Youngkin-Senate university dispute heard by Virginia Supreme Court

The ongoing battle between the governor and Virginia Senate Democrats over university board control continued Thursday, this time within the confines of the Supreme Court of Virginia, where the state attorney general’s office argued that a Fairfax County Circuit judge’s decision in favor of the Senate Democrats should be vacated.

On July 29, Fairfax County Circuit Court Judge Jonathan Frieden issued a preliminary injunction, ruling for the nine Virginia Senate Democrats who sued the rectors of George Mason University, Virginia Military Institute and the University of Virginia to block the universities from seating disputed gubernatorial board appointees, who include former Virginia Attorney General Ken Cuccinelli, former state Secretary of Commerce and Trade Caren Merrick and others with significant conservative political and business connections.

In a June meeting, the Democrat-controlled committee voted 8-4 to reject Gov. Glenn Youngkin‘s eight appointees he had nominated in May to the three universities’ boards. This year, the committee has rejected 22 Youngkin picks for the three boards, voting on party lines.

Frieden’s ruling said that if the lawmakers’ votes to reject the appointees were nullified, that would constitute “irreparable harm” to the legislators’ rights, and he affirmed that the Senate Privileges & Elections Committee has the right to speak for the entire Virginia General Assembly when it is not in session.

Virginia Attorney General Jason Miyares‘ petition, filed Aug. 12, asks that the Supreme Court of Virginia vacate the injunction. His office, represented Thursday by Virginia Solicitor General Kevin Gallagher, has argued that the entire General Assembly must be called to vote on the matter if the Privileges & Elections Committee wishes to reject gubernatorial appointees outside of regular session. Miyares also argues that the rectors were not the correct parties to be sued.

Two of the seven justices hearing the case Thursday in Richmond asked multiple questions of Gallagher, who was named the state’s solicitor general in August after serving as principal deputy solicitor general.

“I’m having trouble, frankly, understanding,” said Justice Wesley G. Russell Jr., positing that if a Senate committee votes to reject a board appointee, the matter would be automatically finished, since that person would not receive a floor vote under current rules. “How can that possibly not be a refusal?”

Justice Stephen R. McCullough chimed in, asking why the second legislative body — in this case, the House of Delegates — would hold a vote on an appointment that failed to pass the Senate, noting the “fluid” nature of state legislative sessions, where bills are often reworded and deals are struck quickly.

Gallagher argued that the state legislature can reconsider a nomination — or any legislation rejected by a committee — if it is passed by the other legislative body, a common occurrence during regular session of the General Assembly but not when it is out of session.

Representing the state senators, Mark Stancil of Willkie Farr & Gallagher also fielded questions from Russell, who, referring to the 28 senators not serving on the committee, asked Stancil, “Were the other 28 members of the Senate denied their right to vote?”

“Absolutely not,” Stancil answered.

Although the lawsuit was expedited in Fairfax County Circuit Court to allow Frieden to rule on the preliminary injunction before George Mason’s board met Sept. 1, it’s uncertain when the state’s high court will issue an opinion.

It could come “next week … or [in] the next three months,” said Sen. Louise Lucas, one of the nine senators who are plaintiffs in the case. She and several other senators from both parties attended Thursday’s hearing just steps away from the Virginia State Capitol. This week, Democratic state lawmakers have been engaged in an attempt to redraw the state’s U.S. House of Representatives districts to counteract Republican redistricting in Texas, Missouri and North Carolina.

Lucas, D-Portsmouth and the senate’s president pro tempore, said she felt optimistic about her side’s chances with the state Supreme Court. “I liked the questions from the court,” she said.

Senate Majority Leader Scott Surovell said that he doesn’t anticipate a speedy ruling by the justices, and noted that a preliminary injunction is “usually the end of the case.”

He added that George Mason’s board, which currently does not have enough confirmed members to meet the legal definition of a quorum, has nonetheless voted on motions via its executive committee — an action Surovell says he opposes and that faculty critics have called “rogue.”

On Oct. 15, the five-member executive committee met virtually and approved a motion to create a foundation for funding the university’s Scalia Law School in a unanimous vote, along with other action items. Surovell said Thursday that the state legislature cannot remove or impeach a confirmed board member, but the governor has that power.

The office of the state attorney general declined to comment on the hearing Thursday.