Tag Archives: Dick Hall-Sizemore

Jason Miyares–Judicial Activist?

Jason Miyares

by Dick Hall-Sizemore

Jason Miyares has struck out again.

Miyares, Virginia’s Attorney General, keeps asking the Virginia Supreme Court of Virginia to interpret a statute, based not on how it is actually written, but based on what the General Assembly “intended”.  The court’s response is that its function is to ask “not what the legislature intended to enact, but what is the meaning of that which it did enact.  We must determine the legislative intent by what the statute says and not by what we think it should have said.”

At issue is the expansion of earned sentence credits for offenders in state prisons enacted by the 2020 General Assembly.  This legislation and its implementation has had a convoluted history, which I described in an earlier post.  In summary, the maximum number of sentence credits an offender can earn was increased from 4.5 days per 30 days served to 15 days per 30 days served.  The legislation listed a large number of exceptions to the expansion.  Among the offenses exempted from the expansion were Class 1 felonies (capital murder) and “any violation” of Sec. 18.1-32 (first degree murder).

The aspect of the legislation that Miyares keeps running up against is the omission of inchoate offenses in the list of exceptions. In legal terms, an inchoate crime is “a type of crime that is committed by taking a punishable step towards the commission of another crime. The three basic inchoate offenses are attempt, solicitation, and conspiracy.” Continue reading

The Incredibly Shrinking Newspaper

Richmond Times-Dispatch building

A story in the Richmond Times-Dispatch sums up the state of media coverage in the state’s capital city.  The city of Richmond is considering entering into an agreement to move the city’s Department of Social Services into the Richmond Times-Dispatch building. The agency will occupy three floors of the four-story building. The newspaper staff will occupy the other floor. A newspaper operation that needed four floors at one time to house its staff now needs only one floor. The newspaper does not even own the building that has its name on the front. It was sold to a private investor four years ago.

Governor Leaves Consistency and Principle Behind

Playing a “skills game”. Photo credit: Virginian Pilot

by Dick Hall-Sizemore

With his proposed amendments to legislation regulating “games of skill,” Gov. Youngkin has demonstrated deep inconsistencies, if not outright hypocrisy.

Before getting into the specifics, a little background is needed.

“Games of skill” are machines on which people can play and win money. The proponents of the machines claim that some element of skill is needed to win. The opponents claim that the machines are not that different from slot machines, in which pure luck is involved. Not having played any “games of skill,” I am not going to offer any judgment on this argument.

Skill games are present in many, if not most, convenience stores, truck stops, and even some sit-down restaurants, such as the Kelly’s Tavern franchise in Virginia Beach. The machines themselves are owned by large corporations, mostly from out of state. The owners of the venues receive an agreed-upon share of the revenue generated by the machines. The revenue can be significant and many of the businesses have come to depend on it. Continue reading

A Flood of Budget Amendments

by Dick Hall-Sizemore

Well, Gov. Youngkin has not carried through on his veiled threat to veto the entire budget–yet.

Instead, he has proposed more than 230 amendments that would get rid of the expansion of the sales tax to digital services that the General Assembly passed, along with an extra $1 billion in expenditures that would have been funded with that additional revenue.  (Source: Cardinal News.)

To really get a sense of what new spending he is proposing to reduce or eliminate, one would need to laboriously construct a detailed spreadsheet or database. I will wait for the analysis that the staff of the money committees produce. They are likely working on it now.

Two quick observations:

1. Sen. Scott Surovell (D-Fairfax), the Senate Majority leader, in responding to the governor’s actions, relied on a common misconception regarding the Virginia budget. Worrying about packaging amendments that cut revenue with amendments that change spending, he speculated, “You’ll end up having a constitutionally unbalanced budget, which would be illegal.”

Contrary to popular belief, there is nothing in the state constitution that requires the General Assembly to pass a balanced budget. What the constitution does is put the responsibility on the governor to execute a balanced budget. Article 10, Section 7 requires that the “Governor, subject to such criteria as may be established by the General Assembly, shall ensure that no expenses of the Commonwealth be incurred which exceed total revenues on hand and anticipated during a period not to exceed the two years and six months period established by this section of the Constitution.”

It would politically irresponsible and risky for the General Assembly to pass a budget bill that was purposely unbalanced, but there is no constitutional prohibition on its doing so. The constitution does require, however, that the governor clean up whatever mess the legislature may create by doing so. (This is one of the many things that Ric Brown, the long-time deputy director and director of the Dept. of Planning and Budget and Secretary of Finance, taught me.)

2. I am so glad that I am retired and did not have to experience the grueling hours that the DPB staff had to put in over the last few weeks to develop these amendments.

Can the Governor Veto RGGI?

by Dick Hall-Sizemore

One of Gov. Glenn Youngkin’s top priorities has been to extricate the Commonwealth from participation in the Regional Greenhouse Gas Initiative (RGGI). One of the top priorities of the Democrat-controlled General Assembly has been ensuring that the Commonwealth participates in RGGI.

For those readers unfamiliar with the purposes of RGGI and how it functions, along with the pros and cons of membership, those topics have been covered extensively in this blog. See here, here, and here.  This article will focus on the constitutional struggle between the governor and the legislature.

Brief legislature history

In 2020, the General Assembly authorized the director of the Dept. of Environmental Quality (DEQ) to establish a market-based energy allowances trading program and the Governor to include the Commonwealth in RGGI. The Air Pollution Control Board (“the Board”) and the Governor exercised their authority to act, and Virginia became a RGGI participant on Jan.1, 2021.

When he took office in 2022, among the first executive orders issued by Gov. Younkin was one directing the DEQ director and the Board to begin taking steps to end Virginia’s participation in RGGI. The Board adopted the final repeal of the RGGI regulations in July 2023, to be effective at the end of the year. Environmental groups sued and those suits are still pending in court.

The next stage of this saga came as the new Democratic majority in the 2024 General Assembly adopted language in the budget bill prohibiting the use of state funds to “impede” the state from rejoining the RGGI and directing all relevant agencies to take steps to immediately rejoin the RGGI and continue participation. Although some Democrat legislators and environmentalists believe the language is vulnerable to a gubernatorial veto, court precedents and recent actions would augur a more favorable outlook on their account. Continue reading

Governor’s Budget Transformed

Gov. Youngkin addressing media about budget changes, with Senators Lucas and Locke looking on. Photo credit: Richmond Times Dispatch

by Dick Hall-Sizemore

In my almost 50 years of working around, and following, the General Assembly, I do not think I have ever seen the legislature take apart a governor’s budget bill to the extent that this General Assembly just demolished Gov. Youngkin’s budget.

The change that had the most impact was the jettisoning of the governor’s proposed tax package. Steve Haner has previously described the legislature’s actions (here and here). To summarize, the legislature rejected the governor’s proposed tax cuts, embraced his proposal to expand the sales tax to digital services, and went one step further by expanding the sales tax to cover digital services between companies.

The Governor’s proposal would have resulted in about $1 billion less in general fund revenue over the biennium. The move by the legislature was projected to increase general fund revenue by $1 billion over the biennium. That is a $2 billion swing in general fund revenue available for appropriation. And the Democrats in the majority on the budget committees of both houses were happy to use that extra money to spend on their priorities, primarily K-12. One only has to peruse the conference report to see a plethora of appropriation increases. Continue reading

Pot for Sale

Sen. Aaron Rouse (D-Virginia Beach)

by Dick Hall-Sizemore

The 2024 General Assembly has taken care of a piece of unfinished business. It has passed a bill to set up a framework for the sale of marijuana.

The 2021 General Assembly made it legal for individuals to possess a small amount of marijuana. However, there was not enough time to craft consensus legislation to regulate its sale. That task was delayed until the next year.

Del. Paul Krizek (D-Alexandria)

That plan was upended when Republicans won a majority of seats in the House of Delegates for the 2022 and 2023 sessions. Any bill to establish a framework to regulate the sale of marijuana was killed.

The result was a strange state of limbo. It was legal to possess marijuana, but it was not legal to sell it. A black market flourished. A Cannabis Control Authority (the Authority), with a governing board, was created, but had nothing to regulate. (When the term “Authority” is used in this article, the term includes the administrative agency and the governing board.)

With Democrats back in the majority in both houses in 2024, one of their top priorities was to legalize the sale of marijuana and create a framework to regulate it and tax it. Continue reading

The Camel in the Tent

In 2022, the General Assembly disregarded two long-standing principles of funding transportation projects in the Commonwealth.  Republican Gov. Youngkin followed down that path this year.

The General Assembly has dedicated sources of revenue to be used for transportation, with general government functions being financed by general income and sales taxes and other special funds. The revenue sources for transportation include taxes on gasoline and other fuels, motor vehicle licensing and titling taxes, operating licenses fees, and 0.5 percent of the 4.3 percent state sales tax. Localities in specified regions of the state are authorized to levy an additional 0.7 percent sales tax to be used for transportation. The concept of having funding for transportation and general government separated was so ingrained in the legislature that there have been attempts in the past to create a “lockbox” for transportation funds to avoid their being used for other general government purposes. The latest such attempt was in 2018.

By statute the legislature has stipulated broadly how transportation funding will be distributed: by system, by highway district, etc.  It has also authorized the issuance of bonds by the Commonwealth Transportation Board and other entities. However, with few exceptions, the main one being the widening of U.S. Rt. 58, the legislature has stayed away from designating the specific projects to be funded. It has left that function to the Board, relying on guidance from the Virginia Department of Transportation. It was a prudent choice. Otherwise, the funding of specific projects would be largely based on politics, rather than need. Continue reading

Contracting Out the Space Race

Photo credit: NASA

by Dick Hall-Sizemore

Because the focus of this blog is on Virginia politics and public policy, I am loath to venture beyond those boundaries. However, I have recently become concerned about an issue (nonpartisan, I hope) that has ramifications beyond the Commonwealth. I am interested in the opinions of those on this blog who may have much more expertise in the issue than I have.

An American private company recently succeeded in landing a payload on the moon. This was the first American moon landing in 51 years. This feat highlights a change in space policy by the United States: the government has turned much of space activity over to the private sector.

The director of NASA’s planetary science division summarized this change in space policy this way:

This is a really a significant shift in how we do business. “The fact that NASA is not actually building or responsible directly for these missions or their launches is an opportunity to invest in the commercial industry to build a new capability. NASA can then purchase the delivery service, and the intent hopefully being that we can increase the frequency of deliveries and reduce the cost to NASA of doing science. Continue reading

The Fight Against Invasives

Image credit: National Geographic

by Dick Hall-Sizemore

One fascinating aspect of the General Assembly is legislation that does not make headlines but is important to a fervent group of Virginians and that could have an impact on the state as a whole.

In recent years, the problem of invasive plants has gained the attention of legislators. In 2009, the General Assembly defined an invasive plant as one “that is not native to the ecosystem and whose introduction causes or is likely to cause economic harm or harm to human health.”

The requirement that an introduced plant must cause harm in order for it to be considered invasive is the key to the definition. That means the daffodils that are now adding some cheer to my backyard in the middle of winter are not invasive. On the other hand, the English ivy in my yard is invasive.

That statutory definition does not identify the specific plants that should be considered invasive. Consequently, there could be disagreements among “plant people” and confusion in the general public. Last year, the General Assembly directed the Department of Conservation and Recreation (DCR) to “create a list of invasive plant species” by January 1, 2024. It also prohibited any state agency from planting, selling, or propagating any plant on that list, except under narrowly defined situations. (The Virginia Mercury has described this years-long history in detail.) Continue reading

A Traditional Conservative Issues Warning

Liz Cheney Photo credit: Richmond Forum

by Dick Hall-Sizemore

Liz Cheney was in Richmond Saturday night delivering her warning about Donald Trump.

Cheney represented Wyoming in the U.S House of Representatives and held the No. 3 leadership position in the Republican caucus.  She served on the Select Committee to Investigate the January 6th Attack on the United States Capitol.

Her speech was this month’s offering of The Richmond Forum, a long-running public subscription lecture series.  According to the president of The Forum, Cheney was booked about a year ago, before her high-profile role in the 2024 Presidential election campaign could have been known.

Cheney’s message was simple:  if elected President this year, Donald Trump will destroy constitutional democracy in the United States.

Another takeaway:  congressional Republicans have been infected by a “plague of cowardice.”

For her Virginia audience, Cheney had effusive praise for U.S. Representative Abigail Spanberger.  She said that Spanberger was only the second Democrat she had ever endorsed.

Apparently, all the media outlets in the Richmond area were asleep.

Doing the Math

Image credit: National Review

by Dick Hall-Sizemore

I have a dilemma. I can’t decide if I am just like most old farts who think “the way I used to do it” is the right way and the modern way is all screwed up, or if I am just out of touch with the modern way.

Here is the situation. As I have mentioned before, I volunteer in the local elementary school. I meet with a group of fifth-graders twice a week for about 25 minutes to help them with math. Most of the students in the group last fall simply did not know the multiplication tables well.  Therefore, I decided to drill them on those tables.

After their mid-year assessment, I got a different group of students. Almost all of these students know the multiplication tables. I realized I need to give them something more challenging. I asked a couple of students to show me how they would go about multiplying a double-digit number and a single digit, such as 14 x 7. One boy did the calculation in his head. The other student wrote it out.

The approach goes like this: multiply 7 times the number in the “ones” column—28. Multiply 7 times the number in the “tens” column—70. Add the two: 98.  This is done with a matrix of boxes into which the 28 is placed in one box, and 70 in the other and the two sums are then added. The “old” way of putting 8 in the “ones” column and “carrying” the 2 to the “tens” column is totally foreign to these students. Continue reading

The Speaker Rules

Del. Don Scott (D-Portsmouth), Speaker of the House of Delegates Picture credit: Axios

by Dick Hall-Sizemore

The Speaker of the Virginia House of Delegates is widely regarded as the second-most powerful figure, after the Governor, in Virginia state government. Speaker Don Scott (D-Portsmouth), elevated to the position this session after only two terms in the House, has let the power go to his head. Rather than acting like the presiding officer of the whole House, he is behaving like a partisan dictator.

Two events, perhaps related, earlier this week illustrate this attitude.

To help with the understanding of these events, it would be best to state some of the ground rules:

  • The Speaker appoints delegates to committees;
  • The Speaker assigns bills to committees;
  • The Speaker chairs the House Rules Committee;
  • The Rules Committee, unlike other committees, can send bills to the Floor without recommendation;
  • House Rules require that no amendment to a bill can be on a subject that is different from the one under consideration. This is known as the “germaneness rule”;
  • The Speaker can rule on questions of parliamentary procedure;
  • The Speaker’s rulings can be challenged. (Invariably, the members of the majority party, the Speaker’s party, will vote to uphold the Speaker’s rulings.);
  • The federal Hyde amendment prohibits the use of federal funds to pay for abortions except in cases of life endangerment, rape, or incest.

Continue reading

Dueling Fiscal Impact Statements

Del. Marcus Simon (D-Falls Church) Photo credit: Falls Church News-Press

by Dick Hall-Sizemore

Providing a fiscal impact statement (FIS) for legislation is a positive aspect of the legislative process. The statement can alert the legislators to the possible fiscal implications of a bill under consideration and its estimated cost. Thus, legislators are in a position to make a more informed decision about supporting the bill.

The process for preparing FISs has been described and discussed in detail in an earlier post on this blog. There is a bill currently under consideration that nicely illustrates the ways in which fiscal impact statements can be misused. Before going into specifics, it would be useful to review how that happens.

As with many things intended to be positive, FISs have a negative aspect, as well. For example, legislators can hide behind them. Subject-matter committees are supposed to make the policy decision on a bill and, if it is approved, refer it to the House Appropriations Committee or the Senate Finance and Appropriations Committee, as applicable, for the consideration of the fiscal impact. The money committees, in theory, are supposed to limit their consideration to whether the projected fiscal impact can be handled in the budget. In reality, however, those committees also take the policy aspects of those bills into consideration. As a result, legislators on the subject-matter committees who may think a bill is bad for any of several reasons, but do not want to oppose it for political reasons, can vote for it, knowing it will be referred to the money committee, which will likely kill it. Continue reading

Biting the Hand that You Need

by Dick Hall-Sizemore

If you are a Virginia governor entering the last two years of your term with your party in the minority in both houses of the legislature and are depending on the other party to help you put in place a major project which would be part of your legacy, why would you publicly insult that party gratuitously?

In a speech this weekend at Washington and Lee University, Governor Youngkin had this to say: “Today’s progressive Democratic Party does not believe in — nor do they want — a strong America, an America with no rivals; they are content to concede, to compromise away, to abandon the very foundations that have made America exceptional.”

Senate Democrats promptly announced that the bill to create an authority to oversee the $2 billion development for a professional basketball and hockey arena would not be on the agenda for Monday’s meeting of the Senate Finance and Appropriations Committee. Sen Scott Surovell, (D-Fairfax), the Senate Majority Leader explained that the speech “pretty much destroyed any sense that there was “good faith” in discussions between the administration and Democrats. Monday is the last day each house can consider its own bills, with the exception of the budget bill.

I wonder if Youngkin was aware of his party leader’s attitude about America’s “foundations” — treaties are not to be honored; America’s support is for sale; he would encourage Russia to do ”whatever the hell it wanted to” if an ally were not putting up as much as he thought they should.