Social Services, Department of; nonattorney employees to complete, sign, and file petitions, etc. (HB1382)

Introduced By

Del. Sal Iaquinto (R-Virginia Beach) with support from co-patron Del. David Toscano (D-Charlottesville)

Progress

Introduced
Passed Committee
Passed House
Passed Senate
Signed by Governor
Became Law

Description

Department of Social Services; petitions. Authorizes nonattorney employees of the Department of Social Services to complete, sign and file petitions in Department cases and provides that any orders entered prior to the effective date of this bill are not deemed void or voidable solely because the petitions and motions were signed by nonattorney employees. Read the Bill »

Outcome

Bill Has Passed

History

DateAction
01/09/2008Committee
01/09/2008Presented and ordered printed 080408806
01/09/2008Referred to Committee for Courts of Justice
01/18/2008Impact statement from DPB (HB1382)
02/01/2008Reported from Courts of Justice (22-Y 0-N) (see vote tally)
02/05/2008Read first time
02/06/2008Read second time and engrossed
02/07/2008Engrossment reconsidered by House
02/07/2008Read second time
02/07/2008Amendments by Delegate Iaquinto agreed to
02/07/2008Engrossed by House as amended HB1382E
02/07/2008Printed as engrossed 080408806-E
02/08/2008Impact statement from DPB (HB1382E)
02/08/2008Read third time and passed House (97-Y 2-N)
02/08/2008VOTE: --- PASSAGE (97-Y 2-N) (see vote tally)
02/08/2008Communicated to Senate
02/11/2008Constitutional reading dispensed
02/11/2008Referred to Committee for Courts of Justice
02/13/2008Reported from Courts of Justice with amendments (15-Y 0-N) (see vote tally)
02/15/2008Constitutional reading dispensed (38-Y 1-N)
02/18/2008Read third time
02/18/2008Reading of amendments waived
02/18/2008Committee amendments agreed to
02/18/2008Engrossed by Senate as amended
02/18/2008Passed Senate with amendments (38-Y 2-N)
02/19/2008Placed on Calendar
02/20/2008Senate amendments agreed to by House (96-Y 1-N)
02/20/2008VOTE: --- ADOPTION (96-Y 1-N)
02/21/2008Enrolled
02/21/2008Bill text as passed House and Senate (HB1382ER)
02/21/2008Signed by Speaker
02/25/2008Impact statement from DPB (HB1382ER)
02/25/2008Signed by President
03/02/2008G Approved by Governor-Chapter 135 (effective 7/1/08)
03/02/2008G Approved by Governor-Chapter 136 (effective 7/1/08)
03/05/2008G Acts of Assembly Chapter text (CHAP0136)

Duplicate Bills

The following bills are identical to this one: SB788.

Comments

Dave Briggman writes:

Introduced by Delegate Iaquinto, who I believe replaced Attorney General Bob McDonnell in the House of Delegates and was, himself, a former Assistant Attorney General. This bill stinks to high heaven and attempts to cover criminal wrongdoing by non-attorney employees of DCSE as well as the incompetence of those in the Attorney General's Office.

This legislation attempts to undo some 20 years of criminal law violations by non-attorney employees of the Division of Child Support Enforcement who have illegally signed pleadings in the Juvenile Courts for approximately that period of time. It also attempts to render 20 years of void orders valid with a vote and a signature by desiring to apply a law modified in 2008 to void orders entered decades ago.

I would encourage anyone who has had DCSE in an adversarial position against them in JDR Court (either a support establishment, modification, or contempt hearing) to file motions to vacate those orders IF THE PLEADINGS THAT INITIATED THE COURT ACTION WAS SIGNED BY NON-ATTORNEY EMPLOYEES. Please do so BEFORE JULY 1, 2008, should this piece of crap become the law.

Make no mistake. If a non-attorney of DCSE signed a pleading to inititate a court action on your behalf, the resulting order is VOID AB INITIO, in my opinion.

If you need supporting statutes and caselaw please email me at briggman@gmail.com.

William Walters writes:

Delegate Iaquinto:

I am most disappointed that you would ever consider sponsoring HB 1382. There is already too much injustice occurring in the Commonwealth's JD&R courts. As an elected official, don't you support the rule of law? This is a power grab - pure and simple - a measure designed to sweep years of abuse by state bureaucrats under the rug. As an elected official and public servant, you should be looking out for the citizens of the Commonwealth - not looking for ways to milk them. Your effort reminds me of the type of actions that communist lawmakers undertook to buck up their repressive governments. I spent years in Eastern Europe helping people recover from the abuses of repressive and corrupt government so I know what I am talking about when I make this comparison. Your proposed legislation is disgraceful.

Why not sponsor legislation that reminds civil servants that it is their responsibility to follow the Commonwealth's laws in the first place? If they had, you would not be in this mess.

tom porter writes:

I think it's amazing that 20 years of illegal activity can be swept under the carpet with a pen stroke over a tax payer funded lunch

I would summon all the web warriors to dig up all the indiscretions they can on these weasels and publish everything

every strip club and private lunch with a cute intern should be made website front page

the only way to fight fire is with a flamethrower

this takes bigger balls than I've ever had or known of.....where does he buy his pants

Waldo Jaquith writes:

I'd be very interested to read any news articles that address this bill or its background story. The bill summary is pretty suspicious.

Dave Briggman writes:

Waldo,

Here is the only article appearing in any media outlet in Virginia on this issue, Virginia Lawyers Weekly. Ironically, it was not an attorney who discovered this violation, it was me.

Dave Briggman writes:

For those in the Virginia General Assembly who are interested, if passed with RETROACTIVITY, I will sue Virginia over it's enactment.

This case, SCILLEY, RESPONDENT, v. RED LODGE-ROSEBUD IRRIGATION DISTRICT ET AL., APPELLANTS; FARM MORTGAGE CORPORATION, INTERVENER AND APPELLANT, 83 Mont. 282; 272 P. 543; 1928 Mont. LEXIS 37, appears to suggest to me that it's enactment cannot give courts jurisdiction where none formerly existed, meaning that those orders which are void, as I allege all of them are, remain void — regardless of the enactment of any legislation.

Dave Briggman writes:

Sorry, heard are the applicable headnotes from the case:

Curative Statutes--When Proper--When Ineffectual.

6. The legislature has power to enact curative or healing Acts, or Acts legalizing past transactions; if the thing wanting or which was not done and which constitutes the defect in a prior proceeding is something which the legislature might have dispensed with in the first instance, a subsequent one dispensing with it retrospectively is valid, and it may properly deprive a party of the right to attack a judgment or order on the ground of such irregularities; but where a judgment affecting substantial property rights was obtained without bringing the owner or his property within the jurisdiction of the court rendering it, such judgment never had life and an Act of the legislature validating it is ineffectual. 6

Irrigation Districts--Lack of Jurisdiction--Curative Statutes cannot Cure Defect.

7. Under the last rule above, held that section 4024, Revised Codes 1921, and Chapter 54, section 2, Laws of 1923, validating proceedings theretofore had in the creation of irrigation districts, and in the authorization, issuance and sale of bonds by them, cannot be given the effect of curing a want of jurisdiction over a land owner and his lands when his irrigated lands were included without his written consent and without an opportunity to be heard in opposition to their inclusion, due to failure of notice of the hearing on the petition for the creation of the district.

William Dolan writes:

I am a Virginia resident and have been an attorney for 28 years. The legislature should NOT retroactively legalize the illegal court pleadings which have been signed by non-attorney DCSE employees.

The unauthorized practice of law by non-attorney DCSE employees is just one of many DCSE abuses that have come to light. For instance, in one case, I saw a DCSE attorney represent the mother in the custody portion of her case (not merely in the child-support). I have also seen DCSE try to block the disclosure to the father of maternal (hidden) assets.

No one should re-write the law to legalize these illegitimate acts of DCSE. Thank you.

Marsha Maines writes:

Virginia is now a Police State, and ANYONE who exposes the DCSE, FOIA Council, the Va. State Bar and some Judges not to be publicly named, are all in bed together with Mr. "RICO" faces Retaliation; I KNOW.
Besides, what better cover up than to claim that Va's 'children' are owed supposedly "$2.4 Billion" based on unverified, inaccarrately claimed 'facts'..When you can't even view a support order and compare it to what the DCSE alleges is 'due' and NOBODY seems to realize the money is funneled through the states bank accounts-yet nobody knows what the state is earning on those MILLIONS of dollars...
If 65% of Va's $$ comes from DCSE, and they put 'only 9,000' parents in work release slave labor camps just last year to payoff that $587 MILLION that the state got matching funds from the Feds for...are you connecting the dots here?? The work release camps are located in counties with 'privately owned' jails...guess who 'owns' those jail (outside their own jurisdictions of course)...Why the FBI isn't taking EVERYONE down, I have no clue..maybe Mr. Attorney General has a 'buddy' working there too..
Let's face it, Child Support is NOT about supporting 'the children' - it's about FUNDING THE STATE..Why can't anyone who needs child support money go to a Clerk and file a Motion to have the Judge ORDER the other parent to pay or else? The DCSE serves NO PURPOSE - they are a 'collection agency' that does not follow Fair Credit Lending Law, has the authority to EXTORT from 2nd families, friends and others, Takes the driver's license of so called 'deadbeats' and then jails them when they can't get a job to go to work!!
NON ATTORNEYS CANNOT FILE MOTIONS FOR RULE TO SHOW CAUSE because it renders a LEGAL OPINION to charge for either Civil or Criminal Contempt..the Virginia Supreme Court has stated this in muliple UPL's. These MRSC filed ILLEGALLY are 'how' the state has gotten their $$$$. What happened to due process? Why are these cases held in "courts not of record"? Why are the appeal rates 'so low' as N.Young at DCSE claims to General Assembly..there "NO" Appeal process, NO due process, no court transcripts...only 'whatever' the DCSE 'alleges'..and the Judges just walk the line..

spotter writes:

Wow. Just wow.

Dave Briggman writes:

Delegate Toscano, of Charlottesville, has signed on as a co-sponsor. This idiot was formerly on the Charlottesville City Council.

His phone number is 804-698-1057

Marsha Maines writes:

FACINATING that the Fiscal Impact statement offered with this Bill is SO INACCURATE..just like the accounting databases of the DCSE...They spend over $35 million on salaries per year to employ over 875 employees, yet claim that requiring their own Asst. Attorney Generals to sign approximately 6-8 legal pleadings per business day, AFTER actually reviewing the cases to verify the data is ACCURATE and FACTUAL, prior to submission to a Court, would be 'burdensom' and requiring MORE lawyers..this was ALREADY their JOB - they just haven't been doing it. And to actually claim this Bill "clarifies current statutory authority authorizing nonattorney employees..." WHEN Current Statutory Authority already FORBIDS it, only puts the icing on the cake!! SEE Supreme Cour UPL's 73,194,204,207 and Va Statutes 8.01- 271.1, 16.1-88(B), 16.1-278.16, 63.2-1950,2.2-507 since THIS LEGISLATOR cannot interpret the Statutes CORRECTLY. When the STATE employs an Attorney, ONLY the Attorney can render legal conclusions and file legal pleadings, motions, petitions with the Courts. Otherwise, ALL the REST of US Joe Schmoes need to be left alone to file 'whatever' we want to against 'whoever' we want to, claiming 'whatever' we call 'facts' against anyone else on behalf of 3rd parties...

Marsha Maines writes:

THIS IS AN ATTEMPT TO COVER UP RICO ACTIONS COMMITTED BY THE ATTORNEY GENERAL.
DCSE HAS ILLEGALLY CLAIMED MILLIONS OF $$$ OF unverified debt to enable 'the state' to obtain Federal matching dollars. They charge interest on interest illegally and do not follow Fair Credit Lending Law either. The books are cooked and this legislation is an attempt to sweep it under the rug. "Knowledge will forever govern ignorance, and people who mean to be their own governors, must arm themselves with the power which knowledge gives." [James Madison]

Dave Briggman writes:

This is the Senate equivalent to House Bill 1382...while this Bill could act prospectively, should this legislation be passed and signed into law, I'll be in U.S. District Court the following day challenging the retroactive provisions, which are clearly a violation of the law.

John L. Bauserman, Jr., Esq. writes:

HB 1382 and the companion SB788 need to be withdrawn or voted down in committee. They cannot be fixed.

I first disclose that this issue of non-attorney employees of the Division of Child Support Enforcement signing legal pleadings and motions was brought to my attention by David Briggman, who is former and current client of mine. That said, here is my summary of why these bills are not just bad, but terrible ideas:
(1) This bill would create a massive and prospective exception to the requirement under existing Virginia law, 8.01-271.1, which requires all legal pleadings and motions to be signed by either an attorney, or by a party representing him/herself (pro se). The Attorney General's Office has made a judicial admission elsewhere that the DCSE has filed approximately 55,000 pleadings and motions in courts of Virginia last year, UPON THE SIGNATURES OF NON-ATTORNEY employees. There is eighty years of case law on this, almost without exception standing for the proposition that all suits, pleadings and motions filed upon the signatures of non-attorneys (excepting pro se litigants) are "legal nullities", which means that the court in which such pleading is filed has no subject matter jurisdiction and thus no authoriy to do anything further in the case, exceot dismiss the case. Any order subsequently entered in a case initiated by a filing of a pleading upon the signature of a non-attorney, non-party is a void order. And since subject matter jurisdicition is never waived and can be raised at any time, such orders may almost always be challenged at any time, even years later. This current legislation seeks to create a massive exception to eighty years of precedent.

(2) The signature of an attorney upon a pleading means that she or he has made a reasonable good faith effort to review the underlying facts and that the pleading is well grounded in both fact and law, and is not filed for delay or any improper purpose. That is our ethical responsibility, enforced by the Courts and by the ethical rules of practice. With non-parties, there is less accountability. Who will hold these non-attorney's accountable for mistakes in these filings of thousands of pleadings? And do we, both Virginia STate Bar members and non-member citizens really want a legal exception created to allow thousands of pleadings to be filed by paralegals? I think not.

(3) The legislation, as written, could potentially subject hundreds of DSS and DCSE non-attorney employees statewide to court sanctions and personal financial liability if they make significant errors in the pleadings they file. I wonder if DSS workers and DCSE non-attorneys are prepared to continue to accept this liability in the future (notwithstanding all the hundreds of thousands of pleadings such persona have filed during the past twenty years). Will the state pay for their defense if sanctions are sought against them, or pay their sanctions, if imposed? Who will be accountable to the public? and to the employees who are going to be expected to prepare and file these thousands of pleadings annually?

(4) The proposed legislation purports to be applied retroactively, (see proposed change to 16.1-278.15(D), to validate tens of thousands of orders previously entered erroneously by the courts upon pleadings initiated upon signatures of non-attorney employees of the Division of Child Support Enforcement over the last twenty years. This measure is of highly dubious Constitutional and common law legality, in that it is retroactive in its application. Retroactive laws, which seek to impair substantive rights of the citizenry are almost never Constitutional. This provision of the law, as remarked upon by priro commentators above, is inevitably going to be challenged in court and quite likely declared unconstitutional. How much will the state spend to defend on this issue? And more importantly, is the proposal fair? I have one former client who was erroneously jailed for one year(!) upon an order that had been superceded by a subsequent support order, but he was prosecuted for contempt on the first (superceded) order, which was no longer valid or enforceable. And you guessed it - a non-attorney employee of DCSE evaluted the merits of the petition for the rule to show cause and filed for the rule to show cause upon her own (non-attorney) signature. I would like to think that an attorney might have caught that mistake up front, but there is comparatively less chance of a paralegal catching such errors on the front end. How many persons are similarly jailed upon egregious errors, or have to spend thousands on attorneys to defend against factually innacurrate or legally erroneous pleadings? I had another case where a non-attorney employee of DCSE had support enforcement pleadings issued against my client, who was not the proper party. I went to court and graciously pointed out the error, and afer much debate, the summons was dismissed. Then, six months later, the poor client was summonsed AGAIN by the same DCSE office. SAMe mistake. The consequences of getting it right are real and expensive up front.
(5) Finally, this legislation is so broad that it appers that it applies to any non-attorney employees of Department of Social SErvices, not just to non-attorney employees of the Division of Child Support Enforcement. Do we want to expand the types of pleadings which can be filed by non-attorneys, WITHOUT adequate or standardized legal training? DSS employees, such as Child Protective SErvices caseworkers can now file legal pleadings for child removal, children in need of services (CHINS petitions), protective orders, etc, without any attorney review ahead of time??!! I predict more errors, more children removed from their parents, and more lawsuits against the state.

Where is the Viginia state bar on this one?
Taxpayers, are you listening?
Libertarians, do you want the case workers and bureaucrats, no matter how well intentioned, to have this expansion of their authority over your kids and your pocketbooks?
Attorneys, do you want non-attorneys making these judgments 55 thousand times each year without attorney review and oversight on each pleading?

John L. Bauserman, Jr., Esq. writes:

Kill this bill now, it cannot be fixed:

first, full disclosure: this issue arises in large measure out a case I litigated in Fairfax JDR Court. Also, Dave Briggman, who called this issue to my attention, is a former and current client of mine. That said, moving beyond the narrow interests of one client and one lawyer, kill this bill now, for the following reasons:

(1) It is a bad idea to empower rank and file social workers (DCSE support specialists, child protective services case workers, foster care workers, adult protective services workers, etc) with even more authority to file legal pleadings without even obtaining minimal attorney review. Does anyone really believe that, no matter how well intentioned such workers are, that they should be empowered and entrusted to make these kind of important legal judgements?

(2) There is eighty years of legal precedent in Virginia that stands for the proposition that non-attorneys cannot file legal causes of actions or pleadings, unless they are litigating their own case pro se. This would undo years of established precedent, and create (or validate) a MASSIVE exception. Where does it end?

(3) The legislation is clearly intended to be retroactive in effect and will impair substantive rights of tens of thousands of persons in virginia. I seriously doubt the implications of this have been fully considered. DCSE has grossly mismanaged its caseload by allowing tens of thousands of pleadings to be filed on non-attorney signatures. Where is the accountability?

(4) Do these hundreds of rank and file case workers understand that potential liability they will assume for signing pleadings, if there is a significant factual or legal error? They will be subjected to sanctions by the Court. Do they have the understanding, knowledge and background, much less the desire, to take on that liability? Who will defend them if the need arises?

(5) I make the assumption that the state bar membership has not weighed in on this issue. I predict a tremendously unfavorable response if the issue and implications are clearly laid out and discussed with family law/elder law and criminal defense attorneys statewide.

John L. Bauserman, Jr., Esq (Fairfax, virginia)

Ron Jag writes:

This bill if enacted will be a disaster for Virginia. Particularly our children. Social Workers and non-attorney employees of social services are not trained in the Law. They DO NOT HAVE THE KNOWLEDGE OR THE TRAINING to identify hersay from evidence.

These people are the "QUACKS OF THE LEGAL PROFESSION". If these people are allowed to file petitions and motions. - Then We might as well allow a scooter mechanics, the plumbers and the cab drivers to be officers of the court.

"Virginia is for Lawyering" not lovers.

Dave Briggman writes:

The retroactive provisions of this legislation and House Bill 1382 are illegal and unconstitutional. Further, why should we expect to rely on the judgment of non-attorney employees of DCSE, when the LAWYERS in the Attorney General's Office has been allowing this practice to go on for 20 years in violation of Virginia law? Further, attorneys in private practice, with less than a handful of exceptions, have never even inquired as to who was signing the motions in the first place.

Clearly, Bob McDonnell and his cronies, with respect to these two pieces of legislation, meet the dictionary definition of fascist by protecting the government from its own screwups over the rights of the individual.

Marsha Maines writes:

Why bother going to law school? You can now be a 'lawyer' just by applying for a receptionist job at your local DCSE office! AND - you'll NEVER get in trouble for lying to the Court, or have to pay restitution to a family for sending someone to jail just because you can get away with lying to a judge!
So now, perjury is Legal too!! WOW.
What was it Bill Clinton said - oh yeah -"The purpose of government is to rein in the rights of the people." That right.

Chuck K writes:

If you guys knew the system, this is already in our code. This bill just clarified it. It's a practice that already takes place but some dumbass judge cant read the law well enough to see that...hence this bill clarifying throughout the code so biased judges with moral standpoints such as yours will be inclined to actually look at the law before ruling on it.

Thanks and do your research.

Dave Briggman writes:

Really, Chuck? why not show us all where this practice is already codified? It isn't Chuck and merely stating that this "clarifies" present law doesn't make it so.

I would suggest you take a look at Jones v. DCSE, 19 Va.App. 184, 450 S.E.2d 172, 1994, where the Court of Appear ruled that non-attorney employees of DCSE can't even sign a Notice of Appeal without making it invalid.

Further, if you look at the Jones v. Jones case from the Court of Appeals of 2006, you might read where the court said that only two people can legally sign pleadings here in Virginia: pro se litigants and attorneys licensed to practice law.

If you are thinking that § 16.1-260(A)(ii) gives them that right, than you no zero about the law. This statute merely gives DCSE standing to enter cases. It omits any reference to non-attorney employees being allowed to sign pleadings. Neither does §08.01-271.1 and most importantly, § 16.1-88.03(B) specifically BARS non-attorney employees of ANY LEGAL ENTITY IN VIRGINIA from signing motions for show cause summons".

Thanks, I've done my research and sued the Commonwealth which is why Virginia has introduced this legislation.

Have you any response, Chucky?

Marsha Maines writes:

Chuck - EXACTLY 'which' code are you referring to?
..your snake oil claim there was ANY LAW on Virginia's books that permits someone who is "NOT" a licensed lawyer to practice law is the same bull our legislators just bought. Go ahead, Cite the Statute you claim 'already existed'
Want a taste of reality?
"On November 15, 2007, the Boston Office of the U.S. Marshal started serving the RICO complaint on the sixteen defendants. The message transmitted shortly thereafter to several media outlets reads: “Civil RICO Suit Names Thirteen Lawyers and Three Judges in Staged Litigation Scheme.”
EXPECT TO SEE THIS COMING ...Virginia has been involved in a MASSIVE scheme to defraud the tax paying public, the Federal Government and the State's own employees...all 875 of them eating over $35 MILLION in Salaries..where do you think the $$ has been coming from??? "efficient" and "legal" collection efforts like the Gov and AG claim? SHOW ME THE STATUTE YOU ARE REFERRING TO>>> I'll show you at least half a dozen proving you incorrect..

Marsha Maines writes:

The Governor signed this into law a week ago, without anyone from the Public at Large having ANY CHANCE to oppose it before the Assembly or any opportunity to expose the illegality of creating a new law 'retroactivly' cover up former illegal activity.