After Va.'s Losses In Court, a Flurry Of Finger-Pointing

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By Jerry Markon
Washington Post Staff Writer
Saturday, September 20, 2008

The Virginia Supreme Court's rejection of an anti-spam law is the state's latest high-profile legal defeat, a string of losses that some lawyers see as coincidental but others say reflects the General Assembly's willingness to pass aggressive measures that are more likely to face a constitutional challenge.

The court last week ruled that the law cracking down on people who send masses of unwanted e-mail, one of the nation's first, violated the First Amendment right to free speech. That followed decisions in recent months that imperiled Virginia's landmark transportation plan and declared the state's abortion law unconstitutional.

The Virginia attorney general's office, which defends the state against lawsuits, said that it sees no pattern and that Virginia wins most cases, including in the U.S. Supreme Court, where it has had a 13-0 record since 2006. Even the recent decisions are not final; a federal appeals court has agreed to hear the abortion case, and Attorney General Robert F. McDonnell (R) has vowed to appeal the anti-spam ruling.

"Doing constitutional litigation in an attorney general's office is a lot like the baseball season. You try to win more games than you lose, but you never go undefeated," said Chief Deputy Attorney General William C. Mims, who oversees the office's solicitor general division. The two-lawyer division argues constitutional cases, often with help from the office's 175 other lawyers.

Richmond lawyer William Broaddus, a former Democratic-appointed Virginia attorney general, called the recent decisions "a coincidence of three high-profile cases. The attorney general's office has to play the hand it's dealt. It doesn't craft the laws."

But other legal experts pointed to the General Assembly's passage of a host of far-reaching laws regulating areas as diverse as gangs and state employees' access to sexually explicit Web sites along with spam and late-term abortions. Some of those measures, enacted or amended over the past decade, put Virginia at the forefront of national legal trends, exposing the commonwealth to challenges from a variety of activist groups.

"The Virginia General Assembly may be more aggressive and venturesome than other states," said Robert O'Neil, who directs the Thomas Jefferson Center for the Protection of Free Expression in Charlottesville. He said he wasn't surprised by the anti-spam law's rejection because it was broader and imposed harsher penalties than other states' laws.

Del. David B. Albo (R-Fairfax) agreed that legislators have, on occasion, pushed the bounds of constitutionality but that they are properly representing their constituents. "The problem is that our job is to promote policy, and the Supreme Court's job is to analyze," said Albo, one of a declining number of lawyers in the General Assembly. "I can't be hamstrung to write the wimpiest bill possible to make sure it passes a Supreme Court opinion."

As an example, Albo cited the Partial Birth Infanticide Act of 2003, which bans the controversial medical procedure "intact dilation and extraction," in which the fetus is partially delivered and the skull is crushed to make removal easier. A divided three-judge panel of the U.S. Court of Appeals for the 4th Circuit overturned the law for the second time in May, saying it was more restrictive than the federal ban on late-term abortion that the U.S. Supreme Court approved last year.

Albo said legislators knew that the law "was in danger of being held unconstitutional" but passed it anyway because "we did what we think is right." The full 4th Circuit, which rarely grants rehearings, will hear arguments Oct. 28. In a recent brief, state attorneys argued that Virginia's law "is substantively identical to the federal statute."

Lawmakers also realized that the 2003 anti-spam law would be challenged, said former Republican attorney general Jerry W. Kilgore, whose office proposed it. The law made it a misdemeanor to send unsolicited bulk e-mail by using false transmission information, such as a phony domain name or Internet protocol address. The crime turned into a felony if more than 10,000 recipients are mailed in a 24-hour period, and the 2004 trial in Loudoun County of mass e-mailer Jeremy Jaynes resulted in the nation's first felony conviction for spamming.

"Internet service providers in Virginia were getting swamped by spam. It was affecting businesses across the state," Kilgore said. "We were creative in drafting that legislation. Our legislative body has been very active in trying to be cutting edge."

The legal defeat that has most affected Northern Virginia is the Virginia Supreme Court's March decision that unraveled the state's first transportation funding bill in 21 years. The court ruled that a regional authority created by the 2007 legislation could not constitutionally impose taxes and fees, which jeopardized billions of dollars for road and transit projects across the congested region.

During a special session this summer, the General Assembly failed to agree on how to pay for the projects, and there are no plans to revisit the issue this year.

Republicans and Democrats again traded accusations over who was to blame for the law's demise. Kilgore said that amendments to the bill proposed by Gov. Timothy M. Kaine (D) made it unconstitutional, but Kaine spokesman Gordon Hickey countered that the legislature's original bill would have been overturned.

"The governor amended it to try to rescue it," Hickey said. "The final bill was approved by the General Assembly, and the assembly adopted the governor's amendments. It's not like he did it all by himself."

Staff writer Anita Kumar in Richmond contributed to this report.


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