Category Archives: Courts and law

Jason Miyares–Judicial Activist?

Jason Miyares

by Dick Hall-Sizemore

Jason Miyares has struck out again.

Miyares, Virginia’s Attorney General, keeps asking the Virginia Supreme Court of Virginia to interpret a statute, based not on how it is actually written, but based on what the General Assembly “intended”.  The court’s response is that its function is to ask “not what the legislature intended to enact, but what is the meaning of that which it did enact.  We must determine the legislative intent by what the statute says and not by what we think it should have said.”

At issue is the expansion of earned sentence credits for offenders in state prisons enacted by the 2020 General Assembly.  This legislation and its implementation has had a convoluted history, which I described in an earlier post.  In summary, the maximum number of sentence credits an offender can earn was increased from 4.5 days per 30 days served to 15 days per 30 days served.  The legislation listed a large number of exceptions to the expansion.  Among the offenses exempted from the expansion were Class 1 felonies (capital murder) and “any violation” of Sec. 18.1-32 (first degree murder).

The aspect of the legislation that Miyares keeps running up against is the omission of inchoate offenses in the list of exceptions. In legal terms, an inchoate crime is “a type of crime that is committed by taking a punishable step towards the commission of another crime. The three basic inchoate offenses are attempt, solicitation, and conspiracy.” Continue reading

Wind Project Sued Over Claimed Threat to Whales

NOAA Right Whale status graphic, updated this month to report 123 recent deaths and injuries.

By Steve Haner

A coalition of public interest groups has now filed its expected lawsuit seeking to halt construction of Dominion Energy Virginia’s offshore wind facility off Virginia Beach. Its key complaint is the federal permits were issued without a full and fair evaluation of the potential impact of the turbines on the shrinking North Atlantic Right Whale population.

The Heartland Institute, based in Illinois, the Committee for a Constructive Tomorrow, with offices in Washington, D.C. and the National Legal and Policy Center of Falls Church, along with two individuals, are the listed plaintiffs. The Bureau of Ocean Energy Management (BOEM) and National Marine Fisheries Service (NMFS) and federal office holders are among the named defendants, along with Dominion.

The 61-page complaint to a District of Columbia federal court seeks relief under the Endangered Species Act. It claims the law requires the federal government to study the combined impact of all the planned East Coast wind projects, from New England waters down to North Carolina’s outer banks. Instead, the federal permitting authorities to date have looked at individual projects without regard to cumulative effects when issuing wildlife impact opinions and permits.

From the article on the CFACT website: Continue reading

War on Fossil Fuels Reaches Court of Appeals

By Steve Haner

A climate alarmism publicity stunt masquerading as serious litigation had a hearing in front of the Virginia Court of Appeals on Monday, seeking to revive its rejected petition to shut down the fossil fuel industry in Virginia. Why? Because some of the plaintiffs suffered from heat exhaustion while exercising on summer days, and two of them got Lyme Disease after tick bites.

The suit was last discussed on Bacon’s Rebellion when it was filed in 2022. Later that year a Richmond City Circuit Court judge accepted the state’s motion to dismiss it on summary judgement, citing the doctrine of sovereign immunity. It was an appeal of that dismissal which was before a panel of the appeals judges, covered only by Brad Kutner of Radio IQ.

The appeals court is being asked to reinstate the case, which is seeking aggressive if poorly defined relief. Basically, the original petition seeks to repeal Virginia’s Gas and Oil Act and reverse long-standing policy decisions in favor of developing energy resources. It seeks to prevent the state regulatory agencies from allowing any new fossil fuel infrastructure of any kind, presumably from pipelines to coal mines to gas stations to power plants.

The stages and pleadings of the Virginia case are documented by a website tracking it and a handful of similar cases around the nation, with the same basic arguments and a common set of lawyers. So far, the plaintiffs have seen some initial success only in Montana and Hawaii. Their federal level suit is being actively opposed by the Biden Department of Justice. Continue reading

What Is It with Democrats and Criminals?

by Kerry Dougherty

Elections have consequences.

And when Virginia voted last November to give Democrats a slim majority in the General Assembly they also voted to give almost 8,000 violent criminals a shot at getting back on the streets.

This ill-conceived measure – SB427 – is the evil brainchild of Sen. Creigh Deeds, who believes that juries and judges should be second-guessed once an inmate has served at least 25 years of his – it’s almost always a male – sentence.

News flash: any inmate who’s served that many years in prison is a bad dude. A murderer, a rapist or some other sort of vile reptile. These are not petty criminals or marijuana users.

(Deeds’ initial bill wanted to spring felons after 15 years behind bars, but he amended it.) Continue reading

Partisan Poison: Va Dems Quash a Bill to Protect School Kids

Del. A.C. Cordoza

by Kerry Dougherty 

How exactly is Virginia’s General Assembly celebrating Black History Month?

By killing a bill to protect children in public school lavatories, introduced by Del. A.C. Cordoza of Hampton.

Cordoza is an African-American. And a Republican. He was famously denied membership in the Virginia Legislative Black Caucus when he was elected in 2022.

Sadly, to the caucus, he’s not the right kind of Black man. Because his views are on the right.

Cordoza claims his bill that would require school personnel to check bathrooms every 30 minutes would not require added personnel nor would it cost taxpayers a dime.

It was tabled, he told the Virginia Mercury, because he’s a Republican.

While the proposed legislation was not expected to impact state spending, Cordoza said his bill was still forwarded from the House Education Committee to the House Appropriations Committee for review. It died in that committee without a hearing.

“It’s sent there to die,” said Cordoza, “to die quietly because they don’t want the world to know that they’re killing a bill to protect little girls in the bathroom, but they want to make sure that a Black Republican is not the one who does it.” said Del. A.C. Cordoza, R-Hampton.

It’s actually a practical suggestion, given that there have been a number of assaults in several school bathrooms, and perhaps some that have not been reported. Having an adult stick his or her head in the lavatory every 30 minutes would certainly discourage bullies and sex offenders. Continue reading

Floyd Judge Ponders Order to Return RGGI Tax

The states in the Regional Greenhouse Gas Initiative tax compact before Virginia withdrew.

By Steve Haner

A circuit court judge in Floyd County may soon order Virginia to rejoin the Regional Greenhouse Gas Initiative and to reimpose the related carbon tax on Virginia’s electricity consumers.

Judge Kenneth “Mike” Fleenor Jr. ruled earlier this month that a suit seeking reinstatement of RGGI could continue and held a hearing on February 5 on the question of “immediate relief.”  The plaintiff, a group of energy efficiency and insulation contractors using the RGGI tax dollars for their programs, has claimed it will suffer immediate and irreparable harm unless Virginia returns to collecting a carbon tax on coal and natural gas used by utilities. Continue reading

Judge Uses Crude Statistics to Find Racial Profiling by Richmond Police

by Hans Bader

A judge recently found that the City of Richmond racially profiles black motorists, dismissing the indictment of a black convicted felon accused of illegally possessing a gun. The judge did not find that defendant Keith Moore had been treated differently than a similarly situated white motorist. Instead, he ruled that Richmond police stops are racially discriminatory, based on statistics showing blacks are stopped and arrested at much higher rates than whites; and based on Richmond’s past “history of discrimination,” such as racialized zoning and redlining, and the “Confederate foundations” of the Richmond Police Department. “The Court will not require Moore to provide evidence of similarly situated individuals to prove his selective enforcement claim,” wrote the judge.

This is likely to create big problems for the City of Richmond, potentially leading to many criminals being released from jail. If a judge claims racial discrimination happened, he should identify what policies are racially discriminatory, or give concrete examples of discrimination, so that the problem can be fixed.  But Judge Gibney failed to do that in his February 12 ruling in United States v. Keith Rodney Moore. So now the City is deemed guilty of discrimination, based on things no individual police officer can change (such as city-wide statistics), and things that literally no one can change (such as  the confederate origins of the police department and Richmond’s segregated past). If other judges follow this flawed ruling, other criminals can also have their indictments dismissed based on city-wide statistics, even if it is undisputed that they committed the crime for which they were arrested.

Although the judge cited statistical disparities, he did not cite any specific police practices that led to blacks being stopped at higher rates, as he should have done if police were actually at fault. In Smith v. City of Jackson (2005), the Supreme Court ruled that even unintentional discrimination (disparate-impact) cannot be proved through statistics unless “specific” practices are identified that caused the “statistical disparities.” The disparities themselves are not enough. Continue reading

Four Major Progressive Goals Still Advancing

By Steve Haner

The aggressive progressive agenda working its way through the 2024 Virginia General Assembly has lost some steam at the halfway point, but at least four of the major Democratic goals discussed earlier are still advancing.   

The two bills which will have the greatest impact on the Virginia economy are the proposed minimum wage increase and a new state-managed employee benefit for workers taking time off under the Family and Medical Leave Act. The two other bills the Democratic majorities in both the Virginia Senate and House of Delegates have now approved are a major expansion of procurement preferences for minority vendors and allowing class actions in civil litigation.   Continue reading

Checking up on Steve Descano

Steve Descano. Commonwralth’s Attorney, Fairfax. Photo credit: WTOP

by Dick Hall-Sizemore

Contributors and many readers of this blog have been highly critical of Steve Descano, the Commonwealth’s Attorney for Fairfax County.  They belittle him as being a Soros-backed, “woke” prosecutor, soft on crime. They seem to have missed Descano’s involvement in a recent high-profile case.

As described by The Washington Post, the defendant in the case had agreed to allow his home to serve as a delivery point for marijuana that was going to be sold by the victim. There had been a dispute between the defendant and the victim. When the victim knocked on the door of the defendant’s apartment, he sneaked out the back door, retrieved an AR-15 -style rifle from his car, and opened fire on the victim, killing him, and spraying bullets into adjacent occupied apartments. Continue reading

Dems Want to Block a Tough-On-Crime Parole Board Chief

by Kerry Dougherty

Virginia Democrats are audacious. You’ve got to give them that.

During the lawless  McAuliffe-Northam years, Virginia’s Parole Board was headed by bleeding hearts, who specialized in releasing criminals.

They were rewarded for their soft-hearted approach with judgeships. Because that’s how Democrats roll.

You’d think the party that favors criminals over victims wouldn’t want to remind the public of its own terrible record.

But they can’t help themselves.

Now that Gov. Glenn Youngkin has named Patricia West, a tough, super-qualified retired Virginia Beach judge to the same position, they’re trying to block her confirmation. They fear she’ll be too tough on criminals.

Dems have removed her name from a list of gubernatorial appointments. Her name could be restored by the entire General Assembly.

You’d think Democrats would be so embarrassed by what they did when they controlled the board they wouldn’t want to remind the public of their own terrible record. Continue reading

The Aggressive Progressive Democratic Agenda

From tiny acorns grow the mighty oaks of government.

By Steve Haner

The Democrats now running Virginia’s General Assembly are not just more progressive, but far more ambitious than their predecessors. To fully understand how ambitious you must compile the entire list of progressive bills advancing in the 2024 session and consider their total impact on the cost of living and cost of doing business in the commonwealth. Individual news stories miss the big picture.  

The push to radically regulate Virginia’s energy future discussed earlier is being mimicked with equally aggressive legislation throughout the rest of our economy. None of the ideas below are new, and most are already in law in places like California, New York or other more liberal states. What has changed is that when proposed in the past, they usually were rejected in Virginia on a bipartisan basis. Democrats now march in lockstep.  

The Assembly is still in its first phase and adjournment is set for early March. Which of the following will pass remains to be seen, and in many cases, amendments are already appearing. Most may also face gubernatorial veto or amendment, but that just underscores that Virginia is only one election of one official away from total transformation.   

In the case of the bills to increase the minimum wage (here and here), Democrats are simply building upon what they did during their last period of control. But if they succeed in setting future wage increases to automatically grow with inflation, the impact just builds and builds. Classes of employees reasonably exempted from the law currently, such as farm workers, may now be covered, as well.   

Likewise, the previous Democratic majority also took the first steps toward collective bargaining for limited groups of local employees, but only after elected local officials gave a green light to negotiate a contract. This year’s bill expands the right to bargain to almost all local and now most state employees, with no vote needed by a school board or city council. It was revealed that the most recent version does conveniently exempt employees of the General Assembly, however. Continue reading

Barbie, Liars, and Newspapers Circling the Drain

by Kerry Dougherty

Warning: I’m a tad grouchy today. You see, I’m a hyperactive gym rat who hasn’t worked out since last Tuesday and has been slowed down by surgery. That happened Wednesday, by the way, when a skilled orthopedic surgeon sawed off part of my leg.

In other words, I’ve had way too much time to brood.

So, I’m starting the week with a litany of irritants that have totally ticked me off.

Number one: I’m sick of feminists protesting that Margot Robbie was cheated out of an Oscar while her male Barbie co-star Ryan Gosling got one.

How many of these same women protested when Riley Gaines was cheated out of her place on a podium by a man, Lia Thomas?

If that’s you, just shut up. No one wants to hear from you.

Plus, I actually watched Barbie on HBO Saturday night.

That may be the worst movie I’ve ever seen. The absolute worst. Worse even than Oppenheimer which was a total yawn, although many people pretend they liked it because it’s about a smart guy and lasted three hours. They think raving about this bore makes them appear intelligent.

It doesn’t. Continue reading

VMI Loses DEI Court Case: a Win-Win Situation

by Jake Spivey

In Virginia’s ever-shifting landscape of diversity, equity, or opportunity, and inclusion, a powerful decision has been made. Following the sensational, yet unproven, allegations of exceptionally bad behavior and poor leadership at Virginia Military Institute in late autumn 2019, the administration and Board of Visitors attempted to quickly effect conclusive actions that would correct their unproven ills. A prime effort by the administration would be delivery of DEI training to staff, faculty, and the Corps of cadets. Unfortunately, in its haste to instigate the training, VMI circumvented the state’s procurement laws. By sidestepping the proper legal path for solicitations and contracts, VMI became vulnerable to protest by competing but unsuccessful contractors.

After a series of hearings before Judge Christopher B. Russell, the judge rendered a verdict finding VMI in “Violation of Virginia Public Procurement Act and/or the Rules Governing Procurement of Goods, Services, Insurance and Construction by a Public Institution of Higher Education of the Commonwealth of Virginia.” The judge’s decision represents a loss for VMI and its legal counsel,  an alumnus. VMI’s attorneys tried but repeatedly failed to have the case dismissed on technicalities rather than argue the merits of VMI’s actions when pursuing the DEI training contract. Continue reading

A Nice Story Turns Out Not to be Such a Nice Story After All

Mary Jane Burton

by Dick Hall-Sizemore

A recent podcast produced by VPM, Richmond’s public radio station, is both fascinating and disheartening. Admissible: Shreds of Evidence deals with the early days of the use of DNA as forensic evidence. In particular, it is the story of Mary Jane Burton, a long-time serologist for what is now called the Department of Forensic Science (DFS).

It may come as a shock to some of this blog’s readers, but, in the 1990’s, Virginia was a national leader in the use of DNA for solving crimes. In 1989, the Virginia Supreme Court ruled that DNA could be used as evidence in trials. The 2001 General Assembly enacted legislation to allow offenders to request testing of any biological evidence that had been collected during the investigations of the offenses for which they had been convicted before the techniques for DNA testing had been developed.

Three people submitted requests in 2001 to test any DNA evidence in their cases. The first case taken up by DFS was that of Marvin Anderson, who had been convicted of rape in 1982 and sentenced to 20 years in prison. Although he had been on parole for several years by 2001, he was anxious to clear his name, if possible.  In looking through his file, the DFS director discovered the tip of a cotton swab taped to a page of the report. Including the evidence in the file in that manner was against the protocols of the agency. When the DNA of the fluid on the swab was tested, it ruled out Anderson as the perpetrator. The other two offenders who had requested testing of evidence in their files were similarly exonerated. Continue reading

Virginia Bill Could Define Student Bullies by Race

by Hans Bader

Should students be defined as bullies partly based on race? A confusingly-worded bill just introduced in Virginia’s legislature seemingly classifies students as bullies partly based on racial differences between “the aggressor” and the victim, such as a “real or perceived power imbalance between the aggressor or aggressors and victim, including on the basis of the actual or perceived race, color, national origin, sex, disability status, sexual orientation, gender identity, gender expression, ethnicity, religion, or other distinguishing characteristics of the victim.”

That language is found in HB 536, a bill introduced by Delegate Joshua Cole (D-Fredericksburg). It would add the language in italics to Virginia Code § 22.1-276.01, so that it reads:

“Bullying” means any aggressive and unwanted behavior that is intended to harm, intimidate, or humiliate the victim; involves a real or perceived power imbalance between the aggressor or aggressors and victim, including on the basis of the actual or perceived race, color, national origin, sex, disability status, sexual orientation, gender identity, gender expression, ethnicity, religion, or other distinguishing characteristics of the victim; and is repeated over time or causes severe emotional trauma.

If Virginia adopted such legislation, it would create legal risks for school systems. If schools enforce a race-conscious definition of bullying, which applies (or not) based on the “race…of the victim,” that could be deemed by the courts to violate the rights of students defined as bullies based on racial considerations. School systems could end up being sued under the Constitution’s equal protection clause, Title VI of the Civil Rights Act, and 42 U.S.C. 1981. Even rules designed to help historically-disadvantaged groups are subject to legal challenge when they classify students based on race or gender, as the Supreme Court made clear last year in striking down the race-conscious admissions policies of Harvard University and the University of North Carolina. Continue reading