The University of Richmond Law Review proudly presents the thirty-first issue of the Annual Survey of Virginia Law 2016. The Annual Survey is the only legal publication that provides an update to practitioners regarding recent developments in Virginia law. Since 1985, the Annual Survey has been a guiding tool for practitioners and students to stay abreast of the recent legislative, judicial, and administrative developments in the Commonwealth of Virginia.

In this edition, the Law Review is proud to commemorate the memory of Justice Antonin Scalia. We are saddened by his loss and remain extremely thankful for his lasting impact on our nation and in the lives of the many that knew him.

This Annual Survey further includes six articles regarding recent updates in substantive areas of the law including: Civil Practice and Procedure; Corporate and Business Law; Criminal Law and Procedure; Family Law; Taxation; and Wills, Trusts, and Estates. This book also contains three essays about recent developments in Virginia regarding foreclosure, workers’ compensation, and the legal battle to save Sweet Briar College. Additionally, the Law Review is proud to include two comments written by two of its own staff members about Virginia’s filial responsibility law and lack of post-conviction relief.

The Annual Survey is traditionally the largest and most popular publication of the University of Richmond Law Review. The publication of the Annual Survey is made possible because of the generous contributions of scholarly articles written by truly intelligent and experienced practitioners and experts in these fields. I would like to thank each of them for their countless hours and efforts in putting together, writing, and reviewing such valuable contributions to the Commonwealth of Virginia. I personally enjoyed working with and speaking to them all throughout the publication process, and I am grateful for their extensive commitments.

I would like to thank John Hogan and Thomas DiStanislao for their mentorship in planning for this book during the early phases. I also thank the entire Law Review staff for their hard work, and especially Chelsea Shrader, for her constant understanding and assistance throughout the publication process. Thank you as well to the entire Executive Board for their concerted effort in fine-tuning all the details and putting this book together. I extend my sincerest appreciation to our Editor-in-Chief, Rachel Willer, for her unwavering work ethic and dedication to this book. Her collaborative and problem-solving personality has transformed several of our processes this year for the better.

Thank you as well to Glenice Coombs whose advice and expertise has not only been essential throughout the publication process, but shines every day in her willingness to produce an exceptional work product.

To my family, you have made me who I am, and I thank you for your unconditional love and guidance all throughout. Derek Molyneaux, your perpetual support and encouragement continue to guide me every step of the way, and I thank you for being my rock and my greatest blessing.

It has been an honor and pleasure to serve as Editor of the Annual Survey of Virginia Law 2016. Thank you for your continued patronage and readership.

Stephanie Serhan

Annual Survey Editor


IN MEMORIAM: Justice Antonin Scalia and the Constitution’s Golden Thread

L. Margaret Harker *

As Americans, it is our duty to remember United States Supreme Court Justice Antonin Scalia‘s unwavering commitment to the words of our Constitution—their true meaning as the Founders deliberately wrote them. Words have meaning. Otherwise, what purpose do they serve? Chief Justice John Marshall, the great Federalist and Virginian, wrote, “As men . . . generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.”

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* J.D., 2011, University of Richmond School of Law; B.S., 2006, Santa Clara University.


Civil Practice and Procedure

Christopher S. Dadak *

Continuing in the rich vein of prior Annual Surveys, this article examines developments in Virginia civil procedure and practice in the past year. The survey includes a discussion of the relevant decisions from the Supreme Court of Virginia, changes to applicable rules of practice or procedure, and new legislation, which will likely affect the practice of a civil practitioner in the Commonwealth of Virginia.

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* Associate, Guynn & Waddell, P.C., Salem, Virginia. J.D., 2012, University of Richmond School of Law; B.A., 2008, Washington and Lee University. The author thanks the editors and staff of the University of Richmond Law Review for their hard (and underrated) work and particularly Stephanie Serhan for bringing this ?book? to fruition.


Corporate and Business Law

Laurence V. Parker, Jr. *

Thanks to a 2016 amendment to VNSCA, a nonstock corporation‘s board of directors can approve an action that does not require member approval by less than unanimous written consent if it is authorized in the nonstock corporation‘s articles of incorporation and, if no director objects to the proposed action, within ten days. To permit directors an opportunity to object, the corporation must give written notice to all directors at least ten days prior to the action.

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* Shareholder, Williams Mullen, Richmond, Virginia. J.D., 2003, University of Richmond School of Law; M.B.A., 2003, The Robins School of Business, University of Richmond; B.A., 1995, University of Virginia.


Criminal Law and Procedure

Aaron J. Campbell *

In Herrington v. Commonwealth, the Supreme Court of Virginia considered whether the Commonwealth had the authority to obtain an indictment on a different charge than the one certified to the grand jury. The defendant was initially arrested and charged with possession of a controlled substance with intent to sell or distribute. At the preliminary hearing on the charge, the district court found ?no probable cause to support the element of intent to sell or distribute. The district court therefore reduced the charge to simple possession of a controlled substance and certified that charge to the grand jury. The grand jury, nonetheless, indicted the defendant with the original distribution charge. The defendant unsuccessfully attempted to quash the indictment in circuit court.

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* Assistant Attorney General, Criminal Appeals Section, Office of the Attorney General, Commonwealth of Virginia. J.D., 2009, University of Richmond School of Law; B.A., 2002, Concord University.


Family Law

Allison Anna Tait *

In the past year, Virginia courts have addressed a range of family law questions—new and old—that reflect the changing landscape of families and marriage. Questions related to same-sex marriage and divorce have begun to appear on Virginia court dockets, including an important case the Supreme Court of Virginia decided this year with respect to same-sex couples cohabiting and the termination of spousal support. Family law courts also saw shifts in gender norms—wives paying spousal support to their husbands and fathers being awarded physical custody of their children. These legal questions tested the limits of statutory language and helped to expand the legal understanding of marriage, family, and parenthood. In addition, recurring questions about entry into and exit from marriage persisted. Courts addressed varied claims relating to marriage validity, equitable distribution, separate property, spousal and child support, and visitation rights. This brief article provides an overview of some of the most salient cases, and those cases that will most likely have a lasting impact on this state‘s family law jurisprudence.

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* Assistant Professor, University of Richmond School of Law.