Annual Survey of Virginia Law 2020

Annual Survey of Virginia Law 2020

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Preface

The University of Richmond Law Review proudly presents the thirty-fifth issue of the Annual Survey of Virginia Law. Since 1985, we have provided this comprehensive resource detailing recent legislative, judicial, and administrative changes in Virginia—and not even a pandemic will stop us!

This issue begins with a tribute to the late Justice Ruth Bader Ginsburg, a true icon and champion of equal rights for all. We memorialize the Justice’s profound impact on our state as the author of the Supreme Court’s majority opinion in United States v. Virginia, which led the Virginia Military Institute to open its doors to women for the first time.

The Annual Survey of Virginia Law features five articles, each providing summaries of changes in the last year to substantive areas of the law. The topics of these updates include Civil Practice and Procedure; Criminal Law and Procedure; Employment Law; Taxation; and Wills, Trusts, and Estates. Additionally, this issue contains two essays focused on narrower topics in the law, including an analysis of the changes in redistricting law and the impact of these changes on Virginia’s redistricting in 2021, and an argument in favor of centralized funding for state trial court law clerks. Finally, we are also proud to include a student comment written by a University of Richmond Law Review staff member, which analyzes judicial treatment of the physician-only law for first trimester abortions and the recent amendment expanding the field of abortion providers.

The Annual Survey would not be possible without these authors, many of whom contribute to the Annual Survey each year, devoting their time and expertise. I am personally grateful for their patience, kindness, and dedication throughout a challenging and un- conventional year.

Many people have worked behind the scenes to make this issue possible. First, the University of Richmond Law Review has an ab- solute treasure in Glenice Coombs. Glenice, thank you for sharing your expertise and perspective with a new group of students each year. Your commitment, guidance, and hard work have been even more essential during this particularly hectic year.

To my fellow executive board members, thank you for your dili- gent and careful work in helping this book come together. In particular to our Editor-in-Chief, Lincoln Wolfe, thank you for figuring out how to keep this ship sailing when the world locked down. And to our Executive Editor, and my very good friend Michelle Hoffer, thank you for your tireless work and for always helping me stay in good spirits no matter what issues pop up.

Finally, I am immensely grateful to Alex Wood for his love and support throughout law school. Thank you for providing a break from my school life and the much-needed perspective that only a non-law student can supply.

We hope the 2020 Annual Survey of Virginia Law serves as a valuable and thought-provoking resource in your legal practice. It has been my pleasure to serve as the Editor of the 2020 Annual Survey of Virginia Law, and I thank you for your continued readership and patronage.

Jamie H. Wood
Annual Survey Editor, Vol. 55

Click here for all of our Annual Survey 2020 articles

Religious Exemptions As Rational Social Policy

Religious Exemptions As Rational Social Policy

Justin W. Aimonetti & M. Christian Talley

 

 

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Abstract

In its 1963 decision Sherbert v. Verner, the Supreme Court interpreted the Free Exercise Clause to permit religious exemptions from general laws that incidentally burdened religious practice. Sherbert, in theory, provided stringent protections for religious freedom. But those protections came at a price. Religious adherents could secure exemptions even if they had no evidence the laws they challenged unfairly targeted their religious conduct. And they could thereby undermine the policy objectives those laws sought to achieve. Because of such policy concerns, the Court progressively restricted the availability of religious exemptions. In its 1990 decision Employment Division v. Smith, the Court then abandoned the Sherbert regime altogether. Incidental burdens would no longer suffice for Free Exercise exemptions. Instead, Smith predicated future exemptions on litigants’ showing that laws unfairly targeted religious practice or granted exemptions to secular entities that were arbitrarily withheld from religious comparators. Smith’s revision, this Article contends, subtly but profoundly changed how public policy interacts with the Free Exercise Clause. Smith created a world in which religious exemptions often promote, rather than impede, rational policy. Smith’s framework helps detect laws that are rooted in animus, rather than reason, or that impede their own efficacy with gratuitous secular exemptions. Applying that insight to recent religious liberty litigation contesting coronavirus lockdowns, this Article contends that many of those suits made state responses to COVID-19 more rational. Despite the scholarly criticism religious litigants endured, their suits exposed both irrational over-enforcement of lockdown measures against religious entities and irrational under-enforcement of those measures against their secular counterparts.

Mobile Methadone Clinics: A Necessary Step in Fighting the Opioid Epidemic

Mobile Methadone Clinics: A Necessary Step in Fighting the Opioid Epidemic

Laurel E. Via

 

 

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Introduction

In the 1990s, healthcare providers began prescribing opioid pain relievers at greater rates in reliance on pharmaceutical companies’ claims that the drugs would not cause addiction. However, that turned out not to be the case. Due to the highly addictive nature of opioid pain relievers and the frequency with which they were prescribed, individual addiction rates substantially increased. Since then, opioid addiction has spiraled out of control with prescription and illicit opioid usage continuing to rise.

Prescription drugs are only part of the problem. While prescription opiates caused a wave of deaths starting in the 1990s, there have been two subsequent death waves related to opioid abuse. In 2010, the second wave began with an increase in the number of heroin overdose-related deaths. The third wave began in 2013 with increases in overdose deaths caused by synthetic opioids, including fentanyl and other illicit drugs laced with fentanyl.

A number of treatment options have been tried in response to what has now been titled the “Opioid Epidemic.” The most effective treatment for opioid dependence is methadone maintenance, which has been shown to reduce the number of opioid-related deaths and the spread of infectious disease. However, many individuals who would benefit from methadone maintenance treatment are unable to access treatment. This is due to a variety of factors, such as inadequate funding, restrictive zoning regulations, and waitlists at fixed-site clinics. Additionally, methadone can only be dispensed by a federally licensed opioid treatment program (“OTP”), also known as a “methadone clinic.” When unable to access treatment, opioid-dependent individuals are “at substantial risk for illicit drug use, criminal activity, infectious disease, overdose, and mortality.” However, when they have access to appropriate treatment, patients begin to recover in all areas of life—housing, health, employment, and education. When this treatment is combined with behavioral treatment, patients experience even better outcomes.

While individuals throughout the country lack access to methadone maintenance treatment, the issue has been extensively studied in rural communities. Individuals living in rural communities, such as southwestern Virginia and West Virginia, have higher instances of opioid addiction but fewer treatment options. Not only are rural areas experiencing a shortage of treatment facilities, but there are additional barriers to treatment in those localities that have at least one facility, such as waitlists, drive times, and transportation costs. Mobile methadone clinics have been proposed by numerous organizations and individuals—ranging from the Substance Abuse and Mental Health Services Administration (“SAMHSA”) to United States Senators and Representatives to state and local addiction agencies—as the solution to the problem of access to treatment. The facility shortage could be fixed by simply implementing the mobile clinics. More facilities would in turn reduce the number of individuals on waitlists. Drive times and transportation costs would also be significantly reduced or abolished altogether with the implementation of mobile clinics.

Annual Survey of Virginia Law 2020

Virginia’s Physician-Only Law for First Trimester Abortion: Maintaining the Unduly Burdensome Law Under Falls Church Medical Center, LLC v. Oliver and its Subsequent Amendment

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Introduction

Virginia’s physician-only law was a narrow exemption from Virginia’s general criminal ban on abortion. The general criminal ban on abortion prohibits “any person” from “produc[ing] [an] abortion or miscarriage,” and violation of this prohibition is a Class 4 felony with an “authorized punishment” of “imprisonment of not less than two years nor more than 10 years, and . . . a fine of not more than $100,000.” The physician-only law allowed for first-trimester abortions to be provided by physicians licensed by the Virginia Board of Medicine. Non-physicians, regardless of medical training, were not exempted from the general criminal ban on abortion; therefore, they were prohibited from providing abortions. In May 2019, the Eastern District of Virginia considered the constitutionality of the physician-only law in Falls Church Medical Center, LLC v. Oliver. In Falls Church Medical Center, four elective abortion providers challenged the physician-only law on the basis that it “unjustifiably limits ‘the pool of abortion providers, even while advanced practice clinicians . . . safely and routinely provide abortion care, including medication and aspiration abortion, in other states throughout the country.’” While the court initially granted the Plaintiffs’ Motion for Partial Summary Judgment, finding that “there is no genuine issue of material fact as to whether the Physician-Only Law poses a substantial burden on a woman’s access to first trimester abortion care,” just over a week later, the court vacated this decision to “facilitate the development of a full factual record that will enable the Court to better address this question.” Ultimately, while the court found that the evidence is “compelling” that advanced practice clinicians (“APCs”) can safely provide abortions, the court determined, based off tangentially related precedent, that the physician-only law was only a mere “inconvenien[ce] for some individuals,” not an undue burden. This physician-only law was purported to serve the state interest of protecting maternal health; however, a substantial body of peer-reviewed research shows there is no medical benefit to a physician providing the abortion service instead of a trained APC, such as a nurse practitioner, physician assistant, or certified nurse-midwife. While the limitation provided no medical benefit, it created a substantial burden to access to first-trimester abortions. The requirement arbitrarily and artificially reduced the field of abortion providers, which reduced access by increasing the logistical and actual cost of abortions and increasing wait time. Therefore, the physician-only law was an undue burden on abortion access. Following the decision, the Virginia General Assembly amended the physician-only law to extend the exemption to “any person jointly licensed by the Boards of Medicine and Nursing as a nurse practitioner.” The amended law expands the field of abortion providers; however, it still artificially and arbitrarily limits providers to only physicians and nurse practitioners. Thus, while the law as amended is less burdensome, it is still more burdensome than necessary to protect the health of persons seeking first-trimester abortions. Alternatively, in order to ensure only medical professionals with adequate training and experience are providing abortion services, the Virginia General Assembly should appeal the general criminal ban on abortion and instead rely on the existing scope of practice laws, which prohibit APCs from providing medical care outside their training.

This Comment seeks to critique the Falls Church Medical Center’s holding that Virginia’s first-trimester physician-only law is not an undue burden on the right to abortion. Part I is an overview of the physician-only law, discussing the historical roots of the law, the impacts of the law on access to first-trimester abortion, related laws in other jurisdictions, and a survey of research conducted on the overall safety and effectiveness of APCs as abortion providers. Part II is an overview of the Falls Church Medical Center’s three decisions. Part III is an undue burden analysis of the physician-only law, which shows, in light of the lack of health benefits of the physician-only law and the substantial burden to access it creates, the law should be found unconstitutional. Part IV analyzes the physician-only law as amended to include licensed nurse practitioners. Part V looks to Virginia’s scope of practice laws for APCs as an assurance that only medically trained persons with education, knowledge, and experience to provide first-trimester abortions will provide these abortions.

 

Inside State Courts: Improving the Market for State Trial Court Law Clerks

Inside State Courts: Improving the Market for State Trial Court Law Clerks

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Introduction

The power of state trial courts is tremendous. Charged with resolving 95% of the nation’s legal cases, state trial judges decide “the law” for thousands of litigants and criminal defendants every year, not to mention countless others impacted or bound by their decisions. Yet for decades state judges and academics have warned of a “crisis in the courts.” Many state courts today remain chronically underfunded, although they rarely ever compose more than 1% of the average state budget (and never more than 2%). State chief judges have decried the waning quality of state courts, arguing that inadequate funding has led to undue court delays, case backlogs, and poorly decided cases, placing state courts “at the tipping point of dysfunction.”

Yet despite nearly four decades of court funding litigation and legislative debate, state court reform efforts remain limited in many states by one sobering and largely neglected fact: local government is in the driver’s seat on funding state trial courts and determining the quality of justice. When court funding is decentralized, and local communities must pay for their own court services, the property and income wealth of the community determines the quality of justice in that particular area. Unsurprisingly, decentralized state court funding systems have tended to benefit only courts in affluent communities, where the highest tax revenue and per capita income base predominate, while courts in poorer locales are often left lacking sufficient funding and resources to operate efficiently. This fact casts a long shadow over the ideal of equal opportunity to justice. This Article refracts the problem of local state court funding through one vitally important, but until now unstudied, judicial resource: state trial court clerkships.

Judson R. Peverall *

 ∗ Associate Attorney, ThorsenAllen LLP, Richmond, Virginia. J.D., University of Richmond School of Law; A.B., The College of William and Mary. As a former law clerk to the Fifteenth Judicial Circuit of Virginia, the author dedicates this Article to the Honorable Charles S. Sharp, Michael E. Levy, and Victoria A.B. Willis, the judges who helped him begin his legal career and understand the value of the clerkship to the judiciary—in Virginia and beyond. 

 

Readying Virginia for Redistricting After a Decade of Election Law Upheaval

Readying Virginia for Redistricting After a Decade of Election Law Upheaval

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Introduction

Henry L. Chambers, Jr.*

Until Virginians approved Constitutional Amendment 1 in November 2020, the Virginia Constitution required the General Assembly redraw Virginia’s state legislative and congressional electoral districts every ten years in the wake of the national census.1 Redistricting culminated in the adoption of legislation redefining those districts. If the redistricting process had worked as intended after the 2010 census, electoral districts would have been redrawn and adopted by the General Assembly in 2011, approved by the Governor, and used for the ensuing decade. The redistricting process did not work as the Virginia Constitution contemplated. The General Assembly redrew, and the Governor approved, state Senate and House of Delegates districts in 2011. The state Senate districts remained substantially unchanged during the 2010s. Conversely, pursuant to litigation, a court-appointed special master  redrew many of the House of Delegates districts the General Assembly had drawn in 2011. The current House of Delegates districts were finally fully implemented in 2019. The General Assembly redrew, and the Governor approved, Virginia’s congressional districts in 2012, one year after the Virginia Constitution mandated. Pursuant to litigation, a court-appointed special master redrew multiple districts in that plan. The current congressional districts were finally fully implemented in 2016.

The chaos surrounding the post-2010 census redistricting process has led to uncertainty regarding the post-2020 census redistricting process. The last redistricting process helped trigger a constitutional amendment that gives primary redistricting responsibility to a newly created Virginia Redistricting Commission (“VRC”). The Virginia Constitution now requires the VRC redraw electoral districts in the wake of the 2020 census, approve the districts by supermajority, and submit them to the General Assembly. The General Assembly must enact the VRC’s redistricted maps without changes before the new districts can be used. The Supreme Court of Virginia would draw the districts if the VRC could not agree on maps to submit to the General Assembly or if the General Assembly declined to approve the VRC’s maps. The Governor of Virginia no longer has any role in redistricting.

Post-2020 census redistricting is uncertain because the substantive law of redistricting has changed over the last decade. The laws that governed redistricting a decade ago—the Virginia Constitution, the Fourteenth and Fifteenth Amendments, and the Federal Voting Rights Act—will govern redistricting in 2021. However, significant legal developments in the last decade have changed and clarified the doctrine regarding those enactments. For example, the Supreme Court of the United States deemed part of the Voting Rights Act unconstitutional, releasing Virginia from compliance with the Act’s preclearance requirement to which Virginia had been subject for over fifty years. Preclearance required certain jurisdictions to ask permission from the United States Department of Justice (“DOJ”) or the United States District Court for the District of Columbia before using new election laws or making voting changes, such as using new redistricting maps to ensure those changes did not harm the rights of minority voters. That change may significantly alter how race is considered in redistricting. Whatever entity redraws the Commonwealth’s electoral districts in 2021 will need to comply with fewer rules than the General Assembly did a decade ago, but that may not make redistricting easier.

The General Assembly was aware of the complexity surrounding 2021 redistricting and used its 2020 session to prepare. It passed legislation directing how electoral districts are to be redrawn and approved and sent the aforementioned constitutional amendment to voters for approval. The new legislation is sensible and addresses some issues of partisanship and race in redistricting but does not fully address the changes in the law of redistricting over the last decade that might affect the substance of the upcoming redistricting. The General Assembly may use its 2021 session to address lingering issues. However, it should have considered and resolved those issues in 2020. Addressing lingering issues in the 2021 session, as the redistricting process begins, may be deemed contrary to an attempt to eliminate politics from the redistricting process.

This Essay considers the changes in redistricting law that have occurred since Virginia redrew its electoral districts after the 2010 census, what those changes might mean for Virginia’s redistricting in 2021, and how the General Assembly did and did not address those changes in its 2020 session. Part I discusses the legal regime in place for redistricting after the 2010 census. Part II notes how the General Assembly redistricted after the 2010 census. Part III explains how the law of redistricting has changed since Virginia last redistricted. Part IV analyzes how the General Assembly used its 2020 session to prepare for redistricting in 2021, noting the issues it addressed and those it did not address. 

*Professor of Law, University of Richmond School of Law. The author thanks Joleen Traynor and Zanas Talley for their research assistance.

 

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