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DiGiacinto v. The Rector and Vistors of George Mason University
- Thread starter Virginiaplanter
- Start date
TFred
Regular Member
imported post
NightmareSHANIQUA wrote:
TFred
NightmareSHANIQUA wrote:
I think that is the purpose of the lawsuit.
TFred
user
Accomplished Advocate
imported post
What??? 15.2-915 specifically states that all agencies of the Commonwealth ARE "localities" for the purposes of that statute.
Mr. DiGiacinto's problem is that he did not sue on that basis. I wish he had, but that's just plain not an issue in the case.
The appeal is about whether the Commonwealth can be a defendant to a declaratory judgment action. The Commonwealth's position is that the U. IS a state agency, and therefore covered by sovereign immunity, since there is no statute by which the Commonwealth has waived her immunity with respect to civil actions of that sort.
What??? 15.2-915 specifically states that all agencies of the Commonwealth ARE "localities" for the purposes of that statute.
Mr. DiGiacinto's problem is that he did not sue on that basis. I wish he had, but that's just plain not an issue in the case.
The appeal is about whether the Commonwealth can be a defendant to a declaratory judgment action. The Commonwealth's position is that the U. IS a state agency, and therefore covered by sovereign immunity, since there is no statute by which the Commonwealth has waived her immunity with respect to civil actions of that sort.
Mike
Site Co-Founder
imported post
user wrote:
15.2-915 only refers to localities and THEIR authorities, agents, departments, and agencies - bills to preemptstate agencies have failed to pass the general assembly.
Here is the text of 15.2-915 which only applies to localities - state colleges are state agencies, not localities.
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§ 15.2-915. Control of firearms; applicability to authorities and local governmental agencies.
A. No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by § 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute. For purposes of this section, a statute that does not refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization.
Nothing in this section shall prohibit a locality from adopting workplace rules relating to terms and conditions of employment of the workforce. Nothing in this section shall prohibit a law-enforcement officer, as defined in § 9.1-101 from acting within the scope of his duties.
The provisions of this section applicable to a locality shall also apply to any authority or to a local governmental entity, including a department or agency, but not including any local or regional jail or juvenile detention facility.
B. Any local ordinance, resolution or motion adopted prior to the effective date of this act governing the purchase, possession, transfer, ownership, carrying or transporting of firearms, ammunition, or components or combination thereof, other than those expressly authorized by statute, is invalid.
C. In addition to any other relief provided, the court may award reasonable attorney fees, expenses, and court costs to any person, group, or entity that prevails in an action challenging (i) an ordinance, resolution, or motion as being in conflict with this section or (ii) an administrative action taken in bad faith as being in conflict with this section.
user wrote:
talk a bout What?
15.2-915 only refers to localities and THEIR authorities, agents, departments, and agencies - bills to preemptstate agencies have failed to pass the general assembly.
Here is the text of 15.2-915 which only applies to localities - state colleges are state agencies, not localities.
--
§ 15.2-915. Control of firearms; applicability to authorities and local governmental agencies.
A. No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by § 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute. For purposes of this section, a statute that does not refer to firearms, ammunition, or components or combination thereof, shall not be construed to provide express authorization.
Nothing in this section shall prohibit a locality from adopting workplace rules relating to terms and conditions of employment of the workforce. Nothing in this section shall prohibit a law-enforcement officer, as defined in § 9.1-101 from acting within the scope of his duties.
The provisions of this section applicable to a locality shall also apply to any authority or to a local governmental entity, including a department or agency, but not including any local or regional jail or juvenile detention facility.
B. Any local ordinance, resolution or motion adopted prior to the effective date of this act governing the purchase, possession, transfer, ownership, carrying or transporting of firearms, ammunition, or components or combination thereof, other than those expressly authorized by statute, is invalid.
C. In addition to any other relief provided, the court may award reasonable attorney fees, expenses, and court costs to any person, group, or entity that prevails in an action challenging (i) an ordinance, resolution, or motion as being in conflict with this section or (ii) an administrative action taken in bad faith as being in conflict with this section.
user
Accomplished Advocate
imported post
Well, I'd be willing to be persuaded otherwise, particularly if there's some judicial authority interpreting that statute. But the language, "any authority or to a local governmental entity, including a department or agency" is not limited by words like "thereof" or "of such local governmental entity". I read, "any authority...including a department or agency" to mean, "any authority... including a department or agency".
Granted, it's not as clear as it should be, but it is remedial in nature, and ought to be expansively interpreted, as in support for the Constitutional provision it is clearly intended to reinforce. I can't think of any canon of construction that would require a more restrictive meaning. "Any" to me, means, "any".
Well, I'd be willing to be persuaded otherwise, particularly if there's some judicial authority interpreting that statute. But the language, "any authority or to a local governmental entity, including a department or agency" is not limited by words like "thereof" or "of such local governmental entity". I read, "any authority...including a department or agency" to mean, "any authority... including a department or agency".
Granted, it's not as clear as it should be, but it is remedial in nature, and ought to be expansively interpreted, as in support for the Constitutional provision it is clearly intended to reinforce. I can't think of any canon of construction that would require a more restrictive meaning. "Any" to me, means, "any".
Virginiaplanter
Regular Member
imported post
Amicus Curiae Brief of the Virginia Citizens Defense League filed with the Supreme court.
Amicus Curiae Brief of the Virginia Citizens Defense League filed with the Supreme court.
Mike
Site Co-Founder
imported post
user wrote:
user wrote:
I think the caption of the statute. "Control of firearms; applicability to authorities and local governmental agencies," as well as the caption of the title in which the statue is codified, "COUNTIES, CITIES AND TOWNS," weigh in favor of the plain reading of the statute to apply only to localities.
Article1section23
Regular Member
imported post
Virginiaplanter wrote:
VP,
Do you know the time line for when all the briefs need to be submitted? Do you think this willbe heard beforeMcDonald is handed down?
Virginiaplanter wrote:
VP,
Do you know the time line for when all the briefs need to be submitted? Do you think this willbe heard beforeMcDonald is handed down?
Virginiaplanter
Regular Member
imported post
Rule 5:26. Briefs.
(b) Filing Time. In cases where a petition for appeal has been granted by this Court, briefs shall be filed subject to the provisions of Rule 5:1(b)(11), as follows:
(1) The appellant shall file the opening brief in the office of the clerk of this Court within 40 days after the date of the certificate of appeal issued by the clerk of this Court pursuant to Rule 5:23.
(2) The brief of appellee shall be filed in the office of the clerk of this Court within 25 days after filing of the opening brief.
(3) The appellant may file a reply brief in the office of the clerk of this Court within 14 days after filing of the brief of appellee.
----
Since there is no date certain for the release of the McDonald Opinion, it seems unlikely that this case will be heard by that time assuming a June release.
Rule 5:26. Briefs.
(b) Filing Time. In cases where a petition for appeal has been granted by this Court, briefs shall be filed subject to the provisions of Rule 5:1(b)(11), as follows:
(1) The appellant shall file the opening brief in the office of the clerk of this Court within 40 days after the date of the certificate of appeal issued by the clerk of this Court pursuant to Rule 5:23.
(2) The brief of appellee shall be filed in the office of the clerk of this Court within 25 days after filing of the opening brief.
(3) The appellant may file a reply brief in the office of the clerk of this Court within 14 days after filing of the brief of appellee.
----
Since there is no date certain for the release of the McDonald Opinion, it seems unlikely that this case will be heard by that time assuming a June release.
user
Accomplished Advocate
imported post
nova wrote:
nova wrote:
Good work, Richard Gardiner; very well done. Someone told me recently that he'd been appointed to be a judge in Fairfax. Any truth to that rumor?
imported post
nova wrote:
Yata hey
nova wrote:
That made for some very interesting reading.Virginiaplanter wrote:Just finished reading.
I sure did learn a lot. You should teach at GMU...too many people do not know our Commonwealth's history.
Yata hey
user
Accomplished Advocate
imported post
Sigh.
I am reminded of my Constitutional Law class, in which the professor announced to the class that I was "in the wrong century".
I just read the brief, having degrees in both History and Law and twenty some odd years of litigation experience, and being admitted to practice in both the Va. and U.S. Supreme Courts and inferior courts. So I reckon I'm not a total idiot when it comes to these sorts of things, and I'll tell you, I couldn't figure out from that briefwhat the trial court did that was wrong, and what Mr. DiGiacinto wants to happen as a result.
Legal writing isn't the production of scholarly articles. It's more like writing subroutines for computer programs. Each document produced is supposed to DO something. It has parameters and arguments, and a section for processing the data. Ifyou lose track of the function of the document, andfail to understandthe system in which the document is intended to operate, the document will be ineffective.
I wasn't clear on exactly what Mr. DiGiacinto wants the Court to do. There was an extensive list of authorities, but very few citations to those authorities. No one is going to read all that stuff and try to figure out why Mr. DiGiacinto threw them in, or more importantly, try to relate them to the assignments of error. No one will do your legal analysis for you on appeal. And if you don't connect them to the record in the case to show why your argument should be persuasive, you haven't actually said anything.
Mr. DiGiacinto's brief is educational, and I agree with his historical analysis. I am a firm believer that who and what we are is the byproduct of who and what we were. That and two bucks will get you a cup of reasonably decent coffee in most places. I didn't see anything in the brief (for example)that will tell the Court why Judge McWeeny was wrong in his factual determination of whether GMU is a "sensitive place" by reference to the transcript of the trial.
I'll tell you what I'm afraid of. There is a possibility that some members of the Court were in favor of granting the petition for leave to appeal because this case has created a huge opportunity to write an opinion that will serve as precedent for a much stricter gun control regime than we have now. There are so many places in the brief that will give the Court the opportunity to jump off into some tangential thing and say that the petitioner has gone off the deep end, and hasn't given the Court any reason to say that the trial court was in error; and that GMU's regulations are therefore confirmed.
By the way, anyone notice that Bill Mims has been appointed to the bench? Anyone take a look at his record in the General Assembly with respect toself-defense issues?
Sigh.
I am reminded of my Constitutional Law class, in which the professor announced to the class that I was "in the wrong century".
I just read the brief, having degrees in both History and Law and twenty some odd years of litigation experience, and being admitted to practice in both the Va. and U.S. Supreme Courts and inferior courts. So I reckon I'm not a total idiot when it comes to these sorts of things, and I'll tell you, I couldn't figure out from that briefwhat the trial court did that was wrong, and what Mr. DiGiacinto wants to happen as a result.
Legal writing isn't the production of scholarly articles. It's more like writing subroutines for computer programs. Each document produced is supposed to DO something. It has parameters and arguments, and a section for processing the data. Ifyou lose track of the function of the document, andfail to understandthe system in which the document is intended to operate, the document will be ineffective.
I wasn't clear on exactly what Mr. DiGiacinto wants the Court to do. There was an extensive list of authorities, but very few citations to those authorities. No one is going to read all that stuff and try to figure out why Mr. DiGiacinto threw them in, or more importantly, try to relate them to the assignments of error. No one will do your legal analysis for you on appeal. And if you don't connect them to the record in the case to show why your argument should be persuasive, you haven't actually said anything.
Mr. DiGiacinto's brief is educational, and I agree with his historical analysis. I am a firm believer that who and what we are is the byproduct of who and what we were. That and two bucks will get you a cup of reasonably decent coffee in most places. I didn't see anything in the brief (for example)that will tell the Court why Judge McWeeny was wrong in his factual determination of whether GMU is a "sensitive place" by reference to the transcript of the trial.
I'll tell you what I'm afraid of. There is a possibility that some members of the Court were in favor of granting the petition for leave to appeal because this case has created a huge opportunity to write an opinion that will serve as precedent for a much stricter gun control regime than we have now. There are so many places in the brief that will give the Court the opportunity to jump off into some tangential thing and say that the petitioner has gone off the deep end, and hasn't given the Court any reason to say that the trial court was in error; and that GMU's regulations are therefore confirmed.
By the way, anyone notice that Bill Mims has been appointed to the bench? Anyone take a look at his record in the General Assembly with respect toself-defense issues?
Thundar
Regular Member
imported post
Mike wrote:
I agree with User.
1) The plain reading is that any means any.
2)If any only refered to local authorities, then authority would be superfolous, because local authorities are already covered as instrumentalities of the local authorities.
3) There are numerous instances throughout Commonwealth law where the laws were codified in odd or inconvenient places. The law is the law, the codification is simply the orgainzation of the law for convenience. Codification is by no means controlling.
4) In Chapter 9 of 15.2,General Powers of Local Government, authority is mentioned 35 times. Thirty four times authority is used as a verb to describeactions a local government can (or cannot) do . Only once is authority used as a noun to describe an entity. If it was necessary for the noun -authority to be mentioned to include "local authorities", then why is not used anywhere else in the chapter as a noun? If it were necessary to mention local authority every time, we would have a giant "local authority loophole!!!"
This issue is exactly the issue that I have with the Chesapeake Hospital Authority, which is state, not city, chartered.
Mike wrote:
I agree with User.
1) The plain reading is that any means any.
2)If any only refered to local authorities, then authority would be superfolous, because local authorities are already covered as instrumentalities of the local authorities.
3) There are numerous instances throughout Commonwealth law where the laws were codified in odd or inconvenient places. The law is the law, the codification is simply the orgainzation of the law for convenience. Codification is by no means controlling.
4) In Chapter 9 of 15.2,General Powers of Local Government, authority is mentioned 35 times. Thirty four times authority is used as a verb to describeactions a local government can (or cannot) do . Only once is authority used as a noun to describe an entity. If it was necessary for the noun -authority to be mentioned to include "local authorities", then why is not used anywhere else in the chapter as a noun? If it were necessary to mention local authority every time, we would have a giant "local authority loophole!!!"
This issue is exactly the issue that I have with the Chesapeake Hospital Authority, which is state, not city, chartered.
user
Accomplished Advocate
imported post
Well, and after thinking about the responses earlier, I came to the conclusion that "counties, cities, and towns" is another way of saying, "municipal corporations, generally"; and that a state university is covered under the phrase, "local governmental agencies" - if they've got their own police force and rulemaking authority, and they're located within a county, then they're basically a "town".
Too bad I'm nowhere near Chesapeake. I'd like to litigate that issue. On the other hand, I hate swamps, mosquitoes, and flies.
I had a thought - I know a guy namedLarry Dumville, who'san attorney in Virginia Beach. We've chatted in the past about plaintiff's cases he's worked on, and the consumer protection act, and I see he's listed as a "gun friendly lawyer" on the VCDL website. I think you ought to give him a call about that hospital thing.
Here's the angle I'm thinking of: the hospital is a "supplier" as that term is defined by the consumer protection act, and you're a "consumer"; you have to have "suffered loss" under the statute to have standing to sue, but it doesn't have to be a financial loss - I think the loss of a constitutionally protected civil right would qualify. The kicker is that the statute (59.1-204) provides for an award of attorneys' fees, and fifteen hundred dollars for a willful violation of the act. One "prohibited practice" is to take action with respect to a consumer that is not lawful, and it seems to me that's what they did. I'd put the violation of 15.2-915 as count 1, asking for an injunction, and violation of the VCPA as count 2, demanding attorneys' fees in both, and fifteen hundred dollars in statutory damages for the latter.
S. Lawrence Dumville - (757) 498-7700 - Tell him Dan Hawes recommended him.
Norris & St. Clair, P.C.
2840 S. Lynnhaven Road
Virginia Beach, VA 23452
Well, and after thinking about the responses earlier, I came to the conclusion that "counties, cities, and towns" is another way of saying, "municipal corporations, generally"; and that a state university is covered under the phrase, "local governmental agencies" - if they've got their own police force and rulemaking authority, and they're located within a county, then they're basically a "town".
Too bad I'm nowhere near Chesapeake. I'd like to litigate that issue. On the other hand, I hate swamps, mosquitoes, and flies.
I had a thought - I know a guy namedLarry Dumville, who'san attorney in Virginia Beach. We've chatted in the past about plaintiff's cases he's worked on, and the consumer protection act, and I see he's listed as a "gun friendly lawyer" on the VCDL website. I think you ought to give him a call about that hospital thing.
Here's the angle I'm thinking of: the hospital is a "supplier" as that term is defined by the consumer protection act, and you're a "consumer"; you have to have "suffered loss" under the statute to have standing to sue, but it doesn't have to be a financial loss - I think the loss of a constitutionally protected civil right would qualify. The kicker is that the statute (59.1-204) provides for an award of attorneys' fees, and fifteen hundred dollars for a willful violation of the act. One "prohibited practice" is to take action with respect to a consumer that is not lawful, and it seems to me that's what they did. I'd put the violation of 15.2-915 as count 1, asking for an injunction, and violation of the VCPA as count 2, demanding attorneys' fees in both, and fifteen hundred dollars in statutory damages for the latter.
S. Lawrence Dumville - (757) 498-7700 - Tell him Dan Hawes recommended him.
Norris & St. Clair, P.C.
2840 S. Lynnhaven Road
Virginia Beach, VA 23452
Article1section23
Regular Member
user
Accomplished Advocate
imported post
Not entirely off-topic, as what we're talking about is the application of 15.2-915toVirginia state universities. But apropos of Thundar's observations:
In the Code of Virginia, "Hospital Authorities" isChapter 53within the title "Counties, Cities, and Towns". There's a laundry list of various kinds of municipal corporations enumerated, which I think reinforces my theory of interpretation.
Of course, it would be best if we didn't have to try so hard to figure out what the @#&^*#@$^ statute means! That means it's going to be easy for a court to say that the statute means whatever the judge thinks it ought to mean.
Not entirely off-topic, as what we're talking about is the application of 15.2-915toVirginia state universities. But apropos of Thundar's observations:
In the Code of Virginia, "Hospital Authorities" isChapter 53within the title "Counties, Cities, and Towns". There's a laundry list of various kinds of municipal corporations enumerated, which I think reinforces my theory of interpretation.
Of course, it would be best if we didn't have to try so hard to figure out what the @#&^*#@$^ statute means! That means it's going to be easy for a court to say that the statute means whatever the judge thinks it ought to mean.
Citizen
Founder's Club Member
imported post
NightmareSHANIQUA wrote:
NightmareSHANIQUA wrote:
They're not really getting away with anything much. Mr. DiGiacinto is trying to prevent them in advance from getting away with arresting him if goes to the college armed and refuses to leave.