Monday, January 31, 2011

Virginia and Florida healthcare rulings nearly identical

Judge Vinson in the federal court for the Northern District of Florida has declared the federal health care law unconstitutional and void in total.  Opinion here.  The Florida case began with much broader and more numerous grounds for the unconstitutionality of the law than the other successful lawsuit (for the time being) in Virginia. 

Judge Vinson, in October, dramatically reduced the scope of the Florida lawsuit, but allowed it the case to continue on two major grounds.  Opinion here.

1. Did the health care reform package violate the constitution in imposing additional unfunded burdens on the states through Medicaid?;
2. Is the individual mandate unconstitutional?

The largest difference between the Florida and the Virginia case is the challenge based on Medicaid coverage.  This was the portion of the lawsuit that brought 26 states together in the Florida case.  The Plaintiffs in the Florida case lost this issue, it did not even appear close.  Judge Vinson makes reference to the Plaintiffs barely arguing a major legal test, and points to the critical factor that Medicaid participation by states is optional.

That being set aside, the only thing left to rule upon is the individual mandate:

In today's opinion, Judge Vinson ruled (just as in the Virginia decision) that the individual mandate is unconstitutional.

In today's opinion, Judge Vinson (just as in the Virginia decision) decided an injunction against enforcement of the law is unnecessary as declaratory judgment against the government works essentially the same person.

So what was the difference?  Severability.

Friday, January 28, 2011

So Virginia, you have been cut out of a Will . . .

So your spouse or parent has passed away with a last known home address inside the Commonwealth of Virginia.  You know there is plenty of real estate, a large amount of money, and a life insurance policy.  But there is a Will, and your name just happens to be missing (or worse the deceased specifically wrote that you were disinherited).  You could run to the courthouse and sue without an attorney, or with an attorney who has never filed a similar lawsuit, you could beg the other survivors for scraps, you could give up, OR

*you could become informed about your potential rights and consult an attorney able to explain those rights before acting.*

The following are common occurrences in which you may have additional rights.

For nearly everyone: There are multiple grounds upon which a Will can be challenged due to undue influence, fraud, or improper execution.  The deceased may not have understood what he was signing.  The Will may have been obtained with the assistance of a caretaker, who is also the primary beneficiary.  The Will may not have been signed with the proper number of witnesses, or without all witnesses present.  If a family member who had a good relationship with the deceased has been cut out of the Will, this is a good indication one of the other factors listed above applies.  Bring your facts to an attorney.  In most instances there is no legitimate basis to challenge the Will, but an attorney can help determine if there is or is not a case.  Will challenges, also often called Will contests, are usually long, expensive, and difficult to win.  

For surviving spouses:  Good news!  The Virginia General Assembly saw fit to protect the rights of surviving spouses against complete disinheritance through written laws called statutes.  These statutory rights provide for access to housing, personal possessions, some measure of support, and a percentage of the whole Estate of the deceased.  Better news!  Most of these rights provide benefits to the surviving spouse even if the deceased was in substantial debt.  Best news! If requested and pursued properly, and within the right time frame, these rights are virtually guaranteed.  These rights often apply, even if the surviving spouse and the deceased were legally separated.  A description and some details of these statutory rights will be the subject of a later post. 

Sunday, January 23, 2011

Virginia house to vote on modified loser pays rule

UPDATE:  This bill was recommended for no action by the relevant subcommittee. 1/19/11

Our legal system is like our democracy. Our legal system is the most unfair legal system, except for all the other legal systems out there.

Clients unfamiliar with the American system of civil justice are sometimes shocked to find that the winner of a lawsuit, in most instances, has to pay their own attorneys’ fees. This sometimes means that when someone has been wronged, they must suffer the extra expense of paying an attorney to obtain any measure of justice. In many other western nations the loser of a lawsuit must pay the winning side’s attorneys’ fees, but not here in the United States. This rule is strongly applied with only a few specific exceptions ( for example, if there is a specific law allowing attorneys’ fees in your type of case, or if attorneys’ fees are allowed under a contract between the parties).

Del. John O’Bannon (R - Richmond) has introduced HB1640 in an attempt to benefit defendants (the parties being sued) with a loser pays rule that provides no benefit to plaintiffs (the parties that brings the lawsuit seeking damages against the defendant(s)). This bill is a completely lopsided bill that will wreak havoc on the civil justice system in Virginia if passed in its current form.

In its shortest simplest form: HB1640, as written gives a power to defendants. This power begins with an offer made by a defendant to a plaintiff to have judgment entered against the defendant for a specified amount of money. If the plaintiff then rejects that offer, goes to trial, and loses (or wins a judgment for less than the offer from the defendant), the plaintiff must then pay all of the defendants “costs.” The statute specifies costs as including expert witness fees, court reporting fees, and attorneys’ fees almost all of which would normally not be compensable.


Friday, January 21, 2011

Ethical benefits of a judicial foreclosure system

On January 8, 2011 I addressed the potential legislative shift in Virginia from a non-judicial foreclosure system to a judicial foreclosure system here.  I made a reference to an ethical benefit of the judicial foreclosure system explained below.

If Virginia moves to a judicial foreclosure system the Rules of Professional Conduct will augment the seriousness with which attorneys dealing with foreclosure situations marshal facts and argument.  Judicial foreclosure will require that attorneys present documents to and appear before Circuit Courts.  Under the RPC Circuit Courts constitute tribunals.

RPC 3.3 governs the duty of candor that an attorney must show toward a tribunal.  Most importantly an attorney may not present facts or law which the attorney knows to be false, and an attorney must correct facts when the attorney discovers their falsity after presentation.  For a judicial foreclosure system this means the attorney must do some good faith work to ensure the truthfulness of documents submitted and statements made to the court potentially preventing problems like “robosigning.”

Just as important, when an attorney appears before the court without the opposing party, such as the distressed homeowner present, the attorney is required under RPC 3.3(c) to disclose facts to the court that will assist the judge even if it could potentially harm the attorneys’ client’s position.

Wednesday, January 19, 2011

The Richmonder: Limiting the Attorney General's use of Civil Investigative Demands

Hear in their own words what Senators McEachin and Petersen have to say about their bills to limit the Civil Investigative Demand powers of the Attorney General.
Referenced in this previous post.

Thanks to the Richmonder for doing Yeoman's work in gathering the video.

The Richmonder: Limiting the Attorney General's use of Civil Investigative Demands

Sunday, January 16, 2011

Sen. McEachin proposes to eliminate powers of the Attorney General

UPDATE:  Narrower proposal offered by Sen. Chap Petersen
UPDATE2: McEachin gives up on Civil Investigative Demands Here

As suggested in the Spring of 2010, Sen. Don McEachin (D - Richmond) has proposed a bill to eliminate the power of the Attorney General of the Commonwealth of Virginia to issue civil investigative demands [CID] in cases of suspected o fraud on the taxpayers. 

SB1314 takes away all court enforceable investigative authority from the AG until after a lawsuit is filed.  It does not water the subpoena process down or impose limitations.  Instead, the bill completely eliminates the process and the nine statutes underlying the process.  Pretrial investigative authority will be limited to that which the AG can gain voluntary compliance. 

At this point, many people know about the AG's attempt to obtain documents through this civil investigative demand from the University of Virginia.  Unfortunately Sen. McEachin's heavy handed attempt to put a check on the current AG's power will have the unintended consequence of leaving Virginia less able to properly exercise its rights under the Virginia Fraud Against Taxpayers Act [FATA]. 

Friday, January 14, 2011

Virginia HOA’s to gain more cost effective control over unit owners under potential new legislation

Updated January 14, 2011 - companion bill

Home Owners Associations [HOAs] are private organizations designed to provide common benefits to unit owners and maintain preferable standards in the community to ensure higher property values.  To maintain preferable standards a mixture of private contracting and public laws have been enacted to control the procedures  for enforcing maintenance standards.  

Although I could criticize these procedures from a myriad of perspectives, on the whole they present a generally fair system.  The one major deficiency is lack of available affordable judicial intervention. 
SB1327 has been offered by Sen. Mark Herring (D - Leesburg) as an attempt to make the Court system more accessible when there is an alleged problem with architectural guidelines.  The problem is it makes the court system more accessible to HOA’s without similar accessibility for homeowners. 

Thursday, January 13, 2011

Legal privilege for journalists, coming to a Commonwealth near you?

Most people have heard of attorney-client privilege or doctor-patient privilege, maybe even priest-penitent privilege.  If Del. Barbara Comstock (R - McLean) has her way, Virginia may be about to create a journalist-informant privilege under Virginia law. 

As of January 13, 2011 there is nothing in the Virginia code or common law that appears to protect a journalist from having to reveal sources if compelled to do so by court order, such as a subpoena or search warrant.  If HB2199 goes into effect a privilege will be created where one previously did not exist. 

Looking over the provisions, the privilege that would apply does have exceptions in extreme cases dealing with serious crime in which there is no other source of the information.  At the same time essentially all communications between sources and journalists will be afforded broad protections even though there is no existing or previous contractual or fiduciary relationship with the source such as in an attorney-client context.

Further, the way the statute is drafted there is a gaping loophole.

Tuesday, January 11, 2011

Virginia’s child custody landscape may be changing

If two bills introduced in the 2011 General Assembly session are passed major substantive and procedural changes are in store for future child custody lawsuits.

Del. Scott Surovell (D - Fairfax) has proposed a common sense procedural fix to a problem most people and (non domestic relations) attorneys do not know about in child custody cases.  Under Virginia law, child custody, vitiation, and child support are considered separate causes of action for which one can independently sue.  For a reason I have been yet been unable to determine Juvenile and Domestic Relations Courts make litigants, including unrepresented people (pro se litigants), file separate petitions for custody, for visitation, and for child support.  The end result is three cases that are inevitably tried at the same time, with the same parties with the same judge.  The administrative confusion and additional paperwork caused by the tracking of multiple cases causes frustration for litigants and counsel alike.

HB1807 would solve this problem by allowing parties to file all their cases within one case number with one petition.  The complexity of filing new cases will not be reduced to a minimal level but at least will allow the courts to be more accessible to people who unfortunately will have no choice but to navigate its system.

More importantly a dramatic shift to the method of designating physical custody may be in force as soon as July 2011. 

Sunday, January 9, 2011

Chap Petersen’s plan to fix the standard for temporary injunctions

Most people understand that the court system can be used to sue people for money.  Often people will show up on my doorstep asking me to ask a court to award something other than money such as declaring someone’s rights or obligations, or forcing somebody to do something or stop doing something. 
These other non-monetary remedies are generally called equitable remedies under Virginia law.  Of these equitable remedies if you want somebody to be forced to do something or stop doing something you need an injunction.  But lawsuits can take about a year in most northern Virginia Circuit Courts, and sometimes longer.  If you need the injunction now, the court can enter a preliminary injunction.  Preliminary injunctions are difficult to obtain, but for the unfamiliar attorney extremely difficult to understand procedurally.

In bill SB851, Sen. Chap Petersen (D-Fairfax) seeks to solve the most pressing question regarding preliminary or temporary injunctions.  Under Virginia law there is no controlling authority on how to define if a party seeking a temporary injunction is entitled to such injunction based on the “equities” under Va. Code § 8.01-628.  There is a standard that has been employed, a four factor test, by approximately 15 Virginia Circuit Court Judges which all rely (ultimately) on Federal District Court decisions for their origination.   This four factor test is respected outside Virginia and is taught to attorneys as black letter law for the bar exam.  Nonetheless, the Virginia Supreme Court has yet to weigh in on this four factor test and clarify “equities” for litigants.  SB851 takes the four part test and places it squarely in the code, so litigants seeking a temporary injunction no longer need to cite to 4 to 8 decisions for a Circuit Court to accept the four part test is the accepted standard.  

Here is where it gets interesting:

Saturday, January 8, 2011

General Assembly Proposals: Judicial foreclosure

If Senator Don McEachin (D-Richmond) has his way, a major shift in the method of foreclosures may be in store for residents of the Commonwealth.  The proposal submitted in SB798 would convert Virginia's current non-judicial foreclosure sale system into a judicial foreclosure sale system.

Virginia's Current system: non-judicial foreclosure.
In Virginia's current system foreclosure sales are conducted by a Trustee appointed by the lending institution but legally representing the interests of the lender, and the owner.  The Trustee must follow some formal notice requirements under Virginia law but the distressed homeowner must file a case themselves if they seek court intervention to stop or ensure fairness with the foreclosure.  The knowledge barrier to filing a new case often keeps unrepresented litigants out of the court system and allows for foreclosures to occur with less interference.

Proposed system: judicial foreclosure

Thursday, January 6, 2011

Unnecessary limitations on Virginia’s General District Courts

Most residents of the Commonwealth of Virginia will have some experience with the General District Court system at some time while they reside here.  The GDC happens to be where almost all traffic and parking matters are adjudicated in a final manner.
For those practicing outside traffic and criminal law the GDC is where small civil cases are adjudicated.  For non landlord tenant matters the jurisdiction of the GDC is limit to claims of less than $15,000.00 pursuant to Va. Code § 16.1-77(1).  If your case exceeds the jurisdictional limit it must be filed in the Circuit Court where the procedures require payment of additional attorneys’ fees by an exponential factor, and almost a year of extra time to get to trial.

A GDC civil case can usually be concluded in 2-4 months, and even a heavily contested matter can usually be completed for $7,500 or less in attorneys’ fees.  There are certain limitations on the GDC case such as the automatic right of appeal, but even that imposes limitations on the losing party.

In short the GDC is faster and cheaper for civil litigants, and therefore a more efficient way to adjudicate claims.  The jurisdictional limit makes it difficult to adjudicate claims in the $15,000.00-$30,000.00 range in an efficient manner. 

Although I might personally advocate for a slightly higher jurisdictional limit two bills going before the General Assembly this session would raise the jurisdictional limit to $25,000.00.  The raise in the jurisdictional limit to $25,000.00 is being suggested by Sen. Don McEachin (D- Richmond) in bill SB774, and Del. Sal Iaquinto (R-Virginia Beach), in bill HB1590.

Tuesday, January 4, 2011

Is this the end of post-judgment interest in Virginia?

Post judgment interest is not just authorized but required under Va. Code § 8.01-382.  Although there are a handful of ways to calculate the rate of interest under the statute, if there is no other basis to calculate the interest, the judgment rate of interest applies.  Most civil attorneys know that the judgment rate of interest is 6%.  Many attorneys likely have not researched where that designation comes from.  Thankfully once an attorney finds their way to Va. Code § 8.01-382 the attorney finds that the judgment rate of interest is contained in another referenced statute Va. Code § 8.01-330.54.  

The generally assembly felt Va. Code § 8.01-330.54 was important enough to amend as of July 1, 2010.  Judges do not have the discretion to deviate from Va. Code § 8.01-382’s requirements for post judgment interest.

One will note that Va. Code § 8.01-330.54 was repealed as of October 1, 2010.  It was not amended, it was not reenacted in the same location.