, D-4th, also said that the state code allows only the governor, attorney general or a grand jury to order a criminal investigation of a local elected official, reports the Richmond Times-Dispatch.

Gray said she will continue speaking out. “I think that the people have a right to have full understanding of how this contract went out,” she said. “I’ve never seen anything this egregious.” Continue reading

What About Those Folks Facing Eviction, Governor?

By Dick Hall-Sizemore

In his July 24 letter to the Chief Justice, the Governor requested the Supreme Court extend its moratorium on evictions.  He concluded his request by saying, “This [the moratorium] will provide my administration the time to both work with the General Assembly to develop and pass a legislative package that will provide additional relief to those facing eviction and to expand financial assistance for tenants through our rent relief program.”

So, now that the General Assembly is in session, what has the Governor done for those who lost their jobs due to the pandemic and are facing eviction? The answer is: (1) some help in delaying evictions and (2) no help, so far, in getting the money needed to pay the rent. Continue reading

The Tell Tale Heart: Racism in Richmond Medicine

By Peter Galuszka

On Saturday, May 25, 1968, the Medical College of Virginia, now part of Virginia Commonwealth University, made medical history.  A surgeon recruited from Stanford University a couple of years before successfully transplanted the heart from one middle-aged man to another.

MCV officials in Richmond officials were ecstatic. Organ transplants were a hot, fairly new surgical procedure. Once stuck in the junior varsity leagues of medical training and research, MCV was basking in glory from media coverage.

There was one peculiarity that no one seemed to notice. The name of the heart donor was missing. As it turned out, the donor was Bruce Tucker, a Richmond Tucker happened to be African-American.

Tucker had suffered a serious brain injury from a fall the day before. He was taken to MCV. Hospital officials made a perfunctory search for his relatives. Tucker’s brother was desperately looking for him and his business card was in Bruce’s pocket. No one found it.

So, after Bruce was pronounced dead, his heart was removed and placed in the chest of Richard G. Klett, a white business executive from Orange. This shocking story is well documented in a highly readable book by Richmond author and journalist Chip Jones that has been just published by an imprint of Simon & Schuster. Tucker’s brother finally located hospital officials who started talking about an autopsy and that he needed to find a funeral director. Continue reading

The Hearings Are Over, Let the Battles Begin

By Dick Hall-Sizemore

The House Committees on Courts of Justice and Public Safety held three meetings/public hearings in preparation for the General Assembly’s consideration of criminal justice and police reform in the upcoming special session. The sessions were billed as public hearings, but, in actuality, most of the time was spent in hearing from invited speakers. Comments from members of the public were relegated to the end of the three-hour period and each speaker was limited to three minutes. At each session, only about 10 members of the public made comments.

The subsequent list of criminal justice legislative issues adopted by the House leadership for its special session agenda can be found here. Remarkably, all but three items were also included on the list released earlier by the Virginia Legislative Black Caucus. (See my compilation of that list here.) The only items not on the VLBC list was the Attorney General’s proposal that his office be authorized to conduct “pattern or practices” investigations of police departments and two vaguely-worded proposals relating to vetting law-enforcement applicants and diversifying the Committee on Training of the Department of Criminal Justice Services (DCJS).

The VLBC proposals missing from the Democratic Caucus list are ones to “defund” the police and regulate, by Code, the use of force by police. Obviously, the Democrats knew what they wanted going into the meetings and tailored their lists of speakers to ensure they got it. Based on the resulting list of proposals, the meetings may as well have not been held. Continue reading

COVID Workers Comp On House Democrat Bill List

By Steve Haner

The coming Special Session of the General Assembly will be narrowly focused but filled with controversy, based on the legislative wish list just released by House of Delegates Democrats. Only two bills listed fall outside of the major categories of “COVID-19 Relief” or “Criminal Justice and Police Reform.”

Under the heading “COVID Relief,” the Democrats wish to reopen their drive for employee paid leave and. as predicted. want to designate COVID-19 as a workplace disease.

The Senate Democrats have their own list, released in June and reiterated in a more recent news release. The release claims that one of the bills is ready for public viewing, but provides no link and the bill mentioned is not yet available through Legislative Information Services. Neither caucus has yet revealed any thoughts on how to amend the state budget, a task where Governor Ralph Northam naturally takes the lead.

Here is the list from the House Democratic Caucus, with some thoughts following:

COVID-19 Relief:

  • Requiring businesses to grant paid sick leave for Virginia workers.
  • Prohibiting garnishments of stimulus relief checks. (Office of Attorney General bill)
  • Establishing a presumption of workers’ compensation for first responders, teachers, and other high-risk essential workers.
  • Providing immunity from civil claims related to COVID-19 for complying with health guidance.
  • Combating price gouging for Personal Protective Equipment. (Office of Attorney General bill)
  • Protecting Virginians from eviction during a public health emergency.
  • Creating a Commonwealth Marketplace for PPE Acquisition.
  • Mandating transparency requirements for congregate-care facilities during a public health emergency.

Continue reading

Law School Deans Ask for Mandated Anti-Racism Training

University of Virginia law school dean Risa Goluboff

by Hans Bader

As lawyers like Barack Obama have noted, law school is already a year too long, with lots of nonessential classes. As a result, law students often graduate with over $150,000 in student-loan debt. Yet law students may soon be required to take more unnecessary classes.

One hundred and fifty law school deans have asked the American Bar Association to require that “every law school provide training and education around bias, cultural competence, and anti-racism.” These include the deans at the University of Virginia, the University of Richmond, and the College of William & Mary.

In their letter, the deans argue that “preparing law students to be lawyers requires that they should be educated with respect to bias, cultural awareness, and anti-racism. Such skills are essential parts of professional competence, legal practice, and being a lawyer. … We are in a unique moment in our history to confront racism that is deeply embedded in our institutions, including in the legal profession.” Continue reading

A Constitutional Approach to Avoiding Evictions in Virginia

by James C. Sherlock

There has been extensive discussion here about minimizing residential evictions in Virginia in the time of COVID. I will offer a constitutional approach to achieving that objective.

A Broad Consensus

The Governor and General Assembly want to avoid evictions of residential tenants who are unable to pay rent due to COVID-related issues beyond tenant control. So does every landlord in Virginia. And indeed I think every citizen. We have broad consensus on that point.

The Democratic Governor and Democratic majorities in both houses of the General Assembly can do whatever they wish with legislation. In this case they may wish to create a temporary, COVID-related rent payment program.

But they will have to pay for it, as opposed to asking landlords to eat the costs.  That seems to me a valid and effective use for federal COVID money.

And the executive branch will have to administer it, not the courts and not the landlords.

Continue reading

Fool Me Once

By James C. Sherlock

I want every tenant who cannot pay his rent because of COVID to be able to stay in his home. I want every landlord who supports them to be paid for their forbearance so they can pay their own bills.

This post starts with both of those goals in mind.

It is about a Governor and a Virginia Supreme Court who created horrible judicial precedents that never needed to happen.

Jim Bacon’s column this morning well summarized the issues with the Virginia Supreme Court’s August 7 order: IN RE: AMENDMENT OF EIGHTH ORDER EXTENDING DECLARATION OF JUDICIAL EMERGENCY IN RESPONSE TO COVID-19 EMERGENCY.

That order reimposed until September 7 a previous Supreme Court denial of residential landlords’ access to the courts to gain adjudication of unlawful detainer actions by tenants accused of failure to pay rent and it banned eviction orders on that same basis.

The Governor and the General Assembly

Governor Northam has been hesitant to call the General Assembly into session because he cannot ultimately control what legislators do when they meet. Republicans and some Democrats appear poised to try to limit, especially in duration, some his virtually unlimited emergency authorities under Virginia law. When written, the drafters of that law simply did not imagine an emergency that would last for more than a month or two.

Continue reading

No Equal Justice for Landlords

The Virginia State Supreme Court extended yesterday the judicial moratorium on eviction proceedings for another 28 days. The split decision prompted a blistering rebuke from D. Arthur Kelsey, which L. Steven Emmert summarized yesterday in the post below, republished here from his blog, Virginia Appellate News & Analysis. — JAB

Today the court responds to the Governor’s request for reimposition of the judicial moratorium on eviction proceedings. A bare majority of the court grants that relief, suspending the issuance of writs of eviction from August 10 (that’s next Monday) through September 7, a period of 28 days. The moratorium only applies to writs sought for nonpayment of rent; a landlord can still evict a tenant who has breached a lease agreement in other ways.

With two exceptions, all previous judicial-emergency order have been unanimous. The exceptions are the first, issued March 16, where the chief justice acted before he could consult his colleagues; and the June 8 modification to the fifth order. That one cites “the agreement of a majority of the Justices of this Court,” and also suspended writs of eviction, among other landlord remedies. The order didn’t state which members of the court didn’t go along.

Today the court names names. Justice Mims signs the two-page order for his colleagues, Justices Goodwyn, Powell, and McCullough. This majority notes that the pandemic fits the definition of a disaster, since the Code defines that term to include a  “communicable disease of public health threat.” It goes on to note that that statute is triggered when the disaster substantially impedes the ability of citizens to avail themselves of the court system. The court accordingly does as the Governor had requested, in the terms that I mention above. Continue reading

BE HEARD Act Could Cripple Virginia Small Businesses

How about a law banning government harassment and hostile business climates?

by Hans Bader

Small businesses in Virginia could face a very different business climate next year due to Joe Biden’s support for laws like the BE HEARD Act. It could easily become law if Democrats take control of Congress and the presidency (as most pollsters expect).

Under the BE HEARD Act, even the tiniest employers with only one or two employees will face unlimited liability in lawsuits, for things like discrimination, or harassment committed by an employee. It would also redefine sexual harassment in an overly broad and confusing way that could lead to small businesses being liable for trivial acts or comments by an employee. These small businesses would also be liable for attorneys fees that could dwarf what they end up paying workers who sue them.

Right now, small businesses in Virginia aren’t covered by most federal discrimination laws like Title VII, unless they have at least 15 employees. This doesn’t mean they can get away with being racist. If they intentionally discriminate based on race, they can be sued under a federal race discrimination law that covers even the smallest employers, 42 U.S.C. 1981. And if they fire someone for a non-race-based reason — such as their sex, age, or religion — they can be sued under Virginia state law, if they have more than five employees (although punitive damages in such lawsuits are limited to $350,000.) Continue reading