Category Archives: Courts and law

Photo Project Spotlights Pipeline Impact


By Peter Galuszka

Veteran photographer Karen Kasmauski, who grew up in Norfolk, has a brilliant online project that shows the human and environmental impacts of the Atlantic Coast Pipeline.

She is a senior fellow with the International League of Conservation Photographers, a non-profit group that funded her project that centers mostly in rural Nelson and Buckingham Counties that would be dissected by the natural gas pipeline.

She combines spectacular aerial photos with deep close ups of people.

One of her subjects is Ella Rose, a retiree who lives in a small house in Union Hill. She was living a quiet happy life in her natural setting until she got a letter from Dominion Energy stating that they would be routing the ACP about 150-feet from her house.

Union Hill is a touchpoint for pipeline controversy since it is largely African-American community that ACP officials have selected for a compressor station. It is one of similar localities that seem to be targeted with other loud and disruptive equipment along the pipeline route. Continue reading

Is It the Death Knell For Dominion’s Pipeline?

By Peter Galuszka

For more than a decade, hydraulic fracturing drilling for natural gas and oil has transformed the American energy picture, leading to big revivals in such energy fields such as Marcellus in West Virginia and Pennsylvania and the Bakken field in the Dakotas.

It has prompted Dominion Energy and its utility partners to push forward with an $8 billion or so Atlantic Coast Pipeline that will take Marcellus gas through Virginia all the way to South Carolina. The project, tied up in court fights, has been enormously divisive as property owners have protested the utilities’ strong arm methods of securing rights of way.

But now there’s clear evidence that the fracking boom is over, and that has huge implications for the ACL project. The reason? Oil and gas prices have dropped thanks to a perfect storm of issues. There’s the coronavirus pandemic tanking the U.S. economy, bitter energy wars between Russia and Saudi Arabia, and the fact that fracking gas and oil rigs are enormously expensive and wells can produce for only a short period.

The Hill reported last week: “Oil sank to $23 (a barrel) from a high of $53 in mid-February, far below the break even point that producers need to drill new wells to maintain supply, and with volumes rapidly diminishing at existing wells.”

The newspaper points out that a fracking well can cost more than $10 million while a traditional well is only $2 million. As price pressure mounts, the number of wells nationally has plummeted from 790 to 772 in one week.  At the Bakken field, reports The Washington Post, producers are cutting costs.

The situation has clear implications for the ACL project which was conceived at the height of the Marcellus boom. Dominion claimed that the gas would be badly needed in coming years while others claimed there isn’t enough demand. Continue reading

Dare County, N.C., closes its borders

By DJ Rippert

From Outer Banks to Outer Mongolia. Dare County, N.C. issued orders last week closing its borders to non-residents. Dare is a coastal county just south of Currituck County, N.C., which borders Virginia. Many Virginians know Dare County from Outer Banks vacations in towns such as Duck or fishing trips launched from Manteo. Checkpoints into and out of Dare County are apparently now manned by law enforcement officers who will check IDs to ensure that travelers are residents of Dare County or have pre-authorized transit permits issued by Dare County. As of last week there were no confirmed cases of COVID-19 in Dare County, and it seems county officials want to keep it that way.

Is it legal? Some are questioning whether officials in Dare County can legally enforce a prohibition against non-residents entering the county. Apparently they can. North Carolina law, specifically N.C. General Statute 166A-19.31, allows local officials to control access and ingress to their jurisdiction during times of emergency. Given the Coronavirus outbreak, local officials in Dare County have decided to invoke that law.

We want your taxes but not you. Dare County has many vacation homes owned by non-Dare County residents. These homes are typically expensive and generate a material amount of tax revenue for the county. Originally, non-resident owners of these homes were allowed entry into the county by showing their tax receipts for the property along with valid ID. Yesterday that changed. Dare County is now excluding non-resident property owners from entering the county.

Commentary. I was originally predisposed to giving Dare County officials the benefit of the doubt regarding the border closure. For one thing all those expensive and unoccupied beach homes could be targets for burglars taking advantage of the Coronavirus outbreak. However, my perception changed when those same officials decided to bar entry for non-resident property owners. These are people who have invested in the county, who pay taxes to the county and who should have every right to go to their properties. I have no idea if Virginia law would permit the same type of buffoonery from our local officials. Let’s hope not  However, even if such actions are allowed, I hope no Virginia jurisdiction would follow the selfish, arrogant and small minded actions of the officials in Dare County, N.C.

Virginia’s Vengeful Politicians

LaBravia Jenkins

by Kerry Dougherty

Terry McAuliffe is a terrific politician. If you’ve met the former Virginia governor you know what I mean. He’s smooth. He oozes charm.

Like many skilled politicians, underneath that affable exterior lurks a ruthless operator with an elephantine memory.

Just ask LaBravia Jenkins, the well-respected commonwealth’s attorney for the City of Fredericksburg. It appears that she may have lost a bid to become a general district court judge last week over a four-year-old grudge harbored by McAuliffe and his disciples.

Another commonwealth’s attorney, Chuck Slemp, of Wise County was also bumped, apparently for the same reason.

In 2016, Jenkins was one of 43 prosecutors who signed a friend-of-the-court brief opposing McAuliffe’s blanket restoration of voting rights to more than 200,000 felons.

The Virginia Supreme Court agreed and found McAuliffe’s sweeping move unconstitutional. Governors are required to restore rights on a case-by-case basis. Continue reading

Yanking Drivers’ License Over Unpaid Court Costs Is Inhumane

by Kerry Daugherty

Many years ago, OK, 11 to be exact, I foolishly zipped along Rt. 58 through Emporia.

Yep, the speeding capital of the Old Dominion.

I saw the flashing lights in my rearview, heard the screaming sirens and prayed that the cop was chasing one of the cars ahead of me.

He wasn’t.

It’s one thing for out-of-staters to get nabbed along that rural ribbon of alternating 45, 55 and 60 mph speed limits with a cop car lurking behind every bush, but those of us who live in Virginia should know better.

Despite begging the officer for just a warning, and explaining that I had a good excuse: I’d been listening to a football game on the radio and Ole Miss just scored a touchdown on LSU. I’d accidentally mashed the accelerator in celebration. Continue reading

How Virginia Would Fare Under President Biden, Part 1

By DJ Rippert

And then there were two. Today, Elizabeth Warren announced that she will withdraw from the presidential race. That leaves Joe Biden, Bernie Sanders and Tulsi Gabbard (yes, she’s still running) as the remaining candidates for the Democratic nomination. Given that Tulsi Gabbard has exactly one delegate (from American Samoa where she was born), the odds of her prevailing are so low that the race can safely be considered a two- man contest. Two weeks ago Joe Biden’s campaign seemed deader than disco. Then came Super Tuesday. Now he’s the front runner.

It seems worthwhile, then, to consider how Biden’s announced policies would affect Virginia if he were elected president this November. Politico keeps an updated list of the candidates’ positions on the issues which you can see here. Politico records the candidates’ positions using fifteen categories. This blog post examines the first five categories — criminal justice, economy (excluding taxes which is a separate category), education, elections and energy (including the environment and climate change). The remaining ten categories will be examined in future articles.

Continue reading

Virginia’s Top Employment Cop Adds Enforcers

Virginia’s Powerful Top Employment Cop, Attorney General Mark R. Herring

By Steve Haner

The final state budget is still in negotiation, but it could add as many as five new enforcement staff to the Office of the Attorney General to seek out and prosecute discrimination in Virginia’s workplaces, using old and new definitions of what is prohibited. The price tag looks to be about $600,000 per year.

The Virginia Senate proposed budget amendments to that agency’s budget for three new people to enforce two pending Senate bills. The House of Delegates budget added five new lawyers and staff, based on its versions of those same two bills plus two additional bills granting the Attorney General new tasks and powers.

Some of the bills have been discussed previously on Bacon’s Rebellion. Both the House and Senate are passing versions of the Virginia Values Act (such as House Bill 1663 ) and both have bills to prohibit and punish discrimination against pregnant workers (see House Bill 827). That bill has not been discussed, but it creates the same opportunities for the aggrieved to sue in court for actual and punitive damages.  Continue reading

Would Legal Medical Marijuana in Virginia Reduce Opioid Addiction?

Courtesy of AmericanMarijuana.Org

By DJ Rippert

The lesser of two evils. The ongoing 2020 Virginia General Assembly session has generated a lot of debate over gun control. Proponents of stricter firearms regulation cite reduced gun violence as a goal. While gun-related deaths (including murder) are a real problem, those deaths are less frequent than fatal opioid overdoses. In 2017, there were 455 murders in Virginia versus 1,241 drug overdose deaths involving opioids. The number of fatal opioid overdoses in Virginia rose from about 500 in 2010 to over 1,200 in 2018 while the number of gun related deaths (of all types) rose from 868 to 1036 over the same period. While it’s fair to say that Virginia has taken many steps to deal with the opioid crisis there is one step that has not been taken: legalization of medical marijuana. Recent studies point to the fact that most states adopting legal medical marijuana see an immediate reduction in opioid prescriptions after medical marijuana is legally available. Continue reading

Racial Preferences in Energy Bill Are Unconstitutional

Energy construction projects soon subject to racial hiring preferences

by Hans Bader

Virginia’s new Democratic legislature is passing an energy law that contains racial preferences. But to try to get around constitutional restrictions on racial discrimination, it is primarily targeting such preferences to “predominantly-minority areas,” rather than to minority individuals. This doesn’t immunize this legislation against a constitutional challenge, but it does complicate things for challengers.

Both houses of the Virginia legislature have passed passed the “Virginia Clean Economy Act” (VCEA). It will increase residents’ utility bills a lot in the years to come. It also provides jobs and job training reserved for areas that are predominantly minority or predominantly lower income (HB 1526 and SB 851).

The VCEA requires a utility, in constructing an offshore wind generation facility, to “give priority to the hiring of local workers, including workers” from “a community in which a majority of the population are people of color.” Such facilities are likely to cost billions to construct, paid for by higher utility bills.

The VCEA also requires that 50% of deficiency payment revenue from the RPS (Renewable Energy Portfolio Standard Program) be directed to “job training programs” and 30% of revenue be directed to “renewable energy programs” in “historically economically disadvantaged communities,” which include low-income communities or any “community in which a majority of the population are people of color.” This is expected to be a lot of revenue, because it is what utilities will pay if they fail to hit their renewable energy targets, and few expect them to meet their targets. Continue reading

Democrats Slow Down on Criminal Justice Reform

by Dick Hall-Sizemore

As Steve Haner remarked in an earlier post, the changes being enacted by Democrats in this year’s session are on many fronts and more extensive than many observers had anticipated. It is hard to keep up.

The same is true in the criminal justice area, but, perhaps to a lesser extent. A lot of changes in the law are being made, but, as for major systemic change, the Democrats have decided to slow down and look at the issues a little bit harder.

Sen. John Edwards, (D-Roanoke, submitted a bill reinstating parole (SB 91) would undoubtedly have been the one to make the most change in the system. Even after it was amended to prevent violent offenders from being eligible for parole, the Senate Courts of Justice Committee decided to carry it over until next year, pending study. (It is not clear who or what will study it. When parole was abolished, there was a major legislative study. Efforts to look at parole since then have also involved some sort of committee or task force.)

Another area in which the leadership has elected to go slow is that of criminal record expungement. According to the Daily Press, nearly 30 bills related to expungement of convictions for marijuana possession, larceny, and prostitution offenses were introduced. The chairmen of the House and Senate Courts of Justice Committees agreed to carry those over and request the Virginia State Crime Commission to study the issue. Del. Charniele Herring, D-Alexandria, chairman of the House committee, said, “This is something I believe in. I just want to do this right.” Continue reading

Bill Broadens Definition of Sexual Harassment

by Hans Bader

On January 30, a subcommittee in Virginia’s House of Delegates voted 5-to-2 to adopt a revised version of HB 1418, a bill to expand employers’ liability for sexual harassment. The bill originally applied to employers with six to 14 employees. Now it applies to all employers with more than five.

Originally, while the bill provided for unlimited damages in sexual harassment cases, it limited court-ordered attorney fees payable to the plaintiff’s lawyer to 25% of the damages awarded. Now, the limit on attorneys fees has been removed, so an employer can be ordered to pay far more in attorney fees than it ends up paying in damages to the plaintiff.

The revised version also changes the definition of sexual harassment, and makes employers liable for “workplace harassment” based on additional factors other than sex. Its sexual harassment definition omits a critical element of the definition of sexual harassment according to the U.S. Supreme Court and federal appeals courts, “unwelcomeness.” The amended version of HB 1418 adopted on January 30 has a long list of “rules” that “shall apply” in defining sexual harassment (probably found in no other state or federal law), yet it omits the core element of “unwelcomeness” that the Supreme Court says defines sexual harassment.

Unwelcome means unsolicited and uninvited. If a worker invites or solicits something from a co-worker, they can’t later sue over that something, even if it offended them. Continue reading

Virginia Rated Worst State for Partisan Gerrymandering

By DJ Rippert

They’ll be back (in office forever). The USC Schwarzennegger Institute released a report finding that Virginia had the highest degree of partisan gerrymandering among all U.S. states. The report analyzed the “statewide popular vote in 2017 or 2018 state legislative elections and the partisan composition of the state legislative chambers in 2019.” While other studies draw somewhat different results, Virginia is often near the top of the list of “most gerrymandered states.” In mid-2019 the U.S. Supreme Court upheld a lawsuit by Virginia voters challenging Virginia’s voting districts on racial grounds.

As the USC report states, “Self-interested legislators who seek reelection have long attempted to draw their own districts to protect their personal reelection chances and to improve the electoral odds of their political party.” Repeating for emphasis, Virginia is not only one of many states with extreme gerrymandering, it is rated by this study as the most extreme case of partisan gerrymandering. This is no accident. It is the result of deliberate actions by members of our General Assembly hailing from both parties.

Partisan gerrymandering is a form of voter suppression and disenfranchisement. It should not be allowed and Virginia should certainly never be the worst offender. Beyond that, the Virginia Constitution states, “Every electoral district shall be composed of contiguous and compact territory and shall be so constituted as to give, as nearly as is practicable, representation in proportion to the population of the district.” A state does not become the worst example of partisan gerrymandering in the United States by using contiguous and compact districts. Once again our General Assembly’s actions show that they believe laws are for the little people and not for themselves. Continue reading

Finished with the Second Amendment Virginia Dems Now Attack the First (and Sixth)

By DJ Rippert

Sticks and stones? Del. Jeffrey M. Bourne, D-Richmond, has introduced HB1627.  The bill is entitled, “Threats and harassment of certain officials and property; venue.”  The proposed legislation strengthens a series of very questionable laws already on the books.

The first few sections of the existing law make it illegal to make threats in written communications to kill or do bodily injury to a person in a variety of occupations and situations. For example, threats to elementary school, middle school or high school employees are called out in the existing legislation. Similarly, threats made on school buses, on school property, or against health care providers are also explicitly illegal. Beyond wondering why certain classes of people or places deserve extra protection from death threats or threats of bodily harm the existing legislation seems pretty straightforward. Ill-conceived and overly limited but straightforward.

Then comes the section entitled, “Harassment by computer, penalty.” This section goes well beyond outlawing death threats and threats of bodily harm. It specifically references Virginia state politicians as needing legal protection from such things as threatening illegal or “immoral” acts. Continue reading

Virginia Likely to Avoid “Marijuana Legalization Trap” in 2020

By DJ Rippert

Reefer madness. Virginia is notably lagging most other states in marijuana reform. Across America recreational marijuana is legal for adults in 11 states and legal for medical use in 33 states. Twenty-five states have decriminalized the possession of small amounts of marijuana. In Virginia marijuana is illegal, criminalized and unavailable for medical use. Yet change is blowing like smoke in the wind. As of today, there are six decriminalization bills pending in the General Assembly along with three bills for expungement of prior convictions, two legalization bills, and four bills to implement a medical marijuana regime in Virginia. Depending on which bills pass …  Virginia could be looking at a near-term marijuana environment much different than its prohibitionist past. However, there are some combinations of events that could lead The Old Dominion into unintended (and negative) consequences.

Roach trap. One likely outcome from the 2020 General Assembly session is that possession of small amounts of marijuana will be decriminalized while efforts to legalize the recreational and medical use of marijuana will fail. This could put Virginia in a very sub-optimal position if neighboring states legalize marijuana. Virginia is a small state bordered by five other states and the District of Columbia. A very high percentage of Virginians live within an easy drive of neighboring jurisdictions. If Virginia decriminalizes while neighboring states legalize, the result will be effective untaxed legalization in much of Virginia. A surge of Virginians will drive over various borders to bring back marijuana purchased legally elsewhere. Marijuana use would increase in Virginia while none of the financial benefits of legalization (via taxes) would accrue to Virginia. But how likely is it that neighboring states will legalize recreational marijuana in 2020? Continue reading

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