Virginia state senator Jill Holtzman Vogel (R-27) plans to introduce special interest legislation next week to amend Virginia’s Property Owners’ Association Act (POA Act) whose sole purpose is to affect the outcome of active litigation in Frederick County.
Vogel’s proposed legislation:
- Was originally drafted by the attorneys for Miller & Smith, a big northern Virginia developer and one of the defendants in the lawsuit;
- Is an attempt to get around 3 Virginia Supreme Court decisions over more than a decade;
- Is inconsistent with well-settled Virginia property law and at odds with the state constitution; and
- Will impact the property rights and values of owners in more than 9100 community associations throughout the state.
- Is a public policy lawyer, and by her own admission to plaintiffs’ counsel, does not have the knowledge or experience to hastily tinker with property law;
- Hasn’t had the time to fully evaluate the unintended consequences on property owners in more than 9100 community associations across the state;
- Repeatedly masks her efforts as a small “fix” to a definition in the POA Act; and
- Is trying to slip her legislation through in a very short special session of the legislature focused on transportation issues – a completely unrelated matter.
All that’s bad enough. What’s even more troubling is how she’s used the media to distort what’s behind her efforts and to distort how the plaintiffs regard her inappropriate meddling in active litigation.
|1996-2007||Miller & Smith is a donor to Sen. Richard Saslaw (D-35).|
|?||According to Vogel, Saslaw encourages her to undertake this project and offers the story that his personal doctor asked him to help out. She commits to him to introduce the legislation.|
|6/4/08||LHCC announces Vogel would hold an “open meeting” to “discuss the Bemis lawsuit and its impact”, moderated by local attorney Mark Stivers, counsel for a group of defendants.|
|6/10/08||Wayne Travell, plaintiffs’ counsel, emails Mark Stivers and asks if he can attend.|
|6/12/08||After getting no response from Stivers, Travell faxes him a letter.|
|6/16/08||Travell receives Stivers’ response. The reply: Travell is not welcome at Vogel’s allegedly “open meeting”, all of which is well documented.|
|6/18/08||Travell informs Vogel by telephone conversation and emailed letter that he’s being kept out of her “open meeting”.|
|6/18/08 4:39 pm||Vogel provides Travell a copy of draft language she said had been written by lawyers at Reed Smith, counsel for Miller & Smith (a big northern Virginia developer).|
|6/18/08 6:00 pm||Vogel holds her allegedly “open meeting” and, according to newspaper reports in both the Winchester Star and NV Daily, commits to introduce legislation at a meeting whose announced purpose was to be a moderated discussion. According to a property owner at the meeting, in response to a question on the appropriateness of her intervention, Vogel said that the Virginia Attorney General declined to assist her office, citing ongoing litigation.|
|6/19/08 10:30 am||Vogel meets with plaintiffs’ counsel for the first time and acknowledges that she is not a real estate lawyer, did not understand the lawsuit and the POA Act, and that her first draft of the legislation was provided by lawyers for another party to the lawsuit. Plaintiffs’ counsel tell Vogel they are deeply troubled by her plan and urge her to stop.|
|6/20/08||Vogel tells the Winchester Star that the plaintiffs are “super-excited” by her efforts, despite repeated communications with plaintiffs’ counsel expressing they viewed her plans as inappropriate meddling in active litigation.|
Let’s be absolutely clear. The plaintiffs are not “super-excited” by Jill Vogel’s efforts. They’re very troubled a sitting state senator would even contemplate introducing legislation drafted by 1 side of an active court case to attempt to re-write Virginia law in an area where she has acknowledged she lacks both experience and background, let alone publicly commit to doing so. She exposed her own lack of background when she described the POA Act as “almost 40 years old.” The POA Act was first enacted by the Virginia legislature in 1989, making it 19 – not almost 40 – years old. It’s a clear abuse of the legislative process when poorly informed legislators try to pass legislation to tip a pending court case that could, if enacted, end up having widespread, unintended consequences and upset well-settled Virginia law.
The Winchester Star reported Vogel said:
I don’t want to mess up what the plaintiffs otherwise want to gain.
That’s disingenuous nonsense. Wayne Travell, plaintiff’s counsel, in a face-to-face meeting, in phone conversations, and in multiple email messages unambiguously communicated to Vogel that the plaintiffs opposed her inappropriate intervention. After reading Saturday’s Winchester Star, Travell emailed Vogel to express that he was “shocked” at what he read. Of Vogel’s characterization of the plaintiffs’ position, Travell wrote:
Nothing could be further from the truth.
Vogel chose to interfere in an active court case. Her interference was prompted by the request of 1 side, not all sides, and was accompanied by strong and repeated requests by plaintiffs that she abandon her ill-advised plan. Those facts don’t square at all with her own statement that she is not trying to “mess up” the plaintiffs’ position in an active case. That is exactly what her legislation is all about: messing up 1 side for the benefit of the other, which just happens to be that of a big developer.
Vogel committed to proposing new legislation before even meeting with counsel for plaintiffs, so she could not possibly have understood what plaintiffs “want to gain” before deciding to intervene. She accepted draft legislation from the lawyers for 1 side. Despite learning before the allegedly “open meeting” that counsel for the plaintiffs would not be allowed to attend, she went ahead and held her meeting anyway. Later that same night, the lawyers that drafted her legislation called her to say that their own language wouldn’t solve their legal problems, so she’d have to come up with something else to fix their troubles. For a legislative session that starts on Monday, June 23rd, Vogel has been unable to provide a copy of her proposed legislation at this writing – late in the afternoon on the day before.
Local attorney Mark Stivers told the Winchester Star that he believes LHCC is a property owners’ association that falls under Virginia’s POA Act. If he really believes that, why is there so much effort spent to change the law? If the law is on your side, why do you need to change it?