Friday, March 25, 2016

In Virginia if You Don’t File an Injunction Before a Law Takes Effect Then There is NO Stopping it After the Fact Because Virginia Prohibits ALL Class Action Lawsuits

For the last 8 years that I’ve been a volunteer advocate working to reform the Virginia Sex Offender Registry and laws it seems I was living under a serious misconception that changes everything about I will advocate in the future. 

I believed that like in other states if a law that was enacted by the Legislature was challenged by one or more people was ruled to be unconstitutional it wouldn’t just be a win for those who took the challenge but it would then result in the law being overturned and EVERYONE affected by the unconstitutional law would find relief. 

Like in Ohio with the retroactive/mass reclassifications of Registered Sex Offenders (RSO) was challenged by just a handful of RSO’s but once ruled unconstitutional EVERY RSO was returned to their original classification. In Kansas with the retroactive extension of time to register for RSO’s when ruled unconstitutional it returned EVERY RSO’s to their original timeframe, not just the ones who challenged it in court.  And in Maryland when they forced Pre-Registry convictions to become public RSO’s and register the win applied to EVERY RSO, not just those who went to court. These are just three examples; the list goes on in other states for other rulings. 

So when Virginia retroactively reclassified thousands of RSO’s from Non-Violent to Violent in both 2006 and 2008 I expected if just one Virginia RSO who was affected came forward today to challenge the law and they won, it would trickle down to EVERY RSO affected. 

And in my household we were planning in 2017 to challenge the 2008 Virginia change in law retroactively extending the timeframe that Non-Violent RSO’s must register before being allowed to petition for removal from 10 years to 15 years hoping that if we were successful then it would apply to everyone who was directly affected by the 2008 Legislative change that blatantly denied them due process. 

Well, yesterday at our meeting with the attorney who we may/or may not be able to challenge Virginia’s SB666/HB1190 we learned this is NOT how Virginia Courts operate and our plans and expectations of the Commonwealth’s justice system were quickly quashed. 

If a law in Virginia is NOT challenged BEFORE it goes into effect with an injunction then any challenge against it if there is a win in court ONLY applies to the plaintiff(s) listed in the court challenge. A win would of course set precedence for all future citizens to then challenge the law and most likely means a win for them too, but they’d have to go to court too. One by one, person by person it would have to be challenged over and over again. But the majority of people directly affected by the law would never receive justice because they don't have the time or the money to challenge a law that has already been ruled unconstitutional previously. 

How is this possible? It’s because Virginia completely prohibits class-action lawsuits.

The Virginia Legislature knows that if a law takes effect on July 1st and isn’t stopped ahead of time with an injunction (which costs tens of thousands of dollars) that no class-action can ever be taken against it and instead of the law being overturned in its entirety it stays on the books and it continues to apply unless the Legislature takes action to repeal it. 

To completely overturn ANY Virginia law it must be done so in Federal Court which most Virginia laws can not be heard in a Federal Court OR it must make its way up to the U.S. Supreme Court and the odds of even being considered by SCOTUS are extremely low. 

The Virginia Legislature can pass as many laws that they know violate our civil rights, that deny us due process or equal protection under the law or that violate ex post facto because without access to a class-action suit the odds are in their favor they can just deny the citizens of Virginia rights that we all expect to be basic tenets of our justice system and democracy. 

I am still digesting this information as it came as a shock to both me and my husband yesterday. 

Especially since the ACLU-VA suggested that I wait for SB666/HB1190 to take effect on July 1st and for the VA-DMV to refuse to renew my license plate in August and then they’d talk to me about options for a challenge. Their suggestion was in my opinion reactive instead of proactive and now I know that if I took their suggestion then a court challenge would only apply to my license plate not to everyone else who owns a plate. Why would I wait to challenge a law that would only benefit me or my spouse instead of everyone that it applies to? I wouldn’t! 

Now we know that waiting to challenge a law after it takes effect, is too late. It MUST be done ahead of time with an injunction which could cost $25,000 to $55,000 so everyone is included if it is successful.

So  now we need to consider if SB666/HB1190 is really worth the cost or should I wait for a future law that affects more RSO’s to come up in 2017 or 2018 and fight whatever the VA Legislature has decided to prohibit or mandate, instead? I’m not sure yet, but I'm giving it all careful consideration.
Mary Devoy