From Animal Control to Zoning: 2019 Local Government Law Update

From Animal Control to Zoning: 2019 Local Government Law Update

Tyler C. Southall, From Animal Control to Zoning: 2019 Local Government Law Update, 54 U. Rich. L. Rev. 205 (2019).

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Tyler C. Southall *


The goal of this Article is to review significant recent developments in Virginia local government law. First, this Article discusses a number of Supreme Court of Virginia and Fourth Circuit Court of Appeals cases published between July 1, 2018 and July 1, 2019. These cases involve questions of the First Amendment and social media, the First Amendment and employment law, attorney-client privilege and Freedom of Information Act requests, vested rights issues in zoning ordinances, the powers of the Virginia State Corporation Commission, and public finance. Second, this Article addresses new laws from the 2019 General Assembly. It is impossible to cover every important case and every relevant statutory amendment, so this Article focuses on the most important and/or interesting new cases and new laws.

I.   New Cases [1]

A.  Free Speech, Viewpoint Discrimination, and Governmental Social Media Pages: Davison v. Randall

In a fascinating case, a panel of the Fourth Circuit Court of Appeals held that the Chair of the Loudoun County Board of Supervisors abridged the First Amendment rights of a citizen in a dispute arising out of actions taken on Facebook.[2]

1.  Facts of Davison

Prior to becoming Chair of the Loudoun County Board of Supervisors, in addition to her personal Facebook page and a political campaign Facebook page, Phyllis Randall created a Facebook page entitled: “Chair Phyllis J. Randall” (“Chair Randall Page”).[3] On Randall’s campaign page, she encouraged “ANY Loudoun citizen” to post “ANY issues, request, criticism, complement or just your thoughts.”[4] Randall used the Chair Randall Page to disseminate information about public issues, including snow removal, zika virus, floodplains, and school safety issues.[5] The Chair Randall Page allowed for other Facebook users to post comments on Randall’s posts.[6]

On February 3, 2016, following an exchange with Randall at a town hall meeting, Davison posted a comment through his Virginia SGP Page, apparently alleging corruption by the Loudoun County School Board,[7] on a post by Randall about the town hall meeting.[8] Randall responded by removing her post regarding the town hall, which also removed Davison’s comment, and Randall banned Davison’s Virginia SGP Page from further comments on the Chair Randall Page.[9] Although Randall reconsidered her action the following day and “unbanned” Davison’s Virginia SGP Page from making further comments on the Chair Randall Page, she continued to hold the position that she could ban other Facebook users from commenting on the Chair Randall Page based on their views if she so desired.[10]

2.  Procedural History of Davison

Davison brought suit under 42 U.S.C. § 1983 against (1) Randall, both personally and in her official capacity; and (2) the Loudoun County Board of Supervisors, alleging that the ban on commenting on the Chair Randall Page amounted to viewpoint discrimination.[11] He further argued that the ban violated his Fourteenth Amendment due process rights because he had no prior notice of the decision or opportunity to appeal the ban.[12]

Four days before discovery closed and about two months prior to the trial, Davison sought to amend his pleading to add (1) claims under the Constitution of Virginia to parallel the federal constitutional claims; and (2) a First Amendment claim against the Loudoun County Board of Supervisors.[13] The First Amendment claim against the Loudoun County Board of Supervisors “theorized that the County violated [Davison’s] free speech rights by choosing to use Facebook Pages as public forums, when Facebook allows private users to restrict access to their posts, including posts” on municipal Facebook pages.[14] The district court denied Davison leave to amend for the latter First Amendment claim.[15] At the summary judgment stage, the district court dismissed the Loudoun County Board of Supervisors from the suit.[16] At trial, the district court found that Davison’s First Amendment and procedural due process rights had been abridged and granted declaratory judgment that the Chair Randall Page constituted a public forum.[17] Both Randall and Davison appealed.[18]

3.  Fourth Circuit Analysis of Randall’s Appeal

Randall argued: (1) Davison did not have standing, (2) Randall did not act “under ‘color of state law’” by banning Davison’s Virginia SGP Page from the Chair Randall Page, and (3) Randall’s ban of Davison’s Virginia SGP Page did not abridge Davison’s First Amendment rights.[19]

a.  Did Davison Have Standing?

In challenging Davison’s standing, Randall argued that Davison did not suffer an “injury in fact.”[20] The court noted that a lower burden exists to establish standing in First Amendment cases.[21] The court proceeded to apply a two-part test from Kenny v. Wilson and Babbitt v. United Farm Workers Nat’l Union, which states as follows: “[T]here is a sufficiently imminent injury in fact if plaintiffs allege [1] ‘an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and [2] there exists a credible threat of prosecution thereunder.’”[22] Because (1) the Fourth Circuit found that Randall continued to post on the Chair Randall Page and (2) Randall maintained that she had the right to ban others from posting on the Chair Randall Page as if it were her personal page without consideration of First Amendment concerns, the court found that Davison had standing.[23]

b.  Did Randall Act “Under Color of State Law”?

In order for a plaintiff to successfully bring a 42 U.S.C. § 1983 claim, the defendant must have acted “under color of . . . state law.”[24] The court noted that “[t]he traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’”[25] The court continued that “no specific formula” existed to determine whether or not an official acted under color of state law,[26] and courts must determine the “totality of the circumstances.”[27] If “the official ‘use[d] the power and prestige of his state office to damage the plaintiff,’”[28] a finding that the official acted under the color of state law is “likely.”[29] Further, the court noted the Fourth Circuit had previously held that “a challenged action by a governmental official is fairly attributable to the state when ‘the sole intention’ of the official in taking the action was ‘to suppress speech critical of his conduct of official duties or fitness for public office.’”[30]

The Fourth Circuit noted with approval the district court’s holding that Randall had acted under color of state law because the Chair:

[S]wathe[d] the [Chair Randall Page] in the trappings of her office. Among other things, (1) the title of the page includes [Randall]’s title; (2) the page is categorized as that of a government official; (3) the page lists as contact information [Randall]’s official County email address and the telephone number of [Randall]’s County office; (4) the page includes the web address of [Randall]’s official County website; (5) many—perhaps most—of the posts are expressly addressed to “Loudoun,” [Randall]’s constituents; (6) [Randall] has submitted posts on behalf of the [Loudoun Board] as a whole; (7) [Randall] has asked her constituents to use the [Chair Randall Page] as a channel for “back and forth constituent conversations”; and (8) the content posted has a strong tendency toward matters related to [Randall]’s office.[31]

Based on the findings of the district court and the fact that Randall was attempting to suppress speech critical of her, the Fourth Circuit found that under the “totality of the circumstances,” Randall had acted under color of state law.[32]

c.   Did Randall Abridge Davison’s First Amendment Rights?

i.   Fourth Circuit Holds That the Chair Randall Page Constituted a Public Forum

Randall’s third contention raised the interesting question of whether a social media page, such as the Chair Randall Page, constituted a public forum, which, at that time, had previously been addressed by neither the Supreme Court of the United States nor any Federal Circuit Court of Appeals.[33] The Fourth Circuit began by noting that “[u]nder long-established First Amendment law, governmental entities are ‘strictly limited’ in their ability to regulate private speech in public fora.”[34] The court further noted that “‘[t]raditional’ public forums—‘such as streets, sidewalks, and parks’—‘have the characteristics of a public thoroughfare, a purpose that is compatible with expressive conduct, as well as a tradition and history of being used for expressive public conduct.’”[35] On the other hand, “a non-public forum is one that has not traditionally been open to the public, where opening it to expressive conduct would ‘somehow interfere with the objective use and purpose to which the property has been dedicated.’”[36]

Based on (1) Randall’s invitation for “‘ANY Loudoun citizen’ . . .  to post[] . . . ‘[about] ANY issue[ ] request, criticism, complement or just your thoughts,’”[37] (2) the premise that the Chair Randall Page was “compatib[le] with expressive activity” (like a “traditional” public forum),[38] (3) a recognition by Congress that the internet offers “a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity,”[39] and (4) an analogy between traditional public fora and social media sites made by the Supreme Court of the United States in Packingham v. North Carolina,[40] the Court identified the Chair Randall Page as a public forum.[41]

ii.  Court Rejects Randall’s Arguments That the Chair Randall Page Was Not a Public Forum

The court proceeded to reject Randall’s contentions that (1) the Chair Randall Page was on a privately owned website (Facebook) and therefore could not be a public forum, and (2) the Chair Randall Page amounted to “government speech” under Pleasant Grove v. Summum.[42]

The court first stated that it made little sense to have a bright- line rule under which a public forum existed if the property was owned by the government but did not exist if the property was privately owned and leased or controlled by a governmental entity.[43] Factually, the court underscored this by noting that the Chair Randall Page was (1) created and controlled by Randall (including the power to ban others);[44] (2) classified as “belonging to a governmental official;”[45] and (3) “clothed . . . in the trappings of her public office.”[46]

The court second addressed Randall’s argument that the Chair Randall Page was “government speech” under Pleasant Grove v. Summum.[47] In Pleasant Grove v. Summum, the Supreme Court of the United States held that a city could not be compelled to place a monument stating the Seven Aphorisms of Summum alongside other monuments including monuments for the Ten Commandments, a fire station, and September 11, among others, because “the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.”[48]The court distinguished Pleasant Grove v. Summum, stating that, unlike the park in Pleasant Grove, Chair Randall’s page contained unlimited space in which commenters could post.[49] Finally, the court noted that because Randall had participated in “viewpoint discrimination,” it did not matter whether the Chair Randall Page “constitutes a traditional public forum or [a] designated or limited public forum.”[50] The court held Randall violated Davison’s right to free speech under the First Amendment.[51]

4.  Fourth Circuit Analysis of Davison’s Appeal

Davison’s cross appeal centered on two contentions: (1) that the district court erred in dismissing the case against Randall in her official capacity, and (2) that the district court erred in refusing to allow Davison to amend his pleading to include a claim against Loudoun County that alleged Loudoun County violated the First Amendment by having pages on Facebook because Facebook allows “requesting” users to block other users, resulting in blocked users not seeing “requesting” users’ comments.[52]The Fourth Circuit dismissed Davison’s first contention, essentially stating that the Loudoun County Board of Supervisors—and not Randall—held the power to regulate Loudoun County social media pages and did so with a social media policy that governed official county social media pages.[53] The Fourth Circuit dismissed the second contention, interestingly noting that the amendment to the pleading—if allowed—would not have been futile,[54] but amending the pleading would have been prejudicial to Loudoun County as the amendment to the pleading would have been after the close of discovery.[55]

5.   Judge Keenan’s Concurrence

Judge Keenan concurred with the opinion “join[ing] the well-reasoned majority opinion in full”; however, she noted that there were two issues “that do not fit neatly into our precedent.”[56] Judge Keenan (1) “question[ed] whether any and all public officials, regardless of their roles, should be treated equally in their ability to open a public forum on social media”; and (2) stated that “the Supreme Court should consider further the reach of the First Amendment in the context of social media,” particularly noting that private ownership of social media companies “blurs the line” of who is responsible for the speech in question.[57]

B.  Employment Law: Free Speech and Political Association Rights of Deputy Sheriff: McCaffrey v. Chapman

In McCaffrey v. Chapman the Fourth Circuit applied the Elrod-Branti and Pickering-Connick tests, holding that a sheriff did not abridge the First Amendment free speech and political association rights of a deputy in not reappointing the deputy after the deputy supported an opposing candidate during an election.[58]

1.  Facts of McCaffrey v. Chapman

 McCaffrey began employment with the Loudoun County Sheriff’s Office in 2005, received a promotion to a lead detective on major crimes, and supported Sheriff Chapman’s election campaign in 2011.[59] However, in 2015, despite warnings from fellow deputy sheriffs, McCaffrey opposed Sheriff Chapman’s re-election campaign, including (1) placing a yard sign in his yard for Sheriff Chapman’s opponent; and (2) serving as a delegate at the convention that chose the Republican candidate for sheriff, and Sheriff Chapman declined to renew McCaffrey’s appointment as a deputy sheriff.[60] Furthermore, Sheriff Chapman lowered McCaffrey’s score on his performance evaluation to prevent him from receiving a bonus and interfered with McCaffrey’s attempt to secure another law enforcement position related to the Loudoun County Sheriff’s Office.[61] The district court dismissed McCaffrey’s claims that  alleged a violation of his federal and state constitutional free speech and political association rights.[62]

2.  Elrod-Branti Exception

The Fourth Circuit noted that although public employees generally enjoy First Amendment free speech and political association rights, the Elrod-Branti exception (if it applies) allows a public employee to be terminated for supporting a political opponent, and the Pickering-Connick exception (if it applies) allows for a public employee to be terminated for certain speech.[63]

The court addressed the Elrod-Branti exception first, noting that (1) “[i]n Elrod [v. Burns], a plurality of the Supreme Court established the general rule that dismissing public employees for political affiliation violates their First and Fourteenth Amendment rights by limiting their political belief and association”; and (2) the exception to this general rule is that employees who hold a policymaking position can be terminated for their political affiliation, so that the mandate of the electorate can be carried out.[64] The Fourth Circuit continued to note that a second Supreme Court of the United States case—Branti v. Finkel—clarified Elrod, holding that “the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”[65] The Fourth Circuit noted the existence of a two-step test that (1) asks “whether the position at issue relates to partisan political interests”;[66] and if the answer to the first step is yes, (2) “examine[s] the particular responsibilities of the position to determine whether it resembles . . . [an] office holder whose function is such that party affiliation is an equally appropriate requirement.”[67]

The Fourth Circuit noted that in Jenkins v. Medford it applied the Elrod-Branti exception, holding that a North Carolina sheriff could terminate a deputy for supporting the sheriff’s political opponent.[68] This reasoning was based on the function and legal status of deputies in North Carolina.[69] As for the function of deputies, they (1) “play a special role in implementing the sheriff’s policies and goals,”[70] (2) “exercise significant discretion and make decisions that create policy,”[71] (3) are relied upon to “foster public confidence in law enforcement,”[72] and (4) provide truthful reports to the sheriff.[73] Furthermore, under North Carolina law, sheriffs (1) are of special importance; (2) cannot delegate their duties to deputies, but ;can hire deputies to assist them; (3) can be held  liable for the actions of their deputies; and (4) may terminate deputies.[74] Because the Fourth Circuit found that the function and legal status of deputies in Virginia was similar to that of North Carolina deputies, the court held that the Elrod-Branti exception applied, leaving deputy sheriffs in both states subject to termination for political disloyalty.[75] The court did note that jailers were less important to carrying out the sheriff’s mandates than a deputy sheriff, and therefore, the Elrod-Branti exception does not apply to jailers.[76]

3.  Pickering-Connick Exception

Because the Fourth Circuit found Chapman’s speech dealt with a matter of public concern and was not made pursuant to his official duties, it proceeded to the balancing test under the Pickering-Connick exception.[77] Although, the Pickering-Connick balancing test would usually balance “the government’s interest in the efficiency of the public service it performs . . . weighed against the community’s interest in hearing the employee[’]s[ ] informed opinions on important public issues,”[78] the court noted that “[o]nce we have found that the Elrod-Branti policymaker exception applies, the Pickering balance generally tips in favor of the government because of its overriding interest in ensuring an elected official’s ability to implement his policies through his subordinates.”[79] Thus, the Fourth Circuit affirmed the dismissal of Chapman’s suit.[80]

4.  Judge King’s Dissent

In a wide-ranging dissent, Judge King expressed concern that the Elrod-Branti exception was being construed too broadly, arguing that Jenkins v. Medford should not be extended to Virginia because North Carolina law governing sheriffs had significant differences from Virginia law.[81]  He also noted that Virginia law gave special protection to political activities of deputy sheriffs, including: “‘displaying a political picture, sign, sticker, badge, or button’; ‘participating in the activities of . . . a political [sic] candidate or campaign’; [and] ‘attending or participating in a political convention.’”[82]

C.  Freedom of Information Act Requests, Attorney-Client    Privilege, and Attorney Work-Product: Bergano v. City of Virginia Beach

In Bergano v. City of Virginia Beach, the Supreme Court of Virginia addressed the breadth of the attorney-client privilege and attorney work-product exemptions to the Virginia Freedom of Information Act (“FOIA”), ultimately holding that the City of Virginia Beach had applied the exemptions too broadly.[83]

1.  Facts and Procedural History of Bergano

Dr. Bergano, who was involved in litigation with the City of Virginia Beach, made a FOIA request for “all legal fees and expert invoices relating to all of the [City’s] expenses related to the litigation” between Dr. Bergano and the City.[84] The City provided approximately seventy-nine pages of records in response to the request, but the City—citing Virginia Code sections 2.2-3705.1(2) and (3)—redacted all information except for the date the work was performed, the attorney’s name, time billed, and the hourly rate.[85] Dr. Bergano sought a writ of mandamus to compel the City to provide the requested records, but following an in camera review of the records, the Virginia Beach City Circuit Court held that the redactions were proper under FOIA.[86] Dr. Bergano appealed to the Supreme Court of Virginia.[87]

2.  Supreme Court of Virginia Holding and Analysis in Bergano

The Supreme Court of Virginia addressed the attorney-client privilege, noting that “[a]s a general rule, confidential communications between an attorney and his or her client made in the course of that relationship . . . are privileged from disclosure”[88] and that “[t]he objective of the attorney-client privilege is to encourage clients to communicate with attorneys freely, . . . thereby enabling attorneys to provide informed and thorough legal advice.”[89] As for attorney work-product, the court noted that “Rule 4:1(b)(3) [of the Supreme Court of Virginia] generally shields from disclosure all otherwise discoverable documents and tangible things prepared in anticipation of litigation or for trial absent a showing of substantial need and the absence of access to other equivalent sources of information without undue hardship.”[90]

Noting that it had conducted a review under seal of the redacted materials, the Supreme Court of Virginia held that some of the redacted materials deserved protection under neither the attorney-client privilege nor the attorney work-product exceptions.[91] In particular, the court singled out entries labelled “[t]rial preparation and document review” and “[a]ttend trial (Day One),” noting that revealing such information “would not in any way reveal confidential client communications, analytical work product, motives for litigation, or compromise litigation strategy.”[92] As such, the Supreme Court of Virginia reversed the circuit court decision in favor of the City and remanded the case to the circuit court (1) for an in camera review to determine which redactions were permissible; and (2) whether the City would be liable for Bergano’s legal fees.[93]

D.  Zoning Law: Two Vested Rights Cases

Two opinions of the Supreme Court of Virginia in zoning cases dealt with vested rights under Virginia Code section 15.2-2307. Prince William Board of County Supervisors v. Archie concerned the rights of a current property owner to continue a vested use when a prior property owner had intended for such use to end.[94] In Fairfax County Board of Supervisors v. Cohn, the supreme court held that the protections afforded by Virginia Code section 15.2-2307(D)(ii) apply only to structures and not to uses.[95]

1.  Intent Versus Actual Use: Prince William Board of Supervisors v. Archie

a.  Facts of Archie

In 2015, Henry Archie, Jr. asked Prince William County to confirm that he had a lawful nonconforming use of an automobile junkyard on three parcels of land in Prince William County.[96] The zoning administrator granted his request on the back parcel and the front parcel, but denied Archie’s request on the middle parcel, even though Prince William County had certified the parcel as part of a “nonconforming [sic] auto[mobile] graveyard” in 1982.[97] In support of her decision, the zoning administrator noted the existence of a 1991 decree of the Prince William County Circuit Court wherein only two of the parcels were found to have a lawful nonconforming use.[98] The zoning administrator argued that the same 1991 decree found that no cars existed on the third parcel, and, therefore, the zoning administrator forbade further use of the third parcel as an automobile junkyard.[99]

Archie appealed the decision of the zoning administrator to the Prince William County Board of Zoning Appeals.[100] During the Board of Zoning Appeals hearing, testimony established that Archie’s family sold the middle parcel in 1987 before reacquiring it in 1992, after which Archie acquired the middle parcel in 1995.[101] In 1990, the Prince William Circuit Court ordered Archie to clear the middle parcel of cars.[102] However, Archie testified that he had left over 100 cars on the middle parcel.[103] Six other witnesses testified that the middle parcel was never actually cleared of cars during the 1987 to 1995 time period, and three other citizens stated at the public hearing that “they had ‘never seen a part of that land cleared of any vehicles.’”[104] The Board of Zoning Appeals upheld the decision of the zoning administrator by a vote of three-to-two.[105]

Archie appealed the decision of the Board of Zoning Appeals to the Prince William Circuit Court.[106] Although the circuit court acknowledged the intervening owner’s “intent to discontinue the nonconforming use” of the third parcel, the circuit court found that the middle parcel had been used as an automobile junkyard since prior to the enactment of the Prince William County Zoning Ordinance in 1958 and such use was never discontinued.[107] Thus, the circuit court held that the automobile junkyard was a legal nonconforming use and allowed that use to continue.[108]

b.  Procedural History of Archie

The Supreme Court of Virginia granted two assignments of error, both relating to the period of time between 1987 and 1992 when Archie did not own the middle parcel, did not have permission to use the middle parcel as an automobile junkyard, and during which time period the then-owner did not continue the storage of automobiles in the junkyard.[109] The supreme court began its analysis by noting that it would defer to the factual findings of the circuit court in an appeal from a board of zoning appeals decision, but would perform a de novo review of the application of the law to the facts.[110] The supreme court stated that “[i]t is undisputed that a lawful nonconforming use was established in the first instance”[111] and narrowed the issue down to “whether the lawful nonconforming use of [the middle parcel] as an automobile graveyard, confirmed by the County in 1982, was somehow terminated.”[112]

c.  Supreme Court of Virginia Analysis and Holding in Archie

The supreme court turned to the Prince William Zoning Ordinance, noting that it permitted vested rights to be terminated if they were either (1) discontinued for at least two years; or (2) intentionally abandoned.[113] Because Prince William had not appealed the issue of whether the automobile junkyard was intentionally abandoned, the supreme court only addressed the issue of whether the use had been discontinued for at least two years.[114] The supreme court then noted that the term “discontinue” was not defined in the Prince William County Code and turned to the dictionary definition to determine that “[d]iscontinue means ‘to break off: give up: terminate: end the operations or existence of: cease to use.’”[115] Section 32-601.11 of the County Code stated that “[t]he nonconforming status of any nonconforming use . . . shall adhere solely to the use of the land, and not to the owner, tenant, or other holder of any legal title to the property or the right to make use thereof.”[116] Thus, the fact that Archie was not the legal owner of the property between 1987 and 1992 was irrelevant.[117] After noting that “[t]here is no intent element in the relevant nonconforming use termination ordinance,” the supreme court went on to hold that the middle lot was a legal nonconforming use and ruled in favor of Archie.[118]

2.   Uses Versus Structures: Fairfax County Board of Supervisors v. Cohn[119]

a.   Facts of Cohn

The Cohn family owned a residentially zoned lot in Fairfax County, Virginia.[120] The lot contained three structures: (1) a main house constructed in 1962; (2) a detached garage constructed in 1963; and (3) a detached garden house constructed in 1972.[121] Each of the structures contained kitchens, which effectively turned each structure into its own dwelling under the Fairfax County Zoning Code.[122] The Cohns received a notice of violation from the Fairfax County Zoning Administrator requesting that they maintain only one dwelling on their lot and convert the garage and the garden house back to their original uses, including removing the kitchens, as well as plumbing, electrical wiring, and gas piping.[123]

b.  Procedural History of Cohn

The Cohns brought an appeal before the Fairfax County Board of Zoning Appeals.[124] The Cohns argued that the garage and garden house were “grandfathered” because they were constructed with a septic connection to the main house and a septic tank, respectively, and prior to purchasing the house in 1998, they had been told that the garage and the garden house “had been rented to other people long before.”[125] The zoning administrator argued to the Board of Zoning Appeals that the original building permits for the garage and garden house had not included bathrooms or kitchens.[126] In 2008, Fairfax County changed its tax records to reflect the bathrooms and kitchens in the garage and garden house, but the taxes owed did not change as a result.[127]Finally, the Cohns raised the issue of Virginia Code section 15.2-2307(D), arguing that they had a vested right in their use of the garage and garden house as dwellings because they paid taxes on the structures for fifteen years.[128] The Board of Zoning Appeals ruled against the Cohns.[129] The Cohns appealed to the Fairfax County Circuit Court, which ruled in the Cohns’ favor on the basis of Virginia Code section 15.2-2307(D)(ii), and Fairfax County appealed to the Supreme Court of Virginia.[130]

c.  Supreme Court of Virginia Analysis and Holding in Cohn

The Supreme Court of Virginia began its analysis of the case by noting that Virginia courts should interpret statutes pursuant to their plain meaning so that the legislative intent can be accomplished,[131] and statutes should be read (1) in such a way that no language is rendered superfluous; and (2) in pari materia, or in harmony with each other.[132] In this light, the court turned to analyzing Virginia Code section 15.2-2307, noting that its purpose was to allow property owners uses of their land to be protected by vested rights if their land was the beneficiary of a significant affirmative governmental act.[133] The court noted that section 15.2-2307 differentiated between “the rights to the use of land, structures, and buildings, and the right to maintain buildings and structures on land,”[134] noting that section 15.2-2307(C) protected “land, buildings, and structures, and the uses thereof.”[135]The court compared this broad protection offered to uses under section 15.2-2307(C) with the protection claimed by the Cohns under section 15.2-2307(D)(ii), which states: “if . . . (ii) the owner . . . has paid taxes . . . for such building or structure for . . . more than the previous [fifteen] years, a zoning ordinance shall not provide that such building or structure is illegal and subject to removal . . . .”[136] Because section 15.2-2307(D)(ii) only protected buildings or structures and not the uses thereof, and in light of the doctrine of in pari materia, the supreme court ruled in favor of Fairfax County.[137]

E.  Powers of Virginia State Corporation Commission to Levy Waste and Wastewater Infrastructure Surcharges: City of Alexandria v. State Corporation Commission

City of Alexandria v. State Corporation Commission addressed the powers of the Virginia State Corporation Commission (the “SCC”) to approve waste and wastewater infrastructure surcharges and emphasized both the broad powers of the SCC and the deference to which its factual findings are given.[138]

1.  Facts and Procedural History of City of Alexandria

a.  Virginia-American Water Company’s Surcharge Application

In 2015, Virginia-American Water Company (the “Company”), concerned about aging water and wastewater infrastructure, sought a base rate increase, as well as a water and wastewater infrastructure surcharge (the “Surcharge”) before the SCC.[139]The Surcharge sought by the Company was in addition to a requested base rate increase and allowed the Company to embark on a multi-year infrastructure replacement campaign with money raised from the Surcharge instead of having to fund infrastructure replacements from ordinary base rate increases, in which case (1) improvements needed to have an expected completion date in the same year as the increase,[140] and (2) there may have been more volatility in rates.[141] In support of its application, the Company offered evidence that the average time of replacement for the Company’s mains was 430 years—nearly three and one-half centuries longer than the expected average life of those assets.[142] The Cities of Alexandria and Hopewell (the “Cities”) objected to the Surcharge before the SCC, arguing among other things that (1) depreciation expense could be used to replace infrastructure without impacting the Company’s return on equity, and (2) there needed to be a “true up” so that the Company did not earn more than its allowed-for return on equity.[143]

b.  The SCC Decision

The SCC approved the Surcharge as a pilot project with conditions, notably: (1) the Surcharge would be approved for three years; (2) there would be an “earnings test” and if more money was earned than the allowed-for return on equity, then the Company would have to refund ratepayers the excess with interest; (3) the Surcharge would be limited to the Alexandria District; and (4) there would be a cap on the Surcharge equal to 7.5% of the revenues of the Company in the Alexandria District, which would result in an increase in the monthly bill of a residential customer of about $0.32.[144]

2.  Virginia Supreme Court Analysis and Holding in City of Alexandria

The Cities appealed the SCC’s decision to the Supreme Court of Virginia, arguing that (1) the SCC did not have statutory authority to approve the Surcharge, and (2) there was no evidence to support the SCC’s decision.[145] The court rejected both arguments.[146]

a.  The SCC Had Statutory Authority to Approve the Surcharge

The court addressed the Cities’ challenge to the SCC’s statutory authority to approve the Surcharge, first noting that under applicable statutory provisions, including Virginia Code sections 56-235 and 56-235.2, the SCC possessed broad power to approve rates “without limitation as to the type of rate mechanism set.”[147]  Although the Cities argued that the court should invalidate the SCC’s ruling because it did not consider how much profit the Company would make from the infrastructure replacement program funded by the Surcharge, the court upheld the SCC decision because the SCC’s review was “not disconnected” to the factors set forth in the statutory framework, notably in the SCC’s inclusion of a cap on the Surcharge at 7.5% of the Company’s revenue in the Alexandria District.[148] The court noted that rate mechanisms such as the Surcharge program were not unprecedented.[149] The court previously upheld an “escalator clause” tied to the price of natural gas and an “automatic adjustment clause” tied to the price at which an electric utility obtained electric power from a supplier.[150]

The Cities’ most compelling argument perhaps involved the Steps to Advance Virginia’s Energy Plan Act, which was lobbied for by natural gas companies and granted the SCC “statutory authority to approve rate-adjustment clauses in its regulation of natural gas companies.”[151] Because the “Constitution of Virginia expressly authorizes SCC-regulation of ‘railroads, telephone, gas and electric companies’ but authorizes SCC regulation of other entities only when the SCC is exercising ‘powers and duties not inconsistent with [the Virginia] Constitution as may be prescribed by law,’”[152] the Cities argued that it must follow that a water and wastewater utility must need express statutory authorization to receive a rate adjustment clause such as the Surcharge.[153] The court noted that this argument did not apply in the context of the instant case because “[w]hen a statute delegates such authority to the [SCC], [the court] presume[s] that any limitation on the [SCC]’s discretionary authority by the General Assembly will be clearly expressed in the language of the statute.”[154]

b.   Given the Deference SCC Is Afforded, the Evidence Was Sufficient to Support the SCC’s Decision

Lastly, the court addressed the Cities’ argument that there “was simply no evidence showing that the [Surcharge] program was needed to serve the public interest.”[155] The court noted that it “may not ‘overrule the [SCC’s] findings of fact unless . . . its determination is contrary to the evidence or without evidence to support it”[156] and stated that the court could not “substitute its judgment [for the SCC’s judgment] in matters within the province of the [SCC].”[157] The court found the decision of the SCC to approve the Surcharge to be “‘just and reasonable’ under [Virginia Code section] 56-235.2,” noting that there was conflicting expert testimony and that the SCC had imposed a number of conditions on the Surcharge program.[158]

F.   Public Finance, Bonds, and Appropriations: ACA Financial Guarantee Corporation v. City of Buena Vista

In a public finance case applying Virginia law, the Fourth Circuit upheld the district court’s dismissal of a lawsuit brought against the City of Buena Vista by ACA Financial Guarantee Corporation (“ACA”) and UMB Bank, N.A., which had provided bond insurance related to the refinancing of a golf course in the City of Buena Vista.[159]

1.  Facts of ACA Financial Guarantee Corporation

 The bonds, originally issued in 2003, were refinanced in 2005.[160] The refinancing deal documents included a Trust Agreement and a Lease Agreement under which the City, subject to future appropriation, was to pay the Public Recreational Facilities Authority (the “Authority”) the amount due under the bonds, which the Authority was to, in turn, pay to the bondholders.[161] The Authority and the City each entered into deeds of trust, under which the Authority pledged its interest in the golf course and the City pledged its interest in city hall and the police station.[162]

After the City failed to make appropriations for the bonds in 2010 and 2011, it entered into a forbearance agreement, under which ACA was to make bond payments if the City failed to appropriate funds.[163] In January 2015, the City refused to appropriate funds, resulting in plaintiffs bringing suit against the City and the Authority for breach of contract claims, including: (1) breach of a third-party beneficiary agreement;[164] (2) breach of the trust agreement,[165] deeds of trust,[166] and forbearance agreement;[167] and (3) making misrepresentations in connection with the forbearance agreement.[168] The plaintiffs also asserted equitable claims, including: (1) “breach of the implied covenant of good faith and fair dealing”;[169] (2) restitution, unjust enrichment, and quantum meruit;[170] and (3) constructive fraudulent inducement.[171]

2.  Fourth Circuit Holding and Analysis in ACA Financial Guarantee Corporation

The Fourth Circuit panel first addressed breach of the third-party beneficiary agreement, under which the plaintiffs argued that (1) they were third party beneficiaries to the lease agreement between the City and the Authority; and (2) that the City was legally required to pay rent.[172] The court dismissed this claim because the lease agreement clearly made the City’s payments subject to future appropriations.[173] Furthermore, the court noted that in Dykes v. Northern Virginia Transportation District Commissionthe Supreme Court of Virginia held that “‘subject to appropriation’ financing does not create constitutional cognizable debt ‘because it does not impose any enforceable duty or liability on the County.’”[174] Because the trust agreement, deeds of trust, and forbearance agreement each contained clear subject to future appropriations language in them, the Fourth Circuit ruled that each agreement was, in fact, subject to future appropriations, and the City’s failure to appropriate funds was not a breach of contract.[175] The last breach of contract claim was an allegation that the City made misrepresentations in connection with the forbearance agreement; however, because no actual misrepresentations were specified, that claim was dismissed.[176]

Next the court turned to the equitable claims, beginning with the claim for “breach of the implied covenant of good faith and fair dealing.”[177]  The court showed little patience for this claim, noting that (1) “the ‘subject to appropriation’ language is not ambiguous,”[178] and (2) the plaintiffs “are to be bound by the plain and unambiguous terms of their contracts.”[179] Next, the court dismissed the claim for restitution, unjust enrichment, and quantum meruit, concluding that the parties entered into enforceable agreements, and those agreements expressly subjected the City’s obligations to future appropriations.[180] The court last dismissed the claim for constructive fraudulent inducement, noting again that the claim failed to identify specific misrepresentations.[181] Thus, the Fourth Circuit panel upheld the dismissal of the suit against the City and the Authority.[182]

II.   New Legislation [183]

A.  Planning and Community Development

Zoning, which is almost always a hot topic in the General Assembly, was joined this year with new laws aimed at extending broadband coverage to rural areas of Virginia. Developments in both areas are worthy of discussion.

1.   Zoning

a.   Senate Bill 1373 and House Bill 2342: Conditional Rezoning Proffers

In 2016, the General Assembly passed Senate Bill 549, a piece of legislation the full description and analysis of which is beyond the scope of this Article, creating Virginia Code section 15.2-2303.4, which imposed significant statutory constraints affecting how localities handled proffers, including allowing courts to award attorneys’ fees to a developer who successfully brought suit under section 15.2-2303.4.[184] Localities found this bill to be so concerning that many localities significantly curtailed discussions with developers about rezoning cases and proffers for fear that it could open the localities to legal liability under section 15.2-2303.4.[185]

After 2016, two of the parts of Virginia Code section 15.2-2303.4 that concerned localities were the following. First, section 15.2-2303.4(B) prohibited localities from “request[ing] or accept[ing] any unreasonable proffer,”[186] so localities were concerned that a developer could offer an unreasonable proffer and later legally challenge the proffer that the developer offered. Under Senate Bill 1373 and House Bill 2342 localities may not require an unreasonable proffer, but section 15.2-2303.4(B) no longer prohibits a locality from accepting an unreasonable proffer.[187] Furthermore, a new section, 2.2-2303.4(D), allows an applicant or owner to submit reasonable and appropriate proffers “as conclusively evidenced by the signed proffers,” indicating that the developer would have to believe a proffer was reasonable and appropriate to offer it.[188]

Second, section 15.2-2303.4(D)(2), as created by S.B. 549 in 2016, stated:

In any action in which a locality has denied a rezoning or an amendment to an existing proffer and the aggrieved applicant proves by a preponderance of the evidence that it refused or failed to submit an unreasonable proffer or proffer condition amendment that it has proven was suggested, requested, or required by the locality, the court shall presume, absent clear and convincing evidence to the contrary, that such refusal or failure was the controlling basis for the denial.[189]

Many localities understandably read this provision to mean that the mere suggestion of an unreasonable proffer by an employee or single board member of the locality would be viewed as being suggested by the locality, and significantly curtailed conversations with developers about ongoing cases. Senate Bill 1373 and House Bill 2342 removed the words suggested and required from section 15.2-2303.4(D) and changed references to “locality” in section 15.2-2303.4 to “local governing body,” implying that only the board of supervisors, city council, or town council—and not employees of the locality—could require the proffer, triggering a section 15.2-2303.4 violation.[190]  Together these changes might slightly ease localities’ apprehension about engaging in discussions with developers about proffers.[191] Senate Bill 1373 and House Bill 2342 further state that nothing in section 15.2-2303.4 “shall be deemed or interpreted to prohibit or to require communications between an applicant or owner and the locality.”[192]

Finally, the enactment clauses of Senate Bill 1373 and House Bill 2342 allow a developer who filed an application before either the July 1, 2016 changes or the July 1, 2019 changes to proceed under the law as it existed at the time of their application.[193] It will be interesting to see how developers choose to proceed and how localities react to the more relaxed version of section 15.2-2303.4.

b.   Senate Bill 1091 and House Bill 2621: Solar Farm Decommissioning Requirements

In recent years, rural localities across Virginia have seen significant interest in permitting solar farms. Virginians have raised concerns that the countryside not be littered with decaying solar farms after they reach the end of their economic life.[194] Senate Bill 1091 and House Bill 2621 address that concern and require localities as part of the process of approving a solar farm to impose requirements concerning the decommissioning of the solar farm, which would “include[] the reasonable restoration of the real property upon which such solar [farm is] located, including (i) soil stabilization and (ii) revegetation.”[195] The solar farm owner, lessee, or operator is also responsible to post a bond or other financial surety in the event that the owner, lessee, or operator does not properly decommission the solar farm.[196]

2.  Broadband

An estimated 660,000 Virginians have no broadband access.[197] This lack of internet access results in dramatically negative impacts on economic growth and education in many rural areas of Virginia.[198] Although there is much more work to be done, the following two bills aim to increase broadband availability in Virginia.

a.   House Bill 2141: Local Service Districts for Broadband and Communications

House Bill 2141 authorizes local governments that create a service district “[t]o contract with a nongovernmental broadband service provider who will construct, maintain, and own communications facilities and equipment required to facilitate delivery of . . . broadband services to unserved areas of the service district.”[199] Such contracts are only permitted in areas of service districts where “less than [ten] percent of residential and commercial units” can receive broadband service, which is presently defined as ten megabits per second download and one megabit per second upload.[200]

b.   House Bill 2691: Electric Utilities and Areas Unserved with Broadband

House Bill 2691 allows certain large investor owned electric utility companies in Virginia (presently Dominion Energy and Appalachian Power) to apply to the State Corporation Commission for pilot programs that would expend up to $60 million a year in bringing broadband internet to areas that are presently unserved.[201] Any net losses attributable to such a pilot program can be recovered from customers as part of an electric grid transformation project.[202] It will be interesting to see how these projects proceed, how successful they are, and whether or not similar programs might be allowed in the future on a larger scale for investor owned utilities and electrical cooperatives.

B.  Education and School Safety

A number of bills to emerge from the 2019 General Assembly addressed various topics related to school safety. Remarkably, the Virginia Association of Counties gathered fourteen changes under the heading of “school safety” in its 2019 Legislative Summary.[203] Although this Article will only address two representative bills, each local school board in Virginia should review all fourteen bills.

1.   Senate Bill 1220 and House Bill 1737: Emergency Response Plans

Virginia Code section 22.1-279.8 requires school boards to “annually review the written school crisis, emergency management, and medical emergency response plans.”[204] Senate Bill 1220 and House Bill 1737 now require the “chief law-enforcement officer, the fire chief, the chief of the emergency medical services agency, the executive director of the relevant regional emergency medical services council, and the emergency management official of the locality, or their designees” to also review the plans.[205]

2.   Senate Bill 1130 and House Bill 2609: Required Training for School Resource Officers

These identical bills require school resource officers to receive training in working with students in a school environment and require at least one administrator at each public school to have received school safety training.[206]

C.   Animal Control

The 2019 General Assembly session resulted in three notable changes to animal control law.

1.   House Bill 1874 and Senate Bill 1604: Felony Animal Cruelty Cases

Following two heart-wrenching cases of animal abuse, one involving a dog named Sugar surviving an alleged beating with a machete in 2016, and the second involving the alleged burning of a dog named Tommie by being covered in fuel and lit on fire in February 2019, the General Assembly approved “Tommie’s Law.”[207] “Tommie’s Law” makes certain causing of “serious bodily injury” to dogs and cats that are companion animals a class six felony.[208] Previously, certain cruelty constituted a class one misdemeanor, unless the animal died as a result of the cruelty, in which case the cruelty constituted a class six felony.[209]“Serious bodily injury” is defined as “bodily injury that involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty.”[210]

2.   House Bill 2745: Courts Given More Discretion with Dangerous Dog Cases

House Bill 2745 amended Virginia Code section 3.2-6540 to allow a court to defer a dangerous dog proceeding and impose conditions upon the owner of the dog.[211] If the owner follows the conditions, the dangerous dog proceeding can be dismissed.[212] If the owner fails to follow the conditions, the court may find the dog to be a dangerous dog.[213] This amendment gives courts greater latitude to apply judgment and sympathy to dangerous dog cases rather than reaching a mechanical conclusion, as a dangerous dog finding can practically be a death sentence for a dog.[214]

3.   Senate Bill 1367: Changes Imposed on Local Running at Large Ordinances

Senate Bill 1367 amended Virginia Code section 3.2-6538, which enables local ordinances to prohibit dogs from running at large, to create exemptions for hunting dogs.[215] Section 3.2-6538 now states that a local ordinance may “prohibit the running at large of all or any category of dogs, except dogs used for hunting.”[216] Furthermore, the act of “self-hunting” (where a dog hunts on its own off of its owner’s property) is no longer enough to deem a dog to be running at large.[217] Senate Bill 1367 further (1) imposed a civil penalty with a cap of $100 per dog found running at large in a pack;[218] and (2) directed that all money paid as a penalty for violating section 3.2-6538 be used for animal-related purposes by the locality.[219]

Interestingly, depending on how it is interpreted by courts, Senate Bill 1367 may have inadvertently opened up a significant loophole whereby owners of dogs that would otherwise be found running at large could claim self-hunting at the time it was apprehended or that their dog was used for hunting.

D.  State and Local Conflict of Interests Act and Freedom of Information Act

    The 2019 General Assembly amended two pillars of local government law:  the State and Local Conflict of Interests Act and FOIA.  These changes (1) enhance training requirements under both laws, (2) expand penalties for violating FOIA, and (3) give additional weight to advisory opinions of the Freedom of Information Advisory Council.

1.   Senate Bill 1430: Required State and Local Government Conflict of Interests Act Training

Local elected officials are now required to complete a training session on the State and Local Government Conflict of Interests Act within two months of taking office and at least once every two years thereafter.[220] Local elected officials who are in office as of July 1, 2019, are required to take such training by December 31, 2019.[221] The training is to be provided by the Virginia Conflict of Interest and Ethics Advisory Council.[222] Interestingly, the amendment expressly states that there is no penalty for failing to take the training.[223]

2.   Senate Bill 1431: Required Virginia Freedom of Information Act Training

While Senate Bill 1430 imposed training requirements for the State and Local Government Conflict of Interests Act, Senate Bill 1431 imposes FOIA training requirements on local elected officials.[224] Senate Bill 1431 states that “[t]he Virginia Freedom of Information Advisory Council . . . or the local government attorney shall provide online training sessions for local government officials on the provisions of [FOIA].”[225] The training has a delayed effective date of July 1, 2020, and local elected officials holding office as of that date have until the end of 2020 to complete the training.[226] Otherwise, local elected officials are required to undergo training within two months of taking office and at least every two years thereafter.[227] Like Senate Bill 1430, there is no penalty for failing to take the training.[228]

3.   Senate Bill 1554: Expanded Penalties for Violations of the Virginia Freedom of Information Act

Civil penalties (1) of up to $100 per page may be levied if records are not provided in response to a FOIA request because such records were “altered or destroyed . . . with the intent to avoid the provisions of [FOIA]” and (2) of up to $1,000 may be levied against a public body that falsely certifies a closed session.[229] These penalties have been added to Virginia Code section 2.2-3714, which already imposed civil penalties for violations of FOIA of between $500 and $2000 for a first violation and $2000 to $5000 for second violation, if the violation is willful and knowing.[230]

4.   House Bill 1772: Effect of Advisory Opinions of Freedom of Information Advisory Council

House Bill 1772 allows FOIA defendants to introduce “relevant advisory opinion[s]” by the Freedom of Information Advisory Council as evidence that the defendant relied in good faith on such opinion, and, as such, there was not a willful and knowing violation.[231]

E.  Voting and Elections

Two notable new laws in the realm of voting and elections dealt with (1) election security; and (2) in a significant change for Virginia, allowing for no excuse, in-person absentee voting.

1.  House Bill 2178: Election Security

House Bill 2178 (1) requires the State Board of Elections to “promulgate regulations and standards necessary to ensure the security and integrity of the Virginia voter registration system and the supporting technologies utilized by the counties and cities to maintain and record registrant information”; and (2) requires each local electoral board “that utilizes supporting technologies to maintain and record registrant information” to “develop and annually update written plans and procedures to ensure the security and integrity of . . . supporting [electoral] technologies.”[232] Local electoral boards must adopt written security plans and procedures and file an annual report concerning its security plans and procedures with the Department of Elections.[233] Local electoral boards that fail (1) to abide by the regulations promulgated by the State Board of Elections; (2) to prepare written security plans and procedures; or (3) file the annual report with the State Board of Elections can be prohibited from using the Virginia voter registration system.[234]

2.   Senate Bill 1026 and House Bill 2790: No Excuse, In-Person Absentee Voting

At present, Virginia law only allows absentee voting for certain enumerated reasons that include, among other things, active military service and travel.[235] In a significant change, beginning with the 2020 presidential election, beginning the second Saturday before election day, all registered voters may cast absentee ballots so long as such ballots are cast at the office of the local general registrar.[236]

F.  Taxation

Two notable new tax laws this year dealt with (1) sales tax for remote sellers, and (2) the real estate tax exemption for surviving spouses of disabled veterans.

1.   House Bill 1722 and Senate Bill 1083: Sales Tax for Remote Sellers

In South Dakota v. Wayfair, the United States Supreme Court finally issued an opinion on the long running question of whether out-of-state sellers can be subjected to sales tax, holding that South Dakota could impose sales tax on out-of-state sellers that either “deliver[ed] more than $100,000 of goods or services into South Dakota or engage[d] in 200 or more separate transactions for the delivery of goods and services into the State on an annual basis.”[237] The 2019 General Assembly approved legislation modeled after South Dakota’s sales tax on out-of-state sellers, with the same 200 separate transaction and $100,000 annual thresholds.[238] This is significant for local governments because in Virginia, counties and cities receive a share of this tax amounting to at least one percent of the purchase price.[239]

2.   Senate Bill 1270 and House Bill 1655: Real Estate Tax Exemption for Surviving Spouses of Disabled Veterans

Veterans who have “[one hundred] percent service-connected, permanent, and total disability” are eligible for an exemption from local real estate taxes if they own their Virginia residence, as are their surviving spouses.[240] Senate Bill 1270 and House Bill 1655 codified a constitutional amendment that was approved by Virginia voters in 2018, which allowed a surviving spouse to continue to benefit from the tax exemption, even if the surviving spouse changes residences.[241] Prior to this change in law, surviving spouses who moved residences would have lost the tax exemption.[242]


In conclusion, this Article discussed a number of new cases and legislation that affect Virginia’s localities. Looking at the past allows us to look forward, and the author is particularly interested to see (1) how the future First Amendment jurisprudence related to social media pages and sites of government officials emerges, (2) how localities and developers react to Senate Bill 1373 and House Bill 2342, and (3) how the Commonwealth of Virginia solves the lack of broadband internet access in rural areas and what role legislation plays in that effort.

Local government is a complicated business. The reader of this Article has seen the breadth of the legal issues that impact local government. Laws change and new technologies present new legal challenges, but the goal of local government must always be to serve its citizens in an ethical, empathetic, and efficient manner. Many local governments serve their citizens with remarkably limited resources, and the author hopes that this Article serves as a useful tool for Virginia local governments to review some of the most important changes in the last year.


        [1].    The author is grateful for the Bill of Particulars, which as the Reporter of the Local Government of Attorneys of Virginia, Inc., provides case summaries of cases relevant to the practice of local government law. The author reviewed issues of the Bill of Particulars in choosing which cases to highlight in this Article. Steven G. Friedman, Ed., Bill of Particulars, vol. 44, no. 7, 9–12; vol. 45, no. 1–7.

        [2].    Davison v. Randall, 912 F.3d 666 (4th Cir. 2019).

        [3].    Id. at 672–73.

        [4].    Id. at 673.

        [5].    Id. at 673–74.

        [6].    Id. at 673.

        [7].    Id. at 675 (noting that “[a]lthough neither Davison nor Randall remember the precise content of Davison’s comment, Randall testified that it contained ‘accusations’ regarding” conflicts of interest by the school board, including that the school board had been ‘taking kickback money.’”). Id.

        [8].    Id.

        [9].    Id.

      [10].    Id. at 676, 678–79.

      [11].    Id. at 676.

      [12].    Id.

      [13].    Id.

      [14].    Id.

      [15].    Id.

      [16].    Id.

      [17].    Davison v. Loudoun Cty. Bd. of Supervisors, 267 F. Supp. 3d 702, 723–24 (E.D. Va. 2017).

      [18].    Davison, 912 F.3d at 677.

      [19].    Id.

      [20].    Id. Of the three prongs necessary to show standing, Randall challenged only the injury in fact provision. With respect to all three prongs, the court noted:

To establish Article III standing, a plaintiff must prove that: “(1) he or she suffered an ‘injury in fact’ that is concrete and particularized, and is actual or imminent; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) the injury likely will be redressed by a favorable decision.”

Id. (quoting Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 629 F.3d 387, 396 (4th Cir. 2011)).

      [21].    Id. at 678 (citing Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013)).

      [22].    Id. (quoting Kenny v. Wilson, 885 F.3d 280, 288 (4th Cir. 2018) and Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)).

      [23].    Id. at 678–79.

      [24].    Id. at 679 (quoting Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009)).

      [25].    Id. (quoting West v. Atkins, 487 U.S. 42, 49 (1988)).

      [26].    Id. (quoting Holly v. Scott, 434 F.3d 287, 292 (4th Cir. 2006)).

      [27].    Id. at 680 (quoting Holly, 434 F.3d at 292).

      [28].    Id. (alteration in original) (quoting Harris v. Harvey, 605 F.2d 330, 337 (7th Cir. 1979)).

      [29].    Id.

      [30].    Id. (quoting Rossignol v. Voorhaar, 316 F.3d 516, 524 (4th Cir. 2003)).

      [31].    Id. at 680–81 (quoting Davison v. Loudoun Cty. Bd. of Supervisors, 267 F. Supp. 3d 702, 714 (E.D. Va. 2017)).

      [32].    Id.

      [33].    Id. at 682. On July 9, 2019, the Second Circuit addressed a similar question, holding that a Twitter account belonging to the President of the United States could not block other users of Twitter. Knight First Amendment Inst. v. Trump, 928 F.3d 226, 230 (2d Cir. 2019).

      [34].    Id. at 681 (quoting Pleasant Grove v. Summum, 555 U.S. 460, 468 (2009)).

      [35].    Id. (quoting Am. Civil Liberties Union v. Mote, 423 F.3d 438, 443 (4th Cir. 2005)). The court also discussed “limited” public forums as “forums that are ‘not traditionally public, but [that] the government has purposefully opened to the public, or some segment of the public, for expressive activity.’” Id. (alteration in original) (quoting Mote, 423 F.3d at 443).

      [36].    Id. at 681–82 (quoting Mote, 423 F.3d at 443).

      [37].    Id. at 682.

      [38].    Id. (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985)).

      [39].    Id. (quoting Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)).

      [40].    Id. (citing to Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017)).  

      [41].    Id. at 682, 687–88 (noting that there was no need to address whether the Chair Randall Page constituted a traditional public forum as the court found “viewpoint discrimination,” which is not permitted in any public forum).

      [42].    See id. at 682–88.

      [43].    Id. at 685.

      [44].    Id. at 683–84.

      [45].    Id. at 683 (quotation marks omitted).

      [46].    Id.

      [47].    Id. at 686–87; see Pleasant Grove v. Summum, 555 U.S. 460, 464 (2009).

      [48].    Pleasant Grove, 555 U.S. at 464–65.

      [49].    Davison, 912 F.3d at 686–87.

      [50].    Id. at 687.

      [51].    See id. at 687–88.

      [52].    Id. at 688, 691.

      [53].    Id. at 689–90. In fact, the court notes that “Davison identifies no evidence that the Loudoun Board knew of the [Chair Randall Page] . . . . On the contrary, . . . Randall made a one-off, ‘unilateral decision to ban [Davison] in the heat of the moment, and reconsidered soon thereafter.’” Id. at 690 (quoting Davison v. Loudoun Cty. Bd. of Supervisors, 267 F. Supp. 3d 702, 715 (E.D. Va. July 25, 2017)).

      [54].    See id. at 690–91. Interestingly, the Fourth Circuit could “conceive of a colorable legal argument that a governmental actor’s decision to select a private social media website for use as a public forum—and therefore select that website’s suite of rules and regulations—could violate the First Amendment, if the private website included certain types of exclusionary rules.” Id. at 691. The example that the court gave of such a situation envisioned that only members of one political party would be able to view the social media site. Id.

      [55].    Id. at 690.

      [56].    Id. at 692 (Kennan, J., concurring).

      [57].    Id. at 692–93.

      [58].    921 F.3d 159, 170 (4th Cir. 2019).

      [59].    Id.

      [60].    Id. at 162–63. Interestingly, the court noted that McCaffrey had not worn (1) campaign apparel, (2) spoken publicly about the campaign, or (3) used his position to campaign against the Sheriff. Id. at 162.

      [61].    Id. at 163.

      [62].    Id.

      [63].    Id. at 164.

      [64].    Id. at 164–65 (discussing Elrod v. Burns, 427 U.S. 347, 354, 356 (1976)).

      [65].    Id. at 165 (citing Branti v. Finkel, 445 U.S. 507, 518 (1980)).

      [66].    Id. (citing Stott v. Haworth, 916 F.2d 134, 141 (4th Cir. 1990)).

      [67].    Id. (alteration in original) (quoting Stott, 916 F.2d at 142).

      [68].    Id. (citing Jenkins v. Medford, 119 F.3d 1156, 1164 (4th Cir. 1997)).

      [69].    Id. at 165–66 (citing Jenkins, 119 F.3d at 1162–63).

      [70].    Id. at 165 (quoting Jenkins, 119 F.3d at 1162).

      [71].    Id. (quoting Jenkins, 119 F.3d at 1162).

      [72].    Id. (quoting Jenkins, 119 F.3d at 1162).

      [73].    Id. (citing Jenkins, 119 F.3d at 1162).

      [74].    Id. (citing Jenkins, 119 F.3d at 1163–64).

      [75].    Id. at 165–69.

      [76].    Id. at 166–67.

      [77].    Id. at 169–70.

      [78].    Id. at 169 (citing Borzilleri v. Mosby, 874 F.3d 187, 193–94 (4th Cir. 2017)).

      [79].    Id. at 170 (quoting Borzilleri, 874 F.3d at 194).

      [80].    Id. at 170. The court did note that the facts of the case “might support a state law claim such as interference with prospective contractual relationship or other theories.” Id. at 169.

      [81].    See id. at 170–80 (King, J., dissenting).

      [82].    Id. at 180 (quoting Va. Code Ann. § 15.2-1512.2(B)–(C) (Repl. Vol. 2018)).

      [83].    296 Va. 403, 406, 410–11, 821 S.E.2d 319, 320, 323 (2018).

      [84].    Id. at 406, 821 S.E.2d at 320–21.

      [85].    Id. at 406–07, 821 S.E.2d at 321. Virginia Code section 2.2-3705.1 states:

The following information . . . is excluded from the mandatory disclosure provisions of [FOIA], but may be disclosed by the custodian in his discretion:

. . . .

2) Written advice of legal counsel to state, regional or local public bodies or the officers or employees of such public bodies, and any other information protected by the attorney-client privilege.

3) Legal memoranda and other work product compiled specifically for use in litigation . . . .

Va. Code Ann. § 2.2-3705.1 (Repl. Vol. 2017).

      [86].    Bergano, 296 Va. at 407, 821 S.E.2d at 321.

      [87].    Id. at 407, 821 S.E.2d at 321.

      [88].    Id. at 408, 821 S.E.2d at 322 (quoting Walton v. Mid-Atl. Spine Specialists, P.C., 280 Va. 113, 122, 694 S.E.2d 545, 549 (2010)).

      [89].    Id. at 408, 821 S.E.2d at 322 (quoting Walton, 280 Va. at 122, 694 S.E.2d at 549).

      [90].    Id. at 408–09, 821 S.E.2d at 322.

      [91].    Id. at 410, 821 S.E.2d at 323.

      [92].    Id. at 411, 821 S.E.2d at 323.

      [93].    Id. at 411, 821 S.E.2d at 323.

      [94].    296 Va. 1, 2–4, 817 S.E.2d 323, 324 (2018).

      [95].    296 Va. 465, 477, 821 S.E.2d 693, 699 (2018).

      [96].    Archie, 296 Va. at 3, 817 S.E.2d at 324.

      [97].    Id. at 3–4, 817 S.E.2d at 324–25.

      [98].    Id. at 3, 817 S.E.2d at 324.

      [99].    Id. at 3–4, 817 S.E.2d at 324.

    [100].    Id. at 4, 817 S.E.2d at 324.

    [101].    Id. at 4–6, 817 S.E.2d at 324–26.

    [102].    Id. at 5, 817 S.E.2d at 325.

    [103].    Id. at 5, 817 S.E.2d at 325.

    [104].    Id. at 7, 817 S.E.2d at 326.

    [105].    Id. at 8, 817 S.E.2d at 326.

    [106].    Id. at 8, 817 S.E.2d at 326.

    [107].    Id. at 8, 817 S.E.2d at 326–27.

    [108].    Id. at 8, 817 S.E.2d at 327.

    [109].    Id. at 8–9, 817 S.E.2d at 327.

    [110].    Id. at 9, 817 S.E.2d at 327 (citing W&W P’ship v. Prince William Cty. Bd. of Zoning Appeals, 279 Va. 483, 486, 689 S.E.2d, 739, 741 (2010)).

    [111].    Id. at 11, 817 S.E.2d at 328.

    [112].    Id. at 11, 817 S.E.2d at 328.

    [113].    Id. at 11, 817 S.E.2d at 328. The supreme court relied upon Prince William County, Va. Code § 32-601.21:

A nonconforming use can be terminated by intentional abandonment or discontinuance of the use:

1.  If any nonconforming use is discontinued for a period of two years, it shall lose its nonconforming status, and any further use shall conform to the provisions of this chapter.

2.  For the purposes of this section, cessation of a nonconforming use for the aforesaid period shall be conclusively presumed to establish discontinuance.

3.  Any nonconforming use which is intentionally abandoned, without regard to the length of time which shall have passed, shall be terminated, and any further use shall conform to this chapter.

Archie, 296 Va. at 10–12, 817 S.E.2d at 327–28.

    [114].    Id. at 12, 817 S.E.2d at 328–29.

    [115].    Id. at 12, 817 S.E.2d at 329 (quoting Discontinue, Webster’s Third New International Dictionary of The English Language Abridged 646 (Philip Babcock Gove et al. eds., 2002)).

    [116].    Id. at 12, 817 S.E.2d at 329 (quoting Prince William County, Va. Code § 32-601.11 (2018)).

    [117].    Id. at 12–13, 817 S.E.2d at 329.

    [118].    Id. at 12–13, 817 S.E.2d at 329–30.

    [119].    The author is a member of the Amicus Committee of Local Government Attorneys of Virginia, Inc. In such capacity, the author supported the Local Government Attorneys of Virginia, Inc.’s decision to file an amicus brief in support of the position of the Board of Supervisors of Fairfax County, Virginia in Board of Supervisors of Fairfax County v. Cohn.

    [120].    Bd. of Supervisors v. Cohn, 296 Va. 465, 468, 821 S.E.2d 693, 694–95 (2018).

    [121].    Id. at 468, 821 S.E.2d at 694–95.

    [122].    See id. at 468–69, 821 S.E.2d at 695.

    [123].    Id. at 468–69, 821 S.E.2d at 695.

    [124].    Id. at 469, 821 S.E.2d at 695.

    [125].    Id. at 469, 821 S.E.2d at 695.

    [126].    Id. at 469–70, 821 S.E.2d at 695.

    [127].    Id. at 470, 821 S.E.2d at 696.

    [128].    Id. at 471, 821 S.E.2d at 696.

    [129].    Id. at 471, 821 S.E.2d at 696.

    [130].    Id. at 471–72, 821 S.E.2d at 696.

    [131].    Id. at 472, 821 S.E.2d at 697 (citing Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 426, 722 S.E.2d 626, 629 (2012)).

    [132].    Id. at 473, 821 S.E.2d at 697.

    [133].    Id. at 473–74, 821 S.E.2d at 697.

    [134].    Id. at 473, 821 S.E.2d at 697.

    [135].    Id. at 474, 821 S.E.2d at 698 (quoting Va. Code Ann. § 15.2-2307(C) (Repl. Vol. 2018)).

    [136].    Id. at 475–76, 821 S.E.2d at 698–99 (quoting Va. Code Ann. § 15.2-2307(D)(ii) (Repl. Vol. 2018)).

    [137].    Id. at 473, 477–78, 821 S.E.2d at 697, 699–700.

    [138].    City of Alexandria v. State Corp. Comm’n, 296 Va. 79, 94, 103, 818 S.E.2d 33, 40, 45 (2018).

    [139].    Id. at 84–85, 818 S.E.2d at 35.

    [140].    Id. at 85–87, 818 S.E.2d at 35–36.

    [141].    Id. at 87–88, 818 S.E.2d at 36–37.

    [142].    Id. at 86, 818 S.E.2d at 36.

    [143].    Id. at 84, 88–90, 818 S.E.2d at 35, 37–38.

    [144].    Id. at 91–93, 818 S.E.2d at 38–39.

    [145].    Id. at 94, 101, 818 S.E.2d at 40, 44.

    [146].    Id. at 94, 103–04, 818 S.E.2d at 40, 45.

    [147].    Id. at 95–96, 818 S.E.2d at 40–41.

    [148].    Id. at 96–98, 818 S.E.2d at 41–42. The SCC’s power is not unlimited. The court noted that “[i]f the SCC approved a rate while wholly ignoring the decision-making factors required by [Virginia] Code § 56-235.2, we would declare the approval to be ultra vires.” Id. at 97, 818 S.E.2d at 41.

    [149].    Id. at 98, 818 S.E.2d at 42.

    [150].    Id. at 98–99, 818 S.E.2d at 42 (citing City of Norfolk v. Va. Elec. & Power Co., 197 Va. 505, 506, 90 S.E.2d 140, 141 (1955) and Old Dominion Power Co. v. State Corp. Comm’n, 228 Va. 528, 323 S.E.2d 123 (1984)).

    [151].    Id. at 99, 818 S.E.2d at 43.

    [152].    Id. at 99, 818 S.E.2d at 43 (quoting Va. Const. art. IX, § 2).

    [153].    Id. at 99, 818 S.E.2d at 43.

    [154].    Id. at 100, 818 S.E.2d at 43 (quoting Va. Elec. & Power Co. v. State Corp. Comm’n, 284 Va. 726, 741, 735 S.E.2d 684, 691 (2012)).

    [155].    Id. at 101, 818 S.E.2d at 44.

    [156].    Id. at 94, 818 S.E.2d at 40 (quoting Va. Elec. & Power Co., 284 Va. at 735, 735 S.E.2d at 688 and Bd. of Supervisors v. Appalachian Power Co., 216 Va. 93, 105, 215 S.E.2d 918, 927 (1975)).

    [157].    Id. at 94, 818 S.E.2d at 40 (quoting Va. Elec. & Power Co., 284 Va. at 735, 735 S.E.2d at 688).

    [158].    Id. at 102, 103, 818 S.E.2d at 44, 45.

    [159].    ACA Fin. Guar. Corp. v. City of Buena Vista, 917 F.3d 206 (4th Cir. 2019).

    [160].    Id. at 210.

    [161].    Id.

    [162].    Id. at 211. The court explained in a footnote that since the City could not incur debt without a referendum, the payments had to be subject to future appropriations. Id. at 210 n.3.

    [163].    Id. at 211.

    [164].    Id. at 212.

    [165].    Id. at 213.

    [166].    Id. at 214.

    [167].    Id. at 215.

    [168].    Id.

    [169].    Id. at 212, 215.

    [170].    Id. at 216–17.

    [171].    Id. at 217.

    [172].    Id. at 212.

    [173].    Id. at 213.

    [174].    Id. at 213 (quoting Dykes v. N. Va. Transp. Dist. Comm’n, 242 Va. 357, 375, 411 S.E.2d 1 (1991)).

    [175].    Id. at 213–15.

    [176].    Id. at 215. (referring to the standards for Rule 12(b)(6) Motions to Dismiss as set forth in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 687 (2009)).

    [177].    Id.

    [178].    Id. at 216.

    [179].    Id. at 216 (citing Quadros & Assocs., P.C. v. City of Hampton, 268 Va. 50, 54, 597 S.E.2d 90, 93 (2004)).

    [180].    Id. at 216–17.

    [181].    Id. at 217.

    [182].    Id. at 218.

    [183].    The author is grateful to the Virginia Association of Counties for preparing an excellent annual list of legislation affecting local governments together with short summaries of each piece of legislation. Va. Ass’n of Ctys., 2019 Legislative Summary 17-104 https: //[]. This annual publication is an excellent resource for local governments reviewing the most recent General Assembly session.

    [184].    S.B. 549, Va. Gen. Assembly (Reg. Sess. 2016) (enacted as Act of Mar. 8, 2016, ch. 322, 2019 Va. Acts 584–85). Proffers are essentially voluntarily binding promises by developers to mitigate impact of their developments, given as part of receiving a rezoning.

    [185].    See Michael R. Vanderpool & Karen L. Cohen, Finding Common Ground on Proffer Reform, 39 Fee Simple 19 (2018), Simple_Fall2018.pdf [].

    [186].    S.B. 549.

    [187].    H.B. 2342, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Mar. 5, 2019, ch. 245, 2019 Va. Acts __); S.B. 1373, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Feb. 21, 2019, ch. 129, 2019 Va. Acts __).

    [188].    H.B. 2342; S.B. 1373.

    [189].    S.B. 549.

    [190].    H.B. 2342; S.B. 1373.

    [191].    Even without the provisions of Virginia Code section 15.2-2304.3, localities still have reason to use caution if and when discussing or negotiating proffers with developers. Although a discussion of the federal and Virginia constitutional law surrounding proffers is outside of the scope of this Article, localities must remain mindful of these provisions. See, e.g., Koontz. v. St. Johns River Water Mgmt. Dist., 570 U.S. 595 (2013), especially Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S. 595, 631 (2013) (Kagan, J., dissenting) (acknowledging concerns that local officials may have in engaging in negotiations with developers).

    [192].    H.B. 2342; S.B. 1373.

    [193].    H.B. 2342; S.B. 1373.

    [194].    Scott Shenk, As Public Hearing Looms, Questions Remain About Spotsylvania Solar Farm Proposal, Free Lance-Star (Dec. 1, 2018), al/as-public-hearing-looms-questions-remain-about-spotsylvania-solar-farm/article_22cd28 71-510f-5ece-b7dd-838c135cf9fb.html[].

    [195].    H.B. 2621, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Mar. 21, 2019, ch. 743, 2019 Va. Acts __); S.B. 1091, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Mar. 21, 2019, ch. 744, 2019 Va. Acts __).

    [196].    H.B. 2621; S.B. 1091.

    [197].    John Crane, Economic Successes Win Praise at Summit; Regional Collaboration Celebrated in Job Growth, Mega Park, Danville Register & Bee (Mar. 13, 2019) https:// boration-celebrated-in/article_3bef429e-45dc-11e9-9375-b3a890ce8e90.html [https://perma. cc/23AX-KEP8] (quoting Evan Feinman, Chief Broadband Advisor to the Governor of Virginia).

    [198].    See id.

    [199].    H.B. 2141, Va. Gen. Assembly (Ex. Sess. 2019) (enacted as Act of Apr. 3, 2019, ch. 828, 2019 Va. Acts __).

    [200].    Id. Interestingly, although in the author’s view existing language may be broad enough to allow for a tax to be imposed to pay for contracts with broadband services providers because broadband efforts could fall under “economic development services” and/or “promotion of business . . . services” in Virginia Code section 15.2-2403(1), H.B. 2141 failed to add a direct reference to broadband in subsections 15.2-2403(1), (2), (6), and (11), which are the paragraphs that discuss the types of projects for which taxes in a service district can be levied. Id.

    [201].    H.B. 2691, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Mar. 19, 2019, ch. 619, 2019 Va. Acts __); 2019 Va. Ass’n of Ctys., supra note 183, at 21.

    [202].    H.B. 2691.

    [203].    Va. Ass’n of Ctys., supra note 183, at 27–29.

    [204].    Va. Code Ann. § 22.1-279.8 (Repl. Vol. 2016).

    [205].    H.B. 1737, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Feb. 22, 2019, ch. 141, 2019 Va. Acts __); S.B. 1220, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Mar. 14, 2019, ch. 410, 2019 Va. Acts __).

    [206].    S.B. 1130, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Mar. 18, 2019, ch. 488, 2019 Va. Acts __); H.B. 2609, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Mar. 18, 2019, ch. 487, 2019 Va. Acts __).

    [207].    H.B. 1874, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Mar. 18, 2019, ch. 536, 2019 Va. Acts __); S.B. 1604, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Mar. 18, 2019, ch. 537, 2019 Va. Acts __); Morgan Windsor, Virginia Governor Signs ‘Tommie’s Law,’ Making Animal Cruelty a Felony Offense, ABC News (Apr. 2, 2019), https: // =62113054 [].

    [208].    H.B. 1874; S.B. 1604.

    [209].    See Va. Code Ann. § 3.2-6570 (Repl. Vol. 2016).

    [210].    H.B. 1874; S.B. 1604.

    [211].    H.B. 2745, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Mar. 5, 2019, ch. 190, 2019 Va. Acts __).

    [212].    Id.

    [213].    Id.

    [214].    See Va. Code Ann § 3.2-6540(P) (Cum. Supp. 2019) (stating that if the owner does not comply with the requirements regarding dangerous dogs, the court “shall order the dog to be disposed of by a local governing body”).

    [215].    S.B. 1367, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Mar. 18, 2019, ch. 562, 2019 Va. Acts __).

    [216].    Id.

    [217].    Id.

    [218].    Id.

    [219].    Id.

    [220].    S.B. 1430, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Mar. 18, 2019, ch. 530, 2019 Va. Acts __).

    [221].    Id.

    [222].    Id.

    [223].    Id.

    [224].    S.B. 1431, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Mar. 18, 2019, ch. 531, 2019 Va. Acts __).

    [225].    Id. The author is puzzled as to why local government attorneys would provide online training sessions to clients with whom they regularly interact in person. The author wonders whether a future session of the General Assembly may want to consider rewording this provision.

    [226].    Id.

    [227].    Id.

    [228].    Id.

    [229].    S.B. 1554, Va. Gen. Assembly (Ex. Sess. 2019) (enacted as Act of Apr. 3, 2019, ch. 843, 2019 Va. Acts __). For an overview of requirements regarding closed meeting certifications, see Tyler C. Southall, Closed Meetings Under FOIA Turn Fifty: The Old, the New, and What To Do, 53 U. Rich. L. Rev. 203 (2018).

    [230].    See Va. Code Ann. § 2.2-3714(A) (Cum. Supp. 2019).

    [231].    H.B. 1772, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Mar. 12, 2019, ch. 354, 2019 Va. Acts __).

    [232].    H.B. 2178, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Mar. 18, 2019, ch. 426, 2019 Va. Acts __).

    [233].    Id.

    [234].    Id.

    [235].    Va. Code Ann. § 24.2-700 (Cum. Supp. 2019).

    [236].    S.B. 1026, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Mar. 21, 2019, ch. 669, 2019 Va. Acts __); H.B. 2790, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Mar. 21, 2019, ch. 668, 2019 Va. Acts __).

    [237].    138 S. Ct. 2080, 2088, 2099 (2018).

    [238].    S.B. 1083, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Mar. 26, 2019, ch. 816, 2019 Va. Acts __); H.B. 1722, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Mar. 26, 2019, ch. 815, 2019 Va. Acts __).

    [239].    See Va. Code Ann. §§ 58.1-603.2(D)(2), -605(B), -605.1 (Cum. Supp. 2019).

    [240].    Va. Const. art. X, § 6-A(a); Va. Code Ann. § 58.1-3219.5 (Cum. Supp. 2019).

    [241].    H.B. 1655, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Feb. 15, 2019, ch. 15, 2019 Va. Acts __); S.B. 1270, Va. Gen. Assembly (Reg. Sess. 2019) (enacted as Act of Mar. 25, 2019, ch. 801, 2019 Va. Acts __).

    [242].    See H.B. 1655; S.B. 1270.


   *  County Attorney, Dinwiddie County, Virginia. J.D., 2009, University of Virginia School of Law; B.A., 2006, University of Virginia. Any views expressed by the author are his own and not necessarily the views of Dinwiddie County. The author is indebted to the format used by Andrew McRoberts and Steven Durbin in an excellent previous University of Richmond Law Review piece on local government law. Andrew R. McRoberts & Steven V. Durbin, Annual Survey of Virginia Law: Local Government Law, 47 U. Rich. L. Rev. 257 (2012).  The author thanks the editors of the University of Richmond Law Review, who provided many helpful comments in the editing of this Article.  Any errors are the author’s own.

The Downfall of “Incumbent Protection”: Case Study and Implications

The Downfall of “Incumbent Protection”: Case Study and Implications

Jeffrey R. Adams & Lucas I. Pangle, The Downfall of “Incumbent Protection”: Case Study and Implications, 54 U.R. L. Rev. 243 (2019).

Click here to download PDF.

Jeffrey R. Adams *
Lucas I. Pangle **


On January 9, 2019, the United States Court of Appeals for the Fourth Circuit struck down Virginia Code section 24.2-509—Virginia’s long-standing[1] “Incumbent Protection Act” (or the “Act”).[2] The Incumbent Protection Act[3] was the only statute of its kind,[4] and had endured criticism by grassroots commentators.[5] Yet, the Incumbent Protection Act had long evaded scrutiny in the courtroom. Indeed, the Incumbent Protection Act’s courtroom history is labyrinthine, replete with interesting and significant commentaries on party rights, standing, and public policy preference for primaries. In fact, before its eventual demise, it had been implicated in several lawsuits bringing constitutional challenges to various Virginia election laws and had dodged one direct assault by defending on standing grounds.[6]

By the time the challenge to the Incumbent Protection Act culminated with the Fourth Circuit’s January 9, 2019 decision, litigation to dismantle it had been ongoing for almost five years between two different suits. Indeed, the Incumbent Protection Act was felled not by one, but two swings.

This Article chronicles the course of the litigation that ultimately toppled the Incumbent Protection Act. Spanning two lawsuits and no fewer than seven opinions, the story of the litigation provides insight to practitioners who hope to navigate the interlocking and overlapping hierarchies of party plans, state laws, and constitutional rights. Following the summary and analysis of the litigation, this Article will assess the ramifications of the two Fourth Circuit opinions and will look ahead to issues likely of interest to future challengers to Virginia’s election laws.

  1. Operation of the Incumbent Protection Act

At its heart, litigation of the Incumbent Protection Act was a study of justiciability. A fair approximation of the lawsuit would describe it as less about the constitutionality of the Incumbent Protection Act and more about who could challenge which parts of the Act. To understand and assess these arguments, one must first come to comprehend the mechanics of the Act. Its structure is paramount to evaluating the standing arguments that come later.

Overall, the Virginia Code allotted the power to choose the method of nomination through section 24.2-509’s two subsections. Virginia Code section 24.2-509(A) operated as a general grant, imbuing political parties with the power to choose the method of nomination.[7] Virginia Code section 24.2-509(B) (the Incumbent Protection Act) curtailed this general grant. When incumbents sought re-nomination, Virginia Code section 24.2-509(B) reallocated the power of nomination away from the political party in its six sentences:

[1] Notwithstanding subsection A, the following provisions shall apply to the determination of the method of making party nominations.

[2],[3] A party shall nominate its candidate for election for a General Assembly district where there is only one incumbent of that party for the district by the method designated by that incumbent, or absent any designation by him by the method of nomination determined by the party. A party shall nominate its candidates for election for a General Assembly district where there is more than one incumbent of that party for the district by a primary unless all the incumbents consent to a different method of nomination.

[4] A party, whose candidate at the immediately preceding election for a particular office other than the General Assembly (i) was nominated by a primary or filed for a primary but was not opposed and (ii) was elected at the general election, shall nominate a candidate for the next election for that office by a primary unless all incumbents of that party for that office consent to a different method.

[5] When, under any of the foregoing provisions, no incumbents offer as candidates for reelection to the same office, the method of nomination shall be determined by the political party.

[6] For the purposes of this subsection, any officeholder who offers for reelection to the same office shall be deemed an incumbent notwithstanding that the district which he represents differs in part from that for which he offers for election.[8]

Crucial to understanding the Incumbent Protection Act’s function is observing that it created one set of rules for General Assembly offices (the House of Delegates and the Senate of Virginia) and one set of rules for everyone else (including candidates for Virginia’s seats in the United States Congress).

Sentences 2 and 3 permitted General Assembly incumbents unfettered power to select the method of nomination. For all other offices, sentence 4 allowed the incumbent officeholder to insist that the party use a primary as its nomination method if the incumbent seeking re-election had been selected by primary in the previous election cycle. On the one hand, the Incumbent Protection Act granted the General Assembly incumbents the absolute power to choose the nomination method, and on the other, it empowered the non-General Assembly incumbents (that had previously been selected by primary) to veto the use of a nonprimary method.

Reallocating the power to select (or veto) nomination methods constrained the political parties’ abilities to choose other methods available under Virginia law. For instance, Virginia allows nominations of candidates not only by a primary—which is conducted and funded by the state—but also “by methods other than a primary.”[9] “Such other methods, which are conducted and funded by the party, include (but are not limited to) a party convention;[10] a mass meeting, also known as a ‘caucus’; and a party canvass or unassembled caucus, also called a ‘firehouse primary.’”[11]

That is all to say that the Incumbent Protection Act’s treatment of General Assembly races was textually distinct from its treatment of races for other offices. The Incumbent Protection Act ensured greater protections to General Assembly incumbents (unrestricted selection of the nomination method) than non-general General Assembly candidates (veto over nonprimary method)—and effectuated those protections in different subparts of Virginia Code section 24.2-509(B).

 II. Litigating the Incumbent Protection Act

 B. The First Litigation: Adams and the 24th Senatorial District Committee

The first direct challenge to the Act commenced in 2015 when the 24th Senatorial District Republican Committee (the “24th Senatorial Committee”)—a legislative district committee of the Republican Party of Virginia—and its chairman filed a challenge to the Act.[12] Named as defendants were various members of the Virginia State Board of Elections and the Virginia Department of Elections (the “Commonwealth Defendants”).[13] The suit came after the 24th Senatorial Committee designated a convention as the method for selecting the Republican nominee to run for the 24th District’s Senate of Virginia seat for the 2015 election cycle.[14] In response, the incumbent state senator notified the Committee and the Virginia Department of Elections that he had designated a primary as the method of nomination.[15] The Virginia Department of Elections, in view of the Incumbent Protection Act, indicated its intention to hold a primary.[16] A formal conflict thus arose between the Committee, which had selected a convention, and the Commonwealth, which the Incumbent Protection Act directed to implement the incumbent officeholder’s choice of nomination. After the lawsuit was underway, both the incumbent officeholder and his challenger for the Republican nomination were granted leave to intervene.[17] As a result, the first challenge to the Incumbent Protection Act consisted of three plaintiffs: the 24th Senatorial Committee, its chairman, and a candidate challenging the incumbent.

The Commonwealth Defendants immediately moved to dismiss the lawsuit on standing grounds.[18] The Commonwealth Defendants pointed out that the 24th Senatorial Committee, as a creation of the Republican Party of Virginia (the “RPV”), was bound by the powers and limitations contained in the RPV’s Plan of Organization (the “Plan”).[19] The Plan included a delegation of authority to the 24th Senatorial Committee “to determine the method of nomination for candidates seeking the Republican nomination for the 24th Senate District.”[20] But—crucially—it also contained a concession: legislative district committees could only choose the method of nomination “where permitted to do so under Virginia law.”[21]

The 24th Senatorial Committee’s standing (and that of its chairman[22]) turned on the interpretation of the “where permitted to do so under Virginia law” language.

Both the district court and a split panel of the United States Court of Appeals for the Fourth Circuit sided with the Commonwealth Defendants. First, the panel concluded that the language of the Plan was unambiguous.[23] Because the terms of the Plan were unambiguous, the court need not look outside of the Plan to construe it.[24] Second, the panel found that the Plan’s “where permitted to do so under Virginia law” provision incorporated the Incumbent Protection Act and subordinated the nomination powers granted by other text in the Plan.[25] In effect, the Plan’s inclusion of that language was tantamount to a “voluntary choice” by the RPV to subordinate its power to choose a nomination method to Virginia law, specifically the Incumbent Protection Act.[26] Of course, where an alleged injury is due to a party’s voluntary choice, the party does not meet the required elements of standing.[27] Accordingly, any injury suffered by the 24th Senatorial Committee was caused by the independent choice of the RPV and not by the Incumbent Protection Act.[28] Further, a favorable decision would not have redressed the committee’s injury, as incumbents would have had the power to select the nomination method under the Plan no less than under the law.[29]

It is noteworthy that one of the judges at the Fourth Circuit (then-Chief Judge Traxler) dissented.[30] He observed that the law of a particular state includes the United States Constitution as the supreme law of the land, and therefore “an unconstitutional Virginia statute is no law at all.”[31] It followed then, in Chief Judge Traxler’s view, that the language “where permitted to do so under Virginia law” did “not include Virginia statutes that are void because they violate the U.S. Constitution.”[32] Succinctly put, “the phrase ‘Virginia Law’ . . . cannot be construed to include invalid Virginia statutes.”[33] The majority, of course, disagreed.[34] The appellants filed for rehearing en banc, which was denied.[35]

The Fourth Circuit’s holding that the Plan unambiguously incorporated the Incumbent Protection Act, and subordinated legislative district committees, had the effect of shuttering the courthouse doors to an entire subgroup of the Republican Party—namely, every legislative district committee and their chairpersons. Going forward, if a legislative district committee intended to challenge the Incumbent Protection Act, it would have to first amend the Plan—a politically daunting proposition.

In addition to attacking the 24th Senatorial Committee’s standing, the Commonwealth Defendants also challenged the candidate-plaintiff’s standing.[36] The challenged candidate-plaintiff brought an Equal Protection claim.[37] The candidate-plaintiff theorized that the Incumbent Protection Act injured him because, as a candidate for the 24th District’s seat for the Senate of Virginia, he was similarly situated to the incumbent, yet disfavored by the Incumbent Protection Act.[38] Despite his seemingly similar position, the Incumbent Protection Act bestowed an unconstitutional advantage upon the incumbent by enabling him to choose the most advantageous nomination process.[39] That, according to the candidate-plaintiff, was injury enough.

The Fourth Circuit disagreed, and in a remarkably sweeping way.[40] The two-judge majority observed that neither the Plan nor state law granted challenging candidates the ability to choose the method of nomination.[41] Because challengers never possess the ability to choose the method of nomination, the Incumbent Protection Act takes nothing away from them, and therefore does not injure them.[42] In other words, the Incumbent Protection Act cannot invade a legally protectable interest that the challenger never possessed. By eliminating the challenging candidate from the case, the Fourth Circuit affirmed the district court’s decision and dismissed the case.[43]

The Incumbent Protection Act survived the first constitutional challenge without ever having to face constitutional scrutiny. The plaintiffs and intervenor in the Adams and 24th Senatorial District cases were each dismissed solely on justiciability grounds—and with ominous odds for a re-challenge. The Fourth Circuit interpreted the “where permitted to do so under Virginia law” language as voluntary consent by the RPV to the Act.[44] Therefore, any legislative district committee, such as the 24th Senatorial Committee, endeavoring to challenge the Incumbent Protection Act would have to hopscotch around the Fourth Circuit’s ruling. Likewise, the Fourth Circuit’s dismissal of the challenging candidate-plaintiff’s Equal Protection claim effectively sidelined a whole class of potential plaintiffs; indeed, challenging candidates simply never have a legally protected interest in selecting the method of nomination.[45]

The Fourth Circuit’s opinion in 24th Senatorial District left a minefield for potential litigants hoping to use judicial tools to overturn the Incumbent Protection Act. By eliminating Republican legislative district committees and challenging candidates from any party—and with incumbents (obviously) unlikely to challenge a statute that only helps them—the Fourth Circuit’s decision left only so many possible plaintiffs able to establish a case and controversy.

 B. The Second Litigation: Fitzgerald and the 6th Congressional District Committee

On February 24, 2017, a second challenge was filed targeting the Incumbent Protection Act.[46] This complaint had many similarities to the first litigation. Its causes of action proceeded on identical theories to the first litigation: facial and as-applied constitutional challenges founded on the First Amendment’s guarantee of freedom of association and the Fourteenth Amendment’s Equal Protection Clause.[47] In addition, the Complaint named the same Commonwealth Defendants.[48] But, apparently wise to the lessons of the 24th Senatorial District case, the second litigation included plaintiffs of far greater variety. The panoply of plaintiffs included numerous classes of persons and entities representing several capacities within the Republican Party of Virginia:

(1)  committee-plaintiffs (the 20th House Committee, a legislative district committee, and the 6th Congressional Committee, a congressional district committee);

(2)  individual-plaintiffs (as Virginia voters and as members of the RPV);

(3)  candidate-plaintiffs (those persons who are nonincumbent prospective candidates for office); and

(4)  chairperson-plaintiffs.

Proceeding with many more and different classes of plaintiffs was clearly calculated to evade the successful standing arguments deployed by the Commonwealth Defendants in the prior litigation. Where the first litigation involved only a legislative district committee, its chairman, and a candidate-plaintiff, the second litigation crucially included a congressional district committee.[49]Legislative district committees select candidates for offices in the Virginia General Assembly, whereas congressional district committees select candidates for offices in the United States Congress.[50] Further, Plan language governing congressional district committees omitted the poisoned language: “where permitted to do so under Virginia law.”[51]

However, inasmuch as the second litigation sought a do-over of the first litigation, the residue of the Fourth Circuit’s 24th Senatorial District decision proved to be an effective tool for the Commonwealth Defendants and a tricky obstacle for the plaintiffs. Indeed, not long after the plaintiffs filed their complaint, the Commonwealth Defendants moved to dismiss for lack of standing.[52]

  1. The Candidate-Plaintiffs

The district court first dismissed the candidate-plaintiffs for lack of standing.[53] The candidate-plaintiffs were situated identically to the intervening challenger in the 24th Senatorial District litigation and likewise alleged injury under an Equal Protection theory.[54] Finding that the candidate-plaintiffs had shown neither injury-in-fact nor redressability, the district court simply pointed to the 24th Senatorial District precedent and ushered the candidate-plaintiffs to the exits.[55] Indeed, the candidate-plaintiffs did not even attempt to distinguish themselves from their earlier-litigation predecessors; rather, they argued, based on Supreme Court precedent, that the Fourth Circuit had incorrectly decided the issue.[56]

  1. The Individual-Plaintiffs

The individual-plaintiffs challenged the Act as registered voters and members of the RPV.[57] No plaintiff in the 24th Senatorial District litigation had asserted First Amendment or Equal Protection injury on account of his or her identity as a registered voter or as a Republican. Nevertheless, the Commonwealth Defendants characterized the interests of registered voters and Republican party members as only a slight variation on the interests of candidate-plaintiffs.[58] The Commonwealth Defendants argued that, like the candidate-plaintiffs, Virginia voters and members of the RPV had “no authority under the Plan or state law to select their party’s means of nomination, and, therefore, the [Incumbent Protection] Act does not regulate any protected right belonging to the individual-plaintiffs.”[59] The district court agreed with the Commonwealth Defendants in reasoning that the 24th Senatorial District’s holding that individuals who have no legally protectable interest in determining the nomination method are uninjured by the Incumbent Protection Act.[60]

Accordingly, the district court found each individual-plaintiff lacked standing, leaving only the committee-plaintiffs and the chairmen-plaintiffs.

  1. The Chairmen-Plaintiffs

Also novel to the second litigation was the argument that chairmen had standing independent of their capacity as a representative of a committee.[61] The chairmen-plaintiffs contended that because Virginia Code section 24.2-1001 imposed the possibility of a misdemeanor for willful neglect of their statutory duties,[62] chairmen who refused to effectuate an incumbent’s choice of nomination risked criminal prosecution.[63] That the possibility of prosecution could imbue committee chairmen with a protectable interest outside of their representative capacity was a novel theory, untested by prior election law cases.[64] However, the district court brushed it aside as unsubstantiated theory.[65] There had been no evidence adduced in discovery or submitted to the court that suggested the Commonwealth Defendants, or another state law authority, had ever prosecuted or threatened to prosecute under Virginia Code section 24.2-1001. The district court hypothesized that chairmen could only face criminal prosecution once a formal conflict had developed between the committee and incumbent, which would impose an obligation upon the chairperson to effectuate the incumbent’s choice of nomination method.[66] Without a formal conflict, the chairperson would have no legal duty spurned; and, without a legal duty to refuse,  insubordination was not possible and therefore no criminal penalties could arise. The district court simply found such a series of events too “conjectural” and “hypothetical.”[67]

Having eliminated the candidate-plaintiffs and individual-plaintiffs as prescribed by 24th Senatorial District and having found no evidence to support independent injury for chairmen-plaintiffs, the initial pack of plaintiffs that had started the litigation thinned to a mere two: one legislative district committee and one congressional district committee.

  1. The Legislative District Committee

The Plan created the same trouble for the 20th House Committee that it had made for the 24th Senatorial District Committee. Like its legislative district committee predecessor, the 20th House Committee was haunted by the “where permitted to do so under Virginia law” language in article V of the Plan.[68]

Though the Plan had not changed in the time between the first litigation and the second litigation, the 20th House Committee did have cause for optimism. Unlike the 24th Senatorial Committee, the 20th House Committee had secured an interpretative resolution from the State Central Committee of the RPV.[69] On June 27, 2015, the State Central Committee of the RPV passed a resolution declaring, in part:

  1. The State Central Committee as the governing body of the Republican Party of Virginia, endowed with the authority to make definitive determinations about the application and interpretation of the Party Plan of Organization (“Plan”), hereby directs the Chairman to [v]indicate (sic) the Party’s rights violated by application of Virginia Code Section § 24.2-509 and a misapplication of the provisions of the plan by U.S. District Court for the Western District of Virginia in support of mistaken inclusion that the Party acceded to such violations of its rights.


* * *

  1. State Central Committee hereby resolves that the Act is not incorporated into the Party Plan nor is facilitated by or acceded to [by] the Plan.[70]

The intent of the resolution was obvious: to countermand the Adams v. Alcorn court’s incorporation of the Incumbent Protection Act into the Plan. Though the resolution had been secured during the first litigation (it was passed on June 27, 2015), the record before the district court had been closed and the 24th Senatorial District  court refused to consider it; therefore, the resolution constituted a new fact not considered by either the district court or the Fourth Circuit in the first litigation.[71]

For the 20th House Committee, the resolution was a lifeline. Using it as operative evidence of the Plan’s meaning, the 20th House Committee argued that the State Central Committee’s interpretation of its own internal organizing documents should control.[72] In the view of the 20th House Committee, the State Central Committee’s proclamation that the Plan does notincorporate the Incumbent Protection Act created a crucial distinction in the Plan considered by the courts in the 24th Senatorial District litigation and the Plan now before the district court.[73] Not only had no one offered any evidence as to the RPV’s interpretation of the Plan in 24th Senatorial District, but now the State Central Committee of the RPV—the final arbiter of the Plan—had spoken, and spoken contrary to the Fourth Circuit’s holding in the 24th Senatorial District litigation.

At first blush, it might appear that the 20th House Committee held a strong hand. The interpretive body of the RPV had “corrected” the 24th Senatorial District’s interpretation in a way that supported the 20th House Committee’s position. As such, the 20th House Committee forcefully argued that the June 27, 2015 resolution provided the district court with a blank slate upon which it might consider the import of the “where permitted to do so under Virginia law” provision.[74] Yet, the Commonwealth Defendants had a compelling counterargument. They contended that the June 27, 2015 resolution was not so much correction as it was contradiction. In their view, the RPV could not undo the Fourth Circuit’s interpretation of the unambiguous Plan language by merely issuing a statement of disagreement.[75] If a court had ascertained the Plan’s meaning as a matter of law, it was hardly within the power of the RPV to effectively vacate that interpretation.

In the square-off between the Fourth Circuit and the RPV State Central Committee, the district court sided with the Fourth Circuit. Relying on the Supreme Court of Virginia’s opinion in Brotherhood of Locomotive Engineers v. Folkes,[76] the district court acknowledged that construction of the organizing documents of unincorporated associations, such as the RPV, are typically left to the association.[77] That is, unless that construction would “substitute legislation for interpretation” or otherwise “transgress the . . . laws of the land.”[78] Because the Fourth Circuit had already definitively concluded that the Plan’s “where permitted to do so under Virginia law” language incorporates the Act, giving plenary effect to the RPV’s contradictory and belated proclamation would “alter what the Fourth Circuit found to be the Plan’s clear and unambiguous meaning.”[79] The district court could simply not square such an outcome with the Supreme Court of Virginia opinion in Folkes. “As such, the provision on which the Fourth Circuit ha[d] spoken remain[ed] unaltered,” and, like the 24th Senatorial District Committee in the first litigation, the 20th House District Committee was dismissed from the action.[80]

  1. The Congressional District Committee: Standing and the Merits
  2. Standing

The one variety of plaintiff that had not yet challenged the Incumbent Protection Act was the RPV congressional district committee. Unlike its treatment of the legislative district committee, the Plan did not circumscribe the authority of the congressional district committee to be permitted under Virginia law.[81] Therefore, any deprivation suffered by the 6th Congressional District Committee (the “6th CDC”) resulted solely by operation of the Incumbent Protection Act, and invalidation of the Incumbent Protection Act would erase that deprivation.[82] The 6th CDC needed only show injury in fact.

The district court quickly determined that the 6th CDC “plainly” had a legally protected interest in selecting the method of nomination: the Plan gave congressional committees unfettered ability to choose the nomination method, which the Incumbent Protection Act took away.[83] However, the more problematic quandary was whether such an injury was “actual or threatened.”[84]

The incumbent for the 6th CDC had previously been selected by primary in the 2016 election cycle, so the Incumbent Protection Act entitled him to be selected by that nomination method in the 2018 election cycle.[85] The Act, therefore, applied. But, the Commonwealth Defendants argued, without either the incumbent or the committee having revealed a preference for the nomination method, there was no case or controversy between the two.[86] Indeed, the 6th CDC might also have chosen a primary, or the incumbent might also have consented to a convention, or both parties might have opted for a firehouse primary. If the 6th CDC and the incumbent agreed on a method of nomination, the 6th CDC would hardly suffer injury by the Act. The response by the 6th CDC was twofold: one based in fact and one based in law.

Again, having learned from the 24th Senatorial District litigation, the plaintiffs developed a formidable factual record—replete with data explained by expert testimony—to support their allegations of injury. As the district court observed, “[W]here a challenge to a statute does not arise from its active enforcement, courts often look to the general enforcement history of the statute in determining whether a plaintiff’s rights are sufficiently threatened.”[87] To that end, the 6th CDC identified over 100 instances in which incumbents had invoked their power under the Incumbent Protection Act in recent election cycles.[88] The 6th CDC expert, Dr. Jeffrey Jenkins, incorporated that data into his analysis, explaining that the various methods of nomination have meaningful differences, and incumbents utilize the Incumbent Protection Act to maximize their chances for re-election.[89]Unlike the chairmen-plaintiffs,[90] the 6th CDC had shown  “a realistic danger,” far from “imaginary or speculative.”[91]

Even so, the Commonwealth Defendants argued, regardless if incumbents in other places and at other times had invoked the Incumbent Protection Act, there must be some conflict between these parties as to the nomination method in order for the Incumbent Protection Act to injure the 6th CDC.[92] The district court, and ultimately the Fourth Circuit, disagreed—and did so based upon the Fourth Circuit’s powerful opinion in Miller v. Brown, widely known as “Miller I.”[93]

The Fourth Circuit’s Miller I decision is potent.[94] There, the 11th Senatorial District Republican Committee and its chairman sued the then-members of the Board of Elections. The suit began on April 12, 2005, challenging application of Virginia’s open primary law[95] for the 2007 election cycle.[96] The Miller I defendants filed a motion to dismiss, asserting that a formal conflict was too remote in time to establish injury-in-fact.[97] Because the incumbent (1) had not yet officially declared his candidacy; and (2) could ultimately be unopposed for nomination (in which case no primary would be necessary), the “defendants’ position [was] that Plaintiffs’ arguments [were] contingent on events that may never come to pass.”[98] In addition, the district court noted that the period within which the nomination method is chosen had not opened, so no actual (or “formal”) conflict between the incumbent and the committee was yet possible.[99] Reasoning that the alleged injuries were neither actual nor threatened, the district court granted the motion to dismiss.[100]

The Fourth Circuit reversed and remanded, holding that “[b]ecause campaign planning decisions have to be made months, or even years, in advance of the election to be effective, the plaintiffs’ alleged injuries are actual and threatened.”[101] Further, “[t]he mere existence of the open primary law causes these decisions to be made differently than they would absent the law, thus meeting the standing inquiry’s second requirement of a causal connection between the plaintiffs’ injuries and the law they challenge.”[102] In short, the mere existence of the open primary law distorted political decisionmaking, causing actual and threatened injuries sufficient for standing—despite the fact that election officials had not, and could not yet have, enforced it for the 2007 election cycle.[103]

In Fitzgerald v. Alcorn, the district court found the plaintiff in Miller I and the 6th CDC committee-plaintiffs to be similarly situated:

The committee-plaintiffs’ uncertainty as to what method will control the nomination of their general election candidates for upcoming elections is sufficient injury to demonstrate standing. This is so regardless of whether a committee ultimately agrees with its incumbent’s choice of a nomination method. The committee-plaintiffs have demonstrated that the uncertainty caused by the Act “dramatically changes the plaintiffs’ decisions about campaign financing, messages to stress, and candidates to recruit . . . months, or even years, in advance of the election.” That uncertainty is palpable given the Act’s repeated invocation by incumbents and enforcement by defendants.[104]

Obvious in the district court’s opinion (echoing Miller I) is that whether a committee ultimately agrees with its incumbent’s choice of a nomination method is not determinative.[105] In fact, the district court found that Miller I applied even when the parties agreed.[106] Under the Miller I paradigm, the committee-plaintiffs demonstrated a real, immediate, and direct threat to their constitutional rights of free association.[107] Because the 6th CDC had also demonstrated causation and redressability,[108]the case proceeded to the merits.

  1. Merits (Constitutional Scrutiny)

Like in the first litigation, the Commonwealth Defendants’ standing arguments were powerful and persuasive. They unholstered the 24th Senatorial District litigation frequently and deployed it to great effect—so much so that after the district court completed its standing analysis, only the 6th CDC remained in the case.

Because only a congressional district committee remained, it is important to remember that the Incumbent Protection Act applied differently to the General Assembly offices (i.e., the legislative district committee) than other offices such as congressional positions (i.e., the congressional district committee).[109] Though the 6th CDC survived the standing carnage, its ability to eliminate the entire Incumbent Protection Act (all six sentences), as opposed to only the sentence that directly and textually applied to it (sentence 4), was suspect. In one sense, the fight shifted to standing all over again: did the 6th CDC have standing to seek invalidation of the part of the Incumbent Protection Act that did not apply to it? Therefore, both the district court and the Fourth Circuit undertook two-tiered analyses on the merits of the case: first, they inquired whether the fourth sentence of the Incumbent Protection Act was unconstitutional; second, they grappled with whether the court could remedy the unconstitutional aspects of the Act by striking down the entire statute.

In comparison to the slog over the case’s justiciability, neither the district court nor the Fourth Circuit had much trouble finding the fourth sentence of the Incumbent Protection Act unconstitutional. Both courts applied the Anderson-Burdick balancing test in assessing whether a state election law impermissibly infringes on First Amendment association rights.[110] The analysis began, as it so often does, by acknowledging that “[the Supreme Court] vigorously affirm[s] the special place the First Amendment reserves for, and the special protection it accords, the process by which a political party ‘select[s] a standard bearer who best represents the party’s ideologies and preferences.’”[111] Therefore, statutes that severely burden a party’s associational rights must be “narrowly tailored” to advance a “compelling government interest.”[112]

The Fourth Circuit (in affirming the district court) found the Incumbent Protection Act’s burden to be “manifestly severe.”[113]In their view:

[T]his is a case in which the state has decided that the wishes of a party’s adherents must, in certain circumstances, be subordinated wholesale to the wishes of a single individual whose self-interest is self-evident; in these circumstances, the party’s adherents are entirely shut out of the choice of nomination method—severely burdening their associational rights.[114]

Accordingly, in order to prevail, the Commonwealth Defendants needed to show that the Act was narrowly tailored to vindicate a compelling government interest.

In response, the Commonwealth Defendants put forth a clever argument. In California Democratic Party v. Jones, the Supreme Court stated, “We have considered it ‘too plain for argument,’ for example, that a State may require parties to use the primary format for selecting their nominees, in order to assure that intraparty competition is resolved in a democratic fashion.”[115] That was not the only time the Supreme Court had said it, and there was every indication that the Supreme Court had meant it.[116]

The Commonwealth Defendants parlayed the Supreme Court’s language into a creative argument: if it was “too plain for argument” that a state could require political parties to always use a primary, then it followed, in the view of the Commonwealth Defendants, that the state could require a primary sometimes.[117] In other words, if it were “too plain for argument” that states could mandate primaries and the constitutional concern contemplated the usurpation of the party’s internal governance, then surely it would also be “too plain for argument” that a state might annex the party’s autonomy by requiring a primary sometimes. Certainly, if the state could take the proverbial mile, it could also take the proverbial inch.[118]

Recasting the Incumbent Protection Act as an “almost-Mandatory Primary Act” was a key argument for the Commonwealth Defendants on appeal.[119] Not only did they utilize the argument to contend the fourth sentence of the Incumbent Protection Act itself was constitutional, they also used the theory to advocate against blanket invalidation.[120] After it became clear that the 6th CDC was the only remaining party and the battle moved to the nature of the remedy, the Commonwealth Defendants keyed in on the fourth sentence’s veto power over a non-primary method. Arguing that, at worse, a political party would end up with a primary, the Commonwealth Defendants forcefully argued that the Incumbent Protection Act could be saved if only the court would construe it as a mandatory primary act.[121]

The Fourth Circuit declined the invitation. The Fourth Circuit found it “implausible that the General Assembly would seek to vindicate [an] interest in [promoting primaries in] such an odd, uneven, and underinclusive fashion.”[122] Instead, the court observed, the “text and structure of the law gives rise to the strong suggestion that the Incumbent Protection Act serves a different interest: the interest, unsurprisingly, in incumbent protection.”[123] In sum,

[i]f [the Incumbent Protection Act] truly were a mandatory primary statute its constitutionality would be “too plain for argument.” But it is not: The statute does not by itself require any organ of a Virginia political party to use a primary as a method of nomination. Instead, the statute delegates the power to force the party to use a primary to the incumbent office holder.[124]

Rejection of the Commonwealth Defendants’ characterization of the Incumbent Protection Act essentially resolved the constitutional question in favor of the 6th CDC.[125] The Commonwealth Defendants advanced virtually no other argument that the Incumbent Protection Act survived strict scrutiny. Accordingly, the fourth sentence of the Incumbent Protection Act was invalidated.[126]

  1. Remedy (the Forms)

Having determined that part of the Incumbent Protection Act was unconstitutional, the identity of the plaintiff became very important to the scope of the remedy. The 6th CDC did not select the method of nomination for General Assembly offices; accordingly, the text of the second and third sentences of the Act did not directly apply to it. Yet, the 6th CDC asked the Fourth Circuit to affirm the district’s injunction of the Incumbent Protection Act in its entirety.[127]

The parties fought over the scope of the remedy in several conceptual theaters. The parties traded arguments over whether the severability doctrine provided an appropriate basis to invalidate the entire Act.[128] And, they debated whether the overbreadth doctrine’s “strong medicine,” widely attributed to Broadrick v. Oklahoma[129] and distilled by the Supreme Court in Members of City Council of Los Angeles v. Taxpayers for Vincent[130] and Secretary of Maryland v. Joseph H. Munson Co.,[131] could reach language in a statute that does not directly injure the party before the court.[132] The 6th CDC even proposed that the court conceive the statute as a single unity, with dual implementation provisions, so that the 6th CDC could bring the entirety of the statute before the court.[133]

However, there proved to be a simpler solution: the Commonwealth Defendants’ own forms.

As the administrative apparatus that regulates and referees the election process, the Department of Elections performs its duties, in part, by soliciting and receiving information from various political institutions throughout the Commonwealth.[134] It carries out this function by propagating various forms.[135] As the Fourth Circuit explained,

[T]he Department issues a series of forms for incumbents and party committees to notify the Commonwealth which nomination method they plan to use, as they are required to do by law. These forms reflect the Department’s understanding of how to apply the Incumbent Protection Act.[136]

Between resolution of the first litigation and initiation of the second litigation, the Department promulgated new forms to govern the 2016 election cycle.[137] The 2016 election cycle included elections for the United States Congress, so these new forms were transmitted to congressional district committees.[138] Acknowledging that the Incumbent Protection Act applies differently to General Assembly offices than it does to congressional offices, one would expect two separate forms.[139] But the Department used identical forms for everyone—a single form for General Assembly offices and everyone else:



[T]hroughout the 2016 election cycle and through the filing of this lawsuit, these forms applied the Act’s second and third sentences, which should only apply to incumbent members of the General Assembly, to the 6th Congressional Committee as well. Incumbent members of Congress were given the same plenary power to designate any method of nomination no matter the circumstance, as if they were incumbent members of the General Assembly.[140]

Juxtaposition of the forms best makes the point.[141]








I, the undersigned incumbent of the Senate of Virginia district indicated above, am seeking re-election and designate the following method of nomination to be used in determining the party’s candidate for this office subject to the forthcoming November general election.







I, the undersigned incumbent of the district indicated above, am seeking re-election and designate the following method of nomination to be used in determining the party’s candidate for this office subject to the coming November general election.

Despite the different powers of state Senators and Congressmen under the Act, the forms were virtually identical. Each granted the incumbent the power to “designate” the method of nomination. In the same way, the certification form promulgated for the General Assembly district committee chairmen in 2015 was virtually identical to the certification form issued to congressional district committee chairmen in 2016.[142]



Notice of Party Nomination Method – 2015 Election for Senate of Virginia


* * *

I, the undersigned Chairman of the ____ Party Committee of the Senate District indicated below, do hereby certify to the Department of Elections that: [CHECK ONE]


The incumbent is of my party, is seeking re-election and has designated the method of nomination indicated below.


The incumbent is of my party, is seeking re-election and has not designated a method of nomination. Therefore, my party has designated the method of nomination indicated below.


The incumbent is not of my party OR is not seeking re-election and my party has designated the method of nomination indicated below.

Notice of Party Nomination Method – 2016 November General Election


* * *

I, the undersigned Chairman of the ____ Party Committee of the District indicated below, do hereby certify to the Department of Elections that: [CHECK ONE]



The incumbent is of my party, is seeking re-election and has designated the method of nomination indicated below.


The incumbent is of my party, is seeking re-election and has not designated a method of nomination. Therefore, my party has designated the method of nomination indicated below.


The incumbent is not of my party OR is not seeking re-election and my party has designated the method of nomination indicated below.


Because the forms reflected apparently universal implementation of the General Assembly-only second and third sentences, the Fourth Circuit concluded that the Commonwealth Defendants had effectively applied the second and third sentences against the 6th CDC.[143]

By using the forms to connect the second and third sentences to the 6th CDC, the Fourth Circuit avoided the complicated, clunky, and murky overbreadth and severability analyses employed by the district court.[144] Able to properly bring the entire Incumbent Protection Act into consideration through the forms, the Fourth Circuit described patent constitutional offense:

The Department [of Elections] fails to identify a single circumstance where the Act’s second and third sentences could be lawfully applied. And we find none. The second and third sentences not only share the constitutional infirmities of the fourth sentence but exhibit those infirmities to an even greater degree. The fourth sentence allows some incumbents to force a primary under certain designated circumstances. The second sentence goes further by empowering incumbents to impose their choice of any method of nomination no matter what the party prefers under almost any circumstances.[145]

Thus, the route for relief was far more direct. Without resorting to overbreadth or straining the severability doctrine, the 6th CDC obtained complete relief for all of the plaintiffs, including for those whose claims were dismissed for lack of standing. At long last, after two lawsuits spanning nearly four years, the Fourth Circuit invalidated the Incumbent Protection Act.

III.   The Aftermath

This Article will not attempt to reflect on the many district and appellate court holdings made throughout the course of these litigations.[146] Indeed, the opinions produced throughout these litigations serve as useful guideposts that practitioners might use to navigate future cases—in particular, to anticipate justiciability issues that sunk so many of these parties. Given that the litigations produced two Fourth Circuit opinions, they clarified or advanced the law in several respects, and it is appropriate to note a few.

 A. Miller I and Standing

Throughout the litigation, the Commonwealth Defendants consistently argued that the plaintiffs could not be injured unless and until a conflict arose between the plaintiffs (such as the committee) and the incumbent. A conflict arose, for instance, when an incumbent’s use of his or her power under the Incumbent Protection Act contradicted a committee’s selected method.[147] As ammunition for that argument were two seemingly favorable fact patterns:

  1. That both the incumbent for the 20th House District and the 20th House Committee had declared their preference for a convention.[148]
  2. That neither the incumbent congressman for the 6th congressional district, nor the 6th Congressional Committee, had announced a preferred method of nomination.[149]

At the very least, no conflict—formal or otherwise—existed between an incumbent and a committee-plaintiff at the time the second litigation commenced.[150]

And, by the time the Fourth Circuit heard the appeal, the Commonwealth Defendants were in an ostensibly better position. The 6th congressional district Republican incumbent had announced his decision to not seek re-election, and without the compulsion of the Incumbent Protection Act to select a primary, the 6th CDC had chosen to select their nominee through a convention.[151]Therefore, the Incumbent Protection Act could not operate against the Committee until at least 2022.[152] Indeed, even that scenario was far from certain. The 6th CDC nominee in 2020 would have to be selected through a primary and subsequently win the general election (thus becoming an incumbent). The Commonwealth Defendants strenuously argued that this scenario created a controversy too remote in time and circumstance—mooting the case.[153] In fact, the Commonwealth Defendants went even further by contending that this confluence of events was so implausible that it also defeated the extremely generous[154] “capable of repetition, yet evading review” exception.[155]

Miller I obliterated the Commonwealth Defendant’s argument.[156] Not only did the Fourth Circuit find that the case was eligible for the “capable of repetition, yet evading review”[157] exception, but extraordinarily also held that the case was not even moot![158] As described by the Fourth Circuit:

The injuries inflicted by laws that distort the primary process, like the Incumbent Protection Act, are not confined to the short duration of any particular primary, but instead reflect the reality that “campaign planning decisions have to be made months, or even years, in advance of the election to be effective.” The 6th Congressional Committee’s claims thus did not become moot with the passing of the 2018 election season. The dispute over the Act’s fourth sentence, rather, is alive and well.[159]

Read to its conceivable breadth, Miller I supports the proposition that so long as the challenged statute (whether an incumbent choice statute, open primary statute, or some other suspect law) influences, undermines, or distorts campaign planning decisions, then a putative plaintiff has demonstrated injury-in-fact. Under this reading, one must wonder whether Miller I simply holds too much, and whether there are any limitations to Miller I standing. Indeed, those Fourth Circuit plaintiffs who lost on Miller Iarguments failed on shortcomings in their causation arguments, not their injury-in-fact allegations.[160]

One limiting principle might be the ripeness doctrine, which ensures that courts adjudicate issues presented in “clean-cut and concrete form.”[161] Because Miller I standing permits plaintiffs to sue years in advance, defendants may well shift the analysis from standing to ripeness. To determine whether a case is ripe, courts in the Fourth Circuit balance “the ‘fitness of the issues for judicial decision’ and the ‘hardship to the parties of withholding court consideration.’”[162] Just as a plaintiff cannot assert standing based on an alleged injury that lies at the end of a “highly attenuated chain of possibilities,” a plaintiff’s claim is not ripe for judicial review “if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.”[163]

At first pass, the ripeness doctrine is a well-measured constraint. It may well be that a putative plaintiff’s injuries are made unripe by the intervening vagaries of intraparty decision making, an unknowable political climate, and the ever-evolving organizational documents of the political parties. Yet, as compelling as these arguments may be in other contexts, the Miller Icourt raised them and dismissed them. Simply put, “[b]ringing lawsuits on the eve of pending elections disrupts the electoral process.”[164] Where the plaintiffs’ injuries have manifested, as they do with relative ease under Miller I, election law plaintiffs “would suffer undue hardship by waiting until the eve of the election to seek a decision in their case.”[165] Indeed, by obtaining a ruling earlier rather than later, “plaintiffs will have adequate time to make effective campaign decisions,” while “[w]aiting until the last minute to seek a final ruling will severely diminish the effectiveness of these decisions.”[166] At its core, the ripeness inquiry is a balancing act, and the Fourth Circuit has devised weighty counterbalances to dismissing early-filed election suits on ripeness grounds.[167]

Future defendants might opt to countermand Miller I’s (and now the affirming influence of 6th Congressional District) effect by attacking the factual predicates of a plaintiff’s argument.[168] Indeed, the plaintiffs in the 6th Congressional District litigation had come to court with a convincing documentary record and unopposed expert testimony to complement their Miller Iarguments.[169] But where a plaintiff plausibly alleges that the law in question distorted its decision-making processes or whatever comes within the ambit of “campaign planning decisions,” it is difficult to see the plaintiff failing to make out injury-in-fact.[170]

To say the Miller I decision is expansive is not a criticism of it, nor does it suggest that Miller I is an outlier or unfounded. In fact, the Tenth Circuit in New Mexicans for Bill Richardson v. Gonzales[171] and the Third Circuit in Constitution Party of Pennsylvania v. Aichele[172] analyzed similar fact patterns and reached similar holdings. But noting the implications of Miller Idoes show its force.

Yet, to some, the potency of Miller I may not even be all that problematic. First, the rule Miller I encourages the resolution of election law challenges on the merits, and soon enough so that plaintiffs can have their remedy in time for an election.[173]Second, to the extent advocates of judicial restraint seek curtailment, Miller I, itself, may have already supplied the solution. There,[174] as well as in the 6th Congressional District litigation,[175] the issue was presented as a single legal question, without the need for resolution of murky factual questions.[176] Where the legal theory is data-driven or newly enacted laws have uncertain, debatable, or modest influence, ripeness might pose a more serious obstacle to election law plaintiffs than it did in either Miller I or 6th Congressional District.

In any event, 6th Congressional District generated important follow-up questions, and perhaps warning signs, regarding standing in election law cases and the breadth of Miller I.

 B. 24th Senatorial District and Equal Protection

In stark contrast to the generosity of the Miller I standing for committee-plaintiffs is the restrictiveness of the 24th Senatorial District standing for candidate-plaintiffs. The 24th Senatorial District court’s holding that, as a necessary precondition to standing, candidate-plaintiffs must have a legally protectable interest in choosing the method of nomination, is a bombshell and paradigm-shifting.[177] The Fourth Circuit held that neither Virginia law nor the Plan gave the candidate-plaintiff “a legally protected interest” in determining the nomination method, and therefore, the candidate-plaintiff suffered no “invasion of a legally protected interest.”[178] Relatedly, the 24th Senatorial District court concluded that even if it assumed that the candidate had suffered injury from the Incumbent Protection Act, it could not redress that injury because a favorable court decision would not confer upon the candidate the ability to choose the method of nomination.[179] The court observed that even in the absence of the Incumbent Protection Act, a candidate would still be subordinate to the legislative district committee’s selection of nomination.[180] The 24th Senatorial District decision therefore teaches that Equal Protection plaintiffs must allege a deprivation—besidesunequal treatment—that may be restored by a favorable decision.[181]

As intriguing as the holding is, the 24th Senatorial District reasoning appears to be at odds with Equal Protection analyses, broadly. An illustrative case is Northeastern Florida Chapter of Associated General Contractors of America v. City of Jacksonville, where a contractors’ association alleged injury-in-fact by a city ordinance that gave preferential treatment to certain minority-owned businesses.[182] The Court of Appeals held that “petitioner could not establish standing because it failed to allege that one or more of its members would have been awarded a contract but for the challenged ordinance.”[183] The Supreme Court reversed, reasoning:

When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The “injury in fact” in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.[184]

The Supreme Court followed a similar analysis in Clements v. Fashing.[185] There, the plaintiffs alleged Equal Protection injury by the “automatic resignation” provision of the Texas Constitution.[186] That provision mandated immediate resignation of many, but not all, state officeholders upon their announcement of a candidacy for another office. Several plaintiffs alleged that were it not for the consequences of doing so, they would have announced their candidacy.[187] The Supreme Court rejected the claim that the dispute was “merely hypothetical” and that the allegations were insufficient to create an “actual case or controversy.”[188] Importantly, the Court found that the injury was the “obstacle to [the plaintiffs’] candidacy.”[189] Nowhere did the Court lament the failure of the plaintiffs to allege that they actually would have been elected if not for the “automatic resignation” provision.

The common ground among these cases fortifies the notion that the heart of injury under Equal Protection theories is unequal treatment—treatment that undermines the opportunity to compete on an equal basis.[190] Observe that the remedy for a successful Equal Protection claim is not necessarily to obtain the benefit previously withheld; rather, a court might place parties on equal planes by cancelling a benefit previously conferred to the favored class. The principle is well-evidenced in Heckler v. Mathews.[191]

That case centered on a provision of the Social Security Act that required certain male workers (but not female workers) to make a showing of dependency as a condition for receiving full spousal benefits.[192] Interestingly, Congress drafted companion legislation (a “severability clause”) that prevented a court from cancelling the provisions excluding those certain male workers, which would cure the discriminatory treatment by conferring full spousal benefits to those certain male workers.[193] In other words, Congress had enacted legislation that conferred gender-selective benefits, but also drafted away a court’s ability to extend those benefits to the other gender.

The Supreme Court found clear injury in the plaintiff’s allegation that “as a nondependent man, he receive[ed] fewer benefits than he would if he were a similarly situated woman.”[194] Further, the Court found that it could redress the injury—even if it could not increase the spousal benefits given to the nondependent man:

Although the severability clause would prevent a court from redressing this inequality by increasing the benefits payable to [the plaintiff], we have never suggested that the injuries caused by a constitutionally underinclusive scheme can be remedied only by extending the program’s benefits to the excluded class. To the contrary, we have noted that a court sustaining such a claim faces “two remedial alternatives: [it] may either declare [the statute] a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by the exclusion.”[195]

It is enough that the court could withdraw the benefits from the favored class or extend the benefits to an excluded class.[196]Like the spousal benefits conferred in Heckler v. Mathews,[197] the ability to select the method of nomination conferred by the Incumbent Protection Act need not be shared or transferred to afford plaintiffs relief—it need only be withdrawn.

Election law cases, as if on intuition, seem to recognize this principle. For instance, the guarantee of fair competition—that candidates will race on the same course—is found in election law cases beyond the Equal Protection realm. Indeed, “[t]he well-established concept of competitors’ standing” coheres closely with Equal Protection injury.[198] For instance, Texas Democratic Party v. Benkiser, cited by the 24th Senatorial District dissent, considered whether the Texas Democratic Party had standing to challenge the Republican Party of Texas’s use of the Texas election law to strike an unviable Republican candidate from the ballot.[199] The Fifth Circuit found that replacing the unviable Republican candidate would weaken the Democratic candidate’s chances of victory and therefore found injury-in-fact.[200]

To frame the problem in Equal Protection terms: it is hard to conceive how a candidate might receive different treatment under a statutory scheme without “threatened loss of political power.”[201] Accordingly, as long as the distinctive treatment shifts the probability of eventual victory, there is no meaningful difference between Equal Protection injury in the general sense and “competitors’ standing.”

24th Senatorial District is at apparent odds with these holdings and these concepts. Observe that the logic of Benkiser is entirely incompatible with 24th Senatorial District: how could the Texas Democratic Party have a legally protected interest in running against a properly balloted Republican Party of Texas candidate? For that reason, 24th Senatorial District could be read to effectively foreclose Equal Protection claims from persons disfavored by state election law.[202] Rare will be the case that a competitor-plaintiff will be able to demonstrate a legally protectable interest in the substantive right afforded to its adversary; indeed, the challenged grant of power often creates the cause of action in the first place. 24th Senatorial District could likewise amount to the Fourth Circuit leashing “competitors’ standing”; though, the opinion is silent as to why the free reign afforded by the Second, Fifth, and Ninth Circuits to challengers is incorrect.[203]

In any event, future candidate-plaintiffs (or even individuals, registered voters, or members of a political party hoping to challenge unconstitutional laws) will be well-advised to locate legally protected interests outside of unequal treatment or decreased odds of prevailing in the election. Else, they will have the unenviable task of maneuvering the inevitable standing opposition founded on the 24th Senatorial District opinion.

 C. Miller II and Mandatory “Open” Primaries in Virginia

Finally, it is appropriate to say a word about the tangential role of Virginia’s open primary statute in the 6th Congressional District appellate proceedings. The invocation of primaries became pertinent in appellate proceedings when the Commonwealth Defendants contended that they could parlay the Incumbent Protection Act—a scheme that tended to result in primaries—into a constitutionally sanitized mandatory primary system.[204] Though the Fourth Circuit resisted the temptation to characterize the Incumbent Protection Act as a mandatory primary act, it flatly stated: “if [the Incumbent Protection Act] truly were a mandatory primary statute its constitutionality would be ‘too plain for argument.’”[205]

The observation is probative in light of the Fourth Circuit’s previous consideration of the interplay between an incumbent’s use of the Incumbent Protection Act to designate a primary and Virginia’s Open Primary Law.[206] In Miller II,[207] the Fourth Circuit identified constitutional infirmity when the Incumbent Protection Act combined with the Open Primary Law. There, the plaintiffs sought declaratory relief from the Open Primary Law under facial and as-applied theories.[208] The court found that the Open Primary Law was not facially unconstitutional because it had some permissible applications, but went on to decide that an incumbent’s use of the Incumbent Protection Act to compel an open primary violated the party’s associational rights.[209] In so deciding, the Miller II court concluded, as the Board of Elections in that case had conceded, that “if a political party is compelled to select its candidates by means of a state-run primary, the State[] may not force [the] party to include . . . voters [in] that primary.”[210] The court was sensitive to the constitutional harm inflicted by “forced association,” but, it found such harm lacking where the political party could avail itself of other “closed” nomination methods.[211] In other words, if the political party selected a state-run primary, it must take that primary system as it finds it—which, in Virginia, is an “open” primary.[212] But, if a political party desires a closed primary, it is welcome to fund a private one itself.[213]

The danger identified in Miller II was that the Incumbent Protection Act could result in a unique manifestation of forced association because incumbents could impose a state-run “open” primary upon a political party. The holding therefore was narrow. The mixture of the Incumbent Protection Act’s “coercion” with the Open Primary Law’s “forced association” gave rise to the Fourth Circuit’s conclusion that Virginia’s Open Primary Law had unconstitutional applications. The 6th Congressional District litigation removed a necessary component to that constitutionally offensive coupling when it struck down the Incumbent Protection Act.

Because the Miller II court left for another day the propriety of the Open Primary Law when it is not forced upon the party by incumbent fiat, uncertainty remains as to the ramifications of the Fourth Circuit’s open primary holding.[214] To be sure, the Miller II court clearly and repeatedly declined to bestow blanket constitutional blessing upon the Open Primary Law.[215] Yet, in the aftermath of 6th Congressional District, it is difficult to see the genesis of the kind of compulsion found offensive in Miller II. As long as the party has other options—and under Virginia law, a primary is far from mandatory—choosing a primary that the Commonwealth of Virginia requires to be open is hardly “forced.”[216] Yet, consider the Fourth Circuit’s curious dicta—“[i]f [the Incumbent Protection Act] truly were a mandatory primary statute its constitutionality would be ‘too plain for argument.’”[217]Were Virginia to move toward a mandatory primary system, these questions of compulsion would resurface.[218] Indeed, the author of 6th Congressional District, Judge Wilkinson, has already launched a pre-emptive defense of a mandatory open primary.[219] For the time being, however, 6th Congressional District, by excising the Incumbent Protection Act, has removed coercion from the constitutional equation.


In excising the Incumbent Protection Act from the Virginia Code, the judiciary fulfilled its obligation to keep the political process open and well-functioning by striking down manifestly unconstitutional election laws.[220] Yet, the story of the Incumbent Protection Act has little to do with its constitutional merit, and much to do with who could contest that merit. Though the Incumbent Protection Act eventually fell, the various courts and judges found standing lacking more often than not.

In that respect, the extent to which 24th Senatorial District and 6th Congressional District stake out the rights of prospective plaintiffs in election law cases remains to be seen. That these cases constrict and impair some plaintiffs, and boost and progress others, may well ensure that they are mainstays as standing guideposts. But these cases are likewise vulnerable to broad and impactful interpretations not readily susceptible to limitation and not obviously limited in application. For that reason, these cases, like the Incumbent Protection Act, may one day fall away.


        [1].    Act of Mar. 22, 1975, ch. 515, 1975 Va. Acts 1042, 1060–61 (originally codified at Va. Code Ann. § 24.1-172 (Cum. Supp. 1975)).

        [2].    6th Cong. Dist. Republican Comm. v. Alcorn, 913 F.3d 393, 398 (4th Cir. 2019).

        [3].    The “Incumbent Protection Act” is the informal name given to Virginia Code section 24.2-509(B). See, e.g., Marshall v. Meadows, 105 F.3d 904, 905 & n.1 (4th Cir. 1997).

        [4].    6th  Cong. Dist. Republican Comm., 913 F.3d at 399 (“Virginia has not identified a single other state that has a statute like the Incumbent Protection Act[.]”).

        [5].    See, e.g., John Massoud, Commentary: The Death of the Incumbent Protection Act, (Feb. 14, 2018), [https: //].

        [6].    See, e.g., Miller v. Cunningham (Miller III), 512 F.3d 98, 99, 101 (4th Cir. 2007); Adams v. Alcorn, No. 5:15cv00012, 2015 U.S. Dist. LEXIS 43366 at *4, *27 (W.D. Va. Apr. 2, 2015), aff’d sub nom. 24th Senatorial Dist. Republican Comm. v. Alcorn, 820 F.3d 624 (4th Cir. 2016).

        [7].    Va. Code Ann. § 24.2-509(A) (Repl. Vol. 2016). Section 24.2-509(A) states in its entirety:

The duly constituted authorities of the state political party shall have the right to determine the method by which a party nomination for a member of the United States Senate or for any statewide office shall be made. The duly constituted authorities of the political party for the district, county, city, or town in which any other office is to be filled shall have the right to determine the method by which a party nomination for that office shall be made.


        [8].    Id. § 24.2-509(B) (Repl. Vol. 2016). Sentences 1, 5, and 6 are generally applicable procedural rules, and nonsubstantive. Id. The first and fifth sentences of the Incumbent Protection Act define in general terms the scope of the Act’s application. Id. Specifically, the first sentence acknowledges that the Incumbent Protection Act is an exception to the rule of section 24.2-509(A). Id. The fifth sentence provides that the Act does not apply to a nomination in which “no incumbents offer as candidates for reelection to the same office.” Id. The sixth sentence defines incumbency broadly, ensuring that redistricting does not impair an incumbent’s ability to use his or her power under the Incumbent Protection Act. Id. Specifically, it states that “[f]or the purposes of this subsection, any officeholder who offers for reelection to the same office shall be deemed an incumbent notwithstanding that the district which he represents differs in part from that for which he offers for election.” Id. The first, fifth, and sixth sentences of the Incumbent Protection Act apply generally, and were nonfactors during the litigation on the Incumbent Protection Act.

        [9].    Id. § 24.2-510 (Repl. Vol. 2016).

      [10].    See id. § 24.2-508(ii) (Repl. Vol. 2016).

      [11].    Miller v. Brown (Miller II), 503 F.3d 360, 362 (4th Cir. 2007); see also Parson v. Alcorn, 157 F. Supp. 3d 479, 485 (E.D. Va. 2016).

      [12].    Complaint at 2, Adams v. Alcorn, No. 5:15cv00012, 2015 U.S. Dist. LEXIS 43366 (W.D. Va. Apr. 2, 2015), aff’d sub nom. 24th Senatorial Dist. Republican Comm. v. Alcorn, 820 F.3d 624 (4th Cir. 2016).

      [13].    Id. at 3.

      [14].    Adams, 2015 U.S. Dist. LEXIS 43366, at *7.

      [15].    Id. at *2–3, *6–7, *9.

      [16].    Id. at *9.

      [17].    Id. at *2–3; see also Motion to Intervene at 2, Adams, No. 5:15cv00012, 2015 U.S. Dist. LEXIS 43366, ECF No. 17; Order, Adams, No. 5:15cv00012, 2015 U.S. Dist. LEXIS 43366, ECF No. 37. In his complaint, the intervenor candidate Moxley added an Equal Protection claim to the Committee’s First Amendment claims. Motion to Intervene, supra, at 2–3.

      [18].    Adams, 2015 U.S. Dist. LEXIS 43366, at *4, *15 (“Defendants seek dismissal of the plaintiffs’ complaints, as amended, pursuant to Fed. R. Civ. P. 12(b)(1), because the plaintiffs lack standing.”).

      [19].    Id. at *2, *5–7, *9, *12–13.

      [20].    Id. at *2, *5.

      [21].    Id. The Plan provision concerning the General Assembly candidates reads: “The Legislative District Committee shall determine whether candidates for Legislative District public office shall be nominated by Mass Meeting, Party Canvass, Convention or Primary, where permitted to do so under Virginia Law.” 24th Senatorial Dist. Republican Comm. v. Alcorn, 820 F.3d 624, 630 (4th Cir. 2016) (quoting Art. V, § D(1)(a) of the Plan).

      [22].    In this first litigation, neither the district court nor the Fourth Circuit detected any difference between the 24th Senatorial Committee and its chairman for standing purposes. In all material respects, they were treated as a consolidated party. See Adams, 2015 U.S. Dist. LEXIS 43366, at *2 (“The original plaintiffs are the 24th Senatorial District Republican Committee, which is a local committee of the Republican Party of Virginia (“RPV” or “the Party”), and its chairman, Kenneth H. Adams (collectively, ‘the Committee’)”) (emphasis added); 24th Senatorial Dist., 820 F.3d at 627.

      [23].    24th Senatorial Dist., 820 F.3d at 632 (“We conclude that the language of the Plan is clear and unambiguous.”).

      [24].    Id. at 631 (citing Hitachi Credit Am. Corp. v. Signet Bank, 166 F.3d 614, 624 (4th Cir. 1999)).

      [25].    See id. at 631–32.

      [26].    Id.

      [27].    See, e.g., id. at 630 (“We have previously held that where an alleged injury is caused by a voluntary choice made by the Virginia Republican Party and not the challenged state law, plaintiffs do not establish causation.”) (internal quotation marks and citations omitted); Adams, 2015 U.S. Dist. LEXIS 43366, at *16 (“If the ‘alleged injury is caused by a voluntary choice made by the Virginia Republican party and not the [statute], the plaintiffs have not established causation,’ and have not shown that any injury is redressable by striking down the statute.”).

      [28].    24th Senatorial Dist., 820 F.3d at 632–33.

      [29].    See id.

      [30].    Id. at 634 (Traxler, C.J., dissenting).

      [31].    Id. at 636.

      [32].    Id. at 636–37 (citing DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463, 469 (2015)).

      [33].    Id. at 638.

      [34].    The majority disagreed with Chief Judge Traxler’s reliance on the DIRECTV, Inc. v. Imburgia Supreme Court decision. Id. at 632 & n.2. They distinguished DIRECTVas applying to incorporations of state law that had already been invalidated, rather than state law that was merely being challenged by the lawsuit at hand. Id.

      [35].    Appellants’ Petition for Rehearing En Banc, 24th Senatorial Dist., 820 F.3d 624 (4th Cir. 2016) (Nos. 15-1478, 15-1483), ECF Nos. 62, 63; Order, 24th Senatorial Dist., 820 F.3d 624 (4th Cir. 2016) (Nos. 15-1478, 15-1483) ECF Nos. 62, 63.

      [36].    24th Senatorial Dist., 820 F.3d at 633.

      [37].    Id.

      [38].    Id.; see supra note 17.

      [39].    See supra note 17.

      [40].    See discussion infra Parts III.B–C.

      [41].    24th Senatorial Dist., 820 F.3d at 633.

      [42].    Id.

      [43].    Id. at 633–34.

      [44].    See supra notes 23–26 and accompanying text.

      [45].    See supra notes 41–43 and accompanying text.

      [46].    Complaint at 2, Fitzgerald v. Alcorn, 285 F. Supp. 3d 922 (W.D. Va. 2018), aff’d sub nom. 6th Cong. Dist. Republican Comm. v. Alcorn, 913 F.3d 393 (4th Cir. 2019) (No. 5:17-cv-16), ECF No. 1.

      [47].    Id.

      [48].    Id. at 1–2.

      [49].    Id. at 1; see supra note 12 and accompanying text.

      [50].    See Fitzgerald, 285 F. Supp. 3d at 927–28.

      [51].    Id. at 932 (“[T]he 6th Congressional Committee presents no similar causation or redressability issues because Article IV of the Plan does not include the ‘where permitted to do so’ language.”).

      [52].    Id. at 930.

      [53].    Fitzgerald v. Alcorn, No. 5:17-cv-16, 2017 U.S. Dist. LEXIS 116614, at *1 (W.D. Va. July 25, 2017). The Commonwealth Defendants filed a motion to dismiss seeking the dismissal of almost every plaintiff, and the Court granted it only with respect to the candidate-plaintiffs. The standing of the remaining plaintiffs were evaluated on cross-motions for summary judgment. Id.

      [54].    Id. at *2–3.

      [55].    Id. at *6 (“[B]inding Fourth Circuit precedent indicates that Candidate Plaintiffs lack standing to pursue their claims and must be dismissed.”).

      [56].    Id. (“[C]ounsel for plaintiffs did not try to distinguish 24th Senatorial [District]’s  treatment of Moxley from Candidate Plaintiffs’ circumstances. Rather, counsel contended that the Fourth Circuit simply got the issue wrong in 24th Senatorial [District] and pointed to other precedent more favorable to Candidate Plaintiffs’ standing arguments.”).

      [57].    Fitzgerald, 285 F. Supp. 3d at 945.

      [58].    See id.

      [59].    Id.

      [60].    Id.  (“Because neither Virginia law nor the Plan gives Moxley ‘a legally protected interest’ in determining the nomination method in the first place, he fails to make out ‘an invasion of a legally protected interest,’ i.e. actual injury, in this case. . . .  The same conclusions apply to the individual-plaintiffs in this case: none have a legally protected interest in determining a nomination method.”) (quoting 24th Senatorial Dist. Republican Comm. v. Alcorn, 820 F.3d 624, 633 (4th Cir. 2016)).

      [61].    Id. at 945–46.

      [62].    Va. Code Ann. § 24.2-1001(A) (Repl. Vol. 2016). Under Virginia law, a Class 1 misdemeanor is subject to “confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both.” Va. Code Ann. § 18.2-11(a) (Repl. Vol. 2014).

      [63].    Fitzgerald, 285 F. Supp. 3d at 947.

      [64].    Id. at 946 n.19 (explaining that the prior litigation involving chairmen-plaintiffs had considered the party chairmen as bringing claims and having standing derivative of their respective committees).

      [65].    Id. at  947.

      [66].    See id. at 947.

      [67].    Id.

      [68].    Id. at 932 (“Article V of the Party’s Plan states that the 20th House Committee is permitted to select a nomination method ‘where permitted to do so under Virginia Law.’”).

      [69].    Id. at 938 (“The Resolution was not presented to the district court in the prior challenge to the Act.”).

      [70].    Id. at 938–39.

      [71].    Id. at 938; see also 24th Senatorial Dist. Republican Comm. v. Alcorn, 820 F.3d 624, 632 (4th Cir. 2016) (“[T]he Committee’s suggestion that the district court erred by failing to secure a definitive interpretation of the Plan from the Party is untimely and therefore waived, as any request should have been made to the district court.”).

      [72].    Fitzgerald, 285 F. Supp. 3d at 939 (“The 20th House Committee argues that the Resolution, which has now been properly entered into the record, reflects a new fact that distinguishes this case from 24th Senatorial [District].”).

      [73].    Id. at 938–39.

      [74].    Id. at 939–41.

      [75].    Id. at 941–42.

      [76].    201 Va. 49, 58, 109 S.E.2d 392, 398 (1959).

      [77].    Fitzgerald, 285 F. Supp. 3d at 939–42 (“Given the Fourth Circuit’s holding that the ‘where permitted to do so’ language is clear and unambiguous, the only way in which a General Assembly committee could demonstrate causation is to persuade the Party to amend the Plan.”).

      [78].    Id. at 939–40 (quoting Folkes, 201 Va. at 58, 109 S.E.2d at 398).

      [79].    Id. at 941.

      [80].    Id. at 942 (“The 20th House Committee fails to show causation and will be dismissed from the case.”).

      [81].    Id. at 932. However, the 6th Congressional Committee is governed by article IV of the Plan, and—crucially—that article does not contain “where permitted to do so under Virginia Law.” Id. (“Article V of the Party’s Plan states that the 20th House Committee is permitted to select a nomination method ‘where permitted to do so under Virginia Law.’”). In 24th Senatorial District, the Fourth Circuit concluded that this language incorporated the Act, and therefore, the alleged injury was caused by the Party’s Plan, not the Act. 820 F.3d 624, 630–33 (4th Cir. 2016) (dismissing a committee-plaintiff for failing to show causation element of standing). “However, the 6th Congressional Committee presents no similar causation or redressability issues because Article IV of the Plan does not include the ‘where permitted to do so’ language.” Fitzgerald, 285 F. Supp. 3d at 932. In the words of the district court: “the 6th Congressional Committee’s power to select a nomination method is limited only by the Act, not the Party’s voluntary choice to restrict its authority.”      Id. Unconstrained by the language of the Plan, the 6th Congressional Committee set up a clean challenge to the Incumbent Protection Act.

      [82].    Fitzgerald, 285 F. Supp. 3d at 942 (“The 6th Congressional Committee’s injury is not ‘caused by a voluntary choice made by the Virginia Republican Party.’ Rather, the [Incumbent Protection] Act is the sole cause of its injury.”) (quoting Marshall v. Meadows, 105 F.3d 904, 906 (6th Cir. 1997)).

      [83].    Id. at 932 (citing Williams v. Rhodes, 393 U.S. 23, 30 n.6 (1968)).

      [84].    Id. (“Whether this alleged injury is actual or threatened, however, requires closer examination.” Id. (quoting Miller v. Brown (Miller I), 462 F.3d 312, 316 (4th Cir. 2006))).

      [85].    Id. at 927.

      [86].    Id. at 933 n.9 (“[D]efendants argue that an incumbent and a party committee need to at least announce their intentions to select different methods of nomination for an upcoming cycle.”).

      [87].    Id. at 934.

      [88].    Id.

      [89].    Id. at 935, 950. It is worth observing that Dr. Jenkins’s testimony was crucial to several aspects to the litigation. Not only was Dr. Jenkins’s testimony relied on by the district court in assessing standing, but his testimony also became indispensable to the Fourth Circuit in its strict scrutiny analysis. 6th Cong. Dist. Republican Comm. v. Alcorn, 913 F.3d 393, 404 (4th Cir. 2019); Fitzgerald, 285 F. Supp. 3d at 935. Dr. Jenkins’s role in interweaving data with theory to create a narrative affirms what is evident from other election law cases: that expert testimony from statisticians or political scientists is indispensable. Compare Parson v. Alcorn, 157 F. Supp. 3d 479, 490 (E.D. Va. 2016) (finding that plaintiff’s sole witness simply lacked evidentiary basis to testify regarding African American voting patterns), with Lee v. Va. State Bd. of Elections, 188 F. Supp. 3d 577, 606–07 (E.D. Va. 2016), aff’d, 843 F.3d 592 (4th Cir. 2016) (evidencing battling experts over whether Virginia’s voter identification law unconstitutionally suppressed minority and young voters).

      [90].    See supra note 62 and accompanying text.

      [91].    Fitzgerald, 285 F. Supp. 3d at 935 (citing Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)).

      [92].    Id. at 932–33 n.9 (“[D]efendants argue that an incumbent and a party committee need to at least announce their intentions to select different methods of nomination for an upcoming cycle.”).

      [93].    462 F.3d 312 (4th Cir. 2006).

      [94].    See discussion infra Part III.A; 462 F.3d 312 (4th Cir. 2006).

      [95].    Va. Code Ann. § 24.2-530 (Repl. Vol. 2011) (“All persons qualified to vote, pursuant to §§ 24.2-400 through 24.2-403, may vote at the primary. No person shall vote for the candidates of more than one party.”).

      [96].    Miller v. Brown (Miller I), 462 F.3d 312, 315–16 (4th Cir. 2006).

      [97].    Miller v. Brown, 394 F. Supp. 2d 794, 798, 803 (E.D. Va. 2005).

      [98].    Id. at 798–99.

      [99].    Id. at 802.

    [100].    Id. at 802–03.

    [101].    Miller I, 462 F.3d at 317–18, 321 (citation omitted).

    [102].    Id. at 318 (citation omitted).

    [103].    A discussion of the expanse of this language is found infra at Part III.A.

    [104].    Fitzgerald v. Alcorn, 285 F. Supp. 3d 922, 936–37 (W.D. Va. 2018) (citation omitted).

    [105].    Id. at 936.

    [106].    Id. at 932 (citation omitted) (“In December 2016, Delegate Bell informed the 20th House Committee that he would choose a convention as the method of nomination for the 2017 general election. Independent of Delegate Bell’s choice, the 20th House Committee also preferred a convention.”).

    [107].    Id. at 937.

    [108].    See supra text accompanying note 81–82.

    [109].    See supra text accompanying notes 8–9. The second and third sentences apply to General Assembly offices, and the fourth sentence applies to other offices (such as Congress). In short, the General Assembly incumbents had the absolute right to choose the nomination method, and the non-General Assembly incumbents (previously selected by primary) had a veto over the use of a nonprimary method.

    [110].    6th Cong. Dist. Republican Comm. v. Alcorn, 913 F.3d 393, 400 (4th Cir. 2019); Fitzgerald, 285 F. Supp. 3d at 948.

    [111].    Cal. Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (quoting Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 224 (1989)); see, e.g., 6th Cong. Dist. Republican Comm., 913 F.3d at 402 (“The Supreme Court is ‘vigorous[]’ in affirming the ‘special protection’ owed to the associational rights of political parties as they pertain to the parties’ choice of nominees.”).

    [112].    6th Cong. Dist. Republican Comm., 913 F.3d at 403 (citing Cal. Democratic Party, 530 U.S. at 581–82).

    [113].    Id. at 403.

    [114].    Id. at 404 (emphasis omitted).

    [115].    Cal. Democratic Party, 530 U.S. at 572 (quoting Am. Party of Tex. v. White, 415 U.S. 767, 781 (1974)).

    [116].    See, e.g., N.Y. State Bd. of Elections v. Torres, 552 U.S. 196, 203 (2008); Tashjian v. Republican Party of Conn., 479 U.S. 208, 237 (1986) (Scalia, J., dissenting); Am. Party of Tex., 415 U.S. at 781 (1974).

    [117].    Brief of Defendants-Appellants at 2, 13–14, 6th Cong. Dist. Republican Comm., 913 F.3d 393 (No. 18-1111), ECF No. 44.

    [118].    Id.

    [119].    The eventual opinion from the Fourth Circuit suggests that the strategy was well-conceived. 6th Cong. Dist. Republican Comm., 913 F.3d at 404 (“If [the Incumbent Protection Act] truly were a mandatory primary statute its constitutionality would be ‘too plain for argument.’”). Though ultimately rejected, the Supreme Court’s “too plain for argument” language seems to have exerted some influence on the opinion, most obviously manifesting in the opinion’s conclusion:

Our decision is a narrow one. It is directed at a discrete constitutional imbalance created by permitting single office holders to negate the associational rights of political parties in an area central to the party’s very reason for being. Our ruling in no way limits the ability of states to enact “reasonable regulations of parties, elections, and ballots.”

Id. at 408 (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997)).

    [120].    Brief of Defendants-Appellants, supra note 117, at 30–31.

    [121].    Id. at 25–30.

    [122].    6th Cong. Dist. Republican Comm., 913 F.3d at 404.

    [123].    Id.

    [124].    Id. (citations omitted).

    [125].    The Commonwealth Defendants made virtually no argument that the Incumbent Protection Act could survive strict scrutiny. See id.

    [126].    Id. at 405.

    [127].    Fitzgerald v. Alcorn, 285 F. Supp. 3d 922, 953 (W.D. Va. 2018), aff’d sub nom. 6th Cong. Dist. Republican Comm. v. Alcorn, 913 F.3d 393 (4th Cir. 2019) (“The 6th Congressional Committee requests an injunction that prohibits the Board and the Department from enforcing the entirety of Virginia Code section 24.2-509(B).”).

    [128].    Brief of Defendants-Appellants, supra note 117, at 25–30; Response Brief of Appellee at 46–58, 6th Cong. Dist. Republican Comm., 913 F.3d 393 (No. 18-1111), ECF No. 51.

    [129].    413 U.S. 601, 613 (1973).

    [130].    466 U.S. 789, 799–801 (1984).

    [131].    467 U.S. 947, 958–59 (1984).

    [132].    Brief of Defendants-Appellants, supra note 117, at 33–40; Response Brief of Appellee, supra note 128, at 47–51.

    [133].    Response Brief of Appellee, supra note 128, at 46–58.

    [134].    Id. at 8.

    [135].    Id.

    [136].    6th Cong. Dist. Republican Comm. v. Alcorn, 913 F.3d 393, 406 (4th Cir. 2019) (citations omitted).

    [137].    Id. at 407 (“[T]he congressional nomination forms were inexplicably changed for the 2016 congressional elections to reflect the Act’s more fulsome General Assembly protections instead.”).

    [138].    Id. at 399–400, 406.

    [139].    This is so because the Department of Elections would need different information for congressional offices to know if the Act applied, such as if the candidate had previously selected by a primary.

    [140].    6th Cong. Dist. Republican Comm., 913 F.3d at 406.

    [141].    Id.

    [142].    Response Brief of Appellee, supra note 128, at 11.

    [143].    6th Cong. Dist. Republican Comm., 913 F.3d at 406 (“It is plain therefore that, on those facts, the Committee suffered a sufficiently ‘concrete’ injury in fact to sustain its challenge to the second and third sentences of the Act. Because of the forms, any candidate that the 6th Congressional Committee wished to recruit, or anyone contemplating an electoral challenge to the incumbent, faced the prospect of having to compete in a nomination process selected by that incumbent.”).

    [144].    See Fitzgerald v. Alcorn, 285 F. Supp. 3d 922, 955–56 (W.D. Va. 2018), aff’d sub nom. 6th Cong. Dist. Republican Comm. v. Alcorn, 913 F.3d 393 (4th Cir. 2019); see also Brief of Defendants-Appellants, supra note 117, at 25–40; Response Brief of Appellee, supra note 128, at 46–58.

    [145].    6th Cong. Dist. Republican Comm., 913 F.3d at 408.

    [146].    Indeed, an important and unmentioned aspect of the second litigation was the district court’s stay of its injunction to eliminate confusion on the eve of an election cycle, Fitzgerald v. Alcorn, No. 5:17-cv-16, 2018 U.S. Dist. LEXIS 18942, at *6 (W.D. Va. Feb. 5, 2018) (“Given the election decisions that need to be made as early as this Wednesday for the 2018 election cycle, the court finds that the public interest in avoiding confusion in the impending nominating process weighs in favor of granting a stay pending appeal.”), and then its vacating the stay when the imminence of the election passed. Fitzgerald v. Alcorn, No. 5:17-cv-16, 2018 U.S. Dist. LEXIS 163883, at *9 (W.D. Va. Sept. 24, 2018) (“Vacatur of the stay now provides defendants months to notify their party chairpersons of the injunction.”).

    [147].    Fitzgerald, 285 F. Supp. 3d at 933 n.9 (“[D]efendants argue that an incumbent and a party committee need to at least announce their intentions to select different methods of nomination for an upcoming cycle.”).

    [148].    Id. at 932. Marshall v. Meadows contained a facially similar fact pattern in that the candidate and party had both selected an open primary as the method of nomination, but the Fourth Circuit declined to analyze injury-in-fact as the plaintiffs “unquestionably” failed to demonstrate causation or redressability. 105 F.3d 904, 906 (4th Cir. 1997); see also Miller I, 462 F.3d at 318 (distinguishing Marshall v. Meadows).

    [149].    Fitzgerald, 285 F. Supp. 3d at 932–33.

    [150].    Id. at 933.

    [151].    Suggestion of Mootness and Motion to Vacate the District Court’s Judgment and Injunction  at 2,  6th Cong. Dist. Republican Comm. v. Alcorn, 913 F.3d 393 (4th Cir. 2019) (No. 18-1111), ECF No. 25.

    [152].    Id. at 5.

    [153].    Id. at 6.

    [154].    The exception applies when “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” FEC v. Wisc. Right to Life, Inc., 551 U.S. 449, 462 (2007) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)). Election-related disputes are among the cases most commonly found to be “capable of repetition, yet evading review.” See, e.g., Davis v. FEC, 554 U.S. 724, 735 (2008); Int’l Org. of Masters v. Brown, 498 U.S. 466, 473 (1991); Storer v. Brown, 415 U.S. 724, 737, n.8 (1974); Moore v. Ogilvie, 394 U.S. 814, 816 (1969).

    [155].    Suggestion of Mootness and Motion to Vacate the District Court’s Judgment and Injunction, supra note 151, at 7–10.

    [156].    Fitzgerald v. Alcorn, 285 F. Supp. 3d 922, 932 (W.D. Va. 2018), aff’d sub nom. 6th Cong. Dist. Republican Comm. v. Alcorn, 913 F.3d 393 (4th Cir. 2019). To be sure, the plaintiffs did not simply point to Miller I, but they procured expert testimony corroborating the injuries envisioned by Miller I. Id. at 935. In particular, plaintiffs’ expert, Dr. Jeffrey Jenkins, testified in deposition that effects of the Act entered into the political calculus well in advance of the nomination period. Id. (“Jenkins states that ‘the mere existence of the Act may add . . . uncertainty for potential high-quality challengers (and the staff, volunteers, and donors who would consider committing to their campaign).’”).

    [157].    See supra note 154.

    [158].    6th Cong. Dist. Republican Comm., 913 F.3d at 407–08.

    [159].    Id. at 407 n.2 (citation omitted).

    [160].    See, e.g., Greenville Cty. Republican Party Exec. Comm. v. Greenville Cty. Election Comm’n, 604 F. App’x 244, 255 (4th Cir. 2015) (distinguishing Miller I on the basis that the alleged injury was fairly traceable to the political party itself, not the challenged statutory system).

    [161].    Rescue Army v. Mun. Court of Los Angeles, 331 U.S. 549, 584 (1947).

    [162].    Franks v. Ross, 313 F.3d 184, 194 (4th Cir. 2002) (quoting Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998)).

    [163].    South Carolina v. United States, 912 F.3d 720, 730 (4th Cir. 2019) (internal quotations and citations omitted).

    [164].    Miller v. Brown (Miller I), 462 F.3d 312, 320 (4th Cir. 2006).

    [165].    Id. at 321.

    [166].    Id. (“The plaintiffs’ injuries become worse each day decision is delayed.”).

    [167].    Cf. Cooksey v. Futrell, 721 F.3d 226, 240 (4th Cir. 2013) (“Much like standing, ripeness requirements are also relaxed in First Amendment cases.”).

    [168].    See, e.g., Ravalli Cty. Republican Cent. Comm. v. McCulloch, 154 F. Supp. 3d 1063, 1074, 1076 (D. Mont. 2015) (rejecting plaintiff’s argument that Miller I, without supporting evidence, was enough to decide the constitutionality of a statute on the merits).

    [169].    Fitzgerald v. Alcorn, 285 F. Supp. 3d 922, 935–36 (W.D. Va. 2018), aff’d sub nom. 6th Cong. Dist. Republican Comm. v. Alcorn, 913 F.3d 393 (4th Cir. 2019).

    [170].    “[T]o establish standing depends considerably upon whether the plaintiff is himself an object of the action . . . . If he is, there is ordinarily little question that the action or inaction has caused him injury . . . .” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561–62 (1992).

    [171].    64 F.3d 1495, 1500 (10th Cir. 1995).

    [172].    757 F.3d 347, 366–67 (3d Cir. 2014).

    [173].    To be sure, courts have often remarked on the “relaxed” justiciability rules surrounding election law cases. See, e.g., Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 300 n.12 (1979) (“Challengers to election procedures often have been left without a remedy in regard to the most immediate election because the election is too far underway or actually consummated prior to judgment.”); Hall v. Sec’y, Alabama, 902 F.3d 1294, 1303 (11th Cir. 2018) (“[R]egarding election cases, candidates have often been allowed to challenge restrictions on candidacy after completion of the election immediately involved and without any showing of plans to become involved in any future election.”) (internal quotation marks omitted).

    [174].    Miller v. Brown (Miller I), 462 F.3d 312, 319 (4th Cir. 2006) (“The only issue in the case is whether Virginia’s open primary law violates the plaintiffs’ First Amendment rights to freely associate, which presents a purely legal question.”).

    [175].    Fitzgerald v. Alcorn, 285 F. Supp. 3d 922, 944 (W.D. Va. 2018), aff’d sub nom. 6th Cong. Dist. Republican Comm. v. Alcorn, 913 F.3d 393 (4th Cir. 2019) (citing to Miller I’s discussion of ripeness and stating “[t]he same is true as regards the Incumbent Protection Act at issue in this case”).

    [176].    In the 6th Congressional District litigation, such a statement is belied by the voluminous record framing the injuries suffered by the plaintiffs. See Fitzgerald, 285 F. Supp. 3d at 930 n.8 & 934–35.

    [177].    24th Senatorial Dist. Republican Comm. v. Alcorn, 820 F.3d 624, 633 (4th Cir. 2016); see supra text accompanying notes 41–43. As of writing, the authors have located no cases citing to the decision as a basis to dismiss a plaintiff seeking relief on Equal Protection grounds.

    [178].    24th Senatorial Dist., 820 F.3d at 633.

    [179].    Id.

    [180].    Id. (“Accordingly, even if the Act were held unconstitutional, the Party is not precluded from ‘voluntarily elect[ing]’ to defer to the incumbent’s choice, ‘which it is legally entitled to do.’ And ‘there is nothing [we] can do to prevent’ the Party from deferring to the incumbent’s choice.”) (citation omitted).

    [181].    Cf. id. at 635 n.3 (Traxler, C.J., dissenting) (“[The challenging candidate’s] alleged interest in depriving his opponent of that advantage, and thereby increasing his own prospects for winning the nomination, is sufficient to establish his standing.”).

    [182].    508 U.S. 656, 658–61 (1993).

    [183].    Id. at 664.

    [184].    Id. at 666.

    [185].    457 U.S. 957, 962 (1982).

    [186].    Id. at 960.

    [187].    Id. at 962.

    [188].    Id.

    [189].    Id. (emphasis added).

    [190].    Gratz v. Bollinger, 539 U.S. 244, 262 (2003) (finding the denial of an opportunity to compete for admission to college on an equal basis to be adequate to confer standing).

    [191].    465 U.S. 728 (1984).

    [192].    Id. at 731.

    [193].    Id. at 736–37 (describing the legislation as “an effort by Congress to mandate the outcome of any challenge to the validity of the [pension offset] exception by making such a challenge fruitless. Even if a plaintiff achieved success in having the gender-based classification stricken, he would derive no personal benefit from the decision, because the pension offset would be applied to all applicants without exception”) (internal quotation marks omitted).

    [194].    Id. at 738.

    [195].    Id. (quoting Welsh v. United States, 398 U.S. 333, 361 (1970) (Harlan, J., concurring)).

    [196].    Id. at 740.

    [197].    Id.

    [198].    See Schulz v. Williams, 44 F.3d 48, 53 (2d Cir. 1994).

    [199].    24th Senatorial Dist. Republican Comm. v. Alcorn, 820 F.3d 624, 634–35 n.3 (4th Cir. 2016) (Traxler, C.J., dissenting); Tex. Democratic Party v. Benkiser, 459 F.3d 582, 586 (5th Cir. 2006).

    [200].    Benkiser, 459 F.3d at 586.

    [201].    Id. at 587.

    [202].    Heckler v. Mathews, 465 U.S. 728, 739 (1983) (“[T]he right to equal treatment guaranteed by the Constitution is not co-extensive with any substantive rights to the benefits denied the party discriminated against.”).

    [203].    24th Senatorial Dist., 820 F.3d at 633 (disregarding contrary opinions as “out of circuit”).

    [204].    See supra note 119.

    [205].    6th Cong. Dist. Republican Comm. v. Alcorn, 913 F.3d 393, 404 (4th Cir. 2019).

    [206].    Va. Code Ann. § 24.2-530 (Repl. Vol. 2011).

    [207].    503 F.3d 360 (4th Cir. 2007).

    [208].    Id. at 363.

    [209].    Id. at 371.

    [210].    Id. at 368 (quoting Opening Brief at 16, Miller II, 503 F.3d 360 (4th Cir. 2016)).

    [211].    Id. at 367 (“Virginia allows political parties to nominate candidates not only by state-run primary but also by other methods controlled and funded by the party. And, by merely choosing any of these other options, a party is free to limit its candidate selection process to voters who share its political views.”).

    [212].    See id. at 368 (“[A] party is free to select from various methods of nomination in which it can exclude voters who do not share its views—including a closed primary conducted and funded by the party. It is only when the party chooses to hold a primary operated and funded by the state that it must allow all voters to participate.”).

    [213].    Id. at 362 & n.3 (“A firehouse primary is the functional equivalent of a state-run primary except that the party operates and funds the entire process.”).

    [214].    Miller v. Cunningham, 512 F.3d 98, 106 (4th Cir. 2007) (Wilkinson, J., dissenting from decision to deny rehearing en banc) (“To repeat once more: clarity in election law is critically important, and the implications of the panel’s decision are not clear.”).

    [215].    Miller II, 503 F.3d at 367 (“Here, we need not decide whether Virginia’s open primary statute, viewed in isolation, impermissibly burdens a political party’s right to associate with those who share its beliefs.”); id. at 366–67 n.6 (“In any event, we need not resolve today whether the act of voting in one party’s primary affiliates a voter with the party sufficiently to protect the party’s right to associate with those who share its political beliefs.”).

    [216].    Id. at 368 (“[B]ecause Virginia makes available to political parties multiple options for restricting their candidate selection process to individuals of their choosing, the refusal by the state to fund and operate a closed primary does not burden parties’ right of association.”).

    [217].    6th Cong. Dist. Republican Comm. v. Alcorn, 913 F.3d 393, 404 (4th Cir. 2019).

    [218].    See generally Miller, 512 F.3d at 105–12 (Wilkinson, J., dissenting from decision to deny rehearing en banc) (discussing the constitutionality of Virginia’s open primary law despite the 4th Circuit’s decision not to address the issue).

    [219].    Id.

    [220].    United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).

An Analysis of Intentional Infliction of Emotional Distress Claims in the Virginia Workplace

An Analysis of Intentional Infliction of Emotional Distress Claims in the Virginia Workplace

Dr. Stephen Allred, An Analysis of Intentional Infliction of Emotional Distress Claims in the Virginia Workplace, 54 U.R. L. Rev. 283 (2019).

Click here to download PDF.

Dr. Stephen Allred *


Linda Bodewig enjoyed her job as a cashier at her local K-Mart in Oregon, and she had worked there without incident until the evening of March 29, 1979.[1] That evening, she was ringing up the sale of some curtains for a customer named Alice Golden, but when she called out the price, Golden told her that the curtains were on sale and that Bodewig was overcharging her.[2] Bodewig asked a coworker to go check the price of the curtains, and as Golden accompanied the coworker to go to the aisle where the curtains were displayed, Bodewig set aside Golden’s purchases and continued to check out other waiting customers.[3]

Golden returned about ten minutes later, and then asked Bodewig what she had done with her money.[4] Bodewig replied, “What money?” and Golden answered that she had left twenty dollars on top of the merchandise she had stacked on the counter, and that it was now missing.[5] Golden became loud and argumentative, which soon attracted the attention of the K-Mart manager.[6] After a check of the surrounding area and an audit of the cash register revealed no missing money, the manager then told Bodewig to accompany a female assistant manager to the women’s public restroom, where she would be strip-searched in order to prove to Golden that she didn’t have the money on her person.[7] Golden was allowed to watch as Bodewig removed all her clothes except her underwear, at which point Golden said further disrobing was unnecessary, as she could see through Bodewig’s underwear and there was no money there.[8]

Bodewig then returned to her work station at the checkout counter and completed her shift.[9] When Bodewig came back to work the next day, however, she was told to work her register along with a second employee, which Bodewig understood to mean that she was under surveillance.[10] Angry and embarrassed, Bodewig quit her job at the K-Mart when her shift ended that day.[11] But rather than simply moving on, Linda Bodewig brought a tort action in the Oregon court for intentional infliction of emotional distress, seeking damages against both her former employer and Golden.[12] Bodewig, a modest woman in her twenties, alleged that as a result of her being subjected to a strip search and close monitoring by her employer, she experienced “two or three sleepless nights, cried a lot and still [got] nervous and upset when she [thought] about the incident.”[13]

Like numerous other courts around the country, the Oregon courts had recognized the tort of intentional infliction of emotional distress by the time Linda Bodewig brought her claim.[14] Indeed, the notion that an employee could seek damages for the tort of outrageous conduct on the part of his or her employer was being increasingly accepted in many state courts in the 1970s. In one of the first major cases, the 1970 decision of Alcorn v. Anbro Engineering, Inc., the California Supreme Court held that the tort claim could succeed where an employer simply condoned the use of profane and abusive epithets made by a supervisor to his employees.[15] Other courts soon followed California’s lead in taking a broad view of intentional infliction of emotional distress claims.[16] But Virginia courts would not be among them. For although the tort of intentional infliction of emotional distress is recognized in Virginia, the standards for successfully making the claim are extraordinarily high. While some state courts seem to have readily embraced the tort, Virginia courts have largely looked with disfavor on intentional infliction of emotional distress claims.

This Article first traces the development of the tort of intentional infliction of emotional distress as applied to the workplace in the Commonwealth of Virginia in Part I, and offers some observations about the significant hurdles a plaintiff may face in trying to successfully hold an employer accountable for conduct that many in our society would deem unacceptable. After reviewing the evolution of the doctrine since it was first recognized in Virginia nearly fifty years ago in Part II, Part III returns to the incident described above involving Linda Bodewig and her employer, and offers an analysis of how her case would likely be decided in the Virginia courts today—and whether that decision would be the right one.

I.  Early Recognition of Damages for Emotional Distress in Virginia Tort Claims

The term “emotional distress” is not self-defining, and is one that historically has been viewed with some skepticism.[17] This part traces the origins of tort claims for emotional distress in Virginia to show how the courts first dealt with the issue in the context of negligence and defamation claims, and how that analysis foreshadowed the development of the tort of intentional infliction of emotional distress. As will be explored in the next section, the tort of intentional infliction of emotional distress is a relatively recent phenomenon, one that presents difficult issues, including what counts as “severe emotional distress” and how to calculate damages. However, it is important to note that damages for emotional distress had been sought by plaintiffs seeking recovery using traditional tort claims in Virginia for many years before the emergence of the intentional infliction of emotional distress tort.

One of the first Virginia cases to consider the question of whether the tort of negligence on the part of a defendant might subject him or her to damages arising from emotional distress suffered by a plaintiff is Connelly v. Western Union Telegraph Co.[18] In that 1902 case, the Supreme Court of Appeals of Virginia recognized the claim of negligently inflicted emotional distress, but added that “mental anguish and suffering resulting from mere negligence, unaccompanied with injuries to the person, cannot be made the basis of an action for damages.”[19] The plaintiff Connelly had not alleged any physical injury, only shock and outrage for the failure of Western Union to timely notify him of his father’s death and subsequent funeral, and so the court dismissed his claim.[20] This became known as the “physical impact rule,” which limited the ability of plaintiffs to recover damages for emotional distress in negligence cases.[21]

In addition to negligence claims, the Virginia courts considered the question of damages for emotional distress in defamation cases. The 1932 case of Bowles v. May[22] is illustrative. In that case, a defamation claim was brought by a husband who was upset with his neighbor, Bowles, who had entered his house and insulted his wife, Mrs. May.[23] The plaintiff also claimed that Bowles had spread rumors among their neighbors about his wife’s alleged infidelity.[24] A few days after this incident, Mrs. May suffered a stroke, and her husband sought damages for her mental suffering.[25]

Although the court focused primarily on the question of whether a qualified privilege to defamation on the part of the defendant Bowles existed, the court went on to address the issue of independent recovery for willfully inflicted emotional distress, stating:

There is a sharp conflict in the authorities as to whether there can be a recovery for fright or mental shock unaccompanied by contemporaneous injury when the action is based upon mere negligence. However, it seems settled in Virginia that there can be no recovery for mental anguish and suffering resulting from negligence unaccompanied by contemporaneous physical injuries to the person.[26]

Rejecting the argument that calculating mental injuries is too difficult an endeavor for a court or a jury to undertake, and that the damages would more often be more assumed than real, the Bowles court held that severe mental shock may be the direct and proximate cause of wreck to the nervous system, the consequence of which may be a visible physical injury. When such fright is due to a wilful [sic], wanton and vindictive wrong, recovery is generally permitted, notwithstanding the fact that there is no contemporaneous injury from without.[27]

However, the court held that Mr. May did not prove by clear and convincing evidence that Bowles’ statements caused Mrs. May’s stroke, and reversed the trial court’s ruling in Bowles’ favor.[28]

Returning to negligence claims, the “physical impact rule” announced in Connelly v. Western Union Telegraph Co.[29]continued until 1973, when the Supreme Court of Virginia decided the case of Hughes v Moore.[30] In that case, Toy Hughes crashed his car into the front porch of one Sue Etta Moore, who was standing inside her house looking through the window when she heard and saw Hughes’ car crash right in front of her.[31] Moore sued Hughes for personal injury, and Moore’s physician testified at her trial that she was “experiencing physical pain in her body from the emotional disturbance and that her condition presented a serious mental problem.”[32] He added that “[t]he pain was real, and ‘not imaginary.’”[33] Her physician further opined that “there was a ‘causal connection’ between the automobile striking plaintiff’s home and her emotional and physical condition.”[34]

The Hughes court noted that Virginia courts had permitted recovery in the past for mental distress and physical injuries unaccompanied by actual physical contact where the injuries were caused by a willful, intentional tort.[35] The Hughes court cited as authority for the proposition that mental distress and physical injuries unaccompanied by actual physical contact could be grounds for recovery the earlier case of Moore v. Jefferson Hospital, Inc.[36] There, the actions of a hospital employee named Phyllis Hatter who entered an operating room and prevented a physician from performing surgery on the plaintiff were held to constitute an intentional tort on her part, which, even without actual physical contact with the plaintiff, caused him physical and mental injury.[37]

The Hughes court then set out the new standard for negligence liability, rejecting the earlier “physical impact rule” (i.e., that a plaintiff could recover for emotional distress manifesting itself physically, but only if the negligence that caused the emotional distress also caused contemporaneous physical injury).[38] The court held:

[W]here conduct is merely negligent, not willful, wanton, or vindictive, and physical impact is lacking, there can be no recovery for emotional disturbance alone. We hold, however, that where the claim is for emotional disturbance and physical injury resulting therefrom, there may be recovery for negligent conduct, notwithstanding the lack of physical impact, provided the injured party properly pleads and proves by clear and convincing evidence that his physical injury was the natural result of fright or shock proximately caused by the defendant’s negligence. In other words, there may be recovery in such a case if, but only if, there is shown a clear and unbroken chain of causal connection between the negligent act, the emotional disturbance, and the physical injury.[39]

The court concluded that Sue Etta Moore’s inability to feed her baby due to a lack of milk, the onset of her menstrual period while she was nursing, and her diminishing breasts—all resulting from her nervousness after witnessing Toy Hughes’ car crash into her home—constituted physical injuries naturally resulting from fright and shock.[40] Thus, Hughes clarified that a plaintiff need not suffer contemporaneous physical injury (i.e., physical impact) to recover for emotional distress so long as the emotional distress physically manifested itself and there was an “unbroken chain of causal connection between the negligent act, the emotional disturbance, and the physical injury.”[41]

The evolution of mental distress claims arising from negligence, then, is one that gradually tipped more in favor of the plaintiff. Specifically, the abandonment of the “physical impact rule” in favor of a rule that looked at the natural consequences of witnessing something distressing meant that more plaintiffs could recover damages. That evolution might have boded well for plaintiffs when the Supreme Court of Virginia recognized the new tort of intentional infliction of emotional distress just one year later; after all, if the court was willing to broaden the chances for plaintiffs to win damages for mental distress in the context of negligence claims, they might be willing to do so in other contexts as well. But as will be explained below, such was not to be the case.

II.  The Emergence of Intentional Infliction of Emotional Distress Claims in Virginia

Up until the mid-1970s, plaintiffs in Virginia could only recover damages for emotional distress arising from negligence cases, or the occasional defamation cases. But new possibilities opened up in 1974 when the Supreme Court of Virginia recognized the tort of intentional infliction of emotional distress for the first time in Womack v. Eldridge.[42]

The specific facts of this case are remarkable. Rosalie Eldridge was employed by Richard Seifert and his attorney to obtain a photograph of Danny Lee Womack. Seifert’s attorney planned to use Womack’s photograph “as evidence in the trial of Seifert, who was charged with sexually molesting two young boys.”[43] In order to obtain a photograph of Womack, Rosalie Eldridge went to his home, telling him she was “a Mrs. Jackson from the newspaper and that she was writing an article on Skateland,” where Womack worked as a coach.[44] He agreed to have her take his picture, and that photograph was later used as one of a series presented in court to the child victims of abuse in an effort to have them identify the perpetrator.[45] Thus, Womack, who had absolutely no connection to the child molestation case, was placed in the position of possibly being accused by the victims in open court of committing a heinous crime.[46] Even though the young boys did not identify Womack as the perpetrator, Womack argued that the mere use of his image in the court proceeding under these circumstances was outrageous conduct, falsely implicating him as a possible child molester.[47]

The court recognized Womack’s claim for intentional infliction of emotional distress and set forth the elements of the claim as follows:

[A] cause of action will lie for emotional distress, unaccompanied by physical injury, provided four elements are shown: One, the wrongdoer’s conduct was intentional or reckless. This element is satisfied where the wrongdoer had the specific purpose of inflicting emotional distress or where he intended his specific conduct and knew or should have known that emotional distress would likely result. Two, the conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality. This requirement is aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt feelings are involved. Three, there was a causal connection between the wrongdoer’s conduct and the emotional distress. Four, the emotional distress was severe.[48]

The court held that a plaintiff could recover in the absence of physical injury.[49]

Applying the four elements of the tort, the court found that there was evidence that Eldridge’s conduct was extreme and outrageous, that a reasonable person would have “recognized the likelihood of the serious mental distress that would be caused in involving an innocent person [like Womack] in [a] child molest[ation] case[],” and that Womack’s emotional distress was severe.[50]

There are two key hurdles a plaintiff must clear in order to successfully claim intentional infliction of emotional distress: the second and fourth elements of the tort. Assuming that the first element—intentional action—is met, the plaintiff must meet the second requirement, that of outrageous conduct.[51] In both the employment and nonemployment contexts, the courts generally rely on Section 46 of the Restatement (Second) of Torts, which requires that the plaintiff prove that the defendant’s conduct was

so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim “Outrageous!”[52]

This must be more than the hurt feelings or perceived slights that may occur in the typical American workplace. If the complained-of conduct by a supervisor or other employer representative does not rise to the requisite level, it is dismissed as being among those “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities” to which the employee “must necessarily be expected and required to be hardened.”[53]

Not surprisingly, the court in Womack v. Eldridge held that Rosalie Eldridge’s conduct on behalf of her employer in subjecting Danny Lee Womack to potential incrimination as a child molester was outrageous.[54] It is worth noting, however, that while the facts in Womack presented an extreme scenario, clearly meeting the second element of the tort, the decision may have set such a high bar for what constitutes “outrageous conduct” that the Virginia courts, returning to Womack as a touchstone, might have viewed the cases that were to follow as falling short of the mark. In other words, since the seminal case for intentional infliction of emotional distress was based on such extraordinary facts, it is fair to ask to what extent subsequent cases that didn’t quite rise to the level of those extraordinary facts were somehow deemed less outrageous, and thus viewed in an unfavorable light towards the plaintiff. In this way, the second element of the tort may not have been an easy one to meet.

Assuming the third element—causal connection—is met, some courts (including those in Virginia) have also set a very high standard in order to meet the fourth element, proof of severe emotional distress.[55] The Supreme Court of Virginia’s 1991 ruling in Russo v. White[56] illustrates that difficulty. In that case, Patricia Russo went on a single date with Burton White, and then decided she did not want to date him again.[57] He began stalking her, calling her house and hanging up on her 340 times in two months.[58] Russo brought an intentional infliction of emotional distress claim against White, alleging that as a proximate result of his intentional conduct, she experienced “nervousness, sleeplessness, stress and its physical symptoms, withdrawal from activities . . . [and] lack of concentration at work.”[59] She argued that White’s conduct offended any sense of decency or morality, and that although White did not speak during the calls, both she and her daughter were threatened because of the frequency of the calls.[60]

The Russo court had no trouble finding that White had acted intentionally, thus satisfying the first element of the tort.[61]Turning to the second element, the court elaborated on what constituted outrageous behavior, stating:

[I]t is insufficient for a defendant to have “acted with an intent which is tortious or even criminal.” . . . Even if a defendant “has intended to inflict emotional distress,” or his conduct can be “characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort,” the requirement of [outrageousness] has not been satisfied. . . . “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”[62]

The plaintiff was able to show a causal connection between White’s actions and her reaction, but she was not to succeed in her claim.[63] Turning to the fourth element, the Supreme Court of Virginia held that Russo’s emotional distress did not rise to the level of severity that was required to sustain her claim because she merely “alleged that she was nervous, could not sleep, experienced stress, . . . and was unable to concentrate at work.”[64] Thus, the court found that the alleged effect was “not the type of extreme emotional distress that [was] so severe that no reasonable person could [have been] expected to endure it.”[65] The court noted that:

The term “emotional distress” travels under many labels, such as, “mental suffering, mental anguish, mental or nervous shock . . . . It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea.” . . . But liability arises only when the emotional distress is extreme, and only where the distress inflicted is so severe that no reasonable person could be expected to endure it.[66]

In rejecting Russo’s argument that her condition constituted severe emotional distress, the court stated: “There is no claim, for example, that she had any objective physical injury caused by the stress, that she sought medical attention, that she was confined at home or in a hospital, or that she lost income.”[67] These requirements, grafted onto the Restatement’s standard, meant that it was quite unlikely that a plaintiff would prevail, absent physical injury resulting from the outrageous conduct.

Justice Hassell’s dissent in Russo focused on the majority’s finding that the plaintiff failed to satisfy the Womack requirement of severe emotional distress.[68] “[N]o reasonable person could or should be expected to endure the injuries endured by Russo,” he stated.[69] More importantly, the dissent took issue with the majority’s finding that Russo alleged no objective physical injury.[70]This was unnecessary, Justice Hassell explained, because “physical injury is not an element required to establish the tort of intentional infliction of emotional distress.”[71]

This was an extraordinarily important addition: the Supreme Court of Virginia abandoned the “physical impact rule” for cases involving negligence with its 1973 ruling in Hughes v. Moore, but after recognizing intentional infliction of emotional distress claims a year later in Womack v. Eldridge, the court subsequently pared back the scope of Womack with its 1991 holding in Russo v. White. In Russo, the court added the requirement that a plaintiff in an intentional infliction of emotional distress case prove “objective physical injury caused by the stress, [or] that she sought medical attention, [or] that she was confined at home or in a hospital,”[72] and  that  the  plaintiff  prove  the  tort  by  “clear  and  convincing evidence.”[73]

To place this in a broader context, consider that in the 1970s, as intentional infliction of emotional distress claims began to be recognized by courts across the country, those courts at first required that whatever emotional distress the plaintiff might have experienced manifest itself in some physical injury to the body, such as no longer being able to breast feed or suffering a significant weight loss—that is, a physical injury to the body resulting from the emotional distress. In later decades, however, many state courts dropped this requirement and instead simply required objective evidence of mental distress.[74] This distinction is important, as the objective evidence could simply be testimony from a doctor that the plaintiff was suffering from nightmares, or dizziness, or experienced periods of sadness and depression. These constitute “objective evidence of emotional distress” but not a “physical injury to the body.” But in Virginia, Russo represented a tightening of the tort’s requirements, adhering to a physical injury standard at a time when other courts seemed to be more open to claims of emotional distress.[75]

Against this background, we now turn to application of the intentional infliction of emotional distress tort in the Virginia workplace.

A.  Intentional Infliction of Emotional Distress Claims in the Workplace

The Virginia courts have considered a number of cases in which employees or former employees have brought claims of intentional infliction of emotional distress against their employers. Five cases are discussed in chronological order below. Unfortunately for the plaintiffs in each of these cases, the Virginia courts refused to recognize the workplace actions they complained about as rising to the level of “outrageous conduct.” As the cases demonstrate, sometimes employees are subject to rude, unfair, or demeaning treatment by their supervisors, but that does not mean they can meet the  standard  for  intentional infliction  of  emotional  distress  in  Virginia.

In our first case, plaintiff Fred Seitz was faced with a choice of resignation or termination by his employer, Phillip Morris.[76]Although Seitz had worked for Phillip Morris for more than eight years, had received several promotions, and was the recipient of excellent performance evaluations, he was called into his immediate supervisor’s office one day and was “informed . . . without more specific detail of numerous complaints that had surfaced in recent weeks regarding the way and manner [in which] he conducted himself with vendors.”[77]

His supervisor told him that if he resigned, “he would get severance and vacation pay, and the [company] would tell potential employers he resigned.”[78] If he was terminated, however, then he would not get any benefits and prospective employers would be told of the alleged problems Sietz experienced with vendors.[79] Not surprisingly, Seitz chose to resign.[80] Soon thereafter, however, he brought a claim for intentional infliction of emotional distress against Phillip Morris.[81]

The court held that Seitz’s claim failed to meet the first element of the intentional infliction of emotional distress tort—specifically, that there was no allegation of a specific purpose on the part of Seitz’s supervisor “to inflict emotional hurt or an allegation defendant so intended his specific conduct or knew or should have known emotional injury would result thereby.”[82] Thus,  the  defendant employer’s  demurrer  to  his  count  of  emotional  distress  was sustained.[83]

Our second case involved former employee Joseph Ellison, who brought a claim of intentional infliction of emotional distress against his former employer, St. Mary’s Hospital in Richmond, alleging that he had been treated so badly that he had to leave his employment.[84] Ellison claimed the hospital “gave him unfair work assignments, criticized his work in front of others, told him he had an ‘attitude problem,’ took him into an office and questioned him about drug use, gave him a choice of submitting his resignation or being fired, and barred him from the hospital grounds.”[85]

The court held that Ellison’s allegations, even if true, did not rise to the level  of  “extreme and  outrageous”  conduct  needed  to  prevail under Virginia  precedent.[86]  The court  stated  that  Ellison’s allegations

do no more than detail a scenario carried out daily in the workplace. Every day, workers are criticized about their job performance and are undoubtedly given assignments which they feel are unfair and not part of their job description. Such conduct can hardly be given the dignity of being elevated to the level of “outrageous and intolerable in that it offends against the generally accepted standards of decency and morality.” To make such actions as plaintiff alleges actionable would be to create chaos in the work place. Workers must not be so thin-skinned as to allow themselves to be unnerved by the rough and tumble of everyday life.[87]

Our third case involved a plaintiff named Lorine Spence, who brought an intentional infliction of emotional distress claim against her employer, arguing that the company’s failure to make timely payments mandated by the Industrial Commission of Virginia as a result of Spence’s job injury award was outrageous conduct.[88] The court disagreed, stating that the employer’s “failure to make payments and subsequent filing of court actions and appeals questioning liability simply does not equate with the extreme and outrageous conduct necessary for an emotional distress claim without accompanying physical injury described in Womack.”[89]

 In our fourth case, a former employee of the Norfolk Sheriff’s Department, Queen Starks, brought an intentional infliction of emotional distress claim against her former employer,[90] alleging that a co-worker, Diane Woods, had stated to other employees that Starks was a lesbian and had said to her that she didn’t want another employee to “catch anything” from her.[91] Applying the Russo standard, the court rejected Stark’s claim, stating: “Instances of pettiness, vindictiveness, rudeness, and mendacity among employees of large organizations and, indeed, among mankind, are innumerable.”[92] The court concluded that the acts in question were “not so outrageous and extreme as to go beyond all possible bounds of decency.”[93]

The court also found Starks’ claim wanting with respect to the fourth element of the tort, severe emotional distress, noting that Starks only alleged severe emotional distress and severe depression, which the court defined, with the help of Webster’s Dictionary, as “[d]ejection; sadness; [or] gloom.”[94] Stated the court: “Dejection, sadness, and gloom are emotions almost everyone who enters the workplace suffers at some time. Without more, they are hardly ‘so severe that no reasonable person could be expected to endure’ them.”[95] The court ruled that Starks’ “bare assertion”[96] that her co-worker’s statements caused her “severe emotional distress and severe depression” did not satisfy the fourth element, and sustained the defendant employer’s demurrer.[97]

Finally, we have the 2011 case of Paul Blakeman, who brought an intentional infliction of emotional distress claim against his employer when he was fired for testing positive for cocaine as a result of a random drug test.[98] Blakeman complained that his employer failed to adhere to the in-house collection procedure and then refused to invalidate the drug test.[99] The court held that requiring an employee to submit to a random drug test did not constitute outrageous conduct; thus, Blakeman did not meet the second prong of the four part test.[100] Further, the court held, Blakeman did “not allege any objective physical injury caused by the stress” of having to take a drug test, nor did he require medical attention, and thus he did not meet the fourth prong of the test either.[101]

As is seen from these decisions, Virginia employees typically do not prevail in their intentional infliction of emotional distress claims. Faced with the high standard of meeting the second element of the tort—“outrageous conduct”—as set forth in Womack, coupled with the fourth element’s physical injury standard set forth in Russo, it would appear that the Virginia courts are willing to abide a wide range of mistreatment by employers without finding liability for intentional infliction of emotional distress.[102]However, in recent years a line of cases has developed in which Virginia employees have had greater success against their employers: claims involving sexual harassment. We turn to those cases in the following section.

B.  Development of the Russo Exception: Sexual Harassment and Employer Liability for Intentional Infliction of Emotional Distress

A number of cases show that sexual harassment claims that arise in the workplace will be treated differently than might be expected under the Russo doctrine. As noted above, Russo v. White stands for the proposition that allegations of stress, humiliation, embarrassment, injury to reputation, and mental anguish unaccompanied by objective physical injury, medical attention, or lost income are not sufficient to support a claim for intentional infliction of emotion distress.[103] But what if an employee brings a sexual harassment case framed as a tort claim for intentional infliction of emotional distress? The answer has changed over the course of the last two decades.

In 1991, the Richmond City Circuit Court decided the case of Hazlewood v. Mabe.[104] There, employees of Richmond Newspapers claimed that a coworker, Mabe, “made undesirable, sexually suggestive physical contact with [them]; namely, in the form of pinching, grabbing, and/or fondling the plaintiff’s posterior or genitals, in a sexually suggestive manner.”[105] The plaintiffs alleged Mabe’s conduct “detrimentally affected their psychological well-being and has consequently interfered with their ability to adequately perform their duties in the work place . . . and that the plaintiffs have each suffered tremendous emotional distress, both at the work place and intruding on their home lives.”[106] Applying the Russo standard, the court held that the plaintiffs had failed to show severe distress, such as objective physical injury, seeking medical treatment, home or hospital confinement, or lost wages, and granted the defendant employer’s demurrer.[107]

A significant shift began a few years later, however, with the 1997 decision in Hygh v. Geneva Enterprises, Inc.[108] That case involved Vernetta Hygh, a receptionist at a car dealership called Geneva Enterprises.[109] Her supervisor, a general sales manager named Beltran, continually subjected Hygh to “sexually suggestive, harassing comments and acts.” Beltran’s harassment culminated on August 23, 1996, when, during work hours and upon Beltran’s suggestion, Hygh and Beltran first drove to a store and purchased a CD for Hygh to play in her car.[110] Rather than returning to the car dealership, however, Beltran drove to a secluded spot, parked the car, grabbed Hygh by the neck and attempted to force her to perform a sex act on him.[111] She resisted, and then resigned from her job a few days later.[112]

Hygh brought a number of claims against Beltran and the company, including a claim for intentional infliction of emotional distress, before the Fairfax County Circuit Court.[113] The employer demurred, arguing that Hygh failed to plead the necessary elements of an intentional infliction of emotional distress claim under Hughes—specifically, that she did not sufficiently allege the required elements of intentional conduct, a nexus between defendant’s conduct and the emotional distress, nor the severity of the distress.[114]

Hygh argued that her claim satisfied the necessary elements, and “that the only element in question [was] whether [her] emotional distress was severe.”[115] She “alleged ‘objectively verifiable evidence’ of her distress including, but not limited to, inability to return to work or college and consultation with mental health care professionals.”[116]

The court held that a victim of sexual assault experiences trauma which greatly differed from the type suffered by the plaintiff in Russo, in which the court required a showing of physical injury resulting from the outrageous conduct.[117] Rather, held the court, the plaintiff, “an alleged victim of sexual assault, need not plead with graphic specificity any additional objective physical injury.”[118] The court said: “The victim of a sexual assault clearly experiences severe emotional distress that no reasonable person could be expected to endure.”[119] Therefore, the employer’s demurrer was overruled and Hygh could pursue her claim, even without a showing of physical injury.[120]

A case that arose three years later, Padilla v. Silver Diner, involved a server named Annamarie Padilla who worked at the Silver Diner restaurant.[121] For the entire eleven months she worked there, Padilla was subjected to continuous sexual harassment by a co-worker at the restaurant, Dominic Williams.[122] He “proposition[ed] her on numerous occasions in an extremely vulgar manner,” spanked her rear end, placed his face against her breasts, asked her when they were going to have sex, and once caused her to burn herself when he pushed her against a hot oven.[123]

Padilla repeatedly told Williams that she was not interested in him and was offended by his behavior.[124] She complained to her supervisor and the operating manager at the restaurant several times.[125] Other wait staff also complained about Williams and other employees, and even brought their complaints to the president and vice president of the company, but no action was ever taken.[126] Finally, Padilla stopped working at the Silver Diner, and brought her claim of intentional infliction of emotional distress against Williams and the company, claiming liability under the theory of respondeat superior.[127] She filed her claim in Virginia Beach City Circuit Court.[128]

As in the Hygh case heard in Fairfax County, the Virginia Beach City Circuit Court held that although Russo v. White stands for the proposition that “allegations of stress, humiliation, embarrassment, injury to reputation, and mental anguish unaccompanied by objective physical injury, medical attention, or lost income are not sufficient to support a claim for intentional infliction of emotional distress,”[129] there was an exception to this rule. Specifically, stated the court,

Russo and its progeny addressed emotional distress claims that were “independent of any physical injury and unaccompanied by any physical impact,” . . . and clearly differ from cases involving physical or sexual assaults . . . . In the cases at hand, the Plaintiffs have sufficiently alleged physical and emotional injuries resulting from physical and sexual abuse by Williams and Miller. It is apparent that Miller’s and Williams’ alleged conduct was so outrageous and offensive as to cause the Plaintiffs severe emotional distress as well as physical injuries . . . . Additionally, the Plaintiffs told Williams and Miller on multiple occasions that their conduct was unwelcome, and it may be inferred that Williams and Miller intended to cause the Plaintiffs distress by continuing to sexually assault and harass them. Accordingly, the Defendants’ demurrer is overruled.[130]

Then, in a case decided the same year, Oelgoetz v. Appalachian Appraisal Services, Roanoke City Circuit Court held that where a female supervisor had engaged in unwanted propositioning of a male subordinate, his claim for intentional infliction of emotional distress properly survived the defendant’s demurrer, even though the court expressed skepticism about whether her conduct was “sufficiently ‘extreme and outrageous’ to overcome a Motion for Directed Verdict at the conclusion of the Plaintiff’s evidence.”[131]

In 2005, in Hazzis v. Modjadidi the Norfolk City Circuit Court heard extensive allegations of sexual harassment brought by dental hygienist Magdalend Hazzis.[132] Specifically, she alleged that Dr. Osama Modjadidi, a dentist and employee of Konikoff Family Dentistry, used his position of authority to “forcibly rub[] his body against hers, unsnap[] her bra when her hands were engaged with the film processor,” touch her buttocks and breasts, and make “several offensive sexual remarks.”[133] She claimed that this sexual harassment caused her “extreme mental and emotional anguish, physical injuries, and medical expenses.”[134]

The court compared the sexual harassment claim in Padilla to the claim brought by Ms. Hazzis, and determined that the physical injuries in Padilla were more pronounced than those complained of by Ms. Hazzis.[135] But joining the other three circuit courts, the Norfolk Court held that their reasoning was analogous.[136] “Cases dealing with elements of physical sexual harassment are distinguishable from cases like Russo where the allegations dealt only with non-tactile torts.”[137] The court concluded that the “egregiousness and physical nature of the alleged conduct, along with the plaintiff’s claims of emotional distress to the point of vomiting blood [were] sufficient to overrule the Defendant[] [employer’s] demurrers.”[138]

The most recent case of this type was decided in 2012. There, in Magallon v. Wireless Unlimited Inc.,[139] the Fairfax County Circuit Court, relying on its earlier ruling in Hygh, found that the plaintiff alleged outrageous and intolerable behavior when she claimed her former manager called her sexually demeaning names, threatened her with violence, demeaned her character by accusing her of having sexual relations with the business owner, and took her car and house keys when she rebuffed his sexual advances.[140] The plaintiff had “sought medical attention for her fear, anxiety, depression, and frequent vomiting . . . . [and] was prescribed Zoloft and another medication  to  control  her  vomiting”  and  post-traumatic  stress disorder.[141]

As seen from these decisions, the Virginia circuit courts have evolved in their view of intentional infliction of emotional distress claims involving sexual harassment in the workplace. Although it is sometimes the case that the victim of sexual harassment can demonstrate the type of physical injury and need for medical attention envisioned by Russo, these courts seem to demonstrate quite a sympathetic view towards plaintiffs who do not produce that level of evidence. As the Hygh court stated, a sexual assault victim “need not plead with graphic specificity any additional objective physical injury,”[142] as sexual assault victims experience “severe emotional distress that no reasonable person could be expected to endure.”[143]

 Before we return to the plight of Linda Bodewig set forth at the beginning of this article, a brief detour is in order: what role does Workers’ Compensation play in these cases?

C.  The Relationship Between the Virginia Workers’ Compensation Act and Claims for Intentional Infliction of Emotional Distress

Briefly stated, the Virginia Workers’ Compensation Act provides benefits for injuries by accident arising out of and in the course of employment.[144] The Act provides the exclusive remedy for employees seeking relief from such injuries, but both conditions must be met; that is, the injury must both arise out of the employment and in the course of employment.[145] In other words, as the Supreme Court of Virginia held in its first decision interpreting the Act, Bradshaw v. Aronovitch,[146]

[t]he expressions “arising out of” and “in the course of” the employment are not synonymous; but the words “arising out of” are construed to refer to the origin or cause of the injury, and the words “in the course of” to refer to the time, place, and circumstances under which it occurred. [147]

Elaborating on these terms, the Bradshaw Court explained that “[a]n accident occurs ‘in the course of the employment’ when it takes place within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling duties of his employment or engaged in doing something incidental thereto.”[148] Further, the court found, the Act requires “a causal connection between the conditions under which the work is required to be performed and the resulting injury.”[149] The court explained that “if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation . . . then it arises ‘out of’ the employment.”[150] The Act, however, “excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment.”[151] In other words, the danger to which the employee is exposed must be “peculiar to the work and not common to the neighborhood.”[152]

So what does this mean for an employee working in the Commonwealth of Virginia who suffers what he or she believes to be severe emotional distress stemming from the outrageous conduct of an employer? The answer depends on whether the court finds that the complained-of action meets the Act’s definition of an accident arising out of and in the course of employment.

For example, in Abney v. Wimer, the court considered the intentional infliction of emotional distress claim brought by Kimberly Abney against her employer, the J.C. Penney Company.[153] Abney was summoned to her supervisor’s office, where she was informed that she was fired.[154] Her supervisor then enlisted the aid of another employee, Nevin Wimer, in escorting Abner out of his office and off the store premises.[155] Abney claimed that Wimer assaulted her and “forcibly lifted her up and out of the chair and intentionally threw [her] to the floor causing [Abney] to break three bones in her right foot.”[156]

The employer argued that Abney’s intentional infliction of emotional distress tort claim was barred by the exclusivity provision of the Virginia Workers’ Compensation Act, and the court agreed.[157] Stated the court:

Every event in this scenario, the Plaintiff’s going into her supervisor’s office to discuss a work-related matter, the termination, and the requests that Plaintiff depart from the premises, was work-related and, therefore, arose out of her employment. Even the alleged assault arose out of Plaintiff’s employment, for it involved a work-related matter.[158]

 Thus, the court found that Abney’s injuries “arose out of [her] employment” with defendant J.C. Penney.[159] Further, Abney’s injuries occurred at her place of employment, during working hours, and in circumstances directly related to her employment—or at least directly related to her discharge from employment.[160] Her exclusive remedy, therefore, was under the Virginia Workers’ Compensation Act (which, of course, limited her potential damages, unlike an intentional tort claim).[161]

By contrast, in Middlekauff v. Allstate Insurance Co., an employee named Texanna Middlekauff brought an action against her employer for intentional infliction of emotional distress stemming from harassment and verbal abuse from her supervisor.[162]Specifically, she alleged in her complaint that her supervisor, Tony Richards, “intentionally sought to humiliate her in front of other employees by making derisive comments concerning the fact that she was overweight, as well as sexist and other belittling remarks.”[163] The trial court held that the action was barred by the exclusivity provision of the Virginia Workers’ Compensation Act,[164] but the Supreme Court of Virginia held that her claim was not barred by the exclusivity provision because she did “not allege an ‘injury by accident’ ‘arising out’ of her employment.”[165] Thus, the exclusivity provision did not bar Middlekauff’s action and she could proceed with her intentional infliction of emotional distress claim against the defendant employer.[166]

The same result was reached with respect to the intentional infliction of emotional distress claim arising out of the sexual harassment in Padilla v. Silver Diner,[167] the case discussed earlier where the waitress was continually harassed by her supervisor for more than a year. There, the court held:

The Act applies to injuries by accident arising out of and in the course of employment and occupational diseases. An injury is “by accident” when it (1) “appeared suddenly at a particular time and place and upon a particular occasion, (2) . . . was caused by an identifiable incident or sudden precipitating event, and (3) . . . resulted in an obvious mechanical or structural change in the human body.” An injury that is the result of the willful and intentional assault of either a fellow employee or a third person does not prevent the injury from being accidental within the meaning of the Act.[168]

Thus, held the court, while as a general rule an intentional tort of an employer or a fellow employee would be found to be within the scope of the Virginia’s Workers’ Compensation Act and thus the employee’s exclusive remedy,[169] the assault must be “personal to the employee and not directed against him as an employee or because of his employment.”[170]

In Padilla’s case, her fellow employees both admitted that they were trying to get her to succumb to their sexual advances; thus, their assaults were of a personal nature, directed against Padilla as a woman, not as an employee.[171] Therefore, the court concluded, the Virginia Workers’ Compensation Act did not bar Padilla’s claim as her injuries did not arise out of employment as required by the Act.[172] Further, held the court, Padilla “sufficiently alleged physical and emotional injuries resulting from physical and sexual abuse” by her fellow employees, their alleged conduct was outrageous, and they intended to cause her distress by continued sexual assault and harassment.[173] Thus, the defendant employer’s demurrer was overruled.[174]

In summary, if an assault, including sexual harassment, is not directed against an employee because of his or her employment, then it does not “arise out of the employment.”[175] In those circumstances, if an employee brings an intentional infliction of emotional distress claim arising from such an assault or harassment, the Virginia Workers’ Compensation Act does not bar these claims because the injury is not a compensable injury by accident.[176]

III.  Back to the Beginning:  Applying Virginia Law to Bodewig

When we left our protagonist, Linda Bodewig, she had filed a claim for intentional infliction of emotional distress against her employer after Bodewig was strip-searched in an effort to assuage a customer’s concerns that she had stolen the customer’s money.[177] Like other courts, the Oregon courts applied the same four elements of the tort of intentional infliction of emotional distress: (1) intent; (2) outrageous conduct; (3) a causal connection between the conduct and the emotional distress; and (4) the emotional distress was severe.[178] The Court of Appeals of Oregon reversed the trial court’s grant of summary judgment, finding that a jury could find the employer acted intentionally, and that the manager’s conduct went “beyond the limits of social toleration and reckless of the conduct’s predictable effects” on Linda Bodewig.[179] Having satisfied the tort elements of intentionally engaging in outrageous conduct, the court then turned to the elements of causation and severe emotional distress, and held as follows:

If the facts presented are believed, plaintiff suffered shock, humiliation and embarrassment, suffering that was not merely transient. Plaintiff characterized herself as a shy, modest person, and said that she had two or three sleepless nights, cried a lot and still gets nervous and upset when she thinks about the incident. Concededly, this element of the tort has been, and still is, troublesome to courts. K-Mart contends there is no objective evidence of the distress, such as medical, economic or social problems. In Rockhill v. Pollard, . . . plaintiff became nervous and suffered from sleeplessness and a loss of appetite over a period of about two years. The court said: “Defendant belittles these symptoms, but it is the distress which must be severe, not the physical manifestations.”[180]

The court concluded that Bodewig’s distress “was more than that which a person might be reasonably expected to pay as the price of living among people.”[181] The court concluded that Bodewig’s evidence of severe emotional distress was sufficient to go to a jury.[182]

But what if Linda Bodewig was not an Oregon resident, but rather a resident of the Commonwealth of Virginia? How would she have fared then?

First, it seems clear that Bodewig could meet the first three elements of the tort of intentional infliction of emotional distress. In a somewhat analogous case decided in Virginia last year, Calloway v. Commonwealth, the Augusta County Circuit Court evaluated the claim of a visitor to a detention facility who was subjected to a strip search.[183] There, the court said:

It cannot be seriously contested that Calloway has pled the first three elements of IIED. First, she alleges that the VDOC employees acted intentionally, i.e., that they knew they had no legal reason to detain her or subject her to a strip search; a jury could reasonably conclude that an officer should have known that an unwarranted strip search could likely cause emotional distress. Second, an unjustified strip search strikes the Court as so invasive a procedure that any reasonable person could (perhaps would) describe it as “outrageous,” if not justified. Finally, Calloway clearly alleges a causal connection between the VDOC employees’ conduct and the stress she claims. Those issues properly are jury questions.[184]

However, turning to the fourth element of the tort, severity, which the court characterized as “perhaps the most difficult to apply to the facts of a case,” the court held that the plaintiff failed to carry her burden.[185] Even though Calloway “was upset, and crying” and “shocked, frightened, and felt degraded and humiliated”[186] when she was subjected to the strip search, the court rejected her claim that she suffered severe emotional distress under the Russo standard.[187]

Recall that Patricia Russo experienced “nervousness, sleeplessness, [and] stress.”[188] Similarly, Linda Bodewig experienced nervousness, sleeplessness, and stress.[189] However, under the standard set forth in Russo v. White, Bodewig would fail to meet the fourth prong of the tort. She had no objective physical injury caused by the stress, she didn’t seek medical attention, nor was she was confined at home or in a medical facility.[190]

Bodewig might also face an argument by the defendant employer, K-Mart, that the Virginia Workers’ Compensation Act provided her exclusive remedy. The actions of the K-Mart manager in subjecting her to a strip search at her place of employment, during working hours, and in circumstances directly related to her employment (specifically, in response to a customer’s accusation of theft by the employee), arguably led to her injury “by accident arising out of and in the course of employment.”[191] Bodewig’s counter argument would be that there was no accident giving rise to an injury, and that would seem to be a convincing argument under the precedent set by Middlekauff v. Allstate Insurance. Company[192] as discussed above.

So let’s assume the exclusivity provision of the Virginia Workers’ Compensation Act would not bar Linda Bodewig’s intentional infliction of emotional distress claim. As noted above, Bodewig would not prevail in Virginia as she did in Oregon because of the exacting requirements of Russo. But why should this be the case, given the numerous Virginia circuit court holdings that employees who suffer from sexual harassment can prevail without meeting Russo’s additional requirement of the tort’s fourth prong? More critically, why should this additional requirement be the law at all, since, as Justice Hassell made clear in his Russo dissent, physical injury is not a necessary element under traditional intentional infliction of emotional distress analysis? Frankly, it seems an odd result that a woman like Linda Bodewig, who is strip searched and who suffers the predicable response of sleeplessness, nervousness, and stress, will not recover damages, while an employee who is subjected to repeated propositioning at work, like Annemarie Padilla, can succeed on her claim.

A brief review of a century of Virginia court decisions concerning the issue of damages for emotional distress, arising in various tort contexts, shows that the Virginia courts have not been rigid in their approach, but rather have shifted their analysis over time as we gain a better appreciation for the nuances of mental suffering—what causes it, how it manifests itself, and what constitutes severity. This shift is evidenced, for example, in negligence cases, where the court abandoned the requirement of physical impact and moved to the broader standard of finding injury from “the natural result of fright or shock.”[193] No argument is made here to change the four basic elements of the intentional infliction of emotional distress claim. Requiring a plaintiff to show that a defendant intentionally engaged in outrageous conduct, that which “shocks the conscience,” is a fair burden; it is a standard that is appropriately difficult to meet (although as societal standards change, outrageousness may be even harder to demonstrate). But the question of what constitutes “severe emotional distress,” caused by the defendant, is one that the Virginia courts should show a willingness to reconsider. Lower courts have done so in some recent sexual harassment cases. Abandoning the extra burden Russo places on plaintiffs would lead to a better, fairer result in all circumstances involving employer and employee, not just in sexual harassment claims. The result would be a better workplace and a more balanced view of employee rights. Let us hope Virginia revisits the question again soon.


        [1].       The paraphrased description of this incident is taken from Bodewig v. K-Mart, Inc.,  635 P.2d 657, 658–60 (Or. Ct. App. 1981).

        [2].       Id. at 658–59.

        [3].    Id. at 659.

        [4].    Id.

        [5].    Id.

        [6].    Id.

        [7].    Id.

        [8].    Id.

        [9].       Id.

      [10].    Id. at 660.

      [11].       Id.

      [12].    Id. at 658, 660.

      [13].       Id. at 662.

      [14].       See, e.g., Rockhill v. Pollard, 485 P.2d 28, 29 (Or. 1971).

      [15].       468 P.2d 216, 217–18 (Cal. 1970).

      [16].       For a comprehensive look at (and critique of) the emergence of the tort of intentional infliction of emotional distress in the workplace, see Dennis P. Duffy, Intentional Infliction of Emotional Distress and Employment at Will: The Case Against “Tortification” of Labor and Employment Law, 74 B.U. L. Rev. 387, 389–90 (1994).

      [17].       See, e.g., David J. Leibson, Recovery of Damages for Emotional Distress Caused by Physical Injury to Another, 15 J. Fam. L. 163, 163–64 (1976–77) (noting that courts were initially reluctant to accept the idea of damages for emotional distress in the late 19th and early 20th century, reflecting the view that “insanity and other emotional illnesses were considered to be the result of one’s own sins”).

      [18].       Connelly v. W. Union Tel. Co., 100 Va. 51, 53, 40 S.E. 618, 619 (1902).

      [19].       Id. at 55, 65, 40 S.E. at 620, 624.

      [20].       Id. at 67, 40 S.E. at 624. The court adhered to the common law rule that damages for emotional distress alone, as an independent cause of action, were never allowed. The court added, however, that where there is a personal injury, emotional distress is a proper element of damages. Id. at 55, 40 S.E. at 620.

  [21].    Although most states recognize a cause of action in tort for negligent infliction of emotional distress, a minority of them adhere to the “physical impact rule,” which requires a contemporaneous physical injury or impact to recover for negligent infliction of emotional distress. Douglas Bryan Marlowe, Comment, Negligent Infliction of Mental Distress: A Jurisdictional Survey of Existing Limitation Devices and Proposal Based on an Analysis of Objective Versus Subjective Indices of Distress, 33 Vill. L. Rev. 781, 792 (1988). “The purpose of the rule requiring physical impact is to prevent ‘illusory or imaginative or faked’ claim.” Id. at 791 (quoting Zelinsky v. Chimics, 175 A.2d. 351, 354 (Pa. Super. Ct. 1961)); see also Restatement (Second) of Torts § 436A cmt. b (Am. Law Inst. 1965). Today, the majority of states apply either the “zone of danger” or “physical manifestation” rules. See Marlowe, supra at 796–98, 796 n.91; see also Restatement (Second) of Torts §§ 313, 436, 436A. The zone of danger rule permits recovery for emotional injuries resulting from witnessing physical harm to another or from fearing physical harm to oneself, provided that plaintiff was actually threatened by physical harm. Marlowe, supra at 794, 799. The physical manifestation rule requires that a plaintiff exhibit a physical injury or symptom as the “direct and natural result of the initial emotional distress” suffered. Id. at 795.

      [22].       159 Va. 419, 166 S.E. 550 (1932).

      [23].       Id. at 424–28, 166 S.E. at 551–53.

      [24].    Id. at 425, 166 S.E. at 552.

      [25].       Id. at 424–26, 166 S.E. at 552.

      [26].       Id. at 433, 166 S.E. at 555.

      [27].    Id. at 433, 437, 166 S.E. at 555–56.

      [28].       Id. at 437–38, 166 S.E. at 557.

      [29].    100 Va. 51, 53–54,     40 S.E. 618, 619 (1902).

      [30].       214 Va. 27, 197 S.E.2d 214 (1973).

      [31].       Id. at 28, 197 S.E.2d at 215.

      [32].       Id. at 28–29, 197 S.E.2d at 215–16.

      [33].       Id. at 29, 197 S.E.2d at 216.

      [34].       Id. at 29, 197 S.E.2d at 216.

      [35].       Id. at 29–30, 197 S.E.2d at 216–17.

      [36].    Id.  at  29–30,  197  S.E.2d at 216–17 (citing Moore v. Jefferson Hosp., Inc.,         208 Va. 438, 158 S.E.2d 124 (1967)).

      [37].       Moore, 208 Va. at 441, 158 S.E.2d at 126–27.

      [38].    Hughes, 214 Va. at 34, 197 S.E.2d at 219.

      [39].    Id. at 34, 197 S.E.2d at 219. In this way, the Virginia court joined the majority of jurisdictions in abandoning the “physical impact rule.” See supra note 21.

      [40].       Hughes, at 28–29, 35, 197 S.E.2d at 215, 220.

      [41].       Id. at 34, 197 S.E.2d at 219.

      [42].       215 Va. 338, 342, 210 S.E.2d 145, 148 (1974).

      [43].    Id. at 339, 210 S.E.2d at 146.

      [44].       Id. at 339, 210 S.E.2d at 146.

      [45].    Id. at 339, 210 S.E.2d at 146.

      [46].       Id. at 339, 210 S.E.2d at 146.

      [47].    Id. at 339–40, 210 S.E.2d at 146–47.

      [48].       Id. at 342, 210 S.E.2d at 148.

      [49].    Id. at 342, 210 S.E.2d at 148.

      [50].       Id. at 342, 210 S.E.2d at 148.

      [51].       Id. at 342, 210 S.E.2d at 148.

      [52].       Restatement (Second) of Torts § 46 cmt. d (Am. Law Inst. 1965).

      [53].       Id.

      [54].    Womack, 215 Va. at 342–43, 210 S.E.2d at 148–49.

      [55].    The Supreme Court of Virginia, in Ruth v. Fletcher, 237 Va. 366, 377 S.E.2d 412 (1989), noted that although Womack permitted recovery under a claim of intentional infliction of emotional distress, the Court was “careful to add limiting language” to the fourth element of the tort (severe emotional distress) so as to set a very high bar. Id. at 373, 377 S.E.2d 416.

      [56].       241 Va. 23, 400 S.E.2d 160 (1991).

      [57].       Id. at 25, 400 S.E.2d at 161.

      [58].       Id. at 25, 400 S.E.2d at 161.

      [59].       Id. at 25, 400 S.E.2d at 161–62.

      [60].       Id. at 26, 400 S.E.2d at 162.

      [61].       Id. at 26, 400 S.E.2d at 162.

      [62].    Id. at 27, 400 S.E.2d at 162.

      [63].       Id. at 27, 400 S.E.2d at 163.

      [64].    Id. at 27–28, 400 S.E.2d at 163.

      [65].    Id. at 28, 400 S.E.2d at 163.

      [66].    Id. at 27, 400 S.E.2d at 163 (quoting Restatement (Second) of Torts § 46 cmt. j (Am. Law Inst. 1965)).

      [67].       Id. at 28, 400 S.E.2d at 163.

      [68].       Id. at 28–29, 400 S.E.2d at 163–64 (Hassell, J., dissenting) .

      [69].       Id. at 29, 400 S.E.2d at 164 (Hassell, J., dissenting).

      [70].       Id. at 30, 400 S.E.2d at 164 (Hassell, J., dissenting).

      [71].       Id. at 30, 400 S.E.2d at 164 (Hassell, J., dissenting). Justice Hassell noted that Russo’s amended motion alleged significant emotional distress, as follows: “As a proximate result of defendant’s intentional acts, plaintiff suffered severe emotional distress resulting in nervousness, sleeplessness, stress and its physical symptoms, withdrawal from activities which might necessitate plaintiff leaving her daughter at home, lack of concentration at work to the point where she received a reprimand.” Id. at 29, 400 S.E.2d at 164.

      [72].       Id. at 28, 400 S.E.2d at 163.

      [73].       Id. at 28, 400 S.E.2d at 162.

      [74].       See, e.g., Rodriguez v. Cambridge Hous. Auth., 823 N.E.2d 1249, 1254–55 (Mass. 2005) (failing to change door locks on rental property which allowed home invasion to take place caused shock to plaintiff who witnessed harm to a loved one; shock was sufficient to constitute severe emotional distress); Robel v. Roundup Corp., 59 P.3d 611, 620 (Wash. 2002) (employee who was mocked for her back injury and was called vulgar names suffered severe emotional distress); GTE Southwest Inc. v. Bruce, 998 S.W.2d 605–19 (Tex. 1999) (employees who were harassed by supervisor experienced anxiety and fear, sought medical treatment, and were prescribed medication to alleviate their problems suffered severe emotional distress).

      [75].       Not that Virginia courts were alone in tightening the standard. For example, in 1992 the North Carolina Supreme Court held in Waddle v. Sparks, 414 S.E.2d 22, 27–28 (N.C. 1992), that a plaintiff in an intentional infliction of emotional distress claim had to show a severe and disabling injury, defining the term “severe emotional distress” to mean “emotional or mental disorder, such as . . . neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so.” Id. at 26, 28. The plaintiff in Waddle merely was upset, angry, and had trouble sleeping, and thus failed to demonstrate that she experienced “severe emotional distress.” Id. at 28.

      [76].       Seitz v. Philip Morris, Inc., 6 Va. Cir. 428, 428 (1986) (Richmond City).

      [77].       Id. Seitz’s supervisor would only say that he “used coercive and unethical tactics” in dealing with the vendors. Id.

      [78].    Id.

      [79].       Id.

      [80].       Id.

      [81].    Id.  at 428, 431.

      [82].       Id. at 431–32.

      [83].       Id. at 432.

      [84].       Ellison v. St. Mary’s Hosp., 8 Va. Cir. 330, 330–31 (1987) (Henrico County).

      [85].    Id. at 332.

      [86].       Id. at 331.

      [87].    Id. at 332.

      [88].       Spence v. E.S.I.S., Inc., 18 Va. Cir. 366, 366–67, 372 (1989) (Virginia Beach City). The court added that since Spence had failed to meet one of the prongs of the Womack test, it need not look to the other three. Id. at 372–73 (citing Johnson v. McKee Baking Co., 398 F. Supp. 201, 209 (W.D. Va. 1975)).

      [89].       Id. at 373.

      [90].       Starks v. McCabe, 49 Va. Cir. 554, 554 (1998) (Norfolk City).

      [91].    Id. at 555.

      [92].       Id. at 558–59.

      [93].    Id. at 559.

      [94].    Id.

      [95].       Id.

      [96].       Id.

      [97].       Id.

      [98].       Blakeman v. Emergency USA, 83 Va. Cir. 269, 269–70 (2011) (Fairfax County).

      [99].    Id. at 270.

    [100].       Id. at 278–79.

    [101].       Id. at 278.

    [102].       As these cases show, the fourth element of the tort, severity, “is perhaps the most difficult to apply to the facts of a case.” Calloway v. Commonwealth, 99 Va. Cir. 400, 417–18 (2018) (Augusta County) (plaintiff, a visitor to a prison, “was upset, and crying” and “shocked, frightened, and felt degraded and humiliated” when she was subjected to a strip search, but the court rejected her claim that she suffered severe emotional distress).

    [103].    Russo v. White, 241 Va. 23, 28, 400 S.E.2d 160, 163 (1991).

    [104].       24 Va. Cir. 289 (1991) (Richmond City).

    [105].    Id. at 290.

    [106].       Id. at 293.

    [107].    Id.

    [108].       47 Va. Cir. 569 (1997) (Fairfax County).

    [109].       Id. at 570.

    [110].       Id.

    [111].       Id. at 570, 574.

    [112].       Id. at 570.

    [113].    Id. at 569.

    [114].    See id. at 569, 571.

    [115].    Id. at 574.

    [116].       Id.

    [117].    Id.

    [118].    Id. at 574–75.

    [119].       Id. at 575.

    [120].       Id.

    [121].       63 Va. Cir. 50, 51 (2000) (Virginia Beach City).

    [122].       Id.

    [123].       Id. at 51.

    [124].    Id.

    [125].    Id.

    [126].    Id.

    [127].    Id. at 51–52.

    [128].       Id. at 51.

    [129].    See id. at 55; see also Russo v. White, 241 Va. 23, 28, 400 S.E.2d 160, 163 (1991).

    [130].       Padilla, 63 Va. Cir. at 55 (citation omitted).

    [131].       51 Va. Cir. 334, 334–36 (2000) (Roanoke City).

    [132].       69 Va. Cir. 385, 385 (2005) (Norfolk City).

    [133].       Id. at 385–86.

    [134].    Id. at 386.

    [135].       Id. at 388–89.

    [136].       Id. at 389.

    [137].    Id. at 389.

    [138].       Id.

    [139].       85 Va. Cir. 460 (2012) (Fairfax County).

    [140].    Id. at 462–63, 468–69.

    [141].       Id. at 463.

    [142].    Padilla v. Silver Diner, 63 Va. Cir. 50, 51 (2000) (Virginia Beach City) (quoting Hygh v. Geneva Enters., Inc., 47 Va. Cir. 569, 575 (1997) (Fairfax County)).

    [143].       Id.

    [144].    See generally Va. Code Ann. §§ 65.2-100 to -1310 (Repl. Vol. 2017 & Cum. Supp. 2019).

    [145].       Id. § 65.2-307 (Repl. Vol. 2017 & Cum. Supp. 2019).

    [146].    170 Va. 329, 196 S.E. 684 (1938).

    [147].       Id. at 335, 196 S.E. at 686.

    [148].       Id. at 335, 196 S.E. at 686.

    [149].       Id. at 335, 196 S.E. at 686.

    [150].       Id. at 335, 196 S.E. at 686.

    [151]Id. at 335, 196 S.E. at 686.

    [152]Id. at 335, 196 S.E. at 686.

    [153]. 60 Va. Cir. 87, 87 (2002) (Norfolk City).

    [154]Id. at 87.


    [156].  Id. at 87–88.

    [157]Id. at 88, 91.

    [158]Id. at 90.


    [160]. Id.

    [161]. Id.

    [162]. 247 Va. 150, 439 S.E.2d 394, 395 (1994).

    [163]Id. at 151, 439 S.E.2d at 394, 395.

    [164]Id. at 151, 439 S.E.2d at 395–96 (citing Va. Code Ann. § 65.2-307 (Repl. Vol. 1991)).

    [165]Id. at 154, 439 S.E.2d at 396–97.

    [166]Id. at 154, 439 S.E.2d at 396–97.

    [167]. 63 Va. Cir. 50, 51–53, 55 (2000) (Virginia Beach City).

    [168]Id. at 53 (citations omitted).

    [169]Id. at 53; Haddon v. Metro. Life Ins. Co., 239 Va. 397, 398–99, 389 S.E.2d 712, 713–14 (1990).

    [170]Padilla, 63 Va. Cir. at 53 (citing Richmond Newspapers v. Hazelwood, 249 Va. 369, 373, 457 S.E.2d 56, 58 (1995)); see also City of Richmond v. Braxton, 230 Va. 161, 162–65, 335 S.E.2d 259, 260–62 (1985) (holding that a sexual assault on a female employee was of a personal nature and not directed against the employee as part of the employment relationship).

    [171]Padilla, 63 Va. Cir. at 54.


    [173]Id. at 55.


    [175]Hazelwood, 249 Va. at 373, 457 S.E.2d at 58.

    [176]. Lichtman v. Knouf, 248 Va. 138, 139–40, 445 S.E.2d 114, 114–15 (1994); see also Reamer v. Nat’l Serv. Industries, 237 Va. 466, 467–68, 470–71, 377 S.E.2d 627, 628–30 (1989) (woman working alone in a furniture store who was sexually assaulted by man who entered the store through employees’ entrance, forcibly took her into the bathroom, and raped her twice before robbing the store was victim of sexual assault that was personal to her and not directed at her because she was an employee, so her claims not barred by Workers’ Comp.); City of Richmond v. Braxton, 230 Va. 161, 162, 164–65, 335 S.E.2d 259, 260–62 (1985) (ticket-seller at city-owned theatre who was molested by her supervisor at the place of and during the hours of employment, did not suffer an accident arising out of the employment, since there was no causal connection between the injury and the employment as the finding that the employee would have been equally exposed to the risk of the hazard of being molested outside of work); Morgan v. Brophy, 94 Va. Cir. 301, 301–03 (2016) (Chesapeake City) (employee claim for intentional infliction of emotional distress against employer where her supervisor cursed her and shoved boxes at her was victim of an assault, and her injury did not arise out of the employment as it was personal, so the Workers’ Compensation Act did not bar her claim); Morgan v. MDC Holdings, Inc., 54 Va. Cir. 45, 45, 52 (2000) (Fairfax County) (plaintiff was sexually assaulted by a fellow employee and her claim was not barred by the Workers’ Compensation Act).

    [177]. Bodewig v. K-Mart, Inc., 635 P.2d 657, 658–59 (Or. Ct. App. 1981).

    [178]Id. at 660–62.

    [179]Id. at 661–62.

    [180]. Id. at 662 (quoting Rockhill v. Pollard, 485 P.2d 28, 32 (Or. 1971)).



    [183]. 99 Va. Cir. 400, 400 (2018) (Augusta County).

    [184]Id. at 418.

    [185]. Id. at 417.

    [186]Id. at 418.


    [188]. Russo v. White, 241 Va. 23, 25, 400 S.E.2d 160, 161 (1991).

    [189]. Bodewig v. K-Mart, Inc., 635 P.2d 657, 662 (Or. Ct. App. 1981)              .

    [190]See id.

    [191]. Padilla v. Silver Diner, 63 Va. Cir. 50, 53 (2000) (Virginia Beach City).

    [192]. 247 Va. 150, 439 S.E.2d 394 (1994).

    [193]. Hughes v. Moore, 214 Va. 27, 34, 197 S.E.2d 214, 219 (1973).

“In the Little World”: Breaking Virginia’s Foster-Care-to-Prison Pipeline Using Restorative Justice

“In the Little World”: Breaking Virginia’s Foster-Care-to-Prison Pipeline Using Restorative Justice

Joanna R. Steele, Comment, “In the Little World”: Breaking Virginia’s Foster-Care-to-Prison Pipeline Using Restorative Justice, 54  U.R. L. Rev. 313 (2019).

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In the little world in which children have their existence, whosoever brings them up, there is nothing so finely perceived and so finely felt as injustice.”[1]

Measuring a nation’s strength by the health of its economy or armed forces is easy. In those regards, the United States is one of the strongest nations on Earth. If we judge our country’s strength by how it cares for the 443,000 children in foster care,[2]however, the result is completely different. The United States has created a foster-care-to-prison pipeline that sweeps vulnerable children into the penal system at alarming rates.

This Comment proposes that integrating restorative justice conferencing into Virginia’s foster care system can help break its foster-care-to-prison pipeline. Part I details Virginia’s foster care system and the foster-care-to-prison pipeline. Part II reviews and explains how restorative conferencing in Glenmona, Northern Ireland’s equivalent foster care system correlates strongly with decreased incarceration of foster children. Part III outlines how Virginia can implement the same restorative conferencing in its foster care system and pioneer a program that could affect its foster-care-to-prison pipeline

I. Virginia and the Foster-Care-to-Prison Pipeline

In order to understand Virginia’s foster-care-to-prison pipeline, it is important to understand that the foster-care-to-prison pipeline is a national problem. In 2004, the Bureau of Justice Statistics conducted a national survey of 14,500 inmates from state prisons and 3700 inmates from federal prisons using computer-assisted personal interviewing.[3] Of those surveyed, 7% reported having ever been in foster care.[4] Furthermore, of the 999 inmates between ages eighteen and twenty-one that were surveyed,[5]15% reported ever being in foster care.[6] As of September 30, 2004, less than 1% of children under the age of eighteen were placed in foster care.[7] This means foster children are 21% more likely to be incarcerated than children raised by their families.

Before explaining how the national foster-care-to-prison pipeline impacts Virginia’s foster youth, this Comment will give an in-depth explanation of how Virginia’s foster care system is administered, the makeup of Virginia’s foster care population, the factors that lead to a child’s placement in the system, and the types of counseling services the system provides to foster youth.

A. Virginia’s Foster Care System

The primary focus of Virginia’s child welfare system is the reunification of families.[8] Children who are not reunified with their families are placed in the foster care system,[9] which currently fails to provide children with the necessary support due to inadequate oversight and training.

Virginia’s foster care system is locally administered and state-supervised.[10] This means that rather than having direct state oversight, local departments oversee the care and placement of foster children.[11] In turn, these departments are supervised by local boards that report to the state.[12] Virginia’s foster care system is also subject to review by the Children’s Bureau (or “Bureau”), an office of the United States Department of Health and Human Services (“DHHS”).[13] The Children’s Bureau conducts federal reviews to ensure that state practices conform to federal law.[14]

In its reviews, the Children’s Bureau looks into the safety and well-being of foster youth.[15] The Bureau also focuses on whether caseworkers diligently seek out permanent homes for foster children.[16] In 2004, 2009, and 2017, the Bureau expressed concerns with Virginia’s practices relating to the safety and well-being of foster youth,[17] caseworker trainings,[18] and the state’s efforts to find permanent homes.[19] Caseworkers in Virginia are responsible for facilitating where children are placed as well as supervising their well-being during placements.[20] In its previous review, the Bureau found that caseworkers were not consistently taking the basic steps necessary to ensure foster children’s well-being.[21] For one, many caseworkers do not complete their regular monthly visits.[22] This step alone can result in care giver maltreatment remaining undiscovered.[23] As for placements themselves, caseworkers place children in settings that would not typically be approved but for the use of emergency placement protocol.[24] In fact, Virginia’s Department of Social Services (“VDSS”) found that in ninety-eight cases (4%), basic placement safety requirements for emergency placements were not met.[25] These cases were spread across thirty-four of Virginia’s departments of social services.[26]

As for caseworker training, in 2017 the Bureau noted that new staff routinely skipped their required initial trainings.[27]Another external review revealed that VDSS failed to provide effective on-the-job training.[28] Of those surveyed, 25% of caseworkers felt they had not received sufficient guidance and training, while 23% of responding supervisors believed most caseworkers did not have the necessary skills and knowledge to effectively manage their cases.[29]

With respect to permanent placements, a higher proportion of children “age out” of foster care in Virginia than in other states.[30] In 2016, 19% of children exiting Virginia’s foster care system aged out, which was more than double the national median of 8%.[31] This has been a common trend for Virginia since 2007.[32] Virginia’s high age out rate correlates with insufficient efforts by caseworkers to reunify children with their parents or find them permanent placements. For instance, local departments made “concerted efforts” to find permanent homes for foster youth in only 25% of the cases sampled in a federal review, which is much less than other states’ 45%.[33]

A lack of a permanent placement affects a foster child’s ability to develop emotional connections and community ties.[34]When foster children have multiple temporary placements in nonrelative or congregate care, their ability to form secure attachments to any care giver is disrupted.[35] This attachment disruption essentially stunts a child’s ability to develop healthy emotional relationships and negatively impacts a child’s psychiatric development.[36] Younger foster children are particularly susceptible to the negative effects of attachment disruption.[37] Understanding the makeup of Virginia’s  foster  care  population will  provide  more  insight  as to the number of children at risk of or suffering from attachment disruption

B. Virginia’s Foster Care Population

Over the past decade, Virginia’s foster care population has generally decreased.[38] As of September 2016, Virginia had the lowest rate of children in foster care of any state in the country, with 2.6 per 1000 children in the system.[39] However, the current population of children in Virginia’s foster care system is increasing in accordance with a nationwide trend.[40] Between 2007 and 2013, the number of children in Virginia’s foster care system decreased from 6700 to 4270.[41] As of June 2018, however, the number increased by 9% from 2013 to 4670.[42] The creation of the Fostering Futures program, which raised the exit age for foster care from eighteen to twenty-one, further increased Virginia’s foster care population.[43] As of June 2018, 667 additional children between the ages of eighteen and twenty were in the system, increasing Virginia’s total foster care population to 5340.[44] Thus, Virginia’s foster care population increased by 25% between 2013 and June 2018.[45]

Despite raising the age limit of foster care to twenty-one, a majority of the population consists of younger children.[46] In 2007, 45% of all children in Virginia’s foster care system were younger than twelve.[47] By 2018, this proportion grew to 58% of the foster care population.[48] Furthermore, Virginia’s foster care population has seen a pronounced increase of children under five in recent years.[49] The  number  of  kids  younger  than  five  in  the  system  increased by  21%  between  2013 and 2018—more  than  double  the 9% overall rate of increase for children under eighteen during the same period.[50]

There is a strong correlation between the increasing number of young children in Virginia’s foster care system and the opioid crisis.[51] The number of children who entered Virginia’s foster care system as a result of parental drug abuse increased by 71% between 2007 and 2016.[52] While Virginia’s growth rate is unfortunately in line with a nationwide trend, it is significantly higher than the national growth rate of 47%.[53] Even though the primary objective of the Virginia foster care system is reunification and permanency,[54] this objective is harder to achieve where parental drug abuse is involved.

Separating children from their parents, however, is traumatizing for foster children.[55] In fact, long-term studies have shown that impoverished children placed in foster care are more likely to suffer emotional problems than children raised by abusive or neglectful parents.[56] However, the state cannot turn a blind eye to children suffering parental abuse and neglect. In such circumstances, Virginia state courts usually begin the process of terminating parental rights and seeking foster care placement.[57]

C. Termination of Parental Rights and Available Placements

In Virginia, Termination of Parental Rights (“TPR”) is a process initiated when parents or care givers threaten a child’s well-being.[58] A Juvenile and Domestic Relations judge determines whether TPR is in the best interest of the child using clear and convincing evidence.[59] TPR can only occur where (1) reasonable efforts have been made to prevent a child’s removal; and (2) allowing the child to remain in their home would be contrary to the child’s welfare.[60] Once TPR is granted, Virginia has four primary placement options for foster children: relative placement; nonrelative placement; nonrelative therapeutic placement; or congregate care.[61]

Relative placement involves a child being placed with a family friend or relative who has been trained and approved as a licensed parent.[62] Nonrelative placement occurs when a child is placed with a licensed foster parent previously unknown to the child.[63] Nonrelative therapeutic placement is where a child with special care needs is placed with foster parents who are trained, licensed, and supported through a child placing agency rather than the local departments of social services.[64] Lastly, a child can be placed in congregate, or group home, care where strict supervision procedures are in place.[65] Children placed in congregate care have complex physical and behavioral health needs and require intense treatment and supervision.[66]

Virginia law prioritizes relative placement care for foster children unless it is inappropriate or unavailable.[67] State law also requires foster children to be placed in the “least restrictive” placement that suits their needs.[68] Studies show that the best practice for ensuring the overall well-being of a child is to prioritize relative placements and to utilize congregate care as a last resort.[69] In relative care, children suffer less trauma, enjoy increased stability, and better maintain their sense of community.[70]Conversely, congregate care should only be used where a child has a “clear clinical need for intense treatment and supervision, and no other placement options can meet those needs.”[71] As a result, children are expected to receive nonrelative placements if relatives are ruled out and congregate care is deemed unnecessary.[72] If a nonrelative placement is unavailable in a child’s locality, the child may then be placed in nonrelative care in a different locality, or in congregate or therapeutic care.[73] These alternative placements could result in children being removed from their community or being placed in an overly restrictive environment.

As of 2016, local departments of social services placed only 6% of children with relatives, approximately one-fifth as often as the national average, despite legal requirements and established best practices.[74] Recent interviews conducted by VDSS suggest that this low rate of relative placement relates to inadequate efforts by local departments to secure relative care.[75] At the time, only 22% of 970 sample cases used the “person locator” tool available to local departments for finding relatives.[76] Furthermore, letters asking relatives to be foster care providers were not sent in 44% of 965 sample cases.[77]

Virginia’s low rate of relative placement care is not solely due to insufficient efforts by social workers. In the past twelve months, half of the 161 caseworkers surveyed by VDSS stated that relatives declined to provide foster care.[78] The four commonly given reasons were “(1) the high needs of the child in foster care, such as challenging behavioral or medical needs, (2) an inability or unwillingness to go through the foster parent approval process, (3) an inability to meet the criteria for approval, and (4) an inability to assume the financial responsibilities of caring for the child.”[79] Other obstacles to relative placement include parents’ unwillingness to provide information about a child’s relatives[80] and failure by local departments to use existing procedures to expedite the approval of relatives as foster parents.[81]

A consequence of Virginia’s low relative placement rate is that the system places children in congregate care more often than needed.[82] In 2016, 17% of children in Virginia’s foster care system lived in congregate care, compared to 12% nationwide.[83]Furthermore, the proportion of Virginia’s foster children placed in congregate care has increased over the last five years, whereas the proportion of children in congregate care placements nationwide has decreased in the same time period.[84] This increase in congregate care placement has been especially prevalent for children over the age of twelve.[85] For Virginia foster youth over the age of twelve, the rate of using congregate care as a child’s predominant placement increased from roughly 27% to 39% between 2012 and 2017.[86]

National experts agree that states should use congregate care, such as treatment facilities and group homes, only for a short term when a child has a clinical need.[87] A “substantial proportion” of Virginia’s foster youth in congregate care, however, do not have a clinical need for the placement.[88] In fact, 60% of children who entered congregate care in Virginia between 2012 and 2016 did not meet the threshold standards required for such a placement.[89] Studies have shown that when states unnecessarily place children in congregate care, these children and teenagers later have a limited ability to form healthy attachments with care givers.[90] These overly restrictive placements also limit foster children’s ability to develop an age-appropriate level of independence.[91]

Although Virginia provides counseling services for foster youth to help address their mental wellness issues, the following section explains why these services are not helping foster youth successfully manage any of these developmental issues.

D. Counseling Services for Virginia’s Foster Youth

Virginia’s Medicaid program provides mental health and intellectual disability services to the state’s foster children.[92]Community service boards and private providers primarily provide for sixteen mental health-related services, including crisis intervention and stabilization.[93] There are several indicators, however, that foster youth are not receiving the mental health services they need.[94] First, multiple mental health services, including intensive community treatment and therapeutic behavior services, require approval before treatment can begin.[95] Second, a 2017 federal review found that local departments of Virginia’s social services did not properly assess the mental and behavioral health needs of children in foster care for nine of thirty-four applicable cases.[96]

Federal reviews further discovered that foster parents struggle to obtain mental and behavioral health services for children in their care.[97] Of the foster parents who indicated that children in their care needed behavioral or mental health services in the twelve months before the 2017 survey was conducted, 46% indicated they were “rarely or only sometimes” able to obtain the necessary treatment.[98] Many of the foster parents pointed to lack of follow through or responsiveness from local department staff as a primary obstacle to children receiving treatment they needed.[99]

The lack of sufficient counseling services, in combination with Virginia’s young foster care population and low relative and permanent placement rates, contribute to undermining and eliminating the community ties and developmental capacity of Virginia’s foster youth. In turn, this leads children to act out and engage in delinquent behavior that ultimately funnels them into the prison pipeline.[100]

E. Virginia’s Prison Pipelines

There are several descriptors for the system that funnels children into prison. Scholars have written about the cradle-to-prison pipeline,[101] the school-to-prison pipeline,[102] and the foster-care-to-prison pipeline.[103] In 2007, the Children’s Defense Fund reported on Virginia’s cradle-to-prison pipeline.[104] The report noted that while poverty is the primary driving  force  behind  children being funneled into the prison system, children in foster care were at a higher risk of being trapped in the pipeline.[105]

While few scholars have compiled evidence on this subject, the available statistics surrounding Virginia’s foster care alumni indicate that a foster-care-to-prison pipeline does exist. According to a 2017 study, 25% of Virginia’s surveyed foster youth were incarcerated by age twenty-one, compared to the national average of 22%.[106] In the 2000s, studies revealed that children under government care in Northern Ireland were being swept into a prison pipeline similar to Virginia’s.[107] To address this problem, Northern Ireland began implementing restorative conferencing in its comparable congregate care units.

II. Northern Ireland and its Out-of-Home Care Evolution

Northern Ireland’s out-of-home care system is similar to the foster care systems established in Virginia and throughout the United States. Comparing the United States to Northern Ireland implicates societal externalities that have played a role in shaping the foster care landscape in the two countries; but any such incongruities notwithstanding, the underlying problems, and the proposed policy responses thereto, are highly analogous. Most importantly, the evolution of Northern Ireland’s out-of-home care system is illustrative of the immense benefits that foster youth can reap from targeted policy initiatives designed to encourage more robust investment  in  the  infrastructure  of  a  system  failing  its intended beneficiaries.

While local departments administer Virginia’s foster care system, the United Kingdom’s Department of Health, Social Services and Public Safety supervises Northern  Ireland’s out-of-home care on a national level.[108] Children in Northern Ireland’s out-of-home care system are referred to as “looked after” children.[109]

During the 1980s and 1990s, Northern Ireland focused on enhancing preventative and interventionist foster care programs, but these programs led to the decline of residential services for looked after children.[110] By the mid-1990s, residential homes were a place of last resort for Northern Ireland’s looked after youth because years of neglect had led to a decline in available volunteer service providers and residential care locations.[111]

In October 1998, Northern Ireland’s Department of Health, Social Services and Public Safety released the Children Matterreport detailing the department’s findings after a regional review of residential care homes.[112] The report revealed that, like Virginia’s current foster care system, there were inadequate residential homes available for looked after children, and children were inappropriately placed.[113] The report further revealed that a majority of residential homes had an unacceptable level of violence and overly relied on the accommodation’s security to effect control.[114] In response to the report’s findings, the Department of Health, Social Services and Public Safety created the Ministerial Children Matter Task Force, which created a two-part Regional Action Plan.[115] This action plan resulted in the creation of Northern Ireland’s Intensive Support Units.[116]

A.  Northern Ireland Implements Intensive Support Units

By 2001, the Children Matter Task Force had created Intensive Support Units (“ISUs”) as residential homes within the out-of-home care system that would serve as regional specialist accommodations for looked after youth.[117] Like children in Virginia’s congregate care facilities, regional specialist accommodations provide a heightened level of supervision and care focused on helping the most problematic looked after children deal with complex emotional issues.[118]

Unfortunately, placements in ISUs increased the likelihood that looked after children would become entangled in the criminal justice system.[119] Surveys conducted at youth offender institutions in England and Wales similarly found that 29% of boys and 44% of girls in these institutions reported having been looked after youth at some point in their childhood.[120] In fact, offenses committed in children’s homes were more likely to be reported to the police than those committed by children elsewhere.[121]These statistics strongly indicated that ISUs were creating a pipeline to juvenile justice  centers.

To fight this phenomenon, Northern Ireland began introducing restorative conferencing into its out-of-home care system so that looked after children could receive similar treatment to those who live among their families.[122]

B. Restorative Conferencing in the ISUs of Glenmona, Northern Ireland

In April 2005, ISUs in Glenmona, Northern Ireland were selected as the experimental locations for implementing restorative conferencing.[123] The experiment’s goal was to reduce the number of looked after children transferred from the Glenmona ISUs to the Juvenile Justice Center.[124] The Glenmona ISUs partnered with several community programs so that the ISUs’ staff could receive sufficient restorative conferencing training.[125] Barnardo’s, the ISUs’ primary partner in the Glenmona experiment,  is  the oldest and largest children’s charity in the United Kingdom.[126] Barnardo’s volunteers administered restorative conferencing training to ISUs throughout the experiment.[127]

The process involved fully training senior staff of the ISUs in informal and formal restorative conferencing techniques as well as Therapeutic Crisis Intervention tactics on the children and staff.[128] Staff who had daily and direct contact with the children participated in two-day trainings on restorative conferencing.[129] The target of the staff training was to cast restorative justice practices in the light of building restorative communities where good relationships are of primary importance. Before discussing the benefits restorative conferencing had on the community development of Glenmona’s looked after children, this Comment will review the informal and formal restorative conferencing methods taught to Glenmona ISUs’ staff.

  1. Informal Restorative Conferencing in Glenmona ISUs

Informal restorative conferencing uses casual and spontaneous communication techniques to help participants respectfully and thoughtfully communicate their perspective on a situation while also challenging participants to reflect on how their behavior affects others.[130] The Glenmona ISUs used four specific informal restorative conferencing methods: restorative enquiry, affective statements, impromptu mini-conferencing, and weekly circles.[131]

Restorative enquiry is the foundation of every restorative conference method.[132] Restorative enquiry asks participants to actively listen to each other without judgment.[133] The enquiry involves five questions, which can be adapted to the participants:

(1)  What has happened?

(2)  Who has been affected?

(3)  What needs to be done to repair the damage caused?

(4)  How can we involve everyone who has been affected in finding a way forward?

(5)  How can everyone do things differently in the future?[134]

In conjunction with restorative enquiry, affective statements are part of informal conferencing.[135] Affective statements communicate a person’s feelings about an altercation or situation.[136] ISU staff regularly used these two methods to address nonemergency daily issues that arose within the home.[137] These situations could involve something as simple as children failing to return clothes they borrowed from another housemate or failing to complete assigned chores.

A third informal restorative conferencing method Glenmona ISUs staff used was impromptu mini-conferencing.[138] While impromptu conferencing is more structured than restorative enquiry, it was part of the informal conferencing training as it was used to address daily communication issues rather than serious altercations or behavioral issues.[139] Impromptu mini-conferencing required staff to act as mediators between the children who had a conflict, using restorative enquiry to guide the discussion and ensure affective statements were used.[140] The key to this conference method is that staff do not act as a judge, but rather as conversation facilitators whose goal is to help the children come to a mutual conclusion.[141]

Lastly, the Glenmona ISUs used restorative conferencing circles on a weekly basis as part of the informal restorative conferencing.[142] When using the restorative conferencing circle informally, everyone in the ISU—children and care providers—gathered in a circle and took turns discussing concerns or updates on the house.[143] Unlike a circle responding to a behavioral issue, the circle here never addressed serious behavioral problems; rather, the circle was a method of grounding the placement home and developing stronger social and communication skills amongst the staff and children.[144]

While the Glenmona ISUs used informal restorative conferencing methods on a regular basis, children in ISUs still needed more formal and intensive restorative conferencing to address more severe altercations such as interpersonal violence or behavioral crises.[145] Glenmona ISUs use Restorative Conferencing and Therapeutic Crisis Intervention as formal restorative conferencing methods.

  1. Formal Conferencing in Glenmona ISUs

Formal conferencing is a scheduled, highly structured process used to address serious behavioral problems or altercations. In the Glenmona ISUs, staff used Restorative Conferencing and Therapeutic Crisis Intervention to address severe problems such as petty theft, behavioral crises, and interpersonal violence.[146] Restorative conferencing required the ISU staff, children, Barnardo’s trainers, and other affected parties to sit down with the looked after child to address and resolve the altercation using restorative enquiry and affective statements.[147]

The second formal conferencing method used in the Glenmona ISUs, Therapeutic Crisis Intervention (“TCI”), is a specialized technique that helped staff adequately respond to a child in a crisis situation.[148] A crisis situation occurs when a child’s inability to cope results in a sharp change of behavior that could result in harm to others or the child.[149] Central to the TCI approach is that it required ISU staff to ask the child what they were feeling and how the environment was affecting them, which made the child’s needs the central focus of the intervention.[150]

  1. Restorative Conferencing and Community Development

The goal of restorative conferencing is restoring and rebuilding relationships.[151] Research indicates that through a mutual exchange of expressed affect, which involves children expressing their emotions to each other,[152] foster children can build communities through the emotional bonds restorative conferencing creates.[153] In particular, restorative conferences provide a safe space for children to exchange and express intense emotions.[154] This exchange of emotions leads children to build critical social capital.[155] Social capital refers to “the connections among individuals and the trust, mutual understanding, shared values and behaviours that bind us together and make cooperative action possible.”[156] By addressing this social capital deficit in its ISU, the Glenmona experiment improved the relationships within the ISU among children and staff.[157]

Staff reported that restorative conferencing allowed them to work longer with children in a crisis who would typically have been referred to the Juvenile Justice Centre.[158] Furthermore, staff remained “highly motivated” to continue working in the ISUs, which in turn led to less turnover in the facility.[159] Looked after children in the ISU also reported that they felt safe and cared for.[160] Along with anecdotal reports of improvement, the Glenmona experiment had positive empirical effects on the out-of-home-care-to-prison pipeline.

  1. Quantitative Results of Glenmona ISUs

Since the initial restorative conferencing program was implemented in the Glenmona ISUs, Barnardo’s went on to train and support staff in eight other care units by 2010.[161] Juvenile Justice Centre statistics indicate that implementing restorative conferencing in ISUs strongly correlated with a decline in the percentage of looked after children in youth detention facilities.[162] Between 2004 and 2006, 35% of children admitted to the Juvenile Justice Centre were looked after children.[163] In 2007, after restorative conferencing was implemented in multiple ISUs, that percentage dropped to 29%.[164] In 2008, 19% of Juvenile Justice Centre youth were looked after children.[165] As of July 2009, the majority of looked after children referred to the Juvenile Justice Centre were coming from residential care units that did not use restorative conferencing.[166]

In light of these results, Virginia should use similar restorative conferencing practices to help break its own foster-care-to-prison pipeline.

III.   Breaking Virginia’s Foster-Care-to-Prison Pipeline Using Restorative Conferencing

Using restorative justice practices with children in the United States is not a novel practice.[167] While restorative justice practices are often used when youth enter the juvenile justice system, this Comment proposes a plan to integrate restorative conferencing throughout the foster care system in order to break the foster-care-to-prison pipeline in Virginia. As discussed in Part II, formal and informal restorative conferencing practices and models can be used to help foster children develop the sense of community and connection Virginia’s foster care system currently fails to supply. Restorative conferencing would not only create a community for foster children to rely upon, it could be integrated cost-effectively throughout the foster care process to develop the social capital that is necessary to divert children from the prison pipeline.

A. Restorative Conferencing Methods

There is no one-size-fits-all approach to restorative conferencing, nor should there be. In fact, the foster care system’s generic approach to every case causes many foster children to feel as though their individual identities, goals, and struggles are overlooked or ignored.[168] The Glenmona experiment illustrated that using restorative conferencing throughout the foster care process can empower children by giving them an avenue to control their own journey, providing them with a sense of community, protecting their voices, and ultimately, breaking the foster-care-to-prison pipeline[169]

Virginia can also begin dismantling its foster-care-to-prison pipeline by implementing restorative conferencing throughout the foster care process in three specific situations. First, nonemergency Family Group Conferencing should be utilized prior to TPR. Second, Virginia should give foster care providers and caseworkers informal and formal restorative conference training. Third, local departments of social services should create school response units trained in restorative conferencing to interact with local schools.

  1. Nonemergency Family Group Conferencing Pre-TPR

Family Group Decision Making (“FGDM”) is a model of restorative conferencing used in child welfare systems across the globe.[170] FGDM was first introduced in New Zealand to counter traditional decision-making models in child welfare systems that ceded control to child welfare professionals and experts.[171] The purpose of the FGDM model is to place control back into the hands of children’s communities by respecting and protecting their cultural ties.[172] Family Group Conferencing is a tool used within the FGDM model. FGCs are conferences that often deal with the aftermath of a harmful event by building partnerships among families and focusing on a family’s strengths and the child’s community.[173] Most importantly, FGCs provide children with time to meet privately with their community, without professionals, where the focus is on the child’s wellness.[174]

While FGCs were not used during the Glenmona experiment, Northern Ireland has used FGCs throughout its child welfare system.[175] The focus of these FGCs has been to transfer power traditionally held by welfare systems back to the family using community resources already in place.[176] As a result, a child’s community acts as the guardian of her overall well-being while the state acts as a child’s protector.[177] This structure has resulted in children maintaining stronger connections with their communities during their formative years.[178] In contrast, Virginia’s current rate of nonrelative and congregate care placement has resulted in foster children becoming isolated from their communities at critical points in their lives.[179]

Throughout Virginia, local departments of social services already utilize some variations of FGC before TPR.[180] Several localities invite a child’s parents, care givers, caseworkers, guardians ad litem, and other significant members of the child’s community together for the group conference.[181] In its current incarnation, however, FGCs are usually used only when changing a child’s placement.[182] In order to help a child maintain the sense of community temporary placements tend to undermine, however, the state should expand its use of FGCs beyond the placement decision process and include it as part of TPR rehabilitation.

Currently, Virginia’s Juvenile and Domestic Relations courts order parents to follow a rehabilitation process when their parental rights are initially at risk of termination.[183] The State also requires parents to demonstrate their continued dedication to their child’s well-being by maintaining active contact with the child and substantially planning the child’s future for the first six months of a child’s temporary placement.[184] In this specific context, FGCs could be utilized as a method of helping not only parents maintain the requisite amount of statutory contact with their child but also helping the family develop a community infrastructure and communication  techniques  that  can  endure  after  parental  rights  are restored.

Unlike most FGCs in place, courts could require that at least one monthly visit involve an FGC that is not a result of disciplinary concerns about the child, but instead focuses on the child’s community and addresses the child’s typical daily concerns. Under this proposal, nonemergency FGCs would involve the child’s parents, care givers, caseworker, guardians ad litem, and other invited members of the community to meet and discuss topics of importance to the child, such as new interests in extracurriculars or case developments.

For example, if a child begins expressing interest in playing basketball, the nonemergency FGC that month would involve the child’s parents, care givers, caseworkers, guardians ad litem, and other pertinent community members to gather and discuss what opportunities are available for the child to explore playing basketball, why the sport has become of interest to the child, and plans for helping the child make the goal a reality. By making these discussions a monthly requirement within the TPR process, Virginia could limit the deterioration of a child’s social capital.

Unfortunately, nonemergency FGCs are not a magical cure that will always result in family rehabilitation and reunification. While there is evidence that nonemergency FGCs can lead to higher rates of family reunification, there are too many cases where formal TPR is necessary to protect a child’s safety.[185] Once the state permanently removes a child from a parent’s care, however, Virginia can still help the child maintain a sense of community through other methods of restorative conferencing by training care givers and caseworkers in informal and formal restorative conferencing methods. Specifically, Virginia should create Restorative Conferencing Response Units to interact with schools and train care providers and caseworkers in informal and formal restorative conferencing.

  1. Restorative Conferencing Response Units for Schools

Creating stable school response units in local departments of social services would help bridge the gap between a child’s at-home community and the school system. Unlike children who are part of a normative family unit, foster children do not always have a consistent point of contact for schools to reach out to. Constant placement changes prior to or after TPR can leave schools with limited choices of whom to contact when a foster child is a party in an altercation with other students or staff.

By training caseworkers in restorative conferencing tactics, such as restorative enquiry and impromptu conferencing, and dispatching them to local schools, local foster care systems would provide education administrators with a stable point of contact for foster youth enrolled in their schools. In turn, foster children would have a consistent point of contact trained to ensure that the children’s voices are heard and protected. Establishing this dependable connection to an ally within the foster care system beyond placement providers would also expand children’s community ties beyond their home while providing them with advocates who more properly understand these children’s points of view.

  1. Restorative Justice Training for Foster Care Providers and Caseworkers

A major reason foster children have a high rate of changing homes is that care providers and caseworkers feel ill-equipped to adequately handle a foster child’s behavioral and developmental issues.[186] This leads care providers who have other children in the home to request that a child exhibiting behavioral problems be removed for fear that they will not be able to protect their other children.[187] The Glenmona experiment illustrates how the implementation of restorative conferencing can address this training deficiency and turnover rate.

In the Glenmona experiment, the evidence demonstrates that after receiving and implementing informal restorative conferencing and TCI techniques, staff “fe[lt] listened to” while also learning to take responsibility for their own contributions to altercations.[188] This willingness by staff to take accountability developed a sense of mutual respect and trust between the staff and the looked after children in their care.[189] Furthermore, staff using the restorative approach in the Glenmona experiment reported that it made them view their children as “frightened children in crisis and not destructive trouble makers,”[190] a change brought because the restorative training staff made a cultural change in the home—the purpose of restorative conferences.[191]As a result of the restorative approaches, ISU staff reported they were able to work longer with children in crisis who would have previously been transferred to the Juvenile Justice Centre.[192] These results are a compelling reason for Virginia to begin training congregate care providers in restorative justice methods.

Virginia’s congregate care providers should also be trained in informal restorative conferencing, formal restorative conferencing, and TCI. This training will not only provide congregate care providers with the tools to effectively navigate the heightened crisis situations they face with children placed in their care but would also provide children improperly placed in congregate care with a system to protect and express their needs.

Critically, training congregate care providers using the same method as the ISUs in Glenmona will help develop a sense of mutual trust and respect between congregate care providers and the foster children they care for. This mutual respect can provide these children with senses of community, belonging, and civic spirit—things which are vital for children to develop pro-social skills and attitudes.[193]

B. Implementing Restorative Conferencing Methods in Virginia

A primary concern with these restorative conferencing suggestions is that implementation would require extensive training, time, and resources. This concern is valid since studies show that the extensive training requirements contribute to low relative placement acceptances as well as low training turnout among caseworkers.[194] The policy infrastructure already in place in Virginia and within the federal government, however, provides adequate tools and means for implementing the suggested restorative conferencing scheme.

  1. Restorative Conferencing Time Commitments

Implementing the three restorative practices suggested previously necessarily implicates time commitments for all the parties involved, such as parents, caseworkers, and care providers. Requiring restorative conferencing practices from the initial temporary placement of a child, through the TPR process, and possibly up to the age of twenty-one when Virginia foster children age out of the system[195] would require hundreds of caseworkers and care providers to dedicate time to both training and conferencing. Integrating the three suggested restorative conferencing methods can be done efficiently, however, using the sustainable and attainable training program seen in the Glenmona experiment.

The Glenmona ISUs only required staff to participate in one two-day training session at the ISU rather than extensive outside programming.[196] After the initial two-day training, on-site training and mentorship was provided up to two days per week during the preliminary months of implementation, followed by support from a mentoring group that assisted with any further difficulties, practice issues, and other additional support as needed.[197]

Using Glenmona’s implementation practice as a model, Virginia should first develop the Restorative Conferencing Response Units in local departments. The Response Units should not immediately begin responding to local schools, however; the caseworkers in the Response Unit should first act as the on-site trainees for traditional caseworkers, guardian ad litem staff (or their equivalent), and congregate care providers and staff. Using the Response Units to provide an initial wave of training to these specific parties in the foster care system would go a long way toward integrating restorative practices throughout the foster care process.

To avoid placing a substantial burden on the parties’ time, caseworkers, guardians ad litem, and congregate care providers should only be required to attend one two-day training conference per year, where the best restorative conferencing practices are discussed and taught. After the initial training, the initial Response Units should then be built within each local department using a rotation schedule to provide on-site training through the nonemergency FGCs required as a part of the TPR rehabilitation process. Allowing the three programs to interact as both training and care would consolidate time requirements so that local, state, and federal best practices are met without increasing the burden on caseworkers, guardians ad litem, and congregate care staff.

Once congregate care staff transition from weekly on-site training, caseworkers and guardians ad litem can serve as the mentor groups for the home providers while the Response Unit becomes an available resource to the school. Although delaying when Response Units become active may raise concerns about how behavioral concerns of foster children at school are addressed, the Glenmona experiment demonstrated that solely training group care providers in  restorative  conferencing  still  led  to  a  decrease in  juvenile referrals.[198]

By first implementing restorative conferencing in the foster care community at home, children gain necessary communication skills and a sense of community that will allow them to maintain a greater level of stability, and in turn, better navigate new school environments. This will likely result in fewer foster children lashing out, thus decreasing the need for emergency response units.[199] In addition to time commitment implications, the suggested reforms may also implicate personal privacy concerns, particularly in implementing the School Response Units.

  1. Privacy Implications of Restorative Conferencing

For the Response Units to be successful, someone would need to inform teachers of their students’ current foster care status in order for the Response Unit to be notified as needed. While school administrators may be made aware of a child’s custodial status, foster children may not wish to have every teacher they interact with know their personal situation. Older foster children in their teens are likely to feel particularly distressed by this system.

To address a foster child’s concern regarding personal privacy in school, Virginia could implement a conditional waiver system to allow a child to opt-out under specific conditions that take into consideration age and the child’s personal progress. The central focus of these restorative conferencing reforms is to provide foster children a sense of community and belonging by giving them a voice in the process. Stripping foster children of their autonomy for the sake of ease would likely lead to a continued sense of isolation, and in  turn,  behavioral  choices  that  feed  the  foster-care-to-prison pipeline.

  1. Financial Resources for Restorative Conferencing

As for financial resources, both state and federal legislators have passed bipartisan legislation to provide additional resources for foster care.[200] In 2018, Congress passed the Family First Prevention Services Act, effective as of 2020.[201] The bill provides states with funds to implement TPR prevention services and provides additional funding to states for improved relative placement rates.[202]

In February 2019, Virginia’s General Assembly passed a $2.8 million Foster Care Omnibus bill and implemented its first Foster Care Caucus.[203] This spending bill allocated $851,000 to implementing the Family First Prevention Services Act.[204]Additionally, the legislature added $3.2 million dollars to Temporary Assistance for Needy Families (“TANF”) to help with relative placement costs.[205] With these newly  available  funding  resources,  Virginia has an unmatched opportunity to break its foster-care-to-prison pipeline by implementing restorative conferencing practices throughout the foster care system.


The latest legislative trend in spending and policy provides Virginia with the opportunity to integrate restorative justice conferencing practices throughout its foster care system. Implementing nonemergency Family Group Conferencing would protect foster children’s community bonds and help maintain them during the emotionally traumatic Termination of Parental Rights process rather than allowing these bonds to degrade and disappear. Creating Restorative Conferencing Response Units for schools and training caseworkers and care providers in Restorative Conferencing methods will give children the tools they need to engage with a supportive community system when facing hardships rather than turning to delinquent behavior.

Virginia’s implementation of restorative conferencing throughout the Termination of Parental Rights process will help the foster system develop into the community its children so desperately need. Through this community, Virginia will not only improve the lives of thousands of children­­­­—it will begin breaking the foster-care-to-prison pipeline currently engulfing children in government care.

        [1].    Charles Dickens, Great Expectations 66 (Heritage Press ed. 1967).

    [2].    Children’s Bureau, The AFCARS Report, Preliminary FY 2017 Estimates as of August 10, 2018,[https ://]. Data accurate as of September 30, 2017.

        [3].    Bureau of Justice Statistics, The Survey of Inmates in State Correctional Facilities (2004). The sample was selected from 1585 state prisons and 148 federal prisons. Id.

        [4].    Youngmin Yi & Christopher Wildeman, Can Foster Care Interventions Diminish Justice System Inequality?, 28 Future Children 37, 39 (2018), text/EJ1179175.pdf [].

        [5].    See Bureau of Justice Statistics, The Survey of Inmates in State and Federal Correctional Facilities, DS1 Federal Data (2004), D/studies/04572/datasets/0001/variables/V0013?archive=nacjd [ 43] (documenting ages of federal prisoners surveyed); Bureau of Justice Statistics, The Survey of Inmates in State and Federal Correctional Facilities, DS2 State Data, https://www. [] (documenting ages of state prisoners surveyed).

        [6].    Yi & Wildeman, supra note 4, at 39.

        [7].    Children’s Bureau, The AFCARS Report 1 (2006), /default/files/cb/afcarsreport11.pdf [] (explaining that 517,000 children were in foster care). In 2004, there were 73.3 million children under the age of eighteen in the United States. Child Population: Number of Children (in Millions) Ages 0–17 in the United States by Age, 1950–2017 and Projected 2018–2050,, https: // [] (indicating a total child population of 73.3 million in 2004).

        [8].    Va. Dep’t of Soc. Servs., Child and Family Services Manual, Pt. E, Foster Care, § 1.1 2019/section_1_foster_care_overview.pdf [] [hereinafter FC Guidance Manual § 1].

        [9].    Va. Dep’t of Soc. Servs., Child and Family Services Manual, Pt. E, Foster Care, § 3 19/section_3_entering_foster_care.pdf [] [hereinafter FC Guidance Manual § 3].

      [10].    Joint Legislative Audit & Rev. Comm’n, Improving Virginia’s Foster Care System 3 (2018) [hereinafter Improving Va.’s Foster Care].

      [11].    Id. at 4.

      [12].    Id.

      [13].    Id. at 5.

      [14].    Id.

      [15].    Id.

      [16].    Id.

      [17].    Id. at 5.      

      [18].    Id. at 71.

      [19].    Id. at 45–46, 51.

      [20].    Id. at 61–62.

      [21].    Id. at 18.

      [22].    Id. at 19–20.

      [23].    Id. at 19.

      [24].    Id.

      [25].    Id.

      [26].    Id.

  [27].    Id. at 71.

      [28].    Id.

      [29].    Id.

      [30].    Id. at 44; Children Exiting Foster Care by Exit Reason in Virginia: Emancipation, Kids Count Data Center, (2016), ren-exiting-foster-care-by-exit-reason?loc=48&loct=2#ranking/2/any/true/870/2632/13051 [] [hereinafter Children Exiting Foster Care]. Only New Hampshire has a higher percentage of children “aging out” of foster care. Children Exiting Foster Care, supra.

      [31].    Improving Va.’s Foster Care, supra note 10, at 44.

      [32].    Id.

      [33].    Id. at 45–46.

      [34].    Beth Troutman, Effects of Foster Care Placement on Young Children’s Mental Health: Risks and Opportunities 1 (2011), /files/list-751/file-921.pdf [].

      [35].    Id.; Lindsay Zajac, Group Care in The United States: A Brief Review of Prevalence, Problematic Outcomes and Alternatives 1 (“Children who develop insecure attachments with their care givers are at increased risk for problematic outcomes, including externalizing behaviors and psychopathology.”).

      [36].    Zajac, supra note 35, at 1–2.

      [37].    See id. at 1.

      [38].    Improving Va.’s Foster Care, supra note 10, at 6.

      [39].    Id.

      [40].    Id.

      [41].    Id.

      [42].    Id.

      [43].    Id.

      [44].    Id.

      [45].    Id.

      [46].    Id. at 8.

      [47].    Id.

      [48].    Id.

      [49].    Id.

      [50].    Id.

      [51].    See id. at 9.

      [52].    Id.

      [53].    Id.

      [54].    See supra note 8 and accompanying text.

      [55].    Troutman, supra note 34, at 1.

      [56].    Id.

    [57].   Id.

      [58].    FC Guidance Manual § 3, supra note 9 (citing Va. Code Ann. § 16.1-277.02) (Cum. Supp. 2019)).

      [59].    Id.

      [60].    Id.

      [61].    Improving Va.’s Foster Care, supra note 10, at 27–28.

      [62].    Id. at 27.

      [63].    Id.

      [64].    Id. at 27–28.

      [65].    Id. at 28.

      [66].    Id.

      [67].    Id. Departments of social services are also directed to “engage ‘other individuals who have significant relationships with the child.’” Id. These individuals are referred to as “fictive kin.” Id.

      [68].    Id.

      [69].    Id.

      [70].    Id.; see also Pew Charitable Trs. & Generations United, Time for Reform: Support Relatives in Providing Foster Care and Permanent Families for Children 3–5 (2007) orts/foster_care_reform/supportingrelativespdf.pdf []. As of 2007, 78% of foster children living with relatives in Virginia reported a stable home. Id. at 11 app. B.

      [71].    Improving Va.’s Foster Care, supra note 10, at 28.

      [72].    Id.

      [73].    Id.

      [74].    Id. The national average was 32%. Id.; see also Bridget Balch, Virginia Lags Behind National Average for Placing Children in Foster Care with Relatives, Report Says, Rich. Times Dispatch (Apr. 4, 2019), ics/virginia-lags-behind-national-average-for-placing-children-in-foser/article_023e026a-3b cb-5994-905c-65a37644ad67.html [].

      [75].    Improving Va.’s Foster Care, supra note 10, at 28.

      [76].    Id. at 28–29.

      [77].    Id. at 29.

      [78].    Id.

      [79].    Id.

      [80].    Id.

      [81].    Id. at 30.

      [82].    Id. at 32; see also Editorial: No More Foster Care Excuses, (Dec. 15, 2018), care-excuses/article_23b22272-f52c-5171-9fd9-c25f79d747eb.html  [] (“A substantial proportion of children in congregate care settings in Virginia do not have a clinical need to be there.”).

      [83].    Improving Va.’s Foster Care, supra note 10, at 37.

      [84].    Id.

      [85].    Id.

      [86].    Id.

      [87].    Id. at 3; see also Children’s Bureau, A National Look at the Use of Congregate Care in Child Welfare 7–10 (2015) ault/files/cb/cbcongregatecare_brief.pdf [] (“Child development theory, federal legislation, and best practice confirm what we know intuitively—children should be placed in settings that are developmentally appropriate and least restrictive.”).

      [88].    Improving Va.’s Foster Care, supra note 10, at 38.

      [89].    Id. AFCARS indicated that as of 2016, 23% of children in congregate care had no indicators necessitating the intense level of treatment and supervision provided in congregate care. Id.

      [90].    Id. at 36; see also Zajac, supra note 35, at 1.

      [91].    Improving Va.’s Foster Care, supra note 10, at 36.

      [92].    Va. Dep’t of Soc. Servs., Child and Family Services Manual, Pt. E, Foster Care, §, Mental Health Treatment and Intellectual Disability Services (Apr. 2013 ed.) Section_13_Providing_Foster_Care_Services.pdf [] [hereinafter FC Guidance Manual § 13].

      [93].    Id.

      [94].    Improving Va.’s Foster Care, supra note 10, at 23.

      [95].    FC Guidance Manual § 13, supra note 92.

      [96].    Improving Va.’s Foster Care, supra note 10, at 24.

      [97].    Id.

      [98].    Id.

      [99].    Id.

    [100].    See Miriam Aroni Krinsky, Disrupting the Pathway from Foster Care to the Justice System—A Former Prosecutor’s Perspectives on Reform, 48 Fam. Ct. Rev. 322, 324–25 (2010).

    [101].    See, e.g., Cradle to Prison Pipeline: Virginia, Children’s Defense Fund (2007) nia-2008-fact-sheet.pdf [].

    [102].    See, e.g., Cassie Powell, “One of the Worst:” The School-to-Prison Pipeline in Richmond, Virginia, RVAGOV (Mar. 2016), cgi?article=1128&context=law-student-publications [].

    [103].    See, e.g., Rachel Anspach, The Foster Care-to-Prison Pipeline: What It Is and How It Works, TeenVogue (May 25, 2018), [].

    [104].    Cradle to Prison Pipeline, supra note 101.

    [105].    Id.

    [106].    Elizabeth Jordan et al., Child Trends for the Better Hous. Coal. & Children’s Home Soc’y of Va., Supporting Young People Transitioning from Foster Care: Virginia Findings from a National Survey and Policy Scan 12 (2017) https:// ia-findings-national-survey-policy-scan [].

    [107].    Willie McCarney, Unicef, A Restorative Justice Approach to Working with Children in Residential Care 2, 4 (2010) pdf [].

    [108].    See id. at 2.

    [109].    Id.

    [110].    Id.

    [111].    Id.

    [112].    Id.

    [113].    See id.

    [114].    Id.

    [115].    Id.

    [116].    Id.

    [117].    Id.

    [118].    Id.

    [119].    Id. at 4.

    [120].    Id.

    [121].    Id.

    [122].    Id.

    [123].    Id. at 15, 19.

    [124].    Id. at 15.

    [125].    Id.

    [126].    Our Organisation, Barnardos, nisation [].

    [127].    McCarney, supra note 107, at 15; see also Marie Gibben, Believe in Children: Objectives,  Int’l Inst. for Restorative Practices (2010).

    [128].    McCarney, supra note 107,     at 7, 15–16.

    [129].    Id. at 15.

    [130].    Id. at 8–9, 11.

    [131].    Id. at 9, 24–26 app. 3.

    [132].    Id. at 24, app. 3; see also Thalia N. C. González & Benjamin Cairns, Moving Beyond Exclusion, in Justice for Kids: Keeping Kids out of the Juvenile Justice System 243–44 (Nancy E. Dowd ed., 2011) (discussing various restorative practices and theories utilized in schools).

    [133].    McCarney, supra note 107, at 24 app. 3.

    [134].    Id.

    [135].    Id. at 9.

    [136].    Id.

    [137].    Id. at 9, 16, 24 app. 3.

    [138].    Id.

    [139].    Id. at 25–26 app. 3.

    [140].    Id. at 25 app. 3.

    [141].    Id.

    [142].    Id. at 26 app. 3.

    [143].    Id.

    [144].    Id. at 9–10.

    [145].    Id. at 16, 26 app. 3.

    [146].    Id. at 7, 16, 26 app. 3.

    [147].    Id. at 26 app. 3

    [148].    Id. at 7.

    [149].    Id.

    [150].    See TCI System Overview, Cornell Residential Child Care Project, http://rccp. []. 

    [151].    See McCarney, supra note 107, at 9.

    [152].    See Expressed Affect, Child Mind Inst. Glossary, [].

    [153].    See McCarney, supra note 107, at 9.

    [154].    Id.

    [155].    Id.

    [156].    Id. (citations omitted).

    [157].    See id. at 20–21.

    [158].    Id.

    [159].    Id.

    [160].    Id. at 20.

    [161].    Id. at 19.

    [162].    Id. at 20.

    [163].    Id.

    [164].    Id.

    [165].    Id.

    [166].    Id.

    [167].    See, e.g., Press Release, State of Ill. Cook Cty. Circuit Court, Restorative Justice Cmty. Court Arrives in North Lawndale (July 20, 2017), MEDIA/ViewPressRelease/tabid/338/ArticleId/2564/Restorative-JusticeCommunity-Court-arrives-in-North-Lawndale.aspx [].

    [168].    See Amma Mante, 8 Things All Kids in Foster Care Want People to Know, Elite Daily (May 15, 2016), /1492485 [] (“Foster kids aren’t actually ‘foster kids.’ They are young people who happen to have experienced foster care. What they are not, is a monolith with uniform feelings or responses on every issue.”).

    [169].    McCarney, supra note 107, at 2, 18–21.

    [170].    Lee Barnsdale et al., Scottish Executive, Examining the Use and Impact of Family Group Conferencing 10 (2007).

    [171].    Id. at 11.

    [172].    See id. at 11–12.

    [173].    Id. at 11.

    [174].    Id. at 12.

    [175].    Id. at 2.

    [176].    Id. at 12.

    [177].    Id.

    [178].    Id. at 20.

    [179].    Improving Va.’s Foster Care, supra note 10, at 28–29.

    [180].    See, e.g., City of Richmond Dep’t of Soc. Servs., Team Decision-Making Meeting 2 (June 25, 2009) kit/local_resources/richmond/tdm_policy.pdf [].

    [181].    Id. at 3–4.

    [182].    Id. at 2.

    [183].    Act of Mar. 18, 2019, ch. 434, 2019 Va. Acts __, __ (codified as amended at Va. Code Ann. § 16.1-283 (Cum. Supp. 2019)); see also Toms v. Hanover Dep’t of Soc. Servs., 46 Va. App. 257, 267–75, 616 S.E.2d 765, 770–74 (2005).

    [184].    Ch. 434, 2019 Va. Acts at __.

    [185].    Troutman, supra note 34, at 1.

    [186].    See Improving Va.’s Foster Care, supra note 10, at 71–72.

    [187].    McCarney, supra note 107, at 5.

    [188].    Id. at 18.

    [189].    Id.

    [190].    Id.

    [191].    Id. at 12, 15.

    [192].    Id. at 18.

    [193].    Id. at 14.

    [194].    Improving Va.’s Foster Care, supra note 10, at 28, 70–72.

    [195].    See id. at 6.

    [196].    See McCarney, supra note 107, at 15.

    [197].    Id. at 16.

    [198].    Id. at 20.

    [199].    It is inevitable that in the time between response units training local foster care providers and reporting to schools, foster children who have yet to benefit from restorative conferencing will be referred to the juvenile justice system. The point of the suggested implementation plan, however, is not to ignore this reality but to create an efficient and effective solution to our current foster-care-to-prison pipeline problem without substantially draining available resources.

    [200].    Allison Gilbreath, 2019 Legislative Session Advocating for Kids in Foster Care, Voices for Virginia’s Child. (Feb. 25, 2019), ative-session-advocating-for-kids-in-foster-care [].

    [201].    As of June 5, 2019, the Family First Prevention Services Act has not released a concrete list of covered services but does restrict federal funding for congregate care services. See John Kelly, Family First Act Clearinghouse Misses May Goal for First Slate of Approvals, Chron. Soc. Change (June 6, 2019), -insider/family-first-clearinghouse-misses-may-goal-for-first-slate-of-approvals/35414 [].]

[202].    Allison Gilbreath, Family First Prevention Services Act Will Change Child Welfare for the Better, Voices for Virginia’s Child. (June 18, 2018), blog/families-first-prevention-act-will-change-child-welfare-for-the-better [ /XEH9-Z3TR].

    [203].    Allison Gilbreath, Big Year for Foster Care Reform: 2019 Legislative Wrap Up, Voices for Virginia’s Child. (Feb. 25, 2019), [].

    [204].    Id.

    [205].    Id.

The First Amendment and the Great College Yearbook Reckoning

MaryAnn Grover, The First Amendment and the Great College Yearbook Reckoning, 53 U. Rich. L. Rev. Online 19 (2019).

Click here to download PDF.

MaryAnn Grover *


“Yearbooks are meant to double as time capsules. There’s aspiration woven into their portrayals of things. . . .”[1] As with all time capsules, some yearbooks contain things that would be better left in the past. Blackface,[2] celebration of the Confederacy[3] and white supremacy,[4] even depictions of students in Nazi uniforms[5] are surely things that most people believe should be left in the past, or should not have even existed in the past to begin with. However, the reality is that such racial and discriminatory depictions have historically been prevalent in student publications. In fact, out of 900 publications across 120 institutions for higher education, a USA Today study found more than 200 blatant displays of racism in college publications throughout the country.[6] And as much as society may want to assert that this is a thing of the past, the unfortunate reality is that such pervasive displays of racism continue today.[7] For example, Eastern Virginia Medical School, whose yearbook was the catalyst for much of the current controversy,[8] eliminated their yearbook altogether in 2014 after three “soon-to-be doctors” were depicted wearing Confederate uniforms, with one smiling and another holding a gun.[9] The questions raised by these instances, though, are how were these depictions published in the first place, and how do we prohibit such disgraceful displays going forward. Those are the questions I attempt to answer in this essay.

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.”[10] This right was incorporated against the states in Gitlow v. New York.[11] Then, in Healy v. James, the Supreme Court recognized that “state colleges and universities are not enclaves immune from the sweep of the First Amendment.”[12] This means that student publications themselves are not immune from the sweep of the First Amendment.[13] Instead, speech by student publications can be prohibited completely only if it falls into one of the Court’s categories of unprotected speech, including incitement, false statements of fact, obscenity, and offensive speech.[14] Additionally, regulations on speech by student publications must be content-neutral, otherwise those regulations are subject to strict scrutiny analysis.[15] Finally, while it is unclear whether the public forum analysis applies to student publications on college campuses, such student publications would likely be considered a limited-use public forum, and thus permissibly subjected to viewpoint-neutral and reasonable time, place, and manner restrictions.[16] While these limitations provide some protection for marginalized students, these limitations and the categories of unprotected speech meant to curb such abuses failed to prevent the harms that resulted from the “yearbook reckoning.”[17]

These regulations, though, were and remain insufficient to stem the tide of racial and discriminatory content in yearbooks produced by universities. Thus, in order to adequately balance the competing interests of creating a true “marketplace of ideas”[18] on college campuses and creating a learning environment in which everyone, regardless of their race, gender, or creed, can feel safe, the Supreme Court should recognize that the traditional mechanisms of protecting and regulating speech by student publications are insufficient. Accordingly, I suggest the best way to balance these interests is by adopting modifications to the traditional categories of unprotected speech for speech by student publications at higher education institutions. Such modifications would redefine what is meant by incitement, false statements of fact, obscenity, and offensive speech on college campuses, and it would do so in a way that continues to disfavor content and viewpoint discrimination by the government.

I advance my argument in three parts. In Part I, I discuss the law as it currently applies to student publications. I begin by briefly addressing the law as it applies to student publications in high schools as a way of demonstrating the lack of clarity in the law as it applies to student publications on college campuses. I then discuss the current state of speech regulation for student publications, including yearbooks, on college campuses. In Part II, I discuss each of the categories of unprotected speech as they are currently interpreted by the Supreme Court, and I demonstrate how they fall short of protecting all students. In Part III, I suggest ways these categories of unprotected speech can be modified to better allow for the exchange of ideas on college campuses in a way that promotes inclusive environments where each student can learn and feel safe. Adopting such modifications would allow student publications to truly serve as a “marketplace of ideas”[19] where curiosity and creative expression can thrive.

I. The Current State of Student Publications

The Supreme Court has made it clear that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[20] While this mantra is frequently repeated by the Court, it is not absolute.[21] Indeed, school administrators frequently exercise control over student speech and student publications. The level of control that administrators exercise not only varies between schools by practice,[22] but it also varies between primary and secondary schools and colleges and universities by law.[23]

In Hazelwood School District v. Kuhlmeier, the Supreme Court held that in primary and secondary schools, administrators may properly “exercis[e] editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”[24] It was in this case that the Supreme Court first applied the public forum analysis to determine the degree of control academic institutions may exert in regulating student speech in school-sponsored publications.[25] The Court held that because the student publication, Spectrum, was not a public forum, the administration could regulate the time, place, and manner of expression so long as the regulation was reasonable and content-neutral.[26]

However, the Court in Hazelwood declined to decide whether deference is owed to administrators overseeing student publications at the college or university level or whether student publications at colleges are subject to the public forum analysis at all.[27] Thus, confusion exists as to the amount of deference, if any, school administrators are owed in their potential restriction of student publications on college campuses.[28] Additionally, “[d]espite more rulings in favor of students in the university setting than in the secondary school setting, the Supreme Court has never explicitly held that published speech on the university campus receives a higher level of protection.”[29] Yearbooks and other student publications on college campuses have thus existed in a state of limbo, in which the level of protection that should be afforded to publications on college campuses is unclear.[30] Without a clear standard as to what level of protection should be applied, some student publications have been subject to regular administrative oversight, which could have potentially prevented many of the displays of racism and discrimination that have historically been prevalent in yearbooks while other student publications are given carte blanche to publish as they will.[31]

Even as they publish in this state of limbo, student publications on college campuses remain subject to reasonable restraints on the time, place, and manner of their speech. Additionally, they remain subject to the outright prohibition of categorically unprotected speech. Despite this, administrators are left with few tools to regulate or restrict the potentially racist or derogatory speech of student publications so long as the speech is not otherwise categorically prohibited. The Court can resolve this problem by expanding the speech that may be categorically prohibited in the context of student publications to allow college administrators to better restrict racist and derogatory speech.

II. Categories of Unprotected Speech

There are several potentially applicable categories of unprotected speech that college administrators could use to prohibit speech by student publications. Here, I focus on incitement, false statements of fact, obscenity, and offensive speech. They are woefully narrow categories of speech that can be prohibited outright by the government as the prohibited speech included in each category is without value and does not advance the search for truth.[32] Below, these categories are explained and their deficiencies, as they pertain to student publications on college campuses, are discussed.

A. Incitement

The incitement test was famously articulated in Brandenburg v. Ohio.[33] There, the Court announced that advocacy for the use of force or violation of the law was only completely without protection when it was “directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action.”[34] The adoption of this test was undergirded by the understanding that speech has consequences, and when the consequences result in the use of force or violence, the Constitution permits punishment for the speech that caused the violence.[35] The Brandenburg standard creates a particularly high threshold for restrictions of speech based on the inciting nature of certain words and phrases because it requires the speech be directed to a specific person who could act on it, not just broadcast generally.[36] Additionally, it requires a sort of immediacy, like a heat of the moment response, and ignores the reality that people could be motivated by speech and take time to think through their response to it.[37]

These elevated requirements limit this category of unprotected speech to a very narrow subset of speech, excusing similarly destructive and dangerous speech, that may not be directed specifically at someone or may not encourage such conduct immediately. As a result, incitement is an underinclusive category of unprotected speech that fails to allow university administrators to effectively limit speech by student publications that has the potential to result in violence.

B. False Statements of Fact

In Gertz v. Robert Welch, Inc., the Supreme Court stated unequivocally that “there is no constitutional value in false statements of fact.”[38] For this reason, the First Amendment allows for prohibitions on libel, slander, fraud, and perjury.[39] The traditional test for determining liability for false statements of facts about public figures and regarding matters of public concern is set out in New York Times Co. v. Sullivan.[40] That test provides that false statements on matters of public concern that defame public figures are unprotected only if the speaker knew the statement to be false or recklessly disregarded the statement’s falsehood.[41] Because this test only speaks to defamation of public officials about issues of public concern, it fails to adequately address many instances of false statements of facts that occur regarding private issues or private individuals. While there are additional standards for private figures and private issues,[42] these tests often fail to reach the particular harms that can come from student publications. Further, when it comes to publications or statements about no particular person on issues of public concern, sometimes all liability is prohibited[43] and sometimes the New York Times Co., test applies.[44] This is a complicated landscape that can allow student publications, in particular, to publish “anonymous” blackface photos or “crowded” Confederate soldier photos, without liability stemming from the publication so long as they were not published with reckless disregard for the truth.[45] Creating such a heightened standard to establish liability here virtually prevents recovery against those who publish false stories and who edit or caption photos in misleading ways. It would also prevent recovery when images are inappropriately placed on an individual’s yearbook page, as Governor Ralph Northam has alleged is the case for his yearbook page which includes a photo depicting an individual in blackface and an individual in Klu Klux Klan garb.[46]

C. Obscenity

Speech is classified as obscenity and thus unprotected if,‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest[;] . . . the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and . . . the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.[47]

As such, obscenity has been explicitly limited to the publication or promotion of unusual sexual proclivities.[48] This category of unprotected speech is motivated by the concern that such speech has a “tendency to exert a corrupting and debasing impact [and] lead[]to antisocial behavior.”[49] By its very definition, obscenity excludes other categories that society might deem to have a “corrupting and debasing impact” that is nonsexual.[50] For example, depictions or accounts of extreme violence, whether digital, photographic, or written, are not considered obscene and thus are protected by the First Amendment.[51] Study after study has demonstrated a correlation between the viewing of violent programs or the playing of violent games and the desensitization to other’s pain, as well as increased aggression.[52] However, the obscenity test ignores this correlation and focuses only on those sexually explicit influences. As such, the Supreme Court overlooks an entire category of speech and expression that may have more harmful results than obscenity as it is currently defined in order to protect values that the Court deems necessary to protect. Thus, student publications and yearbooks can continue to publish photos of nooses hung around someone’s neck and call it a joke,[53] regardless of the violence they depict and their “corrupting and debasing impact.”[54]

D. Offensive Speech

Offensive speech can take many forms, from fighting words[55] to infliction of emotional distress, to vulgarity over the radio or television,[56] to abusive words that “by their very utterance inflict injury.”[57] However, each of these forms is particularly narrow. The category of fighting words, for example, pertains only to those words that “tend to incite an immediate breach of the peace” by provoking a fight,[58] are “personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction,” and are “directed to the person of the hearer,” and thus likely to be seen as “direct personal insult[s].”[59]

As such, the fighting words prohibition only applies when the words are directed toward an individual in particular who would then view the words as a direct personal insult and likely react accordingly. That is certainly not the case in widely published yearbooks, where the publishers may make no statements other than their inclusion of a particular photo in the edition.

Accordingly, the prohibition on fighting words is concerned with immediate violence, not the long-lasting harms of such epithets. Additionally, the prohibition on abusive words that was originally articulated in Chaplinsky v. New Hampshire has been so limited by the Court that many scholars believe it no longer serves as a prohibition on speech.[60] By so limiting the category of offensive speech, the Supreme Court has allowed significant emotional and societal harms to be visited upon millions in order to allow for rather valueless speech. College is a time when most people begin to develop their identity and sense of self, so to allow student publications to subject them to such harm at such a vulnerable time only increases the societal harm that results from offensive speech.

III.  Modifications to the Categories of Unprotected Speech for Student Publications on College Campuses

As the First Amendment currently applies to student publications on college campuses, there is broad discretion to report on happenings on campus, political movements, and society as a whole.[61] But with that broad discretion also comes the opportunity for significant abuse. As we have seen in recent months, student publication staff members are still maturing; they are still apt to make what they would later deem mistakes.[62] Just as student publishers are apt to make mistakes because they are still maturing, those who their mistakes harm are more likely to suffer significant and long-term psychological damage as a result of those mistakes.[63]

In recognition of the harm that student publications can cause when given significant discretion, the Supreme Court should adopt modified categories of unprotected speech for student publications on college campuses. Such modifications, as discussed below, would be slight and would still allow for the university to be the marketplace of ideas, but they would require those ideas be expressed responsibly and in a way that allows the university to be the marketplace of ideas for all, regardless of their race, gender, or creed.

 A New Type of Incitement

In order to better protect the marketplace of ideas for all, the incitement standard should be amended to prohibit speech that is likely to cause substantial and widespread campus unrest. By requiring a likelihood of substantial and widespread campus unrest, this standard remains heightened to protect as much speech as practicable, but it eliminates the “directed to” and “imminence” requirements that allow for student publications to essentially publish anything so long as it is not a direct mandate to do something violent or illegal immediately. By weakening those requirements for student publications, the Court would simply acknowledge that student publications can incite violence in unique ways that may not result from a direct or immediate command, like causing widespread campus unrest or dividing the campus into competing and enraged factions.

B. A New Recognition of the Harms Associated with False Statements of Fact

Likewise, the definition of, and possible liability stemming from false statements of facts, should be broadened to account for those statements made about communities, or races, or nationalities. Statements stereotyping and communicating false information about entire communities can be just as harmful as statements directed at an individual, and the Court should recognize as much.

For example, statements by politicians and the media categorizing a whole class of individuals, primarily young African American men, as “superpredators” essentially villainized and criminalized an entire community before many young men had even committed offenses.[64] By recklessly labeling an entire community, the politicians who weaponized those labels damaged the national perception of an entire generation of African American men.[65] Acknowledging the unique harm that can be inflicted upon entire communities by false statements of facts, the Supreme Court should assign liability to college student publications for those false statements of facts made about entire communities that are published with reckless disregard for their validity. These student publications should not be able to publish crowded photos without captions[66] that promote the anonymity currently associated with racist portrayals of entire groups of individuals.

C. A New Addition to Obscenity Law

The obscenity category of unprotected speech should be broadened for student publications on college campuses to prohibit not just unusually sexually explicit content, but also particularly violent depictions or situations stemming from such extremely violent acts. Student publications and yearbooks accordingly could be prohibited from publishing photos of students “mock lynching” other students, students pretending to be a firing squad preparing to execute classmates, and students pretending to kill or maim themselves or others. Such depictions should not be promoted as “truths of a gauzy past” as yearbooks are intended to be.[67]

Instead, those depictions are obscene ones that have a particularly “corrupting and debasing impact” that should be left in the past.[68] Allowing student publications to continue to publish such images would contribute to the desensitization to other’s pain that is scientifically associated with images of violence.[69] It would also serve to increase the pain felt by already marginalized communities on college campuses.[70] Therefore, it is incumbent upon the Supreme Court to recognize the unique harm attendant to violent obscenity being printed in student publications and end its protection.

D. A New Acknowledgement of What Constitutes Offensive Speech

Offensive speech on college campuses should be interpreted by the Supreme Court more broadly to reach that speech which causes severe and long-lasting harm but currently has no restriction placed on it.[71] For example, the fighting words category of offensive speech should be broadened by eliminating the requirements that the speech be “directed to the person of the hearer,” and thus likely to be understood as a “direct personal insult.”[72] Doing so would allow the definition of fighting words to reach the largely defunct abusive words category of offensive speech, that would allow restrictions on words or phrases that “by their very utterance inflict injury.”[73] It would meld the two categories and acknowledge that the use of certain epithets, when directed at the ordinary person inherently are injurious and valueless. By acknowledging that there are certain words or phrases so insulting that they inherently cause harm and “tend to incite an immediate breach of the peace,” the Court could better protect the marketplace of ideas for all students on college campuses, even those who participate in student publications.[74]


Colleges and universities are recognized as unique institutions where the free exchange of ideas and the encouragement of curiosity are particularly critical.[75] But that only proves true when the free exchange of ideas includes all ideas, and when certain groups of students are marginalized because of their race, gender, or creed, they are not able to engage as freely for fear of being otherwise isolated or further ostracized.[76] In order to better promote the expression of ideas on college campuses, student publications, particularly yearbooks that have proved rather one-sided and problematic in recent months, should be subject to modified categories of unprotected speech. By adopting these modifications, the Supreme Court would better recognize the unique nature of student publications as educational experiences that allow students to learn and grow while protecting the interests and well-being of otherwise marginalized students. It would provide an “opportunity for colleges not only to address the past, but also to focus on the racial inequalities that are still present on campus, just [sometimes] better hidden.”[77]

*    J.D. Candidate class of 2019 at University of Richmond School of Law. MaryAnn Grover is a 2016 graduate of Oklahoma City University with a B.B.A. in Marketing. She currently serves as the Editor-in-Chief for the Richmond Public Interest Law Review. Many thanks to Corinna Lain for her encouragement and guidance and to the University of Richmond Law Review Online staff for their diligence in editing this piece.

       [1].    Megan Garber, When a Yearbook is a Current Event, Atlantic (Feb. 8, 2019), nt-and-yearbooks-current-events/582331/ [].

       [2].    Patrick Wilson & Andrew Cain, Virginia Gov. Ralph Northam Admits He Posed in Yearbook Photo Showing Men in Blackface, Klan Robe, Rich. Times-Dispatch (Feb. 1, 2019), tham-admits-he-posed-in-yearbook-photo/article_c29e0f55-6284-5bde-8d93-8804ad507d5d.  html [].

       [3].    Scott Jaschik, Yearbook Review Finds Dean with Confederate Flag, Inside Higher Ed (Feb. 25, 2019), []; Mihir Zaveri, Old Yearbook Photo Shows Tennessee Governor Dressed as Confederate Soldier, N.Y. Times (Feb. 22, 2019), [].

       [4].    Eric Anthony Grollman, About (Black) Face, Inside Higher Ed (Feb. 11, 2019), []; Amanda Morris & Michel Martin, U.Va. Students Investigate Their Yearbook’s Racist History—Starting with Its Title, NPR (Feb. 10, 2019, 5:07 PM EST), /02/10/693226601/corks-and-curls-virginia-yearbook-has-a-racist-history [ /A9ST-4VLC].

       [5].    Brett Murphy, Blackface, KKK Hoods and Mock Lynchings: Review of 900 Yearbooks Finds Blatant Racism, USA Today (Feb. 21, 2019, 9:43 AM EST), https://www.usa ges-kkk-lynching-mockery-fraternities-black-70-s-80-s/2858921002/ [ 9Q-8SEJ].

       [6].    Id. (noting that offensive and racist content was found in publications of “colleges in 25 states, from large public universities in the South, to Ivy League schools in the Northeast, liberal arts boutiques and Division I powerhouses”).

       [7].    Garber, supra note 1.

       [8].    The current scrutiny of college yearbooks was sparked by the discovery of a photo on the yearbook page of current Virginia Governor, Ralph Northam, in the 1984 yearbook of Eastern Virginia Medical School, which depicted a man in blackface standing next to a man in a Ku Klux Klan robe. Wilson & Cain, supra note 2.

       [9].    Garber, supra note 1.

     [10].    U.S. Const. amend. I.

     [11].    268 U.S. 652, 666 (1925).

     [12].    408 U.S. 169, 180 (1972).

     [13].    See 3 James A. Rapp, Education Law § 9.04(7)(c) (2018).

     [14].    Id. § 9.04(4)(c)(v).

     [15].    Id. § 9.04(2)(c)(i).

     [16].    Id. § 9.04(5)(b)(ii).

     [17].    See Emma Pettit & Zipporah Osei, The ‘Great College-Yearbook Reckoning’: Why Scholars Say Blackface Images Aren’t Outliers, Chron. Higher Educ. (Feb. 7, 2019), [ F5Q-XCXS].

     [18].    Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967).

     [19].    See id.

     [20].    Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

     [21].    See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (“[Students] cannot be punished merely for expressing their personal views on the school premises . . . unless school authorities have reason to believe that such expression will ‘substantially interfere with the work of the school or impinge upon the rights of other students.’” (quoting Tinker, 393 U.S. at 509)); see also Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 680 (1986) (noting that the Court in Tinker upheld “students’ right to engage in a nondisruptive, passive expression of a political viewpoint . . . [in a case that] did ‘not concern speech or action that intrudes upon the work of the schools or the rights of other students’” (quoting Tinker, 393 U.S. at 508)); Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44 (1983) (observing that the First Amendment does not “require[] equivalent access to all parts of a school building in which some form of communicative activity occurs”).

     [22].    Jeff Sklar, Note, The Presses Won’t Stop Just Yet: Shaping Student Speech Rights in the Wake of Hazelwood’s Application to Colleges, 80 S. Cal. L. Rev.  641, 673–74 (2007) (explaining that “each [publication] operates under its own set of circumstances” and the level of scrutiny applied depends on whether the publication is a public forum which depends on “the degree of control over the publication’s content that the college administration has delegated to students”).

     [23].    See Hazelwood, 484 U.S. at 273 n.7 (suggesting a different degree of deference would be appropriate with respect to school-sponsored expressive activities at colleges and universities).

     [24].    Id. at 273.

     [25].    Id. at 267.

     [26].    Id. at 270, 273.

     [27].    Id. at 273 n.7.

     [28].    Patrick O. Malone, Note, The Modern University Campus: An Unsafe Space for the Student Press?, 85 Fordham L. Rev. 2485, 2516 (2017) (“[T]he Supreme Court’s failure to provide sufficient guidance about which First Amendment standard applies to student publications on campuses today has led to a federal circuit court split.”).

     [29].    Id. at 2496–97.

     [30].    Id. at 2516.

     [31].    See id.

     [32].    See Janus v. AFSCME, Council 31, 585 U.S. __, __, 138 S. Ct. 2448, 2464 (2018).

     [33].    395 U.S. 444, 447 (1969).

     [34].    Id.

     [35].    See id. at 447–48.

     [36].    Id.

     [37].    Id.

     [38].    418 U.S. 323, 340 (1974).

     [39].    Rapp, supra note 13, § 9.04(5)(b)(iv).

     [40].    376 U.S. 254, 279–80 (1964).

     [41].    Id. at 297–98 (Goldberg, J., concurring).

     [42].    Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 756 (1985); Gertz, 418 U.S. at 343.

     [43].    See United States v. Alvarez, 567 U.S. 709, 752 (2012) (Alito, J., dissenting) (“Even where there is a wide scholarly consensus concerning a particular matter, the truth is served by allowing that consensus to be challenged without fear of reprisal . . . . Allowing the state to proscribe false statements in these areas also opens the door for the state to use its power for political ends.”).

     [44].    N.Y. Times Co., 376 U.S. at 264.

     [45].    Id. at 297–98 (Goldberg J., concurring).

     [46].    Alan Suderman, Virginia’s Gov. Northam Says That Wasn’t Him in Racist Photo, AP (Feb. 2, 2019), [https://].

     [47].    Miller v. California, 413 U.S. 15, 24 (1973) (quoting Kois v. Wisconsin, 408 U.S. 229, 230 (1972)).

     [48].    See Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 792–93 (2011).

     [49].    Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973).

     [50].    Id.

     [51].    See, e.g., Brown, 564 U.S. at 792–93 (“As in Stevens, California has tried to make violent-speech regulation look like obscenity regulation by appending a saving clause required for the latter. That does not suffice. Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of ‘sexual conduct . . . .’”).

     [52].    See L. Rowell Huesmann, The Impact of Electronic Media Violence: Scientific Theory and Research, 41 J. Adolescent Health 56, 56 (2007); Keilah A. Worth et al., Exposure of US Adolescents to Extremely Violent Movies, 122 Pediatrics 306, 306–07 (2008); Violence in the Media, Am. Psychol. Ass’n, (Nov. 2013), ources/research-in-action/protect [].

     [53].    Nick Anderson & Susan Svrluga, Photos of Blackface, KKK Robes and Nooses Lurk Alongside Portraits in Old College Yearbooks, Wash. Post (Feb. 7, 2019), https:// ing-alongside-portraits-old-college-yearbooks/?utm_term=.2baf84b74050 [ /8TNT-VCRL]; see also Murphy, supra note 5 (referring to a photo at the University of Illinois depicting an African American man smiling and holding a beer while posing with three individuals in KKK robes, an alumnus of the school observed, “I’m sure at the time they probably thought that was funny”).

     [54].    Paris Adult Theatre I, 413 U.S. at 63.

     [55].    Cohen v. California, 403 U.S. 15, 20 (1971).

     [56].    FCC v. Pacifica Found., 438 U.S. 726, 748 (1978).

     [57].    Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).

     [58].    Id.

     [59].    Cohen, 403 U.S. at 20 (citing Chaplinsky, 315 U.S. 568, and then quoting Cantwell v. Connecticut, 310 U.S. 296, 309 (1940)).

     [60].    Eugene Volokh, The First Amendment and Related Statutes: Problems, Cases and Policy Arguments 191 (6th ed. 2016).

     [61].    Id. at 593 (“The government acting as college educator is generally assumed by recent lower court cases to have no greater powers than the government acting as sovereign . . . .”).

     [62].    Nicole Carroll, I Became Part of Our Story on Racist Images in College Yearbooks. I’m Here to Apologize for Publishing That Photo, USA Today (Feb. 20, 2019), https://www. [].

     [63].    See Murphy, supra note 5 (“[T]he choice to publish the images for posterity cut even deeper . . . . ‘People ask, “Why are the black kids sitting together in the cafeteria?’” said Beverly Daniel Tatum, the psychologist and author. ‘It’s because they are protecting themselves from this kind of toxic environment.’”).

     [64].    See Priyanka Boghani, They Were Sentenced as “Superpredators.” Who Were They Really?, PBS (May 2, 2017), ed-as-superpredators-who-were-they-really/ [].

     [65].    Id.

     [66].    Murphy, supra note 5 (“Few images had captions to provide names or context and people’s faces were often hidden behind hoods or blackface”).

     [67].    Garber, supra note 1.

     [68].    Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 (1973).

     [69].    Violence in the Media, supra note 52.

     [70].    Murphy, supra note 5 (“Minority students from that era say the comfort with public behavior that would likely meet swift condemnation today further marginalized minorities on campus. And the choice to publish the images for posterity cut even deeper.”).

     [71].    Granted, offensive speech restrictions would still need to be content-neutral as categories of unprotected speech cannot “be made the vehicles for content discrimination unrelated to the distinctively proscribable content.” R. A.V. v. City of St. Paul, 505 U.S. 377, 383–84 (1992).

     [72].    Cohen v. California, 403 U.S. 15, 20 (1971) (quoting Cantwell v. Connecticut, 310 U.S. 296, 309 (1940)).

     [73].    Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1992).

     [74].    See id.

     [75].    Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967).

     [76].    See Murphy, supra note 5.

     [77].    Id.

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