Equality Virginia and ACLU say Department of Juvenile Justice may not suspend rule.

Richmond, VA -- Equality Virginia and the ACLU of Virginia have asked the state Juvenile Justice Board to confirm that a rule barring discrimination against LGBT juveniles receiving non-residential services through the juvenile and domestic relations courts will go into effect, as planned, on July 1.
The request by the two rights organizations was prompted by comments made by Department of Juvenile Justice staff at the Juvenile Justice Board’s meeting on June 8.  Department staff indicated that the anti-discrimination rule “will be suspended and amended” to delete the protections against discrimination based on sexual orientation.  The Board then voted to “insist” that the regulation be implemented as written.
“There simply is no basis for suspending implementation of this rule, which will ensure the fair treatment of all children in the juvenile justice system,” said ACLU of Virginia Legal Director Rebecca Glenberg. “Especially in light of the Board’s action, the Department may not alter this rule.”
Commenting on the need for protections against discrimination based on sexual orientation, Equality Virginia Executive Director James Parrish said, “Studies have shown that a disproportionate number of children receiving juvenile services do not self-identify as ‘straight.’   These children deserve protection against discrimination based on who they are or how they identify in access to and receipt of services.  The Board should stand up for the children and resist manipulation of the Administrative Process Act to defeat their decision to include protection against discrimination based on sexual orientation in the rules governing non-residential services.”
EV and the ACLU point out in a letter faxed and emailed yesterday that under state law, only the Board of Juvenile Justice—not the Department of Juvenile Justice—has the authority to suspend the rule.  According to the letter, the standards for non-residential services available to juvenile and domestic relations district courts, including the non-discrimination provision, were published as a final rule on February 14, 2011, with the proviso that they take effect July 1, 2011.  Under state statute, the Governor had until March 16, 2011 to object to a rule, or it would take effect automatically.  Since the Governor did not object, the rule should take effect as scheduled, regardless of comments made by the Department of Juvenile Justice.
The text of the letter from Equality Virginia Counsel Claire Guthrie Gastañaga and Rebecca Glenberg is reproduced below.

Contact: Kent Willis, Executive Director, ACLU of Virginia, 804-644-8022


 

[Text of EV/ACLU Letter]


BY EMAIL and FACSIMILE
June 14, 2011
Barbara Myers, Chair of the Board of Juvenile Justice 700 East Franklin Street, 4th Floor Richmond, VA 23219
Dear Ms. Myers:
We are writing on behalf of Equality Virginia and ACLU of Virginia to seek formal clarification of the current status of section 6VAC35-150-490 (Section 490) of the final rule on standards for non-residential services available to juvenile and domestic relations district courts. The State Board of Juvenile Justice adopted Section 490, which includes a prohibition on discrimination against juveniles receiving services based on sexual orientation, on November 18, 2009 after reviewing public comment on the proposed rules.
As described in the Regulatory Update provided to the Board at its meeting on June 8, 2011, the final regulations on standards for non-residential services were published in the Virginia Register on February 14, 2011 (with an announced effective date of July 1, 2011) and the ensuing 30 day final adoption period passed without any comment being received from the public or from the Governor.
Pursuant to the executive review provisions of the Virginia Administrative Process Act (APA) set out in Section 2.2-4013 of the Code of Virginia, the Governor’s failure to object to or take action to suspend the final rule during the 30 day final adoption period means that he “shall be deemed to have acquiesced to [the] promulgated regulation.” §2.2-4013. D.
Accordingly, under the APA, the rule, including Section 490 as published in the final rule, will become effective on July 1, 2011 in the absence of an affirmative action by the Board to vote to suspend or withdraw the rule pursuant to Section 2.2-4015.
Despite the clear language of the APA, there was some confusion about the status and effective date of Section 490 introduced by staff of the Department at the Board meeting.  The Regulatory Update provided to the Board says that Section 490 “will be suspended and amended” to delete the protection against discrimination based on sexual orientation, while other sections of the rule will become effective on July 1, 2011.  When asked by the Board “who is taking the action to suspend Section 490?”, the response was that the department was doing so pursuant to Section 2.2-4015.A.4 in accordance with advice from the Attorney General’s Office.  The Board then voted to “insist” that Section 490, as published in the final rule, become effective as published regardless of the advice received from the Attorney General.
The Code section cited by the department as authority for its apparent unilateral decision to suspend Section 490 of the final rule does not, in fact, authorize the Department to take such action. Section 2.2-4001 of the APA defines “agency” for all purposes of the Act to mean “any authority, instrumentality, officer, board or other unit of the state government empowered by the basic laws to make regulations or decide cases. “  The same section says that “"[b]asic law" or "basic laws" means provisions of the Constitution and statutes of the Commonwealth authorizing an agency to make regulations or decide cases or containing procedural requirements therefor.”  The basic law applicable to the State Board and Department of Juvenile Justice states clearly that only the Board has the authority to “promulgate regulations” for the Department and the Director to “administer.” Section 66-10.6 of the Code of Virginia.  Thus, only the Board, and not the department or any other official, can act to suspend or withdraw a rule pursuant to Section 2.2-4015.A.4. And, the Board can only take action in an open meeting by a majority vote.
Accordingly, please confirm that, unless the Board meets again before July 1 and approves by a majority vote a motion either to suspend the effective date of Section 490 or withdraw it, Section 490 will go into effect on July 1, 2011 with the protection against discrimination based on sexual orientation included as in the final regulation published on February 14, 2011.  We would appreciate a written response to this inquiry no later than close of business on June 24, 2011.
Very truly yours,
Claire Guthrie Gastañaga                                           Rebecca Glenberg Counsel, Equality Virginia                                         Legal Director, ACLU of Virginia 501 E. Franklin Street, Suite 726                            530 E. Main Street, Suite 310 Richmond, VA 23219                                                   Richmond, VA 23219
cc: Helivi L. Holland, Director, Department of Juvenile Justice Members of the Juvenile Justice Board Lara Jacobs, Assistant Attorney General
 

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