Tag Archives: Emilio Jaksetic

Descano’s Unconstitutional Actions

Steve Descano. Photo credit: WTOP

by Emilio Jaksetic

Fairfax County Commonwealth Attorney Steve T. Descano has invoked his prosecutorial discretion to issue several “criminal justice reforms.” (Copies are available here.) As part of these reforms, Descano refuses:

(1) to prosecute any person for simple possession of marijuana;

(2) to prosecute any person for felony larceny for any amount less than $1,500 even though the statutory threshold is $1,000;

(3) to pursue any probation violation based on a conviction for possession of marijuana; and

(4) to request cash bail under any circumstance (even if defense counsel requests cash bail).

By implementing the cited policies, Descano has violated the Virginia Constitution. To reach this conclusion, it is necessary to consider: (1) the limits of prosecutorial discretion; (2) specific provisions of the Virginia Constitution that constrain all Virginia officials, including Commonwealth Attorneys; and (3) how Descano’s implementation of certain policies runs afoul of the Virginia Constitution. Continue reading

A Threat to Due Process Comes from…(Drum Roll)… Virginia’s Division of Human Rights

by Emilio Jaksetic

On November 18, 2020, Attorney General Mark R. Herring informed NAACP Loudoun Branch and Loudoun County Public Schools (LCPS) that a Final Determination (Determination) had been made by the Division of Human Rights (DHR) in DHR Case No. 19-2652. In making its Determination, DHR used a procedure that poses a serious threat to due process, specifically using confidential witness statements as evidence against the LCPS.

The case addressed the admissions policies at the elite Loudoun Academy, where African American students were enrolled at lower rates than Asians and whites. While describing how the DHR collected information regarding the witnesses offered by the NAACP, the Determination makes the following statement:

Because of apparent witness concerns surrounding confidentiality and retaliation, the Division includes below a select group of pertinent narratives reported to the Division by the fact witnesses who responded to the Division’s inquiry through correspondence or interview.

Following that statement are slightly more than six pages of extracts from multiple sources who are identified only generically. Nothing in the Determination indicates whether LCPS was provided with a copy of the statements from which the quoted extracts were taken. Even if LCPS counsel received a copy of those statements, the testimony might well have been redacted to protect the identity of confidential witnesses (1VAC45-20-82 and 1VAC45-20-83.C).  (The Department of Law’s regulations implementing the Virginia Human Rights Act are available here.)  Continue reading

Religious-Freedom Challenges to Northam’s Executive Orders

Slate Mills Baptist Church, one of the three churches suing Governor Northam. Credit: John Bowman, Flickr

by Emilio Jaksetic

Three churches in Virginia are suing Governor Northam over restrictions in his latest pandemic-related executive order, claiming their rights to religious freedom are being infringed. (See The Virginia Star article here.) The cases raise questions about Northam’s authority to limit, restrict or otherwise regulate religious activities in response to the pandemic.

In Executive Order 72 (December 10, 2020), Northam claims authority under

  1. Virginia Constitution, Article V;
  2. Virginia Code, Sections 32.1-13; 32.1-20; 35.1-10; 44.146.17; and
  3. any other applicable law.

A governor has authority by virtue of Article V of the Virginia Constitution, which details his primary responsibility to execute enacted laws. An executive order is not an originating source of authority, merely an instrument to execute or carry out authority that has been granted by the Virginia Constitution or enacted statutes. A governor cannot create new power and authority by merely issuing an executive order. Furthermore, a governor’s claims of authority in an executive order are not self-authenticating and can be legally challenged. Continue reading

Legal Futility of Virginia’s Online Petitions

by Emilio Jaksetic

Currently, online petitions are advocating the removal of the superintendent of the Fairfax County Public Schools and the principal of Thomas Jefferson High School. (See the petitions here and here.)

Such online petitions are legally futile.

Under Virginia law, removal of elected officials such as Fairfax County school board members is handled differently from removal of appointed officials such as a principal or superintendent. According to Virginia Code, Section 24.2-230:

Appointed officials. “[A]n appointed officer shall be removed from office only by the person or authority who appointed him unless he is sentenced for a crime as provided for in [Section] 24.2-231 or is determined to be ‘mentally incompetent’ as provided for in [Section] 24.2-232.”

Accordingly, no petition signed by Virginians — regardless of the number of signers — can force the removal of an appointed official in Virginia. At best, a petition signed by Virginians can be presented in the hope of persuading the appointing authority. Continue reading

Solar Panels in Virginia: A Primer

by Emilio Jaksetic

Virginia law (Virginia Code, Section 67-701 ) makes it easier for owners to consider installing solar panels on their property by limiting the ability of community associations to prohibit or restrict the installation of solar panels on the owner’s property.  While the statute is likely to encourage the use of solar panels by property owners, there are some things that should be considered by property owners, community associations, and local government officials.

First, community associations in Virginia should get legal advice about the scope and applicability of Section 67-701 before trying to prohibit or restrict an owner from installing a solar panel on the owner’s property.  (The relevant definition of “community association” is provided by Section 67-700.)

Second, owners should not rush to install solar panels on their property, and community associations should not rush to install solar panels on the common areas of their community, without considering the following: Continue reading

Herring Is Moonlighting in Election-Law Litigation

Mark Herring: busy man or busybody?

by Emilio Jaksetic

This year Attorney General Mark Herring has joined legal filings  in court cases involving election law disputes in six other states. This is strange because legal disputes about the election laws of other states: (1) are not within his jurisdiction or authority, (2) have no legal effect on Virginia or its elections; and (3) set no precedents that can bind or limit a Virginia court interpreting Virginia law.

Under the U.S. Constitution, Article I, Section 4, “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof ….”  And, the election laws pertaining to state and local elections fall under the relevant provisions of each state’s constitution and statutory laws. So, disputes over the election laws of other states have no bearing on Virginia’s election laws. Furthermore, nothing in the Virginia Constitution or the Virginia Code gives Herring any duty or responsibility for getting involved in legal disputes about the election laws of other states.

Nevertheless, press releases from the Office of the Attorney General show that he has joined in the filing of amicus (“friend of the court”) briefs in lawsuits concerning the election laws of the following states: Continue reading

Fairfax School Board Should Focus on Schools, Not Environmental Policy

Fairfax County Environmental, er, School Board

by Emilio Jaksetic

Not content with running the county’s public school system, the Fairfax County School Board now is involved with developing strategies and recommendations for county environmental policy. The results can be seen in the Final Report of the Oct. 1, 2020, Fairfax County Joint Environmental Task Force (JET).

In April 2019, the JET was established “to identify areas of collaboration between Fairfax County Government and [Fairfax County Public Schools] to further county efforts in energy efficiency and environmental sustainability, developing implementation strategies. and making recommendations to the [Board of Supervisors and School Board].” During the period April 2019-October 2020, five members of the board served as members of JET’s Executive Committee.

The JET was tasked to “provide a forum for informing, advising, collaborating and addressing Countywide issues and aligning institutional policies and practices pertaining to climate change and environmental sustainability through the lens of One Fairfax and to appointing bodies.” Continue reading