Category Archives: Courts and law

Imprisoned by the Past

Libby Prison on Cary Street, Richmond, circa 1865. Photo credit: Flickr

by James A. Bacon

As a parting gift to Virginia, outgoing Attorney General Mark Herring has overturned 58 opinions issued by attorneys general between 1904 and 1967 that supported racially discriminatory laws from poll taxes to the prohibition of interracial marriage.

“While these discriminatory and racist laws are no longer on the books in Virginia, the opinions still are, which is why I am proud to overrule them,” Herring said in a press release today. “We are not the Virginia we used to be, and in order to truly be the Virginia that we want to be in the future we need to remove any last vestiges of these racist laws.”

Herring’s action will have no practical effect — the laws supported by these opinions have all been overturned. But many African-American politicians and activists found solace in the gesture.

“Just like Virginia wiped racist, outdated laws off its books in recent years, so too should it wipe away racist, outdated legal opinions that supported and helped to implement those laws,” said Cynthia Hudson, a former chief deputy attorney general and chair of the Commission to Examine Racial Equity in Virginia’s law.

I have mixed emotions. I can see the symbolic value of getting these heinous rulings off the books. (See a compilation here.) We should slam the door on Virginia’s racist past. However, I find the fixation on the past a distraction from current-day injustices that have origins unrelated to historic racism. Continually dredging up ancient wrongs feeds African Americans’ sense of alienation, victimhood and grievance, and it perpetuates the false narrative of systemic modern-day racism. Continue reading

Herring’s ERA Advisory Opinion Is Flawed, Self-Defeating

by Emilio Jaksetic

On January 6, 2022, Attorney General Mark Herring issued an advisory legal opinion in which he concluded that the Virginia General Assembly cannot rescind its January 2020 decision to ratify the Equal Rights Amendment (ERA).

What is amazing about Herring’s advisory opinion is its reliance on one passage of the Supreme Court decision in Coleman v. Miller, 307 U.S. 433 (1937), while failing to address a later passage in that decision that renders his advisory opinion irrelevant and nugatory.

Herring quotes the following passage from Coleman v. Miller, 307 U.S. at 450: “Article V, speaking solely of ratification, contains no provision as to rejection.  Nor has the Congress enacted a statute relating to rejections.”

Herring fails to mention or address the following passage from Coleman v. Miller, 307 U.S. at 452: “We have held that the Congress in proposing an amendment may fix a reasonable time for ratification. Dillon v. Gloss, 256 U.S. 368. There we sustained the action of the Congress in providing the proposed Eighteenth Amendment that it should be inoperative unless ratified within seven years.” Continue reading

Delegating Emission Standards to California Is Unconstitutional

by Emilio Jaksetic

As Steve Haner noted in a December 10 post, “Now California Will Control Virginia’s Auto Sales,” the Virginia Air Pollution Control Board (VAPCB) adopted a regulation that places ultimate control of Virginia’s vehicle emission standards in the hands of the California Air Resources Board. Although the VAPCB acted pursuant to a statute enacted by the General Assembly in 2021, the regulation is unconstitutional.

Such a conclusion may seem odd given that the VACPB regulation was issued as a result of ostensibly valid steps. First, the General Assembly has the authority to set vehicle emission standards for Virginia. Second, the General Assembly has the authority to delegate to VAPCB administrative responsibility to implement the vehicle emission standards set by the General Assembly. Third, there does not appear to be any procedural irregularity in the VAPCB’s issuance of the vehicle emission regulation. However, those three actions culminated in a regulation that violates the Virginia Constitution.

Legislative power is vested in the General Assembly. Virginia Constitution, Article IV, Section 1. Although that power is broad, it is not unlimited; the General Assembly’s power to legislate is constrained by the Virginia Constitution and the U.S. Constitution.  Terry v. Mazur, 362 S.E.2d 904, 908 (1987). Continue reading

Why Is UVa Hiding Its Campus Climate Survey Results?

… but you can’t see them! (Image credit:

by Walter Smith

Jim Bacon recently posted an article urging Governor-elect Youngkin to take full advantage of his higher-ed Board of Visitors appointments if he wishes to remain true to the education reform momentum that played a big part in his election. Bacon’s bits (pun intentional!) on the Boards as political plums with a go-along-to-get-along chumminess seemed dead on to me. In truth, academia is a different world. A far different world.

I came out of the corporate world. I worked as counsel in an NYSE company and a private equity company for large insurance brokerages. Governance in the academic world is something I intend to address in a complete, and fair, manner later, after gathering a great deal more info. In the meantime, permit me to share one example of how governance works — or doesn’t work — in academia.

After the 2017 Unite the Right riot in Charlottesville, the University of Virginia took many actions in response. One result was the Racial Equity Task Force report. Another was the formation of the Deans Working Group, headed by Risa Goluboff of the law school. Goluboff made four proposals to the Board in March of 2018, all of which were approved.*

One of those approvals allocated $80,000 to a “university-wide campus climate survey.” This survey, paid for with public money, has never been released. Why? Given the BoV approval, does it not belong to the public? Continue reading

Redistricting: Partisan Fighting Continues

Virginia Supreme Court Building

by Dick Hall-Sizemore

The diabolical person who came up with the framework for the state constitutional amendment establishing a redistricting commission was not content with designing it so that it would fail due to partisan wrangling. He also injected partisan politics into the phase in which the state Supreme Court must come up with the plans.

If the commission cannot agree to plans to be submitted, the task falls to the Supreme Court. State law requires the Court to choose two special masters to assist it in developing the plans, one each from lists of three submitted by the leaders of each of the two political parties in the General Assembly. Among other requirements, the persons appointed by the Court shall have the “requisite qualifications and experience to serve as a special master and shall have no conflicts of interest.” The Republican list includes the following: Continue reading

What Is Going on in Portsmouth?

by Kerry Dougherty

Are there cities that are more dysfunctional than Portsmouth, Virginia?

Yes, of course there are.

There’s always San Francisco where you can get an app for your phone called “SnapCrap” to allow you to report piles of human feces to city sanitation workers.

There’s Chicago. The Windy City was recently designated the “rattiest” in America by Orkin. Lots of rodents there.

And there’s Seattle, which actually ceded city blocks to anarchists in the summer of 2020.

But you’ve got to hand it to Virginia’s “Old Port City,” which was once a bustling hub of commerce and charm. Now it’s competing for most boneheaded city in the U.S. where city and state officials trade lawsuits and accuse each other of vile motives. Continue reading

Herring Intervenes to Protect Hospital Competition… in Pennsylvania

by James A. Bacon

It’s encouraging to see that Mark Herring has taken a forceful action against an “anticompetitive hospital merger” in his final days as Attorney General. Too bad the targets of his judicial intervention are in New Jersey, not Virginia.

Herring has joined a bipartisan coalition of 26 attorneys general filing an amicus brief in federal court in support of a lower court ruling that would stop a merger of Penn States Hershey Medical Center and Pinnacle Health. As a press release from Herring’s office explains, states have a strong interest in ensuring the affordability, accessibility, and quality of health care.

“The public interest is best served by protecting vibrant competition in local healthcare markets,” asserts the press release. “States have experienced a wave of consolidation in healthcare that has resulted in higher prices without any substantial improvements in quality for consumers.” Continue reading

The Loudoun Way — School Rapes by a Member of a Progressive Protected Class

Loudoun County Commonwealth’s Attorney Buta Biberaj

by James C. Sherlock

Any time you think there is only one system of justice in America, consider these two stories I offer below, one a progressive dream and the other true.

The true story will show some progressives care more about their dogma than kids.

And any time you think only big city progressives don’t give a damn about child victims of crime, like in Chicago or New York, read the true one below.

It is underway in Loudoun County. Continue reading

Who Will Guard the Guards?

by Michael Fruitman and Jim McCarthy

Emily P. Newman is a member of the Virginia State Bar (VSB), admitted, i.e., licensed to practice, in 2012.

Publicly available information reveals that Ms. Newman was a staffer in Congress and in the administration of Donald Trump up to the time of the election of Joe Biden. It is unclear precisely when Newman separated from federal employment. However, on November 25, 2021, she signed onto a federal lawsuit in Michigan, listing her participation as “of counsel” along with eight other attorneys and identifying the Texas office address of Sidney Powell (of Kraken fame) as hers. The Michigan proceeding was one of four federal actions in which Newman participated. The complaint sought to invalidate Michigan’s vote for presidential electors committed to Biden. It was later amended to request emergency injunctive relief and signed by the identical group of attorneys.

The group of nine attorneys in the Michigan legal action were members of the bar in eight state jurisdictions (DC, GA, MD, MI, NJ, NV, NY, and VA). Federal Judge Linda Parker’s decision opened with a clear statement of attorney responsibility. Read the full decision, entered August 25, 2021, here.

Continue reading

Convicted, But Innocent–Emerson Stevens

Emerson Stevens with his attorneys, Jennifer Givens and Deidre Enright.   Photo credit: Alec Sieber/ UVa School of Law

by Dick Hall-Sizemore

In August, Governor Northam granted a full pardon to Emerson Stevens. Stevens had been convicted of killing a young mother of two in 1985 in a small fishing village on the Northern Neck. The pardon was based on evidence that “reflects Mr. Stevens’ innocence.”

Stevens maintained from the beginning that he was innocent. His first trial ended in a hung jury. The second jury found him guilty and sentenced him to 164 years in prison.

He was paroled in 2017 after being held in jail and prison for more than 30 years for a crime he did not commit. Although free on parole, he continued to fight to clear his name. Continue reading

Former Norfolk Sheriff Convicted of Fraud and Bribery

Former Norfolk Sheriff Bob McCabe

by Dick Hall-Sizemore

Here is another name to add to the list of corrupt public officials — former Norfolk Sheriff Bob McCabe.

Earlier this week, a federal jury convicted him of all 11 counts of fraud, conspiracy and money laundering. The charges covered actions committed over a 22-year period. They included accepting gift cards to expensive restaurants, Redskins tickets, free catering for his annual golf tournament, an all-expenses paid trip to Nashville, “loans” that were never repaid, and thousands of dollars in cash to spend during casino trips. He was also charged with providing inside information to select companies seeking contracts with the sheriff’s office.

Testifying in his defense at his trial, McCabe admitted to violating campaign finance laws, but claimed it was not intentional. “I just didn’t pay attention to them like I should have.” He also admitted getting loans and gifts from businessmen who had multi-million dollar contracts with the city’s jail, but insisted, “I’ve never taken a bribe in my life.” The “loans” and gifts were because they were friends, he insisted. Continue reading

Supreme Court Refuses to Block Vaccination Mandate; Judicial Review Generally

Justice Amy Coney Barrett
Photo credit: Politico

by Dick Hall-Sizemore

The U.S. Supreme Court has flatly turned down a request for an injunction against the enforcement by Indiana University that all students and staff be vaccinated against COVID-19. This request was an appeal of a unanimous decision of the Court of Appeals for the Seventh Circuit denying the request.

The order was issued by Justice Amy Coney Barrett, who is assigned to review petitions from the circuit in which the university is located. She did not give any reasons in her order. According to Adam Liptak, a long-time New York Times reporter covering the Supreme Court, “She acted on her own, without referring the application to the full court, and she did not ask the university for a response, Both of those moves were indications that the application was not on solid legal footing.” So much for the issue of the constitutionality of vaccination mandates.

Regarding the recent discussion on this blog about the “waiver” of constitutional rights, that notion is nonsensical. It presumes that constitutional rights are clearly spelled out and are absolute and therefore cannot be waived. First of all, the Supreme Court has never ruled that any right is absolute. Even freedom of speech has some limitations. Second, many provisions of the Constitution are less than crystal clear. The prime example would be the guarantee of “due process of law.” Continue reading

Return to Autocracy in Virginia

Why is this man smiling?

by James C. Sherlock.
Updated Aug 13, 12:15 PM

It was so easy to predict that I can claim no special prescience. I wrote a week ago:

“The Governor’s 15-month emergency powers expired June 30, and, God, does he miss them…. (H)ow long (will the) governor put up with the lack of emergency powers?”

If you guessed a week, you win.

Today’s headline: Virginia Gov. Orders Mask Mandate for State’s K-12 Schools

Virginia Gov. Ralph Northam on Thursday announced a public health emergency order to require masks in all indoor settings for the state’s K-12 schools.

The Governor has a legal basis for the order, § 32.1-13 of the Code of Virginia. The State Health Commissioner, acting for the Board of Health when it is not in session (§ 32.1-20 of the Code of Virginia),

may make separate orders and regulations to meet any emergency, not provided for by general regulations, for the purpose of suppressing nuisances dangerous to the public health and communicable, contagious and infectious diseases and other dangers to the public life and health.

If you are wondering, the Board of Health meets four times a year for a couple of days each meeting. And there is no mention of a role for the General Assembly.

This is not the same law that Northam used for 15 months. New ball game. Continue reading

Oyez, Oyez. The Virginia Court of Appeals is Changing.

The newly elected judges to the Virginia Court of Appeals.Top row: Dominique Callans, Doris Henderson Causey, Vernida Chaney, Frank Friedman
Bottom row: Judge Junius Fulton, Lisa Lorish, Judge Daniel Ortiz, Stuart Raphael
Photo credit: Virginia Mercury

by Dick Hall-Sizemore

One of the General Assembly’s most cherished prerogatives is the election of judges. When one party controls both houses of the legislature, that power is particularly relished. The Democrats had the opportunity in this special session to exercise its prerogative in a big way by electing eight judges to the Virginia Court of Appeals.

The recent expansion of the jurisdiction and size of the Court of Appeals accounted for most of the unusually large number of available judgeships. The 2021 General Assembly provided for an appeal of right to the Court of Appeals in every civil case. Because that policy decision will result in an increase in the workload of the Court of Appeals, the legislation also increased the number of judges on that court from 11 to 17. Two vacancies on the existing court accounted for the other available judgeships. Continue reading

SCOTUS: Give Rochelle Walensky Something to Cry About

by Kerry Dougherty

It won’t be long before the U.S. Supreme Court smacks down CDC Director Rochelle Walensky’s order that revived until October 3rd a glaringly unconstitutional eviction moratorium.

I can’t wait.

They’ll give the woman who was blubbering about her feelings of “impending doom” last winter something to cry about.

In fact, the judiciary is already flexing its muscles. After landlord groups submitted an emergency filing to block the moratorium in D.C. federal court, a judge demanded that the government respond by tonight at 9 p.m.

Putting aside the audacity of a U.S. president urging unelected bureaucrats to issue clearly unconstitutional orders, this entire impulse — to side with renters over landlords — is a leap toward Marxism. Continue reading