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((I first want to apologize for not getting to your other question yet. It's kind of a complicated answer and I thought I had answered it already but I've been too busy lately to give a proper response. But I haven't forgotten about it.))
I'm not going to comment on the merits of the underlying arguments, but I'm addressing @magicalkittycat's assertion that this isn't just an AG blatantly ignoring a court order. I've looked at the docket and there's more going on here than the VCDG is claiming in their press releases. When the state filed their motion to vacate on May 4, they took the position that the order was already mooted by intervening legislation and that they were only filing the motion out of an abundance of caution. I can't read the individual filings, but the court granted an order on May 5, which I'm presuming was an administrative order reopening the case. In Virginia you have 10 days to respond to a motion. VCGA did not respond to this motion. They did not request an extension. There is nothing but radio silence on the docket. On May 27, after more than 20 days have passed, the AG directs the state police to begin enforcing the law. A day later VCGA is ready to roll with a motion to show cause. That same day, the state filed an objection to the plaintiff's motion and a hearing was scheduled for today at 1:30 pm. Yesterday, VCGA filed a response to the state's May 4 motion to vacate.
From where I sit, it looks like the VCGA deliberately failed to respond to the motion because their own motion which is heavy on bombast and light on substance asking for sanctions looks better in a press release than a boring reply brief that addresses the scintillating topic of mootness. Especially if they don't have any good arguments and know the case is dead in the water. They certainly didn't issue a press release when they filed the response yesterday. My guess is that after they moved to show cause the state objected that they weren't in a position to do so because they hadn't responded to the motion to vacate. Normally if a party opponent doesn't respond to a motion I'd get them on the horn and ask if they'd made a mistake or need more time, and if I went straight to a judge the judge might cut them some slack. I don't know what attempts the state made here, but if their position was that a vacation wasn't necessary then it could undermine their argument if they go too far out of their way to seek a court order, like scheduling a hearing, for example.
So things are pretty clear when it's crickets for three weeks and as soon as enforcement begins the plaintiff is ready to go with a show cause motion the next day. I don't know if the hearing scheduled for today was on the show cause motion or just on the objection. Since the plaintiffs filed their response to the May 4 motion after the hearing was scheduled, the hearing may have just been on the objection, and the parties may have worked out among themselves that they could cancel it if the plaintiffs filed a response.
I want to refrain from looking at the merits of this case, but based on VCGA's behavior, they probably aren't great for them. At least, this isn't the way one acts in front of a court when they have a winnable case. If they had responded to the original motion and the court held a hearing and determined that the order was still in effect, I'd support your position that the AG is acting in bad faith and deliberately disobeying it. It's quite a different thing if the AG takes a position that a motion isn't necessary but gives you the opportunity to have your day in court anyway, and your response is to ignore him and then try to get sanctions later. This is the kind of behavior that pisses off judges.
I will try to respond to this more in depth later, but :
Where are you getting this rule? The only place I can find 10 days specific isthe Virginia Supreme Court; this case is operating at the Lynchburg Circuit court level, and Virginia circuit courts look to range from having long periods or depending on hearing days or both for normal rulings (eg 14 days before the next hearing Friday for Fairfax) , and then high-complication ruling schedules are entirely up to the judge since they can set a response schedule of their own.
This seems wildly incompatible with Walker v. Birmingham. Doubly so when a) the new law hasn’t gone into effect yet, and b) it literally said to enforce the enjoined statute, but even presuming it did genuinely moot the case, that still doesn’t automatically invalidate an injunction.
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I definitely agree that stalling things out and slow walking your actions can be scummy behavior, but whether or not that fits contempt of court can be highly contextual and dependent on the ground level specifics.
This falls into the third type of example I gave in the original comment! The Trump admin slow walked the return of Abrego Garcia for months. Maybe we can argue that it's contempt from the spirit of the law and were behaving in a scummy manner, but they never once committed any actually legal contempt. You are allowed to draw out a case even if you think you will probably lose, because you might win and you can exercise a full fight.
Same thing, they're allowed to slow walk or whatever if they want (within some amount of behavior obviously), but we can also agree it's scummy to try to lie and claim the AG is in contempr when you just ignored them.
To be clear, my argument that it isn't contempt isn't that the plaintiffs did something scummy, but that intervening legislation mooted the order. Suppose A sues B because B built a structure that doesn't conform to setback requirements in the zoning ordinance, and the court issues and order that B demolish the structure within 90 days. If within that 90 days the municipality changes the zoning ordinance so that the structure now conforms to the setback requirements, the issue is mooted. You can ask that the court vacate the order, but as a strategic matter it's probably better to ignore it since there's no reason to incur additional legal fees if you don't have to. Wait for A to sue you for contempt and lose; no judge is going to impose sanctions in a case like that.
The one thing I will say about the plaintiff's failure to respond is that, theoretically at least, their non-response turned the state's motion into an unopposed motion, and while there's no mechanism akin to a default, they could have just submitted it to the court for a judge's signature, and he could have granted it regardless of the merits of the case. Realistically the judge will probably schedule a hearing, and only automatically grant the motion if the plaintiff fails to respond after being noticed, but it is something that can happen. Most of the unopposed motions I file, including motions for summary judgment that get us out of a case entirely, simply go to the judge without a hearing. But those are motions where the opponent has already told us they don't plan on opposing it, because most lawyers actually respond to our motions, and even if they don't, we deal with the same lawyers all the time and prefer to maintain cordial relations with them. But I'd have no problem being aggressive if it's some out of state firm that's being dickish and I don't care how much I piss them off.
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