While the two percent cap on increases in the rates of private day special education providers in the Appropriation Act is not expressly prohibited by federal law, Virginia local educational agencies must nevertheless take necessary steps to provide a free appropriate public education to all children with disabilities in accordance with federal and state law.

Honorable Jerrauld C. Jones, Member, Virginia House of Delegates

Resolutions that have been adopted by Virginia localities declaring themselves exempt from any new gun safety laws have no legal effect. Localities and local constitutional officers cannot nullify state laws and must comply with gun violence prevention measures that the General Assembly may enact.

A law enforcement agency should not remove a protective order from the Virginia Criminal Information Network (VCIN) unless it receives a court order of dissolution or the protective order has expired by its own terms or by operation of law.

The Supreme Court of Virginia properly exercised its authority in providing for an administrative suspension of a law license for failure to remit annual fees within sixty days of notice of the delinquency. Therefore, Paragraph 19 of Part Six, Section IV of the Rules of the Supreme Court of Virginia does not violate § 54.1-3914 of the Code of Virginia or Article VI, § 5 of the Constitution of Virginia.

Section 37.2-808(O) of the Code of Virginia does not authorize a sheriff to delay transportation of an individual following the issuance of a temporary detention order while the community services board and the designated state facility continue to search for an alternative facility. A sheriff should commence transportation to the designated state facility without delay. If an alternative facility is identified during the period of transport, transportation should be provided to that facility instead.

A local government's use of state-owned bottomlands for a flood control project qualifies as a "governmental activity,” as defined in Virginia Code §§ 28.2-1300 and 28.2-1400, and the Commonwealth, acting through the Virginia Marine Resources Commission, may grant easements to local governments to use state-owned bottomlands for flood control projects pursuant to § 28.2-1200.1. This opinion is limited to easements in submerged bottomlands located outside the Baylor Survey.

Real and personal property owned by a single member limited liability company (SMLLC) that does not independently qualify as an "institution of learning not conducted for profit” is not eligible for a tax exemption under Virginia Code § 58.1-3606(A)(4) even though its sole owner is a non-profit organization that operates as an institution of learning.  Also, certain receipts, including gifts and contributions, of a domestic SMLLC that is classified as a disregarded entity for federal income tax purposes and solely owned by a charitable organization that qualifies for charitable deductions under the Internal Revenue Code, may be excluded from business, professional and occupational license taxation if determined by the commissioner of the revenue that the applicable requirements of Virginia Code § 58.1-3703(C)(18) have been satisfied.

A locality may adopt an ordinance that allows deputy sheriffs to engage in off-duty employment that occasionally requires the exercise of police powers. Where permitted under the scope of such an ordinance, a private school may employ off-duty deputy sheriffs to provide security at the school, subject to such reasonable rules as may be adopted by the locality or promulgated by the sheriff pursuant to Virginia Code § 15.2-1712.

The Virginia Tax Commissioner and Department of Taxation lack authority to assess interest on local sales tax revenues erroneously distributed to a locality by the Commonwealth. Such revenues are repaid to the Commonwealth by the locality, without interest, using the procedures specified in § 58.1-605(F) of the Code of Virginia.

Section 19.2-349 of the Code of Virginia does not require a Commonwealth's Attorney to collect a judgment of civil penalties, unpaid tolls, administrative fees, and court costs awarded to the operators of private toll facilities under § 46.2-819.3:1; however, a Commonwealth's Attorney may elect to do so. A court is not authorized to compel a Commonwealth's Attorney to undertake such a discretionary act, nor to undertake collection of such a monetary judgment on its own initiative. Additionally, a court proceeding for a toll violation brought under § 46.2-819.3:1 must be initiated by a summons, rather than by filing a warrant in debt. Finally, § 46.2-819.3:1(K) requires the court or the toll facility operator to report a driver's failure to pay to DMV for purposes of withholding vehicle registration and license plate issuance for the vehicle driven in commission of the unpaid toll, even if a driver enters into a payment plan for civil penalties, unpaid tolls, and administrative fees.

Section 24.2-684.1(9) of the Code of Virginia provides that the validity of a referendum petition to change the date of election of local officials from the general election in May to the general election in November must be decided by the court or authority reviewing the petition.

Honorable Scott Surovell, Member of the Virginia Senate

The issuance of an I-247A Immigration Detainer-Notice of Action, accompanied by an I-200 Warrant for Arrest of Alien, by the Federal Department of Immigration and Customs Enforcement does not obligate or authorize local law enforcement agencies to detain or arrest individuals for civil violations of immigration laws, unless the local agency has entered into an agreement with federal authorities pursuant to 8 U.S.C. § 1357(g), authorizing and directing such action.

A freestanding emergency facility that is owned and operated by a licensed hospital is not required to be separately licensed unless it falls within one of the classifications of "hospital” set forth in regulations promulgated by the state Board of Health.  Additionally, the establishment of a freestanding emergency facility is not subject to the issuance of a certificate of public need unless it qualifies as a "medical care facility” under § 32.1-102.1.

Localities adopting a loan program for the initial acquisition and installation of clean energy improvements under § 15.2-958.3 may contract with third party administrators or private capital providers to service such loans and may, by ordinance, assign to private capital providers the right to record and enforce voluntary special assessment liens securing the loans.

Representatives of a legal aid organization may access and provide information about legal resources and services to migrant workers living in a migrant labor camp owned or controlled by the workers' employer, whether or not formally appointed or retained as counsel to any particular individual or group.  Legal aid representatives who enter migrant labor camp property for such purposes do so under a bona fide claim of right, and one who enters another's property under a bona fide claim of right has not committed a willful trespass under § 18.2-119. 

Regarding application of Virginia Code § 28.1-1206(B), (1) the Virginia Marine Resources Commission may  make reasonable determinations, based on attendant facts, concerning whether a facility qualifies its owner for exemption from the payment of royalties for the use of state-owned  bottomlands; (2) a facility need not be used exclusively for the purposes for which the exemption lies; and (3) any applicable exemption applies to the entire commercial facility, including any part not used for the exempt purpose.

Remedies for inequality in public education, whether arising from the poor condition of the school's physical plant or otherwise, are available under the Equal Protection Clause of the Fourteenth Amendment of the U. S. Constitution, the Civil Rights Act of 1964, the Equal Educational Opportunities Act of 1974, and Title IX of the Education Amendments of 1972.  Relief under these laws requires proof of unequal conditions arising from discrimination against a member of a suspect class, such as race or sex.