Friday, July 22, 2016

Virginia: Supreme Court Limits Pardon Power (Dissent)

"The majority ignores the plain language of [the] Disenfranchisement Clause, Article II, Section 1, and the Restoration Clause, Article V, Section 12, which clearly contemplate that the Governor has the aut hority to “remove political disabilities consequent upon conviction.” Not only is the majority opinion, with respect to the purported violation of the Suspension Clause, not supported by the plain language of the Constitution of Virginia, but it is also decided in a manner that is contrary to established Virginia jurisprudence.

To the extent one could view the Governor’s action in restoring political disabilities as a suspension of law, the Governor would be “suspending” the law each time he removed a person’s political disabilities, whether he did so on an individual basis or by categorical order. But by approving the Disenfranchisement Clause of the Constitution and by giving the Governor executive clemency powers in the Restoration Clause, the people of the Commonwealth have given their consent to the Governor’s suspension of the law within the limitations set out in the Restoration Clause. Virginia Governors have been exercising this authority for over two hundred years and there is no dispute that a governor’s exercise of such clemency power on an individual basis does not violate the Suspension Clause.

... it is particularly telling that the majority does not dispute the fact that the Governor may remove an individual felon’s political disabilities for any reason he chooses, including that he has served his sentence. Moreover, the majority acknowledges that the Governor could use many individual orders to achieve the mass restoration of rights he sought to accomplish under the Executive Order. Thus, the majority, in essence, takes the position that the Suspension Clause requires the Governor to exercise his executive powers in a different, less efficient manner.

... The Suspension Clause states “[t]hat 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.” ... The Restoration Clause states, in relevant part, that the Governor shall have the power “to remove political disabilities consequent upon conviction.” Notably, the Suspension Clause does not expressly mention the clemency power, nor does it place any unstated restrictions on the Governor’s clemency powers. Further, the Suspension Clause does not differentiate between individual or categorical exercises of the clemency power.

... the Restoration Clause specifically grants the Governor the power to restore voting rights to convicted felons, whereas the Suspension Clause provides a general limitation on the Governor’s power to suspend the law. As the more specific provision, it is clear that the Restoration Clause must govern. Thus, when these canons of statutory construction are all applied to the provisions at issue in the present case, it is readily apparent that, by approving the Disenfranchisement Clause and granting the Governor clemency powers in the Restoration Clause, the people have expressly consented to the Governor’s authority to restore voting rights to felons.

... The purpose of the Suspension Clause as revealed by its history and language is to prevent ultra vires acts undertaken without authority which result in the suspension of the law. It is not to correct wrongful use of authority granted by the Constitution of Virginia or to control the manner in which that constitutional power is properly used.

 ... the majority [improperly] defines what suspension means [The] . . . term is generally applied to the abrogation of a statute or statutes, so that they lose altogether their binding force  . . . [T]he law is put out of action; . . . it is in substance repealed . . . . [T]here is a wide difference between [this] power[] and the power to pardon. [Suspension] affect[s] the legality of the act done. [It] make[s] legal what would otherwise be illegal. A pardon does not affect the legality of the act. It simply frees a guilty person from the legal consequences of his illegal acts.

... A plain reading of the language in Article II, Section 1 and the Executive Order indicates conclusively that the Executive Order does not abrogate the operation of the Disenfranchisement Clause such that it loses altogether its binding force. Therefore, the Executive Order does not violate the Suspension Clause.

... the majority reads the constitutional text in a manner that promotes form over substance to create a logically inconsistent limitation on the Governor’s authority. Indeed, rather than confining itself to an examination of the plain language of the Constitution of Virginia and the Executive Order to discern whether the Executive Order violates the Suspension Clause, the majority announces an innovative “rule-exception sequence” inversion theory ...This new approach, in essence, allows a court to pick and choose what parts of the Constitution it is going to enforce, by ignoring parts of the Constitution it interprets to be “exceptions.” ... The majority claims that the Executive Order had the effect of suspending the portion of the Disenfranchisement Clause that states “[n]o person who has been convicted of a felony shall be qualified to vote.” Va. Const. art. II, § 1. By taking this new approach, the majority ignores the fact that the clause contains an express exception: “[n]o person who has been convicted of a felony shall be qualified to vote unless his rights have been restored by the Governor.” Id. (emphasis added). In other words, in holding that the Executive Order suspends the Disenfranchisement Clause, the majority ignores the fact that, to the extent that it is a suspension, the language of our Constitution expressly allows for such suspension.

It is particularly concerning that this new theory does not require a court to look at the actual language of a supposedly suspended law in deciding if an Executive Order suspends it. Instead, a court can consider a general rule of law and ignore what it terms as constitutional “exceptions” in determining if a law has been suspended, notwithstanding the fact that these “exceptions” are just as much a part of the will of the people as are the general rules of law. Indeed, taking the majority’s theory to its logical conclusion would, in effect, negate several express powers granted in the Constitution and in statutes, as they could be viewed as “exceptions” that result in the suspension of general rules of law.

... The terms of the Executive Order are not prospective and do not prevent any felon from being disqualified from voting upon conviction. Rather, the Executive Order only restored the rights of a subset of felons, namely, those individuals previously convicted of a felony who, as of April 22, 2016, were no longer incarcerated or on supervised probation, which is approximately 206,000 of the over 450,000 felons eligible to be considered for restoration. Moreover, felons whose rights were not restored by the Executive Order, as well as newly convicted felons, continue to be disqualified upon conviction unless the Governor or other appropriate authority acts to restore their rights. Indeed, if the Executive Order was, in fact, a suspension of the Disenfranchisement Clause, there would be no need for the Governor to enter subsequent orders restoring the rights of additional felons. When Governor McAuliffe’s term is over, the new governor will have the discretion to decide whether to restore the rights of subsequent felons disqualified from voting upon conviction as required by the Disenfranchisement Clause. Thus, it is apparent that the Executive Order clearly did not actually reframe the Disenfranchisement Clause as asserted by the majority, nor does it suspend operation of that constitutional provision.

... Despite the majority’s extensive discussion of the fact that no prior governor previously entered a categorical order regarding the restoration of political disabilities consequent upon conviction, the practice of prior governors is not dispositive of the Governor’s constitutional authority, or lack thereof, to issue such an order. Indeed, this Court was recently faced with a similar long-running historical practice in Blount. There we explained that the fact that, for 143 years, governors of Virginia had regularly issued “commutations” of non-capital offenses was not evidence of the governor’s power to issue commutations because “the question . . . is not one of practice . . . rather it is one of constitutional interpretation.” 291 Va. at 210, 782 S.E.2d at 158. The same holds true in the present case.

... Under the Restoration Clause, some of the Governor’s executive powers of clemency are expressly limited. For example, the Governor is only permitted to remit fines and penalties “under such rules and regulations as may be prescribed by law.” Va. Const. art. V, § 12. The Governor only has the power to grant reprieves and pardons “after conviction.” Id. Also, the Governor cannot grant reprieves and pardons “when the prosecution has been carried on by the House of Delegates.” Id. Obviously, the framers of the Constitution clearly knew how to limit the Governor’s clemency powers, and they did so within the relevant clauses of this section. Tellingly, the Constitution is silent with regard to limitations on the Governor’s power “to remove political disabilities consequent upon conviction,” and certainly the Constitution includes no words of limitation with regard to the manner in which the Governor might exercise that power, whether it be on an individual basis or a categorical one.

The second paragraph of the Restoration Clause reinforces the absence of any prohibition on the Governor removing political disabilities in a blanket order. That paragraph imposes a reporting obligation on the Governor with respect to certain clemency powers. The Governor is required to communicate to the General Assembly, at each regular session, the “particulars of every case of fine or penalty remitted, of reprieve or pardon granted, and of punishment commuted,” with his reasons for doing so. Id. No such reporting requirement is imposed on the Governor with respect to his power to remove political disabilities. Thus, even if this second paragraph could be read to imply that the Governor could only exercise his clemency powers in individualized orders as opposed to blanket orders, this potential limitation does not apply to the Governor’s power to remove political disabilities.

... In the absence of textual limitations specifying the manner in which constitutional powers must be exercised, this Court has recognized that the Governor has broad discretion to exercise his constitutional powers, even if his decisions create arguably undesirable results.

... According to Petitioners, because the Disenfranchisement Clause refers to an individual whose rights have been restored, namely as “his,” that indicates that restoration of political disabilities can only be restored on an individual basis. This clause, however, has nothing to do with the Governor’s clemency powers. Instead, it governs the qualifications necessary for individual voters in Virginia. Under the Disenfranchisement Clause, a person convicted of a felony cannot vote in Virginia unless “his civil rights” have been restored; nothing in this clause indicates that such a restoration can only occur on an individual basis. The Disenfranchisement Clause merely states the requirement imposed on each person who has been convicted of a felony who seeks to become a qualified voter. Indeed, if we were to apply petitioners’ interpretation, the Governor would not be able to restore the rights of women or of multiple persons.

See full opinion here.

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