Category Archives: Courts and law

What About Those Folks Facing Eviction, Governor?

By Dick Hall-Sizemore

In his July 24 letter to the Chief Justice, the Governor requested the Supreme Court extend its moratorium on evictions.  He concluded his request by saying, “This [the moratorium] will provide my administration the time to both work with the General Assembly to develop and pass a legislative package that will provide additional relief to those facing eviction and to expand financial assistance for tenants through our rent relief program.”

So, now that the General Assembly is in session, what has the Governor done for those who lost their jobs due to the pandemic and are facing eviction? The answer is: (1) some help in delaying evictions and (2) no help, so far, in getting the money needed to pay the rent. Continue reading

The Tell Tale Heart: Racism in Richmond Medicine

By Peter Galuszka

On Saturday, May 25, 1968, the Medical College of Virginia, now part of Virginia Commonwealth University, made medical history.  A surgeon recruited from Stanford University a couple of years before successfully transplanted the heart from one middle-aged man to another.

MCV officials in Richmond officials were ecstatic. Organ transplants were a hot, fairly new surgical procedure. Once stuck in the junior varsity leagues of medical training and research, MCV was basking in glory from media coverage.

There was one peculiarity that no one seemed to notice. The name of the heart donor was missing. As it turned out, the donor was Bruce Tucker, a Richmond Tucker happened to be African-American.

Tucker had suffered a serious brain injury from a fall the day before. He was taken to MCV. Hospital officials made a perfunctory search for his relatives. Tucker’s brother was desperately looking for him and his business card was in Bruce’s pocket. No one found it.

So, after Bruce was pronounced dead, his heart was removed and placed in the chest of Richard G. Klett, a white business executive from Orange. This shocking story is well documented in a highly readable book by Richmond author and journalist Chip Jones that has been just published by an imprint of Simon & Schuster. Tucker’s brother finally located hospital officials who started talking about an autopsy and that he needed to find a funeral director. Continue reading

The Hearings Are Over, Let the Battles Begin

By Dick Hall-Sizemore

The House Committees on Courts of Justice and Public Safety held three meetings/public hearings in preparation for the General Assembly’s consideration of criminal justice and police reform in the upcoming special session. The sessions were billed as public hearings, but, in actuality, most of the time was spent in hearing from invited speakers. Comments from members of the public were relegated to the end of the three-hour period and each speaker was limited to three minutes. At each session, only about 10 members of the public made comments.

The subsequent list of criminal justice legislative issues adopted by the House leadership for its special session agenda can be found here. Remarkably, all but three items were also included on the list released earlier by the Virginia Legislative Black Caucus. (See my compilation of that list here.) The only items not on the VLBC list was the Attorney General’s proposal that his office be authorized to conduct “pattern or practices” investigations of police departments and two vaguely-worded proposals relating to vetting law-enforcement applicants and diversifying the Committee on Training of the Department of Criminal Justice Services (DCJS).

The VLBC proposals missing from the Democratic Caucus list are ones to “defund” the police and regulate, by Code, the use of force by police. Obviously, the Democrats knew what they wanted going into the meetings and tailored their lists of speakers to ensure they got it. Based on the resulting list of proposals, the meetings may as well have not been held. Continue reading

COVID Workers Comp On House Democrat Bill List

By Steve Haner

The coming Special Session of the General Assembly will be narrowly focused but filled with controversy, based on the legislative wish list just released by House of Delegates Democrats. Only two bills listed fall outside of the major categories of “COVID-19 Relief” or “Criminal Justice and Police Reform.”

Under the heading “COVID Relief,” the Democrats wish to reopen their drive for employee paid leave and. as predicted. want to designate COVID-19 as a workplace disease.

The Senate Democrats have their own list, released in June and reiterated in a more recent news release. The release claims that one of the bills is ready for public viewing, but provides no link and the bill mentioned is not yet available through Legislative Information Services. Neither caucus has yet revealed any thoughts on how to amend the state budget, a task where Governor Ralph Northam naturally takes the lead.

Here is the list from the House Democratic Caucus, with some thoughts following:

COVID-19 Relief:

  • Requiring businesses to grant paid sick leave for Virginia workers.
  • Prohibiting garnishments of stimulus relief checks. (Office of Attorney General bill)
  • Establishing a presumption of workers’ compensation for first responders, teachers, and other high-risk essential workers.
  • Providing immunity from civil claims related to COVID-19 for complying with health guidance.
  • Combating price gouging for Personal Protective Equipment. (Office of Attorney General bill)
  • Protecting Virginians from eviction during a public health emergency.
  • Creating a Commonwealth Marketplace for PPE Acquisition.
  • Mandating transparency requirements for congregate-care facilities during a public health emergency.

Continue reading

Law School Deans Ask for Mandated Anti-Racism Training

University of Virginia law school dean Risa Goluboff

by Hans Bader

As lawyers like Barack Obama have noted, law school is already a year too long, with lots of nonessential classes. As a result, law students often graduate with over $150,000 in student-loan debt. Yet law students may soon be required to take more unnecessary classes.

One hundred and fifty law school deans have asked the American Bar Association to require that “every law school provide training and education around bias, cultural competence, and anti-racism.” These include the deans at the University of Virginia, the University of Richmond, and the College of William & Mary.

In their letter, the deans argue that “preparing law students to be lawyers requires that they should be educated with respect to bias, cultural awareness, and anti-racism. Such skills are essential parts of professional competence, legal practice, and being a lawyer. … We are in a unique moment in our history to confront racism that is deeply embedded in our institutions, including in the legal profession.” Continue reading

A Constitutional Approach to Avoiding Evictions in Virginia

by James C. Sherlock

There has been extensive discussion here about minimizing residential evictions in Virginia in the time of COVID. I will offer a constitutional approach to achieving that objective.

A Broad Consensus

The Governor and General Assembly want to avoid evictions of residential tenants who are unable to pay rent due to COVID-related issues beyond tenant control. So does every landlord in Virginia. And indeed I think every citizen. We have broad consensus on that point.

The Democratic Governor and Democratic majorities in both houses of the General Assembly can do whatever they wish with legislation. In this case they may wish to create a temporary, COVID-related rent payment program.

But they will have to pay for it, as opposed to asking landlords to eat the costs.  That seems to me a valid and effective use for federal COVID money.

And the executive branch will have to administer it, not the courts and not the landlords.

Continue reading

Fool Me Once

By James C. Sherlock

I want every tenant who cannot pay his rent because of COVID to be able to stay in his home. I want every landlord who supports them to be paid for their forbearance so they can pay their own bills.

This post starts with both of those goals in mind.

It is about a Governor and a Virginia Supreme Court who created horrible judicial precedents that never needed to happen.

Jim Bacon’s column this morning well summarized the issues with the Virginia Supreme Court’s August 7 order: IN RE: AMENDMENT OF EIGHTH ORDER EXTENDING DECLARATION OF JUDICIAL EMERGENCY IN RESPONSE TO COVID-19 EMERGENCY.

That order reimposed until September 7 a previous Supreme Court denial of residential landlords’ access to the courts to gain adjudication of unlawful detainer actions by tenants accused of failure to pay rent and it banned eviction orders on that same basis.

The Governor and the General Assembly

Governor Northam has been hesitant to call the General Assembly into session because he cannot ultimately control what legislators do when they meet. Republicans and some Democrats appear poised to try to limit, especially in duration, some his virtually unlimited emergency authorities under Virginia law. When written, the drafters of that law simply did not imagine an emergency that would last for more than a month or two.

Continue reading

No Equal Justice for Landlords

The Virginia State Supreme Court extended yesterday the judicial moratorium on eviction proceedings for another 28 days. The split decision prompted a blistering rebuke from D. Arthur Kelsey, which L. Steven Emmert summarized yesterday in the post below, republished here from his blog, Virginia Appellate News & Analysis. — JAB

Today the court responds to the Governor’s request for reimposition of the judicial moratorium on eviction proceedings. A bare majority of the court grants that relief, suspending the issuance of writs of eviction from August 10 (that’s next Monday) through September 7, a period of 28 days. The moratorium only applies to writs sought for nonpayment of rent; a landlord can still evict a tenant who has breached a lease agreement in other ways.

With two exceptions, all previous judicial-emergency order have been unanimous. The exceptions are the first, issued March 16, where the chief justice acted before he could consult his colleagues; and the June 8 modification to the fifth order. That one cites “the agreement of a majority of the Justices of this Court,” and also suspended writs of eviction, among other landlord remedies. The order didn’t state which members of the court didn’t go along.

Today the court names names. Justice Mims signs the two-page order for his colleagues, Justices Goodwyn, Powell, and McCullough. This majority notes that the pandemic fits the definition of a disaster, since the Code defines that term to include a  “communicable disease of public health threat.” It goes on to note that that statute is triggered when the disaster substantially impedes the ability of citizens to avail themselves of the court system. The court accordingly does as the Governor had requested, in the terms that I mention above. Continue reading

BE HEARD Act Could Cripple Virginia Small Businesses

How about a law banning government harassment and hostile business climates?

by Hans Bader

Small businesses in Virginia could face a very different business climate next year due to Joe Biden’s support for laws like the BE HEARD Act. It could easily become law if Democrats take control of Congress and the presidency (as most pollsters expect).

Under the BE HEARD Act, even the tiniest employers with only one or two employees will face unlimited liability in lawsuits, for things like discrimination, or harassment committed by an employee. It would also redefine sexual harassment in an overly broad and confusing way that could lead to small businesses being liable for trivial acts or comments by an employee. These small businesses would also be liable for attorneys fees that could dwarf what they end up paying workers who sue them.

Right now, small businesses in Virginia aren’t covered by most federal discrimination laws like Title VII, unless they have at least 15 employees. This doesn’t mean they can get away with being racist. If they intentionally discriminate based on race, they can be sued under a federal race discrimination law that covers even the smallest employers, 42 U.S.C. 1981. And if they fire someone for a non-race-based reason — such as their sex, age, or religion — they can be sued under Virginia state law, if they have more than five employees (although punitive damages in such lawsuits are limited to $350,000.) Continue reading

Systemic Racism? What’s That?

By Peter Galuszka

At Bacon’s Rebellion there’s a constant, grating mantra debunking the concept that the U.S. has a serious problem with “Institutional” or “Systemic” Racism.

Slavery? Jim Crow? Irrelevant! We’re treated to commentary after commentary that Blacks just need to try harder. They are lazy. They do not support family values. They get too much wasted money in school spending and health care. Their constant abuse by law enforcement is imaginary. Black Lives Matters is a hateful, racist movement. BLM jeopardizes our values. Students interested in the movement were not “indoctrinated” enough. It’s bad enough if it comes up in public schools, but let BLM come up at a toney private institution in a wealthy, mostly White suburb, then it is a blood libel against every private school headmaster in the country.

For a partial list of blog postings with ideas, please see the URLs at the end of this column.

Ok. So what? Well, this morning I saw a small story in The Washington Post that shocked me since it went right to the heart of Institutional and/or Systemic Racism. If you still don’t believe it exists, read on. Continue reading

Justice at Last for Rojai Fentress

by James A. Bacon

It would be entirely understandable if Rojai Fentress were angry and embittered by the miscarriage of justice that convicted him of a 1996 murder and kept him imprisoned until July of this year. But in a recent Encorepreneur Zoomcast, he expressed nothing but joy at his new-found freedom, gratitude toward those who had fought to liberate him, and enthusiasm for the new life that awaited him.

Fentriss and Deirdre Enright, a University of Virginia law school professor with the Innocence Project, described the flawed investigation, trial and conviction of the 16-year-old Fentress for the slaying of a white addict in a drug deal gone bad. He spent the next 24 years rotating through more than a half dozen institutions in the state prison system before establishing his innocence and winning a pardon.

When asked what it would take to compensate him for his experience, the gentle, sweet-tempered Fentress said, “I don’t regret a thing. I don’t think God makes mistakes.” He grew up in a tough neighborhood where many of his friends ended up dead. “The worst thing that happened to me turned out to be the best thing that ever happened.”  Continue reading

Atlantic Coast Pipeline Necessity and the FERC

by James C. Sherlock

Peter Galuszka’s piece earlier today in this space made two claims the greens offer endlessly trying to achieve what I call truth by repeated assertion:

  1. The Federal Energy Regulatory Commission (FERC) either did not review or did not review properly (he inferred both) the wisdom and necessity for natural gas pipeline projects in general and the Atlantic Coast Pipeline (ACP) in particular.
  2. That if it had done so, the FERC would have discovered that there is no market for additional natural gas in the markets to which the pipelines would have brought it.

These claims appear from the usual sources every time any discussion of the ACP is had on this blog. They are both false. I hope this is the last time we will need to read about them.

Mr. Galuszka clearly did not understand the facts.

He wrote:

“So Dominion and its partners could make billions of dollars, some of it paid for by electricity ratepayers, for a project whose public need was always in doubt

and Continue reading

What Needs To Be Done After the ACP

By Peter Galuszka

For six long years, Dominion Energy and its partners in the $8 billion Atlantic Coast Pipeline have waged war against Virginians as they have pushed their way forward with the 600-mile-long natural gas project.

Their strong-armed methods have created untold misery and expense  for land-owners, members of lower income minority communities, nature lovers, bird watchers, fishermen, and many others.

When some declined to let the ACP to trespass on their property for survey work, they ended up in lengthy and expensive lawsuits. Others spent hundreds of hours on their own time and dime fighting Virginia regulatory agencies who all but seemed to be in the pocket of the ACP.

And so it goes. For what? So Dominion and its partners could make billions of dollars, some of it paid for by electricity ratepayers, for a project whose public need was always in doubt. On July 5, the ACP threw in the towel.

I put together this commentary in The Washington Post suggesting what might be done to prevent this from happening again: Continue reading

Attorney General Herring’s Legislative Package

by James C. Sherlock

The Virginia Constitution (Article V, Section 5) assigns the Governor legislative duties. He is the only member of the Executive Department assigned such duties. The Attorney General has, well … none.

Of the duties of the Attorney General (Article V, Section 15), the Virginia Constitutions says only: “He shall perform such duties … as may be prescribed by law.”

The Attorney General heads the Office of the Attorney General, also referred to as the Department of Law. Under the laws of Virginia, primary duties of the Attorney General include:

  • Provide legal advice and representation in court for the Governor and the state in general and to members of the Virginia General Assembly and local government officials;
  • Defend the state in cases or criminal appeals and suits filed against the state;
  • Prosecute significant crimes; and
  • Defend the constitutionality of state laws.

Those duties illustrate why the Attorney General was not given legislative responsibilities in the Constitution.

It is impossible for him to both advocate for or against laws and be seen to be faithfully executing his duties. Virginians will always wonder whether such an advocate will fairly execute the laws or fairly advise the Governor and General Assembly. Continue reading

Public Employee Collective Bargaining – Questions for Attorney General Herring

by James C. Sherlock

As a consequence of the successful teacher revolt in Fairfax County, there are major legal questions which must be answered concerning the initiation of public employee collective bargaining in Virginia next spring.

In accordance with Virginia Code § 2.2-505, members of the General Assembly can request official opinions of the Attorney General. Private citizens cannot. I urge General Assembly members of both parties to submit the questions posed below.

Teachers associations in Fairfax County Virginia successfully employed threats not to return to work that resulted in a change to Fairfax County Schools policy.

From the Washington Post, “Teachers in Fairfax revolt against fall plans, refusing to teach in-person,” June 26, 2020:

“A day after one of the nation’s largest school systems announced its proposal for fall learning, teachers within Fairfax County Public Schools rose in revolt and refused to teach in-person, as the (previously announced by the school board) plan demands, until officials revise their strategy.”

Those actions force Virginians to confront the consequences under Virginia law of collective bargaining with public employees that will be legal starting in May of 2021. Some but not all of the possible issues are addressed here.

Continue reading