University of Richmond Law Review

Taxation

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Introduction

This Article reviews significant recent developments in the laws affecting Virginia state and local taxation. Its Parts cover legislative activity, judicial decisions, and selected opinions and other pronouncements from the Virginia Department of Taxation (the “Tax Department” or “Department of Taxation”) and the Attorney General of Virginia over the past year. Part I of this Article addresses state taxes. Part II covers local taxes, including real and tangible personal property taxes, license taxes, recordation taxes, and administrative local tax procedures. The overall purpose of this Article is to provide Virginia tax and general practitioners with a concise overview of the recent developments in Virginia taxation that are most likely to impact their clients. However, it does not address many of the numerous minor, locality-specific, or technical legislative changes to Title 58.1 of the Virginia Code, which covers taxation.

Craig D. Bell *
Michael H. Brady **

* Partner, McGuireWoods LLP, Richmond, Virginia. LL.M., 1986, Marshall-Wythe School of Law, College of William & Mary; J.D., 1983, State University of New York at Buffalo; M.B.A., 1980, Syracuse University; B.S., 1979, Syracuse University.

** Counsel, McGuireWoods LLP, Richmond, Virginia. J.D., 2009, The University of Texas School of Law; B.S., 2006, Liberty University. Following law school, Mr. Brady clerked for Chief Justice Cynthia D. Kinser of the Supreme Court of Virginia from 2009–2011. He then served as the assistant solicitor general in the Office of the Attorney General of Virginia from 2011–2014, joining McGuireWoods LLP in 2014.

Employment Law

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Introduction

Against the backdrop of a year that saw the COVID-19 pandemic alter the American workplace in an unprecedented way, the employment law landscape in Virginia also underwent a recent sea change. Historically considered an employer-friendly state, the General Assembly shifted away from tradition by enacting several significant pieces of employee-friendly legislation, which will surely have a long-lasting impact on Virginia employees, businesses, and Virginia’s economy at large. This Article highlights these critical developments in Virginia employment law. It does not provide an in-depth analysis of every development but highlights the most significant changes affecting employers and employees in the Commonwealth. Part I of this Article provides a brief overview of the added employee protections from the federal legislation passed pursuant to the COVID-19 pandemic and discusses Virginia’s efforts in creating the nation’s first COVID-19 workplace safety mandate. Part II briefly highlights legislation enacted in 2019, which set the stage for the General Assembly’s activism in 2020, and then discusses in detail Virginia’s new employment laws. Part III then addresses two recent landmark employment law decisions from the Supreme Court of the United States of which employees and employers alike should be aware.

D. Paul Holdsworth*

* Associate, Jackson Lewis P.C., Richmond, Virginia. J.D., 2015, University of Richmond School of Law; B.A., 2012, Brigham Young University

Criminal Law & Procedure

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Introduction

This Article surveys recent developments in criminal procedure and law in Virginia. Because of space limitations, the authors have limited their discussion to the most significant published appellate decisions and legislation.

Brittany A. Dunn-Pirio*
Timothy J. Huffstutter **
Sharon M. Carr ***
Mason D. Williams ****

* Assistant Commonwealth’s Attorney, Special Victims Unit, Loudoun County Commonwealth’s Attorney’s Office, Commonwealth of Virginia. J.D., 2016, Washington & Lee University School of Law; B.A., 2013, University of Notre Dame.
** Assistant Attorney General, Criminal Appeals Section, Office of the Attorney General, Commonwealth of Virginia. J.D., 2012, William & Mary School of Law; B.A., 2007, College of William & Mary.
*** Assistant Attorney General, Criminal Appeals Section, Office of the Attorney General, Commonwealth of Virginia. J.D., 2011, William & Mary School of Law; B.A., 2008, George Mason University.
**** Assistant Attorney General, Criminal Appeals Section, Office of the Attorney General, Commonwealth of Virginia. J.D., 2017, Washington & Lee University School of Law; B.A., 2014, Transylvania University.

Civil Practice & Procedure

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Introduction

This Article analyzes the past year of Supreme Court of Virginia opinions, revisions to the Virginia Code, and Rules of the Supreme Court of Virginia affecting Virginia civil procedure. It is not fully comprehensive but does endeavor to highlight changes and relevant analysis regarding Virginia civil procedure. The summarized cases do not reflect all changes in Virginia jurisprudence on civil procedure and, at times, focus on emphasized reminders from the court on issues it analyzed. The Article first addresses opinions of the supreme court, then new legislation enacted during the 2019 General Assembly Session, and, finally, approved revisions to the Rules of the Supreme Court of Virginia.

Christopher S. Dadak*

*Associate, Guynn, Waddell, Carroll, & Lockaby, P.C., Salem, Virginia. J.D., 2012, University of Richmond School of Law; B.A., 2008, Washington and Lee University.

Annual Survey 2020: Foreword, Senator Jennifer L. McClellan

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Foreword

Senator Jennifer L. McClellan*

It seems cliché at this point to say 2020 was an unprecedented year. If 2020 were a movie, critics would have found the plot too far-fetched and with more twists than Game of Thrones. With a global pandemic, resulting economic crisis, the murder of George Floyd and resulting summer of civil unrest, the reckoning of 401 years of racial inequity, and one of the most consequential and contentious presidential elections in our nation’s history—the world seemed to turn upside down multiple times. But before COVID-19 hit Virginia, a seismic political shift hit the Virginia General Assembly that rippled far and wide across the Virginia legal landscape.

Politically, the New Year dawned in the aftershock of regime change. The blue wave that started in 2017 culminated in 2019 with the trifecta of Democratic control of the Executive Branch, House of Delegates, and Senate for the first time since 1993—when I was an undergrad at the University of Richmond interning in the Governor’s Policy Office. Elections matter.

With the shift in partisan control, hundreds of bills on just about every issue imaginable that had been bottled up in committees passed and became law. During the General Assembly’s 2020 Session, nearly 4000 bills were introduced. I introduced forty-nine of them myself (not counting commending and memorial resolutions). One reporter assumed my heavy workload was because I might have been eyeing higher office, but the overwhelming majority were bills that I had introduced before, only to see them never make it out of committee. Why wouldn’t I introduce them again now that I was in the majority for the first time in my fifteen sessions? Indeed, thirty-six of them became law, either as my own bill, as part of the budget, or through a House companion that I helped shepherd through the Senate. In short, persistence pays off.

In total, close to 1300 bills passed. And transformative legislation passed on just about every issue, including: (1) climate change and environmental justice; (2) criminal justice reform; (3) workers’ rights, such as minimum wage, wage theft, and collective bargaining for local government workers; (4) reproductive health; (5) an overhaul and expansion of antidiscrimination laws for housing, employment, and public accommodations; (6) gun safety measures; (7) repealing vestiges of Jim Crow; (8) major health-insurance policy, such as creating a state-based insurance exchange and balanced-billing reform; (9) expanding access to voting; (10) ratifying the Equal Rights Amendment; and (11) redistricting reform.

I do not envy the University of Richmond Law Review editors, trying to fit everything into an Annual Survey of Virginia Law shorter than War and Peace—but everyone loves a challenge.

The partisan realignment is only one part of the story of the seismic shift 2020 represented in Virginia public policy and law.

One hundred fifty years after the first African American men were sworn into the General Assembly,1 the 2020 General Assembly was the most diverse in its 401-year history. Glass ceilings were shattered as the House of Delegates elected Eileen Filler-Corn the first woman and first Jewish Speaker of the House and Suzette Denslow the first woman Clerk. The Senate elected Louise Lucas to be the first woman and African American President pro tempore. The House Majority Leader and Senate Democratic Caucus Chair were also African American women. The General Assembly now has forty-one women, twenty-one African Americans, four Asians, four Hispanics, and one multiracial member. Diversity matters.

We have heard since we were in elementary school that American democracy is a government “of the people, by the people, for the people,” and Abraham Lincoln etched that phrase in our collective memory in the Gettysburg Address. However, we are rarely taught just how many people were shut out of the process from the beginning. Indeed, the first Virginia Constitution adopted in 1776 restricted the right to vote to white men who owned property. The story of our Commonwealth and nation over the past 244 years has been expanding “the people” who participate in government to reflect the full diversity of those who are governed.

In my nearly fifteen years as a legislator, I have observed that the life experiences and perspectives of policymakers impact the policies and laws they produce. Expanding those experiences and perspectives ensures the government will reflect the needs, desires, and expectations of more of the governed. The General Assembly’s 2020 Session and Special Session reflect this point through a number of transformative laws passed. Here, I present two examples.

* Virginia State Senator, District 9. J.D., 1997, University of Virginia; B.A., 1994, University of Richmond.

In Memoriam: Ruth Bader Ginsburg

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With Gratitude From Our Daughters: Reflecting on Justice Ginsburg and United States v. Virginia

Prof. Meredith Johnson Harbaugh*

“What enabled me to take part in the effort to free our daughters and sons to achieve whatever their talents equipped them to accomplish, with no artificial barriers blocking their way?”

—Ruth Bader Ginsburg

On September 18, 2020, we mourned the loss of Justice Ruth Bader Ginsburg, whom many considered not just a cultural icon, but a national treasure. Among many other things, Justice Ginsburg became a later-in-life feminist “rock star,” celebrated for her rousing and impassioned dissents, her fearless defense of equality and autonomy rights, her championing of civil rights, and her persistent determination in the face of injustice. RBG’s pop-culture status led to books, movies, t-shirts, “dissent collar” accessories, and Halloween costumes. But long before she became “notorious,” she was a daughter, a mother, a law student, an advocate, a professor, a judge, and then—finally—a Justice. In this Essay, I will reflect on the opinion that manifests her life in all those roles and stands in many ways as the culmination of her life’s work: United States v. Virginia (VMI).

Scholars and observers have characterized the VMI case as Justice Ginsburg’s finest opinion—“her most celebrated case,” a “landmark,” and her “crowning achievement.” When Ginsburg herself was asked which of her decisions were most influential and made her most proud, she, too, singled out VMI. “VMI was a very special case for me,” she said. “It was a bright sign of the changing times.” Many agree that Ginsburg’s opinion in VMI was the most important opinion she wrote while on the Court.

I chose to reflect on this case, not only—or even primarily—because this Essay comes in the University of Richmond Law Review’s Annual Survey of Virginia Law. Rather, I chose to reflect on VMI because of its personal and professional significance for Justice Ginsburg and her continued significance for the Institute, its cadets, and its graduates. As I went back to study Justice Ginsburg’s life and the VMI opinion, several threads stood out, which have resonated through her life and her work, as well as the opinion. First, I was struck by how, in many ways, the narrative in the VMI case is a story about Ginsburg’s own personal and professional life. With echoes of Ginsburg’s own life and career, the VMI opinion was in many ways the pinnacle of Ginsburg’s ambitious gender equality project. Second, throughout her life and career, Justice Ginsburg had an abiding faith in the American project to become “a more perfect union,” and the Constitution’s expanding capacity to recognize and protect “We the People.” Third, from the beginning, Ginsburg’s gender equality project was aimed at dismantling what she often called “sex-role pigeonholing”—removing “artificial barriers” to what citizens could dream and achieve based on stereotyped views of women’s and men’s roles. And finally, she was unfailingly focused on future generations—our daughters (and our sons)—as the rightful beneficiaries of gender equality and the key to effecting social change over time.

In the pages that follow, I will explore these themes along with the course and significance of the VMI case. I will begin with Justice Ginsburg’s story, then turn to the litigation, the opinion, and what happened afterward.

* Professor of Law, University of Richmond School of Law. I thank the editors of the University of Richmond Law Review, especially Annual Survey Editor Jamie Wood, for the invitation and opportunity to write this In Memoriam Essay. It has been an honor and a joy to work on this piece. Gemma Fearn provided fantastic—and fast!—research for this project. This Essay is dedicated to my daughters.

The Bivens “Special Factors” and Qualified Immunity: Duplicative Barriers to the Vindication of Constitutional Rights

Amelia G. Collins

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Introduction

When courts imply a cause of action under a Bivens analysis and when they apply an immunity as a defense, they are acting in their capacity as common-law courts.[1] However, each of those mechanisms developed differently, and the Supreme Court of the United States has been hesitant to utilize one—Bivens causes of action—while generously applying the other—qualified immunity. The purposes behind each device were originally antithetical, with Bivens aiming to deter unconstitutional conduct and qualified immunity seeking to ensure courts did not deter too much. However, the Supreme Court gradually restricted its Bivens jurisprudence, from granting a cause of action unless there are “special factors,” to denying a cause of action whenever there are “sound reasons.”[2] As a result, the practical outcomes of both analyses are the same: plaintiffs cannot fully vindicate their constitutional rights and often cannot vindicate them at all. This Comment argues that, to ensure the vitality of the foundational presumption that for every legal right, there is a remedy,[3] the Supreme Court should restore its Bivens analysis to the original framework, invoking only those “special factors” recognized in the Court’s initial extensions of a cause of action to plaintiffs bringing constitutional claims.

That would mean abandoning the catch-all “sound reasons” espoused in Ziglar v. Abbasi[4] and followed in the Court’s most recent Bivens decision, Hernández v. Mesa.[5] It would mean considering only whether the issue is purely a matter of policy—that is, one that does not implicate a constitutional right—or whether the issue raises extraordinary separation-of-powers concerns. A restoration of the original Bivens framework would ensure that federal actors can be held accountable when they violate the Constitution. The court-created doctrine of qualified immunity would remain a defense, but, at the very least, the courts would reprise their proper role in the protection of constitutional rights.

Part I of this note traces the history of the Bivens cause of action and analyzes the original “special factors” that concerned the Supreme Court. Part I also outlines the purpose behind implying a Bivens cause of action for plaintiffs bringing constitutional claims. Part II includes the same analysis of the qualified immunity defense, both to its history and purpose. Part III demonstrates how the Supreme Court has incorporated the concerns addressed by qualified immunity into the “special factors” analysis, rather than acknowledging the mitigating nature of immunity defenses when examining if any “special factors” exist. Finally, Part IV argues for the restoration of the original, more limited “special factors” jurisprudence—and an abandonment of the incorporation of qualified immunity concerns—to facilitate the vindication of constitutional rights.

[1]. See Richard H. Jr. Fallon, Bidding Farewell to Constitutional Torts, 107 Calif. L. Rev. 933, 949 (2019) (“Absent statutory authorization, a right to sue for redress of a constitutional violation is a species of common law, crafted by the courts to implement the Constitution in the absence of a necessary one-to-one correlation between a constitutional right and a particular remedy for the right’s violation. Bivens’ innovations were to ground a cause of action in federal rather than state common law and to put alleged constitutional violations at the core of the right to sue.”).

[2]. Ziglar v. Abbasi, 137 S. Ct. 1843, 1858 (2017); Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 396 (1971).

[3]. Marbury v. Madison, 1 Cranch 137, 162–63 (1803).

[4]. Ziglar v. Abbasi, 137 S. Ct. 1843, 1858 (2017).

[5]. Hernández v. Mesa, 140 S. Ct. 735, 743 (2020).

Retroactive Justice: Toward Fundamental Fairness In Resentencing Crack Cocaine Offenders Under Section 404 of The First Step Act

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Introduction

In a rare bipartisan moment under the Trump presidency, Congress passed a celebrated criminal justice reform package, the First Step Act of 2018. The law was necessary to begin remedying decades of an unduly harsh and discriminatory drug sentencing regime, which ushered in the era of mass incarceration. Section 404 of the First Step Act mitigates that injustice by allowing prisoners sentenced under the 100:1 crack cocaine to powder cocaine sentencing ratio to move to be resentenced under the Fair Sentencing Act of 2010’s 18:1 sentencing ratio.

This reform holds great promise. Take, for example, the story of Gary Rhines, who is heralded as the face of the First Step Act. Mr. Rhines was a victim of society, forced to traffic drugs as a pre-teen to support parents struggling with addiction, who garnered a criminal record at a young age. Those prior offenses earned him a mandatory life sentence at the age of twenty-eight, when he was convicted as a participant in the sale of sixty-six grams of crack cocaine. Though he stood no chance of regaining his freedom, Mr. Rhines bettered himself over fourteen years in prison through drug treatment, education, and professional training. In 2019, under section 404 of the First Step Act, Mr. Rhines’s remaining sentence was vacated, and he was resentenced to time served. Unfortunately, because of the law’s problematic and arbitrary implementation, Mr. Rhines’s story is not representative of most offenders petitioning to be resentenced under section 404.

Section 404 is arbitrarily implemented because it is written ambiguously. The law leaves two open questions for courts to decide: (1) the authority of the court to impose a new sentence or modify the existing sentence, and (2) what updates in sentencing guidelines and caselaw to apply, if any. Regarding the first question, if the court decides to impose a new sentence, it conducts a comprehensive review of the prisoner’s character, background, and rehabilitation, allowing the prisoner to fully present his case to the court, as the court did in resentencing Mr. Rhines. In contrast, if the court decides merely to modify the existing sentence, it defaults to the findings of the original court, and denies the prisoner the basic human dignity to be present at his own hearing and address the court.

In answering the second question, the court must decide whether it will conduct a “time machine” resentencing and return to the legal landscape at the time of the original conviction to re-sentence, or resentence according to present law at the time of defendant’s motion. Mr. Rhines was eligible for full relief because the court chose not to use the time machine method. The court’s choice to apply the time machine method or present law weighs especially heavily on defendants who were originally sentenced as “career offenders,” and those who had drug weights attributed to them in the presentence report that were significantly greater than the amount of the offense. These issues are particularly salient be- cause they are legal issues which greatly enhance a defendant’s sentence and are areas of law that have seen significant change in the last decade.

The overlap of these two open questions has led to four different methods of resentencing prisoners under section 404. In Method I, the court imposes a new sentence, but applies the time machine approach. Method II applies the more limited procedure of a sentence modification and the same time machine approach. Method III again applies the more limited sentence modification, but rejects the time machine approach and modifies following current law. Finally, in Method IV, courts impose a new sentence and apply all current sentencing guidelines and caselaw; this amounts to a full plenary resentencing.

Daniel P. Peyton*

* J.D. Candidate, 2021, University of Richmond School of Law; M.A. Theology, 2017,

Fuller Theological Seminary; B.B.A., 2013, The College of William and Mary. I am grateful to Professors Mary Kelly Tate, Rachel J. Suddarth, and Erin R. Collins for their formative comments, expertise, and guidance. I am also thankful to my fellow members of the University of Richmond Law Review for their outstanding work in editing and publishing this Comment in spite of a pandemic. Above all, I would like to thank Kristen Peyton, for her continued support and encouragement, and Clair Peyton, my first editor.

The State Attorney General’s Duty to Advise As a Source of Law

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Introduction

Despite the broad importance of the function, scholarship examining the state attorney general’s duty to advise is remarkably thin. This could be due to the fact that state law has generally received less acknowledgment and importance in modern legal education and academia. Additionally, when looking for sources of law, legal academic discourse typically places a heavy emphasis on statutes and judge-made law, at the cost of examining all other sources of law.

This Comment seeks to help fill that gap by considering how a state attorney general’s duty to advise functions as a source of law, by proposing six general models of how the opinions of a state attorney general can alter the legal rights, duties, and relations of persons. In doing so, this Comment still seeks to acknowledge and respect the fact that each state’s individual constitution and traditions will create a unique role for its attorney general’s duty to advise in shaping state law.

Win Jordan

* J.D. Candidate, 2020, University of Richmond School of Law; B.A. with Distinction, 2015, University of Virginia. I would like to offer my sincerest gratitude to Trevor Cox and Matt McGuire for their guidance, mentorship, and kindness. Additionally, this Comment would not exist if it were not for Jan Proctor and Tish Hawkins opening my eyes to the importance of the opinions of state attorneys general. Finally, a special thanks to the fantastic editorial board and staff, including Legal Publication Coordinator Glenice Coombs, of Volume 54 of the University of Richmond Law Review for their hard work and friendship.

Prosecutors and Police: An Unholy Union

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Introduction

This Article argues that, with the once-unheard-of step of prosecutors and police unionizing together in St. Louis, and with relationships between prosecutors and police trending toward growing closer all the time, government at all levels—federal, state, and lo- cal—should consider the potential risks of such relationships. Part I explores different types of relationships that go beyond what was once the traditional working relationship between police and prosecutors, including formalized labor unions, employee association groups, friendships, and even marriages. Part II discusses the varying conflicts and deleterious effects that such close relationships cause, unduly influencing investigation priorities and other policies. Part III theorizes as to different steps that may be taken to alleviate the risks inherent in overly cozy relationships between police and prosecutors.

Maybell Romero*

*Assistant Professor, Northern Illinois University College of Law. J.D., 2006, U.C. Berkeley School of Law; B.A., 2003, Cornell University. Many thanks to Kay Levine, Ron Wright, Ben Levin, Bruce Green, Jennifer Laurin, Miriam Cherry, Jeremy Kidd, Heidi Kuehl, Carliss Chatman, Sarah Fox, Kali Nicole Murray, and attendees at both the 2019 Criminal Justice Ethics Schmooze and CrimFest 2019. The author is especially grateful to the editors and staff of the University of Richmond Law Review, who were kind enough to show me infinite patience during challenging times, particularly with the outbreak of the COVID- 19 pandemic.