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2012 Legislative Agenda of Attorney General Cuccinelli

FOR IMMEDIATE RELEASE

Contact: Brian Gottstein, Director of Communication

bgottstein@oag.state.va.us (best contact method)
804-786-5874



2012 Legislative Agenda of Attorney General Cuccinelli




RICHMOND
(January 17, 2012) - Attorney General Ken Cuccinelli's legislative agenda is below.  If you have questions or would like to do a more in-depth story on any particular bill, please contact Brian Gottstein at bgottstein@oag.state.va.us.


HIGHLIGHTED BILLS


SJ3, HJ3 - Constitutional amendment to defend property rights (second passage)

Then-Senator Cuccinelli successfully sponsored a bill in 2007 that protected homeowners, farmers, and business owners from having their property taken by government and handed over to private entities for the main purpose of increasing tax revenues or creating jobs.  Because it is merely a law, protections can be chipped away by future laws.  With property rights protections in the Virginia constitution, the only way they can be changed is by a vote of the people.

The amendment has four reforms:

  • private property can only be taken for true public uses, not for enhancing tax revenues, economic development, or private gain;
  • the cost of taking property must be borne by the public, not by the individual property owner.  Fair and full compensation must be given when property is taken or damaged - this includes loss of business profits and loss of access (which will be defined by the General Assembly through SB437, HB1035);
  • no more property can be taken than is necessary for the project; and
  • the burden of proof that the taking is for a true "public use" is on the entity taking the property.
The amendment passed the General Assembly in 2011.  The exact same language must pass a second time in 2012 with no modifications.  It then goes on the November 2012 ballot for the citizens to vote on.
Patrons:  Obenshain and Stuart, Bell

SB437, HB1035 - Eminent Domain:  Lost Access and Lost Profits

Provides definitions for the terms "lost profits" and "lost access" and how to determine the amount of just compensation that must be paid for property taken by eminent domain.  The bill has a contingent effective date of Jan. 1, 2013, provided that the voters approve an amendment to Sec. 11 of Art. I of the Constitution of Virginia at the 2012 Nov. election.
Patrons:  Obenshain, Joannou

SB441, HB395 - Officers killed in the line of duty

Creates a special fund controlled by the governor for disbursement of moneys to the beneficiaries of law-enforcement officers killed in the line of duty.
Patrons:  Obenshain, Ransone

HB1074 - Solicitation of a minor for prostitution (anti-human trafficking)

Any person who is charged with the crime of prostitution shall have available the affirmative defense that s/he was induced by another through the use of force, threat, intimidation, coercion, or deception to engage in prostitution. The bill also provides that, in addition to the current Class 1 misdemeanor punishment for solicitation of prostitution generally, any person who solicits prostitution from a minor (i) 16 years of age or older and less than 18 years of age is guilty of a Class 6 felony or (ii) less than 16 years of age is guilty of a Class 5 felony.
Patron:  Hugo

HB546 - Addition to gang predicate crime: prostitution (anti-human trafficking)

Includes within the definition of "predicate criminal act" the offenses of the taking or detaining of any person into a place for the purpose of prostitution and the receiving of money from earnings of any person engaged in prostitution.
Patron:  Comstock

SB443 - Financial Exploitation of Elderly

Provides that it unlawful to knowingly, by deception, intimidation, undue influence, coercion, harassment, duress, or misrepresentation, use, obtain, convert, or take control of an elderly (victims aged 60 years and older) or vulnerable adult's (victims 18 years or older who suffer from a disability that impairs their mental or physical ability to handle their finances or who lack the capacity to make decisions about their assets) property or financial resources with the intent to temporarily or permanently deprive the adult of the use, benefit, or possession of the property or financial resources.  To punish such crimes as a larceny. As such, the penalty would be determined by the value of the property.  A violation would be deemed larceny unless the violation is by a caregiver or person with a fiduciary relationship, in which case it would be a Class 3 felony. The bill also allows forfeiture of personal property used in connection with the crime.
Patron:  Vogel

HB717 - Meth - Child Present during Manufacture

This legislation would prohibit anyone 18 years of age or older from knowingly allowing a child to be present in the same dwelling during the manufacture or attempted manufacture of a methamphetamine, or where at least two of the components of methamphetamine are present. The manufacturer would be guilty of a felony punishable by imprisonment for not less than 10 years nor more than 40 years.  The prohibition currently applies only to a child in the care or custody of the manufacturer and does not punish for the presence of the child when the components of manufacture can be found in the residence or other specified place.
Patron:  Kilgore


OTHER BILLS:


HB630 - Asset Forfeiture

Amends provisions that allow for the forfeiture of real or personal property used in substantial connection with racketeering offenses to provide that the interest or profits derived from the investment of the forfeited money may also be forfeited.  Under current law, any profits and interest gained from a RICO violation cannot be seized.  The RICO violator can keep the profits and interest.
Patron:  Morris

HB915 - Habeas Litigation (Prison Reform Act)

Provides that in habeas corpus actions, oral argument on any motion shall be heard only at the request of the court. The court shall rule on the record whenever possible.

The Virginia Supreme Court adopted Rule 4:15 several years ago, which provides in civil case motions that "upon request of counsel of record for any party, or at the Court's request, the Court shall hear oral argument on a motion."  Some habeas counsel recently argued that this creates a right to a hearing for prisoners represented by counsel, but creation of a right to a motions hearing only for prisoners with counsel would violate equal protection.  This bill would encourage finality of judgments.  It would also ensure that indigent and non-indigent inmates are treated the same.
Patron:  Minchew

SB127 - Juveniles adjudicated delinquent for certain sex crimes must register

Requires juveniles who were over the age of 13 at the time of the offense who were adjudicated delinquent on or after July 1, 2005, of rape, forcible sodomy, or object sexual penetration to be registered on the sex offender registry.  Information on juveniles adjudicated delinquent does not have to be made available on the public web site.  This is to bring Virginia in compliance with the federal Sex Offender Registration and Notification Act, "SORNA."
Patron:  Bill Stanley

HB331 - Child pornography exhibition exemption

Modifies the educational, artistic, and theatrical exemption to obscenity laws by providing that certain crimes (child pornography and use of communications systems to facilitate certain offenses involving children) are not subject to the exemption.  Specifically excludes child pornography from 18.2-383, a section of the law which allows for purchase and exhibition of obscene materials by libraries, institutions of higher education, public museums, and for artistic reasons.
Patron:  Villanueva

SB439, HB988 - Medicaid Fraud Control Unit:  Sworn investigators

Authorizes the attorney general to appoint Medicaid fraud unit investigators to investigate fraud, abuse, or neglect. Such investigators would be considered law-enforcement officers and would be authorized to carry concealed handguns while in the discharge of their official duties.

Medicaid Fraud Control Unit investigators currently conduct hundreds of interviews each year of Medicaid recipients to verify false claims.  The vast majority of these interviews are conducted in known high crime/violent crime areas.              MFCU investigators participate in the execution of search warrants and perform audit and inspect searches at targets' businesses and homes where weapons are often present. There is a growing local and national trend of organized crime rings committing health care fraud, so investigators may be walking into an organized crime situation.  Currently 36 of 50 state MFCUs have law enforcement authority.
Patrons:  Obenshain, Loupassi

SB451 - Medicaid Fraud Control Unit:  Amend Va. Fraud Against Taxpayers Act

Provides technical changes to the Virginia Fraud Against Taxpayers Act required by the U.S. Dept. of Health and Human Services' Office of the Inspector General (HHS/OIG), and in consultation with the U.S. Dept. of Justice, in an effort for the Commonwealth to continue receiving an additional 10 percent in fraud recoveries in joint federal/state programs (Medicaid).  The bill also makes technical changes to promote efficiency related to fraud investigation and enforcement activities.

Makes several changes to the Virginia Fraud Against Taxpayers Act (VFATA) and the laws governing the attorney general's duties with regard to the regulation of medical assistance, including (i) exempting certain information furnished to the attorney general from disclosure under the Virginia Freedom of Information Act, (ii) imposing a three-year statute of limitations on claims for employer retaliation under the VFATA, (iii) permitting the attorney general to share information obtained as part of a VFATA investigation with other state and federal government entities, (iv) allowing the attorney general to propound interrogatories as part of an investigation of services furnished under medical assistance, and (v) requiring health care entities to disclose records to the attorney general in connection with such investigations.
Patron:  Vogel

HB184 - Those with experience dealing with health care fraud required on DMAS Board

Requires that at least two members of the Board of Medical Assistance Services be individuals with significant professional experience in the detection, investigation, or prosecution of health care fraud.  Ensures the board has the expertise to anticipate and detect likely areas of fraud that are perpetrated against the Medicaid program.
Patron:  O'Bannon

HB592 - Exemption from Virginia-specific criminal history record checks for concealed handgun permit holders

Provides an exemption from Virginia-specific criminal history record information checks upon the purchase of firearms from licensed dealers when the purchaser is a Virginia resident holding a valid Virginia-issued concealed handgun permit and is already in the Virginia system.
Patron:  Merricks

SB435, HB1103 - Guns - Smith v Commonwealth fix

Provides that any person who knowingly makes a materially false statement on criminal history background check forms required for the purchase and transfer of firearms is guilty of a Class 5 felony. Current law uses the phrase "willfully and intentionally" rather than "knowingly."  Aligns state law with federal law by amending 18.2-308.2:2(K) to permit effective enforcement of materially false statements on criminal history background checks related to the purchase and transfer of firearms.
Patrons:  McDougle, Jackson Miller

HB1017 - Renewable energy portfolio standard program

Eliminates the Performance Incentive provision in the renewable energy portfolio standard program that entitles any investor-owned electric utility to a 50 basis point increase in its authorized combined rate of return on common equity if it meets the program's Renewable Energy Portfolio Standard (RPS) Goals. The measure retains provisions that allow a utility to recover its costs associated with meeting the RPS Goals, but provides that a utility that exceeds the RPS Goals shall not recover the incremental costs associated with exceeding the RPS Goals unless it demonstrates that the decision to exceed the RPS Goals was reasonable and prudent.
Patron:  Poindexter

HB521 - Indemnifying bond; not required of Commonwealth

Clarifies that the Commonwealth is not required to give an indemnifying bond that an authority may require before levying an attachment, writ of fieri facias, or warrant of distress on property if such authority doubts whether the property is subject to such levy.
Patron:  Farrell

HB755 - Statute of limitations; judgments of the Commonwealth

Exempts judgments in favor of the Commonwealth from the 20-year limitations period for enforcement of a judgment and the 10-year period for the enforcement of a lien of a judgment.
Patron:  O'Quinn

HB77 - Procedure in a bifurcated trial

Clarifies that when a jury cannot agree on punishment in the punishment phase of a bifurcated trial, the court shall impanel a different jury to ascertain punishment unless the defendant, the attorney for the Commonwealth, and the court agree that the court shall fix punishment. The current statute is silent on impaneling a different jury.
Patron:  Habeeb

HB750 - Courts' authority to defer and dismiss a criminal case

Provides that no court shall have the authority, upon a plea of guilty or nolo contendere, or after a plea of not guilty, when the facts found by the court would justify a finding of guilt, to defer proceedings, or to defer entry of a final order of guilt, or to dismiss the case upon completion of terms and conditions, except as provided by statute. The bill also provides that in no case shall the court defer entry of a final order of guilt for more than 60 days following conclusion of all of the evidence. This bill responds to the January 13, 2011, Supreme Court of Virginia decision in Hernandez v. Commonwealth.
Patron:  Cline

SB158 - Magistrate Bail

When an individual is charged with an offense giving rise to a rebuttable presumption against bail, this legislation gives the commonwealth's attorney the option to be notified of the bond hearing to have the opportunity to present additional facts to the court that the court may use to make a more informed determination of whether or not to grant bail.  This would also prevent the ping-pong effect where a defendant may get a general district court bond, the defendant posts the bond, the commonwealth's attorney appeals, and the circuit court decides that there will be no bond.
Patron:  Obenshain
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