Work of ’09 Assembly became law July 1 « Virginia Lawyers Weekly

Work of ’09 Assembly became law July 1

By Alan Cooper
Published: July 6, 2009

Exercise of a constitutional right to petition the government or misuse of the judicial process for political gain?

Substitute Judge Westbrook J. Parker saw misuse, but the Virginia General Assembly saw exercise of a constitutional right and overwhelmingly adopted legislation that would ban Parker’s remedy for his perception of misuse.

The issue arose from the indictment of four Gloucester County supervisors and a petition signed by 40 county residents for their removal.

After Parker dismissed the indictments and the petitions, he awarded the defendants $80,000 in attorneys’ fees they had incurred in defending the actions against them. He then assessed each of the petitioners $2,000 to pay the fees.

The petitioners have appealed that ruling, but the General Assembly adopted House Bill 2465 and Senate Bill 1394, which say no one who signs or circulates a removal petition can be liable for any costs associated with the proceedings, including attorneys’ fees or sanctions imposed for a groundless legal action.

The legislation was among the most publicized actions by the General Assembly in a 2009 session that focused more on balancing the state budget than on major legislative initiatives.

Other bills that attracted considerable attention or might be of special interest to lawyers include:

• VOTER LAWS. HB 1188 and SB 848 and 1188, which contained several measures clarifying state voter laws. One permits voters to wear T-shirts, buttons and stickers supporting a party or a candidate into the polling place. The State Board of Elections had told local registrars not to allow would-be voters so adorned to cast their ballots.

Registrars interpreted the directive differently, with some all but ignoring it and others refusing to admit such voters to the polls and others providing smocks to cover up the offending messages while they voted.

Legislators concluded that the regulation was silly and enacted legislation that specifically allows such displays of support.

The General Assembly was less specific about how to remedy conflicting interpretations by local registrars about whether college students could vote in the jurisdiction where they were attending school.

The legislation eliminates a list of criteria to be used in determining a voter’s “domicile and place of abode” and replaced it with the statement: “To establish domicile, a person must live in a particular locality with the intention to remain. A place of abode is the physical place where a person dwells.”

It directs the board to “promulgate rules and regulations to ensure the uniform application of the law for determining a person’s residence.”

• PAYDAY LENDERS. HB 1709 and SB 1470 barred payday lenders from extending credit under open-end credit plans. The prohibition does not apply to liens on a car title.

• MENTAL HEALTH REFORM. Several bills were passed to clarify or expand the reform of mental health law that began in the 2008 session. HB 2396 and SB 1142 amended the Health Care Decisions Act to cover those who anticipate incapacity from dementia and persons whose mental illness periodically prevents them from making an informed decision about their care.

HB 2460 and SB 823 allow a friend, family member, employee of a community service board and others to transport a person subject to an emergency custody or detention order. Previously, those persons typically were handcuffed and transported by a deputy sheriff.

HB 2060 and SB 1083 clarified measures in the 2008 legislation that proved to be impractical or that had been misinterpreted in some localities. One spelled out that the community service board employee who attends a detention hearing does not need to be the person who prepared the pre-admission screening report, nor does the author of the report have to be present for the magistrate to consider it.

• HEALTH CARE PROVIDERS. HB 2057 expanded the expressions of sympathy that a physician can give to a patient that are inadmissible in a civil action to commiseration, condolence, compassion and apologies.

SB 1275 makes it clear that the patient-physician privilege belongs to the patient. Previously, the physician could not be required to disclose a communication but could disclose it voluntarily.

SB 1154 requires a health care provider to give a patient or his attorney the patient’s account balance or an itemized list of charges up to three times in a year at no cost.

• REPRESENTATION in GDCt. SB 2434 allows an officer in a closely held corporation to represent the corporation without an attorney in general district court when the amount in controversy is less than $2,500 and the officer has the unanimous consent of the shareholders to do so.

• REAL ID ACT. HB 1587 and SB 1431 added Virginia to 21 other states that have refused to comply with all the provisions of the Real ID Act of 2005. The bills prohibits any link to a database containing DNA, fingerprints, retinal scans or such financial records as tax returns.

• CRESPA. SB 938 transfers the registration of CRESPA settlement agents from the Virginia State Bar to the agency responsible for licensing those agents.

• MAGISTRATES. HB 1874 prohibits a magistrate from issuing a felony arrest warrant on the basis of a complaint from anyone other than a law enforcement officer without consultation with a commonwealth’s attorney or a law enforcement agent.

• TEXTING WHILE DRIVING. HB 1876 makes it illegal to compose a text message while driving, but the offense can be charged only if a police officer has another reason to stop the vehicle.

Virginia Lawyers Weekly

Work of ’09 Assembly became law July 1

POST A COMMENT

VLW Verdicts & Settlements

GET THE VLW DAILY ALERT

STAY CONNECTED WITH VLW