Gay Marriage lawsuit filed in Virginia; Cuccinelli will have to defend Virginia Constitution in the middle of election season

As I pointed out on July 9, Virginia, as one of only two states with gubernatorial elections this year, is going to be the epicenter of a legal challenge to state constitutional bans on gay marriage.  As the ACLU of Virginia continues to get its house in order to file a challenge and put Republican gubernatorial nominee and current Attorney General Ken Cuccinelli on the defensive, one couple has decided they no longer wish to wait. 

Timothy Bostic and Tony London, a gay couple from the City of Norfolk filed a Complaint in the U.S. District Court for the Eastern District of Virginia , Norfolk division, to have Virginia's state constitutional ban on gay marriage declared invalid due to due process and equal protection violations under the 14th Amendment.  No doubt, the plaintiff's were emboldened by the recent Supreme Court decision in U.S. v. Windsor.  The Complaint was filed against three individuals in their official capacities: Governor Robert McDonnell, Attorney General Ken Cuccinelli, and Clerk of the Norfolk City Circuit Court, George E. Schaefer, III (the clerk is responsible for issuing the marriage license).

The couple wants to be married IN VIRGINIA

The couple has been together since 1989.  London is a navy veteran and a real estate agent.  Bostic is a college professor at Old Dominion University.  They sought a marriage license at the City of Norfolk Circuit Court a mere week after the U.S. v. Windsor decision and were turned down.  They apparently have no desire to go and be married under another state's laws.  The result is that there are no issues involving interstate law, and the Defense of Marriage Act [DOMA] is irrelevant to the court's determination.  The couple expressed through counsel that they "are Virginians and they want to be married in Virginia."

Where is the ACLU?

On July 9, 2013 the ACLU of Virginia indicated it was going to file a lawsuit challenging the Marshall-Newman amendment to the Virginia Constitution restricting marriage to opposite gender unions.  As I pointed out, the timing of such a lawsuit would be disadvantageous to the sitting Attorney General.  Nonetheless, the ACLU of Virginia has been seemingly silent since then, and have not filed any sort of challenge.  Presumably, the plaintiffs in the ACLU case will have been married in another state, and hence a DOMA challenge will be brought.  Nonetheless, time is quickly passing for such a case to have any effect on the Virginia Governor's race. 

Bostic v. McDonnell

The way the Complaint is captioned, Bostic v. McDonnell may very well be the seminal case in Virginia allowing for same sex marriage.  It is also the most likely matter to have any serious affect on the gubernatorial campaign.  Interestingly enough, if Cuccinelli loses in the fall, the Democrat Terry McAuliffe will be substituted for the main defendant, and this major precedent would then be coined Bostic v. McAuliffe.  Plaintiffs hired the firm of Shuttleworth, Ruloff, Swain, Haddad & Moorecock, P.C. in Virginia Beach.  The firm appears to focus on personal injury and criminal representation.

Battleground Virginia: Gay Marriage to become primary topic in Virginia's gubernatorial election

The ACLU is about to ensure that gay marriage becomes a major issue in Virginia's 2013 election.

Today, the ACLU of Virginia announced that it would be challenging Virginia's ban on Gay marriage in federal court.  This is part of a three pronged effort in Pennsylvania, North Carolina, and Virginia to challenge restrictions on gay marriage.  Virginia's ban, known as the Marshall-Newman amendment was passed in 2006 by a 57-43% margin. 

The Supreme Court's ruling

On June 26, 2013 the Supreme Court issued two rulings regarding gay marriage.  The California Proposition 8 case was dismissed for lack of standing, and was sent back to California for enforcement of the District Court ruling.  More importantly, the Defense of Marriage Act decision struck down a key component of DOMA in United States v. Windsor. (My curt analysis of U.S. v. Windsor can be found in my previous article).

These two decisions represented big wins for gay marriage proponents.  As of this morning, I expected these victories to have a severe negative affect on liberal turnout in November.  Hence, this would benefit Ken Cuccinelli.

What this means for Ken Cuccinelli

This lawsuit will have a huge negative effect for Ken Cuccinelli.

Ken Cuccinelli was one of the patrons of the Marshall-Newman amendment and one of its strongest proponents.  Ken Cuccinelli is also the sitting Attorney General for the Commonwealth of Virginia as well as the current Republican candidate for Virginia Governor.  In modern history, sitting Attorneys' General in Virginia resign from office during the election year in order to run for Governor.  Ken Cuccinelli decided to forego that trend, which has caused some complications.  Specifically the Attorney General's office has felt the need to withdraw from two different matters involving (at least tangentially) a company called Star Scientific. 

Now, the Attorney General's office will be in the thick of arguing in support of the Marshall-Newman amendment.  Whether Cuccinelli wants to, or not, he will be the face of the opposition to gay marriage.  Many voters pay little attention to political campaigns until the key campaign season between Labor day and election day. The ACLU lawsuit will probably be prepared for summary judgment or a motion to dismiss to be argued in court in late September or early October.  Any attempt by Cuccinelli to avoid discussion of social issues will be easily brought back to the issue du jour in Virginia, which will be gay marriage. 

Terry McAuliffe does not need to focus on the issue of gay marriage.  He simply needs to state his support (which he has) and allow debate moderators, and or the media to force Cuccinelli to repeatedly discuss his dogged defense of the Marshall-Newman amendment. 

This all comes down to turnout

Virginia has off year statewide elections.  The country focuses on Virginia and New Jersey each year after a presidential election.  New Jersey's race is widely considered to be uninteresting, leaving Virginia at the forefront of national news.

Cuccinelli's base is motivated.  No amount of criticism is going to decrease the turnout of the base. 

McAuliffe's base is unmotivated.  Although many liberals are motivated by *dislike* of Cuccinelli, few actually care for McAuliffe.  This enthusiasm gap is cured if McAuliffe has this social issue to run on.

Independents and right/left leaning voters, in my opinion, either support gay marriage, just do not care, or wish the government would just get out of the business altogether.  All three of these demographics will be turned off by the Cuccinelli's media manufactured focus on gay marriage, even if they opposed gay marriage in 2006.  This is because they would rather the governor focus on the economy, and jobs.

And then there is money.  With no nationwide initiative in the next six months, unlimited campaign contributions in Virginia, and an "anti-gay" crusader on the statewide ballot, gay marriage supporters can voice their concerns with their money.

The bottom line

Make no mistake, Ken Cuccinelli is not afraid to stand up for what he believes in, but winning statewide office in Virginia requires him to focus on something more than a divisive social issue. 

The nature and timing of this lawsuit may very well be the reason McAuliffe wins in November.

Cuccinelli relieved from case, McDonnell still in the crosshairs

In the case of former chef to the Executive mansion Todd Schneider, AG Cuccinelli's office (as predicted) has been let out of the case.

In response to discovery motions implicating Governor Bob McDonnell, AG Cuccinelli's office moved the court to allow the AG's office to be recused from the case.  Schneider's attorneys objected. 

At a hearing this afternoon, Judge Margaret Spencer of the Richmond City Circuit Court allowed AG Cuccinelli's office to withdraw from the case. 

Norfolk Commonwealth's attorney, Greg Underwood (D) will be handling the prosecution from now on.  Commonwealth's Attorney, Paul Ebert was not selected for reasons not apparent from any news source at this time.

The AP reports that the motion to dismiss has been delayed until May 14, 2013.  Given the fact the recusal motion has been granted, I strongly predict the motion to dismiss will be denied.

Governor McDonnell still faces the possibility of substantial disclosure of records regarding his family's use of assets at the Governor's mansion.  With AG Cuccinelli's office out of the picture, he is likely anxious to find out what will happen next.

Star Scientific and Cuccinelli, a fleeting excitement

Updated: Motion to recuse AG Cuccinelli's office granted, as predicted.

An Attorney General seeking a governorship, a well-heeled businessman paying a substantial amount toward the Governor's  daughter's wedding, a disgruntled former employee being prosecuted for embezzlement, and an off year election make for some juicy legal stories.

The only thing clear is that there will be more chaos before the waters settle down.

Todd Schneider - Executive Chef and current source of angst for Governor McDonnell

Todd Schneider, the former executive chef at the Governor's mansion in Richmond, is being prosecuted for alleged embezzlement of (it appears) food from the executive mansion.  As part of his defense he is seeking substantial information about the McDonnell's use of goods from the Executive mansion.  The implication is one of outright theft, but nothing beyond bare allegations from the accused has surfaced.  Still, the Washington Post broke the story this morning that the FBI have been investigating McDonnell due to alleged improper ties to Jonnie Williams the CEO of Star Scientific, Inc. 

Star Scientific, Inc. appears to be a former tobacco company that now produces dietary supplements.  It also appears that much of Star Scientific's resources were spent on lawsuits defending patents in the past decade.

What could this possibly have to do with AG Cuccinelli?

Attorney General Cuccinelli has his own ties to Jonnie Williams, having received gifts from Williams.  Cuccinelli also, up until recently, owned some stock in Star Scientific.  But what does this have to do with Schneider?

Schneider claims, that in 2012, Schneider was interviewed by the FBI, Virginia State Police, and the Virginia AG's office regarding information Schneider had regarding improper connections between Jonnie Williams and the McDonnell family.

The Attorney General's office then, one year later, initiated prosecution against Schneider for embezzlement.  It is not clear that there is any direct tie between the conversations in 2012, and the evidence gathered for the embezzlement charges. 

Schneider's counsel, seeing an opportunity to defend their client, are now seeking to force the Commonwealth to turn over substantial documentation that appears embarrassing to the McDonnell family. 

AG Cuccinelli, seeing what a mess this was becoming sought to be recused from the case due to a conflict of interest that likely existed prior to indicting Schneider.

But wait, I thought the Virginia Attorney General does not handle criminal prosecutions

Okay, I have made a big deal in the past over the limited criminal enforcement powers of the AG's office.  The AG in Virginia is essentially a civil attorney's office, although it handles criminal appeals.  So, in searching for the local Commonwealth's attorney who I felt should be prosecuting Schneider, I instead found this:

"Unless specifically requested by the Governor to do so, the Attorney General shall have no authority to institute or conduct criminal prosecutions in the circuit courts of the Commonwealth . . ."  Va. Code § 2.2-511.  Wow! That looks really bad, did Gov. McDonnell insist on prosecution?!?!?!?!?!  Did AG Cuccinelli prosecute without proper authority?!?!?!?!?!

No.

The statute goes on to state "except in cases involving . . . (v) the theft of state property . . ."  Us lawyers always have exceptions.  Va. Code § 2.2-511.

So the AG has the authority.  But that does not mean he had to utilize it.  Yes, the AG's office, to handle this cleanly, should have handed the prosecution off earlier.  We are where we are, so is the AG seeking to throw the book at Schneider?  Is the AG counseling people to hide evidence?  Is the AG promising to get Schneider if that's the last thing he'll do?  Nope, quite the opposite.  The AG's office has filed it's mea culpa seeking to be relieved from the case and appointing the Democrat Commonwealth's Attorney from Prince William County (more on that later) to handle the prosecution.  This would include any plea deals or decisions to drop the charges.

So the AG's office probably should have handed this off sooner, but what does it matter?

Not content to simply seek to embarrass Governor McDonnell with some interesting discovery, Schneider's counsel are seeking everything.  They have filed an opposition to the motion to recuse, trying to keep the AG's office in the case.  I am not really sure why.

Moreover, yesterday Schneider's counsel filed a motion to dismiss on the grounds that the indictment should never have been filed by the AG's office due to the alleged conflict of interest in the AG's office.  Essentially their claim is that because AG Cuccinelli can not prosecute the matter fairly, simply by filing the case with an alleged conflict, Schneider should be let off for ALL alleged criminal charges. 

I am often asked the following question:  "Mr. Prados, do you have any case authority for that position?"  Either I'm prepared to hit that matter out of the park, or I'm about to lose a substantive point.  The major cases cited by Schneider's counsel do not stand for the proposition that if a prosecutor with a conflict of interest obtains an indictment against a Defendant, that the mere existence of the conflict of interest allows the Defendant to be free from all further prosecution.  It would be an absurd result.

In fact, in my opinion, the main Virginia case they cite makes clear that the remedy available to Schneider is to force the AG's office to recuse itself, something the AG's office is doing voluntarily, and that Schneider's counsel has objected to.

So why the remarks about the Commonwealth's attorney for Prince William County?

Paul Ebert is the decades long Commonwealth's attorney for Prince William County.  Defense counsel felt it was important to point out that Ebert himself was a poor choice for replacement counsel as Schneider's counsel alleges "Mr. Ebert and his office have engaged in a pattern of intentionally withholding exculpatory information from defendants."  If you have some extra time you can read about this history in the Justin Wolfe case here and here.

So what happens next?

The parties are before the Court May 2 for a hearing on the motion to recuse.  No matter what happens, a prominent Republican statewide official is going to be dissatisfied with the decision.  If the recusal motion is granted, McDonnell will likely risk an extensive probe into his families records.  If the recusal motion is denied, the case might be dismissed, but more importantly it puts AG Cuccinelli in an ongoing difficult position.

I believe recusal will be granted and the motion to dismiss will be denied.  Contact me directly to discuss all non-monetary wagers.

The only thing guaranteed is that this will get messier before the truth becomes clear.

And my strongly held (albeit biased) belief is that AG Cuccinelli did not do anything wrong.

Virginia Can Engage in Mid-cycle Redistricting

Monday's redrawing of Virginia Senate Districts was likely Constitutional.

On Monday, Virginia Senate Republicans redrew Virginia's state senate districts utilizing their bare majority due to the absence of Senator Henry Marsh who was a couple hours up the road attending inauguration activities.

I have seen repeated calls for the plan to be struck down as unconstitutional under the Virginia Constitution.  Up until a few days ago, I agreed that mid-cycle redistricting was likely unconstitutional.

I repeatedly heard of a redistricting case from early 2012 in Richmond that prohibited mid-cycle redistricting, but no one seemed to have read the case.

I looked into some arguments, and had changed my mind.

Then I obtained a copy of the opinion.

In part:

The Constitution of Virginia dictates that “[t]he authority of the General Assembly shall extend to all subjects of legislation not herein forbidden or restricted; and a specific grant of authority in this Constitution upon a subject shall not work a restriction of its authority upon the same or any other subject.”  VA. CONST. art. IV, § 14 . . . The Court is unable construe Article II, Section 6, [regarding apportionment] as cabining the General Assembly’s authority to enact decennial reapportionment legislation to 2011 and foreclosing the enactment of such legislation in 2012.  Moreover, the 2004 amendments to this provision, specifically the addition of the word, “decennial,” and the replacement of the date in a section containing two-hundred-fifty-one words, do not support a finding that these revisions divested the General Assembly of its authority to enact decennial reapportionment legislation in 2012 after it failed to do so in 2011."  Slip Op pp. 7-8.

Reading the entire opinion is necessary if you want to understand the breadth and detail of the ruling.  The Judge did leave a loophole for later adjudication, and this legislation may beget the test case for that loophole.

Please note that this opinion is not binding outside of the parties in that case.  Nonetheless, the reasoning is sound, and I do not feel I could say it better myself.

The lawsuit to strike down the bill will likely fail, but the press generated will be damaging.  Republicans concerned about the effects on our statewide ticket this November need to urge the House to reject the legislation and the Governor to veto it.  Pass the bill in the light of day, and we will talk. 

As previously laid out the current senate districts from the Democrats are a travesty.

Cuccinelli not responsible for investigating vote suppression, yet (headlines failing to match the story)

A Republican employee of a vendor was caught throwing away voter registrations, and the media lazily and wrongfully blames the Attorney General of Virginia, Ken Cuccinelli for failing to investigate.

A twenty-three year old overzealous dweeb does something truly heinous

On October 18, 2012, Colin Small a 23 year old from Pennsylvania was arrested for throwing away 8 voter registration forms in a dumpster in Rockingham County.  It is unknown the reason for throwing away the forms, but the following theories have been suggested:

            1. It is part of a broad conspiracy to defraud voters.

            2. Colin failed to submit the forms by the deadline, and panicked.

Regardless, everyone seems to agree that Colin worked for a company called Pinpoint that was doing contracting work for the Republican Party of Virginia.

Soliciting voter registration applications and not submitting them, thereby resulting in disenfranchisement of voters, is truly heinous.

Don McEachin shows (once again) how little he knows about the law and Virginia government

In the wake of this mess, Virginia's former Democratic candidate for Attorney General stepped up demanding that Attorney General Cuccinelli investigate the actions of Colin Small.  State Senator McEachin should know that AG Cuccinelli does not have the power to initiate an investigation. 

McEachin either does not understand or does not care about the law here, and the media has taken off with the story.

What criminal investigative powers does the Attorney General have?

AG Cuccinelli has limited criminal investigative powers as enumerated in the Virginia Constitution and statutes.

Article V § 15 of the Virginia Constitution governs the Attorney General and says nothing about investigative powers of any kind.

Under Va. Code § 2.2-511 the Virginia Attorney General has the power to initiate criminal investigations in limited circumstances, specifically:

"A. Unless specifically requested by the Governor to do so, the Attorney General shall have no authority to institute or conduct criminal prosecutions in the circuit courts of the Commonwealth except in cases involving (i) violations of the Alcoholic Beverage Control Act (§ 4.1-100 et seq.), (ii) violation of laws relating to elections and the electoral process as provided in § 24.2-104 . . ."

AG Cuccinelli can investigate electoral crimes as provided in Va. Code § 24.2-104, which states in relevant part:

"When the State Board is of the opinion that the public interest will be served, it may request the Attorney General, or other attorney designated by the Governor for the purpose, to assist the attorney for the Commonwealth of any jurisdiction in which election laws have been violated."

The "State Board" in this instance is the State Board of Elections ["SBE"].

Additionally under Va. Code § 24.2-104:

"The attorney for the Commonwealth or a member of the electoral board of any county or city may make a request, in writing, that the Attorney General appoint a committee to make an immediate investigation of the election practices in that city or county . . ."

In no manner can AG Cuccinelli initiate an investigation himself.  The Governor can authorize the investigation under Va. Code § 2.2-511 and the SBE, local Commonwealth's Attorney (Constitutionally elected prosecutor), or local electoral board member can initiate the investigation under Va. Code § 24.2-104.

The SBE has chosen not to investigate.

The left gets this (mostly) wrong

In light of McEachin's statements, the left has mercilessly pushed this story as a failing of AG Cuccinelli, but only in the headlines of articles.  When reading into the text of the articles, the accusation against AG Cuccinelli has absolutely no substance.

Headlines are as follows:

Attorney General Refuses To Investigate Man Arrested For Dumping Voter Registration Forms

Virginia AG won’t investigate GOP worker who dumped voter registration forms

Will Votergate Come Back to Haunt Cuccinelli?

Virginia Refuses To Investigate The Dumping Of Voter Registrations, Charged To A Republican Operative

Attorney general won’t investigate worker arrested for dumping voter registrations

AG Cuccinelli seeks responsibility and McEachin doubles down on stupidity

In response to the demands being placed on AG Cuccinelli, he responded to McEachin by requesting that the Attorney General's office be given additional authority to initiate investigations of election law violations without waiting for a request from the SBE. 

According to the Washington Post McEachin responded as follows:

"McEachin (D-Richmond) said he has seen the letter [from Cuccinelli] and suggested that political motivations could be the reason Cuccinelli is not pursuing the issue."

I am beginning to hope McEachin runs statewide again.

Power over Virginia property rights can be returned to the citizens in 2012

Virginia has a rare and important statewide matter on the ballot for November.  In addition to the Presidential election, Virginia has a statewide ballot measure where voters will get to decide if private property continues to have meaning or if politically connected developers can seize your property when it is deemed to benefit the public coffers.

An opportunity to permanently curtail the power of both the state and local government in Virginia is upon us.

History

In 2005 the Supreme Court eviscerated the right to keep one's own property when faced with private developers seeking a larger commercial development in the decision of Kelo v. City of New London, 545 U.S. 469 (2005).  Lower middle class residents sought to prevent the City of New London Connecticut from taking their property via eminent domain as the owners argued the property was not being taken for "public use" as required by the 5th Amendment.

Our antagonist in this story, Pfizer, Inc. wanted to build a large scale commercial development, and seizing the property of private homeowners was necessary to achieve Pfizer's goal.  The City of New London used the power of eminent domain, claiming that the improvement to the property would be a "public use."  This public use was couched in terms of increased tax revenue and a wealthier citizenry.

The Supreme Court essentially stated there are no bounds to "public use" as anything that financially benefits a government could now be considered public use.

The uproar among private citizens believing in keeping their small portion of the American dream was heard throughout state legislatures nationwide as laws were passed to placate their worries.  Virginia moved quickly and successfully to pass laws restricting eminent domain to actual public uses at the local level. 

The Dillon Rule

Virginia is a Dillon rule state.  In short the Dillon rule indicates that a local government only has those powers granted to it by the statewide government.  If the Virginia General Assembly decides to grant or revoke a power to a locality, the locality must abide by that grant or revocation.

As localities are governed by the Dillon rule, the General Assembly curtailed the power of localities to use eminent domain to take private property for purposes of bolstering a tax base.

Private property was safe, or so it seemed.

What is actually on the ballot in November 2012?

Oddly, finding anything other than innuendo about the property rights amendment in November is exceedingly difficult.  The public should understand both the provision on the ballot, and the actual language in the amendment.

The language you will see on the ballot is as follows:

"Shall Section 11 of Article I (Bill of Rights) of the Constitution of Virginia be amended (i) to require that eminent domain only be exercised where the property taken or damaged is for public use and, except for utilities or the elimination of a public nuisance, not where the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development; (ii) to define what is included in just compensation for such taking or damaging of property; and (iii) to prohibit the taking or damaging of more private property than is necessary for the public use?"

This description is generally accurate, but omits the primary criticism of opponents of the amendment.

The actual text of the Amendment to the Virginia Constitution is as follows:

That the General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use. No private property shall be damaged or taken for public use without just compensation to the owner thereof. No more private property may be taken than necessary to achieve the stated public use. Just compensation shall be no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. The terms "lost profits" and "lost access" are to be defined by the General Assembly. A public service company, public service corporation, or railroad exercises the power of eminent domain for public use when such exercise is for the authorized provision of utility, common carrier, or railroad services. In all other cases, a taking or damaging of private property is not for public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property. The condemnor bears the burden of proving that the use is public, without a presumption that it is.

We will come back to the text in a moment.

The controversy over the Property Rights Amendment

Those in favor:  Those in favor of the Amendment appear to be general private property advocates and broadly speaking, farming interests.  They express that we need to enshrine the definition of public use in the Virginia Constitution.  Further, proponents appear to desire that compensation for any taking of private property take into consideration lost profits and lost access.  These are generally not included in the calculation of compensation.  It should be noted that the terms "lost profits" and "lost access" are to be defined by the General Assembly."

Those opposed: Those opposed were local governments through their voluntary collective associations.

Now it seems that the Virginia Association of Counties no longer opposes the Amendment.

The Virginia Municipal League appears to still oppose the Amendment largely due to the "lost profits" issue. 

Apparently the Virginia Democrat powers that be ["VADemSCC"] also oppose the property rights amendment due to the cost and complexity of compliance for local governments.  Additionally, the VADemSCC also feels the Amendment is merely duplicative. 

Why the Amendment is extremely beneficial

Private property rights are not safe, but can be much safer.

1. The Dillon rule allows for grants and revocations of powers.  Although today public use is limited for local governments, a future general assembly might slowly water down the definition of public use.  The doctrine of entrenchment prevents a current legislature form binding future legislatures.  The only solution to prevent the watering down of fundamental rights is this Constitutional Amendment.

2. The General Assembly has been laboring under NO RESTRICTIONS.  Although the General Assembly can pass a law restricting the Governor's office from exercising eminent domain at the state level, that law can be undone completely, or exceptions made on a whim by a subsequent General Assembly.  Once enshrined in the Virginia Constitution, these restrictions can not be undone on a whim or one simple exception.

3. This Amendment contains the holy grail of eminent domain opponents.  Although not discussed in any detail, compensation must be made for "damaged" property, and not just property taken in total.  This allows a landowner to be compensated for something referred to as a "regulatory taking."  This is an instance in which a regulation reduces the value of property.  This is an incredible curb to government power, and significantly bolsters the rights of private landowners of all kinds.

Those opposed neither want to acknowledge nor contest the above three benefits, as the public at large tends to support private property rights in concept. 

Virginia residents, please be sure to register and vote to protect your rights in November.

Joe Morrissey wants to tax you for choosing plastic over paper

Desired partly by environmentalists, partly by people who like taxes, partly by the nanny-statists who think the government should intrude on everything in our lives, and partly by those who think that paper is so preferred over plastic that everyone should think like them, the plastic bag tax may be coming to Virginia.

Del. Joe Morissey (D - Highland Springs) (storied past ignored for purposes of this post) is proposing a $.20 tax on all plastic bags "provided to the consumer by retailers in grocery stores, convenience stores, or drug stores."  HB 124.  In addition to the tax, retailers are incentivized to impose the tax by allowing the retailer to keep a portion of the tax, and by suffering substantial penalties for failing to charge for plastic bags.

The odd result of this is that instead of charging for plastic, most stores in Virginia would likely convert to an all paper bag system.  No tax would need to be collected, and consumers would lose their choice among their shopping bag options.  Next they will regulate the shape and thickness of paper bags to ensure optimum recyclability and minimum landfill usage. 

I am sure the citizens of the Commonwealth of Virginia appreciate the government overreach in controlling our shopping habits.

Not to worry.  This is exactly the kind of bill that dies an early death in subcommittee. 

Cuccinelli for governor bumper stickers

Folks,

I have ordered Cuccinelli for Governor bumper stickers.  His campaign staff have all but assured me such bumper stickers will not be available until the spring.

My stickers will be here within a couple of weeks.  If you desire a KTC for Gov bumper sticker feel free to email me a name and address at ppradoslaw@ NOSPAMgmail.com, without the nospam.

Once I have them in my possession I'll post a pic.  They are an oval that says "don't tread on me" "KTC" "Cuccinelli for VA Governor"

the Constitution matters folks.

Update: In retrospect they are a little nonconformist, but they suited my preference.

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.

Conclusion

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:
http://virginiavirtucon.wordpress.com/2011/05/04/where-does-ron-speakman-live/
http://www.tooconservative.com/?p=9395

Is the individual mandate penalty a tax? Analysis of the 4th Circuit briefs regarding the Anti Injunction Act

In originally proposing the individual mandate as part of the PPACA, Congress and the President took great pains to ensure that no portion of the bill be referred to (or enacted as) a tax.  Of course once threatened litigation hit the Federal Courts lawyers for the Federal government argued that the penalty for not obtaining insurance pursuant to the individual mandate is a tax.  This is because the penalty pursuant to the individual mandate is more likely to be considered Constitutional if it is a tax, than if it is a mere regulatory penalty promulgated pursuant to the commerce clause in Article I § 8 of the Constitution.

On May 23, 2011, nearly two weeks after oral argument in the two Virginia cases (Commonwealth v. Sebelius and Liberty U. v. Geithner ), the Fourth Circuit ordered additional briefing on the application of the Anti Injunction Act [AIA], and if the penalty for meeting the terms of the individual mandate constitutes a tax under the AIA.  This was a strong signal that the Fourth Circuit panel that heard oral argument not only believes the penalty is a tax, but that the parties are not allowed to come to court to challenge that tax until after the tax is assessed and collected in another couple years.

Virginia, and the Liberty U. Plaintiffs submitted substantially different briefs due to the procedural effects on each party of the AIA.  The Federal government submitted a nearly identical brief in both cases, and argued something quite surprising.

Below is an analysis of the briefs submitted on May 31, 2011, and the potential effect they will have on each case.

Virginia’s brief correctly lays out the inapplicability of the AIA

The AIA does not apply to Virginia in this type of situation.  As I laid out here on May 24, 2011, and here on May 26, 2011, The AIA, for the most part, does not apply to states.  In short, the AIA does not apply to Virginia, as there is no alternative remedy given by the AIA.  Further, the AIA generally does not apply to the states under traditional statutory construction principles.  On pages 2-4 of the brief Virginia applies a version of my analysis from May 24, 2011, and on pages 4-6 Virginia applies a version of my May 26, 2011 analysis.  Both are accurate and controlling, and the Fourth Circuit panel will likely find the AIA simply does not apply to Virginia.  Unfortunately, as I indicated on May 10, 2011 I believe Virginia is likely to lose at the Fourth Circuit due to standing.

Liberty U.’s brief impressively lays out not only a major exception to the AIA, but also how the penalty truly is not a tax

In a simple summary the brief starts, in part, with the following:

“The AIA deprives a court of jurisdiction only if the suit seeks to restrain the assessment or collection of a tax. Even then, the AIA does not apply if (1) it is clear that under no circumstances could the Government ultimately prevail, and (2) equity jurisdiction exists otherwise.”

Equity jurisdiction in this instance is injunctive relief based on a court ordered declaration that the PPACA is unconstitutional.  The first part of the test is self explanatory.  Nonetheless, I presume the Fourth Circuit panel still feels the penalty is Constitutional.   

And the Federal government capitulates?

Far and away the most surprising arguments came from the Federal government.  On page 2 of each brief they state:

“In the district courts, the government argued for dismissal of these actions under the AIA. On further reflection, and on consideration of the decisions rendered thus far in the ACA litigation, the United States has concluded that the AIA does not foreclose the exercise of jurisdiction in these cases.”

The Federal Government expressly attempts to waive the argument of the applicability of the AIA.  They go to great lengths to reemphasize that the penalty is Constitutional as it is a tax.  Later on page seven they argue:

“. . .Congress delayed the effective date of the minimum coverage provision, thus dramatically mitigating the risk of disruption to ongoing administration of the tax code that the AIA is intended to prevent. The AIA’s purpose is to prevent anyone from interfering with the federal government’s administration of the Tax Code, from forcing it by judicial fiat to treat a particular taxpayer or group of taxpayers differently than others, and from compelling it to stop or alter the ongoing business of tax enforcement. This broad challenge to the constitutionality of the minimum coverage provision, which was brought nearly four years before the minimum coverage provision is to be implemented, five years before any tax is to be paid and the IRS begins assessing and collecting those taxes, and well before the IRS has even set up the systems to administer the provision, poses no realistic threat of such disruption -- in contrast to the threat of disruption to the administration of the ACA that postponing review would raise.”

In short, they want this issue resolved well in advance to avoid disruption of the PPACA years down the road.

But isn’t this a change of heart?  In my opinion, yes.  The Federal government has changed its strategy, but not because of fear of disruption in 2015.  I believe the strategy, up until now has been to delay as long as possible, even if that means procedural dismissals (such as a dismissal based on standing or ripeness) in order for the PPACA be too far along for courts to want to disrupt implementation.  But, given the makeup of this Fourth Circuit panel, the Federal government wants a substantive (rather than procedural) victory to carry to the 6th and 11th Circuits to support their other cases.

The result

The Fourth Circuit could ignore all the briefs and rule as it deems fit.  Unfortunately, given the not so subtle signals from the Federal Government I fear we are headed towards a dismissal of Virginia’s claim based on standing, and a loss for the Liberty U. Plaintiffs on the substance of the PPACA.