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Criminal Law and Procedure

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It has been another busy year in the General Assembly and in the appellate courts of Virginia, especially with the recently expanded Court of Appeals. Areas in which the General Assembly made significant changes are now filtering to the appellate courts for interpretation. There have been a number of significant opinions in retroactivity of statutes, probation violations, and mental health.

Lauren E. Brice *

Michelle C. F. Derrico **

* Lauren Brice is an Assistant Public Defender with the Virginia Indigent Defense Commission’s Appellate Cohort. Prior to appellate work, Lauren was a Senior Assistant Public Defender in Arlington County specializing in youth defense. Lauren received her JD from George Mason University School of Law in 2013 and her Bachelors in Public Administration and Justice Studies from James Madison University in 2008.

** Michelle Derrico is a Senior Appellate Attorney with the Virginia Indigent Defense Commission’s Appellate Cohort. She is a double graduate of the University of Georgia, with a BSA in microbiology and animal science in 1981, and a JD in 1990.

Civil Practice and Procedure

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This Article discusses Supreme Court of Virginia and, for the first time, Court of Appeals of Virginia analysis of procedural issues. The Article further discusses revisions to civil procedure provisions of the Code of Virginia and Rules of the Supreme Court of Virginia in the last year.

The Article first addresses opinions of the supreme court and court of appeals, then new legislation enacted during the 2023 General Assembly Session, and finally revisions to the Rules of the Supreme Court of Virginia.

Christopher S. Dadak *

* Principal, Guynn Waddell, P.C., Salem, Virginia. J.D., 2012, University of Richmond School of Law.

Legal Representation of Parents in Child Dependency Cases in Virginia

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Virginia’s current system of providing court-appointed legal counsel for parents involved in child dependency cases is unsustainable and inadequate, requiring swift and dramatic action from the state government. Inadequate legal representation for parents often leads to poor outcomes for children and a lack of protections for the parents’ due process rights. While attempts to improve the system have been made in recent years, they are often quickly dismissed. The largest hindrances in the current system, this Article suggests, is that court-appointed attorneys for parents are typically underpaid, undertrained, and consequently unable to meaningfully advocate for their client. Due to the lack of adequate compensation, there is also a shortage of attorneys willing to accept appointments to represent parents in child dependency proceedings, leading to a widening gap in representation.

This Article provides an analysis of Virginia’s current system and a recommendation for improvement. In doing so, the Article begins by discussing the various federal laws that instruct the courts regarding their responsibilities in child dependency cases. This Article then addresses the process in which child welfare cases move through the court system, while noting the importance of effective lawyering on all sides in order for the courts to properly perform their duty. This Article also analyzes the workings of the current court appointment process for attorneys in child welfare cases. The Article identifies the numerous problems with the system itself and the resulting outcomes. Finally, this Article proposes a solution to improve the quality of representation to parents navigating the child dependency process in court and out of court. This solution proposes to not only increase compensation for parents’ counsel, but also to establish a state-level Commission which will work to qualify, train, and oversee parents’ counsel, while utilizing a multidisciplinary approach to provide wraparound benefits to parents engaging with the system and produce better outcomes for children and their families.

Eric J. Reynolds *

* Director, Office of the Children’s Ombudsman, Richmond, Virginia. J.D., 1999, University of Richmond School of Law.

The Current State of Abortion Law in Virginia Leaves Victims of Domestic and Sexual Violence Vulnerable to Abuse: Why Virginia Should Codify the Right to Abortion in the State Constitution†

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All people must have access to safe and legal reproductive health care—especially victims of sexual and domestic violence who can and do become pregnant because of the violence they experience. This year, the United States Supreme Court overturned Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey in Dobbs v. Jackson Women’s Health Organization. In doing so, the Supreme Court held that the Constitution does not protect the right to an abortion. Though abortion access is currently protected in Virginia, this could change with each new General Assembly session. To guard against the danger that this poses to victims of sexual and domestic violence, Virginia can guarantee the ability of every citizen to access necessary healthcare by enshrining the right to abortion in the state constitution and by enacting strong statutory protections.

Courtenay Schwartz *

* Virginia-based attorney working with the Project for the Empowerment of Survivors at the Virginia Sexual and Domestic Violence Action Alliance (the “Action Alliance”).

Wills, Trusts, and Estates

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This year’s legislative and judicial activity surrounding wills, trusts, and estates did not bring any radical shifts in the law, but rather expansions and clarifications. In the legislative realm, the bulk of the activity centered on expanding protections for parties under guardianship, with a sensitivity to safeguarding vulnerable parties from neglect or even predation. The new rules aim to increase transparency in process, preserve confidential financial information, and ensure minimums of care and contact. The rules affect these goals by providing for more transparency through notice requirements as well as required written filings. Moreover, they protect parties under guardianship by mandating a certain number of visits from a guardian or other appropriate person and creating processes to protect those under guardianship from financial or other forms of abuse. Other legislation expands available methods for funeral service providers to recoup costs and addresses spousal liability for medical expenses.

In terms of judicial activity, while the Supreme Court of Virginia and the Court of Appeals of Virginia did not hand down many reported decisions relating to wills and trusts this year, the reported and unreported opinions provided by the courts offer helpful reminders regarding the importance of clear, unambiguous drafting. Moreover, these cases help highlight the potential downsides to using boilerplate and internet-purchased templates for an individual’s estate planning. And, aside from those practical reminders, the court of appeals continued to build on Virginia’s jurisprudence on no contest clauses and provisions, settling the question of whether good faith and probable cause exceptions are permitted under Virginia law.

Allison A. Tait *

Hunter M. Glenn **

* Professor of Law, University of Richmond School of Law, Richmond, Virginia. J.D., 2011, Yale Law School; Ph.D., Yale University; B.A., Bryn Mawr.

** Associate, McGuireWoods LLP, Charlottesville, Virginia. J.D., 2017, University of Richmond School of Law; B.A., 2013, Furman University.

Taxing the New with the Old: Capturing the Value of Data with the Corporate Income Tax in Virginia

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The Commonwealth of Virginia markets itself as “The Largest Data Center Market in the World.”In 2019, the Northern Virginia market alone was the largest in the United States by inventory, with room to grow. In 2021, data centers in Northern Virginia required an estimated 1,686 megawatts of power; that number is expected to increase by 200 megawatts in the near future, reflecting data centers currently under development. For reference, in 2022, it was estimated that more than 100 homes could be powered by one megawatt of solar power in Virginia. Historically, data centers have been located in the Commonwealth due to “the fiber-optic network in Northern Virginia, proximity to Washington, D.C., relatively low-cost energy and a concerted early effort on the part of Loudoun County.” Today, these massive concrete and metal structures dot the landscape of Northern Virginia, can be found on the outskirts of Richmond, and are beginning to migrate to more remote parts of the state.

Coleman H. Cheeley *

* J.D. Candidate, 2024, University of Richmond School of Law.