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Judge is critical of restoration rights

Peter Vieth//June 7, 2016

Judge is critical of restoration rights

Peter Vieth//June 7, 2016

An Augusta County circuit judge may have aided political foes of Virginia Gov. Terry McAuliffe with a critical review of McAuliffe’s executive order restoring civil rights for more than 200,000 convicted felons.

The judge rejected a criminal defendant’s request to examine juror questionnaires in order to determine whether any felons with recently restored civil rights were struck from the list of potential jurors.

Jail-Cell-Open-MAIN-300x198Judge Victor V. Ludwig said the governor’s order is “at best, an ambiguous pronouncement,” citing questions about its basis and its effect.

Republicans said Ludwig’s analysis highlights the “thoughtless” approach of McAuliffe, a Democrat, to the rights restoration effort.

The judge’s ruling came in the case of a Stuarts Draft man, Douglas C. Broce, who is accused of repeated assaults on a teen aged girl over many years, beginning when the alleged victim was under 10 years of age, according to a news report.

Facing a June 10 trial, Broce asked the court to unseal the juror questionnaires. He supported his motion with reference to McAuliffe’s April 22 executive order restoring some civil rights to felons who have served their time, paid their fines and are no longer under court supervision.

A similar motion has been rejected in a Dinwiddie County case where a defendant faces trial – and the possibility of the death penalty – in the slaying of a Virginia state trooper.

Ludwig’s June 6 opinion parsing McAuliffe’s order may serve as a preview of coming attractions, as the legislative and executive branches prepare for the July 19 special session of the Supreme Court of Virginia to hear Howell v. McAuliffe, a General Assembly challenge to the order.

The governor ordered “the removal of the political disabilities consequent upon conviction of a felony imposed by Article II, Section 1” of the Virginia Constitution on certain felons, wrote Ludwig, and the defendant argued the order also restored the right to serve on a jury.

Ludwig said that, for purposes of ruling on Broce’s motion to unseal, he would assume the constitutionality of McAuliffe’s order.

He denied the defendant’s motion, however, reasoning that the juror questionnaires would be unlikely to provide the information the defendant sought.

The current list of potential jurors eligible to receive questionnaires was drawn from voter rolls and compiled before the executive order issued. That list would have categorically excluded felons along with other groups, such as persons who had not yet met a residency requirement for jury service, and there was no statutory mechanism for adding potential jurors as they became eligible, Ludwig said.

‘Political disability

Ludwig said time did not permit him to fully address the issue of the order’s constitutionality. However, “given the sweeping language of Article V, Section 12, of the Constitution of Virginia, I do not see much limitation on the Governor’s power,” Ludwig wrote in Commonwealth v. Broce (VLW 016-8-073).

“Still, the Order is not as clear as one might hope, so, considerations of constitutionality aside, its effect, application and implementation are questionable. Although it is unnecessary for the disposition of the case before this Court, in a proper case, another Court might find the Order too ambiguous to be enforced,” the court continued.

And the governor’s unsigned summary of the Order “runs solely to the restoration of felons’ right to vote,” Ludwig said. “Nowhere is there a reference to any of the other three ‘rights’ or any explanation how his removing political disabilities’ imposed by Article II, Section 1’ even affects the felon’s eligibility for jury service,” the court wrote.

The governor “purports to give a specific basis for his action, and then he acts in a way far more expansive than his justification can support,” Ludwig wrote. Restoring a civil right and removing a political disability are not necessarily the same thing, according to the court. The right to vote is “clearly a civil right,” specifically recognized in the state constitution in Article II; it is not clear, however, whether service on a jury is a civil right, the court said.

“There is no case in the Commonwealth in which a prohibition against one’s serving on a jury has been held to be a political disability, Ludwig wrote.

Jury service issue

In denying Broce’s motion, the judge said he would evaluate the defendant’s request as though the order actually did restore to felons the right to serve on a jury.

Broce argued that because local juror lists were culled from voter registration lists, he believed convicted felons had been excluded from the available juror lists.

But Ludwig said it was reasonable to assume that because felons could not vote when the list was compiled from registered voter rolls, the list used to elicit jury questionnaires for 2016 did not include felons. It was unlikely that felons submitted jury questionnaires because they would not have been sent a request to do so.

“Given the likelihood that no felons submitted questionnaires for consideration by the Augusta County juror commissioners, it is equally unlikely that the commissioners would have deemed any felons to be ineligible for service,” because there would have been no questionnaires from felons to reject. Reviewing the questionnaires to find rejections of those who were ineligible to have sent questionnaires would be unlikely to be productive, the court reasoned.

The potential jurors to whom Broce referred may be eligible now, but they were not eligible when the jury questionnaires were distributed prior to McAuliffe’s order, the court said. Other categories of potential jurors also failed to make the list to receive questionnaires, including people who had recently reached the voting age of 18 or moved into the county and therefore become eligible for jury service.

The governor’s order could not supplant the General Assembly’s scheme for the annual preparation of the list for juror questionnaires. There is no statutory mechanism for adding potential jurors on a revolving basis, as they become eligible, the court said.

“Such a system would be unworkable, is not constitutionally mandated, and the Governor cannot, by the stroke of his pen, even if operating within his constitutional authority, create an entirely new body of law for jury selection,” Ludwig wrote.

Fodder for political barbs

Republican lawyer-legislators said Ludwig’s opinion highlights the need for guidance from the state Supreme Court on the McAuliffe order. Republican leaders have asked the court to overturn what they termed an “unprecedented and unconstitutional expansion of executive power.”

Beyond the constitutional question, Del. Rob Bell, R-Charlottesville, said Ludwig’s opinion shows the “urgency” of the need to resolve the status of felon rights restoration.

“Every jury case in the state now has this issue before it,” Bell said.

“I would imagine it’s happening everywhere,” said Matthew Moran, a spokesperson for House Speaker William J. Howell, R-Falmouth.

Ludwig’s questions about the application of the governor’s executive order highlight what Bell termed the “slapdash” approach by McAuliffe’s office.

Bell pointed to emerging reports of imprisoned felons – presumably not intended to be affected by the rights restoration order – being listed among those eligible for voter registration and other privileges.

“This is not an academic concern,” Bell said.

There was no immediate response to requests for comment from McAuliffe’s office and from the office of Attorney General Mark R. Herring, who will defend the order at the Supreme Court.

Additional reporting by Deborah Elkins

This story has been corrected to state the Supreme Court special session is scheduled for July 19, not July 17, and to update the ruling in the Dinwiddie County case.

VLW 016-8-073

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