This action might not be possible to undo. Are you sure you want to continue?
ROBERT J. SUROVELL DOROTHY M. ISAACS* DAVID M. LEVY SCOTT A. SUROVELL* J. CHAPMAN PETERSEN*+ CORY FREDERICK GORIUP* JENNIFER B. BAUMGARTNER CAMILLE ALLAN CRANDALL JASON E. BRAUN NATHAN D. ROZSA JASON F. ZELLMAN MICHELE L. JOSEPH KRISTI CAHOON KELLY* ERIN E. WITTE ANDREW R. TANK ANDREW J. GUZZO MARGARET B. CRAIG ──────── OF COUNSEL DAVID J. FUDALA* G. DONALD MARKLE* * ALSO ADMITTED IN DC
Delegate Surovell’s 2012 Virginia Attorney Legislative Update & Report
Attorney FIRM 1234 Chain Bridge Road Fairfax, VA 22030 Dear Northern Virginia Attorney: I am writing to update you on legislation of interest to the legal community from the 2012 General Assembly Session which effectively ended on May 15, 2012 at around 2:00 a.m. I continue to be one of a shrinking number of practicing attorneys in the General Assembly. By my count, there are 20 attorneys who practice in Virginia’s Courthouses in the House of Delegates – not enough to fill 21 seats on the Courts of Justice Committee. There are 11 in the State Senate – not enough to fill the 15 seats on the Senate Courts of Justice Committee. We are a shrinking breed and it is affecting policy. The change of control in the Virginia State Senate brought increased partisanship and social issues to the forefront of this session. It also resulted in a significant change in composition to the Senate Courts of Justice Committee which resulted in some legislation reaching the floor for the first time. From my point of view, the partisanship also spilled over into the criminal and civil justice arena.
Effective July 1, 2010, the state ceased automatically filling judicial vacancies and required all empty judicial positions created by retirements or resignations to be reauthorized by the House and Senate money committees. This policy remained in effect through this budget cycle. There was some talk about realigning circuits to try to equalize workloads, but they never really went very far. In the last two cycles, the money committees seemed to be using the raw number of new cases filed to determine relative case volume and need (except for two judgeships that went to budget conferees’ jurisdictions). There are over a dozen reasons why this is a poor metric to assess the need for judges which I’m not going to detail in this letter. However, this is recognized, and the General Assembly passed legislation requiring a “weighted caseload analysis” (HB745) to be performed by an experienced and independent third party. This study will hopefully get to the bottom of judicial workloads and present the Supreme Court with a
SUROVELL ISAACS PETERSEN & LEVY PLC 2012 Virginia Legislative Attorney Update June 5, 2012 Page 2
meaningful view of which jurisdictions are overworked and which jurisdictions need to lose judges. This process is expected to take eighteen months. In the meantime, Fairfax County lost one more judgeship (Judge Alden). Arlington County was allowed to keep two of three empty Circuit Court positions, Prince William County kept two empty General District Court positions and Loudoun County kept one empty General District Court positions. The budget cuts since July 1, 2010 have hit Northern Virginia as follows: Number of Empty Judgeships General Juvenile & Domestic Circuit District Relations Court 1 1 0 1 2 0 0 0 0 0 0 0 0 0 0 2 3 0
Jurisdiction Fairfax County Arlington County City of Alexandria Prince William County Loudoun County Totals
TOTAL 2 3 0 0 0 5
On May 14, 2012, we elected the following new judges: Tracy Hudson and William Jarvis in the Prince William General District Court; Daniel Fiore and Louise DiMatteo in the Arlington County Circuit Court; and Deborah Welsh in Loudoun County General District Court. We also elected Teresa Chafin of Russell County, Virginia to the Court of Appeals. Senator Chap Petersen came within one vote of securing the nomination of Lorraine Nordlund on the floor of the Senate. Also, the final day of the session was marred by a rare floor fight over a judge – Tracey ThornBeglund. I was dumbfounded that a decorated, honorably discharged Gulf War veteran who headed up the murder division in the City of Richmond who had unanimous bipartisan support of his local delegation could be derailed over sexual orientation. A local delegation’s wishes are rarely trumped in our body. If private sexual conduct is going to be a criteria for getting a robe, our Commonwealth is heading to a very ugly place. Also, it is important to note that we passed a budget amendment that states if any judge retires between August 1, 2012 and December 1, 2012 and was not subject to mandatory (age) retirement before June 30, 2013, then that position is not automatically deleted. If a judge retires in this period, the spot will be preserved subject to the legislature electing a new judge in the following session. I opposed this amendment because I thought it creates an opportunity for strategic behavior to remove the bar and legislature from the judicial selection process (recess appointments are by the Governor or Circuit Court). Temporary appointments nearly always result in permanent appointments. Only three legislators stood with me on this.
The most important legislation this session was the approval of the Supreme Court’s Rules of Evidence (HB101). Personally, I had mixed feelings about this, but at the end of the day I thought it provided better clarity and certainty for litigants and brought us up to speed with the other forty-nine states. They are effective July 1, 2012. The legislation originally proposed that the Supreme Court could adopt rules at-will. During the legislative process, I worked with some of the other attorney-legislators about my concerns about completely delegating legislative authority to the Supreme Court of Virginia. I did not think the Court should be able to
The Rules of Evidence
SUROVELL ISAACS PETERSEN & LEVY PLC 2012 Virginia Legislative Attorney Update June 5, 2012 Page 3
adopt new rules without review. Neither the proposed law or the Rules of Court contained any kind of notice and comment period or required any public input. Therefore, we built language into the Code that says that no rule will go into effect until a General Assembly has occurred so we have a chance to override it.
Successful Surovell Bills – Powers of Attorney & Appellate Interest First, I had two bills that passed. The Model Power of Attorney Act passed in 2011 currently states that Powers of Attorney are terminated upon the filing of a Complaint for Divorce. However, it also referenced “filing for separation.” I introduced legislation suggested by Deborah Matthews in Alexandria that made clear that the filing of a Petition for Custody, Visitation, Child Support or Separate Maintenance also automatically terminates any extant Powers of Attorney between the parties (HB677). I also introduced legislation, suggested by Steve Emmert, that clarifies the period that compounded interest runs on an appeal pursuant to § 8.01-682 (HB681). The former statutory language was ambiguous on both the front and back end. The bill clarifies that enhanced interest runs from filing of a notice of appeal to the issuance of a mandate. This will hopefully reduce unnecessary motions. Divorce Practice Changes There were some minor changes in the divorce arena. We also passed legislation allowing no further service required for depositions and entry of final decrees in divorces if personal service is made with the initial pleading and if no answer is filed (HB104). In addition, litigants will now be able to use affidavits in uncontested no-fault divorces (HB126). This will simplify practice and reduce costs for litigants and I suspect that most practitioners will switch to using affidavits instead of depositions or ore tenus hearings. Next, Section 20-107.3 has been amended to allow a Circuit Court to transfer a case to a different Virginia Court for purposes of contempt (HB635). Parties will not be required to continue to litigate in the County where the original decree was entered. Final Decrees of Divorce are now required to contain a notice that the entry of a final decree does not necessarily terminate death benefits (HB282). Additionally, a qualified domestic relations order (QDRO) is now authorized to collect delinquent child support (HB1095). Also, legislation was introduced to create a presumption of joint custody. That was rejected but modified to require a judge to communicate the basis of their child custody decision on each of the custody factors (existing law only requires a judge to communicate “the basis” for their ruling) (HB84). For the third year in a row, I introduced legislation to allow litigants to file a consolidated custody and visitation case in Juvenile and Domestic Relations Court instead of separate custody and visitation petitions for each child. This would save thousands of pieces of paper, time and money. My legislation was passed by the Civil Subcommittee for the third year in a row, but the Supreme Court was able to block it in the Appropriations Committee after claiming that it would cost $300,000 to reprogram their computers (HB682). Divorce practitioners (and future judges) should also become aware of changes to the Virginia Retirement System (VRS). These changes are very significant and are summarized on my blog here: The Dixie Pig: VRS Changes Part II: Explaining the Changes Given that VRS is the employment plan for thousands of government employees in Virginia, make sure you carefully consider these changes before negotiating settlements, QDRO’s or go to trial.
Civil Justice Issues
SUROVELL ISAACS PETERSEN & LEVY PLC 2012 Virginia Legislative Attorney Update June 5, 2012 Page 4
New Action for Negligently “Killing” A Fetus We passed legislation that creates a new cause of action for negligently “killing” a fetus (SB674). This action could apply in medical negligence cases, assault and batteries, or even car accidents. I voted against this legislation because I thought it was completely unnecessary. Most negligence cases resulting in the “death” of a fetus normally required some physical impact upon the mother and most juries already take this into account in their damage awards. I saw this as more of politically motivated attempt to legally validate life of a fetus for purposes of undermining Roe v. Wade. The bill passed 76-19 and 33-6. Collections Changes We passed legislation that authorizes judgment creditors to claim filing costs are part of a garnishment proceeding (HB286). Currently, such costs are not authorized and several class actions are pending against law firms who have been seeking costs of filing a garnishment in the garnishment proceeding. There was an attempt to modify this rule retroactively to undermine pending litigation, but that was abandoned after several of us raised concerns. Land Records & Injunction Changes All deeds will be required to contain a statement that they were either prepared by the property owner or an attorney (HB761). In appropriate situations a judge will have the discretion to waive a bond for an injunction (HB102). Bonds will now only be mandatory for temporary injunctions. Other Civil Action Changes Shoplifting victims (mainly large retailers) will now be able to file civil actions before the termination of the criminal proceedings (HB961). Big Eminent Domain Changes Possible If you don’t do eminent domain work, you should look into it because it is about to get much more lucrative. There will be a constitutional amendment on the ballot this fall which has two purposes (HB5/HB 1035). First, it writes Virginia’s ban on condemnations that are not for a “public purpose” – condemnations where land is turned over to a non-government agency. The statutory ban was enacted in 2007 in response to Kelo v. New London, 545 U.S. 469 (2005). Second, the constitutional provision expands damages available in condemnation cases to include lost profits and damages for lost access. This significantly expands the range of damages available when the government takes an action which damages property. I opposed this legislation for several reasons. The existing language is in the Virginia Declaration of Rights – a historic document drafted by Fairfax County’s George Mason that has worked for 240 years. Putting this in the Constitution is not necessary. It will also radically run up the cost of road and transit improvements to taxpayers. Appeals of Right? We also passed legislation requiring a study about expanding the jurisdiction of the Court of Appeals to provide for an appeal of right in all cases (HJ111). I strongly supported this and look forward to the report.
Simplifying Punitive Damages Proof I introduced legislation to make it easier to prove breath alcohol concentrations for punitive damages in auto accidents (HB680). The bill proposed to equalize evidentiary standards in civil and criminal cases – that punitive damages would apply if an individual provides a breath or blood sample that shows their
Failed Legislation of Interest
SUROVELL ISAACS PETERSEN & LEVY PLC 2012 Virginia Legislative Attorney Update June 5, 2012 Page 5
alcohol concentration is over a 0.15% by any test taken after an arrest. Presently, a civil litigant must use an expert witness to establish a blood concentration because the test typically occurs 60-120 minutes postarrest. The Court of Appeals has held this is not necessary in criminal prosecutions. It should not be harder to prove in a civil case and my bill failed by one vote in the Civil Subcommittee. I will try again next year. Civil Statutory “Castle Doctrine” We also killed legislation to create an affirmative defense in civil cases for using deadly force to defend oneself against a person illegally on your property (HB14). I argued on the floor that the common law was adequate and describing how this could immunize participants in drunken fraternity houses brawls, domestic abusers, expose canvassers to assaults, and undermine the Slayer Statute. We passed several versions of this bill notwithstanding, but it was ultimately killed in a Conference Committee after gun rights groups attacked the legislation as being more restrictive than existing Common Law. Expanded Consumer Protection Expunged Criminal Charges & Towing I also introduced legislation to create a cause of action against criminal history providers for selling access to expunged criminal records (HB679). I have several clients whose information has continued to be sold by data providers after I obtain an expungement. The data providers opposed my legislation, but agreed to meet with me to explore solutions over the summer and my bill was continued to next session. I also carried a bill to clarify that the Virginia Consumer Protection Act applies to violations of local towing ordinances (every locality in Northern Virginia has adopted these) and not just violations of the Code of Virginia (HB679). It would confirm that minimum statutory damages and attorney’s fees are available to consumers whose cars are illegally towed or overcharged. It failed due to towing industry opposition. Abolish the Court of Appeals? Senator Creigh Deeds introduced legislation to abolish the Court of Appeals (SB630) that got some press. My understanding is that he did it because he feels that recent judicial selections have been premised more upon politics rather than merit. He withdrew the bill. Given that we have not seen an appellate judge who lives in Fairfax, Arlington or Alexandria for over sixteen years, it is hard to argue with his premise. Banning GPS Tracking The press also covered a fight about legislation to ban GPS tracking (HB807). The bill would have created a Class 1 misdemeanor to place a GPS tracking device on a vehicle if the driver was unaware. The bill had exceptions for tracking your own children, childcare providers, or employers tracking employees. I strongly felt actual people should have the same rights as corporations and employers when it came to their personal property. The sponsor refused to extend the exception to natural persons tracking their own vehicles and the bill was killed in the Senate. Informal Custody Arrangements or “Kinship Care” Recently, the Commission on Youth has been struggling with attempting to find a way to move children into “informal” custody arrangements with family members and keep them in schools. School systems have been reluctant to allow someone other than a parent to enroll a child into school without a custody order due to liability concerns. Other school systems have ignored the law. The Commission on Youth deadlocked on a solution, but legislation was introduced without any consensus. The legislation proposed to allow school systems to accept a child into a school if presented with a Power of Attorney signed by a parent giving a third party the authority to make medical and educational decisions (SB217). I argued that this ran counter to Virginia Law. Children are not property. Medical
SUROVELL ISAACS PETERSEN & LEVY PLC 2012 Virginia Legislative Attorney Update June 5, 2012 Page 6
decision-making is expressly prohibited by the Model Power of Attorney Act. Judicial approval is nearly always required before custody arrangements are altered because children cannot legally consent. The medical decision-making was removed, but the educational power of attorney provision remained. Governor McDonnell vetoed this legislation for this reason and I hope to work on a solution to this next session. I do not see why existing standby guardian law in § 16.1-249 is not adequate to address this problem.
There is a distinct trend in Virginia to reduce and limit judicial discretion, direct sentencing outcomes, and limit procedural fairness. Given our state’s history insisting on individual rights and limiting government power in the criminal sphere during the founding of the United States due to monarchial abuse, it runs counter to our history. It also runs counter to many national and international human rights trends. Mandatory Ignition Interlock The change in control of the Senate of Virginia resulted in significant changes in the composition of the Senate Courts of Justice Committee. Legislation to mandate ignition interlock devices on all persons convicted of driving while intoxicated finally passed after a seven year lobbying campaign by victims advocates and interlock manufacturers (HB279). Interestingly, most of the “no” votes in the Senate came from Democratic and Republican attorneys. The non-attorneys on Senate Courts Committee provided most of the “yes” votes. I know many people are bracing for the impact of 15,000 new interlocks on the system. I was one of a handful of people to vote “no” in the House of Delegates. Mandatory Life in Prison We passed legislation mandating a sentence of life in prison for the rape, object penetration or forcible sodomy of any child when the defendant is more than five years older than the victim (HB973). The Fiscal Impact Statement stated that in the last 228 sentencing events, Virginia juries had only given life in 15 cases – mainly because many of these prosecutions involved consensual encounters prosecuted as statutory rape due to the victim’s age. While this kind of legislation might make for allegedly “tough on crime” politics, it undermines our jury system, procedural fairness, and in light of actual sentencing outcomes, it will create outcomes that most Virginians would not impose if they were sitting in judgment of a person. I voted “no.” Mandatory Minimum for Repeat Drug Dealing We passed legislation creating a new mandatory minimum sentence of five years for second offense dealing a Schedule I or II drug and increased the existing mandatory minimum for third offense from five years to ten (HB968). The fiscal impact projects 600 new prison beds occupied over the next 6 years. Under current law, juries can sentence someone for five to life. No one gave any policy justification for this than the political optics of being “tough on crime.” I voted “no.” Changes With Hung Juries Under current Virginia Law, if a jury hangs on sentencing, an entire new trial is required. We passed legislation that would lock in the conviction, and empanel a new jury to consider sentencing only (HB77). This only happens a handful of times per year in Virginia, but the consensus seems to be that it happens because some jurors agree to convict someone thinking their concerns about reasonable doubt can be made up on sentencing and then refuse to agree on a sentencing outcome with the rest of the jury. I opposed this change because I believe it undermines our jury system, and the existing system works fine. New Crimes & Punishments
CRIMINAL LAW CHANGES
SUROVELL ISAACS PETERSEN & LEVY PLC 2012 Virginia Legislative Attorney Update June 5, 2012 Page 7
We created the new crime of strangulation (HB752). We also created a new felony for having a child watch a “grooming video” – a video designed to make a child more receptive to sexual abuse (HB964). Calling someone with the intent to annoy will now be a Class 2 misdemeanor instead of a fine-only Class 3 misdemeanor (HB39). Trying Juveniles As Adults Legislation was introduced to significantly expand the cases where a juvenile could be tried as an adult (HB718). The broad version passed the House and it was ultimately narrowed down to only allow transfers for third or subsequent offenses of controlled substances, methamphetamines, or steroids. The Fiscal Impact Statement indicated that they could not estimate an impact – which led me to wonder why we were doing it if there wasn’t a problem someone could identify. It passed anyway. I voted “no.” Sex Offender Changes Virginia continues to attempt to tweak laws regarding sex offenders. First, one bill made clear that a prosecutor may request sex offender registration of a juvenile at any point while the child is under the jurisdiction of the Court (HB753). Prior law was not clear. We passed legislation to authorize proceedings to civilly commit sexually violent predators after completing their sentences to be done by video (HB944). There is a large backlog of offenders who have served their sentences who are waiting to be released, but cannot be released because the system is so slow. GPS & Search Warrant Changes We passed legislation creating a procedure for obtaining authorization to place a GPS tracking device on a suspect’s vehicle in light of United States v. Jones, 564 U.S. (2012) (HB1298). If a GPS device is placed on someone’s vehicle, they will ultimately be notified. We also passed legislation allowing for the electronic filing of search warrants (HB17). More Time for Fines Persons convicted will now have 30 days to pay their fines (SB116). We also passed legislation prohibiting a judge from amending a charge from a state code section to a local ordinance if the ticket is written by a state trooper (HB185). This was adopted in response to some rural Commonwealth Attorneys who were changing all tickets written by troopers to local ordinances so snatch the fine revenue.
More Mandatory Minimums The Senate killed legislation to create a three year mandatory minimum for involuntary manslaughter involving driving while intoxicated (HB49). Mandatory minimums were also proposed for a number of other crimes. This is becoming a trend. I spoke out against mandatory minimum as an attack on Virginia’s right to a jury trial and judicial discretion. I do not believe I have the right to dictate a minimum sentence for rural or urban parts of Virginia and I do not believe they should dictate sentences on my constituents. Communities are different. The circumstances of crimes and victims are unique. Discretion balances out results to ensure justice for all. I fear we will continue to see more of these. Abolishing Judicial Discretion The Senate again killed legislation attempting to overturn Hernandez v. Commonwealth which confirmed judges’ discretion to continue and dismiss charges even upon finding sufficient evidence of guilt (HB750). I have repeatedly given floor speeches against this legislation. It routinely passes the House by a wide margin and is killed in the Senate Courts Committee.
Failed Legislation of Interest
SUROVELL ISAACS PETERSEN & LEVY PLC 2012 Virginia Legislative Attorney Update June 5, 2012 Page 8
Sex Offender Listing for Juveniles Legislation was proposed to require that all juveniles convicted of rape, object penetration or forcible sodomy over the age of 13 be listed on the Sex Offender Registry (HB624). This bill passed the House, went through various rounds of changes, and ultimately did not pass. I suspect it will be back. I did not think it was fair to list children who did not expect to be listed when a plea agreement was reached. Involving Law Enforcement in Federal Immigration Issues The annual battle over illegal immigration played out yet again. First, the House of Delegates again passed legislation that would require accused persons to pay for their own interpreters on conviction (HB173). It was pointed out that this violates Federal Law and that the Department of Justice had revoked federal funding for states that had done this, but my colleagues did not seem to care. Also, no one has ever explained to me how you can assess a charge for interpreters when they spend varying amounts of time on cases throughout the day. It is not really a workable idea. It was killed in the Senate. The Senate also killed legislation that would require all sheriffs to inquire into whether an individual was legally present in the United States during booking (HB958). It also killed legislation that would require the Virginia State Police to enter into an agreement with Immigrations and Customs Enforcement to conduct legal presence checks (HB1001). I did not support these measures. Our law enforcement personnel are already stretched thin due to budget cuts enforcing Virginia laws on the books. I also believe enforcement of these laws are a Federal responsibility, and motivated more by politics than policy. Castle Doctrine – Criminal Version Legislation was also introduced to codify a criminal defense to the Castle Doctrine (HB48). Some versions of these are called “Stand Your Ground Laws.” I argued on the floor that these bills were unnecessary and that no one could point to a single Virginian who was in jail because this law was not on the books. The idea that people are unsure about whether to kill a home intruder is complete nonsense. If someone breaks into your home at night, no one would hesitate to use deadly force if they feel threatened. The proposed law also used language that was inconsistent with specific terms in Title 18.2 (referred to a “dwelling” instead of a “dwelling house” which is specifically defined). Notwithstanding that, it nearly passed until several gun rights groups argued the proposed legislation actually weakened common law protections.
In case you would like to easily click through to any of the legislation discussion in this letter to read the text or see how your legislator voted, I have posted a hyperlinked version of this letter online at www.bit.ly/2012attyletter. As always, if you have any legislative ideas or feedback for me, I welcome your suggestions. I am well aware that those of us who operate within Virginia’s Civil and Criminal Justice System are on the front lines of many of our problems, and I get many of my best legislative ideas from my colleagues. Please send your ideas to my legislative email at email@example.com. You can also keep up with me on Facebook, Twitter, my website or my online newsletter, The Dixie Pig, at scottsurovell.blogspot.com. I have written over 300 articles about my views on public policy. Website – www.scottsurovell.org Facebook – www.facebook.com/scottsurovell Twitter - www.twitter.com/ssurovell Online Newsletter - The Dixie Pig – scottsurovell.blogspot.com
How Can Practicing Attorney’s Help?
SUROVELL ISAACS PETERSEN & LEVY PLC 2012 Virginia Legislative Attorney Update June 5, 2012 Page 9
I continue to be concerned about the lack of attorneys in the General Assembly. After the last elections, there are only about twelve of us who actually go to Court in the House of Delegates. Delegate Johnny Joannou tells me that when he was elected in the 1970’s, the House was 80% lawyers. We need more attorneys in the chamber and I strongly encourage anyone who has an interest to please consider running whether you are a Democrat or a Republican. We just need lawyers. Finally, to get re-elected I need to raise money. In my last two races, my opponents spent over $600,000 trying to dislodge me from this job with a $17,600 salary. Last cycle, my race was targeted by the House Republican Caucus who invested over $200,000 in my opponent. I do not expect my next race to be any different. It is hard to believe, but there are only seven months left before we go back into session. We are prohibited from fundraising during the session and the campaign begins as soon as we get out. I also spend $50,000 every two years to spend on constituent outreach, community events, staff salaries, and ongoing overhead. I need to raise money now so that prospective opponents will know what they are up against. I am having my annual attorney fundraiser for attorneys next month and my special guest will be the new Commonwealth’s Attorney for Henrico County Shannon Taylor.
With Henrico County Commonwealth’s Attorney Shannon Taylor
Wednesday, June 20, 2012 6:00 p.m to 8:00 p.m. Williams Memorial Hall – Fairfax City Volunteer Firehouse 4081 University Drive Fairfax, VA 22030 TO RSVP or Donate bit.ly/attorneysforsurovell2012
ATTORNEYS FOR DELEGATE SCOTT SUROVELL
I hope you can attend or if you are unable to attend, I hope you can send a contribution. Attorneys are a base of my support. I hope I can count on your support again for this cycle and I look forward to seeing you around the courthouse or at CLE’s! Sincerely Yours,
Delegate Scott A. Surovell 44th District