What's Happening?
A century-old Virginia law, Code § 30-5, grants attorneys serving in the General Assembly, legislative employees, and their represented parties the right to postpone court and administrative proceedings. This right applies during periods surrounding General Assembly sessions
and various legislative meetings. Specifically, a continuance can be obtained 'as a matter of right' starting 30 days before a session and ending 30 days after its adjournment. The protection also covers the day before, of, and after meetings of legislative commissions, councils, and committees that the lawmaker is scheduled to attend. If a judge denies a qualifying request, the decision constitutes reversible error, meaning a higher court can overturn it on appeal. Temporary injunctions are exempt and remain within the court’s discretion. This provision has been invoked by lawmakers from both parties, including recently by Virginia House Minority Leader Terry Kilgore in a felony case and House Speaker Don Scott in a defamation suit. Critics argue the law can lead to significant delays for litigants, while proponents maintain it is essential for balancing legislative duties with private employment in a part-time legislature.
Why It's Important?
This law significantly impacts the judicial process in Virginia, potentially leading to prolonged legal proceedings for citizens. For individuals involved in cases where opposing counsel is a legislator, the ability to secure automatic continuances can delay justice, affect financial outcomes, and complicate the availability and memory of witnesses. This creates an imbalance, as a 'sophisticated litigant' could strategically hire a legislator-attorney to delay a resolution. While proponents argue it protects clients from being disadvantaged when their lawyer is called to Richmond, critics highlight instances where the law has been used to extend cases for months or even years, potentially undermining the principle of a speedy trial. The law also raises questions about the separation of powers, as the legislative branch dictates how courts rule on certain motions. The increasing year-round demands on Virginia's 'part-time' legislature further amplify the potential for these delays, making the law's impact on the state's legal system more pronounced.
What's Next?
The debate surrounding Virginia Code § 30-5 is likely to continue, with calls for reform from some legal professionals. Bristol attorney John Lamie advocates for repealing the current law and replacing it with a narrower protection, limited to active legislative sessions and allowing only one such continuance per case. He also suggests broader exemptions for criminal proceedings and civil matters where delays could cause irreparable harm. However, significant legislative change appears unlikely in the near future, as political analyst Bob Holsworth notes that those who wish to change the law are typically not within the legislature itself. Lawmakers who benefit from the provision, particularly those who are also practicing attorneys, are not expected to prioritize its reform. Therefore, without substantial public pressure or a shift in legislative priorities, the law is expected to remain largely as is, continuing to allow legislator-attorneys to delay court cases.
Beyond the Headlines
The long-standing Virginia law allowing legislator-attorneys to delay court cases highlights a deeper tension between public service and private professional interests within a part-time legislative system. While intended to ensure that legislative duties do not disadvantage a lawyer's clients, the law's broad application and 'matter of right' provision can inadvertently create ethical dilemmas and perceptions of unfair advantage. The historical context, tracing back to the 1919 code and upheld by the Supreme Court of Virginia in 1972, underscores the deeply entrenched nature of this privilege. The law's existence also points to the challenges of maintaining a citizen legislature, where members often need to balance their public roles with other employment. The lack of significant reform despite periodic complaints suggests a powerful internal resistance to change, raising questions about accountability and the potential for legislative self-interest to override broader concerns about judicial efficiency and equitable access to justice.
