Category Archives: Courts and law

HB 1200: Another Small Business Shakedown

by Hans Bader

Right now, if you employ five or fewer workers in Virginia, you aren’t subject to most state restrictions on who you can hire. And if you have fewer than 15 employees, you usually can’t be forced to pay a worker’s lawyer much at all if the worker sues you.

That would change under a recently proposed law, House Bill 1200. It would subject even small businesses with five or fewer employees to state anti-discrimination laws. And if a worker successfully sued you for discrimination, you would have to pay his lawyer’s bills, too — but if he lost, he wouldn’t have to pay your lawyer’s bills. That’s like having someone tell you, “Heads I win, tails you lose.” Even a small business that never discriminates would find that objectionable.

All employers are already forbidden to deliberately discriminate based on race, by a strong federal law known as 42 U.S.C. 1981. But other types of discrimination by tiny employers aren’t necessarily forbidden.

Right now, only employers with 15 or more employers are covered by most federal civil-rights laws, like those banning religious or sexual discrimination. Employers with fewer than 15 but more than five workers are covered by a state law that says they can’t discriminate, but workers can only sue under that law for lost wages, not emotional distress or punitive damages. And a judge can award attorneys fees only out of the “amount recovered,” not on top of them. Continue reading

Way Overdue: Cleanse the State Code of Racist Residue

by James A. Bacon

This 1956 law, enshrined in Chapter 59 of the Acts of the General Assembly, is a dead letter, rendered irrelevant by judicial rulings, others laws, and history, but it’s still on the books:

Notwithstanding any other provision of law, no child shall be required to enroll in or attend any school wherein both white and colored children are enrolled.

“The Commission to Examine Racial Inequity in Virginia Law,” commissioned by Governor Ralph Northam, identified this and 97 other Jim Crow-era laws still lurking in the state code. The governor has committed to repeal the racially discriminatory language. You can view the report here.

“If we are going to move forward as a Commonwealth, we must take an honest look at our past,” said Northam in a press statement. “We know that racial discrimination is rooted in many of the laws that have governed our Commonwealth—today represents an important step towards building a more equal, just, and inclusive Virginia.”

States the report: Continue reading

Virginia marijuana reform: Outlook for 2020

By Don Rippert

Cannabis certitude. The seemingly inexorable march toward legalized marijuana in the United States continues unabated. A poll of 9,900 American adults conducted by the Pew Research Center from September 3 – 15, 2019 found that 67% of the respondents thought cannabis should be legalized. That’s five percentage points higher than Pew’s last poll on the subject conducted in 2018. Many state legislatures are acting on behalf of their constituents. Legal weed sales began last Sunday in Michigan and will commence on New Year’s Day in Illinois. At the federal level the House Judiciary Committee approved a bill legalizing marijuana at the federal level. As of today 33 states have legalized medical marijuana and 11 states have approved the sale of recreational marijuana to adults. Six more states seem very likely to make decisions on legalizing recreational marijuana in 2020 – Arizona, Arkansas, Florida, Missouri, New Jersey and South Dakota. As legal marijuana becomes big business pundits are predicting the future of legal weed. Arcview Market Research and BDS Analytics believe that medical marijuana will be legalized in every state by 2024 and recreational marijuana will be legal in 20 states by that date. Virginia is not among the 20.

Weed in the Old Ancient Pre-historic Dominion. Virginia is one of 15 states where marijuana is fully illegal. (Note: I do not count CBD oil sales as partial legalization). The first step on the long road to legalization is usually decriminalization. In 2018 Virginia’s General Assembly considered a bill to decriminalize possession of small amounts of marijuana. It was killed along a purely party line vote in the Senate Courts of Justice Committee.  In 2019 another decriminalization bill was considered. Virginia’s Republican leadership in the General Assembly couldn’t muster the minimal courage to take the 2019 bill to the full committee and killed it in sub-committee. Later that year the Republicans got their heads handed to them in the General Assembly election. What a surprise.  Now Democrats hold a trifecta in Virginia with control of the House, Senate and Governorship.  Once again, Sen. Adam Ebbin (D-Alexandria) is the patron for proposed legislation to decriminalize possession of small amounts of marijuana. However, this year unlike the past, Ebbin’s party is in control.

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Northam Comes to the Aid of Menhaden (But is Chap Petersen Paying Attention?)

By Don Rippert

Fish tale. Omega Protein, a Canadian owned company, has willfully exceeded its menhaden catch limit in the Chesapeake Bay. You can read the details here. The catch limit is controversial since menhaden is the only marine fish regulated directly by the Virginia General Assembly. All other saltwater fish in Virginia are regulated by the Virginia Marine Resources Commission. Every other Atlantic state lets their state fishery regulator and the Atlantic States Marine Fisheries Commission (ASMFC) set rules for menhaden in their waters. The US Congress chartered ASMFC in 1942. So, ASMFC sets catch limits for Virginia waters – one for the Atlantic and another for the Chesapeake Bay. In Virginia those limits are then incorporated into proposed legislation for the General Assembly. The most recent AMFC-set limits were put into a bill that was never voted on by the General Assembly. This left Omega Protein with two catch limits – the limit last passed by the General Assembly (based on ASMFC guidance) and the most current lower ASMFC limit. Once Omega Protein admitted it had exceeded the most current ASMFC limit Virginia was reported to the US Department of Commerce as being “out of compliance.” Last week Gov Ralph Northam sent a letter to the Secretary of Commerce requesting the feds to put a moratorium on menhaden fishing in the Virginia waters of the Chesapeake Bay. It seems that Northam is sending the General Assembly a message — clean up your act or I’ll ask the Feds to clean it up for you. But will the new Democratic majority in the General Assembly listen to Northam or Omega Protein?

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The Issue of Guardianship and the Contribution of a Newspaper

Ora Lomax with a picture of her husband, William, who was committed to a nursing home against her wishes. Photo credit: Richmond Times Dispatch

On Sunday, the Richmond Times-Dispatch ran a remarkable article. It was remarkable both in the amount of space the newspaper dedicated to it, 5½ whole pages, and its subject, guardianship, a subject about which little is known by the public, but that could affect anyone.

The publishing of this series of articles illustrates the continuing value of newspapers. The RTD invested a lot of resources into this story. It was a year-long investigation in which staff combed through the records of hundreds of guardianship cases originating in the Richmond circuit courts. They examined all the public documents related to those cases. They created a database with all the relevant data from those cases. They also looked at some guardianship cases filed in Henrico and Norfolk circuit courts to see how such cases were handled in different jurisdictions. They interviewed dozens of people and attended guardianship hearings. No other media for the general public could, or would, dedicate this amount of resources to a single topic. Continue reading

Virginia Judges, 1; Artificial Intelligence, 0

by James A. Bacon

It sounded like such a good idea: Develop a criminal-sentencing algorithm to help judges identify felons least likely to reoffend and either give them shorter jail sentences or divert them to probation or substance-abuse treatment programs. Virginia created just such an algorithm in 2001. Minimizing the subjective element in sentencing, it was thought, might even reduce sentencing disparities between the races.

The results didn’t turn out entirely like people hoped. In a deep dive into the data, Megan T. Stevenson, a George Mason University professor,  and Jennifer L. Doleac, of Texas A&M, authors of, “Algorithmic Risk Assessment in the Hands of Humans,” found that the Virginia algorithm does influence outcomes: Defendants with higher risk scores got longer sentences and defendants with lower risk scores got shorter sentences. However, they found “no robust evidence that this reshuffling led to a decline in recidivism.”

While they found no evidence of an increase in racial disparities statewide, the authors did find that among the judges most likely to factor the risk scores into their sentencing decisions, there was a “relative increase in sentences.” Continue reading

More Craziness: Now “Second Amendment Sanctuaries” Are a Thing

Second amendment sanctuaries across the U.S. Source: Wikipedia

by James A. Bacon

The Campbell County Board of Supervisors has voted to declare the county a “second amendment sanctuary.” It’s not clear from this WDBJ article exactly what that entails, but Wikipedia defines a second-amendment sanctuary as a jurisdiction that does not expend resources to enforce gun control measures perceived to violate the Second Amendment. The movement, which is particularly widespread in the West, is analogous to the “sanctuary city” movement in which local law enforcement refuses to cooperate with federal authorities in detaining illegal immigrants.

“We’re saying you have to defend our second amendment rights,” says James Borland, a member of the board of supervisors, which voted unanimously to pass the measure. WDBJ reports that the “resolution” will be conveyed to the General Assembly, “imploring lawmakers not to back laws that county leaders say target law-abiding gun owners.”

If declaring one’s county a “second amendment sanctuary” consists no more than forwarding a resolution to the state legislature, it’s harmless. If it means that local police and sheriffs cease enforcing locally unpopular gun laws, it is pernicious — just as sanctuary cities are pernicious. The trend of local politicians picking and choosing the laws they will support is extremely unhealthy. Continue reading

Omega Protein Exceeds ASMFC Catch Limit of Menhaden

Photo credit: Stephan Lowy

by Don Rippert

What, me worry? Omega Protein has admitted exceeding its menhaden catch limit for 2019 in the Chesapeake Bay. Omega Protein, a Houston-based company and wholly owned subsidiary of Cooke, Inc, a Canadian firm, operates a fishing fleet based in Reedville, Va. Employing about 300 Virginians, Omega Protein has been mired in controversy over the years regarding its heavy catch of menhaden.  Since this topic has been repeatedly covered on Bacon’s Rebellion, I won’t provide detailed background. However, the environmental group Menhaden Defenders operates an informative website describing the situation.

Menhaden Defenders writes, “The commercial menhaden fishery is made up of two sectors, a reduction fishery, which grinds billions of bunker up for fish meal and oil, and the bait fishery which supplies menhaden for lobster and crab traps. Reduction fishing is an antiquated practice that has been banned in every east coast state, except Virginia.” Virginia is the only east coast state that allows reduction fishing and is also the only east coast state that allows unlimited contributions to state politicians. Over the last 26 years Omega Protein has donated just under $600,000 to Virginia politicians, political committees and PACs with the majority going to Republicans.

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Bacon Bits: Of DNA and Electrons….

Getting 39,999 right out of 40,000 not too shabby. After 18 years the Virginia Forensic Science Board has wound up its review of 530,000 cases in which DNA evidence was available. The effort identified 13 men who were wrongfully convicted, including the highly publicized cases of Earl Washington Jr., and Thomas Haynesworth, reports the Richmond Times-Dispatch.

One wrongful conviction is too many, those who were deprived of their liberty should be recompensed, and mechanisms need to be put into place to ensure that such tragedies are not re-enacted. But 13 instances of wrongful convictions is a far cry from predictions that the wrongful conviction rate in sex cases could be as high as 15%. Indeed, compared to the perception of prevalent injustice, the numbers are reassuring: The review of DNA evidence ended up reversing only one in 40,000 convictions. If your standard is perfection, then Virginia’s legal system is a failure. Clearly it did fail in at least 13 instances, and it could be argued that there were miscarriages of justice that the DNA review did not uncover. But by any other standard, the fact that 39,999 cases out of 40,000 withstood the review is very encouraging. I wonder how many the court systems of other states and countries would have fared as well.

Does this contract actually do anything? Last week Governor Ralph Northam announced an agreement for state government to purchase from Dominion Energy 420 megawatts from multiple solar farms and the state’s first onshore wind farm. The contract ensures that 30% of the electricity consumed by state agencies and institutions in Virginia comes from renewable sources. “This is an historic announcement for renewable energy growth in Virginia,” pronounced Secretary of Commerce and trade Brian Ball. First question: What difference does it make? If Dominion had committed to building these projects anyway, Virginia electricity customers would have been consuming clean energy regardless. The fact that the state is paying directly for these projects, rather than as a general ratepayer, does not increase the supply of green power by one electron. Another question: What will the state pay for the bragging rights? Will it pay more or less than general ratepayers? The governor’s press release doesn’t say… which is not a good sign. If this were a good deal for taxpayers, I’m sure the governor would have mentioned it.

— JAB

Disregard that Law

by Dick Hall-Sizemore

Well, Virginia made the national headlines again last week and over the weekend.  This time it was over the requirement that couples applying for a marriage license list their race on the application. And Attorney General Mark Herring was the hero, saying that, despite what the law said, the couples did not have to do that.  (NYT, WP, RTD, as well as all the networks).

On the face of it, the state could make a case that gathering information about the race of people getting married serves a legitimate purpose by providing data for state demographers and sociologists. But, because “race” can be a vague concept and applicants self-identify their race, any data collected has become meaningless. Apparently, each county can compile its own list of categories from which applicants choose.  According to newspaper reports, Rockbridge County had a list of  approximately 200 “races”, including American, Aryan, Hebrew, Islamic, Mestizo, Nordic, Teutonic, Moor, and White American. Continue reading

Marijuana legalization in Colorado: the good, the bad and the ugly

High there!  As Virginia politicians scramble to stake out positions on reforming marijuana laws in the Old Dominion ahead of this November’s elections, it is useful to look at the actual experience in Colorado after five years of legal recreational marijuana sales.  There is no universally accepted source of truth regarding the success or failure of Colorado’s marijuana legalization. However, many articles have been written regarding Colorado’s experience and the general perception seems to be positive albeit with some significant concerns. As Virginia moves down the road of marijuana reform its political class would be well advised to heed the lessons of those who have already gone down that path. Continue reading

Court Backs Little Debbie In Tax Dispute

McKee Foods’ Little Debbie

Don’t underestimate Little Debbie – the spunky tyke took on the Augusta County tax collectors and won.  But the county still has her money.

The Virginia Supreme Court has sided with manufacturer McKee Foods Corporation, which makes the Little Debbie snack products, in a dispute over the tax assessment on its 828,000-square-foot factory in Augusta County. The July 18 opinion by Chief Justice Donald Lemons (here) reverses a lower court decision, rejects the county’s existing valuations and sends the dispute back to the local circuit court for another look.  Continue reading

Differences in Arrest Rates for Marijuana Offenses across Virginia Localities

Data exhaust. In a relatively recent BR post “Marijuana arrests and racism in Virginia (especially Arlington County)” I examined the disparity between black and white Virginians when it comes to arrests for marijuana possession. My conclusion that African-American Virginians are disproportionately arrested for marijuana possession came from data generated by a VCU Capital News Service study on the matter.  Helpfully, the VCU / CNS article provided a link to a spreadsheet containing the raw data (you can download the same spreadsheet from the source link under the Datawrapper graphic). As I’ve continued to examine the VCU / CNS data I’ve noticed that it’s not just your race that affects the odds of being arrested for marijuana possession.  Where you are in Virginia matters too.  A lot. Continue reading

Illinois to Legalize Recreational Pot: Implications for Virginia

Legal tokin’ in the Land of Lincoln. Illinois governor J.B. Pritzker is expected to sign Illinois’ recreational marijuana legalization bill tomorrow. Illinois, America’s sixth most populous state, will become the 11th state to legalize the recreational use of marijuana. The District of Columbia has also legalized the possession of ganja. This has implications for Virginia.

First, Illinois is the first state to legalize the possession and sale of marijuana via the state legislature. Vermont’s legislature legalized the possession but not the sale of marijuana. All other states came to legalization via citizen led ballot initiatives. Since the Virginia Constitution has no provision for citizen-led ballot initiatives, the General Assembly would have to follow in the footsteps of the Illinois legislature to legalize marijuana in the Old Dominion. Illinois has proven this is possible. The second implication is the looming encirclement of Virginia by states with legalized recreational marijuana. The closer legal pot dispensaries get to Virginia the harder it will be for Virginia to stop cross border marijuana flows. Continue reading

Give Fairfax a Chance to Clear His Name

Lawyers for Lieutenant Governor Justin Fairfax have formally requested prosecutors in Suffolk County, Mass., and Durham County, N.C. to open criminal investigations into the sexual assault allegations made against Fairfax in February, reports WJLA.

The allegation of Meredith Watson, who accused Fairfax of raping her in 2000 when they were students at Duke University, should be fully investigated, argued Barry J. Pollack, Fairfax’s attorney, in the letter to the Durham County district attorney. Wrote Pollack:

If an investigation were to determine that the allegation is true, it should be criminally prosecuted. Conversely, if an investigation were to determine that the allegation is false, which Lt. Governor Fairfax is confident would be the conclusion of any unbiased and professional investigation, the matter could be closed and the public informed.

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