A Fairfax County judge will decide next week whether a Virginia state Senate committee can block eight of Gov. Glenn Youngkin’s appointees from serving on the governing boards of three embattled institutions of higher education.
Two already have had their leaders leave office, and the president of the third is fighting to keep his job under intensifying scrutiny by President Donald Trump’s administration.
Fairfax County Circuit Court Judge Jonathan Frieden heard 2 1/2 hours of legal arguments on Friday over nine Senate Democrats’ request for a preliminary injunction to prevent Youngkin’s appointees from continuing to serve on the boards of visitors at the University of Virginia, Virginia Military Institute and George Mason University.
Frieden signaled that he would rule on the request by Tuesday, recognizing that the George Mason board is scheduled to meet next Friday morning. His decision could determine whether four members whom Youngkin appointed can participate, with President Greg Washington’s job potentially at stake in a closed session to evaluate his performance.
“I’ll try to get it done earlier,” Frieden told the attorneys in the case.
If the judge grants the request for an injunction, the lead attorney for Attorney General Jason Miyares made clear he would immediately seek a stay of the ruling by midday Wednesday. That would allow attorneys for the state senators who filed the lawsuit to file their reply that night. If that were to happen, Frieden said he would make “an informed but expedited decision” before the George Mason board convenes on Friday morning.
Attorneys on both sides of the case explicitly acknowledged the urgency of the case for the institutions.
“These are not quiet summers,” said Mark Stancil, the lead attorney for the Virginia state senators. “There’s a lot going on.”
Christopher Michel, lead attorney for Miyares, acknowledged, “These are busy summers for the universities.”
The colleges
The George Mason board will meet next week under a cloud of investigations by the Trump administration of alleged discriminatory actions by the university. The UVa board, which meets next on Sept. 11, is looking for a successor to its president, Jim Ryan, who resigned on June 27 under pressure from the Trump administration. The VMI board, including two members whom Youngkin had appointed two days earlier, voted on Feb. 28 not to renew the contract of Maj. Gen. Cedric Wins, the first Black superintendent in the institute’s 186-year history; the board is scheduled to meet in late September.
The eight disputed Youngkin appointees include former Virginia Attorney General Ken Cuccinelli, the 2013 GOP nominee for governor, on the UVa board. Cuccinelli served as acting deputy secretary of homeland security during Trump’s first administration.
The appointees to the George Mason board are former Virginia Secretary of Commerce and Trade Caren Merrick; Charles Cooper of Bonita Springs, Florida, who served as assistant attorney general for the Office of Legal Counsel under President Ronald Reagan; William Hansen, vice president of the Virginia Board of Education and president and CEO of Building Hope, a nonprofit group serving charter schools; and Maureen Ohlhausen, who served as acting Federal Trade Commission chairwoman under Trump.
The three appointees to the VMI board are Jonathan Hartsock, deputy chief of staff for Rep. Ben Cline, R-6th; Stephen Reardon, a Richmond attorney; and José Suárez, chief executive officer of a Florida consulting firm.
The arguments
Youngkin made the appointments after the General Assembly adjourned its regular legislative session on Feb. 26. A state Senate committee, meeting in an ongoing special session, voted 8-4 on June 9 to kill the resolution for confirming the governor’s nominees to the governing boards.
Democrats, who hold majorities on the committee and in the full Virginia Senate chamber, argue that the vote constitutes a legislative refusal to confirm the appointments, making the board members ineligible to remain in their seats and requiring the board rectors or presidents to block them from participating.
Miyares, a Republican allied with Youngkin, contends that the committee alone cannot refuse the appointments or prevent board members from continuing to serve without the consent of the full state Senate and House of Delegates.
“In the General Assembly, the two houses have to refuse a confirmation,” argued Christopher Michel, a Washington lawyer representing Miyares.
Senate Majority Leader Scott Surovell, D-Fairfax, speaking to media after the hearing, called the attorney general’s argument “pretty bizarre” because he said it would require both chambers of the assembly to adopt resolutions specifically saying they had refused to approve a governor’s appointment.
“That’s not something that’s ever been done in the 200-year history of the General Assembly that I’m aware, or actually the 400-year history if you count the House of Delegates,” Surovell said.
Miyares also argues that the state senators lack standing to sue because they would not be harmed by the continued participation by the governor’s appointees on the boards.
Stancil said in a memorandum earlier this month, “Here, no monetary damage could compensate for the harm that would occur if this Court were to refuse to issue a preliminary injunction and the Refused Appointees were to participate in Board meetings in open defiance of the General Assembly’s refusal to confirm their appointments.”
“Delay also threatens significant harm given that the Refused Appointees are poised to participate in critical decision-making in the near future,” he said.
Lawyers for Miyares responded in their legal brief that a preliminary injunction “displacing currently serving members of the governing boards of three major public institutions would interfere with the boards’ ability to discharge their legal duties, delay ongoing initiatives, and upend the status quo.”
They also argued that the court should stay out of a political dispute between the executive and legislative branches of Virginia government.
“At its core, it is a still-evolving dispute between the Executive Branch and members of the Legislative Branch about how to exercise the confirmation power and who should steer the policies of Virginia’s public universities,” Michel wrote in the memorandum in opposition to the requested injunction.
Stancil argued in the hearing that the injury to the senators — Senate President Pro Tempore Louise Lucas, D-Portsmouth, and eight Democrats on the Senate Privileges and Elections Committee who voted not to confirm Youngkin’s appointees — would be the “diminution of the General Assembly’s confirmation authority under the [Virginia] Constitution.”
“This is a prime example of the principle, ‘Good fences make good neighbors,’” he said.
Source: www.dailyprogress.com