Category Archives: Courts and law

Criminal Law and Public Safety Bills of Interest

By Dick Hall-Sizemore

Despite recently having a special session to devote to criminal justice reform, the General Assembly has a healthy docket of criminal law and public safety reform bills to consider this session. I have selected a few to highlight below. Unless otherwise noted, the bills are still in their original committees.

Democratic Priorities

Elimination of the death penaltySB 1165 (Surovell—Fairfax), HB 1779 (Carter—Prince William), and HB 2263 (Mullin—James City). The Senate bill has been reported out the Senate Judiciary Committee (why do they insist on changing longstanding committee names?) and is in Senate Finance (being a creature of habit, I will continue to use the former committee name, rather than Finance and Appropriations). Continue reading

The Cost of Criminal Justice Reform

By Dick Hall-Sizemore

Examining the projected costs of criminal justice reform enacted by the 2020 Special Session may be a bit of old news, but I think it is still useful.

The General Assembly has appropriated $27.2 million for the current biennium to support its criminal justice reform initiatives. If one includes the additional $800,000 included by the Governor in his introduced budget bill, the total is $28 million.

To be fair, $15 million of that total was in the form of one-time appropriations in the first year of the biennium. From the perspective of ongoing costs, the base budget in FY 2022 will have increased by about $10.7 million. However, much of the projected costs for some of these initiatives will not be incurred until subsequent biennia and the total overall cost will be substantially higher. Finally, some of the potential costs cannot be projected now. Continue reading

GE Sues Siemens Over Dominion Data Leak

by Steve Haner

General Electric (GE) has filed suit seeking major monetary damages from Siemens Energy in a Virginia federal court, alleging “willful and malicious misappropriation of GE trade secrets” as they competed to be suppliers to Dominion Energy Virginia. Dominion is not a named defendant, but an employee (reportedly now gone) is accused of sharing GE’s data with Siemens.

A copy of the petition is here, posted by Powermag.com in one of the many trade publication stories about the dispute. Here is one from Reuters and another from Barron’s, which has a paywall. General Electric is represented by the Richmond law firm Spotts Fain, P.C.

All Dominion ratepayers have a stake in assuring that the coming gigantic capital projects we will spend the rest of our lives paying for are built for at prices set by competition, not by insider dealing. On this, stockholder and ratepayer interests should align.

The allegation is that a senior Dominion employee – named in the pleading — provided GE confidential proprietary bid information to Siemens, giving Siemens a major advantage as it competed over a series of requests for natural gas generation proposals, contacts GE did not win. Continue reading

Confusing “Workplace Harassment” Bill is Back

by Hans Bader

“Old bills never die, they just wait for votes,” notes the East Bay Times. A bad bill can die in one legislative session, only to come back with a vengeance in the next session, and get passed due to more intense lobbying, or the death or retirement of opposing lawmakers.

That may happen this year in Virginia. One example is the resurrection of a complicated and confusing workplace harassment bill I discussed last year. It died in March 2020 on a 23-to-17 vote, apparently after legislators became concerned about the strange way it defined “workplace harassment.” That bill, HB 1418, banned both “sexual harassment” and “workplace harassment” at workplaces with five or more workers. It also redefined what “harassment” means.

That bill has now come back from the dead. It has been re-introduced in the House of Delegates as HB 2155. And a more extreme version of the bill was introduced in the state senate as SB 1360.

These bills say “conduct may be workplace harassment regardless of whether” the “conduct occurred outside of the workplace.” And they omit the requirement that conduct be “unwelcome” before it can constitute harassment. That requirement is found in federal sexual harassment laws and court rulings. Continue reading

A Last-Ditch Effort to Improve Regulatory Balance

By Steve Haner

In a matter of weeks, Dominion Energy Virginia is expected to initiate the long-awaited review of its revenues, expenses, and profits in front of the State Corporation Commission, the first since 2015. A series of bills in recent years has set rules for that process which constrain the SCC’s discretion and fix the game in the utility’s favor.

Behind the smoke and mirrors, Dominion’s goals were clearly discernable: Despite growing profits, prevent any reduction in base rates. Keep the base rates unchanged even though more and more operating costs were being moved over to activity-specific rate adjustment clauses. Limit or eliminate the threat of major refunds to customers. Somehow, every bill ended up accomplishing those things for the utility.    Continue reading

Northam Proposes Legal Marijuana in Va Within Two Years

by DJ Rippert

Ralph Reefer. On Wednesday the Northam Administration unveiled legislation to legalize recreational use of marijuana in Virginia. The legislation will be introduced by House Majority Leader Charniele Herring, D-Alexandria, and Senate President Pro Tempore Louise Lucas, D-Portsmouth. Sen. Adam Ebbin, D-Alexandria, and Del. Don Scott Jr., D-Portsmouth. Northam took up the cause of legalizing marijuana last November citing both racial equity and financial issues. Sale of legal marijuana would start by Jan 1, 2023, under the Northam plan. Continue reading

Northam’s Good Move: End Executions

The Martinsville Seven

By Peter Galuszka

Governor Ralph Northam will propose legislation to ban executions in the state. The move could end decades of systemic racism in the criminal justice system.

“I’ve strongly about this for a long time,” he was quoted as saying. The bill will be taken up by the General Assembly, which met in its 2021 session today.

If the bill passes, it would make Virginia the only Southern state to ban executions.

According to the Richmond Times Dispatch, 113 executions have been conducted in the state since the U.S. Supreme Court allowed executions to resume in 1976. Virginia’s vigorous efforts to kill those convicted of capital crimes gave it the dishonorable distinction of being No. 2 in the country after Texas which had 570 executions in that time frame.

Historically, African Americans have been executed at rates that exceed their numbers in the general population. Continue reading

Welcome to the Foxhole

by James C. Sherlock

I just posted this response to a relative who asked me to read a post by a left wing professor blaming Q’Anon for the violence in the capitol.

I read the article. I haven’t read enough of (name of the author) to characterize him, so I won’t.

I will, however address the violent fringes of American politics.

When I look at the pasty, scruffy-looking college students and millennial anarchists from this summer’s violence, I see a threat but one easily contained by police if let to do their jobs. The issue is that the violent left had political cover.  The mayors of the left could not bring themselves to effectively deal with their violence because they agreed with their politics.  

It is those leftist extremists and apolitical looters against which the nation’s cities boarded up their stores and restaurants right before the election. Not in case Donald Trump lost, but in case he won. A threat, but with political permission manageable because they are not generally individually tough or skilled at violence. If blue collar unions had backed and participated in that violence, it would have been a different story, but they did not.

When I look at the violent right, that is a completely different matter. These men and women are rough street fighters, many with backgrounds that have taught them how to exert violence efficiently and effectively.  Continue reading

Mark Zuckerberg, Call Your Lawyer

by James C. Sherlock

“You don’t need a Weatherman To know which way the wind blows.” — Bob Dylan, Subterranean Homesick Blues.

Consider this:

“Facebook was hit with twin lawsuits by the Federal Trade Commission and attorneys general from dozens of states on Wednesday, in one of the most serious challenges ever to the Silicon Valley giant. The cases could potentially result in Facebook being broken up.

Here’s what you need to know.

The FTC and the states accuse Facebook of abusing its dominance in the digital marketplace and engaging in anti-competitive behavior.

“Facebook’s actions to entrench and maintain its monopoly deny consumers the benefits of competition,” Ian Conner, Director of the FTC’s Bureau of Competition, said in a statement. “Our aim is to roll back Facebook’s anticompetitive conduct and restore competition so that innovation and free competition can thrive.”

And that story was dated Dec. 11, 2020. 

Maybe last week was not the best time for Facebook to kick that hornets’ nest with another potential antitrust violation. Continue reading

Race vs. Class in Education Personal Data Collection – An Alternative

by James C. Sherlock

Earlier I addressed the current method for collecting racial and ethnicity data for civil rights enforcement and found it lacking.

So why do we do it that way? Because we have done it for a long time? The constitutional concerns can’t be wished away, and there are new proofs available in genetic testing databases that the data are wrongly constructed and wrongly answered.

I spent some time in founding and running the nation’s largest military simulation facility in Suffolk, Virginia, in my last assignment for the Navy nearly 30 years ago.

What if we at least test alternatives using modern computer simulation methodologies and see what the results show? Simulations may give better estimates than the current system, or, importantly, show that civil rights concerns may be more efficiently and effectively focused on class rather than race. Continue reading

Another Major Judicial System Reform

by Dick Hall-Sizemore

Perhaps the most surprising item in the Governor’s recently-presented budget bill was the proposal to increase the size of the Virginia Court of Appeals by four judges, from 11 to 15. It is certainly one of the most controversial. The Republicans immediately decried the proposal as “court packing”.

As usual, the issue is more complicated than its opponents would have one to believe. The Governor’s proposal reflects the unanimous recommendation of a two-year study conducted by a working group appointed by the Virginia Chief Justice and the Judicial Council. (The membership of the Council consists of eight judges, two attorneys in private practice, and the chairmen of the House and Senate Courts of Justice Committees.) That recommendation is supported by both the Virginia Chamber of Commerce and the Virginia Manufacturers’ Association. Continue reading

You Can’t Make This Stuff Up: Fairfax Courts Edition

Judge David Bernhard

by Hans Bader

A judge in Virginia’s Fairfax County has ruled that portraits of white judges must be removed from a courtroom to protect a black criminal defendant’s right to a fair trial. The idea that white people are so scary or racially offensive that just seeing them deprives minorities of a fair trial would have been viewed as laughably racist even a few years ago. But in today’s bizarre political climate, this idea is viewed as progressive. So the judge’s ruling was applauded by the liberal media.

Judge David Bernhard ruled that the white portraits had to be banished, in Commonwealth v. Shipp. As he put it, “The Defendant’s constitutional right to a fair jury trial stands paramount over the countervailing interest of adorning courtrooms with portraits that honor past jurists,” because those portraits were “overwhelmingly of white individuals.” Since 45 of the 47 judges were white, he viewed their portraits as “symbols” that black people are “of lesser standing.” Continue reading

A Threat to Due Process Comes from…(Drum Roll)… Virginia’s Division of Human Rights

by Emilio Jaksetic

On November 18, 2020, Attorney General Mark R. Herring informed NAACP Loudoun Branch and Loudoun County Public Schools (LCPS) that a Final Determination (Determination) had been made by the Division of Human Rights (DHR) in DHR Case No. 19-2652. In making its Determination, DHR used a procedure that poses a serious threat to due process, specifically using confidential witness statements as evidence against the LCPS.

The case addressed the admissions policies at the elite Loudoun Academy, where African American students were enrolled at lower rates than Asians and whites. While describing how the DHR collected information regarding the witnesses offered by the NAACP, the Determination makes the following statement:

Because of apparent witness concerns surrounding confidentiality and retaliation, the Division includes below a select group of pertinent narratives reported to the Division by the fact witnesses who responded to the Division’s inquiry through correspondence or interview.

Following that statement are slightly more than six pages of extracts from multiple sources who are identified only generically. Nothing in the Determination indicates whether LCPS was provided with a copy of the statements from which the quoted extracts were taken. Even if LCPS counsel received a copy of those statements, the testimony might well have been redacted to protect the identity of confidential witnesses (1VAC45-20-82 and 1VAC45-20-83.C).  (The Department of Law’s regulations implementing the Virginia Human Rights Act are available here.)  Continue reading

Amanda Chase: Chasing the Crazy Vote

Amanda Chase

by Kerry Dougherty

At a time when many of us are railing against Gov. Ralph Northam’s arbitrary and capricious executive orders, a Republican who wants to replace him is calling on President Trump to declare martial law.

Just what we need, another governor with tyrannical impulses. Not that State Sen. Amanda Chase has any chance of winning next year.

Chase published this on her Facebook page.

(Joe Biden) Not my President and never will be.  The American people aren’t fools.

We know you cheated to win and we’ll never accept these results.  Fair elections we can accept but cheating to win; never.  It’s not over yet.  So thankful President Trump has a backbone and refuses to concede.  President Trump should declare martial law as recommended by General Flynn.

Martial law?

By tossing out such a vacuous proposal Chase shows herself to be an unserious candidate unworthy of consideration to shape public policy. Continue reading

Legal Futility of Virginia’s Online Petitions

by Emilio Jaksetic

Currently, online petitions are advocating the removal of the superintendent of the Fairfax County Public Schools and the principal of Thomas Jefferson High School. (See the petitions here and here.)

Such online petitions are legally futile.

Under Virginia law, removal of elected officials such as Fairfax County school board members is handled differently from removal of appointed officials such as a principal or superintendent. According to Virginia Code, Section 24.2-230:

Appointed officials. “[A]n appointed officer shall be removed from office only by the person or authority who appointed him unless he is sentenced for a crime as provided for in [Section] 24.2-231 or is determined to be ‘mentally incompetent’ as provided for in [Section] 24.2-232.”

Accordingly, no petition signed by Virginians — regardless of the number of signers — can force the removal of an appointed official in Virginia. At best, a petition signed by Virginians can be presented in the hope of persuading the appointing authority. Continue reading