Election Law and Government Ethics

Christopher R. Nolen *
Jeff Palmore **

The last two years have produced modest “tweaks” to Virginia’s election laws. Most notably, 2011 ushered in the decennial tradition of reapportionment and redistricting. This article surveys developments in Virginia election law for 2010 and 2011 and focuses on those statutory developments that have significance or general applicability to the implementation of Virginia’s election laws. Consequently, not every election-related bill approved by the General Assembly is discussed.

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Family Law

Ronald R. Tweel *
Elizabeth P. Coughter **
Jason P. Seiden ***

Over the last several years, the General Assembly (“GA”) has passed and the governor has signed some significant, but not major, pieces of legislation regarding family law. The most significant piece of legislation on the subject was passed in the 2011 legislation session, resulting from a decision by the Supreme Court of Virginia that reversed twenty-five years of practice and decisions of trial courts and the court of appeals concerning title classification and allocation of debts.

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Local Government Law

Andrew R. McRoberts *

With this article, for the first time, the University of Richmond Law Review includes a survey of Virginia local government law in its esteemed Annual Survey of Virginia Law, now celebrating its twenty-sixth anniversary of publication. This article is intended to be an ?annual? survey and accordingly discusses decisions by the Supreme Court of Virginia from June 2010 through June 2011 and bills passed by the 2011 Virginia General Assembly, which affect local government law. Not every Supreme Court of Virginia case involving local government is discussed. Some cases which have local governments or their officials as parties do not involve ?Virginia local government law? in its purest sense but rather real property, contracts, employment, civil procedure, or some other area of the law in which the governmental nature of the party is incidental or at best secondary. Those cases are omitted. Instead, this article includes cases in which the underlying substance of the law dealt with topics essential to the operation of government—e.g., taxation, legislative immunity, adoption of ordinances, and zoning.

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Taxation

Craig D. Bell *

This article reviews significant recent developments in the law affecting Virginia taxation. Each section covers legislative changes, judicial decisions, and selected opinions or pronouncements from the Virginia Department of Taxation and the Attorney General of Virginia over the past year. Part One of this article discusses legal developments regarding taxes imposed and administered by the Commonwealth. Section II addresses changes made to Virginia corporate and individual tax law, Section III covers legal changes pertaining to retail sales and use taxes, and Section IV covers changes to state tax administration. Part Two of this article documents legal developments of local government taxes. Sections V and VI address changes to the law regarding Virginia real and personal property taxes. Section VII discusses judicial and legislative changes regarding Virginia?s business professional occupation license tax. Section VIII addresses several miscellaneous local taxes and tax administration applicable to local government taxing authorities.

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Wills, Trusts, and Estates

J. William Gray, Jr. *

Katherine E. Ramsey **

The 2011 session of the Virginia General Assembly enacted wills, trusts, and estates legislation that: (i) eliminated a potential federal transfer tax trap in inter vivos marital trusts, (ii) interpreted transfer tax formula clauses in light of recent changes in federal law, and (iii) adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. Three other legislative enactments and seven opinions of the Supreme Court of Virginia during the twelve months ending June 1, 2011, addressed issues affecting this field. In addition to addressing those developments, this article summarizes a recent federal district court opinion that dealt with a significant issue in Virginia trust administration.

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Bulls, Bears, and Pigs: Revisiting the Legal Minefield of Virginia Fraudulent Transfer Law

Isaac A. McBeth *
Landon C. Davis III **

With the state of the Virginia economy as it is, the law surrounding fraudulent transfers has never been more relevant to members of the Virginia Bar than at the present. There is an old investment truism which states, “Bulls make money, bears make money, pigs get slaughtered.” Admittedly, this quip is more applicable to a financial maverick on Wall Street than it is to a Virginia general practitioner. Nonetheless, it hints at the very real truth that those who are reckless with their property run the risk of losing it. Much in the same way, an attorney who recklessly structures a transfer of a client’s property without giving due regard to risks imposed by fraudulent transfer law could wreak disastrous consequences on the client and find herself in an ethical dilemma. Unfortunately, Virginia’s body of fraudulent transfer law is less than well-defined and acts as a legal minefield—out of sight and capable of harming the unwary who traverse it.

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OSHA Enforcement of the “As Effective As” Standard for State Plans: Serving Process or People?

Courtney M. Malveaux *

Since the passage of the Occupational Safety and Health Act of 1970 (“OSH Act”) in 1971, the federal Occupational Safety and Health Administration (“OSHA”) has perplexed many states tasked with its enforcement. Congress passed the OSH Act to nationalize workplace safety and health standards. It empowered OSHA to enforce these standards, either on its own or through an approved workplace safety and health plan operated by a state (“State Plan”). The OSH Act provides matching funds and oversight for states choosing to operate their own programs on the condition that participating states operate a regime that is “at least as effective as” that of federal OSHA.

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A Vanishing Virginia Constitution?

The Honorable Stephen R. McCullough *

Virginia’s constitution was first established in 1776, when the rift with the mother country thrust upon Virginia colonists the obligation to establish their own government. A rather modest affair when compared to our modern Virginia Constitution, Virginia’s initial charter of government consisted of two documents: a Declaration of Rights and a constitution proper that set forth the more mechanical aspects of operating a government. Chiefly the handiwork of George Mason, the Declaration of Rights called for, among other protections, the separation of powers, religious liberty, freedom of the press, and protections for persons accused of crimes. One writer notes that this “Declaration of Rights is, indeed, a remarkable production. As an intellectual effort, it possesses exalted merit. It is the quintessence of all the great principles and doctrines of freedom which had been wrought out by the people of England from the earliest times.” Although the Virginia Constitution has evolved significantly over the more than two centuries that followed, some of the provisions in the current constitution remain unchanged from the quill of George Mason.

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Virginia Should Abolish the Archaic Tort Defense of Contributory Negligence and Adopt a Comparative Negligence Defense in Its Place

Peter Nash Swisher *

Contributory negligence is conduct on the part of the plaintiff, contributing as a proximate cause to the tortuous harm the plaintiff has suffered, which falls below the standard of care to which the plaintiff is required to conform for his or her own protection. When contributory negligence is found, it constitutes a complete defense to the plaintiff’s negligence cause of action, even though the defendant’s negligence may have greatly exceeded the plaintiff’s negligence.

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