Category Archives: Courts and law

Guns for Felons?

Posted on August 1, 2023 by | 113 comments

by Dick Hall-Sizemore

Virginia law prohibits a convicted felon from possessing or transporting a firearm. Is that unconstitutional under the provisions of last year’s Supreme Court decision in New York State Rifle and Pistol Association v Bruen  (597 U.S. ___; 142 S. Ct. 2111)?

Background

Before trying to answer that question, it is helpful to review the Supreme Court’s opinion in Bruen. New York law required anyone wanting to carry a concealed handgun outside the home to show “proper cause” for the license. New York courts had interpreted that phrase to require applicants to show more than a general desire to protect themselves or their property. The Supreme Court struck down that law as a violation of a person’s right under the Second Amendment to carry a firearm for self-defense. Continue reading →

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Posted in Courts and law, Culture wars, Gun rights, Virginia Law

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Richmond’s 4th Circuit Court of Appeals Needs Better Judgment

Posted on July 29, 2023 by | 30 comments

The 4th U.S. Circuit Court of Appeals in Richmond, Va. Acroterion/Wikipedia

by James C. Sherlock

Federal judges are supposed to call balls and strikes in relation to the Constitution and the law.

President Biden signed the Fiscal Responsibility Act into law on June 3.  Sec 324 of that law, Expediting Completion Of The Mountain Valley Pipeline,

  1. blocked any court from hearing cases about permits for the pipeline; and
  2. gave to the D.C. Circuit Court of Appeals jurisdiction over any other cases about that pipeline or about the law itself.

Judging federal agency decision cases is a traditional role for the D.C. Circuit Court of Appeals.

The 4th U.S. Circuit in Richmond, soon after the law was signed in Mountain Valley Pipeline, Llc V. Wilderness Society, Et Al. violated both key Sec. 324 provisions.

The Fourth Circuit had for years assumed for itself the role of federal and state regulator for pipelines in Virginia and wasn’t going to surrender that authority.

Having already multiple times rejected permits granted to the Mountain Valley and Atlantic Coast pipelines by the U.S. Fish and Wildlife Service and Corps of Engineers, among other federal and state agencies, it decided on July 10th and 11th to block construction once again while it reviewed challenges to yet more permits.

The Supreme Court overturned the decision very quickly and unanimously.

That was not an anomaly. The Conservative-Liberal split on the Supreme Court is 6-3.  Supreme Court rejections of 4th Circuit actions unanimously, 8-1 or 7-2, are becoming all too common. Continue reading →

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Posted in Courts and law

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Understaffed Nursing Homes and the False Claims Act

Posted on July 22, 2023 by | 26 comments

by James C. Sherlock

Nursing home operators, paid by government insurance programs on a per diem basis for caring for their patients, make higher profits if they understaff than otherwise.

The less staff they have, the higher their operating margins.

The federal government, with much experience in such situations, tries to offset those incentives with disincentives. It thinks, reasonably, that patients should actually receive the care that is paid for with government insurance funds.

In Virginia, some senior members of the health committees of the General Assembly are in love with our nursing home operators, offering legislation as gifts. That love is requited in the form of unlimited campaign contributions from the operators.

Touching story.

This being Virginia, that is legal. And too common.

However, help for patients is available and very active on another front: fraud charges brought by states and the Justice Department in federal court.

The unanimous Supreme Court opinion in Universal Health Servs., Inc. v. United States 136 S. Ct. 1989 (2016) • 195 L. Ed. 2d 348 Decided Jun 16, 2016 provided precedent for such filings under the False Claims Act.

The Court validated the government’s theory of law that a provider can be guilty of making a false claim based on the underlying representation that the care provided complies with the government Conditions of Participation.

Grossly understaffed nursing homes can be guilty of criminal or civil false claims or both by accepting payments for services which they do not provide or provide inadequately.

Both state and federal governments know exactly who those understaffed nursing homes are and have the payroll-based data to prove that some could not have provided it.

And they are taking the worst offenders to court. Continue reading →

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Posted in Courts and law, Crime , corrections and law enforcement, General Assembly, Governance, Government Oversight, Health Care

Miyares Loses in Court

Posted on July 22, 2023 by | 37 comments

Jason Miyares, Attorney General of Virginia

by Dick Hall-Sizemore

Our Attorney General has taken his lumps in court recently.

First was a jury acquittal in a high-profile criminal case he engineered. Later, the Virginia Supreme Court unanimously ruled against an agency that had been administering a provision of the Code based on guidance from the Attorney General.

The first case was that of Wayde Byard, the spokesman for the Loudoun County Public Schools who had been indicted for lying to the special grand jury established by Miyares to investigate the school system’s handling of the notorious sexual assault cases. The trial jury took less than two hours to render a verdict of not guilty. Miyares’ spokesperson commented that “we are disappointed with the jury’s decision.” Byard had been on administrative leave without pay. Shortly after the verdict, the county gave him nearly $89,000 in back pay and he was back at his desk.

The second instance is more complex. It is based on statutory interpretation and can get a little tedious. It is this stuff that lawyers and legislative nerds love. Also, some background is needed to understand the case. So, bear with me a little while.

The case involves the changes in earned sentence credits enacted by the 2020 General Assembly. Continue reading →

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Posted in Courts and law, Crime , corrections and law enforcement, General Assembly, Virginia Law

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Mr. Saddam Salim’s Strange Acceptance of Political Endorsements

Posted on July 8, 2023 by | 16 comments

Saddam Azlan Salim

by Emilio Jaksetic

In the upcoming November 2023 election, the Democratic Party candidate for Virginia Senate District 37 is Saddam Azlan Salim. Salim won the Democratic nomination by defeating Chap Peterson in the June 20, 2023 primary.

A profile of Mr. Salim is available on Ballotpedia. A hypertext link in the Ballotpedia profile goes to Salim’s campaign webpage. Among those endorsements are three by progressive prosecutors: Commonwealth Attorneys Steve Descano, (Fairfax County), Buta Biberaj (Loudoun County), and Parissa Dehghani-Tafti (Arlington County/Falls Church). On the face of it, those endorsements reflect the traditional practice of candidates to solicit and accept endorsements in support of their campaigns. However, the endorsements by the three progressive prosecutors are a problem for Salim because he is running for a seat in the Virginia Senate.

Soliciting and accepting the endorsement of a particular person or group does not mean or imply that the candidate is in complete agreement with every act performed or statement made by the endorser. However, the three progressive prosecutors have made a point of claiming that their “criminal justice reforms” are good for Virginians and expressing their intent to continue pursuing them.

The endorsement of Salim’s candidacy by those three progressive Commonwealth Attorneys indicates the following: (1) those prosecutors believe or know he is sympathetic to their “criminal justice reform” efforts; and (2) they want voters to consider their endorsements as a reason for voting for Salim because they believe many voters are in agreement with their “criminal justice reform” efforts. Furthermore, Salim’s acceptance of their endorsements indicates he is sympathetic to, or in agreement with, the “criminal justice reforms” of the three progressive prosecutors.
Continue reading →

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Posted in Courts and law, Crime , corrections and law enforcement, Elections, Ethics, General Assembly

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Where Do Dems Stand on Civil Immunity for Law Enforcement Officers?

Posted on July 8, 2023 by | 16 comments

by James C. Sherlock

Photo credit: Richmond Times-Dispatch

Being a law enforcement officer is tough under the best of circumstances.

Do you think that exposure to losing your house and car in a civil suit for something you did in a split second to protect the public and yourself and did not have reason to know was against the law would deter you from a job in law enforcement?

Truth is, it would deter all of us.

Virginia Democrats in 2021 introduced legislation to eliminate under Virginia law a peace officer’s ability to offer an immunity defense in state courts against civil lawsuits for actions that violate constitutional rights:

A. Any law-enforcement officer, as defined in § 9.1-101, who, under color of law, subjects or causes to be subjected, including failing to intervene, any other person to the deprivation of any rights, privileges, or immunities granted to such person under the constitutions and laws of the United States and the Commonwealth, shall be liable to the injured party for compensatory damages, punitive damages, and equitable relief….

B. Sovereign immunity and any limitations on liability or damages shall not apply to claims brought pursuant to this section. Qualified immunity is not a defense to liability imposed by this section.

A 2017 per curiam (unanimous) opinion by the Supreme Court reiterated a long-existing legal standard that qualified immunity is an available defense for law enforcement officers unless there is “clearly established law giving each individual Officer fair notice that his particular conduct was unlawful.”

It is hard to imagine that the Supreme Court, unanimous there, would permit a state law that denied civil immunity without fair notice of the illegality of specific acts.

Regardless, under the 2021 Democratic bill in Virginia, officers were to be in jeopardy in civil suits whether or not they had fair notice that their actions, split-second or otherwise, were unlawful.  They were specifically to be required to judge the constitutionality of specific actions.

With a gun in their face.

It draws a very clear line for political debate. Continue reading →

16 Comments

Posted in Civil Rights, Courts and law, Crime , corrections and law enforcement, Culture wars, Elections, General Assembly, Governance, Law enforcement, Politics

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Where Does Freedom of Speech End?

Posted on July 6, 2023 by | 96 comments

by Dick Hall-Sizemore

I have a question.

Under the recent Supreme Court case ruling that a wedding website designer could refuse to provide her services to a gay couple because to do so would require her to write something that she did not want to say, thereby violating her First Amendment right to free speech, if I were the owner of a sign shop could I refuse to make signs for Democratic candidates because I do not want Democrats to win elections and to require me to design a sign that says “Elect ______, Democrat for State Senate” would violate my freedom of speech?  What if I refused to make such signs for Black candidates because I don’t think Blacks should be elected to office?  Or women candidates?  Or Catholic candidates? Or Jewish Candidates?

96 Comments

Posted in Courts and law, Culture wars, First Amendment, Individual liberties

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Equal Protection, Affirmative Action and Effecting Generational Change

Posted on July 6, 2023 by | 40 comments

by James C. Sherlock

America is the most successful nation in the history of the world because of the freedoms and rights guaranteed by our Constitution.

More than a hundred other nations have emulated the American Constitution.

Without constitutionally guaranteed freedoms and rights, we would be chained to the whims of the state. Most immediately to the whims of the executive branch. There would be precious little for the judicial branch to protect.

A recent Supreme Court decision found affirmative action in college admissions to be unconstitutional under the 14th Amendment, Section 1:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Justice Roberts for the majority ruling that the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause:

Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.

Three justices disagreed.

Justice Sotomayor read her opinion from the bench — a sign of strong disagreement. An excerpt:

Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.

Note that Justice Sotomayor, as always careful of the words in her opinions, chose “endemically” to modify “segregated.” Oxford dictionary: “regularly found and very common among a particular group or in a particular area.”

That is different than the word “systemically” — Oxford: “in a basic and important way that involves the whole of an organization or a country and not just particular parts of it.” Continue reading →

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Posted in Children and families, Civil Rights, Courts and law, Culture wars, Education (higher ed), Education (K-12), Freedom, Governance, Individual liberties, Politics, Poverty & income gap

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Nursing Shortages Require Better Oversight of Virginia Nursing Homes – Part Two – State Action Required

Posted on July 5, 2023 by | Leave a comment

by James C. Sherlock

Patterns of understaffing, medical harm and abuse in nursing homes are traceable:

  • in some cases to a business model of understaffing to increase profits. Federal fines are built into the business models of the bad actors. Some of the worst post double-digit annual operating margins;
  • in some to other systemic chain-wide issues, perhaps financial instability; and
  • in yet others to local management incompetence and other site-specific issues.

Regardless of the reason, Virginia regulators and law enforcement agencies must execute the roles they are legally charged to perform.

State sanctions must be levied.

  • The Health Commissioner can block the admission of new patients until staff levels support them or shut down those facilities that do not meet standards over a long period of time;
  • The Department of Medical Assistance Services (DMAS) can suspend or halt Medicaid payments;
  • The Attorney General can prosecute for civil or criminal violations.

Enforcement will result in fewer, but better and safer options. Continue reading →

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Posted in Consumer protection, Courts and law, Crime , corrections and law enforcement, Government Oversight, Health Care, Long Term Care and Nursing Homes

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Check Out Which New Virginia Laws Go Into Effect July 1st

Posted on June 30, 2023 by | 11 comments

by The Republican Standard staff

The Virginia General Assembly passed several small bills due to the split between the Republican-led House of Delegates and the Democratic-controlled Virginia State Senate. Yet the areas where they did find co-operation could matter to many Virginians as we head into Fourth of July weekend.

Enhanced Penalties for Fentanyl Manufacturing or Distribution
Reeves SB1188 Senate 35-5 House 50-42
Provides that any person who knowingly and intentionally manufactures or knowingly and intentionally distributes a weapon of terrorism when such person knows that such weapon of terrorism is, or contains, any mixture or substance containing a detectable amount of fentanyl is guilty of a Class 4 felony.

Universal Occupational License Recognition
McDougle SB1213 Senate 40-0 House 99-0
Establishes criteria for an individual licensed, certified, or having work experience in another state to apply to a regulatory board within the Department of Professional and Occupational Regulation and be issued an occupational license or government certification if certain conditions are met.

Police Chiefs May Enact Local Curfews during Disturbances
Norment SB1455 Senate 27-12 House 53-45
Enables the chief law-enforcement officer of a locality to enact a curfew under certain circumstances during a civil disturbance.

Making Sure Every District has a Legislator
Suetterlein SB944 Senate 39-0 House 99-0
Requires special elections to fill a vacancy in the membership of the General Assembly be held within 30 days of the vacancy if the vacancy occurs or will occur between December 10 and March 10 which coincides with time right before and during the General Assembly session. Continue reading →

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Posted in Business and Economy, Courts and law, Crime , corrections and law enforcement, Economic development, Elections, Finance (government), General Assembly, Governance, Government Oversight, Government workers and pensions, Law enforcement, Politics, Regulation, Uncategorized, Virginia Law

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Roanoke County Quietly Extends Contract For $109,000 Year Registrar But Questions Persist

Posted on June 28, 2023 by | 6 comments

by Scott Dreyer

For many historical and cultural reasons, America has traditionally been what sociologists call a “high-trust” society. As reported in this report from the Pew Research Center, cultures with high trust (such as Canada and Sweden) usually have low crime and corruption while the reverse (such as South Africa and Peru) is also true.

Unfortunately, polls show Americans’ trust in major institutions has been on a downward slope for the past 15 years or so. Gallup first measured confidence in institutions in 1973 and has done so annually since 1993. A Gallup poll from June 2022 showed significant declines for 11 of the 16 institutions tested and no improvements for any.

Those who expressed “a great deal” of confidence in the three branches of the federal government, newspapers, TV news, big tech, and the criminal justice system were all at 26% or below.

On the issue of voting, most Americans have generally trusted the system, although documented cases of stolen elections exist. One example is the 1948 Democrat primary Senate runoff in Texas. Then-Congressman Lyndon Johnson (D) was initially behind until some mysteriously “uncounted ballots” were found in a ballot box called Box 13. Johnson then won with an 87-vote margin, earning him the nickname “Landslide Lyndon.” Johnson went on to defeat the Republican candidate in November and from the Senate later became John F. Kennedy’s vice president and then president after JFK’s assassination. Continue reading →

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Posted in Courts and law, Democracy and Western Civilization, Elections, Government Oversight, Leadership, Open Government, Uncategorized

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Scandal in Plain Sight – Virginia’s Failed Regulation of Law-Avoiding Nursing Home Owners

Posted on June 10, 2023 by | 28 comments

by James C. Sherlock

One of the most important and heart-wrenching decisions families make for their elderly loved ones is whether they are able to keep them in their homes as they get older and sicker.

Sometimes that is not feasible for a long list of reasons in each case.

More than 30,000 Virginians live in nursing homes.

Both the federal government and Virginia regulate them.  The Virginia Department of Health, for both the Commonwealth and the federal government, inspects.

We should be able to expect patients to receive at least basic standards of care. A high percentage in Virginia have not .

In a five-star system, the Centers for Medicare and Medicaid Services (CMS) rates 98 of Virginia’s 289 nursing homes at one star – defined as much below average. More than a third.

Nationwide, only the worst 20 percent receive a one-star rating.

The last time I reported, in October of 2021, those figures were 54 one-star facilities out of 288. Nineteen percent.  So some of our nursing homes have gotten precipitously worse.

The ratings are backward-looking a couple of years, so the measured declines discussed here did not start recently.   By definition of the way that Medicare compiles records and assigns scores, some have been bad for a long time.

People have suffered and died from the lack of proper care and effective oversight. Continue reading →

28 Comments

Posted in Change Management, Consumer protection, Courts and law, Efficiency in government, General Assembly, Governance, Government Oversight, Health Care, Law enforcement, Long Term Care and Nursing Homes, Medicaid, Money in politics, Open Government

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Judge Orders LCPS to Turn Over Investigation into the Assaults and Rape at Two County Schools

Posted on May 31, 2023 by | 9 comments

by Jeanine Martin

Loudoun County Circuit Court Judge James P. Fischer has ordered Loudoun County Public Schools to turn over its internal investigation into the assaults and rape that occurred in 2021 at two Loudoun County high schools.

The school system had argued that it was privileged information that they need not share with the public. Judge Fischer disagreed and ordered the report to be turned over to the public within 7 days.

From WTOP.com:

The ruling is a win for Virginia Attorney General Jason Miyares, who has been fighting to expose how he says the school district mishandled the incidents.

The judge agreed with prosecutors from the Miyares’ office that the internal report on the 2021 sexual assaults and rape on school grounds was not protected under attorney-client privilege — noting that then-Superintendent Scott Ziegler gave the perception that any findings from the independent investigation were for the public’s benefit.

In a statement, Miyares’ spokeswoman Victoria LaCivita said in part, “We appreciate the courts time and attention to this matter.”

More on the story here.

This piece was originally appeared in The Bull Elephant and is reprinted with permission.

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Posted in Courts and law, Crime , corrections and law enforcement, Discipline and disorder, Education (K-12), Parental Rights, Uncategorized, Virginia Freedom of Information Act

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Appeals Court Upholds TJHSST Admissions Policy

Posted on May 29, 2023 by | 45 comments

Thomas Jefferson High School for Science and Technology

by Dick Hall-Sizemore

For all the ink that has been used on this blog concerning the “illegal” and “unconstitutional” new admissions policy at the Thomas Jefferson High School for Science and Technology, here is a story that has strangely escaped comment here:  the federal appeals court has upheld the policy.

In a 2-1 decision, the appeals court panel found that the group challenging the new admissions policy as discriminatory toward Asian Americans “cannot satisfy its burden of proving that the Board’s adoption of the race-neutral challenged admissions policy was motivated by an invidious discriminatory intent, whether by way of “racial balancing,” “proxies,” or otherwise.”  Furthermore, the panel ruled that “expanding the array of student backgrounds in the classroom serves, at minimum, as a legitimate interest.”

It is expected that the decision will be appealed to the U.S. Supreme Court.  There is speculation in legal circles that the plaintiffs are “laying the groundwork for a much bigger legal transformation” that could ban any public policy effort to close racial gaps.

 

45 Comments

Posted in Civil Rights, Courts and law, Culture wars, Education (K-12)

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Virginia Judge Defends Handgun Purchases For 18-20 Year-Olds In New Ruling

Posted on May 15, 2023 by | 77 comments

by The Republican Standard staff

In a groundbreaking decision, a federal judge in Virginia has ruled that a ban on handgun sales to individuals between the ages of 18 and 20 is unconstitutional, citing last year’s Supreme Court Bruen decision.

Fox News reports:

In a 71-page ruling issued Wednesday, U.S. District Court Judge Robert Payne said that since adults under 21 have the right to vote, join the military and serve on a federal jury, there is no reason why federal law should restrict them from buying a firearm. “If the Court were to exclude 18-to-20-year-olds from the Second Amendment’s protection, it would impose limitations on the Second Amendment that do not exist with other constitutional guarantees,” Payne wrote. “Because the statutes and regulations in question are not consistent with our Nation’s history and tradition, they, therefore, cannot stand,” he wrote. … This class action lawsuit was brought by John Corey Fraser, 20, and other plaintiffs who said the Gun Control Act of 1968 and subsequent regulations from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) were unconstitutional because they excluded all adults under 21 from “exercising the right to keep and bear arms.” Fraser, 20, had attempted to purchase a Glock 19x handgun from a licensed dealer but was turned away, according to the lawsuit.

The ruling was derided by a number of gun control advocacy groups, including Everytown for Gun Safety which believes that “the federal law prohibiting federally licensed firearms dealers from selling handguns to individuals under the age of 21 is not just an essential tool for preventing gun violence, it is also entirely constitutional.”

It remains to be seen whether the Biden Administration will challenge the ruling.

This article is republished from The Republican Standard with permission.

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Posted in Courts and law, Gun rights, Uncategorized, Virginia Law

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