NEWS AND NOTES FROM THE APPELLATE SCENE

 

[Posted February 3, 2009]  In addition to today’s announcement of a single published order by the Court of Appeals, a couple of other noteworthy developments deserve mention here.

 

First, Attorney General Bob McDonnell has announced that he’ll step down on February 20 to run for Governor.  That’s appellate news because there’s a good chance his successor will be his chief deputy, Bill Mims.  Bill has considerable appellate experience, and if he takes over the corner office, it will further deplete the OAG’s appellate talent pool.  Former Solicitor General Bill Thro left back in September to head up the legal affairs section of Christopher Newport University in Newport News.  His deputy, Steve McCullough, became the new Solicitor General, but Steve’s old position hasn’t been filled.

 

Virginia Lawyers Weekly is reporting today that a couple of bills affecting appellate courts have cleared House subcommittees and will thus head into the full committees for consideration.  Those bills would (1) relocate control of the judicial evaluation program from the Supreme Court to the legislature, and (2) limit the term of the chief justice to two (four years each).

 

The first bill is in response to an interesting separation of powers question.  Currently the high court administers judicial evaluations, and when handing out forms last year, it apparently assured the recipients of the questionnaires that their responses would be confidential.  The court figured that releasing them to the legislators would be kosher, but in transmitting the reports to the General Assembly, the court forbade that they be given to anyone who wasn’t a member of the legislature.

 

As a practical matter, that’s pretty hard to enforce; once you give a document to public officials like these, it’s eminently foreseeable that someone else is going to see it.  That’s not to say that the legislators will be sloppy with it; it reflects instead the number of people who would have to see it to make meaningful evaluations and recommendations based on the data.  The legislators rankled at being told what they could and couldn’t do, so as a symbolic protest they returned the sealed envelopes without opening them.

 

The separation of powers issue is this:  How does the court tell another branch of government what it can’t do?  Ordinarily the only limitations the court can enforce against another branch of government are those found in the Constitution of Virginia.  The current bill seeks to avoid such a conflict in its entirety by removing from the court the power to control the evaluation process.  If it passes, then the legislators will get to do what they want with the information; I infer that future survey recipients won’t be told that their responses will be kept private.

 

The second bill has been widely reported as being the product of a perceived feud between certain legislators and the chief justice.  Once upon a tie, the position of chief justice was a product of tenure; whichever justice had served on the court the longest automatically became the chief.  When Chief Justice Carrico retired several years ago, the court secured from the General Assembly passage of a statute that permitted the court to select its chief by majority vote.  That resulted in the election of Chief Justice Hassell for a four-year term.  He was reelected a couple of years ago.

 

The next chief justice of our Commonwealth, whoever he or she might be, will have quite an act to follow. The current chief has energetically pursued a number of initiatives, both within and without the judicial system, and has set a very high bar for his successors.  Two years ago, the chief proposed a significant change in the way Virginia responds to mental health issues.  The legislature was either unimpressed or defensive about what it saw as an effort to horn in on policymaking decisions; it shot down the chief’s proposal.

 

That development didn’t exactly inspire the chief to crawl into a shell; he has continued to speak out on issues of public importance, and may have stepped on some legislative toes in the process.  Hence this bill, which would prevent his standing for a third term when the current one expires somewhere around 2011.  The VLW article reports that the bill’s sponsor, Del. Bill Janis, thinks the current framework puts too much power in the hands of one individual.

 

I am in no position to referee this dispute; nor do I have any firsthand knowledge of the facts recited in this and other stories about the matter.  But I recognize that turf wars are unpleasant things, and I hope this one resolves itself peacefully soon.

 

One last topic:  The legislature will soon name a successor to recently retired CAV Judge Jean Clements, who has taken senior judge status.  Her willingness to do that brings the court up to its full complement of five senior judges (the maximum allowed by law).  Once her active slot is filled, the court will be running at full strength, something the Fourth Circuit wishes it could say.

 

A number of candidates have put their names in the judicial hat; from what I’ve seen, the majority are from the Northern Virginia area, reflecting the perception that the replacement jurist should come from there.  I seriously doubt the legislature will repeat last year’s impasse, which handed Governor Kaine the opportunity to name Justice Millette and Judge Powell to the Supreme Court and CAV, respectively.