Lawyer’s use of legislative continuance questioned

By Peter Vieth, Virginia Lawyers Weekly – 11/13/2019

The Supreme Court of Virginia may question a state lawyer-legislator next month about his extended use of the state’s legislative continuance privilege.

Del. Jeffrey Campbell, R-Marion, has used the legislative continuance statute to delay a Supreme Court appeal for more than a year based on an ongoing 2018 special session of the General Assembly.

In a rare move, the justices have ordered a full court hearing next month on a motion to compel Campbell to file a brief in the appeal, even though the Assembly technically remains in session. The case implicates the boundaries between legislative and judicial prerogatives.

Virginia Code § 30-5 entitles a legislator to a continuance as a matter of right from 30 days before the Assembly session to 30 days after. Failure to allow the requested continuance “shall constitute reversible error” the statute says. Although the House and Senate have not convened in Richmond since this summer, a 2018 special budget session is still open, pleadings say. Campbell relied on that extended session to request the prolonged intermission in the appeal.

Campbell has used the legislative continuance in a hometown case as well, postponing action in a Smyth County domestic assault case seven times, according to documents filed with the Supreme Court.

But Campbell continues to attend to other legal work, according to his opponent’s motion. In the year ending Aug. 1, he appeared in more than 160 cases in Smyth County Circuit Court and 26 cases in the district courts, the opponent’s lawyer said.

“The intent of the statute is not to allow members of the Virginia General Assembly to needlessly delay court proceedings for weeks, months, or even years when the members of the General Assembly are not even physically present in Richmond, but the ‘special session’ remains [open] due to a procedural technicality,” wrote attorney Paul V. Morrison II of Marion.

Morrison is counsel for plaintiffs in a challenge to the Smyth County Board of Supervisors under the state’s open meetings law.

The Supreme Court has set oral argument before the full court for Dec. 3 on Morrison’s motion to compel an appellate brief from Campbell. The justices set a schedule for briefs on the continuance issues.

Campbell did not return several requests for comment.

Freedom of Information case
The underlying case involves closed-door meetings of the Smyth County Board of Supervisors. The board acted to withdraw from a regional library system in 2017. Plaintiffs in an open-government lawsuit claimed the library decision was made “in secret, behind closed doors, and in hushed tones,” the Smyth County News & Messenger reported.

In May, Circuit Judge Sage B. Johnson rejected the claim of wrongdoing under the Virginia Freedom of Information Act, citing litigation concerns that were properly considered in a closed session.

But Morrison, representing the head of “Friends of the Smyth-Bland Regional Library,” said the litigation concerns were a pretext. He argued the board continues to hold closed meetings using the same “insufficient motions” as those challenged in the appeal. The Supreme Court granted an appeal in March of 2018, and Morrison’s opening brief was filed April 9, 2018.

Delay requested
Campbell quickly called time out. He filed a motion for relief from deadlines 11 days after the opening brief was filed, citing the Assembly’s special session to address a budget impasse, Morrison said. In May of last year, the Supreme Court awarded Campbell an extension of time to respond to the appeal until 30 days after adjournment of the special session.

Campbell has been silent since, his opponent says. Since that extension, “over 500 days have elapsed, and counsel for the Appellees has elected to not file a response to this appeal,” Morrison wrote Oct. 14.

There are three special sessions of the General Assembly that technically remain in session, two from 2018 and one from 2019. In each session, the bodies adjourned without finality.

Campbell appears not to be overwhelmed with legislative work, Morrison contended. While the Assembly technically may remain in special session, Campbell has returned to Marion and is “appearing regularly as counsel of record in cases he chooses to pursue,” Morrison wrote. He’s also appeared at 11 supervisors meetings as county counsel, Morrison said.

“The Appellants are prejudiced by the substantial delay in this case, as the Smyth County Board of Supervisors continues to enter into closed session at nearly every meeting utilizing the same insufficient motions as those complained of in this appeal,” Morrison wrote.

Campbell did not respond to the motion, despite a rule giving opposing counsel 10 days to respond to a motion before the Supreme Court, according to the court’s Oct. 30 order.

The court’s order cited Morrison’s allegations and set the Dec. 3 full court hearing.

Extended continuance
Campbell also has used the legislative continuance to put an extended hold on the criminal prosecution of a client, Morrison said.

Eric W. McClure of Chilhowie was charged last year with battery of a household member, court records show. In June 2018, he appealed a juvenile and domestic relations court judgment to the circuit court, but seven times Campbell has secured a continuance under § 30-5, according to online court records and documents submitted to the Supreme Court. The multiple continuances have delayed trial for 14 months on a charge against Campbell’s client, Morrison said.

McClure’s current trial date is Jan. 15, one week after the 2020 General Assembly session begins.

Constitutional conflict
The Supreme Court’s special session for the Smyth County appeal could raise questions about the boundaries between the legislative and judicial branches of government. The Assembly created the continuance statute for its members, but the Supreme Court oversees the court system and regulates attorneys.

The motion to compel Campbell to file the expected appellee brief “carries the potential of an inter-branch dispute that we’ve never seen before,” said appellate attorney L. Steven Emmert. Emmert reviewed the court’s order, but is not involved in the case.

“[I]t makes sense that an issue of this magnitude would justify a hearing by all seven justices,” Emmert wrote in an online comment.

The statute contains no language referencing actual work conflicts with legislative responsibilities. Nevertheless, in 2005, a three-judge panel cited limits set by the House Rules Committee. A set of guidelines reportedly stated that a legislative continuance should be brought only when the court appearance conflicted with legislative responsibilities, according to the judges. No such language is found in the current House Rules.

That Norfolk Circuit Court panel suspended the license of lawyer and then-delegate William P. Robinson Jr. for conduct intended to disrupt a tribunal and for conduct involving dishonesty, fraud, deceit or misrepresentation. Robinson had been held in contempt in 2002 for his pretextual reasons for requesting a continuance in a Hampton criminal matter.