Virginia Legislative Information System
(includes legislation
from 1994 to present)

General Assembly Information

Commonwealth of Virginia

State Board of Elections

U.S. Congress

Bills of Interest to VBA Members

VBA Links

2012 Legislative Updates

By Joseph E. "Jay" Spruill, III

Dispatch #5, April 23, 2012                    Previous Dispatch

GOVERNOR SIGNS VBA BILLS

The Governor has now signed all VBA bills that passed the Virginia General Assembly in the 2012 Session. These bills will become law on July 1, 2012. A list of these bills is set forth here.

Also, a conference budget proposal approved by the General Assembly in its reconvened session on April 18th will unfreeze 23 judgeships and pay for 61 staffers in district court clerks’ offices. The plan calls for filling 10 circuit court positions, six general district court positions, and seven juvenile and domestic relations court seats. The cost for the judgeships and court personnel is $5.8 million.

 

Dispatch #4, March 16, 2012                    Prior Dispatch

QUICK LINKS:     Rules of Evidence     Legal Aid Funding      Judicial Vacancies   
Wills, Trusts & Estates    Business Law     Health Law     Elder Law     Boyd-Graves     
Family Law Coalition   ADR Joint Committee   Commission on the Needs of Children

ADJOURNMENT

The 2012 Virginia General Assembly adjourned on March 10th, but without passing a state budget. Legislators will reconvene on March 21st for a two-day special session to try to resolve the budget impasse.

The VBA was quite active this session. The association introduced nearly 20 bills on behalf of its sections and affiliated organizations, and supported, opposed, or sought to amend a significant number of other bills. Other than a few disappointments, the VBA enjoyed a very successful session, as a number of bills passed, or were modified or defeated, to further the VBA’s mission of improving the law and the administration of justice in the Commonwealth.

A summary follows. (See also the legislation progress at a glance chart):

Rules of Evidence

After 18 years of work by the Supreme Court of Virginia, the Boyd-Graves Conference, and judges and practitioners throughout the Commonwealth, the General Assembly has passed legislation establishing the Rules of Evidence. The legislation now goes to the Governor for this signature.

The VBA worked alongside representatives from the Supreme Court and other bar groups in seeking passage of this historic legislation – H.B. 101 (Loupassi) and S.B. 94 (Edwards). There were significant challenges to overcome as this legislation worked its way through the legislative process. In particular, House Courts of Justice Committee members raised a number of concerns with the bill, such as whether it was appropriate to cede the authority to promulgate evidence rules to the Supreme Court and, if so, how existing statutory rules of evidence should be incorporated in the court’s rules. These concerns were resolved through amendments to the House bill offered by the Supreme Court.

The original Senate bill sailed through the Senate with little fanfare. But things changed after a conference committee was established to reconcile the House and Senate versions of the legislation. When a conference report was presented on the Senate floor, several Senators voiced their objections to the legislation – arguing that the legislature, rather than the Supreme Court, should have responsibility for promulgating the rules. As a result of these objections, the Senate rejected the conference report, 11-29. A heavy lobbying effort, and an amendment offered by the Supreme Court, successfully reversed this result. The Senate approved a second conference report to establish the rules on a 36-4 vote on the last day of session.

The VBA is grateful for the efforts of the patrons of this legislation, Delegate Manoli Loupassi in the House and Senator John Edwards in the Senate, who worked tirelessly to get this legislation through the General Assembly.

Legal Aid

H.B. 100, a bill patroned by Delegate Manoli Loupassi that would have facilitated a mandatory IOLTA program to help address severe underfunding of Legal Aid programs, was heard in the House Courts of Justice Committee on January 30th. The VBA has actively lobbied in support of the efforts of Legal Services Corporation of Virginia (“LSCV”) to get this legislation passed. Despite a 6-2 vote approving the legislation in the House Courts Civil Subcommittee, and strong testimony in the full House Courts of Justice Committee in favor of the legislation from VBA President Hugh M. Fain III, LSCV President Mark Braley, and Reed Smith lobbyist Lane Kneedler, the bill failed on a 7-9 vote in full committee.

Judicial Vacancies

On February 19th, the House Appropriations Committee and the Senate Finance Committee reported their 2012-2014 budget recommendations. The House Appropriations Committee recommended filling 32 vacancies (with 13 remaining vacant), providing $250,000 to finance a study of caseloads pursuant to H.B. 745 (Cline), and providing $3.2 million for additional positions in clerks’ offices. The Senate Finance Committee recommended filling 10 vacancies where the caseload is the highest, financing the caseload study, and providing approximately $10 million for 136 deputy clerks in General District Court Clerks’ offices. The General Assembly will address judicial vacancies when it returns to Richmond on March 21st to come up with a budget. The VBA continues to advocate for filling as many judicial vacancies as possible. The number of unfilled judgeships is undermining the administration of justice in the Commonwealth.

Back to the top of Dispatch #4 

Other Legislative Initiatives

Wills, Trusts & Estates Section. The General Assembly passed five bills proposed by the section. A sixth section bill died in the Senate Finance Committee.

Senator Richard Stuart patroned three of the successful bills: (i) S.B. 180, providing protection to a trustee who acts in accordance with the directions of a third party that the settlor has expressly authorized to direct the trustee in the trust instrument; (ii) S.B. 11, giving a settlor who is also a beneficiary the same spendthrift protections as other beneficiaries under a self-settled spendthrift trust; and (iii) S.B. 432, providing that a settlor’s creditors are not permitted to compel a trustee to exercise a discretionary power to reimburse the settlor for having paid taxes incurred on the trust income legally taxable to the settlor. All of these bills await the governor’s signature.

Senator John Edwards had the other two section bills: (i) S.B. 110, authorizing the trustee of an irrevocable trust to appoint all or part of the principal or income of a trust to a second trust for the benefit of the beneficiaries of the original trust; and (ii) S.B. 109, clarifying provisions in Virginia’s land trust statute (Va. Code § 55-17.1) concerning how successor trustees are appointed. Both bills passed the General Assembly and await the governor’s signature. A third bill Senator Edwards patroned on behalf of the VBA, dealing with the Uniform Power of Attorney Act, S.B. 108, reported from the Senate Courts of Justice Committee but died in the Senate Finance Committee because of the bill’s financial impact. An identical House bill – H.B. 125 (Kilgore) – met a similar fate in the House Appropriations Committee.

Business Law Section. The Business Law Section recommended a number of legislative changes, all of which were included in an omnibus bill, S.B. 50, patroned by Senator John Watkins. S.B. 50 passed the General Assembly and awaits the governor’s signature. The bill seeks to improve and update provisions of the Virginia Stock Corporation Act, Virginia Non-Stock Corporation Act, and Virginia Limited Liability Company Act. In particular, the bill (i) removes duplicative provisions addressing remote participation in meetings, (ii) prescribes requirements when less than unanimous consent of the shareholders is required, (iii) specifies that original share transfer books are prima facie evidence of who is entitled to examine the shareholders list, (iv) specifies that the articles or bylaws may prescribe qualifications to be a director, (v) clarifies that only a new amendment set out in a restatement of articles of incorporation require shareholder approval, (vi) permits public corporations to satisfy the requirements for providing financial statements to shareholders entitled to appraisal rights in any manner permitted by the U. S. Securities and Exchange Commission, (vii) removes the ability of a corporation to adopt a proposal to dissolve after a court has entered a purchase order, and (vii) authorizes members to rescind the dissolution of a limited liability company. The bill also includes certain technical amendments.

The Business Law Section recommended that the VBA support legislation – S.B. 51 (Watkins) – to adopt changes to Article 9 of the Uniform Commercial Code as recommended by the National Conference of Commissioners on Uniform State Laws. This bill passed the General Assembly and has been signed into law by the governor. Also upon the recommendation of the Business Law Section, the VBA opposed three bills that would have done harm to Virginia’s Limited Liability Company Act: (i) H.B. 354 (McClellan), authorizing a Virginia limited liability company to elect to become a benefit limited liability company; (ii) S.B. 351 (Deeds), providing for the designation of a “low profit” limited liability company; and (iii) S.B. 165 (Petersen), providing for the direct execution of a judgment on the assets of a limited liability company when the judgment debtor is a 100 percet owner of that company. All of these bills were defeated in committee.

Back to the top of Dispatch #4 

Health Law Section. Upon the recommendation of the Health Law Section, the VBA opposed S.B. 214 (Barker). This bill would extend the requirement to notify individuals of a breach of their medical information to all individuals and public and private entities, not just governmental agencies. The bill was carried over to the 2013 session in the Senate Education and Health Committee. The section also was actively involved in negotiations concerning H.B. 918 (Minchew) and S.B. 426 (Ruff). These bills deal with issues relating to appeals of determinations by the Department of Medical Assistance Services. Both bills were likewise carried over to 2013 session.

Elder Law Section. The Elder Law Section proposed two bills this session. Delegate John O'Bannon introduced the first, H.B. 1087, providing that in cases in which a nursing home patient is involuntarily transferred or discharged from a nursing home, the State Long-Term Care Ombudsman must be notified. Unknown to the VBA before the session, a working group of interested parties had been looking at this issue for some time, but had not yet completed its work. As a result, H.B. 1087 has been carried over to the 2013 session. To keep the work group’s feet to the fire, the VBA had Delegate Patrick Hope introduce a bill, H.B. 1274, requiring the commissioner of health to convene such a work group to address this issue and directing the commissioner to report the work group’s progress to the General Assembly by December 1, 2012.

The second bill recommended by the Elder Law Section, H.B. 1090, partroned by Delegate John O’Bannon, addressed alternative methods for determining the fair market value of real property owned by a person seeking Medicaid eligibility for long-term nursing care. The VBA worked out amendments with the Department of Medical Assistance Services (“DMAS”) in an effort to allay DMAS’ concerns. The challenge was the fiscal impact statement that DMAS attached to the bill. That statement estimated that the bill would cost $1 million in fiscal year 2013 and $3 million in fiscal year 2014. The bill was reported from the House Health, Welfare and Institutions Committee, but was re-referred to House Appropriations Committee where it died because of the costs described above.

Boyd-Graves Conference. Delegate Manoli Loupassi and Senator Mark Obenshain patroned a number of bills on behalf of the Boyd-Graves Conference. H.B. 102 and S.B. 59 require a moving party to post bond only for temporary injunctions, rather than both temporary and permanent injunctions. H.B. 104 and S.B. 60 provide that no notice to take depositions is required to be served on a defendant in default in a divorce proceeding. An amendment to these two bills provides that the exception applies only when the defendant has been personally served. All of these bills passed the General Assembly and have been signed into law by the governor.

H.B. 451, introduced on behalf of the conference by Delegate David Toscano, has passed the General Assembly and awaits the governor’s signature. This bill provides that a parent who does not consent to the adoption of the parent’s child, but whose consent to the adoption is required, shall be appointed counsel if such parent is determined to be indigent.

Back to the top of Dispatch #4 

Virginia Family Law Coalition. Delegate Salvatore Iaquinto introduced two bills on behalf of the coalition. H.B. 282 requires that every decree of divorce or annulment contain a notice alerting the parties that the final decree may not necessarily serve to revoke the designation of the other party as a beneficiary in a contract providing for a death benefit. This bill has passed the General Assembly and awaits the governor’s signature.

H.B. 283 provides that a party in a suit for divorce, annulment, separate maintenance, child custody, or visitation may be ordered to maintain any existing life insurance policy on either spouse or designate as beneficiary the child or children of the parties of the other party, and that the court may allocate the cost of the premiums of such insurance between the parties. This bill passed the House, but was passed by indefinitely in the Senate Courts of Justice Committee because of concerns with the bill’s language.

The coalition was actively involved in supporting, opposing, or seeking necessary changes to more than 20 other family law bills introduced this session.

Virginia Alternative Dispute Resolution Joint Committee. Delegate Michael Webert patroned legislation, H.B. 368, as requested by the Joint Committee, dealing with tax credits for mediators. The bill has passed the General Assembly and awaits the governor’s signature.

Commission on the Needs of Children. Upon the recommendation of the Commission, the VBA supported Delegate Gregory Habeeb’s H.B. 223. This bill provided that a juvenile adjudicated delinquent of an offense that would be a felony if committed by an adult may petition the Supreme Court to issue a writ of actual innocence on the basis of biological or non-biological evidence regardless of his plea or the classification of the felony for which he was adjudicated delinquent. The bill was defeated in the House Courts of Justice Committee.

Also, the VBA has lobbied alongside the Commission and other representatives in opposing H.B. 718 (Kilgore) and S.B. 419 (Stanley). These bills would give prosecutors the discretion to have juveniles charged with certain offenses transferred to the circuit court for trial as an adult. S.B. 419 was defeated in the Senate Courts of Justice Committee. H.B. 718 passed the House, but was amended in the Senate Courts of Justice Committee to limit it scope. It has passed the General Assembly and awaits the governor’s signature.

Back to the top of Dispatch #4 

 

Dispatch #3, Feb. 21, 2012                          Previous Dispatch

WEEK SIX OF THE GENERAL ASSEMBLY SESSION

QUICK LINKS:     Rules of Evidence     Legal Aid Funding      Judicial Vacancies   

Wills, Trusts & Estates    Business Law     Health Law     Elder Law     Boyd-Graves     

Family Law Coalition   Joint ADR Committee    Commission on the Needs of Children

The 2012 session marked its mid-point on February 14th with “cross-over.” This is the date on which each chamber of the General Assembly must complete work on its own bills. After this date, bills that have passed in the chamber where introduced go to the other chamber for consideration. Since only bills that have passed one house or another generally are considered after cross-over, the pace of committee action picks up considerably after this time.

The VBA continues to work hard to advance the many bills it had introduced on behalf of its sections and affiliated organizations, and to support, oppose, or amend a host of other bills of significant interest. (See Legislative progress at a glance.)

VBA members have given generously of their time to come to the Capitol to testify and otherwise provide invaluable support to the VBA’s lobbying efforts. Often VBA members can be found testifying on bills in multiple legislative committee meetings at the same time – testament to the VBA’s significant commitment to improving the law and the administration of justice.

Here are the highlights of the VBA’s efforts as we enter the first full week after cross-over:

Rules of Evidence

Under the leadership of VBA President Hugh M. Fain III, the VBA, working with representatives from the Virginia Supreme Court and the Boyd-Graves Conference, has heavily lobbied legislators to pass legislation – H.B. 101 (Loupassi) and S.B. 94 (Edwards) – to adopt the Rules of Evidence in Virginia. We have made progress, but not without overcoming challenges in the House.

In particular, S.B. 94 passed the Senate without amendment on a vote of 37-3. H.B. 101, on the other hand, has had a more difficult journey in the House. In this regard, House Courts Committee members have expressed a number of concerns with the bill that the VBA and its allies have had to overcome. House Courts Committee members initially questioned why the bill was necessary at all, and voiced skepticism about moving away from the system we have now. We worked to persuade those members that attorneys in Virginia want the rules in one place to make their courtroom practice easier. Next, House Courts Committee members questioned whether the General Assembly or the Virginia Supreme Court should have responsibility for making changes to the rules. We were able to convince legislators that the Supreme Court should have such authority, and that the legislature would always have the ability to override or change a rule promulgated by the Supreme Court that the legislature did not like. This is especially true under the new language added to the bill providing that any rule changes would have to be promulgated by the Court by December 15th of a given year and would not go into effect until July 1st of the following year, so as to give the legislature time to respond to any such proposed rule. Finally, House Courts Committee members were adamant that the bill be amended to restore certain statutory rules of evidence that the bill originally repealed. This amendment has been made. As amended, H.B. 101 passed the House 97-2. The competing Senate and House versions of the bill now will have to be sorted out in a conference committee.

Legal Aid

H.B. 100, a bill patroned by Delegate Manoli Loupassi that would have facilitated a mandatory IOLTA program to help address severe underfunding of Legal Aid programs, was heard in the House Courts of Justice Committee on January 30th. The VBA has actively lobbied in support of the efforts of Legal Services Corporation of Virginia (“LSCV”) to get this legislation passed. Despite a 6-2 vote approving the legislation in the House Courts Civil Subcommittee, and strong testimony in the full House Courts of Justice Committee in favor of the legislation from VBA President Hugh M. Fain III, LSCV President Mark Braley, and Reed Smith lobbyist Lane Kneedler, the bill failed on a 7-9 vote in full committee.

Judicial Vacancies

On February 19th, the House Appropriations Committee and the Senate Finance Committee reported their 2012–2014 budget recommendations. The House Appropriations Committee is recommending filling 32 vacancies (with 13 remaining vacant); providing $250,000 to fund a study of caseloads pursuant to H.B. 745 (Cline); and providing $3.2 million for additional positions in Clerks’ offices. The Senate Finance Committee is recommending filling 10 vacancies where the caseload is the highest; funding the caseload study; and providing approximately $10 million for 136 deputy clerks in General District Court Clerks’ offices. The VBA is sorting through this and intends to remain active in voicing its strong support for filling judicial vacancies.

Other Legislative Initiatives

Wills, Trusts & Estates Section. The Senate has passed five bills proposed by the section. The only other section bill was reported from the Senate Courts Committee, but was referred to the Senate Finance Committee where it died because of budgetary concerns.

Senator Richard Stuart has three VBA bills that have passed the Senate: (i) S.B. 180, providing protection to a trustee who acts in accordance with the directions of a third party that the settlor has expressly authorized to direct the trustee in the trust instrument; (ii) S.B. 11, giving a settlor who is also a beneficiary the same spendthrift protections as other beneficiaries under a self-settled spendthrift trust; and (iii) S.B. 432, providing that a settlor’s creditors are not permitted to compel a trustee to exercise a discretionary power to reimburse the settlor for having paid taxes incurred on the trust income legally taxable to the settlor.

Senator John Edwards has two VBA bills that have passed the Senate: (i) S.B. 110, authorizing the trustee of an irrevocable trust to appoint all or part of the principal or income of a trust to a second trust for the benefit of the beneficiaries of the original trust; and (ii) S.B. 109, clarifying provisions in Virginia’s land trust statute (Va. Code § 55-17.1) concerning how successor trustees are appointed. A third bill Senator Edwards has patroned on behalf of the VBA, dealing with the Uniform Power of Attorney Act, S.B. 108, reported from the Senate Courts of Justice Committee but died in the Senate Finance Committee because of the bill’s financial impact. An identical House bill – H.B. 125 (Kilgore) – met a similar fate in the House Appropriations Committee. The VBA’s bills that have passed the Senate are expected to be heard in the House Courts of Justice Committee the week of February 20th.

Business Law Section. The Business Law Section recommended a number of legislative changes, all of which have been included in an omnibus bill, S.B. 50, partroned by Senator John Watkins. S.B. 50 has passed the Senate. The bill seeks to improve and update provisions of the Virginia Stock Corporation Act, Virginia Non-Stock Corporation Act, and Virginia Limited Liability Company Act. In particular, the bill (i) removes duplicative provisions addressing remote participation in meetings, (ii) prescribes requirements when less than unanimous consent of the shareholders is required, (iii) specifies that original share transfer books are prima facie evidence of who is entitled to examine the shareholders list, (iv) specifies that the articles or bylaws may prescribe qualifications to be a director, (v) clarifies that only a new amendment set out in a restatement of articles of incorporation require shareholder approval, (vi) permits public corporations to satisfy the requirements for providing financial statements to shareholders entitled to appraisal rights in any manner permitted by the U.S. Securities and Exchange Commission, (vii) removes the ability of a corporation to adopt a proposal to dissolve after a court has entered a purchase order, and (vii) authorizes members to rescind the dissolution of a limited liability company. The bill also includes certain technical amendments. The bill has yet to be considered in the House.

The Business Law Section recommended that the VBA support legislation – S.B. 51 (Watkins) – to adopt changes to Article 9 of the Uniform Commercial Code as recommended by the National Conference of Commissioners on Uniform State Laws. The bill has passed the Senate and has been reported from the House Commerce and Labor Committee.

Also, upon the recommendation of the Business Law Section, the VBA opposed three bills that would have done harm to Virginia’s Limited Liability Company Act: (i) H.B. 354 (McClellan), authorizing a Virginia limited liability company to elect to become a benefit limited liability company; (ii) S.B. 351 (Deeds), providing for the designation of a “low profit” limited liability company; and (iii) S.B. 165 (Petersen), providing for the direct execution of a judgment on the assets of a limited liability company when the judgment debtor is a 100 percent owner of that company. All of these bills were defeated in committee.

Health Law Section. Upon the recommendation of the Health Law Section, the VBA opposed S.B. 214 (Barker). This bill would extend the requirement to notify individuals of a breach of their medical information to all individuals and public and private entities, not just governmental agencies. The bill was carried over to the 2013 session in the Senate Education and Health Committee. The section was also actively involved in negotiations concerning H.B. 918 (Minchew) and S.B. 426 (Ruff). These bills deal with issues relating to appeals of determinations by the Department of Medical Assistance Services. Both bills were likewise carried over to the 2013 session.

Elder Law Section. The Elder Law Section proposed two bills this session. Delegate Patrick Hope has introduced the first, H.B. 159, a bill providing that in cases in which a nursing home patient is involuntarily transferred or discharged from a nursing home, the State Long-Term Care Ombudsman must be notified. Unbeknownst to the VBA before the session, a working group of interested parties has been looking at this issue for some time, but has not yet completed its work. As a result, H.B. 159 has been carried over to the 2013 session. To keep the work group’s feet to the fire, the VBA had Delegate Hope introduce a bill formally requiring the Commissioner of Health to convene such a work group to address this issue and directing the Commissioner to report the work group’s progress to the General Assembly by December 1, 2012.

The second bill recommended by the Elder Law Section, H.B. 1090, partroned by Delegate John O’Bannon, addresses alternative methods for determining the fair market value of real property owned by a person seeking Medicaid eligibility for long-term nursing care. The VBA has worked out amendments with the Department of Medical Assistance Services (“DMAS”) in an effort to allay DMAS’s concerns. The challenge is the fiscal impact statement that DMAS has had attached to the bill. That statement estimates that the bill will cost $1 million in fiscal year 2013 and $3 million is fiscal year 2014. The bill was reported from the House Health, Welfare and Institutions Committee, but was re-referred to the House Appropriations Committee, where it died because of the costs described above.

Boyd-Graves Conference. Legislation sponsored by Delegate Manoli Loupassi and Senator Mark Obenshain on behalf of the Boyd-Graves Conference has passed in the chambers where they were introduced, and has been reported from the Courts Committee in the other chamber. H.B. 102 and S.B. 59 require a moving party to post bond only for temporary injunctions, rather than both temporary and permanent injunctions. H.B. 104 and S.B. 60 provide that no notice to take depositions is required to be served on a defendant in default in a divorce proceeding.

H.B. 451, a bill introduced on behalf of the conference by Delegate David Toscano, has passed the House. It was reported from the Senate Rehabilitation and Social Services Committee on February 17th. This bill provides that a parent who does not consent to the adoption of the parent’s child, but whose consent to the adoption is required, shall be appointed counsel if such parent is determined to be indigent.

Virginia Family Law Coalition. Delegate Salvatore Iaquinto introduced two bills on behalf of the coalition. H.B. 282 requires that every decree of divorce or annulment contain a notice alerting the parties that the final decree may not necessarily serve to revoke the designation of the other party as a beneficiary in a contract providing for a death benefit. This bill has passed the House and has been reported from the Senate Courts of Justice Committee. H.B. 283 provides that a party in a suit for divorce, annulment, separate maintenance, child custody, or visitation may be ordered to maintain any existing life insurance policy on either spouse or designate as beneficiary the child or children of the parties of the other party, and that the court may allocate the cost of the premiums of such insurance between the parties. This bill passed the House, but was passed by indefinitely in the Senate Courts of Justice Committee because of concerns with the bill’s language.

The coalition has been actively involved in supporting, opposing, or seeking necessary changes to more than 20 other family law bills introduced this session.

Virginia Alternative Dispute Resolution Joint Committee. Delegate Michael Webert is carrying legislation, H.B. 368, as requested by the Joint ADR Committee, dealing with tax credits for mediators. The bill has passed the House. It is pending in the Senate Finance Committee.

Commission on the Needs of Children. Upon the recommendation of the Commission, the VBA supported Delegate Gregory Habeeb’s H.B. 223. This bill provides that a juvenile adjudicated delinquent of an offense that would be a felony if committed by an adult may petition the Supreme Court to issue a writ of actual innocence on the basis of the biological or non-biological evidence regardless if his plea or the classification of the felony for which he was adjudicated delinquent. The bill was defeated in the House Courts of Justice Committee.

Also, the VBA has lobbied alongside the Commission and other representatives in opposing H.B. 718 (Kilgore) and S.B. 419 (Stanley). These bills would give prosecutors the discretion to have juveniles charged with certain offenses transferred to the circuit court for trial as an adult. H.B. 718 has passed the House, but S.B. 419 was defeated the Senate Courts of Justice Committee
 

Back to the top of Dispatch #3 

Dispatch #2, Jan. 30, 2012                      Earlier Dispatch

AS WE ENTER WEEK THREE OF THE 2012 GENERAL ASSEMBLY SESSION

QUICK LINKS:     Rules of Evidence     Legal Aid Funding      Judicial Vacancies   
Wills, Trusts & Estates    Business Law     Health Law     Elder Law     Boyd-Graves     
Family Law Coalition     Joint ADR Committee     Commission on the Needs of Children

The Virginia Bar Association is making good progress as we enter the third full week of the 2012 Virginia General Assembly session. Of the 19 bills the VBA had introduced on behalf of its various sections and affiliated organizations, 16 have advanced through committee, and, in many cases, have passed the House or Senate where introduced. (Two of the VBA’s bills have yet to be heard in committee; one has been carried over until next year for further study.) The VBA is also actively supporting, opposing, or seeking to modify a host of other bills before the General Assembly. Details concerning these bills are as follows:

Rules of Evidence

The VBA, working with the Supreme Court of Virginia and the Boyd-Graves Conference, has been actively lobbying members of the General Assembly to pass legislation – H.B. 100 (Loupassi) and S.B. 94 (Edwards) – to adopt the Rules of Evidence. VBA President Hugh Fain has shown tremendous leadership in this effort and has testified effectively before both the Senate and House Courts of Justice Committees. Indeed, the Chairman of the House Courts of Justice Committee has requested that Hugh take the lead in presenting the bill in House committee deliberations of the legislation.

As to the status of the legislation, on Monday, January 30th, the Senate Courts of Justice Committee voted 14-1 to report the legislation. In the House, a special Courts of Justice subcommittee has been established to consider the legislation. At its first meeting, the subcommittee raised a number of issues, most significantly whether it was appropriate to eliminate the requirement that the legislature approve rule changes going forward. The VBA is making every effort to address these concerns. The next meeting of the subcommittee is scheduled for Friday, February 3rd.

Legal Aid Funding

H.B. 100, a bill patroned by Delegate Manoli Loupassi that would facilitate a mandatory IOLTA program to help address severe underfunding of Legal Aid programs was heard in the House Courts of Justice Committee on January 3rd. The VBA has actively lobbied in support of the efforts of Legal Services Corporation of Virginia (“LSCV”) to get this legislation passed. Despite a 6-2 vote approving the legislation in the House Courts Civil Subcommittee, and strong testimony in the full House Courts of Justice Committee in favor of the legislation from VBA President Hugh Fain, LSCV President Mark Braley, and Reed Smith lobbyist Lane Kneedler, the bill failed on a 7-9 vote in full committee. LSCV is exploring other legislative options with respect to IOLTA this session, so there may be further action on this issue.

Judicial Vacancies

The VBA is seeking every opportunity to speak out in the General Assembly on the need for funding to fill judicial vacancies. Much of this debate will be a part of the budget process. However, the VBA is currently supporting one bill, H.B. 745, that would require the Supreme Court to develop a weighted caseload system to precisely measure and compare judicial caseloads throughout the Commonwealth. The bill has been amended to provide funding for this effort, which the Supreme Court views as important to get a precise picture of where funding for judges is most needed. The results of the Supreme Court’s efforts on this can be used to support funding for judicial vacancies by the legislature.

Back to the top of Dispatch #2

Other Legislative Initiatives

Wills, Trusts & Estates Section. The Senate Courts of Justice Committee has approved six of the seven bills proposed by the section; the seventh has yet to be heard. Five of the six bills reported by the committee have already have passed the Senate and await House consideration after the cross-over date.

In particular, Senator Richard Stuart has three VBA bills that have passed the Senate: (i) S.B. 180, providing protection to a trustee who acts in accordance with the directions of a third party who the settlor has expressly authorized to direct the trustee in the trust instrument; (ii) S.B. 11, giving a settlor who is also a beneficiary the same spendthrift protections as other beneficiaries under a self-settled spendthrift trust; and (iii) S.B. 432, providing that a settlor’s creditors are not permitted to compel a trustee to exercise a discretionary power to reimburse the settlor for having paid taxes incurred on the trust income legally taxable to the settlor. A fourth bill that Senator Stuart is carrying for the VBA concerning exhumation has yet to be heard.

Senator John Edwards has two VBA bills that have passed the Senate: (i) S.B. 110, authorizing the trustee of an irrevocable trust to appoint all or part of the principal or income of a trust to a second trust for the benefit of the beneficiaries of the original trust; and (ii) S.B. 109, clarifying provisions in Virginia’s land trust statute (Va. Code § 55-17.1) concerning how successor trustees are appointed. A third bill Senator Edwards is patroning on behalf of the VBA dealing with the Uniform Power of Attorney Act, S.B. 108, has been reported from the Senate Courts of Justice Committee and re-referenced to the Senate Finance Committee. The bill provides that an agent who misuses a power of attorney with fraudulent intent is subject to prosecution for embezzlement.

The Wills, Trusts & Estate Section has also provided valuable input to the General Assembly on two other bills – H.B. 763 (Lewis) and H.B. 414 (Watts). H.B. 763 deals with nonresident executors and testamentary trustees under a will probated in another state and their authority to handle real estate located in Virginia in connection with estates they administer. H.B. 414 deals with who should be granted limited access to a safe deposit box to look for a will or other testamentary instrument. While taking a neutral position on these bills, members of the Wills, Trusts & Estates Section have provided valuable insights to the House committees considering these bills.

Business Law Section. The Business Law Section recommended a number of legislative changes, all of which have been included in an omnibus bill, S.B. 50, partroned by Senator John Watkins. S.B. 50 has been reported from the Senate Commerce and Labor Committee and has passed the Senate. The bill seeks to improve and update provisions of the Virginia Stock Corporation Act, Virginia Non-Stock Corporation Act, and Virginia Limited Liability Company Act. In particular, the bill (i) removes duplicative provisions addressing remote participation in meetings, (ii) prescribes requirements when less than unanimous consent of the shareholders is required, (iii) specifies that original share transfer books are prima facie evidence of who is entitled to examine the shareholders list, (iv) specifies that the articles or bylaws may prescribe qualifications to be a director, (v) clarifies that only a new amendment set out in a restatement of articles of incorporation require shareholder approval, (vi) permits public corporations to satisfy the requirements for providing financial statements to shareholders entitled to appraisal rights in any manner permitted by the U.S. Securities and Exchange Commission, (vii) removes the ability of a corporation to adopt a proposal to dissolve after a court has entered a purchase order, and (vii) authorizes members to rescind the dissolution of a limited liability company. The bill also includes certain technical amendments.

Also, upon the recommendation of the Business Law Section, the VBA is opposing three bills that would do harm to Virginia’s Limited Liability Company Act: (i) H.B. 354 (McClellan), authorizing a Virginia limited liability company to elect to become a benefit limited liability company; (ii) S.B. 351 (Deeds), providing for the designation of a “low profit” limited liability company; and (iii) S.B. 165 (Petersen), providing for the direct execution of a judgment on the assets of a limited liability company when the judgment debtor is a 100% owner of that company. None of these bills have yet to be heard in committee. 

Back to the top of Dispatch #2 

Health Law Section. Upon the recommendation of the Health Law Section, the VBA is opposing S.B. 214 (Barker). This bill would extend the requirement to notify individuals of a breach of their medical information to all individuals and public and private entities, not just governmental agencies. The section is also actively involved in negotiations concerning H.B. 918 (Minchew) and S.B. 426 (Ruff). These bills deal with issues relating to appeals of determinations by the Department of Medical Assistance Services.

Elder Law Section. The Elder Law Section proposed two bills this session. Delegate Patrick Hope has introduced the first, H.B. 159, providing that in cases in which a nursing home patient is involuntarily transferred or discharged from a nursing home, the State Long-Term Care Ombudsman must be notified. Unbeknownst to the VBA before the session, a working group of interested parties has been looking at this issue for some time, but has not yet completed its work. As a result, H.B. 159 has been carried over to the 2013 session. In order to keep the work group’s feet to the fire, the VBA had Delegate Hope introduce a bill formally requiring the Commissioner of Health to convene such a work group to address this issue and directing the Commissioner to report the work group’s progress to the General Assembly by December 1, 2012.

The second bill recommended by the Elder Law Section, H.B. 1090, partroned by Delegate John O’Bannon, addresses alternative methods for determining the fair market value of real property owned by a person seeking Medicaid eligibility for long-term nursing care. The VBA has worked out amendments with the Department of Medical Assistance Services (“DMAS”) in an effort to allay DMAS’s concerns. The challenge is the fiscal impact statement that DMAS has had attached to the bill. That statement estimates that the bill will cost $1 million in fiscal year 2013 and $3 million is fiscal year 2014. The bill has yet to be heard in the House Health, Welfare and Institutions Committee.

Back to the top of Dispatch #2 

Boyd-Graves Conference. Legislation sponsored by Delegate Manoli Loupassi and Senator Mark Obenshain on behalf of the Boyd-Graves Conference has passed in the chambers where they were introduced. In particular, H.B. 102 and S.B. 59, requiring a moving party to post bond only for temporary injunctions, rather than both temporary and permanent injunctions, have passed in the House and Senate, as the case may be, and await further consideration in the other chamber after cross-over. Also, H.B. 104 and S.B. 60, which provide that no notice to take depositions is required to be served on a defendant in default in a divorce proceeding, have passed in the chambers where they were introduced.

H.B. 451, introduced on behalf of the conference by Delegate David Toscano, has passed the House. This bill provides that a parent who does not consent to the adoption of the parent’s child, but whose consent to the adoption is required, shall be appointed counsel if such parent is determined to be indigent. 

Virginia Family Law Coalition. Two bills introduced by Delegate Salvatore Iaquinto on behalf of the coalition have passed the House. H.B. 282 requires that every decree of divorce or annulment contain a notice alerting the parties that the final decree may not necessarily serve to revoke the designation of the other party as a beneficiary in a contract providing for a death benefit. H.B. 283 provides that a party in a suit for divorce, annulment, separate maintenance, child custody, or visitation may be ordered to maintain any existing life insurance policy on either spouse or designate as beneficiary the child or children of the parties of the other party, and that the court may allocate the cost of the premiums of such insurance between the parties.

The coalition has been actively involved in supporting, opposing, or seeking necessary changes to more than 20 other family law bills that have been introduced in this session.

Back to the top of Dispatch #2
 

Virginia Alternative Dispute Resolution Joint Committee. Delegate Michael Webert is carrying legislation, H.B. 368, as requested by the Joint Committee, dealing with tax credits for mediators. The bill was reported from the House Finance Committee and has passed the House.

Commission on the Needs of Children. Upon the recommendation of the Commission, the VBA is supporting Delegate Gregory Habeeb’s H.B. 223. This bill provides that a juvenile adjudicated delinquent of an offense that would be a felony if committed by an adult may petition the Supreme Court to issue a writ of actual innocence on the basis of the biological or non-biological evidence regardless if his plea or the classification of the felony for which he was adjudicated delinquent. The bill has yet to be heard in committee.

Also, the VBA has been lobbying alongside the Commission and other representatives in opposing H.B. 718 (Kilgore) and S.B. 419 (Stanley). These bills would give prosecutors the discretion to have juveniles charged with certain offenses transferred to the circuit court for trial as an adult. H.B. 718 was reported from the House Courts of Justice Committee, but S.B. 419 was defeated the Senate courts of Justice Committee.
 

Dispatch #1

2012 VIRGINIA GENERAL ASSEMBLY SESSION CONVENES

The 2012 Virginia General Assembly convened on January 11th for its scheduled 60-day session. Generally a time for glad-handing and a first-day-back-at-school lightheartedness, the mood on the first day of session took a decidedly different tone on one side of the Capitol. The House of Delegates, with its solid 67 percent Republican majority, quickly completed its organizational tasks – administering oaths, welcoming new members, electing officers and announcing committees, electing pages, etc. It was much the same in the Senate – until it was time to vote on new Senate Rules and address the report of the Committee on Committees.

The Virginia Senate enters the 2012 Session with a 20-20 split between Democratic and Republican members – and a presiding officer, Virginia’s Republican Lieutenant Governor. The new rules proposed by the Republican members called for a number of changes from the previous session’s rules which gave the GOP firm control over committees – including chairmanships and the number of members on the committees apportioned to each party. They also held firm to the contention that the Lieutenant Governor has the power to break tie votes on organizational matters as well as legislation.

Extensive debate, generally civil, yielded results that were foregone conclusions. Republicans now hold the chairmanships of all 11 Senate committees and Democrats hold majority representation in only one – as described by Richmond Times-Dispatch reporter Jim Nolan – “the less-than-sought-after local government committee.” The article also notes that 11 Democrats were removed from previous committee assignments and Republicans were given strong majorities on both the Commerce and Labor and Finance Committees. Slim GOP majorities are now found on both the Courts of Justice and Education and Health Committees – where controversial legislation dealing with gun laws and abortion will be heard.

Democratic Senator Donald McEachin noted that his lawsuit (filed before the session) challenging the Lieutenant Governor’s tie-breaking authority is still pending and there are other actions the party might take. As quoted in the Times-Dispatch article, McEachin said, “Stay tuned.”

Rules of Evidence and Legal Aid Funding

The Virginia Bar Association (VBA) again is pursuing a number of legislative initiatives to improve the law and the administration of justice in the Commonwealth. Of particular importance this year, the VBA, through its work on behalf of the Boyd-Graves Conference, will urge the General Assembly to adopt the Rules of Evidence, as approved by the Supreme Court of Virginia. Senator John Edwards is the patron of the Senate bill (SB 94) and Delegate Manoli Loupassi the patron of the House bill (H.B. 101) to adopt these rules. Under the legislation, the rules would take effect July 1, 2012.

The VBA is also supporting the efforts of Legal Services Corporation of Virginia (“Legal Services”) to increase funding for legal aid through two initiatives. The first, H.B. 100, a bill patroned by Delegate Loupassi, would repeal the statute that prohibits the Supreme Court of Virginia from implementing a mandatory interest-on-lawyer-trust-account (“IOLTA”) program. The second, which takes the form of budget amendments sponsored by Delegate Dave Albo and Senator Tommy Norment, raises the filing fee in civil cases by $4. These efforts are intended to address significant funding losses suffered by Legal Services as a result of federal budget cuts and a significant reduction in IOLTA revenue in recent years (interest paid under IOLTA has declined from $4.6 million in 2007 to $680,000 in 2011). These funding losses have occurred at the same time that the number of individuals living in poverty and in need of legal services has increased dramatically.

The VBA is also prepared to have a strong voice in any discussions in the Virginia General Assembly involving judicial vacancies and judicial boundaries. The shortage of judges is a critical issue facing our court system and the VBA will seek every opportunity to urge legislators to address that problem.

 Other Legislative Initiatives

The VBA sections and affiliated organizations worked hard this year to formulate legislative proposals to improve Virginia law. The VBA’s Board of Governors, upon the recommendation of its various sections and affiliated organizations, approved the introduction of the following bills in the 2012 session:

Wills, Trusts & Estates Section, A number of bills recommended by this section would improve trust and estate administration in Virginia, thereby making Virginia a more attractive state to establish trusts.

S.B. 180, patroned by Senator Richard Stuart, protects a trustee who acts in accordance with the directions of a third party who the settlor has expressly authorized to direct the trustee in the trust instrument. Another bill patroned by Senator Stuart on the VBA’s behalf, S.B. 11, gives the settlor, who is also a beneficiary, the same spendthrift protections as other beneficiaries under a self-settled spendthrift trust.Senator Stuart is also introducing two other bills on behalf of the VBA, which, as of this date, do not have bill numbers. One of those bills provides that a person who seeks to have a body exhumed for the purpose of proving a biological relationship through genetic testing, and thereby establish a property right under a will, trust or other instrument, must show a reasonable possibility of such biological relationship. His other bill provides that a settlor’s creditors are not permitted to compel a trustee to exercise a discretionary power to reimburse the settlor for having paid incurred taxes on trust income legally taxable to the settlor.

Senator John Edwards is also carrying a number of Wills, Trusts & Estates Section bills on behalf of the VBA. S.B. 110 authorizes the trustee of an irrevocable trust to appoint all or part of the principal or income of a trust to a second trust for the benefit of the beneficiaries of the original trust. Another bill partroned on behalf of the VBA by Senator Edwards, S.B. 108, would amend the Uniform Power of Attorney Act to expressly provide that an agent who misuses a power of attorney with fraudulent intent is subject to prosecution for embezzlement. Finally, Senator Edwards’ S.B. 109 would clarify the provision in Virginia’s land trust statute (Va. Code § 55-17.1) concerning how successor trustees are appointed.

Business Law Section. Senator John Watkins has introduced S.B. 50 on behalf of the VBA. This bill includes a number of recommendations of the Business Law Section to improve and update provisions of the Virginia Stock Corporation Act, Virginia Non-Stock Corporation Act, and Virginia Limited Liability Company Act. In particular, the bill (i) removes duplicative provisions addressing remote participation in meetings, (ii) prescribes requirements when less than unanimous consent of shareholders is required, (iii) specifies that original share transfer books are prima facie evidence of who is entitled to examine the shareholders list, (iv) specifies that the articles or bylaws may prescribe qualifications to be a director, (v) clarifies that only a new amendment set out in a restatement of articles of incorporation require shareholder approval, (vi) permits public corporations to satisfy the requirements for providing financial statements to shareholders entitled to appraisal rights in any manner permitted by the U. S. Securities and Exchange Commission, (vii) removes the ability of a corporation to adopt a proposal to dissolve after a court has entered a purchase order, and (vii) authorizes members to rescind the dissolution of a limited liability company. The bill also includes certain technical amendments.

Elder Law Section. Delegate John O’Bannon is patroning two bills recommended by the VBA’s Elder Law Section. H.B. 1087 provides that in cases in which a nursing home patient is involuntarily transferred or discharged from a nursing home, a copy of the written notice of such transfer or discharge shall be sent to the State Long-term Care Ombudsman at the same time such notice is sent to the patient. Delegate O’Bannon’s H.B. 1090 provides that real estate “fair market value” for purposes of Medicaid eligibility means (i) the tax assessed value, (ii) the appraised value, or (iii) the sales price in an arm’s length transaction. This bill

2014

Legislative agenda (PDF)

Post-crossover report

Bill progress at a glance (updated
M-W-F during the session)

Full judicial funding
Virginia Judicial Workload Assessment Report (PDF)
Resolution signed by 9 statewide bars (PDF)
Letter to lawmakers and executive branch (PDF)
President's In A VBA Minute
News release

2013

Legislative update (mid-March)

Legislative update (mid-February)

Bill progress at a glance

Legislative agenda

Agenda (table format)

Statement on Gov. McDonnell's proposed budget amendment concerning judicial vacancies

2012

2012 VBA legislative agenda

Updates on 2012 Virginia General Assembly action

Legislative progress at a glance


VBA social media channels

Follow our tweets @VABarAssn for updates on Association and legal news.

Follow us on Twitter

Like us on Facebook

Discuss mutual interests on LinkedIn

Visit our YouTube channel

 

Contact us: The Virginia Bar Association, 701 E. Franklin St., Suite 1120, Richmond, VA 23219      Phone: (804) 644-0041       Fax: (804) 644-0052      Email: thevba@vba.org
© 2010-2014 The Virginia Bar Association. All rights reserved.