Virginia Code Commission

June 23, 2010

Senator Edwards called the meeting to order and welcomed new member Delegate LeMunyon. Senator Edwards and Delegate Janis were elected chair and vice-chair, respectively.

Legislative Update

Staff provided an overview of the legislation recommended by the Virginia Code Commission that was adopted by the 2010 Session of the General Assembly.

Obsolete laws — Chapters 65, 91, and 92 repeal or clean up obsolete provisions in the Code of Virginia. (Effective July 1)

Recodification — Chapter 794 recodifies the banking and finance laws in Title 6.1 to Title 6.2. The legislation becomes effective October 1, 2010, and the Code of Virginia replacement volume containing newly enacted Title 6.2 will ship in September. Chapter 665 (effective July 1), which broadens the definition of “principal” for the purposes of the Mortgage Lender and Broker Act, also came out of the Title 6.1 recodification study. (Effective October 1)

Code Commission — Chapter 413 expands the membership of the Code Commission by an additional one or two nonlegislative citizen members, as may be recommended by the Commission, who have demonstrated legal knowledge and experience in the codification of session laws and recodification of statutes. Upon recommendation of the Commission, the Speaker of the House of Delegates makes the first appointment and the Senate Committee on Rules the second. (Effective July 1)

Electronic certification of
regulations — Chapter 407 allows electronic certification of final regulations in lieu of a physical signature. (Effective July 1)

Administrative Law Advisory Committee

Chris Nolen, chair of the Administrative Law Advisory Committee, presented the proposed 2010 Administrative Law Advisory Committee work plan. The Code Commission approved the following amended version of the proposed work plan.

Suspension of Regulations

Senate Bill 442 (2010) was precipitated by controversy surrounding the Stormwater Management Regulations. SB 442 broadened the scope of when a regulation may be suspended to include suspension after the regulation has become effective. Although the legislation failed to pass, ALAC proposes to consider issues related to suspension of regulations, including (i) separation of powers; (ii) timetables; and (iii) notice provisions, as these issues have not been reviewed in over 10 years.

Senator Edwards noted that SB 442 was killed in the Senate Committee on Rules because it was determined to be unconstitutional. Mr. Nolen responded that ALAC is interested in evaluating other states' suspension processes.

Volkswagen of America v. Smit, Commissioner of DMV

In this case issued February 25, 2010, the Supreme Court of Virginia held that § 46.2-1569(7) of the Code of Virginia, as applied by the Commissioner of the Department of Motor Vehicles, was impermissibly vague in that neither the statute nor any formal or informal administrative action adequately prescribed what conduct was prohibited. In this case, DMV had neither promulgated regulations nor adopted a guidance document regarding the “equitable distribution” requirement of § 46.2-1569(7). The court’s opinion indicates that a statute, which is constitutionally defective due to impermissible vagueness, could be cured by a regulation or other form of guidance that sets forth a clearly enunciated standard.

ALAC proposes to consider (i) absent an agency promulgating a regulation, whether the law can be overturned as vague as applied to a person and (ii) what role ALAC should play in notifying agencies.

Small Business Impact

ALAC proposes to review the application of § 2.2-4007.1 D of the Code of Virginia relating to the requirement that agencies review existing regulations to determine whether they should be continued without change or be amended or repealed to minimize the economic impact of regulations on small businesses. ALAC’s goal is to streamline the process for consistency among agencies. Issues to be addressed include the review process, certification, and publication.

Virginia Supreme Court Rule 2A:2 Notice of Appeal

The chair asked Mr. Nolen to add another issue to ALAC’s work plan. Supreme Court Rule 2A:2 requires the filing of a notice of appeal with the agency within 30 days of adoption of a regulation or service of a final order in a case decision. The notice must identify the regulation or case decision appealed from and state the following: names and addresses of the appellant, other parties and their counsel, if any; and the circuit court to which the appeal is taken. Then, under Rule 2A:4, within 30 days of filing the notice, the appellant must file a petition for appeal with the circuit court. The petition for appeal must designate the regulation or case decision appealed from, specify the errors assigned, state the reasons why the regulation or case decision is deemed to be unlawful, and conclude with a specific statement of the relief requested. The chair asked why this two-step process is needed. Also, state agencies may be interpreting the rule differently, and it was suggested that ALAC should also examine the feasibility of standardizing practices.

Virginia Administrative Code

The Commission approved a 5.9 percent price increase request from West (Thomson-Reuters) for the Virginia Administrative Code print supplements and volumes. From January 2008 to January 2009, the Producer Price Index Industry Data for Book Publishers -- Technical, Scientific, and Professional Book Publishing increased by 5.9 percent. West did not request a price increase in 2009.

The Commission also approved staff’s recommendation to replace the three Health volumes consisting of Volumes 10, 11, and 12. A fourth volume is contingently approved if the page count warrants it.

2010 Code of Virginia Supplements

Brian Kennedy from LexisNexis reported that the incorporation of the 2010 legislation into the Code of Virginia supplements is complete. The Code of Virginia database on the General Assembly’s website is expected to be publicly available by July 1. Four replacement volumes, as previously approved by the Commission, will be issued as follows: Volume 3B (Courts) with supplements and index, June/July 2010; Volume 7 (Motor Vehicles) and Compacts, July 2010; and Volume 1B (Alcoholic Beverages to Boundaries), which contains new Title 6.2, September 2010.

Revision of Title 64.1, Wills and Decedents’ Estates

David Cotter reported on the revision of Title 64.1, Wills and Decedents’ Estates. The Code Commission discussed proposed Chapters 1 (Descent and Distribution) and 2 (Rights of Married Persons) of Title 64.2. Proposed Chapter 1 consists of parts of existing Chapter 1 of Title 6.1, and proposed Chapter 2 consists of Chapters 1 (part), 2, 6, and 9 of Title 64.1.

Next Meeting

The Code Commission is scheduled to meet again on Wednesday, October 6, 2010, in Richmond.

Chairman:
The Hon. John S. Edwards

For information, contact:
Jane Chaffin, DLS Staff