RichmondLiberty.org

file GA08-02-28
General Assembly, Thursday February 28th, 2008

"Some days you eat the bear; some days the bear eats you."
Today I ate lots of bear, only got a couple of bites in return!
Long day, and couldn't do much typing while stuff was happening. Doing this from paper notes in evening; tired. Don't expect as much detail as is often offered.
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Fell asleep while doing this report. Sorry, will finish and post it ASAP. In the Richmond Times-Dispatch (just delivered) I commend to your attention two articles illustrating one reason that I think it's worth working on these issues. See:
http://tinyurl.com/34hnj5 and http://tinyurl.com/387tl3

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8:30 a.m. Senate Education and Health
Sex/abortion, religion, dope

HB312, Landes, Miscarriage or stillbirth; unintentional cause thereof.
Makes it a Class 5 felony for a person who, while engaged in conduct so gross, wanton, and culpable so as to show a reckless disregard for the life or safety of others to injury another person who is pregnant and such injury results in a miscarriage or stillbirth.

This came about because an idiot ran down a woman who was close to giving birth. She wasn't injured very badly, but it caused a miscarriage. If the woman herself had been killed, or even maimed, there would have been severe penalties; since she wasn't, there was no applicable law to enhance the punishment to reflect the loss of a potential child.

[THIS IS ALL MY OPINION! The adage is, "Hard cases make bad law." Here's yet another example. The patron complains that his bill -- which is supported by, among others, our own Commonwealth's Attorney, Michael Herring -- is being tangled up in and burdened down with the debate over abortion. He's right, of course. Earlier bills similar to this one tried to make destroying a fetus defined as murder or manslaughter, and opponents rightfully thought that these were back-door attempts to redefine a fetus as a human person. People who do not think that a developing embryo is human are understandably very careful about the wording of bills that resemble those. I don't think that this is such a bill, but I've been wrong before.]

After quite a bit of discussion, and several witnesses both pro and con, the Committee decided to ask the State Crime Commission to study the problem and develop a better way to address it.

Bill is carried over to next year, 15-0.

HB429, Marshall RG, Abortion; forced or coerced prohibited, penalty.
Provides that any person who forces or coerces a pregnant female of any age to have an abortion against her will is guilty of a Class 1 misdemeanor. However, if such a violation is committed when the pregnant female is less than 18 years of age, the person is guilty of a Class 6 felony.

Committee voted, 10-5, to kill the bill.

HB894, Lohr, SUBSTITUTE Abortion; licensure of clinics.
Requires all abortion clinics, defined as any facility other than a hospital or an ambulatory surgery center in which 25 or more first trimester abortions are performed in any 12-month period, to be licensed and to comply with the requirements currently in place for ambulatory surgery centers except the requirement for a certificate of public need. The Board of Health may also waive certain structural requirements.

This is yet another substitute version of the bill, scaled back from the original. Defines "abortion clinics", requires additional equipment and inspections.

Conflicting testimony and "facts", too many to recount. Usual suspects on each side, usual arguments.

Bill is killed, 10-5.

HB1126, Jones, Abortion or miscarriage; intent to destroy unborn child, penalty.
Provides that any person, including the pregnant female, who administers to or causes to be taken by a pregnant female any drug or other thing or uses means with intent to destroy her unborn child or to produce abortion or miscarriage and thereby destroys such child or produces such abortion or miscarriage is guilty of a Class 4 felony. The bill excepts medically approved contraceptives or legally prescribed medication as a means of producing abortion or miscarriage. Current law does not with specificity include the pregnant female as a possible perpetrator.

A very depressed woman down near the beach deliberately shot herself in the abdomen in a successful effort to terminate her late-term pregnancy. That inspired this bill.

Jessica Nonke from Virginia League of Planned Parenthood opposed: pregnancy-related depression serious problem, treat rather than prosecute, slippery slope.

I opposed: criminalize women who might use traditional herbs or exercises to terminate unwanted pregnancies; also criminalize grannies and shamans.

There were other speakers pro and con; notes unclear and memory more so. Sorry.

Bill is killed, 9-5.

HB1135, Fralin, SUBSTITUTE Public schools; student's voluntary expression of a religious viewpoint.
Expression of religious viewpoints in the public schools. Provides that a student's voluntary expression of a religious viewpoint on an otherwise permissible subject must be not be discriminated against by local school divisions.

Once in a while, some teacher will refuse to accept a student's assignment because it has religious views. This is in pretty clear violation of the Virginia and US constitutions, of course, but the concept isn't always clear to everyone.

This version makes clear that schools can't reject an assignment because it has a religious theme, but must judge it by the same standards used for non-religious work. It also makes sure that a student can't claim an "A" just because he talks about religion.

Hope from ACLU opposed the bill as written. Legislation really shouldn't be needed here, given how clear the Constitution is. When such issues arise, usually all it takes is a letter from ACLU to set the teacher or administrator straight. If there's to be a statute, it should cover not merely religious viewpoints but be broader. [She's quite right, of course. There should be no penalties for writing in praise of the free enterprise system, or reviving mortal gladatorial contests, or legalizing drugs, or establishing a monarchy in the US. Thoughts and speech should be free, and judged on their merits.]

Spokesman for Family Foundation is in favor of the bill. Counters the war on religion that's threatening to destroy the family which is the basis of Civilization As We Know It.

Spokesperson from Jewish Community Center in favor.

I spoke, as an individual. Said that this was a first; was opposing my friends at the ACLU, and agreeing with the Family Foundation.
(In related news, Hell froze over.)
Favored the bill, though wished it wasn't necessary, and wished that it were broader. Good first step, could be expanded later.

Committee discussion. Everyone on Committee agreed (as had all the witnesses) that the real solution was better teacher/administrator education.

REPORTED, 12-1, 2 abstentions (later quietly amended to 13-1-1).

HB1315, Byron, Informed consent for abortion; ultrasound required before performing to determine gestation age.
Requires that, as a component of informed consent to an abortion and determination of gestation age, every pregnant female shall be given the opportunity to view an ultrasound image of her fetus prior to the abortion.

This is viewed by many as a way to increase the costs and difficulties of abortion, rather than an attempt to protect the health of the mother. Testimony from the usual suspects.

Bill is killed, 11-4.

HB1400, Pogge, SUBSTITUTE Minor's drug test; disclosure of results.
Provides that a parent, legal guardian or person standing in loco parentis may obtain the results of any drug test of a minor or a minor's health records, except when the minor's treating physician or the minor's treating clinical psychologist has determined in the exercise of his professional judgment that the disclose of heath records or the results of any drug test of the minor would be reasonably likely to cause substantial harm to the minor or another person. This bill also provides that a minor shall not be deemed an adult of the purpose of consenting to a drug test when the minor is not receiving outpatient care, treatment, or rehabilitation for substance abuse.

Minors are deemed adults for several purposes, including getting help for substance abuse problems. This means that they can consent to, or refuse, tests and treatment options, and are entitled to privacy of medical records. Present law says, however, that if they are NOT in treatment for substance abuse, they are NOT considered adults in these matters, and that the parents/guardians/loco parentis are entitled to receive the rsults of "non-diagnostic" tests. There's confusion on this point, and this bill attempts to make it clear by repeating that parents can get their kid tested, and can see the results.

Patron says that this does not change current law, merely clarifies it. Newest version (third) more narrowly drawn than earlier ones. Loving parents should be able to have information needed to help their children through terrible affliction of substance abuse.

I opposed, for Virginians Against Drug Violence. If the bill truly does not change existing law, then obviously not needed. Endorsed view of only physician (pediatrician) on Committee, Ralph Northam. Recounted my experience in field, with counseling/education groups. Far better to take kid to doc and have the doc talk w/kid in private than to demand kid be tested and you be told. Counter-productive to encourage parents to force testing. Kids die when this is done.

Interestingly, Senator Newman had a question for me. Has heard me for years down at GA, and asks whether or not it's my position that drug laws should not be enforced. Was happy to answer him.
"No, Senator. I do not think that the laws should not
be enforced. I think that the laws should not exist."

After further discussion in Committee:
THIS BILL IS KILLED, 10-5.

HB1556, Cline, Unborn child pain information; requires doctors to offer to anesthetize fetus prior to abortion.
Requires doctors to offer to anesthetize a fetus prior to abortion and to include in informational materials a statement that a fetus at 20 gestational weeks has the physical structures necessary to feel pain and react to physical stimuli in a manner that, in an infant or adult, would be interpreted as a response to pain.

Proponents (patron, Society for Human Life, others) say needed to prevent torture as unborn child is murdered.

Opponents (Medical Society of Va., OB-Gyn at MCV, Planned Parenthood, others) say not needed, no valid medical technique to poke needle through cervix into fetus, just another way to impede access to needed medical services.

Bill is killed, 10-5.

Committee rises from its last meeting of the session after thanks from Chair and others for good work by staff and public.

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House convened at noon.

Little to report from the session itself, punctuated as it was with recesses as conference committees met to try to reach agreement with Senate on various bills.

While running up to get coffee during a break, however, I did run into a band of people wearing "Freedom Works!" tags. They didn't actually look like terrorists, but you know what they say about Libertarians: "gun-toting economists on drugs"! They probably think people should be allowed to make their own decisions, even if those decisions are wrong, which is clearly heresy. They have a website at http://freedomworks.org/.
[Having mentioned that, I should also note that these reports are online at http://www.richmondliberty.org/.]

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Adj Trans Senate Courts of Justice
Arrest-on-whim, sex, mental health, secret police, guns

Committee called to order a bit after 3 pm. 41 bills on the docket. Very many of these vitally affect the freedom of Virginians; only the most important ones are reported here.

HB436, Miller JH, Arrest or summons; charge for misdemeanor at discretion of law-enforcement officer.
Gives a law-enforcement officer the choice of issuing a summons and releasing the person or arresting him for Class 1 and 2 misdemeanors. Under current law, the law-enforcement officer must release the person on a summons for most Class 1 and 2 misdemeanors unless the person fails to stop the unlawful act or indicates that he will not appear as directed in the summons. The bill also requires the officer to arrest the person if he fails to stop the unlawful act; currently arrest is discretionary when the person fails to stop the unlawful act.

Would allow officers unlimited discretion to arrest or issue summons. Current law, widely ignored, REQUIRES a summons except in several particular circumstances. Difference is that, with arrest, officer gets to search suspect, and use anything found to either arrest on more serious charge, or justify investigation/warrants for more serious charges.

This has been law since 70s, and there was an AG's opinion in '91 confirming interpretation. Nonetheless, we've heard repeated claims that law is unclear, and acknowledgement that many departments have been routinely violating it. Case now on appeal from Va. Supreme Court to US Supreme Court held that when police arbitrarily choose to arrest (in violation of law) instead of issuing summons, any evidence following as result of that arrest cannot be used.

Proponents explain that this change is required to prevent the collapse of Civilization As We Know It. There are only five states who do not allow officers this power. Law must be clear.

Fiscal impact statement associated with bill is incomplete. Looks only at per/day cost of keeping prisoners in jails. This completely overlooks cost of actually arresting person, rather than issuing a summons. Estimates for this range from $300 to $2,000 per person.

We have never heard how this issue is addressed in the other states with similar laws. Are these 4 or 5 states overrun with criminals, or do they perhaps have some workable system?

Counsel Benjamin explains background of bill, still in litigation. Chairman Marsh is clearly not enthusiastic about it, Senator Stolle is plainly against it. Stolle reminds members that law was quite clearly understood when he served as police officer, and as narc, and when he taught classes of police officers.

No public input accepted (many ready and waiting to speak).

Bill is carried over to next year, which is to say that:
THIS BILL IS DEAD!

HB567, Crockett-Stark, SUBSTITUTE Sexual offenses; those convicted prohibited entry onto school property.
Provides that every adult who is convicted of a sexually violent offense, as defined in § 9.1-902, shall be prohibited from entering and being present upon any property he knows or has reason to know is a public or private elementary or secondary school or child day center property. Currently, the prohibition only applies during school hours.

Substitute version, amended somewhat to allow attendence for "religious ministry", technical amendments.

Public comment allowed from only one person, advocate; opponent Lee-Lee not recognised -- inadvertantly, I hope.

Reported to full Senate, 15-0.

HB576, Watts, SUBSTITUTE Mental health records; health provider shall disclose information to provide care, etc. of minor.
Provides that any health care provider or other provider rendering services to a person subject to involuntary commitment proceedings shall disclose to certain entities and individuals all information necessary and appropriate for the entities or individuals to perform their duties related to the commitment proceedings. The bill also provides that any health care provider shall be immune for any harm resulting from the disclosure of health records unless he intended the harm or acted in bad faith. This bill incorporates HB 1324.

Another response (as MANY are this year) to Virginia Tech murders.

Counsel Benjamin explains that the bill appears to violate HIPAA (federal Health Insurance Portability and Accountability Act, which BTW already contains huge provisions for governmental access to medical records), and that if it does then people relying on this act will be subject to fines, jail, and civil lawsuits. Bill purports to grant immunity from such results, but generally speaking, state laws cannot grant immunity from federal laws. He's asked AG's office for explanation of their assertion that this is OK, but has received only inadequate response. In addition, there have been misleading and even false statements regarding which parties and agencies have approved the bill during the drafting process. Without more information, he cannot assure the Committee that this bill is constitutional, nor that it is not in conflict with federal law.

AG's representative says will be happy to provide all needed information, but does not have it in hand at this hour.

Bill is carried over until Monday's meeting.

HB622, Brink, SUBSTITUTE Sexual offender; prohibited from residing in public park in proximity to children.
Prohibits a person convicted of certain sex offenses from living within 500 feet of a public park that is adjacent to a primary, secondary or high school. A violation is a Class 6 felony and there is an exception if the public park was established within 500 feet of the offender's residence subsequent to his conviction.

Previously worked on in subcommittee; see earlier reports.

Substitute reported, 12-0.

HB709, Janis, SUBSTITUTE Firearms; person legally incompetent, etc. prohibited from purchasing.
Purchase of firearms; consent form; mental health questions. Requires that a person seeking to purchase a firearm from a firearms dealer answer questions on the state background check consent form concerning whether the applicant has ever been acquitted by reason of insanity, been adjudicated legally incompetent or mentally incapacitated, or been involuntarily admitted to a facility or involuntarily ordered to out-patient mental health treatment.

Questions on this bill, which mandates questions on form that are tied to specific sections of Code of Virginia. What about people who were at one time disqualified but are now OK; what about people who had actions in other states that would have disqualified them if had occurred in Virginia; one Code section does not actually prohibit purchase.

Patron explains privately that previous testimony in subcommittee verified that answering "Yes" on questionaire would not mean automatic disqualification, merely to "Please explain" space on other side of sheet.

Committee discussion establishes that the bill does not address occurrences in other states, because there is no system yet in place to make that information available to Virginia authorities.

After prolonged discussion, Committee decides to conform the bill to SB226 (Senator McDougle's bill on the same subject) for now to progress the bill. Sen. McDougle and Delegate Janis are both sure that they can reach agreement on language, and produce a good bill.

Reported to full Senate, 15-0.

HB995, Bell, Unlawful filming of another; penalty increased to Class 6 felony.
Adds the misdemeanor offense of unlawful filming of another to the statute that makes the third offense of certain misdemeanor sex offenses a Class 6 felony. Under current law unlawful filming involving a nonconsenting person under the age of 18 is a Class 6 felony.

Another case of changing state law to address one instance. Idiot in Charlottesville (at UVA) has video camera on a stick, has repeatedly used it to look up women's skirts. Arrests and convictions haven't deterred him.

Discussion, good amendment.

Reported, 15-0. Re-referred to Finance committee.

HB1007, Jones DC, SUBSTITUTE Fusion Intelligence Center; confidentiality and immunity from service of process.
Provides that papers, evidence, information, etc., and databases or other information in the possession of the State Police are confidential and not subject to the Virginia Freedom of Information Act or the Government Data Collections and Disseminations Practices Act. The bill also provides that employees of the Department and employees of other agencies assigned to the Department are not subject to subpoena in any civil action concerning criminal intelligence information or terrorism investigation. The bill restricts the release or dissemination of information without prior authorization from the Virginia Fusion Intelligence Center and punishes any person who knowingly disseminates information with a Class 1 misdemeanor. If such unauthorized release or dissemination results in death or serious bodily injury, such person is guilty of a Class 4 felony.

This is the Double Secret Secret Police bill, described previously.

Substitute version, addressing many issues, reported, 13-0.

HB1414, Scott JM, Concealed handgun permits; revocation upon notification of State Police.
Requires the court that issued a person a concealed handgun permit to revoke the permit upon notification by the State Police that the person has been convicted of an offense that would disqualify him from obtaining a permit or if the person is adjudicated legally incompetent, mentally incapacitated, or is involuntarily committed. The law currently requires such persons to forfeit and surrender their concealed handgun permits, but does not require the issuing court to revoke the permit.

Requires revocation, not merely suspension, of licenses for what may be temporary incapacitations, such as stroke victims who may be fully recovered in less than a year. I was asked to cover this on behalf of Virginia Citizens' Defense League, and attempted to address the problem with the Committee. Committee not receptive, pointing out that disqualification requires court adjudication, and restoration of rights also requires court action. This doesn't really address problems, of course, but everyone is eager to go home . . .

Bill is reported to full Senate, 13-0.

Committee rose just before 7pm, with one meeting remaining before session ends.

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Next significant meetings are Friday:

8:30 a.m. Senate Rehabilitation and Social Services; Senate Room B, General Assembly Building
ABC/censorship. I will not attend.

10 am House convenes.

11 am Senate convenes.

1/2 hr aft House Courts of Justice; House Room C, General Assembly Building
Sex, guns, privacy.

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DETAILS:
To see the summary, text, status, estimated cost, votes, or other details on any bill, go to:
http://leg1.state.va.us/. Click on:
“Bills & Resolutions – status of individual bills and related information”.
At the text-entry block, enter the bill and type just as I have it listed above. (Use “SB921”, not “S.B. 921”, for example.)

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REMINDER:
http://leg1.state.va.us/ and http://legis.state.va.us/
These are the two websites where you can access nearly anything you want to know about practically anything related to the General Assembly. Use them!
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