Maybe We Can Sue

by James C. Sherlock

Updated August 30, 3:30 pm

I wrote yesterday about a House of Delegates bill that ultimately was passed by the House Committee for Courts of Justice as House Bill No. 5074 Amendment In the Nature of A Substitute (the bill).  

I wrote of its effects on public officials and owners and managers of private companies for violations of COVID-19 regulations. The bill makes them not just accountable to state and federal regulators, but also personally civilly liable for the slightest violation of any part of the virtually unclimbable wall of applicable regulations. And Virginia has the strictest COVID-19 occupational safety regulations in the nation.

This essay will discuss the ethics of two different original bills and reveal the secretive process by which the final substitute was developed in committee. It will ask the General Assembly to clean up a scandal of its own making.

Some may say this “goes on all the time.” It may, but that does not mean it should.

Code of Virginia Chapter 31. State and Local Government Conflict of Interests Act » Article 1. General Provisions § 2.2-3100. Policy; application; construction.

The General Assembly, recognizing that our system of representative government is dependent in part upon (i) citizen legislative members representing fully the public in the legislative process and (ii) its citizens maintaining the highest trust in their public officers and employees, finds and declares that the citizens are entitled to be assured that the judgment of public officers and employees will be guided by a law that defines and prohibits inappropriate conflicts and requires disclosure of economic interests. 

Inappropriate conflicts for members of the General Assembly delineated in Virginia law do not include writing and voting for bills that will increase members’ own income or are influenced by unlimited campaign donations.

Let us illustrate what is not prohibited with a current example.

The Republican bill

Del.Jason Miyares, R-Virginia Beach, an attorney in private practice in Virginia Beach, introduced in this special session of the General Assembly House Bill 5037.  

It attempted to strike a balance between the activities of regulators and court actions in enforcing violations of the very complex and far reaching COVID-19 related state and federal regulations. 

In recognition of the extraordinary challenges of compliance, HB 5037 was designed to grant immunity from civil law suits to public officials and businesses except in cases of gross negligence or willful misconduct in executing their obligations under COVID-19 regulations. 

HB 5037 would have left most enforcement of the regulations to the regulators, the federal government and the Virginia Department of Labor and Industry, and allowed the courts to deal with only the most egregious violations.

Ogletree Deakins, a large international law firm with offices all over this country assessed the Virginia Emergency Temporary Standard Infectious Disease Prevention: SARS-CoV-2 Virus That Causes COVID-19 as follows:

“The emergency standard includes an extensive list of requirements that all employers within VOSH’s jurisdiction must follow, regardless of the level of exposure to COVID-19, and additional requirements for employers based on exposure level. The emergency standard (went) into effect on July 27, 2020.”

Key Takeaways

The standard is comprehensive, and employers—particularly those outside of the healthcare industry—may find compliance to be a challenge.”

HB 5037 would have cost Del. Miyares and his firm potential business, but he thought it was the right thing to do.

The Democratic Bill

Del. Richard C. “Rip” Sullivan, Jr., D-Arlington, is an attorney and a shareholder of Bean, Kinney & Korman, practicing in the area of commercial litigation.

Sullivan introduced House Bill 5074. As introduced it was different in key respects to Miyares’ bill.  He was joined in his bill by Democratic co-sponsors Delegates Willett, D=Henrico; Dawn Adams, D-Richmond, and Mark Sickles. D-Alexandria.

Miyares’ bill offered protections from civil liability for any person who designs, manufactures, labels, or distributes PPE in the absence of gross negligence or willful misconduct. Miyares’ bill relied on the regulators to regulate. Sullivan’s bill ignored regulators and eliminated that protection.

HB 5074 changed Miyares’ bill that required compliance with applicable federal, state, and local laws, policies, procedures, and guidance regarding COVID-19 to add “and the most recent” after the work “applicable” to ensure that suits for violations of new regulations could be filed the instant they took effect.

Mr. Sullivan’s bill also required: 

Every person shall provide, with respect to any premises owned by the person or under the person’s possession, custody, or control, reasonable notice of actions taken by the person for the purpose of reducing the risk of transmission of COVID-19 to individuals present on the premises. No person shall be liable for the failure of any individual not under the control of such person to comply with rules, policies, or guidelines contained in the notice required by this subsection. This subsection shall not apply to premises owned by an individual, other than premises that are used in the operation of a sole proprietorship. 

Delegates Sullivan, Willett, Dawn Adams and Sickles must not have noticed that they have sole proprietors in their districts. Or they think that those constituents won’t find out that they went to great lengths to preserve the right of attorneys to sue them, and them alone: 

  • for failure to provide “reasonable” notice, and 
  • for the actions of persons who work for them who fail to comply with the rules, policies and guidelines under that notice. 

Of course this depends upon whatever a court may find “reasonable” to mean at Del. Sullivan’s billable rate.

The Substitute Bill

Even that language was not supportive enough of lawsuits for whoever wrote the substitute that emerged from House committee and was passed. To wit: 

HOUSE BILL NO. 5074 AMENDMENT IN THE NATURE OF A SUBSTITUTE (Proposed by the House Committee for Courts of Justice on August 26, 2020) (Patron Prior to Substitute––Delegate Sullivan)

That bill required the defendant in any suit to bear the burden of “proving entitlement to the immunity provided herein.”

Finally, in the substitute bill:

The provisions of this act do not create a defense to liability in any administrative proceeding or civil action brought to enforce the provisions of the COVID-19 Emergency Temporary Standard or any COVID-19 Permanent Standard, whichever is then in effect.

So the bill does not provide protection from civil suit brought on the basis of the most stringent regulations in the nation.  

The substitute HB 5074, in effect, provides no protections from civil liability to anyone.  So one has to ask “why bother?”

The bill passed by the yeas of all the Democrats and over the nays of all Republicans on the House Committee for Courts of Justice. 

the money

Look here for the contributions by the legal industry to the Democratic members of the House Committee for Courts of Justice and how many of them are attorneys in their private lives.

the outcome

The bill leaves employers, including college presidents and school superintendents, open to lawsuits for any alleged violation of government standards, no matter how inconsequential or as a practical matter perhaps unexecutable, as was judged by Ogletree Deakins. 

We citizens are left to guess who the author(s) of that substitute bill might be. And who might have suggested the changes. And what lobbyists were involved in gutting the original protections in Miyares’ bill.  

What we do know is that absent direct extortion or bribery, which excludes Virginia’s unlimited campaign contributions, the General Assembly is not bound by ethics considerations. Some don’t need the threat of sanctions to do what is right. Some do.

Is it out of bounds to ask a General Assembly that “recognizes that our system of representative government is dependent in part upon (i) citizen legislative members representing fully the public in the legislative process and (ii) its citizens maintaining the highest trust in their public officers”

  • to reassess the ethics and transparency rules that govern it and
  • to put limits on campaign donations?

If they can ignore the fate of House Bill 5037 and the path to passage of HB 5074, the answer is apparently yes, it is out of bounds to ask.  

Maybe we can sue.

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26 responses to “Maybe We Can Sue

  1. Thank you for the hard work of digging up the facts of another example of the difference between a Republican legislature and a Democrat one.

  2. You have not identified any conflict of interest. Does any member of the committee who voted in favor of the bill stand to gain personally from its passage? That would be the conflict of interest.

    Taking campaign contributions and then voting in favor of the interests of the donor does not constitute a conflict of interest. Perhaps the donor made the campaign donation because he knew the delegate personally favored certain positions that the donor liked.

    The changes that appeared in the substitute bill may have been the result of discussion in the committee. A review of the archived video perhaps could provide some indication of the genesis of those changes. Or, often a member will propose a substitute for his bill at the beginning of the discussion. This substitute would be result of further reflection on his part after talking to other people, perhaps lobbyists, who were interested in the bill.

    This is the legislative process. Most of the discussion and persuading goes on behind the scenes.

  3. Well, it’s the way the legislative process works in Virginia no matter which party has the majority and I’m no fan of the money at all, but we can’t seem to get folks to oppose it no matter who controls the GA. More often than not, it becomes a partisan ” look how bad the other party is” issue rather than ” we have a corruption problem with both parties” issue.

    I don’t mind the lobbyists. They perform a legitimate information role if they are not promising money.

    Virginia is “tilting” left on legislation these days. The question is, can the GOP win Virginia back with more moderate positions or is the GOP so far right that they’ll continue to lose in the urban and suburban areas as they have been?

    I think the GOP has to field some candidates that can win some seats in the urban/suburban areas if they want to move the Dems back to the middle.

    To a certain extent, we can actually blame the GOP for NOT putting forth moderate candidates and encouraging voters to vote for “left” candidates.. How’s that for “analysis”? 😉

  4. Any thoughts for the small businesses? They already have to deal with regulators. Do you know one of them that can afford to defend a lawsuit right now?

    Here is how this works – the plaintiff can get an attorney to take the case at the attorney’s expense on the promise of a third or more of the proceeds. The defendant has to pay her attorney, say “Rip” Sullivan Esq., retail billable hours.

  5. I’d rather live in our “litigious society” than one where we depend on government entirely to keep ’em honest, or worse, one with neither. Depending on the consumer to police the market is a sure fire way to increase the body count. Remember, there is a group of his victims who are, even as you read this, petitioning the courts to free Bernie Madoff. 1/3 of us, like domestic turkeys, would look up with their mouths open in a rainstorm, or during migration.

    The examples to consider: Equestrian and Motorcross. One of these industries is protected from lawsuits in most States, the other, not in any. One has real helmets and safety equipment required to participate. The other just injures more young girls than any other activity. Plenty of source on that.

  6. The regular session of the General Assembly was focused on several bills that created new causes of action for aggrieved parties, with or without any actual damage suffered, and tilted the playing field toward the plaintiffs and offered punitive damages. That the special session would behave the same way turning COVID into a new cause of action and tilting toward plaintiffs is not surprising. Plaintiff’s lawyers and unions (source of many plaintiffs) give lots and lots of money to Democrats. Their candidates beat out the candidates backed by the business community and its insurance defense bar.

    I don’t see any conflict of interest, either. It is how the process is supposed to work, and while I do not like this outcome, I’m sure it is better because practicing attorneys with real-life experience in this field were at the table. I’d say to folks like Sherlock, come on down and join the fun in person. Well, maybe soon….The special session’s virtual restrictions are seriously damaging transparency and access.

  7. Note my update to the essay.

    I utterly disagree that this is the way a representative government process “is supposed to work”. Limit the currently unlimited amounts of donor money, and it has a chance to be that.

    I have been in Richmond for GA sessions for the last decade. I wouldn’t call what happens there fun on either side. Some of it is heartening, but much of it is dispiriting, some disgraceful.

    The key issue I have is that Virginia is one of only nine states with unlimited campaign donations across the board.

    Unless we limit campaign donations, some of our General Assembly seats and state constitutional offices will continue to be coin-operated.

    Any contention otherwise is disingenuous.

    • Frankly, I read it more than once and if your point was about campaign $$, you missed it. You seemed to be complaining more about how the lawyers are working to benefit their professions, a more subtle point. That is what I do not find offensive — I want the engineers, lawyers, teachers, doctors, business owners chiming in and speaking on behalf of their view of the world.

      For some time now I’ve been advocating for limits on campaign contributions. But with smaller limits, there will still be donors and they will still have influence. Dems = plaintiffs lawyers and unions is not new. And not all Republicans oppose the plaintiff lawyer POV, either. Not at all. Sometimes even I concede they have a point! (Right before AG Earley offered me a job, I’d signed a contract to lobby for the Virginia Trial Lawyers Association. Don’t always put that on my resume.) 🙂

      • I offered as example bills from two attorneys, Miyares and Sullivan. Both could have written bills from the point of view of their business interests. One did not, one did.

        • You’re assuming he wrote it without a loophole in mind. After all, he is a lawyer.

          • Jason Miyares is a good man. He wrote the bill to allow cases of alleged gross negligence or willful misconduct to go to a court, but left the rest of them to the regulators.

            His bill greatly reduced any list of potential clients. As written it would have cost him and his partners real money.

            Some things are exactly as they seem. So was the final bill.

  8. Forget this mess. Uncle Sugar just threw the shaft to your kids in January 2020.

    Sat down yesterday to update our Estate Plan. Cool, don’t have to take RMD until age 72. Yahoo!

    Uh oh, what’s this? Inherited IRA changes for 2020: non-spouse beneficiaries MUST drain a Traditional IRA in 10 years now, and an inherited Roth IRA in 5 years, or face massive penalties.

    Wow, not only have we boomers left our kids a massive national debt, but if you spent your career investing well and socking it away in a Traditional IRA , 401(k), or Profit Sharing then you just stuck them with huge tax bill.

    Prior to 2020, you kid was required to take RMDs based on their life expectancy. Now, they’ve got to drain it in only 10 years. Big income, big taxes, and for most of our kids, I’ll bet your IRA kicks them into the AMT for those 10 years, too.

    Back to the calculator.

    • Especially Virginia residents will pay dearly, since we tax middle class hard and we fully tax the IRA withdrawals, in order to give preference to lower incomes and relatively low tax for higher incomes. Further, with Dems in charge, we probably add on top of that a state inheritance tax, and I think we can just immediately assume the burden on that will be middle income folks, more so than Feds for which we have some fairly high bar to sneak under.

      • I know that PA taxes all IRA contributions, including trads, and don’t tax the output. They were smart enough not to let their residents invest the State’s tax money.

        Now, how they handle IRAs from other States, I don’t know, but I cannot imagine how they could keep track of where the money comes from.

    • One way for some to mitigate a portion of the tax implications, if you have students incurring student loans, is to draw down inherited IRA funds and use them to pay tuition expenses, reaping the tax benefits on the back end. It’s not a win but it is less of a loss.

  9. More perverse incentives for civil suits. As you all already know, its usually cheaper to settle even if your case is strong.

    Nonetheless, Amazon is probably happy with this bill. Maybe it was part of the deal. Fewer small businesses in Virginia, cheaper labor for Amazon and more online shopping for the rest of us

  10. For all of the apologists for Virginia’s truly disgusting political environment – Virginia is one of only two states that allow the legislature (including all the lawyers therein) where the legislature elects the judges without a merit commission. South Carolina is the only other state where this occurs.

    Lawyers in the General Assembly try cases in front of judges they elect and will likely re-elect.

    Again, 48 states know better than to allow this.

    Richmond isn’t a swamp, it’s an open sewer.

    • And without the dilution of Federal $$$, it would stink even worse.

    • Could be Texas. I think some of their judges don’t even need to be high school graduates. They are popularly elected. Yep, that’s what we want, a used car salesman conducting court, i.e., Texas Constitutional Courts.

      To be sure, most had to have 2-4 years as a practicing lawyer, so two years of real estate closures or ambulance chasing will do.

      • In Texas, a county criminal court judge must be at least 25 years old and have 4 years of experience practicing law, but a criminal appeals court judge must be at least 35 years old and have 10 years of experience as a lawyer or judge.

        In Virginia, names of candidates are submitted by General Assembly members to the House and Senate Committees for Courts of Justice. These Committees determine whether or not each individual is “qualified” for the judgeship he or she seeks.

        There are only two formal qualifications written in the Code of Virginia:
        1. “On and after July 1, 1973, every full-time judge and substitute judge of a district court shall be at the time of his appointment or election a person licensed to practice law in this Commonwealth.” Also,
        2. “Every judge or substitute judge of a district court shall, during his term of office, reside within the boundaries of the district in which he serves “.

        So Texas law is more restrictive than Virginia law in those respects.

        Elected County Judges in Texas have duties as follows:
        – Presiding officer of the commissioners court
        – Represents the county in many administrative functions
        – Serves as budget officer in counties with fewer than 225,000 residents
        – Most have broad judicial duties, such as presiding over misdemeanor criminal and small civil cases, probate matters and appeals from the Justice of the Peace Court
        – Serves as head of emergency management

        County Judges in Texas have extensive formal continuing education requirements.

        Their extensive duties reflect the fact that many Texas counties are very sparsely populated. Loving County, on the east bank of the Pecos where it crosses the New Mexico border, is the least populous county in the United States, with well under 100 residents (and dropping).

        Harris County Texas’ population in 2018 was 4,698,619, comprising over 16% of Texas’s population. Harris County is included in the nine-county Houston–The Woodlands–Sugar Land metropolitan statistical area, which is the fifth most populous metropolitan area in the United States.

        The Commissioner’s Court is the Texas version of a combined County Council and County Executive. It is a very powerful body. The County Judge sits presiding, but even she must bring certain matters to the Commissioner’s Court for approval.

  11. Real campaign finance reform. Only living people can make campaign contributions. No donations from corporations, other forms of business, labor unions, other non-profits, etc. No bundling of donations permitted. Ergo, no PACs. Accepting these types of donations and not returning them within 14 days is a criminal offense for the candidate and the campaign treasurer.

    No out-of-state donations permitted. No donations from outside the candidate’s district. Statewide office candidates can accept money from any Virginian. But delegate, senator, supervisor, city council, etc. candidates can only accept donations from residents of the same district. Accepting these types of donations and not returning them within 14 days is a criminal offense for the candidate and the campaign treasurer.

    Third party expenditures are allowed as permitted by the constitution. But any coordination is a criminal offense. Coordination is defined as an in-person meeting, phone call, email or any other communication between the independent committee and the candidate or her/his campaign.

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