Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, September 5, 1993 TAG: 9309050234
SECTION: VIRGINIA PAGE: B1 EDITION: METRO
SOURCE: GREG EDWARDS STAFF WRITER
DATELINE: LENGTH: Long
\ George Allen, the Republican candidate for governor, screened an action video for members of the Virginia Press Association when they met in Virginia Beach in June.
His Democratic opponent, former Attorney General Mary Sue Terry, starred as the villain.
The setting was the 1989-90 miners' strike against the Pittston Coal Group Inc. in Southwest Virginia - a strike best remembered for the miners' sit-down demonstrations in front of coal trucks and the millions of dollars in fines that a judge levied against the union for organizing those protests.
Four years later, Allen has made a campaign issue out of Terry's refusal to help collect those contempt-of-court fines against the United Mine Workers.
Political analysts agree that Allen's summertime video of strike highlights was merely the first blow; they say the Pittston video likely will reappear later in the campaign as an Allen television commercial.
Terry has said she didn't pursue the fines because they were levied as the result of a "private dispute" between Pittston and the mine workers. If the fines are upheld by the U.S. Supreme Court, where their future now rests, she will do all in her power as governor to collect them, Terry said.
Indeed, law professors say that Terry had no legal obligation to try to collect the fines, which were levied as civil penalties as a result of the Pittston-UMW dispute. If the fines had been criminal penalties, Terry would have had a duty help collect them, they said.
Furthermore, political analysts Bob Denton at Virginia Tech and Larry Sabato at the University of Virginia say that the Pittston fines issue, standing alone, won't have much meaning for most Virginia voters.
"Is it going to be one of two or three major issues in the campaign? I doubt it," Sabato said.
But in attacking Terry on the fines issue, Allen is attempting to link the Democrat with organized labor, the analysts say.
"Organized labor has been the favorite whipping boy in Virginia politics for decades," Sabato said.
Additionally, Allen is trying to use the Pittston issue along with others - such as a tax lawsuit by federal pensioners that could cost the state millions - to argue a pattern of weak performance by Terry as attorney general, Denton said.
Here's what the issue's all about:
During the strike, Pittston went to court against the union, seeking injunctions aimed at curbing violence and regulating picket-line activity - which included extensive sit-down demonstrations to disrupt the company's mining operations.
When the United Mine Workers failed to obey those injunctions, Russell County Circuit Judge Donald McGlothlin Jr. levied more than $64 million in contempt-of-court fines against the union for failing to obey his injunctions.
But at the end of the strike, as part of the settlement agreement, Pittston joined the UMW in asking McGlothlin to dismiss the fines.
McGlothlin agreed to cancel the portion of fines he had ordered the union to pay to Pittston but let stand $53.1 million he had told the UMW to pay to the state and to Russell and Dickenson counties, where most of the strike activity occurred.
When the Virginia Court of Appeals heard the union's case after the strike, no lawyer was present in the courtroom to argue that the fines ought to be upheld, because Pittston's lawyers had withdrawn from the case.
At the time, John Bagwell, a Tazewell lawyer appointed by McGlothlin as a special commissioner to collect the fines, said he believed Terry should have offered to help collect them in order to preserve the public's interest in law and order, and because the state of Virginia was to receive roughly $25 million from the proceeds of the fines.
Del. Frank Hargrove, R-Hanover County, chairman of the General Assembly's joint Republican Caucus, also weighed in on the issue in the fall of 1990. "[Terry] told the Virginia State Police not to stick their necks out during the next violent strike, because she won't enforce the court's orders protecting them," he said.
Bagwell eventually hired Woods, Rogers & Hazlegrove, a Roanoke law firm, to help him defend and collect the fines.
Besides arguing that the fines were excessive, the union contends that they were criminal penalties that were unconstitutionally levied during a civil trial. Because they were criminal penalties, McGlothlin should have given the union the right to a trial by jury before imposing the fines, the union said.
The Court of Appeals dismissed roughly half the fines, but the Virginia Supreme Court last year overruled the appeals court and upheld all the fines in a unanimous 7-0 decision.
The state high court agreed that the fines were large but said they were not excessive. The fines were the only way McGlothlin had to enforce his injunctions, the court said.
The union then appealed to the U.S. Supreme Court, which agreed in June to hear the case during the term that starts in October.
Recently, Bagwell and the fines he's charged to collect have found a friend in U.S. Solicitor General Drew S. Days III.
Late last month, Days asked the Supreme Court for permission to enter a friend-of-the-court brief on behalf of Bagwell and for time to argue the U.S. government's position in the case.
"The federal government has a significant interest in the proper classification of litigation as `civil' or `criminal' " and in court orders that seek to force compliance with regulatory mandates, Days wrote in his brief to the high court.
Ironically for Democrat Terry, state Republicans have pointed to the intervention of the Democratic Clinton administration in the Pittston case as further evidence that Terry was derelict in her duty in not pursuing the fines.
Clearly, the state of Virginia had an interest in collecting the fines, said Ken Stroupe, a spokesman for Allen. If the fines are upheld, the state stands to lose millions in attorneys' fees because Terry would not take the case, he said.
With the state spending $7 million on police protection during the strike, Terry had an opportunity to protect the state's taxpayers by going after the fines, Stroupe said.
But the central issue was the violence in Southwest Virginia during the strike, Stroupe said. Terry, who has been campaigning around the state as being tough on crime, had an opportunity to make Southwest Virginia safer and didn't take it, he said.
"She failed to do her job as attorney general; it's a commentary on how she would act as governor."
Terry said in a recent interview that if the U.S. Supreme Court upholds the fines, "I will be the first person, as governor, to see that those fines are collected."
Restating her original position that the Pittston fines involved a dispute between private parties, Terry said, "I said from the outset if and when the fines assessed become final in a court of law that I was prepared to collect those fines."
Terry said there was no stronger advocate for law enforcement than her. "I support wholeheartedly the efforts in whatever segment of Virginia's economy to enforce our laws, to use the state police and other law enforcement resources whenever necessary to ensure that the laws are enforced and respected," she said.
The Pittston fines were a separate issue, she said.
Terry's position has support from legal scholars.
It would be very rare for the attorney general to be involved in an appeal of civil fines such as those imposed against the UMW, said Doug Rendleman, a law professor at Washington and Lee University.
On the other hand, if McGlothlin had sought to impose criminal contempt penalties against the union, the commonwealth's attorney could have prosecuted the charges, Rendleman said.
In 1979, during a similar case involving a labor dispute at the Newport News shipyard, Republican Attorney General Marshall Coleman decided not to intervene in an appeal before the Virginia Supreme Court, he recalled.
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