How Virginia's Attorney General Puts the State Before the Citizenry

Why is Mark Herring carrying water for a state agency when he should be securing the rights of the people?


Virginia Attorney General Mark Herring hardly had time to hang new curtains in his office before he announced he would not defend Virginia's marriage amendment. Since then he has tried valiantly to depict that decision as a work of noble note.

He says he cannot, in good conscience, defend a law that violates the Constitution: "It's time for the commonwealth to be on the right side of history and the right side of the law." Besides, he added, "It is completely within the power of the attorney general to refuse to defend in court a law that he has determined to be unconstitutional after an independent, rigorous analysis."

That view has received support from other legal notables, including Supreme Court Justice Antonin Scalia and A.E. Dick Howard, the University of Virginia law professor who headed up the commission that wrote Virginia's current constitution.

But Herring didn't merely decline to defend the marriage amendment. Even though the attorney general is, for all intents and purposes, the house lawyer for the state, he went so far as to side with the plaintiffs. It is a principled stand—and a politically convenient one for a Democratic politician with designs on the governor's office.

Last week, his press office sent out a release boasting that "Herring was the first state attorney general to successfully fight at the district and appellate level for his state's (gay) marriage ban to be struck down." Just in case you'd forgotten.

Virginia's marriage amendment is an excrescence, and it will be a bright day in history when it is stricken from the books. But Herring's conscientious objection to its patent injustice has not carried over to another case in which the inequities and iniquities are, if not as great, at least as clear.

A few years ago the Virginia Department of Transportation wanted a piece of land belonging to James and Janet Ramsey of Virginia Beach. VDOT took the property through eminent domain, as it certainly has the authority to do, and it wanted the land for a clearly public purpose: an off-ramp along Route 264. So far so good.

VDOT's appraiser estimated the value of the land at $246,292. The Ramseys thought it was worth more, so the dispute headed to court for resolution. The appraiser retired, and a new appraiser pegged the value of the land at only $92,127.

This sort of thing happens a lot; property-rights lawyers in some parts of the country call it sandbagging. In another Virginia Beach case, the appraisal dropped from $210,000 to $17,000. A Prince William case saw the appraised value plunge from $214,000 to $14,000. The message is loud and clear: Take the first offer, or you could get a heck of a lot less.

Yet that's not the worst of it. During the Ramseys' takings proceeding, the jury was not allowed to hear VDOT's initial appraisal. It could only know of the second, much lower one. (Despite that, the jury still found VDOT owed the Ramseys $234,000—a good indication that the second appraisal was far too low.)

The Ramseys objected to that rule, and the case made its way to the Virginia Supreme Court. In mid-April the court's seven justices ruled unanimously in their favor. They had said it before, and they would say it again: "All relevant evidence is admissible."

The court did not impose a final verdict in this David-and-Goliath case. It simply sent the matter back to the lower court for rehearing. The Ramseys still have to argue that their case all over again. Only this time, the jury will get to hear all the evidence.

But perhaps not. Attorney General Herring has sent the Virginia Supreme Court notice he might ask the court to rehear the case—that is, to reverse itself and rule the jury should not get to hear all the evidence after all.

His office says this is a purely procedural matter and doesn't mean it's leaning one way or another. Tell that to the Ramseys. They've waited for a fair settlement for years, and a rehearing at the Supreme Court level would delay further the rehearing at the lower-court level.

Why drag this out any more? Hiding basic facts from a jury insults the very idea of procedural fairness. Telling homeowners one thing and juries another is dishonorable at best. Yet in this case, apparently, the attorney general feels duty-bound to defend the state—rather than to conduct an "independent, rigorous analysis" to make sure the commonwealth is on "the right side of the law."

Judging from the court's unanimity, it looks as if the Ramseys have history on their side, too. So why is Herring still schlepping water for VDOT?

Last year Herring wrote that "the attorney general first and foremost represents the people of Virginia, not just state agencies and agency heads."

Really? He's got a funny way of showing it.