Virginia Code Commission

August 16, 2000, Richmond

Legal Ethics Opinions

The executive director of the Virginia State Bar gave a brief history of the legal ethics volumes of the Code of Virginia. The Code Commission was persuaded about 10 years ago to add these volumes as part of the Code so the opinions would be conveniently available. The opinions are valuable to judges and lawyers in interpreting rules of conduct that apply to lawyers. When first authorized, there were 1,500 opinions. A few years later, the supplement became large enough to add a second volume. The size of the volume has decreased dramatically because new rules of conduct have been adopted that are clearer and contain more helpful commentary, and many of the topics have already been covered. The second volume contains only a couple of hundred opinions, which averages to about 20 per year. The information is indexed and cross referenced by rules, which makes it easy to research legal ethics.

2001 Code Pricing and Replacement Volume Proposal

A representative from Lexis Publishing proposed price adjustments and replacement volumes for inclusion in the 2001 Code of Virginia contract. Pursuant to the publisher's request, the members reconvened in executive session pursuant to § 9-77.8 B of the Code of Virginia in order to discuss, consider, review or deliberate upon information that contains proprietary information presented by the publisher of the Code of Virginia.

The commission advised the publisher that staff would analyze the proposal and a decision would be forthcoming at a future meeting.

Virginia Administrative Code Contract

The commission complied with West Group's request to reconvene in executive session pursuant to § 9-77.8 B of the Code of Virginia to present Virginia Administrative Code sales figures.

The commission deferred action on West Group's request for the commission to reconsider contract language allowing increases in cost of the Virginia Administrative Code based on the Book Publishing Producer Price Index as opposed to the Book Printing Producer Price Index.

Administrative Law Advisory Committee

The chairman encouraged any individuals who have recommendations on membership appointments to the Administrative Law Advisory Committee to submit them. Appointments will be made at the September meeting.

Title 63.1 Revision

Staff presented an outline of proposed Title 63.2 that reflected staff recommendations to divide Title 63.2 into six subtitles: Subtitle I, General Provisions; Subtitle II, Benefit Programs; Subtitle III, Licensure; Subtitle IV, Child Support; Subtitle V, Social Services Programs; and Subtitle VI, Grant Programs and Funds. The chapters containing the Departments of the Visually Handicapped and Deaf and Hard of Hearing, and Business Enterprises for the Blind are proposed to be moved into Title 51.5, Persons with Disabilities. There was discussion on whether some of the child support provisions should be moved to Title 20 or the support provisions from Title 20 be moved to Subtitle IV of Title 63.2.

Title 56 Revision

Washington Metropolitan Area Transit Regulation Compact
Staff previously raised the issue of whether to codify the WMARTC, and the commission decided to work toward codifying that compact, which is currently not set out in the Code, and placing it in proposed Title 2.2 in the area reserved for interstate compacts.

Staff outlined the development of the compact. The compact is commonly referred to as being two agreements: the WMATRC, which deals with the Washington Metropolitan Area Transit Commission, and the Washington Metropolitan Area Transit Authority Compact. In fact, the latter "compact" is Title III of the WMATR. Staff found that 1988 legislation repealed § 2 of the compact, consisting of recitals and the first two titles of the compact, and adopted a new § 2.1 in its place. However, as amendments to the compact are effective only if all signatories adopt legislation making the same changes, it had not been clear whether Virginia's 1988 changes were effective.

One codification option is to follow Maryland's and the District of Columbia's approach and set out the full texts of the commission and the authority as two sections. Another option is to assign section numbers to the various provisions in the compact, the benefit being that the individual sections could be amended without setting out the entire compact. It was pointed out that if the sections are broken out and assigned individual numbers, the changes would make Virginia's version inconsistent with the versions adopted by the other jurisdictions, making it necessary for other states and Congress to approve the revisions. A suggestion was made to add provisions that have not been adopted by other states, and, therefore, not yet part of law, with annotations that the provisions are not yet in effect. The consensus of the commission was to defer the codification issue to give staff time to work out any details and deliver findings at the September meeting.

Public-Private Transportation Act of 1995
Staff reported on the proposed transfer of the Public-Private Transportation Act of 1995 from Title 56 to Title 33.1 by creating a new Chapter 15 in Title 33.1. The majority of the changes are technical in nature, which include removing redundant language and restating certain language, such as findings of the General Assembly (§ 56-558), in an enactment clause.

Concerns were raised about the secured parties language in proposed § 33.1-440 A and the removal of the term "public utility" in § 33.1-443, and staff offered to propose alternate language to address those concerns.

Title 3.1 Revision

Staff presented a draft of proposed Chapter 1 of Title 3.2 (General Provisions). A definition section that applies to the entire title was created. The commission advised staff to eliminate the requirement in § 3.1-9 that the Commissioner of Agriculture reside in the immediate vicinity of the seat of government.

Obsolete Provisions of the Acts and Statutory Code

Division of Legislative Services interns presented findings concerning obsolete provisions of the Acts of Assembly and the Code of Virginia. Six items have been identified as obsolete and falling within the mandate set forth by § 9-77.10:2. Five of the six items were identified by examining the uncodified Acts of Assembly of the years 1970 through 1979. This 10-year period was chosen to test the research methodology developed this summer for this project.

The recommended laws for repeal are Chapter 167 of the 1938 Acts, Chapter 116 of the 1952 Acts, Chapter 144 of the 1958 Acts, Chapter 738 of the 1970 Acts, and Chapter 619 of the 1980 Acts. In addition, it is recommended that § 5.1-17 of the Code of Virginia be moved to Title 29.1.

Chapter 167 of the 1938 Acts prohibits importation or breeding of German or Belgian Shepherds in six named counties without first obtaining a special license for these types of dogs. The interns discovered that this act directly conflicts with state policy classifying dogs according to their propensity to attack rather than their breed. There was discussion about the repeal of Chapter 116 of the 1952 Acts, which makes it a misdemeanor to hunt game in Buckingham County with a rifle larger than .22 caliber, and Chapter 144 of the 1958 Acts, which makes it a misdemeanor to hunt or shoot deer with a rifle larger than .22 caliber in Halifax and Cumberland Counties. The 1952 Act is duplicated by a Buckingham County ordinance and is currently not relied upon by the county, and the counties specified in the 1958 act ban all deer hunting with rifles and do not rely on this act in prosecuting those who hunt deer with rifles. There was some reservation about repealing these two acts unless another provision gives authority for the ordinance.

Section 5.1-17 of the Code of Virginia makes it a misdemeanor to hunt, pursue, or kill animals by any means while one is in flight in an aircraft over the lands or waters of the Commonwealth. Since the section deals with hunting animals, the provision seems better suited for placement in Title 29.1.

Chapter 738 of the 1970 Acts allows counties of certain size to license private detectives. The rationale for repeal is because the licensing of private investigators is regulated by the Criminal Justice Services Board.

Chapter 619 of the 1980 Acts created the Chesterfield County Toll Road Authority. The authority has never been active and the area over which it was intended to govern is now part of the Powhite Parkway extension. The Chesterfield County transportation director confirmed that the authority is inactive; however, Chesterfield does not want the authority to be repealed.

The report was adopted as presented, with the stipulation that the repeal of Chesterfield County Toll Road Authority was contingent upon the outcome of discussion with the Chesterfield delegation. A bill will be drafted for introduction into the 2001 General Assembly Session.

Regulatory Review Processes in Other States

The Administrative Law Advisory Committee intern reported on the regulatory review processes used by other states. The states that were included in the examination were Maryland, North Carolina, South Carolina, West Virginia, Virginia, California, Florida and New York. Examination was made of the processes used to review regulations during the promulgation process, including when the proposed rule is reviewed and what analyses are a part of that review. Also examined were whether there are any entities that are allowed to veto or bar the adoption of a promulgated rule and how these entities determine the legislative intent behind the proposed rule. The review also includes what process each state uses, if any, to review existing regulations for obsolete rules. Systems used by other states varied widely, and only rarely did all of the states act uniformly in some manner.

There was discussion about whether the legislature plays a large enough role in the oversight of the regulatory process. Specifically questioned were whether there should be expanded legislative oversight and a more active role in determining if the regulations meet the legislative intent. In Virginia, legislative oversight is limited—the legislature can currently delay the regulatory process for 21 days. Also, the legislature can suspend the process with the Governor's concurrence. The first issue is educating the standing committees on their role in the regulatory process and the second is to put a procedure in place to help accomplish this role. It was pointed out that the legislature delegates the power to promulgate regulations to state agencies because it does not want to micromanage and that setting forth more procedures would slow down an already slow process. The General Assembly retains the authority to look into the issue and act on any issues legislatively.

The next meeting of the Commission is September 27 and 28, 2000, in Charlottesville.

The Honorable William J. Howell, Chairman
Legislative Services contact: Jane Chaffin