2018 General Assembly Attorney Update

Dear Friend:

The 2018 Virginia General Assembly is completed. My colleagues and adjourned Sine Die on
March 10. This year, I carried 61 bills and 21 budget amendments, and I wanted to update you on some
legislation that would be most interesting to attorneys (practicing and recovering).

Judgeships

The Weighted Caseload Study wrapped up last year and provided clarity about which judgeships
the money committees would finance. I still disagree with the study because I think it has a rural bias
built into its methodology. I introduced SJ 58 to study the use and impact of law clerks on judicial
workload and work product. The Supreme Court might look at the issue.

I also introduced budget amendments to fund additional judgeships in Fairfax County Juvenile
and Domestic Relations Court and General District Court, and Prince William Circuit Court. Those budget
amendments were rejected by the Senate Finance Committee and will only be viable if we expand
Medicaid and free up additional taxpayer dollars.

In terms of Northern Virginia, we will have a few new judges. First, Jim Willett was elected to a
Prince William Circuit Court Judgeship (scheduled to be sworn in on 4/1/18). Arlington County selected
Judy Wheat for a new Circuit Court position that has not been funded yet. The Loudoun Delegation is
waiting for budget funding before finalizing their selection for Circuit Court.

In Fairfax County, Susan Earman remains on hold for the next General District Court Judgeship.
The delegation also selected Maha Rebekah Abejuela and Jonathan Frieden (in that order) for the next
two Fairfax County J&DR Court positions. One spot is funded and vacant, the other is unfunded, but
expected to be funded in the budget. Unfortunately, with Delegate Dave Albo moving on, Delegate Tim
Hugo has chosen to break with 40 years of tradition in Fairfax County, wants to deviate from our
delegation’s selection process and refused to allow either candidate to be placed on the ballot in the
House of Delegates. The remaining 24 members of our delegation are committed to the process and
see no reason to compromise. We have no interest in injecting politics or other non-merit based
processes into picking judges. That situation could resolve in two weeks or two years.

Criminal Justice
The following bills that I carried passed.

• SB 21: Misdemeanor-Felony Threshold. My legislation to raise Virginia’s lowest in the country

misdemeanor-felony threshold passed after I introduced it for the ninth time.
• SB 609: J&DR Minor Jurisdiction – My legislation clarifying that J&DR Judges may suspend,
reduce, or modify the disposition of any juvenile adjudication until such person is a legal adult
passed unanimously. There were judges in Loudoun holding that recent Court of Appeals cases
had altered this. Legislators were dumbfounded a court would take that position.
The following bills I carried did not pass.

• SB 85: Protective Order Written Record. Requires affidavit or for court to state basis for
preliminary protective orders so accused has notice of allegations.
• SB 86: Driving After Forfeiting Drivers License - Clarifies that a person may be charged with
Driving on a Revoked License only if they are driving on a public highway. KILLED IN SENATE
COURTS
• SB 93: Three Strikes - Reforms Virginia’s “Three Strikes” rule to make any person convicted of
three separate felonies eligible for parole unless convict was released between each conviction.
KILLED IN SENATE REHAB & SOCIAL SERVICES
• SB 94: Expungement Clarification - Clarifies that traffic offense acquittals are potentially eligible
for expungement. KILLED IN SENATE COURTS
• SB 607: Sexting – Reduces penalty for consensual “sexting” between minors to a Class 1
Misdemeanor instead of felony child pornography. ROLLED INTO SB 168 AND KILLED IN HOUSE
COURTS
• SB 608: Prohibition on Expungement Waivers - Prohibits prosecutors from demanding
expungement waivers before charges are dismissed. PASSED THE SENATE AND KILLED IN HOUSE
• SB 737: DUI Interlock - Abolishes restricted license activity conditions for low breath alcohol
concentration 1st offense DUI convictions if the defendant drivers with an ignition interlock
device. CARRIED OVER TO 2019
• SB 74: Hand’s Free Driving - Expands the prohibition on using a handheld personal
communications device while operating a motor vehicle to all communications unless the device
is specifically designed to allow voice and hands-free operation and the device is being used in
that manner. PASSED IN TRANSPORTATION, KILLED IN SENATE COURTS. THEN PASSED IN HOUSE
AND SENATE UNDER HB181 AND KILLED IN CONFERENCE COMMITTEE
• SB 87: Vulnerable User - Provides that a person who operates a motor vehicle in a careless or
distracted manner and is the proximate cause of serious physical injury to a vulnerable road user
is guilty of a traffic violation. KILLED IN SENATE TRANSPORTATION
• SB 88: Bike Lane – Clarifies that bike lanes cannot be used by motor vehicles to pass other
motor vehicles. KILLED IN SENATE TRANSPORTATION
• SB 621: Temporary Permits for Immigrants - Authorizes the DMV to issue temporary one-year
driver permits to applicant’s who can report income from Virginia sources on a Virginia tax
return filed with the Commonwealth within the last 12 months and fulfills all insurance
requirements of the Commonwealth. Driver privilege cards grant privileges equal to Virginia
driver’s license and permits, with the exceptions of (i) not granting voting rights, (ii) not
permitting a waiver of the driver examination, or (iii) having their issuing be contingent on the
applicant’s ability to prove legal presence in the United States. KILLED IN SENATE
TRANSPORTATION
• SB 28: DWI Study - Directs the Virginia State Crime Commission to study the causes of the
decrease over the past five years in charges for driving a motor vehicle while intoxicated in
entire Commonwealth. KILLED IN SENATE RULES AND REFERRED TO CRIME COMMISSION

There are many other bills that might be of interest to criminal justice practictioners.

• SB36 – Felony Weekend Jail Time. Court can approve weekend jail time for felonies with
Commonwealth’s Consent.
 • SB846 – Restitution Statute of Limitations. No statute of limitations on restitution awards
docketed as civil judgments. We missed this in the Senate and I have asked Governor Northam
to amend or veto.
• SB994 – Restitution Compromise. As part of the misdemeanor-felony threshold compromise,
requires notice to Commonwealth of unpaid restitution 60 days before termination of
probation, and requires court to conduct hearing on restitution before termination of probation
and monitor compliance.
• SB35 – Sentence Reduction. Allows Court to reduce convict’s sentence after incarcerated for
substantial assistance with prosecution.
• SB420 – Witnesses and Dogs. Allows a witness to testify with a certified facility dog if Court
finds it will not interfere with the trial. I did not see the need for this.
• SB526 – Trespass by Drone. Creates Class 1 misdemeanor for flying drone within 50 feet of a
home or if used to threaten, intimidate or harass. Also has provisions for Sex Offender
Registrants and protective order subjects.
• SB47 – Female Genital Mutilation. Increase penalty to Class 2 Felony for knowingly circumcise,
excise, or infibulate female gentalia.
• SB186/508 – Drone Investigations – Allows law enforcement and VDOT to use drones to
document traffic accidents and other investigations without search warrants.
• SB565 – Misdemeanor DNA Collection – Requires DNA collection for additional misdemeanors,
inspired by Hannah Graham case. Includes A&B, Domestic A&B, Destruction of Property,
Obstruction of Justice, and Trespassing.
• HB202 – Community Service. Requires courts to advise convicts of ability to discharge fines and
costs through community service.

There were also the usual number of bad bills that were killed this session along with some that
were good. For example, my legislation to prohibit operating a vehicle with a phone in your hand
passed the Senate 29-11, but failed in a conference committee although majorities in both Chambers
supported it.

Civil Justice
I introduced the following civil justice bills that passed:

• SB 89: Child Testimony in PO - Allows testimony of child witnesses outside the courtroom by
way of closed-circuit television in four additional abuse proceedings.
• SB 614: Spousal Support – Requires non-modifiable spousal support to be specifically stated in
post-divorce agreements executed after July 1, 2019. Overrules 2004 Court of Appeals case.
• SB 615: Withholding of Spousal Support – Clarifies that payroll withholding orders can include
spousal support.

The following bills I introduced did not pass.

• SB 610: Adultery Decriminalization - Reduces the penalty for adultery from a misdemeanor to a
civil penalty to abolish ability of individuals to assert Fifth Amendment privileges in civil
litigation. PASSED HOUSE 99-0, KILLED IN SENATE COURTS
• SB 611: Minimum Vehicle Coverage - Increases the minimum motor vehicle liability insurance
coverage amounts from $25K to $100K in cases of bodily injury to or death of one person, from
 $50K to $200K in cases of bodily injury to or death of more than one person in any one accident,
and from $20K to $40K for property damage coverage. This would be the first minimum
coverage increase in over 30 years. ROLLED INTO 364 (only raises property damage liability) AND
PASSED SENATE, KILLED IN HOUSE.
• SB 612: Assisted Conception/Obergefell - Updates Virginia law for assisted conception and birth
in light of legalization of same-sex marriage. KILLED IN SENATE COURTS
• SB 613: Government Witnesses – Applies Rule 30(b)(6) corporate deposition designee concept
to local governments. CARRIED OVER TO 2019, VA Municipal League agreed to work out.
• SB 616: Immunity Waiver - Removes the protection of immunity under Virginia law for a person
or entity who is sued if an insurance policy is available that would indemnify that person. KILLED
IN SENATE COURTS
• SB 617: SOL For Toxic Discovery – Extends the deadline for filing a lawsuit for injury resulting
from toxic substance exposure, RX or OTC medication to two years after the person knew or
should have known of the injury and the injury’s relation to the exposure or medication. KILLED
IN SENATE COURTS
• SB 618: No Charge Government Expert - Provides that no officer or employee of the
Commonwealth or of any locality or political subdivision within the Commonwealth who is
called to testify as an expert witness shall charge a fee for providing such testimony. PASSED
COURTS COMMITTEE, KILLED IN SENATE FINANCE
• SB 938: Child Support for Independent Contractors - Requires any person who contracts with
an independent contractor (e.g. Uber or Lyft), to submit information regarding any new
independent contractor to the Virginia New Hire Reporting Center for the purposes of income
withholding by the Division of Child Support Enforcement. CARRIED OVER TO 2019.
• SB 619: Virginia Human Rights; limits cause of action - Allows courts to award front pay in
addition to back pay as damages for discharging an employee in violation of the Virginia Human
Rights Act. STRUCK BY PATRON
• SB 620: Arbitration – Prohibits a party from appealing a denial of arbitration until after a case is
concluded. KILLED IN SENATE COURTS
• SB 627: No Home Inspection Liability Waiver - Prohibits home inspectors – who are required to
carry $250,000 of liability insurance – from contractually limiting liability. REFERRED TO DPOR
FOR REGULATIONS.
• SB 628: Notary Moral Turpitude – Prohibits an individual convicted of a misdemeanor offense
of moral turpitude to be commissioned as a notary public. KILLED IN SENATE COURTS

Here are some other bills that passed that civil practitioners might find of interest:

• HB128: Rules to Show Cause – Makes clear that Rules to Show Cause must be served with
pleadings setting forth the factual basis for the Rule.
• HB262: Protective Orders – Allows court to allocate a mobile phone as part of protective order.
• HB289: Post-Order Transfer: Prohibits Circuit Courts from transferring cases to J&DR Court for
custody matters upon resolution of divorce.
• HB304: Elder Abuse Civil Actions: Adds obtaining money by false pretenses, construction fraud
and by incapacitated persons to Virginia Consumer Protection Act.
• HB481: Juror Disqualification: Adds full-time student as grounds to defer juror service.
• HB631: Support File Access: Limits access to child & spousal support files to parties and counsel.
 • HB1023: Foreign Subpoena: Only clerk may issue Uniform Foreign Deposition Act Subpoena.
• HB1351: Child Custody: There is not presumption in favor of sole or joint custody.
• SB71: Service on LLCs: Conforms service of process on LLC’s to service on corporations.
• SB525 – Insurance Limits Disclosure: Mandatory disclosure of insurance limits regardless of
damages in auto accidents.
• SB545 – Court Reporters: Prohibits courts reporters from contracting with attorney or entity on
more than one case, from limiting attorney from using other court reporting services, charging
differential rates for parties, or providing transcripts in different formats for parties.
• SB982 – Child Support Orders: Child support guideline worksheet must be attached to order.

Please remember that you can follow my work on Twitter (@ssurovell), Facebook
(www.facebook.com/surovell), my online newsletter – The Dixie Pig – at scottsurovell.blogspot.com, or
you can send me an old fashioned email at scott@scottsurovell.org or call my office at 571-249-4484.

Finally, if you like the work I have been doing, please send me a campaign contribution. I spent
$600,000 on my last election effort and each of my contested races have cost at least $300,000. Also,
there are only about two dozen litigators left out of 140 legislators and I have always felt like attorneys
who see the consequences of our laws in a courtroom offer an important perspective on state policy.

Serving is a sacrifice, but I find it to be worthwhile. I have enclosed information about my

Northern Virginia Attorney fundraiser which I hope you can attend.

Sincerely Yours,

Senator Scott A. Surovell

36th District