Last week, a Norfolk Circuit Court judge ruled the city’s charter allows the City Attorney’s office the authority to prosecute violations of local ordinances in that court.
It’s the latest round in a turf spat between Norfolk City Attorney Bernard Pishko and Commonwealth's Attorney Ramin Fatehi. Fatehi has sought to prohibit such a decision.
The legal ruling stems from an appeal of Virginia Beach resident Jared Fuller's conviction in the General District Court for being in Northside Park after dark at 7:06 p.m. on Nov. 6, a misdemeanor punishable by up to six months in jail and/or a fine of up to $1,000.
The legal ruling grew out of a political feud about how to handle misdemeanor prosecutions of city ordinances.
It began after the Norfolk City Council in May unanimously passed an ordinance making shoplifting a Class 1 misdemeanor in the city code, punishable by a fine up to $2,500 and a year in prison. That change, which mirrors state law on shoplifting, meant the City Attorney's office could prosecute those cases.
It was spearheaded by Mayor Kenny Alexander, who said in his State of the City address that Fatehi was not prosecuting misdemeanor shoplifting cases, and merchants were suffering losses.
After the ordinance passed, Pishko said his office would prosecute cases in General District Court and pay for it using the fines imposed. Fatehi, who calls himself a progressive prosecutor, noted that his office prosecuted all felony shoplifting cases, but did not have the funding to staff misdemeanor cases. He removed his authorization for the City Attorney’s office to handle cases in Circuit Court, leading to the latest ruling.
“Fines and mandatory court costs are a relic of mass incarceration, exacerbate the criminalization of poverty, and throw poor people into debt traps, making them more likely to steal again, not less,” he wrote to Pishko in May.
When the case came before Circuit Court Judge Joseph Lindsey that month, it became a test. Attorneys for both offices argued they were the proper prosecutors.
“Does the Commonwealth’s Attorney have the authority to take the place of the City Attorney as the prosecuting authority?” Lindsey wrote in his decision. “If the prosecution is for the violation of a city ordinance, the Court answers ‘No.’”
Now that he’s ruled, Pishko and Fatehi can’t agree on whether the decision is a knock-out blow or just another round in their ongoing feud.
While Pishko said the case is a precedent that paves the way for his office to pursue violations of the city code in Circuit Court, Fatehi portrayed it as a narrow ruling that applies only in specific instances where a city attorney was already involved.
“This opinion applies across the board, that’s how the law works,” Pishko, who was traveling, said by email. “From my perspective, the bigger story is having a Commonwealth’s Attorney who doesn’t appear to comprehend the law and lost a case he should have known couldn’t be won and either now tries gaslighting or still does not understand.”
Fatehi, who won the Democratic primary last month over a challenger backed by Alexander, disputed the notion that shoplifters were going unpunished, calling it a lie.
"This was the mayor's political stunt," he said. "It was embarrassing for the city, and it is an absolute power grab away from the only part of the justice system that the people of Norfolk get to vote for, which is their prosecutor, and towards a city attorney who's the employee of the mayor and his allies. That is an assault on the separation of powers."
Putting the feud into context is difficult. The communications heads at William & Mary Law School said it did not have an appropriate expert, and a representative of the University of Richmond Law School said an expert was not available. The administrator for the Virginia Association of Commonwealth’s Attorneys said she wasn’t familiar enough with the procedures in all the other statewide offices to comment.
A 1999 Attorney General’s opinion said the city of Winchester’s City Attorney’s office had the authority to prosecute misdemeanor cases without the concurrence of the Commonwealth’s Attorney, an opinion Lindsey cited.
For years, Fatehi has maintained that his office and others in Hampton Roads don't have the staff to handle misdemeanor cases, including not only shoplifting, but assaults, thefts from cars or vandalism under $1,000.
"The state provides us no financing for that, no money," he added.
He said it had been "many weeks" since he'd spoken with Pishko.
"I continue to have concerns with the fact that the city attorney's stated policy is to fine poor people in a misguided effort to cause them to commit fewer crimes of financial desperation," he said. "It is contrary to public safety. It is contrary to basic fairness. Unless and until I see that fining poor people to pay for the city's lawyers is not a stated part of the city's policy, I intend to make no changes to my position."
Fuller did not show for his appeal hearing before Lindsey on Friday. He was found guilty in absentia and fined $25.
