Category Archives: Courts and law

UVa Response to Medical Student First Amendment Lawsuit

Norman K. Moon Senior Judge of the United States District Court for the Western District of Virginia

by James C. Sherlock

Jim Bacon reported April 8 on the claims of Kieran Ravi Bhattacharya, a former student at the University of Virginia Medical School, who alleges that he was retaliated against for exercising his First Amendment freedoms at a panel discussion by the University’s chapter of the American Medical Women’s Association (“AMWA”).

Senior Judge Norman K. Moon of the United States District Court Western District of Virginia in a memorandum opinion dated March 31, 2021, dismissed three of the four complaints but left in place the First Amendment allegation. 

Mr. Bacon offered the following cautions: 

“That ruling presents only one side of the story, Bhattacharya’s, and has to be considered in that light.”

“If Bhattacharya displayed a pattern of being loud, belligerent, and threatening, the actions taken against him conceivably might be justified.”

The defense Answer to the plaintiff’s First Amendment retaliation allegation was filed yesterday.   Continue reading

Ralph Rescues Reefer

By Don Rippert

Warm up the bongs. Adults in Virginia will be able to legally possess up to an ounce of marijuana for recreational use starting July 1. The bill originally passed by the General Assembly would have delayed that date until July 1, 2024. However, Governor Ralph Northam amended the bill and, after some haggling, the General Assembly accepted the amended bill. Unsurprisingly, the bill that ultimately passed got more than a little frayed in the back and forth between the General Assembly and the Governor. Continue reading

Virginia Board of Education – In Loco Parentis and Headed to Court

Mark Herring

by James C. Sherlock

Is your child yours or does he or she belong body and soul to the state in the person of the Virginia Department of Education (VDOE)?   

That is a question that is not only reasonable, but absolutely necessary after reading its new transgender student regulation. That regulation represents a straight-up, in-your-face denial of parental rights.

The quasi-religious fervor with which the radical left now pushes children to “find” their transgender selves and the state to offer “support” in that decision to very young children is as disturbing as anything in American life. They consider that gender identity is an innate characteristic that most children “declare” by age five to six. They further believe the state should take it from there to protect them from their parents.

VDOE just released what will prove a fiercely controversial Model Policies for the Treatment of Transgender Students in Public Elementary and Secondary Schools pursuant to House Bill 145 and Senate Bill 161 enacted by the 2020 Virginia General Assembly. Under that 2020 law, the “policies” just released are mandatory for school boards, thus granted the status of a regulation.  

The whole conceit that the government – read the radical progressive left who wrote this regulation for VDOE – knows best what is right for your children is on full display in the document. It presumes to enforce government decisions on the sexuality of very young children both hidden from and against the wishes of the parents.   Continue reading

Virginia Democrats Govern in the Service of Dogma and Power

by James C. Sherlock

Karl Marx

Socialism and communism are so 19th and 20th centuries.  

Under socialism, individuals would still own property. But industrial production, which was the chief means of generating wealth, was to be communally owned and managed by a democratically elected government.

Socialists sought change and reform, but sought to make those changes through democratic processes within the existing social and political structure, not to overthrow that structure.  Socialism was to be based on the consent of the governed. Communism sought the elimination of personal property and the violent overthrow of existing social and political structures.

So what has changed for today’s progressives who have taken over the Democratic party, especially in Virginia? 

A lot. Continue reading

Virginians’ Money and Our Tax-Exempt “Public Charity” Healthcare Monopolies

The Business of Healthcare

by James C. Sherlock

A generally accepted rule of thumb for the minimum profitability required for a hospital to maintain operations and fund its future is 3%.

Virginia’s community hospitals as a group in 2019 had an operating margin of 10%. Most of them are filed with federal and state governments as not-for-profit public charities and are untaxed at any level of government.

I yesterday wrote a  column that disclosed 34% increases in the 2019 profitability of Virginia hospitals that were generated by taxpayer funds sent directly to the hospitals through Medicaid expansion and increases in Medicaid payments passed by the General Assembly in 2018.

There were several good reasons for Medicaid expansion. Better access for the poor. Financial stability for rural hospitals. I was for Medicaid expansion myself, and Republican votes put it over the top. Continue reading

Podcast: How the General Assembly Has Changed

By Peter Galuszka

I haven’t contributed much to BR lately since I am slammed with non-Virginia work. I did manage to help out on a Podcast about how the General Assembly has changed the state over the last two years as Democrats have gained power.

This Podcast is produced by WTJU, the University of Virginia radio station. I do a weekly talk show on state politics and economics and, on occasion, work on Podcasts.

Joining me is Sally Hudson, a delegate from the Charlottesville area. She is Assistant Professor of Public Policy, Education and Economics. Sally studied at the Massachusetts Institute of Technology and Stanford and is one of the youngest members of the General Assembly.

I hope you enjoy it.

TJ High School Lawsuit Could Set Important Precedents

Students at the Thomas Jefferson High School for Science and Technology

by Ilya Somin

Last week, a group of primarily Asian-American parents filed a lawsuit challenging the constitutionality of new admissions policies at the Thomas Jefferson High School for Science and Technology, in Fairfax County. The case could end up setting an important precedent:

Fairfax County Public Schools is facing a second lawsuit over changes officials made last year to the admissions process at Thomas Jefferson High School for Science and Technology, its flagship STEM magnet school.

The suit, filed in federal court Wednesday, alleges the changes are discriminatory against Asian Americans and therefore violate the equal protection clause of the U.S. Constitution. Some of the plaintiffs are also part of the initial lawsuit. Continue reading

Northam Gets an Earful on Marijuana Legalization Bill

Image by JR Byron from Pixabay

by D.J. Rippert

Slow burn. The General Assembly passed marijuana legislation and sent it to the governor to sign. However, almost nobody seems satisfied with the bill as it is written. Now Governor Ralph Northam must decide whether to sign the bill, veto the bill, or ask for the bill to be amended. As he ponders his next move, he is getting a lot of advice from different directions.

While there are many issues with the proposed legislation, the timeline for recreational legalization of possession is arguably the biggest problem. The legislation, as written, would legalize recreational marijuana possession and sale in 2024. Yes, more than three full years from now. That doesn’t sit well with a lot of people including Democratic State Senator Louise Lucas, who wrote on social media, “Kicking the can down the road has the effect of continued over policing people of color.” Sen Lucas would like to see marijuana legalized on July 1, 2021. Continue reading

WaPo Nabs Polk Award, Is Pulitzer Next?

Ian Shapira

By Peter Galuszka

How ironical.

Our esteemed Jim Bacon has been on a tear in recent months writing about media coverage of the problem of systemic racism at the Virginia Military Institute.

Of special interest to Jim is the reporting of Ian Shapira, a Washington Post reporter who has been digging into the VMI. After his stories were published, the superintendent of VMI retired and an inquiry was launched.

Jim doesn’t like what the Post and Shapira have done. Some of Jim’s headlines go right to the jugular including “VMI Update: The WaPo Makes Another Sleazy Insinuation” and  “WaPo Ratchets Up Assault on VMI.”

At one point, Jim made this observation: “Polish up that Pulitzer. It looks like The Washington Post is vying again for the big prize in journalism”

Well, guess what happened? Shapira and the Post have won a George Polk award for their VMI coverage. The citation reads thusly: Continue reading

Certificate of Public Need’s Hall of Mirrors

by James C. Sherlock

Versailles Hall of Mirrors

In Versailles’ Hall of Mirrors, everything is reflected hundreds of times.

The mirrors were also a commercial. They represented an effort of Louis XIV to establish for France monopolies on the production of luxury goods.

Virginia’s Certificate of Public Need (COPN) law and regulations represent a similar structure.

Everything in the process reflects back on itself. Those reflections both reinforce the structure and cement monopolies. Though it represents the intrigue of Versailles, COPN lacks beauty and grace. But, in another similarity, neither Louis nor Virginia’s General Assembly tried to represent the interests of the people in these enterprises.

This essay will help explain how COPN works. It would be shorter if the tentacles of COPN were not so completely enveloping and self-reinforcing. This is in its entirety both legal and a scandal, as with much else in Virginia politics.

Two recent COPN decisions affect my home area of South Hampton Roads. Those cases pointed to the systemic roadblocks to successfully challenging Sentara Healthcare’s dominance here which will never be surmounted while COPN stands as is. Continue reading

Sentara and the Judge

by James C. Sherlock

Updated Feb. 23 at 2:15 pm

In an ongoing series of reports, Ray Locker, enterprise and investigative editor of the Checks and Balances Project, has exposed a story with far-reaching implications.

Norfolk Circuit Court Chief Judge Mary Jane Hall sat in judgment on a case, Chesapeake Hosp. Auth. v. State Health Comm’r,  in which Sentara was an included defendant.  

It appears from that reporting that she could have recused herself for two reasons:

  • prior to her appointment to the bench Judge Hall not only had represented Sentara for years in another COPN case; but also
  • the judge’s co-attorney on that previous COPN case, Jamie B. Martin of Williams Mullin, was Sentara’s attorney in Chesapeake Hosp. Auth. v. State Health Comm’r.

From Mr. Locker’s first article:

The Virginia Canons of Judicial Conduct says this about judicial impartiality:

“(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned”

Further under Canon 2,

“The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity and impartiality is impaired.”

My own additional research into published Norfolk Circuit Court opinions shows that Judge Hall sat in judgment on cases in that court involving Sentara as well as on Chesapeake Hosp. Auth. v. State Health Comm’r.  This case was filed in Chesapeake Circuit Court.

The Chief Justice of the Virginia Supreme Court, who is charged with overseeing judicial conduct, assigned the case to Judge Hall

Chief Justice Lemons of the Virginia Supreme Court asked Judge Hall to sit by designation in Chesapeake in place of the judges of the First Judicial Circuit (Chesapeake) and hear the case. She accepted. He made the appointment on July 31, 2018.

There would be three possible reasons to import a judge:

  1. Chief Justice Lemons assessed that there were no judges on the Chesapeake Circuit with the experience to hear a COPN case; or
  2. he assessed that the Chesapeake Circuit judges were conflicted or could have been considered so; or
  3. The Chesapeake Circuit had more cases than judges at that point.

There is no indication in the record of why Judge Hall was imported in this case.

Continue reading

Hey, ACLU: Forget the Fence, Go After Curfews and Booze Restrictions

by Kerry Dougherty

Some of us have been waiting 11 months for Virginia’s legal eagles – especially the ACLU – to bombard the courts with a blizzard of challenges to Gov. Ralph Northam’s excessive executive orders that have stomped on the constitutional rights of millions of Virginians.

Instead we mostly got crickets.

For a time, churches were closed.

Where were the lawyers?

In most places public schools are closed, despite laws that require school districts to meet the educational needs of students with disabilities, many of whom can’t learn without face-to-face instruction.

Where are the lawyers? Continue reading

Fix Was In for VMI Contract, Lawsuit Alleges

by James A. Bacon

In awarding a contract to investigate racism at the Virginia Military Institute, the Northam administration stacked the deck in favor of preferred vendor, Barnes & Thornburg, and stymied efforts by a competing bidder, the Center for Applied Innovation (CAI), to contest the award, alleges a suit filed by CAI in Richmond Circuit Court today.

The State Council of Higher Education for Virginia (SCHEV), which managed the $1 million Request for Proposal, engaged in a “run the clock down” strategy of delay and hinderance to prevent CAI’s principal, Robert C. Morris Jr., from examining more than 1,000 pages of procurement documents within the 10-day period allowed under state law to file a protest, the lawsuit contends.

Further, the lawsuit charges, SCHEV was acting at the behest of the Attorney General’s office and senior Northam administration officials to avoid “media attention” to the procurement process. Continue reading

Shredding Virginia Employment Law One Bad Bill at a Time

Face palm

by Liam Bissainthe

The Virginia state senate has blocked a bill that could potentially change the definition of “sexual harassment.” It would hold even small employers liable for comments defined as either “workplace harassment” or “sexual harassment.” Employers would held liable even for conduct that occurs “outside of the workplace,” and even for conduct committed by “nonemployees” such as customers.

But the very same provisions are found in another bill passed by the Virginia House of Delegates, that is still sitting in a committee of the state senate. So the legislation could still conceivably become law.

In a 20-to-18 vote, the state senate voted on February 5 to send the first harassment bill (SB 1360) back to the Judiciary Committee, where it died on February 6. But the exact same provisions appear to be found in the second harassment bill, HB 2155, which is still alive and sitting in the General Laws committee. Continue reading

The Mythology of Robert E. Lee

By Peter Galuszka

With excellent timing, the former head of the history department at the U.S. Military Academy at West Point has come out with a book about the mythology of Confederate Gen. Robert E. Lee and much of the White “Southern” culture.

Retired U.S. Army Gen. Ty Seidule, a former paratrooper, has deep Virginia roots and his analysis goes right to the heart of the problems plaguing Virginia, Civil War memorabilia, Richmond, Charlottesville, the Virginia Military Institute and more.

He grew up in Alexandria and had ties to the Episcopal prep school where he expanded his desire to be a “Southern” gentleman while worshipping the likes of Lee and Thomas “Stonewall” Jackson.

Here’s a link to my review of his book in Richmond’s Style Weekly. The Post also reviewed the book this past Sunday.