Friday, July 22, 2016

Virginia: Supreme Court Limits Pardon Power

[Developing]

"Never before have any of the prior 71 Virginia Governors issued a clemency order of any kind — including pardons, reprieves, commutations, and restoration orders — to a class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request. To be sure, no Governor of this Commonwealth, until now, has even suggested that such a power exists. And the only Governors who have seriously considered the question concluded that no such power exists.

In this case, Governor McAuliffe asserts that his clemency power in this matter is “absolute” under Article V, Section 12 of the Constitution of Virginia. J.A. at 1. We respectfully disagree. The clemency power may be broad, but it is not absolute. Deeply embedded in the Virginia legal tradition is “a cautious and incremental approach to any expansions of the executive power.” Gallagher v. Commonwealth, 284 Va. 444, 451, 732 S.E.2d 22, 25 (2012). This tradition reflects our belief that the “concerns motivating the original framers in 1776 still survive in Virginia,” including their skeptical view of “the unfettered exercise of executive power.” Id.

... Scores of restoration orders have been issued for more than a century to specific felons who requested that their civil rights be restored. Never before, however, have any of the prior 71 Virginia Governors issued a sua sponte clemency order of any kind, whether to restore civil rights or grant a pardon, to an entire class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request. What is more, we are aware of no point in the history of the Commonwealth that any Governor has even asserted the power to issue such an order.

...This issue is not a new one. As recently as 2010, Governor Tim Kaine openly expressed his disagreement “with the current policy embodied in the Constitution of Virginia that a felony conviction automatically leads to permanent disenfranchisement.” J.A. at 4. Shortly before the end of his term in office, Governor Kaine was asked to exercise his “executive power . . . to restore voting rights to an unknown number of unnamed individuals who have not applied to 15 have their voting rights restored.” Id. at 3. In response, Governor Kaine undertook “a very careful review of [this] proposal.” Id. In a letter issued on his behalf by Mark Rubin, Counselor to the Governor, Governor Kaine concluded that the voter-disqualification provision did not authorize a “blanket use” of the restoration power to “benefit unnamed individuals.” Id. The better understanding of the provision, he concluded, was that the power could be exercised only “in particular cases to named individuals for whom a specific grant of executive clemency is sought.” Id. at 4. Consequently, “[a] blanket order restoring the voting rights of everyone would be a rewrite of the law rather than a contemplated use of the executive clemency powers.” Id. The very “notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling.” Id. Citing his “pledge to uphold the Constitution,” Governor Kaine refused to “issue a blanket restoration of rights to unnamed individuals” on a categorical basis. Id.8 "

... We recognize that these observations do not preclude us from recognizing a novel executive power that no prior Governor ever believed existed. “Long settled and established practice” has never been considered to be “binding on the judicial department.” Pocket Veto Case, 279 U.S. 655, 689 (1929). And we do not consider it to be binding upon us. We do, however, consider it to be highly persuasive. As Justice Holmes so succinctly put it, “a page of history is worth a volume of logic.” New York Tr. Co. v. Eisner, 256 U.S. 345, 349 (1921).

... Lewis counsels that we accord interpretive respect to the unbroken historical record of the last 71 Governors of Virginia. None of them claimed the executive power under Article V, Section 12 to grant reprieves, pardons, and commutations, and to remove political disabilities was absolute, subject to no restraining principle of law whatsoever. Governor McAuliffe’s contention to the contrary is unprecedented. All prior Governors exercised their clemency powers — including pardons, reprieves, commutations, and restorations— on an individualized case-by-case basis taking into account the specific circumstances of each. 10 The self-restraint of these Governors paralleled our “cautious and incremental approach to any expansions of the executive power” and remained faithful to the belief that the “concerns motivating the original framers in 1776 still survive in Virginia,” including their skeptical view of “the unfettered exercise of executive power.” Gallagher, 284 Va. at 451, 732 S.E.2d at 25.

... Governor McAuliffe does not dispute the historical record. Instead, he argues that the literal text of Article V, Section 12 clearly shows that his 71 predecessors failed to appreciate the unlimited nature of their executive powers in such matters. From reading only the constitutional text, the Governor contends, we should conclude that it “plainly authorizes the group restorationof-rights at issue here.” Resp. to Verified Pet. at 2. He also sees in the same provision the implicit authority of a Virginia Governor to issue “blanket” class-based pardons and amnesties similar to those issued by U.S. Presidents. Id. at 43-44.

... We find this textual argument to be overstated at best. The assertion that a Virginia Governor has the power to grant blanket, group pardons is irreconcilable with the specific requirement in Article V, Section 12 that the Governor communicate to the General Assembly the “particulars of every case” and state his “reasons” for each pardon. This requirement implies a specificity and particularity wholly lacking in a blanket, group pardon of a host of unnamed and, to some extent, still unknown number of convicted felons. No such requirement exists in the United States Constitution, and thus, the text of Article V, Section 12 of the Constitution of Virginia undermines the Governor’s argument by analogy. See also supra note 10.

... Governor McAuliffe fairly notes, however, that the particularized reporting requirement in Article V, Section 12 does not specifically mention the removal of political disabilities. From that omission, he contends, we should at least infer that the absence of a particularized reporting requirement for restoration orders implies the presence of an unlimited (or, to quote the Governor, an “absolute”) power to issue blanket, group restoration orders even if we were skeptical of doing so for blanket, group pardons.

... Governor McAuliffe’s assertion of “absolute” power to issue his executive order, J.A. at 1, runs afoul of the separation-of-powers principle protected by Article I, Section 7 of the Constitution of Virginia. That provision declares: “That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.” Though somewhat obscure to modern readers, this provision was considered by the Framers of our Commonwealth as an essential pillar of a constitutional republic.

... We acknowledge the contention that the Governor’s Executive Order did not wholly suspend the operation of the voter-disqualification provision. As to convicted felons presently incarcerated in the Commonwealth’s penitentiaries, for example, the Governor did not grant the rights to vote, to hold public office, to serve on a jury, and to act as a notary public. Even so, we fail to see why this matters. If, as the Governor asserted, he had “absolute” power in this regard, J.A. at 1, he could have done so. We find no merit in the assertion that a partial violation is no violation at all.

... In this case, the general rule of law is clear: “No person who has been convicted of a felony shall be qualified to vote.” Va. Const. art. II, § 1 (emphasis added). Equally clear is the exception to the general rule: “unless his civil rights have been restored by the Governor or other appropriate authority.” Id. (emphasis added). Governor McAuliffe’s Executive Order has rewritten the provision to invert the rule and the exception. Under his order, no person who has been convicted of a felony shall be disqualified to vote unless the felon is incarcerated or serving a sentence of supervised release. This rule-exception inversion may appear subtle to some, but it undermines the very basis for the legitimate use of the executive restoration power.

... All agree that the Governor can use his clemency powers to mitigate a general rule of law on a case-by-case basis. But that truism does not mean he can effectively rewrite the general rule of law and replace it with a categorical exception. The express power to make exceptions to a general rule of law does not confer an implied power to change the general rule itself. The unprecedented scope, magnitude, and categorical nature of Governor McAuliffe’s Executive Order crosses that forbidden line.

See full opinion here.

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