It seems that it's not just in national politics that sore losers turn to the courts to seek some redress for an election loss. Amina Matheny-Willard ran against Ramin Fatehi in the Democratic primary for Commonwealth's Attorney for Norfolk in 2021. Only about 15,000 votes were cast and Matheny-Willard finished a distant third. Fatehi was unopposed in the general election.
In 2023, Matheny-Willard posted on social media that she was starting her campaign for the 2025 election and needed plaintiffs "to file a document in order to hold the
Commonwealth’s Attorney accountable." The document she filed was a complaint under Code § 48-1 seeking to empanel a special grand jury to investigate a public nuisance. She alleged that the nuisance was that Fatehi has "failed to (1) timely disclose Brady v. Maryland, 373 U.S. 83 (1963), materials to defense counsel, (2) prepare adequately for trials, (3) prosecute wrongdoers competently, and (4) keep victims and witnesses informed of proceedings pursuant to Code § 19.2-11.01." Fatehi moved to dismiss on the ground that the allegations did not constitute a public nuisance. He also sought sanctions against Matheny-Willard for filing a frivilous lawsuit. The circuit court agreed and sanctioned Matheny-Willard $500.
This, we have Michael J. Muhammad, et al. v. Ramin Fatehi (February 20, 2024), the least controversial of the opinions released by the Court of Appeals on February 20 (see posts on the other two here and here). Muhammad was one of the requisite five citizens Matheny-Willard recruited to serve as plaintiffs in the suit.
Judge Ortiz, joined by Chief Judge Decker and Judge Fulton, makes short work of Matheny-Willard's claims that she had a good faith reason for believing the public nuisance law could be applied to the alleged lax performance of a public official and further that she was being sanctioned for "political motivation." With respect to the former, Matheny-Willard seems to argue that because there was no law or case expressly refuting her assertion that "maladministration" of a public official might be considered a nuisance, the court was required to assume that she must have had a good faith belief that the law might be extended to include such circumstances.
This argument turns the requirement of a good faith belief on its head. By Matheny-Willard's logic, you could have a "good faith belief" that the dog-catcher could take "stray" children to the pound because there was no statutory or case law that said he couldn't.
As to "political montivation" being a legitimate basis for filing a frivolous lawsuit, the Court states that "[t]he court system exists to hear legitimate legal disputes, not to air political disputes and grievances. It is not acceptable for Matheny-Willard—or any other litigant—to use the judiciary to promote political agendas and file frivolous pleadings—especially in connection with criminal indictments." Hear! Hear!
- John S. Koehler
- Mar 24, 2024
- 3 min read
If I had been keeping up with my coverage of the Court of Appeals, I might have speculated whether the split decision in Mazie Green v. Portfolio Recovery Associates, LLC (February 20, 2024) would result in a petition for rehearing en banc or an appeal to the Supreme Court. As I was not keeping up, however, we do not need to speculate, because the Court has granted the rehearing en banc already. Technically, this means I shouldn't summarize the now withdrawn panel opinion, but as it is likely the en banc will result in taking the view of either the majority or the dissent, let's dive in.
Ms. Green, who is pro se, appealed a judgment in a debt collection action. Portfolio Recovery Associates is a debt collection agency that acquires debt, mostly from credit card issuers, and then seeks to recover from the debtor. Generally, debt buyers like PRA seek to recover directly from the debtor, but failing that will file a warrant in debt in the general district court of the jurisdiction where the debtor was last know to live to obtain a judgment on the debt and then seek enforcement of the judgment. Service is almost always by posting.
A fairly significant percentage of these debt actions are not contested and the debt buyer gets a default judgment. If, however, the judgment is contested, the debt buyer may have difficulty establishing the debt depending on what documentation they received from the original creditor (or as in this case, from a third-party). They can also run afoul of the Fair Debt Collections Practices Act if, for example, the debtor previously contested the debt or cannot show that they had a good faith belief that the debt was actually owed.
PRA acquired Green's alleged debt from Synchrony Bank in 2019, but the documents submitted in the general district court to establish the chain back to the original credit card agreement involved three other credit card servicers of Green's "PayPal" credit card. All of the "bills of sale" from one bank to the next were for multiple accounts and none specifically referenced Green's account. She argued that PRA was thus unable to establish the requisite change of title to prove she owed the debt to PRA. she also contended that PRA was in violation of the FDCPA for having failed to perform due diligence to determine whether it had standing to pursue her for the debt. The general district court ruled in favor of PRA and Green appealed.
In the circuit court, PRA admitted that none of the documents it had submitted included Green's name or account number. PRA could also offer no explanation as to why in some of its documents the last four digits of the account was different from that originally alleged in the warrant in debt, though they contended that the account number had been changed at some point. The circuit court ruled for PRA on the debt, dismissing Green's FDCPA claim as well.
The Court of Appeals, Judge Causey joined by Ortiz, reverses the judgment and remands for an order finding that PRA failed to establish that it owned the debt it was trying to collect and for further proceedings on the FDCPA claim. The majority finds that PRA did not have standing to pursue the debt because its evidence supporting ownership of Green's oblication was "scanty and incomplete." The majority goes on to find that even if PRA has standing, it didn't prove ownership of the debt, thus it should not have prevailed on the claim and there is a colorable argument that it is in violation of the FDCPA.
Judge Malveaux dissents from these decisions, finding that Green improperly couched her argument in terms of standing, rather than the merits of PRA's claim. Unlike the majority, she does not consider this an "unsettled" question, because PRA's belief that it was owed the debt, even if wrong, was sufficient to grant it standing, thus she would not reach the merits of that claim or whether the dismissal of the FDCPA claim was proper.
There was an additional issue regarding whether a procedure in the general district court was proper, but all three judges agree that issue is not properly before them.
If the majority decision stands, it may create minor ripple in the debt collection business. As indicated above, most of the actions to collect these debts are uncontested in the general district court, so strict proof is never required to establish the damages. However, when a debtor does contest the claim, the majority view will make it more difficult for the debt buyer to establish their ownership of the debt -- or even the standing to bring the suit.
School Districts have become the latest ideological battleground between America's competing factions on social issues. Carlos Ibanez, et al. v. Albemarle County School Board, et al. (February 20, 2024) is Virginia's most recent entry into the fray. The nature of the suit is a challenge to Albemarle County Schools new anti-racial discrimination policy and a challenge by a group of parents (for themselves and their children, and with support from the Alliance Defending Freedom) which asserts that the policy is actually discriminatory by treating minorities differently. To put it bluntly, this is a case about a Diversity, Equality, and Inclusion (DEI) policy and whether it is too "woke". The circuit court found that the plaintiffs lacked standing or otherwise had not made out a case and dismissed.
The resulting plurality decision with Judge Lorish, Judge Beales and (now retired) Judge Humphreys, each writing separately, is already on appeal to the Supreme Court of Virginia, and could potentially go on from there the the US Supreme Court. The lead opinion, by Judge Lorish, is 44 pages, Judge Humphreys takes just seven pages to state his partial disagreement with lead opinion, and Judge Beales takes 49 pages to set out his mostly dissenting opinion. Despite Judges Humphreys and Beales each having issues with the lead opinion, however, their differences do not allow for a majority result on any specific issue, thus the judgment dismissing the challenge was affirmed.
The parents had three amici supporting them. Melissa Moschella, Ph.D, of The Heritage Foundation, Ian Rowe, of the American Enterprise Institute, and The Family Foundation of Virginia, which is a legal action arm of Focus on the Family in Virginia. All of these groups may be fairly characterized as being on the conservative end of the American political spectrum. The School Board did not have an amicus -- perhaps the Board did not seek out any supporting briefs.
I will be frank in saying that while I usually do not shy away from addressing controversial subjects, I am reticent to say more about this case than that I agree with Judge Lorish's parting observation that "whether [the plaintiffs' disagreement with the Board ] is or is not a legitimate concern, it is a concern about policy. And concerns about policy should be made to policymakers, not judges.” This is a direct quote from Menders v. Loudoun County
School Board, 65 F.4th 157 (4th Cir. 2023). Unlike this case, the 4th Circuit allowed some, but not all, of the challenges to a similar policy in Loudoun County to proceed. Menders is being brought by Liberty Justice Center (not to be confused with Liberty Counsel).
This case is not about whether the anti-discrimination policy of the School Board is actually discriminatory -- it's about the proper forum for debating that issue. It seems inevitable that the Supreme Court of Virginia will grant review of this case -- and this or another case like it will eventually reach the US Supreme Court. I am content to wait for those decisions.