Category Archives: Virginia Law

A Letter to an Old Friend

by James C. Sherlock

This article is rendered as a letter responding to an old friend and mentor, the University of Virginia, my alma mater.

I can imagine the University’s response to my last article on its culture:

The changes we have experienced in the culture of the University, its pervasive progressivism, which some may see as toxic to a public university, are not unique to the University of Virginia, have been decades in the making and will be very difficult to change from within.

I note the pessimism, but do not share the conclusion. Change it must, and we must not shelter in place and hope it blows over.

I firmly believe that the University will not survive as a public institution, and will not deserve to survive, with a leadership structure monitored by a political Diversity, Equity and Inclusion (DEI) commissariat that tolerates no dissent from progressive orthodoxy.

I don’t believe it will survive hiring practices that render the faculty politically single-minded.

I don’t believe it will survive a student experience that has driven large majorities of students to respond to surveys that they feel afraid to engage in debate on topics related to progressive dogma.

How can we honestly say we promote diversity, but not diversity of thought?
Continue reading

Home Price Volatility and Virginia Property Taxes

Case-Schiller Home Price Index – National

by James C. Sherlock

Housing prices have more than doubled since 2012, reflecting shortages of supply and the resulting speculation. The increasing slope of those curves above is not comforting.

Prices have soared over 20% in a year. Mortgage rates are up. What could possibly happen next? Most can figure that out.

But this article is about the effects on local government property taxes of what most predict will be extreme volatility in the housing market going forward.

How are Virginia real property taxes adjusted to mitigate the effects on both property owner tax bills and government receipts in this boom and very likely bust cycle?

We’ll look at the law. Continue reading

Richmond Parents and Taxpayers, Welcome to Chicago Public Schools

by James C. Sherlock

The gulf between what the City of Richmond School Board (RSB) and the Richmond City Council (RCC) on what will be negotiated with their public unions is actually an ocean.

The RSB has authorized the negotiation of virtually everything about how the schools are run. It leaves nothing off the table except the right to strike and the right to negotiate a closed shop (Virginia is still a right to work state), both of which state law still prohibits. But the unions can negotiate what are essentially the work rules of a closed shop.

In contrast, the City Council is poised to pass an ordinance on May 5th from two candidate drafts, one from Mayor Stoney and the other from three Council members. The Mayor’s version states what will be negotiated — pay and benefits. The other states what will not be negotiated with an eleven-point description of the City’s Rights and Authorities.

The City Council drafts, especially the Mayor’s, have it right. They note the City Council’s duties under the laws of Virginia and to the citizens of their city.

Not so the school board. The RSB resolution acknowledges only one stakeholder: its unions.

Unmentioned in the RSB resolution is exactly who is going to represent the city in its negotiations with its unions. Ideally it will be a team composed of City Council (finance) and School Board subject-matter experts. If so the city reps will be operating under two sets of negotiating rules in direct opposition to one another.

I’d buy a ticket, but maybe under the sunshine laws negotiations will be on TV. Continue reading

Still Time to Limit Governor’s Emergency Powers

by Barbara Hollingsworth

First published this morning by the Thomas Jefferson Institute for Public Policy.

Should the governor of Virginia have the power to unilaterally declare an open-ended state of emergency that indefinitely restricts Virginians’ civil and constitutional rights without a recorded vote by the General Assembly?

The COVID-19 pandemic lockdowns raised this serious question. But so far, nobody has answered it definitively. Continue reading

Ten Things Democrats Want Taught in Schools

House Democrats voted to demand the “Lost Cause” be taught in public schools.

by Steve Haner

What are the most important facts to Virginia Democrats about American and Virginia history? Ask individuals and you get a host of answers, but the Democrats in the Virginia House of Delegates focused on ten items last week they want to be sure our public schools teach.

The context was the floor debate of House Bill 787, seeking to expunge “divisive concepts” from those schools. Too many students can’t do long division, but divisiveness matters more. It is important to many, I sense. You can read the bill text as it passed here. The Senate will make it history, probably not law.

Before passage, however, the House Democrats as a team offered ten floor amendments on which they wanted recorded votes. That was the point of the exercise, to try to force Republicans to record “nay” votes and then imply in the next campaign that Republicans voted to suppress these topics.

Each of you can reach your own conclusions as to what this says about Virginia Democrats today. I offer slight commentary on only a few of them. Each is framed as a topic not to be kept out of the classroom as “divisive.” They are summarized below and are here in full, where you can identify the patrons of each. Democrats want students taught: Continue reading

Virginia Penalties for Battery Against School and Healthcare Personnel are a Problem

Courtesy of wallpaper.com

by James C. Sherlock

Virginia has a law that, having been amended piecemeal over the years, is inconsistent, inflexible and may not provide the protections that lawmakers or potential victims intended.

The law is Code of Virginia § 18.2-57. Assault and battery; penalty.

A member of the Fairfax County bar has reported that progressive Commonwealth’s Attorney Steve Descano in Fairfax County did not prosecute assault and battery misdemeanors. (Mr. Kassabian has since my initial link to his web page taken down the information about nol pros categories in Fairfax County.)

My primary issue with the current law is that, as written, a policy like Mr. Descano’s will leave healthcare professionals and school personnel unprotected by the laws put in place to do just that.   Police officers must prosecute if the CA will not.

Currently law says any person who commits a simple assault or assault and battery is guilty of a Class 1 misdemeanor.  It is a Class 6 felony if either:

  • a hate crime “because” the victim is a member of a recently expanded number of protected classes; or
  • battery against a law enforcement official (long list) or a fire and rescue team member.

In my reading of the law:

  1. It is a Class 6 felony with a mandatory minimum term of confinement of six months to physically attack an EMS technician, but a misdemeanor to attack a physician;
  2. It is a Class 6 felony with a mandatory minimum term of confinement of six months to strike a school resource officer, but a misdemeanor if the victim is an assistant principal or teacher;
  3. In the cases of the physician and teacher in performance of their duties, battery can be charged as a Class 6 felony only if the victim is a member of a protected class and the attack can be credibly be blamed on that fact; and
  4. in every case commonwealth attorneys, some of whom publicly disagree with the penalties, have discretion as to whether to prosecute misdemeanors.

Continue reading

Bureaucrats Are Not Running Amok

by Dick Hall-Sizemore

In a couple of recent posts, much has been made of Governor-elect Youngkin’s comments about reviewing regulations. After thinking about this promise and remembering similar promises by former governors, I decided to undertake one of my favorite exercises: poking around in the Code of Virginia a little bit. I found two items directly relevant to this discussion: one I was vaguely aware of and one I was not aware of.

First, the one that I was unaware of. This promise of Youngkin is no big deal because he will merely be following the law. Sec. 2.2-4017 requires:

Each Governor shall mandate through executive order a procedure for periodic review during that Governor’s administration of regulations of agencies within the executive branch of state government. The procedure shall include (i) a review by the Attorney General to ensure statutory authority for regulations and (ii) a determination by the Governor whether the regulations are (a) necessary for the protection of public health, safety and welfare and (b) clearly written and easily understandable.

I was vaguely aware of the General Assembly having some power to review new regulations. Indeed Sec. 2.2-4014 authorizes a standing committee of either house of the General Assembly to file an objection to any regulation proposed in its field of jurisdiction. Furthermore, the statute goes on to establish a procedure whereby the General Assembly may suspend the effective date of a final regulation and, subsequently, nullify all or a portion of the regulation. Continue reading

BBB Demise Is Also Labor-Rules Reprieve

Washington Post photo of a cake delivered to Virginia Senator Mark Warner in May, encouraging support for the pending PRO Act. Elements of the PRO Act are also included in the BBB omnibus.

by F. Vincent Vernuccio

Yesterday, Senator Joe Manchin, D-WV, gave an early Christmas present to Senators Mark Warner, D-VA, and Tim Kaine, D-VA, by declaring he would not support the $2.2 trillion Build Back Better Act (BBB).

Virginia small businesses, job creators, and workers were wary of what the U.S. House passed in BBB, specifically some provisions mirroring parts of another disastrous piece of legislation called the Protecting the Right to Organize Act.

However, it was not just those who would be affected who need to worry. Virginia politicians may have also had worries of the electoral consequences of voting for these bills.

If you are a small mom and pop business with only a few employees but no labor attorney on retainer, you better get one if the Senate votes for the PRO Act or if the Biden Administration continues to push the provisions in future “must pass” legislation. Continue reading

McAuliffe Lets the Cat out of the Bag

by James C. Sherlock

Current Virginia law and Terry McAuliffe cannot coexist.

“A parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent’s child.”

Code of Virginia § 1-240.1. Rights of parents.

“I don’t think parents should be telling schools what they should teach.”

Terry McAuliffe, Sept 28, 2021

Let’s walk that forward. Progressives all over Virginia and the nation were horrified. They consider McAuliffe’s words to be dogma. But they wish he hadn’t exposed it so publicly. 

During an election bid.

So, now that the cat’s out of the bag, let’s experiment with changes to  § 1-240.1. Rights of parents and see what it takes to make it comport with progressive thinking. 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

Coming to Virginia – a New State of Emergency?

Why is this man smiling?

by James C. Sherlock

The Governor’s 15-month emergency powers expired June 30, and, God, does he miss them.

From The Virginian-Pilot:

“School districts that aren’t requiring masks, including several in Hampton Roads, are running afoul of state law, Gov. Ralph Northam said Thursday.”

OK.

The bigger questions are

  • how long the governor will put up with the lack of emergency powers;
  • when he will start to follow Virginia’s Pandemic Emergency Annex to its Emergency Operations Plan; and
  • is the General Assembly even interested?

Continue reading

Where Is a Parents’ Bill of Rights for Virginia?

by James C. Sherlock

Sometimes, the simplest and certainly one of the best ways for a public official to serve the public is to inform them about things they care about.

The Attorney General of Indiana, perhaps the best governed state in America, has just published a roadmap for parents and caregivers to “exercise their legal right to have a voice in their children’s education.”

It is called the Parents Bill of Rights and is exactly the kind of initiative attorneys general should take to inform citizens of their rights on issues of public importance.

Good luck seeing such an assessment from Virginia’s AG. Continue reading