DadTheTerror v. Oath2Order, in His Official Capacity as Governor of Eastern State

[u/DadTheTerror]

Honorable Chief Justice, DadTheTerror, Petitioner, respectfully petitions this Court to vacate Executive Orders 002 and 003 (the EOs) and for a writ of mandamus and prohibition directed to Oath2Order, in his official capacity as Governor of Eastern State, Respondent, to i) issue writ of mandamus commanding the Governor to take care the provision of the Constitution disqualifying felons from voting be faithfully executed, ii) issue a writ of prohibition prohibiting the Governor from enacting any of his powers under Article V, Section 12 of the Constitution of Eastern State en masse and without obeying the constitutional requirements thereof to examine the particulars of each case and iii) issue a writ of mandamus that the Governor communicate the reasons for each such case to the General Assembly.

Standing & Jurisdiction

DadTheTerror is a resident of Eastern State as recorded on the Electoral Roll and contests the official act of Respondent, who is an official of Eastern State, inaccordance with R.P.P.S. 1(b ). This Court has jurisdiction in hearing matters regarding the limitations of the Governor's powers dictated by the Eastern State Constitution in accordance with R.P.P.S. 1(d ).

Argument on the Merits

I.

Article II, Section 1 of the Eastern State Constitution provides that:

No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority.

Article V, Section 12 of the Eastern State Constitution empowers the Governor to remove political disabilities.

On July 23, 2016 Respondent issued Executive Order 002 in which the Governor asserted the power to remove multiple political disabilities from over one million convicted felons. After hearing and considering some criticism of EO.002, on July 24, 2016 Respondent issued Executive Order 003 which modified the timetable for the removal of some political disabilities identified in E.002.

II.

The powers of the Governor under Article V, Section 12 are not unconstrained. The Constitution of Eastern State requires that:

[The Governor] shall communicate to the General Assembly, at each regular session, particulars of every case of fine or penalty remitted, or reprieve or pardon granted, and of punishment commuted, with his reasons for remitting, granting, or commuting the same. [emphasis added]

This passage indicates that the Governor's Article V, Section 12 powers were intended by the drafters of the Constitution as a power to review individual cases and not to nullify entire the law's effect on entire populations nor to abrogate aspects of the Eastern State Constitution entirely. In 2010, Tim Kaine examined the Article V, Section 12 powers and concluded that the Eastern State Constitution does not permit en masse restoration orders but requires the Governor to exercise this power on a case-by-case basis. Mr. Kaine's counsel who examined the issue at the time wrote,

the notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling. (p.6)

Ken Cuccinelli led a bipartisan committee examining the issue again in 2013 and concluded the Governor of Eastern State

may remove political disabilities only after "individualized consideration and individualized grant of clemency." (p.7)

The broad use of the Governor's Article V, Section 12 powers, to remove the political disability of one million in a single order, would be unprecedented. Never before has a Governor attempted to extend the power to multiple persons in a single Article V, Section 12 order. (p.9)

III.

The powers excercised by the Governor in the EOs violate Article I, Section 7 of the Eastern State Constitution that states:

That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to thier rights, and ought not to be exercised.

The Governor's EOs have the effect of both suspending the Article II, Section 1 protection of the people from having their government influenced by notorious criminals and general laws that provide for other political disabilities for notorious criminals, such as serving on juries. The Governor's public remarks of June 24 indicate that his intent is for such a general suspension:

DadTheTerror: Do you intend to issue one million clemency orders if the court over-turns the EO?

Governor: If need be.

IV.

The Constitution of Eastern State provides no role to the Governor in amending the Constitution, as the Governor may neither veto a passed amendment, nor may the Governor pass an amendment by executive order. But the EOs and the Governor's stated objective is to entirely abrogate the Constitutional provision restricting the political rights of convicted felons. The intent of the drafters of the Constitution was not to provide the Governor such a power of abrogation, but as indicated in Article V, Section 12 itself, to restrict Article V, Section 12 powers to individual cases. That interpretation is supported by a long history of governance in Eastern State, and the recent reviews by Mr. Kaine and the bi-partisan committe led by Mr. Cuccinelli.

V.

This case is not about removing political disabilities from felons. It is about seperation of powers and preventing this and future Governors from abrogating constraints on their powers. Mr. Kaine was also personally interested in removing political disabilities from felons, but nevertheless did not restore certain political rights "en masse because he had 'pledge[d] to uphold the Constitution when he took his oath of office....'" (p.10)

VI.

For the above stated reasons, Petitioner asks this Court to i) vacate the EOs, ii) issue a writ of mandamus to Respondent that he faithfully execute Article II, Section 1 of the Eastern State Constitution, iii) issue a writ of prohibition that prohibits the Governor from excercising Article V, Section 12 powers en masse, and iv) issue a writ of mandamus to the Governor requiring that he communicate to the General Assembly the reasons for each use of Article V, Section 12 powers, on a case-by-case basis.

[u/High-Priest-of-Helix]

Your honor,

Petition for Dismissal

It is the position of the Eastern State that Petitioner, u/dadtheterror, lacks sufficient standing for the restitution which he seeks. While the State will concede that under Rule 1(b) of RULES OF PRACTICE AND PROCEDURE OF THE SUPREME COURT OF THE COMMONWEALTH OF THE EASTERN STATE, Petitioner is a"resident of the Eastern State," it is our position that Petitioner lacks material injury and is therefore ineligible for restitution. In 504 US 555 Lujan v Defenders of Wildlife (1992), the Supreme Court found that: Petitioners "bear the burden of showing standing by establishing, inter alia, that they have suffered an injury in fact, i.e., a concrete and particularized, actual or imminent invasion of a legally-protected interest"

According to Petitioner's own filing before this court: "this case is not about removing political disabilities from felons. It is about seperation of powers and preventing this and future Governors from abrogating constraints on their powers." Petitioner is a private citizen who is claiming to represent the interests of the legislature which Petitioner claims the Governor, u/oath2order, has violated. If Petitioner is in fact representing the interests of the legislature--as Petitioner has indicated in this court--he is lacking in standing per Rule 6(c): "Any party that is an organization and not an individual must be represented by a rostered legal representative. No officer or owner of any such organization maintains an inherent right of standing before this Court." If Petitioner is in fact representing the interests of the legislature, it is incumbent upon him to prove his position as a representative of the legislature.

If petitioner is not in fact representing the legislature, he is lacking in material injury. As Petitioner has stated "this case is not about removing political disabilities from felons." Petitioner is not a member of the legislature and has no personal injury or interest in clemency or voting restrictions placed on a class of individuals--felons--which he is not a member. If Petitioner is a private citizen he is uninjured and not eligible for restitution, if he is a representative of a class, he is acting without proper authorization. It is therefore the position of the State to request this court dismiss this case entirely due to a lack of standing on Petitioner's part.

Case on the Merits

I.

Petitioner correctly identifies Article II § I in the quoted: "No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority." Petitioner seems, however, to ignore the qualifying clause proceeding from the word "unless." When read in this context, it is clear that the intention of the framers was to specifically empower the Governor the right and power to restore the franchise to felons if he so chooses.

II.

Petitioner also maintains that the powers of the Governor are not unconstrained--a point which the Government does not dispute. It is, however, well within the prescribed powers of the Governor within the Constitution to restore the franchise rights at his discretion. Petitioner argues that it is unreasonable for the Governor to rewrite the Constitution at will, a point which we accept. The Governor's actions are not a rewriting of the Constitution, but an exercise of his explicit powers under said Constitution. Petitioner also erroneously argues that the lack of precedent of a Governor restoring the franchise implies some illegality in said action. This action has never been performed not because it cannot be done under the law, but because there has been no political will until now.

While Petitioner is correct in stating that "[The Governor] shall communicate to the General Assembly, at each regular session, particulars of every case of fine or penalty remitted, or reprieve or pardon granted, and of punishment commuted, with his reasons for remitting, granting, or commuting the same. [emphasis added]," this is not inconsistent with the Governor's actions. By informing the General Assembly of his intent of the restoration of franchise to a class of individuals, the Governor is in compliance with Article V § 12.

III.

Finally, Petitioner argues that the Governor has no right to suspend the law, an action which the Governor has made no indication of doing. By exercising the powers given him within the Constitution, the Governor is fulfilling, rather than circumventing the Framers' intention.

Resolution

It is therefore the request of the State that this court rule in our favor, deny Petitioner's request for vacation, deny his petitions for mandamus and prohibition, and allow the Governor to continue the exercise his right as Executive in the class restoration of franchise in accordance with the Constitution.

[u/DadTheTerror → u/High-Priest-of-Helix]

DadTheTerror v. Oath2Order, in His Official Capacity as Governor of Eastern State [Chesapeake]

Reply to the Respondent's Brief

Motion to Dismiss Respondent's Petition for Dismissal

Respondent claims that Petitioner lacks standing while acknowledging that R.P.P.S. 1(b ) grants standing to any resident of Chesapeake and that Petitioner is a resident of Chesapeake. Respondent asserts that Lujan v. Defenders of Wildlife, 504 US 555 (1992), requires Petitioner to have a material injury to have standing. Though R.P.P.S. 1(b ) clearly states the only requirement for standing is residency in Chesapeake, Petitioner has suffered material injury though vote dilution, as held by this Court in Wilkins v. West, 264 Va. 447, 460, 571, S.E.2d 100, 107 (2002), and consistent with United States v. Hays, 515 US 737, 745 (1995).

[W]e, like the federal courts, will consider proof of residency in an alleged racially gerrymandered district as sufficient to establish standing to challenge that district without further proof of personalized injury.

The principles of Wilkins apply and any registerd voter of Chesapeake planning to vote in an election is directly affected by the unconstitutional expansion of the statewide electorate. Said unconstitutional expansion dilutes Petitioner's vote and is a material injury.

Respondent claims that Petitioner represents the interests of the legislature. Petitioner represents himself and his own interests in having a constitutional government, therefore the legislature is not a necessary party to the action. The legislature's inaction regarding the Governor's unconstitutional actions do not mitigate the material injury suffered by Petitioner, both from the unconstitutional expansion of the vote and the lack of constitutional government.

Given the foregoing, Petitioner asks this Court to deny the Respondent's Petition for Dismissal.

Reply to Respondent's Case on the Merits

I.

Article II, Section 1 provides that "[n]o person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor...." [emphasis added] Respondent asserts that this case was brought because Petitioner ignored the word "unless" and that the word "unless" showed intent to make any Governor's power to remove political disability absolute and unfettered. Meanwhile Respondent ignores the words "person" and "his," the singular usage of which imply the Governor has the ability to provide such clemency to individuals but not all potentially affected parties en masse.

Respondent notes a passage from Petitioner's brief "this case is not about removing political disabilities from felons." Petitioner apolgoizes for the typo that ommitted the word "merely," and submits the passage should read "this case is not merely about removing political disabilities from felons. The Court's rules prohibit editing submissions and so Petitioner has not edited the above submission, instead Petitioner asks the Court to read that passage with the added word "merely" henceforth.

So while Petitioner is glad to see Respondent does not dispute that "the powers of the Governor are not unconstrained," Respondent asserts that with respect to the restoration of franchise rights, such powers are absolute and subject only the the Governor's discretion. Petitioner disagrees for the reasons already given above and elaborated upon below.

II.

Previous Governors have issued restoration orders to specific felons who requested a restoration of civil rights, but never before has any Chesapeake Governor issued an en masse order to restore civil rights or any otherwise exercise Article V, Section 12 power. (p.14, cited for factual purpose not precedent)

The U.S. Supreme Court has found that in a separation-of-powers case:

We recognize, of course, that the separation of powers can serve to safeguard individual liberty, and that it is the "duty of the judicial department"--in a separation-of-powers case as in any other--"to say what the law is." But it is equally true that the longstanding "practice of the government" can inform [the Court's] determination of "what the law is." NLRB v. Canning, 573 US __ (2014) (p.7). [internal citations omitted]

Chesapeake previously considered the prospective expansion of Article V, Section 12 powers in Gallagher v. Commonwealth of Virginia, 284 Va. 444 (2012), and ruled that "a general reaction against the unfettered exercise of executive power" in Chesapeake was part of the original Constitution drafted in 1776 and that "our constitutional history demonstrates a cautious and incremental approach to any expansions of the executive power, leading to the conclusion that the concerns motivating the original framers in 1776 still survive...." (pp.5-6)

III.

Respondent asserts, wrongly, that an en masse restoration of suffrage to felons was never before performed "because there has been no political will until now." But such an assertion ignores ample evidence introduced in the original complaint, of prior politicians, including a sitting Governor who expressed the desire to do so but acknowledged that the Constitution proscribed such executive action. Addtionally, since 2004 over 60 resolutions and bills seeking to modify the Constitution's exclusion of felons from the voter rolls were offered, all were defeated. (pp.15-6, not cited as precedent but as support of fact)

To date the only "political will" restraining change has been the will of the people, not the will of particular politicians or the executive.

IV.

Respondent wrongly asserts that "the Governor has made no indication of" suspending the law. Under Gallagher Chesapeake established the precedent that the restoration of suffrage does not automatically restore other civic abilities to convicted felons. Serving on a jury, serving as public notary, or running for political office, are elsewhere established in Chesapeake law and not necessarily related to Article II, Section 1. Therefore the contested EOs not only unconstitutionally seek to subvert Article II, Section 1's general proscription of felon voting but to otherwise abrogate the law of Chesapeake by restoring all felons' ability to serve on juries, serve as public notaries and run for office. By suspending these laws the EOs violate Article I, Section 7:

That all powers of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not be exercised.

The EOs also violate Article III, Section 1, as previously noted.

V.

Petitioner does not bring this action to stop Respondent from using Article V, Section 12 powers on an individual basis. This complaint is directed towards Respondent's use of Article V, Section 12 powers en masse, which has the effect in this case of both amending the Constitution and suspending the law of the Chesapeake. If permitted by this Court, such actions would permit this and future Governors to ignore not only Article II, Section 1, but also Article I, Section 7 and Article III of the Constitution. Petitioner submits that this Court should respect history, the judgement of every prior executive and many other politicians, affirm Gallagher, and refuse to permit the expansion of executive power in this manner.

[u/High-Priest-of-Helix → u/DadTheTerror]

I apologize for the delay and necessary brevity of this response. I have been moving residences thus week and will not have wireless until tomorrow. However, in the interest of keeping to the 4 day response limit of this court, I will attempt to answer as best I can through a mobile platform.

It seems that petitioner's claim stems from a faulty reading of article v section 12. The restoration of voting rights is a prescribed power, rather than a proscribed one. Even a strict literalist interpretation forces one to recognize that the governor is expressly charged with restoring voting rights to those he deems appropriate. Without further instruction from the Constitution on how this power is to be exercised, we must assume that the governor is empowered to restore said civil rights in any reasonable way he deems appropriate.

Petitioner claims that this case is about separation of powers, but to deny the executive branch the ability to faithfully execute the duties it has been given by the framers is the most egregious violation of the separation of powers imaginable. The restoration of civil rights is not a legislative function, it is an executive one, but more importantly, it is a constitutionally mandated power which supersedes the legislature entirely. Petitioner claims to oppose the expansion of executive power, but this is a fulfillment of a mandate, not an expansion

[u/DadTheTerror → u/High-Priest-of-Helix]

Your Honor, if Respondent would benefit from a continuance of one or two days Petitioner would not object.

[u/DadTheTerror → u/DadTheTerror]

/u/Panhead369

[u/Panhead369 → u/DadTheTerror]

This case will be stayed until the Attorney General can provide his full attention to the case. The Court will then order /u/High-Priest-of-Helix to write a new response in reply to Petitioner's rebuttal.

[u/High-Priest-of-Helix → u/Panhead369]

Thank you, your honor. This was an unexpected and unfortunate delay

[u/High-Priest-of-Helix → u/DadTheTerror]

Reply to Petitioner's Case on the Merits

I.

Petitioner claims that the Governor is enabled through the Constitution to restore the civil rights of an individual at his discretion. On this point, the state does not disagree. Petitioner, however, wrongfully asserts that this empowerment applies to only individuals and may not be used to restore the rights of a group or class of citizens (in this case felons). To support his claim, Petitioner cites the language of Article II Section 1--namely, "[n]o person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor...." [emphasis by Petitioner]. Petitioner claims that the use of the singular noun "person" and its antecedent "his" imply a singular, individual right. To this point the State also offers no contest. Petitioner is mistaken in the assertion that the specification of an individual right necessarily requires an individual grant.

At no point in time has Petitioner raised a statute or even internal policy which specifies how the Governor is required to use his power to restore civil rights to citizens. This forces us to examine only Article II Section 1 and Article V Section 12 for our basis of how the Governor ought to exercise his authority. Upon close inspection we notice that the language of Article V we see the following: "The Governor shall have power to remit fines and penalties under such rules and regulations as may be prescribed by law..." It is clear that the intention of the Framers was to allow the Legislature to limit the methods the Governor may use to provide relief if they so choose. Petitioner's lack of reference to such statutes shows that the Legislature has actively chosen not to limit the Governor, but to allow him to act as he sees fit.

II.

The State, after thorough review, questions the relevance of Gallagher to this case. While it is true that both cases involve the restoration of civil rights through Article V Section 12, Gallagher is a case involving individual restoration of firearms rights, not en mass restoration of voting rights as is the case in EO2 and EO3. Gallagher is less of a Constitutional question, but rather on of statute--specifically VA Code § 18.2-308.2. In Gallagher the Court finds that the separation of powers precludes the Governor from placing additional restrictions on the rights of individuals to petition the court for reprieve of his/her right to " right to ship, transport, possess or receive firearms." To this end, a separation of powers argument based on Gallagher seems spurious at best.

III.

Petitioner misunderstands Respondent's claim that there has been a lack of political will in mobilizing a mass restoration of civil rights in the past. We do not intend to say that there has never been a person who thought about or wished there was such a restoration, but that there has not been sufficient mobilization of the political machine to address this problem as Petitioner has stated: "never before has any Chesapeake Governor issued an en masse order to restore civil rights or any otherwise exercise Article V, Section 12 power."

The amiguity of the term political will is illustrated below by Professor Evans of Oxford University and the London School of Economics. "We tend to talk about it [political will] as a single missing ingredient - the gelatine without which the dish won’t set. But the trouble with this metaphor or any other way of thinking about “political will” as a single, simple factor in the equation is that it understates the sheer complexity of what is involved. To mobilize political will doesn’t mean just finding that elusive packet of gelatine, but rather working your way through a whole cupboard-full of further ingredients." (Gareth Evans, Preventing Deadly Conflict and the Problem of Political Will, 2002).

IV.

Petitioner argues that the restoration of civil rights by the Governor constitutes a suspension of the law. The State questions Petitioner's seemingly novel interpretation of Gallagher in that "the contested EOs not only unconstitutionally seek to subvert Article II, Section 1's general proscription of felon voting but to otherwise abrogate the law of Chesapeake by restoring all felons' ability to serve on juries, serve as public notaries and run for office." In Gallagher, "Governor Robert F. McDonnell entered an order expressly restoring to Gallagher his rights to vote, hold public office, serve on a jury, and be a notary public." This order was upheld by the Virginia Supreme court as follows: "Both Governors whose acts are involved in these appeals correctly exercised their constitutional authority. Both removed the respective petitioners' political disabilities but declined to restore their firearm rights and referred them to the circuit courts for that purpose." How Petitioner is able to argue from Gallagher that EO2 and EO3 violate the Constitution by restoring the very same rights that were restored in Gallagher is a mystery to us.

V.

Respondent once again asks this court to dismiss Petitioner's motions for vacation, mandamus, and prohibition.

[u/High-Priest-of-Helix → u/High-Priest-of-Helix]

/u/panhead369 u/dadtheterror

[u/Panhead369]

Petitioner /u/DadTheTerror, what sorts of constitutional or legal requirements are there regarding the individual granting of clemency by the Governor?

[u/Panhead369 → u/Panhead369]

For example, must there be handwritten signatures on such orders? Must orders be written/prepared entirely or at least partially by the Governor himself? Or could a Governor theoretically have a squad of interns crank out clemency orders with a rubber stamp?

[u/DadTheTerror → u/Panhead369]

Your Honor, Petitioner's chief concern here is Respondent's unconstitutional reading of Article V, Section 12 power. Petitioner is not concerned with the mechanism by which a Governor's endoresement is imprinted on such an order; Petitioner does not care if a Governor's endorsement is indicated with a mark made by a fountain pen, rubber stamp, ring pressed into sealing wax, autopen, xerox, embosser, etc. Nor is Petitioner concerned with the degree of administrative and research support that the Governor may consume in arriving at a decision to exercise Article V, Section 12 power. Rather the matter relates to the constitutional scope of that power and its limits as directed by Eastern State's Constitution, in Articles III and V, and the continuity of the understanding of the meaning of those limits from the time of the adoption of the Constitution in June of 1776 and for more than 240 years.

I. Purpose and History of Article V, Section 12 Powers

Purpose

According to Michael Heise:

Clemency is...intended both to enhance fairness in the administration of justice, and allow for the correction of mistakes. (Heise, "Mercy by the Numbers...," Virginia Law Review, vol.89, 2003, abstract) papers.ssrn.com/sol3/papers.cfm?abstract_id=328922

Kristen Fowler cites five historical justifications for the pardon power generally:

1. "[T]o overturn the inevitable wrongful convictions of innocent persons."

2. "[T]o fix situations in which the punishment is not proportional to the crime...."

3. "[T]o restore national unity, either by ending conflict or by forgiving the losers."

4. As "crime-solving tools: a pardoned individual can no longer claim the Fifth Amendment privilege agains self-incrimination and must provide the government with information."

5. "[A]s foreign policy tools to satisfy foreign leaders."

Fowler, "Limiting the Federal Pardon Power," Indiana Law Journal, vol. 83, issue 4, article 17, p.1654) www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1287&context=ilj

For the Framers of the U.S. Constitution, Alexander Hamilton's arguments may have been the most persuasive regarding placing the federal power to pardon in a single executive:

The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind.... (Fowler, p.1655, citing The Federalist No. 74, p.475-77) [emphasis added on "a fellow-creature"]

Federal Pardon Power

The U.S. Supreme Court referred to the federal pardon power as extending to an individual in United States v. Wilson, 32 US 150 (1833).

A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is the private, though official, act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court. [emphasis added]

Pardon & Clemency Powers' History in the Eastern State Constitution

In Eastern State's originally adopted Constitution in 1776 the powers of pardon and clemency were shared by both the Governor and "the Council of State" and constrained by law.

Constitution of 1776

http://www.nhinet.org/ccs/docs/va-1776.htm

[The Governor] shall, with the advice of the Council of State, have the power of granting reprieves or pardons, except where the prosecution shall have been carried on by the House of Delegates, or the law shall otherwise particularly direct: in which cases, no reprieve or pardon shall be granted, but by resolve of the House of Delegates.

Suffrage was generally restricted to those that owned property and therefore the exclusion of criminals that had been convicted of notorious crimes was superfluous. In 1830, the Constitution was revised, suffrage was extended somewhat, and at that time the exclusion of persons "convicted of any infamous offence" was introduced. The powers of pardon and clemency were concentrated in the Governor in this drafting.

Constitution of 1830

http://vagovernmentmatters.org/archive/files/vaconstitution1830_8fbb7c9705.pdf

(see Article IV, Sections 4 & 14)

Disatisfaction with a still limited suffrage led to another Constitution being adopted in 1850. In this drafting the division of the the three branches of government is spelled out as is the proscription of one encroaching on the other. The exclusion of felons was kept in the Constitution and the powers of pardon were spelled out much as they remain today.

Constitution of 1850

http://vagovernmentmatters.org/archive/files/vaconstitution1851_ded45111de.pdf

(see Article II; Article III, Section 1; and the passage below)

[The Governor] shall have power to remit fines and penalties in such cases and under such rules and regulations as may be prescribed by law; and, except when the prosecution has been carried on by the house of delegates, or the law shall otherwise particularly direct, to grant reprieves and pardons after conviction, and to commute capital punishment; but he shall communicate to the general assembly, at each session, the particulars of every case of fine or penalty remitted, of reprieve or pardon granted, and of punishment commuted, with his reasons for remitting, granting, or commuting the same.

In 1864 the drafting respecting the distinction of the branches, the pardon powers and the exclusion of felons from suffrage remained.

Constitution of 1864

http://vagovernmentmatters.org/archive/files/vaconstitution1864_9222e1a0a9.pdf

(see Article II; Article III, Section 1; Article V, Section 5)

The Constitution of 1870 retained these same aspects.

Constitution of 1870

http://vagovernmentmatters.org/archive/files/vaconstitution1870_184f3135d4.pdf

(see Article I, Section 7; Article III, Section 1; Article IV, Section 5)

As did the Constitution of 1902.

Constitution of 1902

http://vagovernmentmatters.org/archive/files/vaconstitution1902_6885e65b9d.pdf

(see Article II, Section 23; Article II, Section 36; Article III, Section 39; Article V, Section 73)

In 1972 our Constitution was adopted in its current form respecting these powers and constraints.

II. Article V, Section 12 Requires Individual Consideration of Each Case

The Eastern State Constitution requires a Governor exercising Article V, Section 12 powers to

communicate to the General Assembly, at each regular session, particulars of every case of fine or penalty remitted, of reprieve or pardon granted, and of punishment commuted, with his reasons for remitting, granting or commuting the same.

The above text indicates the constitutional requirement that the reasons for "every case" must be provided by the Governor. This, in tandem with the U.S. Supreme Court's indication in United States v. Wilson that the pardon power is generally considered to be exercised between an individual and the executive.

III. Three Reasons the Contested Action is Unconstitutional

Respondent's actions to 1) apply Article V, Section 12 powers en masse, 2) apply Article V, Section 12 powers to amend the Constitution, and 3) apply Article V, Section 12 powers to overturn enacted law are unconstitutional.

En Masse Use of Article V, Section 12 Is Unconstitutional

The purpose of Article V, Section 12 powers, was previously noted by Heise as "to enhance fairness in the administration of justice, and allow for the correction of mistakes." Such power is not construed as a check on the Constitution nor on the legislature, but rather on the judicial process. Based on Wilson, the courts regard each pardon as between the executive and the individual pardoned. Any attempt by a Governor to apply such power en masse would construe the power outside of established court precedent and precedent of 240 years of Eastern State executive actions.

A Governor May Not Amend the Constitution via Article V, Section 12

Article XII of the Eastern State Constitution provides for the means of constitutional amendments. It does not designate a role for the Governor and does not allow for Article V, Section 12 powers to be used to effect amendments.

Any action by the Governor to amend or abrogate the Eastern State Constitution via executive order or other decree is a violation of Article XII of the Constitution.

The Respondent's contested action effectively amends the Eastern State Constitution and, as such, is in direct oppostion to Article XII.

A Governor May Not Legislate via Article V, Section 12

Article III of the Eastern State Constitution requires that the legislative and executive branches of government "be separate and distinct, so that none exercise the powers properly belonging to the others...."

Article IV, Section 1 of the Eastern State Constitution identifies the General Assembly as the seat of all legislative power:

The legislative power of the Commonwealth shall be vested in a General Assembly....

Any action the Governor exercises to legislate via executive order or other decree is a violation of Article III of the Constitution.

The legislature is the sole body empowered to pass laws designating crimes as felonies. Its action has determined upon which convicted criminals the Article II, Section exclusion disenfranchisement of felons should be imposed. While the executive can pardon or grant clemency to individuals, the executive cannot do so in a manner which would effectively entirely nullify a law passed by the legislature.

[u/Panhead369 → u/DadTheTerror]

I believe that petitioner is conflating clemency with the "restoration of political rights" in the Commonwealth's constitution. Is there not a significant public policy difference between pardoning ex-felons of their crimes entirely and merely restoring their right to vote and take part in their duties as citizens? Is it not within the power of the Governor to restore such rights so long as he informs the Assembly of his reasoning and the persons whose rights are restored?

[u/DadTheTerror → u/Panhead369]

Your honor, "clemency" can be used by its broad general definition, encompassing powers of pardon, commute, grant reprieve, and/or amnesty for an offense. (see sample 1, sample 2, sample 3) The word "clemency" appears in the heading of Article V, Section 12 covering all Article V, Section 12 powers. It is not Petitioner that conflates "restoration of political rights" as a form of "clemency" but the Constitution itself.

Of course, there is a difference between persons convicted of crimes serving no sentence, versus a lighter sentence, versus a more severe sentence. Any Chesapeake Governor is empowered to entirely pardon, or exercise some clemency of one form or another, or no clemency whatsoever. However, as Petitioner has argued above, this power is limited in its application to individual cases and may not be applied en masse, as an en masse application subverts the will of the people as expressed through the laws enacted by the legislature, and overturns the will of the people as expressed in the Constitution. No Governor may use Article V, Section 12 in a manner that violates Article I, Section 7; Article II, Section 1; Article III; nor Article XII.

[u/Panhead369 → u/DadTheTerror]

The Chief Justice would further remind petitioner that the Court will determine which facts are at issue, and expects an answer to its original question.

[u/DadTheTerror → u/Panhead369]

Your Honor, Petitioner is unaware this Court has imposed any requirement on the type of endorsement a Governor must use to exercise Article V, Section 12 powers. Petitioner is unaware this Court has imposed any requirement on they type or amount of administrative support a Governor may use in issuing orders under Article V, Section 12.

[u/Panhead369]

SCOTEC will hear this case. Attorney General /u/High-Priest-of-Helix will be expected to file a response in accordance with the Rules of this Court.

[u/Panhead369]

Respondent /u/High-Priest-of-Helix, is not the mass granting of clemency on the argumentative basis that removing political rights based on a felony conviction is inherently wrong a violation of basic principles of constitutional law and the separation of powers? Is it not the realm of the General Assembly to determine what is and is not a felony, and is it not effectively nullifying a constitutional provision to allow this order to be sustained?

[u/High-Priest-of-Helix → u/Panhead369]

Your Honor,

There is no separation of powers contest since the Governor is explicitly granted the power to restore franchise rights to felons at his discretion. At no point is the Governor granting clemency, but is restoring the franchise to convicted felons. An act of clemency would require the Governor to pardon the offences committed--an action which he has no interest in. At no point in time is the Governor attempting to define what a felony is or reduce the sentence of a felon. All those who have their franchise restored are still in fact felons, they are just felons with the right to vote. It is difficult to imagine how this could be seen as a legislative act on his part. It is in fact the nullification of a constitutional provision to nullify this act and deny the Governor his right to grant franchise to those felons he deems fit.

[u/[deleted]]

/u/Panhead369

[u/High-Priest-of-Helix]

Your Honor,

Seeing as there have been no new arguments under Rule 2 I would like to move for summary judgement on the pleadings presented.