Articles Posted in Government & Administrative Law

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The Supreme Court affirmed the order of the State Corporation Commission (SCC) that approved a new surcharge for Virginia-American Water Company (VAWC), holding that the SCC had statutory authority to approve the new surcharge and that the evidence was sufficient to justify the SCC’s approval. On appeal, Appellants argued that the SCC had no statutory authority to approve the new surcharge and, in the alternative, that the evidence was factually insufficient to justify the approval of the surcharge. The Supreme Court disagreed, holding that not only did the SCC have the statutory authority to approve the surcharge but that sufficient evidence in the record supported the SCC’s finding that the rate was “just and reasonable” under Va. Code 56-235.2. View "City of Alexandria v. State Corporation Commission" on Justia Law

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The circuit court erred by dismissing a petition to enforce the Virginia Freedom of Information Act (FOIA), Va. Code 2.2-3700, et seq., on the basis that the petition failed to comply with Va. Code 2.2-3713(A) because it was not properly supported by an affidavit showing good cause. Marian Bragg filed an amended petition against the Rappahannock County Board of Supervisors and its individual members (collectively, the Board), alleging that the Board violated the open meeting requirements of FOIA. The circuit court dismissed the petition. The Supreme Court reversed, holding that the petition satisfied the requirements of section 2.2-3713(A) because the allegations in the petition, which incorporated an acknowledgement of a Board member acknowledging that the Board improperly discussed certain public business matters during closed meetings, were supported by an affidavit showing good cause. View "Bragg v. Board of Supervisors of Rappahannock County" on Justia Law

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Neal submitted a FOIA request to the Fairfax County Police Department seeking its automated license plate readers (ALPR) records regarding his vehicle. The Department responded that Neal’s tag had been read twice and enclosed pictures of his vehicle with the time, date, and GPS location from which at least one photograph was taken. Neal sued under the Government Data Collection and Dissemination Practices Act, Code 2.2-3800-3809, alleging that the “passive use” of ALPRs violated a requirement that information not be collected “unless the need for it has been clearly established in advance.” The circuit court granted the Department summary judgment, reasoning “that a license plate number is not personal information.” The Supreme Court of Virginia reversed. The pictures and associated data stored in the ALPR database meet the statutory definition of “personal information” but it is not clear whether the retention and “passive use” of that information may be classified as an “information system” under the Act. The circuit court must determine whether the ALPR record-keeping process provides a means through which a link between a license plate and the vehicle’s owner may be readily made. If a means exists, then the “passive use” of ALPRs is not covered by the law enforcement exception because the Department collected and retained personal information without any suspicion of criminal activity. View "Neal v. Fairfax County Police Department" on Justia Law

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The Supreme Court affirmed the order of the State Corporation Commission concluding that certain large customers may purchase electricity from any licensed supplier of energy in the Commonwealth under Va. Code 56-577(A)(5) without being subject to the notice requirement set forth in section 56-577(A)(3). Specifically, the Court held (1) customers who satisfy the size requirements of section (A)(3) can purchase electricity from a competitive service provider under section (A)(5), provided that they satisfy the separate conditions of section (A)(5); (2) sections (A)(3) and (A)(5) are not in conflict; and (3) the notice requirement in section (A)(3) does not apply to purchases made under section (A)(5). View "Virginia Electric & Power Co. v. State Corp. Commission" on Justia Law

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In this appeal from a state employee grievance proceeding, a hearing officer’s decision upholding the termination of Nathan Osborn, a special agent with the Virginia Department of Alcoholic Beverage Control (ABC), was not contrary to law. ABC terminated Osburn’s employment after receiving a complaint that Osburn rummaged, without permission, through the business records of a business owner who had applied for a retail alcohol license. A hearing officer upheld Osburn’s termination, concluding that the warrantless search was not permissible, resulting in a violation of the applicant’s constitutional rights. The circuit court upheld the hearing officer’s determination. The court of appeals affirmed the circuit court’s determination that Osborn violated the Fourth Amendment. The Supreme Court affirmed, holding that Osburn’s warrantless inspection of the office of the applicant’s business was not permissible under the highly regulated industry exception to the warrant requirement and that the business owner did not consent to Osburn’s warrantless search of the office. View "Osburn v. Department of Alcoholic Beverage Control" on Justia Law

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The Supreme Court affirmed the State Corporation Commission’s (SCC) denial of claims filed by a group of Kentucky hospitals requesting reimbursement for legal fees and costs from Reciprocal of America (ROA), an insolvent insurer. On appeal, the Hospitals argued that certain agreements constituting an assumption reinsurance transaction provided a contractual basis for the claims requiring ROA to indemnify them for legal fees and costs incurred in certain litigation and that the SCC erred in concluding otherwise. The Supreme Court disagreed, holding that the SCC did not err in concluding that the governing contractual provisions did not obligate ROA to reimburse the Hospitals for legal fees an costs that they incurred in the legal proceedings. View "Appalachian Regional Healthcare v. Cunningham" on Justia Law

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The Supreme Court reversed the judgment of the circuit court sustaining the Tax Department’s decision to rescind $4.9 million in land preservation tax credits it had previously awarded to the Woolford family on the grounds that the Woolfords’ appraiser was not a “qualified appraiser.” Specifically, the circuit court found that the Woolfords’ appraiser lacked the necessary education and experience, as required by applicable federal law incorporated by Va. Code 58.1-512(B), to offer a qualified appraisal. The Supreme Court disagreed and remanded the case, holding (1) the trial court erred in ruling that the Woolfords’ appraiser was not a “qualified appraiser”; and (2) the Department was not constrained from auditing the value of the tax credits claimed by the Woolfords after initially awarding them those tax credits. View "Woolford v. Virginia Department of Taxation" on Justia Law

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The circuit court erred in relying on principles of res judicata to refuse to stay an injunction brought by the City of Staunton’s Zoning Administrator against the landowner in this case pending further proceedings before the City’s Board of Zoning Appeals and erred in granting the injunction against the landowner. The Supreme Court reversed the judgment of the circuit court as to the stay and the injunctive relief sought, holding (1) the doctrine of res judicata that the circuit court relied on was not a proper basis to deny the stay based on prior administrative or circuit court proceedings; and (2) as a result, the final order granting an injunction, when the landowner had not been given the opportunity to exhaust her administrative remedies, was in error. View "Chilton-Belloni v. Angle" on Justia Law

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In these consolidated appeals, the Supreme Court affirmed the decision of the State Corporation Commission upholding the constitutionality of Va. Code 56-585.1:1, which suspended the Commission’s biennial base rate reviews for Appalachian Power Company (APCO) and Virginia Electric and Power Company, d/b/a Dominion Virginia Power (Dominion Power) until the years 2020 and 2021, respectively. Appellants - Old Dominion Committee for Fair Utility Rates, VML/VACO APCO Steering Committee and Karen Torrent - appealed. In affirming, the Supreme Court held that section 56-585.1:1 is constitutional under Va. Const. art. IX, 2 because article IX, section 2 does not prohibit the general assembly from suspending the Commission’s biennial base rate reviews. View "Old Dominion Committee for Fair Utility Rates v. State Corp. Commission" on Justia Law

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Kohl’s Department Stores, Inc. entered into a license agreement with Kohl’s Illinois, Inc., an affiliate of Kohl’s that operates retail stores in select states, but not Virginia, for the use of intellectual property managed and licensed by Kohl’s Illinois. Kohl’s paid royalties to Kohl’s Illinois, and when calculating its federal taxable income, Kohl’s deducted these royalty payments from its income as an ordinary and necessary business expense. Kohl’s Illinois, however, did not pay state income taxes on a substantial portion of the royalties. Kohl’s claimed that the royalty payments fell within the “subject-to-tax” exception to the add back statute. The Virginia Department of Taxation auditor required that the untaxed portion be added back to Kohl’s taxable income and issued a notices of assessment to Kohl’s for certain taxable years. The circuit court affirmed, concluding that only the portion of the royalties that was actually taxed by another state fell within the subject-to-tax exception. The Supreme Court reversed, holding that the circuit court erred by failing to hold that Kohl’s Illinois need not be the entity that pays the tax for the subject-to-tax exception to apply. Remanded for a determination of what portion of the royalty payments was actually taxed by another state and therefore excepted from the add back statute. View "Kohl's Department Stores, Inc. v. Virginia Department of Taxation" on Justia Law