Wednesday, July 27, 2011

The real Ken Cuccinelli

Tuesday July 26, 2011 the Washington Times ran a column about Thomas Haynesworth, a man wrongfully accused of the heinous crime of rape as a young adult, and Kenneth Cuccinelli the (allegedly) ultra-conservative Attorney General of the Commonwealth of Virginia who has been working to free and exonerate Mr. Haynesworth.  For those who know Mr. Cuccinelli personally the only thing surprising about this story is the publicity involved.

Mr. Cuccinelli is actually a decent and honorable man.  When he sees something that is clearly awry for which he has control he tries to do something about it.  Unlike the persona often portrayed in the media, partially of Mr. Cuccinelli’s own making, he actually has a moral compass that compels him to do the right thing instead of the political thing.  He would probably say that both are generally aligned in most instances.  Nonetheless, do not be surprised if this is not the last time Mr. Cuccinelli steps up in the name of justice, despite the cause traditionally being associated with the left side of the political spectrum.  For those who knew him before he had a statewide, and arguably national, stage we are thankful that the office has not changed him to remove those elements that are most admirable and human.

I am pleased to see Mr. Haynesworth is free, and hope to see him exonerated soon.  It is a travesty to him, and a loss to society to have unjustly ripped him from his life, smeared his name, and left him in the misery of prison.  I hope God and man make up for it from this day forward. 

Monday, July 25, 2011

Legal qualifications for candidacy in Virginia elections explained

I have seen repeated concerns in Virginia political blogs about the residency requirements for candidates for political office.  The practical effect of allegedly failing to meet residency requirements appears to be minimal.  This post is specifically designed to explain the law behind the residency requirements for candidates for Virginia public office, and the potential consequences of failing to meet those requirements.

How does one become qualified to hold a public office?

“In order to hold any [elected] office . . .the candidate must have been a resident of the Commonwealth for one year next preceding his election and be qualified to vote for that office.”  Va. Code § 24.2-500.  Keep in mind this is simply to hold an office.  This is not the requirement to run for the office, or to be voted in to office.  This is the requirement to be sworn in.

How does a candidate become qualified to be a candidate for a particular public office?

“In order to qualify as a candidate for any office . . . a person must be qualified to vote for and hold that office.”  Va. Code § 24.2-500.  A similar provision applies to candidates in primaries under Va. Code § 24.2-519.  It is not actually possible to tell at the time that one qualifies as a candidate if that person will actually be a resident up until the actual election.  Presumably, the legislature means that to qualify you must be a resident for the year preceding the date one qualifies as a candidate.  The alternative is that this portion of the statute is potentially unenforceable as vague. 

How does one become “qualified to vote?”

Both the previous situations - holding an office, or qualifying as a candidate for an office -  require that the candidate or officer be qualified to vote for the office in question.  “‘Qualified voter’ means a person who is entitled to vote pursuant to the Constitution of Virginia and who is (i) 18 years of age on or before the day of the election…, (ii) a resident of … the precinct in which he offers to vote, and (iii) registered to vote.” Va. Code § 24.2-101.  Items i and iii are factual and self explanatory.  Item ii and the definition of “resident” is less clear.  "Residence" or "resident," for all purposes of qualification to register and vote, means and requires both domicile and a place of abode. To establish domicile, a person must live in a particular locality with the intention to remain. A place of abode is the physical place where a person dwells.”  Va. Code § 24.2-101.  The definition of abode is fairly self explanatory.  Domicile is a legal term of art that can generally be proven by showing that one intends to remain by changing mail delivery, drivers’ licenses, car registrations, and tax filing addresses to the new home.  It requires a very fact intensive analysis.

What does it take to get on the ballot?

Here is where the threat of criminal sanctions can arise in egregious situations.  A statement of qualification for candidacy must be filed by the candidate pursuant to Va. Code § 24.2-503.  In 2011 the dates for filing are different under HB 1507 due to redistricting.  There are different dates for filing the statement depending on if there is a primary, or if there is no primary.  The terms of the statement required are detailed in Va. Code § 24.2-501, which states in part “a person must file a written statement under oath, . . . that he is qualified to vote for and hold the office for which he is a candidate.” 

A statement made under oath, particularly to an agency of the Commonwealth of Virginia or its subparts is subject to potential criminal sanction under Va. Code § 18.2-434, which states in part “any person to whom an oath is lawfully administered on any occasion . . . willfully subscribes as true any material matter which he does not believe is true, he is guilty of perjury, punishable as a Class 5 felony.”  Under Va. Code § 18.2-10, class five felonies are punishable with “a term of imprisonment of not less than one year nor more than 10 years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.”

So what are the remedies for a candidate or voter negatively affected by the candidacy of a person not capable of holding or being a candidate for a particular office?

A. Criminal Sanctions

The reader must understand that prosecution of criminal matters is at the discretion of the local Commonwealth’s Attorney.  Anyone with knowledge of a crime can swear out the warrant for someone’s arrest.  But, a magistrate does not have to issue the warrant, and the prosecutor can drop the case.  The only actual crime potentially arising out of a situation with a non-legally qualified candidate is perjury under Va. Code § 18.2-434 for the action of submitting the false statement of qualification under oath.  Not only do criminal matters need to be proven beyond a reasonable doubt, but perjury requires that the person making the sworn statement “know” that the statement they are making is not true.  This last element must be proven by a prosecutor, whereas any candidate can easily claim they made an innocent mistake.

Functionally prosecution is nearly impossible.  Any Commonwealth's Attorney that pursues this route will likely lose in a high profile, politically charged case.

B. Civil administrative remedies by the SBE or local registrar

These folks are performing administrative duties.  It is not their job to research the histories and backgrounds of potential candidates.  There is nothing improper about them accepting a statement of qualification of candidacy at face value.  In fact, if after receiving a statement of qualification containing all the required elements, and requisite petition signatures, a registrar refused to place a candidate on the ballot due to the registrar's own belief that the candidate is not legally qualified, then the registrar should expect to be subject to a writ of mandamus an unusual legal proceeding designed to force a public official to perform a ministerial act.

This is not the place to seek a remedy.

C. Civil enforcement between private parties

The proper and effective route to challenge a legally unqualified candidate is to bring a civil action against the candidate as early as legally possible.  This lawsuit must be brought on behalf of someone directly affected by the improper candidacy (opposing candidate, voter, local political committee), and must be brought against the legally unqualified candidate, and the local registrar and SBE depending on the type of office.  The party bringing the lawsuit should immediately seek a preliminary injunction against placement of the legally unqualified candidate on the ballot.  The preliminary injunction against placement on the ballot, although difficult to obtain, will likely be the only potential remedy.  The court has the power to reject an injunction after an election on the grounds that it is not in the public interest to upset the results of an election. 

If the goal is simply to make a statement about how a candidate was never legally qualified, a lawsuit after the election is possible.

These remedies require payment of substantial attorneys' fees and the posting of a bond if successful at the preliminary injunction stage.  Between the difficulties in obtaining an injunction, and the costs involved no one seems willing to pursue this route.


There is only one legal remedy (civil enforcement) for someone affected by a candidate they feel is not legally qualified.  Otherwise affected parties can attempt to persuade voters of the illegal nature of a persons candidacy in the court of public opinion.  The problem with this latter route is that voters never seem to notice - or if they do notice they do not care.

Previous shorter versions of parts of this explanation can be found in my comments at:

Thursday, July 21, 2011

Other federal lawsuits challenging the individual mandate are catching up while we await rulings in the claims made by states

There have been two true victories for opponents of the individual mandate, one in Virginia, and the second in Florida.  These matters have been appealed by the federal government.  At the same time, Plaintiffs have filed another dozen substantive claims in various courts throughout the country.  Of those that have been ruled upon at the trial level, challengers to Obamacare have lost in every other District Court.  See coverage of the other cases Liberty University v. Geithner, here, and Seven-Sky v. Holder, here.

Only one Federal Court of Appeals has ruled, and it found the individual mandate Constitutional by a vote of 2-1 (the ruling is far more complicated than the mere 2-1 vote suggests, and I explained the details here).

Where are we headed?

If you read the articles of any major news organization, it is presumed this litigation will ultimately be decided in the Supreme Court.  But, there simply is no guarantee the Supreme Court will weigh in on this issue.  Before the Supreme Court takes a case, they usually must see an egregious miscarriage of justice, or a conflict amongst appellate courts, or both.  Right now we have one appellate opinion.  For the challenges to the individual mandate to have a reasonable chance of being adjudicated in the Supreme Court there will likely need to be at least one victory for opponents of Obamacare before the Supreme Court is willing to take the case.

The most likely victories

The most likely victories will come from the Fourth or the Eleventh Circuits.  These are the two Circuits in which the lawsuits filed by Virginia and the other 26 states respectively are being adjudicated.  These are also the Circuits adjudicating the only victories so far.  Unfortunately it looks like the Fourth Circuit is likely to uphold the individual mandate, as explained here.  The Eleventh Circuit though appears to have a mixed panel, and there is a better chance of success.

Both the Fourth and Eleventh Circuits have completed briefing and oral argument and have been pending written decisions for over a month.

The rise of other opportunities

Because of the passage of time, two lesser known appeals have caught up.  In the Third Circuit, New Jersey Physicians v. Obama is now pending a decision.  In the Ninth Circuit, the matter of Baldwin v. Sebelius is pending a decision.

Both cases were dismissed due to a lack of standing for the Plaintiffs.  Although originally standing was thought to be a large hindrance to these types of cases, the courts have been fairly responsive to the need to find standing and proceed to the merits in other jurisdictions.  In fact, the Sixth Circuit Court of Appeals ruling upholding the individual mandate still goes to great lengths to explain why plaintiffs have standing in these types of cases.  The victory opponents of the individual mandate are looking for may be coming any day, but it may surprisingly be coming from the Third or the Ninth Circuits. 

Keep an eye on the Courts, any day now we will see our next ruling, and be one more step closer to convincing the Supreme Court to take on this major Constitutional issue.

For previous posts regarding the individual mandate please click here.

Thursday, July 14, 2011

Opportunity for corporations to donate directly to federal candidates possible: Eighth Circuit grants en banc review for Swanson case

Excitement in the world of campaign finance litigation yesterday!* 

On July 12, 2011 the U.S. Court of Appeals for the Eight Circuit granted en banc review in the case of Minnesota Citizens Concerned for Life, Inc. v. Swanson, Record No. 10-3126.  This means that all of the Judges of the Eight Circuit will rule upon the issue of whether the Constitution allows the government to prevent corporations form making direct contributions to candidates.  

What is this about?

In May and June 2011 I covered the details of an Eastern District of Virginia case referred to generally as Danielczyk.  Coverage here.  In short the major issue of concern is whether a federal ban on contributions from corporations directly to federal candidates is Constitutional.  Judge Cacheris in the Eastern District of Virginia said the ban is unconstitutional.  The federal government has now appealed the Danielczyk decision.  Three federal appellate courts said a ban is Constitutional . . . until July 12.  On July 12, 2011 the Eight Circuit Court of appeals vacated their holding of Constitutionality, and now all the judges on the Circuit will have an opportunity to weigh in.

How does En banc review work?

When a case goes to a U.S. Court of Appeals it generally will go before a randomly selected panel of three appellate judges for that particular circuit.  Those three judges render an opinion, that then becomes the opinion of the entire circuit.  Litigants dissatisfied with a ruling by a panel may petition for rehearing (asking the same three judges to change their minds) or petition for a rehearing en banc.  A rehearing en banc is when all of the judges sit, hear argument, and rule upon a case.  Successful petitions for rehearing and petitions for rehearing en banc are very uncommon, and publicly available statistics for these procedures are unavailable (outside of the Federal Circuit).  Under Fed. R. App. P. 35(b) a rehearing en banc should only be granted in instances where the panel decision conflicts with a decision of the Supreme Court, or another decision from the same circuit, or if the case involves an issue of exceptional importance that can be concisely stated.  The petition is limited to 15 pages, and will often be narrowly focused on the major issue(s) in order to make an important point in a small amount of space.

Once en banc review is granted, the court may, in its discretion, order additional briefing.  This does not appear to have been done in this case.

What does this grant of en banc review mean?

1) It likely means a number of judges at the Eighth Circuit have serious misgivings about the Constitutionality of a ban on direct contributions from corporations to candidates.

2) More importantly, the judges of the Eighth Circuit likely believe this is an issue that will not be settled once and for all in the Courts of Appeals.  This issue is likely headed back to the Supreme Court where the scope of the January 2010 Citizens United Ruling will have to be clarified.

I just hope our Fourth Circuit Judges get a chance to opine before the Supreme Court sets the matter straight.

*I know campaign finance law and appellate procedure are not fun for everyone, but that is okay.  I think there is room enough in the world for all of us.

Tuesday, July 12, 2011

Ken Cuccinelli's take on the 6th Circuit upholding the Constitutionality of the individual mandate

Wherein Virginia Attorney General Ken Cuccinelli agrees with most of my analysis regarding the effect of the 6th Circuit opinion upholding the Constitutionality of the individual mandate:

From the Cuccinelli Compass July 12, 2011

Cuccinelli Compass Banner
July 12, 2011

Dear Friends and Fellow Virginians,
I wanted to update you on the 6th Circuit's appellate ruling in the healthcare case.  There are a lot of nuances to the ruling, so let's start at the beginning and go through them one at a time.

Before I begin, I need to offer a disclaimer.  The way this case was decided, it ended up being very complex - so please bear with me.  


Remember that in an ordinary appeal (not to the Supreme Court), three judges sit together to decide the appellate case.

There are four appellate courts that have heard appeals in the healthcare cases: the 4th circuit (including Virginia); the 6th circuit; the 3rd circuit; and the 11th circuit (where our 26 sister states argued their case).  Only the 6th circuit has ruled so far.  We are awaiting rulings from the other three circuits.

Because three judges sit on each of these cases, an important procedural rule to be aware of is that the narrowest opinion in the majority is deemed the governing opinion of the court.  The rationale for this rule is that the narrowest opinion is the one that everyone in the majority agreed upon, and then other opinions 'added' to that 'base' opinion.  This is a simplification of course, but that is the governing rule of interpretation.

This rule of interpretation is important in the 6th circuit's case because all three judges wrote separate opinions in the case.

Guts of the Ruling: Individual Mandate

The three judge panel split 2-1, with two judges concluding that the individual mandate is constitutional, at least in this case.  One of those judges concluded that the mandate is constitutional, period.  However, Judge Sutton, who wrote the narrowest prevailing opinion, said only that it was constitutional in this case, but could be unconstitutional on a case by case basis in other cases - a very unusual ruling indeed.

Because of the unique approach taken by Judge Sutton, it seems unlikely that other judges (or Justices) will follow his approach.

More on Judge Sutton's opinion in a moment...

Other Guts: Taxing Power

While upholding the constitutionality of the individual mandate, the court voted 2-0 to reject the federal government's argument that the individual mandate and accompanying penalty could be sustained under Congress' taxing power.  You may ask, 'where was the third judge?'  The answer is that Judge Martin did not address the subject.

Judge Martin reasoned that he had already upheld the individual mandate under the commerce clause, so there was no need to address the taxing power argument.  However, both Judges Sutton and Graham did address the subject - and both rejected the feds' claim that the penalty was a 'tax' and thus fell under Congress' constitutional taxing power.

As a reminder, what the feds are arguing is that the penalty you must pay if you fail to buy the government-mandated health insurance is in fact a tax, not a penalty.  Furthermore, they say, that Congress has broad authority to levy taxes under Article I, section 8 of the constitution (this is certainly true).  Therefore, this reasoning goes, Congress was simply exercising its constitutional taxing power by imposing the penalty on those who fail to obey the government diktat to buy approved health insurance.

Put simply, the feds are saying that they can order you to do just about anything, then assess a financial penalty against you if you fail to act, and because they deem that penalty a tax, the whole thing is constitutional.  This is the most radical claim in the whole case - by far.

Those of you that have heard me speak on this matter have heard me say that I am loathe to make any specific predictions on how this case will go, but that I will predict that no judge or justice in America will agree with the federal government's radical taxing power argument.

So far, so good on that prediction!

The Scorecard

So here is how the judges lined up in this case:

Judge Martin: individual mandate IS constitutional; did not vote on taxing power.
Judge Sutton: individual mandate IS constitutional (in this case); penalty is NOT a tax.
Judge Graham: individual mandate is NOT constitutional; penalty is NOT a tax.

Judge Martin didn't vote on both issues because he knew that the feds only needed to win on one to sustain the statute, so he didn't vote on the tax issue.

Judge Sutton concluded only that the individual mandate was constitutional in this case, so because he presumably foresaw circumstances in which the individual mandate would not be constitutional, he proceeded to also rule on the tax question.

My Opinion of the Opinions

Two of the judges (Sutton and Graham) agreed that the exercise of power by the federal government in mandating individuals to buy government-approved health insurance is "unprecedented."  This is consistent with my view that for the federal government to win this case, the Supreme Court will have to go farther than it has ever gone before in expanding the commerce power of Congress.  However, for the states to prevail, the Court need not go beyond or overturn any prior commerce clause case.

Judges Sutton and Graham thus agreed that it is the feds that are seeking a change in the status of the law related to the commerce clause, and despite saying that such a change is only for the Supreme Court to undertake, Judge Sutton implicitly accepted the change anyway by ruling the mandate constitutional.

Judge Sutton unusually challenged the Supreme Court to take definite action.  Most strikingly he said that the Supreme Court "either should stop saying that a meaningful limit on Congress' commerce powers exists or prove that it is so."  Amen brother!

Additionally, both Judges Sutton and Graham spoke predictively about the 'direction' of Supreme Court cases related to the commerce clause and federalism - a decidedly unusual feature of a lower court opinion.

I am unfamiliar with any case ever that saw such brazen expectations of Supreme Court involvement explicitly written into the opinion.  It seems that virtually all of the trial and appellate judges who have touched this case are confident that it's going on to the Supreme Court.  Again, very unusual, but I do agree.

The two greatest weaknesses of the controlling opinion - in my humble opinion - are the failure to effectively digest and respond to the arguments about the distinction between regulating "activity" vs. "inactivity," and the mistake of not treating the case as a facial challenge to the statute.

That's all for now!  As always, we'll update you on the rulings as they come in.   

   Ken's Signature
Ken Cuccinelli, II
Attorney General of Virginia


My analysis on the opinion from June 29, 2011:

There is an apparent dissimilarity between the two analyses, I may explain it when I have more time.

Monday, July 11, 2011

Analyzing and debunking Rep. Bachmann's legal past

Rep. and Presidential candidate Michele Bachmann has done well in recent polls causing many observers to consider her with greater scrutiny.  Nothing jumped out at me at first.  Then I heard that she was not just a former tax attorney, but that she was a tax attorney for the IRS.  This alleged fact gave me pause as a fiscal conservative and tea party sympathizer.

Below is the mess of information I found on Rep. Bachmann's legal career reorganized for rational perusal.

Law school: O.W. Coburn School of Law at Oral Roberts University

According to her bio, Rep. Bachmann graduated from the O.W. Coburn School of Law at Oral Roberts University in 1986.  It appears that this was the last class of the school as the school was merged into the fledgling law program at CBN University, later called Regents School of Law in Virginia.  This does not appear to have been a particularly prestigious law school, but in the end, a legal career is what you make of it.

L.L.M in Tax: William and Mary School of Law

Rep. Bachmann then claims to have obtained an L.L.M in Tax at the William and Mary School of Law in 1988.  In modern terms, most L.L.M. programs are designed for foreign trained lawyers to become eligible to take a bar examination in a U.S. state and are unavailable to lawyers that attend a United States law school.  Nonetheless, there are a few specialties that allow students to apply for and obtain L.L.M's in particular fields.  A specific L.L.M. specialty that withstood the test of time is an L.L.M. in Tax.  Both the L.L.M. in Tax and the William and Mary School of Law carry with them a substantial amount of prestige.  This should be a gold star on her biography.

And then there was uninformed scrutiny . . .

Apparently, William and Mary School of Law only offers L.L.M.'s to foreign lawyers who wish to practice in the United States.  There is no Tax L.L.M. program.  Picking up on this fact, commentators (I am being generous here) have been angrily accusing Rep. Bachmann of lying about her legal pedigree.  See here, here, and here.  They use phrases such as William and Mary does not and "never has" offered an L.L.M. in Tax law.

It is just plain wrong.  William and Mary School of Law used to offer an L.L.M. in Tax.  William and Mary recently put out a statement acknowledging her degree and alumnae status.  If you simply Google the relevant search terms you can find other attorneys claiming to have an L.L.M. in Tax form William and Mary in 1988.  E.g., here and here.  Either this is a massive conspiracy or she actually has the degree.  Another observer came to the same conclusion I did on her own.

Is she licensed to practice law?

The answer is yes, she was and currently appears to be licensed to practice law by the state of Minnesota.  Any attempt to suggest this is not true or odd that she might choose Minnesota is inherently false and uninformed.

But what about the IRS stuff?

According to the Wall Street Journal and the Atlantic she did represent the IRS in collections matters against taxpayers.  According to the WSJ article, because few matters were appealed there is little documentation from her time at the IRS from 1988-1992.  A note to readers, we likely will not see much in response to FOIA requests either as the relevant documents are likely attorney client privileged and/or contain personal information of taxpayers and will be protected from disclosure.  This era in Rep. Bachmann's life should be concerning for those supporting limited government. 

Surely government service, even for the IRS, is no bar to support from those seeking a limited government, but it certainly raises questions.  Rep. Bachmann acknowledges she was a tax attorney, but does not talk openly about her representation of the federal government.  On her Congressional website she states, ". . .I saw firsthand that our nation’s tax laws are hard to understand and undermine the country’s prosperity by imposing needlessly harsh penalties on work, savings, and investments."  If she contends she learned the evils of the tax code while working for the IRS, that is a narrative that can sell. 

Refusing to talk about her time at the IRS is the wrong decision, and forces me to remain skeptical.

Wednesday, July 6, 2011

Major Fourth Circuit case barely critiques Virginia candidacy petition requirements

In the matter of Lux v. Judd, the Fourth Circuit today ruled that a portion of Va. Code § 24.2-506 may be unconstitutional.  I wish I had a clearer ruling then that, but that is all we have . . .

Why couldn't Herb Lux be on the ballot?

Herb Lux, a candidate for Virginia's Seventh Congressional District, was kept off the ballot in 2010 despite submitting the proper declaration of candidacy form, and total number of signatures of voters within the district.  It turns out that the petitions containing signatures of voters within the district must be witnessed by a resident of the district pursuant to Va. Code § 24.2-506.  Herb Lux, witnessed all but 15% of the necessary signatures for him to be on the ballot.  But Herb Lux was not a resident of the Seventh Congressional District.  He was kept off the ballot in 2010, his federal case was dismissed, and today's ruling is the result of his appeal.

The argument below: relying on old precedent

Relying on old, but binding precedent, the District Court Judge determined that the residency requirement for witnessing signatures was Constitutional as it shows the government interest of requiring "some indication of geographic as well as numerical support."  p. 11 (citing Libertarian Party of Va. v. Davis, 766 F.2d 865, 869-870 (4th Cir. 1985)).  Since that time, two Supreme Court decisions, both analyzing Colorado law, determined that a residency requirement for witnessing signatures is not necessary to show geographic or numerical support when there is a requirement for a critical mass of signatures on the petitions themselves.

Today's ruling resolves few rights

The end result was that this case was reversed and remanded.  The District Court Judge is to apply the proper standard of review, and take new evidence on the importance of the state interest in passing Va. Code § 24.2-506.  The Commonwealth of Virginia may now present new arguments to support the Constitutionality of the statute just as long as the argument is not "proof of geographic or numerical support."

What does this mean for Herb Lux?

He did not get to run in 2010.  He has been mired in litigation since July 13, 2010.  He may still lose this case.  It is not clear where Congressional lines for 2012 will be, so who knows if he can witness his own collected signatures.

A special thanks to Bopp, Coleson & Bostrom, of Terre Haute, Indiana for bringing exciting election law cases to the Commonwealth of Virginia, and for keeping the two party system on its toes.  We hope to see them back in the Fourth Circuit soon perhaps filing an amicus brief in the Danielczyk case.