The VLW Blog

One of last year’s fiercest lobbying battles in the General Assembly has been one-sided so far this time around.

Domestic relations attorneys, with the support of the Virginia Bar Association and the Virginia Trial Lawyers Association, are determined to get Virginia Code § 20-124.3:1 repealed.

The provision bars use of the records or testimony of a mental health therapist against a parent in a custody dispute. It was enacted in 2002 at the behest of clinical psychologists, who contended that their patients were likely to be less candid when getting treatment if they knew that what they said might cost them custody of their children.

The domestic relations bar countered that other provisions in state law list the mental health of a parent as one of the factors a judge must consider in deciding custody. It makes no sense for another law to make the best information about a parent’s health inadmissible, the attorneys insist. And they say there’s no evidence real evidence that parents avoid therapy because of custody battles.

Last year, groups of lawyers were balanced by blocs of psychologists at hearings on the repeal effort. This year, the lawyers have been back, but the psychologists have not. A spokesman for them acknowledged that the law needs changing but asked for another year to work out a compromise. The lawyers countered that two years of effort in that direction have produced nothing.

So far, the intensity of their effort has prevailed. The Senate Courts of Justice Committee reported SB 330 yesterday to the full Senate on a 13-1 vote.

This is a case from Maryland. But in light of the recent de-benching of a Southwest Virginia judge by the Supreme Court on a complaint brought by the Judicial Inquiry and Review Commission, one can’t help but wonder what would have been the result here in the Old Dominion.

In November, Scott County J&DR Judge James Michael Shull was removed from the bench for, among other offenses, treating litigants with a lack of respect.

Here’s a case about how a judge treated three lawyers. The full account is available in the Maryland Register, but here’s the short version. The Associated Press, through MSNBC, also has a very quick item online.

Last year in Hagerstown, Washington County Circuit Judge W. Kennedy Boone III heard a criminal case. During the hearing, he referred to three African-American public defenders as “the Supremes,” and he stated that the PD’s office should send “an experienced male attorney” to handle the case.

After he was brought up on ethics charges, the judge told the Maryland Commission on Judicial Disabilities that by making this last statement, he sought to protect the three women from “representing a very difficult, streetwise, and manipulative defendant.”

He said he has personally apologized to all three lawyers, offering to recuse himself from their cases, an offer they have not taken. He also accepted responsibility for his action, saying he violated the Canons of Judicial Ethics and should be sanctioned appropriately.

The Maryland commission found the comments to be “undignified and disparaging” and therefore sanctionable. The commission issued a private reprimand to Boone.

But the commission noted that “because Judge Boone’s comments took place on the record, in a public courtroom, they represent a serious lapse in judgment on the part of Judge Boone which warrants this Private Reprimand being made public, as the appropriate sanction.”

“The Commission further intends for this Private Reprimand to serve as a warning that any further such comments or conduct by Judge Boone may result in Charges and possible further discipline,” it concluded.

Boone, 65, has been a judge in Washington County since 1997. He remains on the bench.

The Virginia Judicial Council has recommended raising the mandatory retirement age for judges from 70 to 75. That’s fine with the Senate Courts of Justice Committee, which reported SB 19 on a 10-4 vote last week and referred it to the Finance Committee.

Yesterday, in HB 783 the House Courts of Justice Committee voted to raise the age to 73 on a 15-7 vote.

Anybody for 74?

We were a little off last week in describing the status of essentially identical bills in the House and Senate that would make it faster to terminate parental rights and get children adopted and out of foster care.

We correctly reported that House Bill 750 went down on an 11-10 vote in the House Courts of Justice Committee on Jan. 21. But on Thursday, Del. Kenneth R. Melvin, D-Portsmouth, asked his colleagues to reconsider the bill and it is now back on the committee’s docket.

Under House rules, Melvin’s request was granted because he voted against the bill. He said originally that he was concerned that the action would put the legislature on a slippery slope toward the repeal of routine de novo review of district court rulings.
But he said he had come to believe the issue deserves further consideration.

We reported incorrectly that the civil subcommittee of Senate Courts of Justice had referred Senate Bill 394 to the full committee. We confused the committee’s action with its endorsement of another bill. It’s still before the subcommittee.

A tourism PR director who says he was fired for sending e-mails to various state officials cannot sue those officials for his termination, the 4th U.S. Circuit Court of Appeals said yesterday in ruling on the director’s civil rights suit.

Public relations director L. Meriwether German worked for the Shenandoah Valley Travel Association, a private non-profit that promotes tourism in the Valley. When members of the association complained to German about the temporary relocation of an Interstate 81 welcome center, German fired off a series of e-mails with the SVTA signature block to a Virginia state senator, a VDOT employee and to Alisa Bailey, president of the Virginia Tourism Corporation, a state agency.

In his suit under 42 U.S.C. § 1983, German alleged that state employee Bailey, who was unhappy with the e-mails, coerced private actors into firing him. She allegedly told German’s boss to get him to “back off.”

Private action sometimes can be attributed to the state, the 4th Circuit said in its unpublished per curiam opinion in German v. Fox. But even when a private entity is heavily regulated by or receives funding from the state, that relationship doesn’t necessarily translate into state action.

German could not show that Bailey, despite her alleged close connection with his superiors, ordered that German be fired, or that she wanted or expected him to be fired, the 4th Circuit said. It upheld U.S. District Judge Glen Conrad’s dismissal of the suit.

A Roanoke general district judge has given 30 days in jail to a guy accused of ordering, then not paying for, a bowl of chili at the Texas Tavern.

The Texas Tavern is the only 24-hour restaurant in downtown Roanoke.

The tab for the chili was $1.66. The accused man, Charles B. Ogle, testified that he left $2 on the counter before leaving. A surveillance video shows Ogle angrily arguing with a Tavern employee after the incident.

But Judge Skip Burkart said the video could be of a guy wrongly accused or a guy upset that he got caught. Burkart gave Ogle 30 days, 26 suspended, on a misdemeanor charge of defrauding the restaurant.

The Roanoke Times reports that Ogle has appealed his conviction to circuit court. Stay tuned.

Faster termination of parental rights is seen as a way to get children out of foster care and adopted more quickly.

The proposal in House Bill 750 and Senate Bill 394 is for terminations to be appealed directly from juvenile and domestic relations district courts to the Virginia Court of Appeals. Parents now have a right to a de novo appeal in circuit court.

HB 750 went down Monday in House Courts of Justice on an 11-10 vote. The stated concerns were that the proposal seemed to be a piecemeal move toward a family court and the start of a slippery slope toward the abolition of de novo appeals.

There were no such concerns in civil subcommittee of Senate Courts of Justice yesterday. SB 394 passed on a 7-0 vote with little discussion and is now before the full committee.

The bills are part of the “For Keeps” foster care initiative led by First Lady Anne Holton, a former juvenile and domestic relations district judge in Richmond.

Virginians don’t trust our court system as much as they trust medical professionals. But they still trust the courts more than “the media.”

These are some of the findings of a telephone survey of 1,100 randomly selected Virginia residents released last week by the Supreme Court of Virginia.

Of those called, 600 had no prior experience with the court system, and 500 had experience within the past five years. About one-quarter of the “experienced” respondents interacted only with the clerk’s office. Their primary complaint? There should be more parking.

With or without direct experience, two-thirds of survey respondents are confident that people are treated fairly in Virginia courts.

However, the survey also reports mixed responses on how different groups are treated, with some perceived distinctions in treatment based on whether people are wealthy, white, or English-speaking. Responses on race indicated that 78 percent of the respondents were white, 13 percent African-American

Although responses didn’t show a perception that men fare better than women in Virginia courts, men are more likely than women to trust the courts “a lot.”

The survey was conducted in October 2007 and the full survey report will be available later this year.

Two judges who were appointed when Republicans controlled the General Assembly appear to face an uphill battle for second terms.

Legislators insist, however, that performance, not politics, is the issue. Democrats took control of the Senate in the November election. Republican still have a majority in the House.

Norfolk Circuit Judge Charles D. Griffith Jr. has to contend with the sharp criticism the Supreme Court of Virginia delivered in Wilson v. Commonwealth in reversing a drug conviction.

The court said Griffith’s response to what he viewed as judge-shopping by defense attorney Allan D. Zaleski “raised concerns about the judge’s impartiality in the case and about the public’s perception of fairness in the case.” Some criminal defense attorneys believe that Griffith, who was the city commonwealth’s attorney when he was appointed to the bench, remains too prosecution-oriented.

Sen. Phillip P. Puckett, D-Tazewell, said he is not supporting the reappointment of Juvenile and Domestic Relations District Judge John M. Farmer because he has received numerous complaints about him in the six years he has been on the bench. Farmer is based in Clintwood and sits in the district that includes Dickenson, Russell, Buchanan and Tazewell counties.

Richmond lawyer E. Duncan Getchell Jr. has acknowledged the obvious and asked President George W. Bush to withdraw his nomination to the 4th U.S. Circuit Court of Appeals.

Bush nominated Getchell in September to fill the vacancy created by the death of Judge H. Emory Widener Jr., but he was not among candidates recommended jointly for the seat by the state’s two senators, Republican John Warner and Democrat Jim Webb.

Webb immediately said he would not support Getchell, and it was clear that he would not get a hearing before the Senate Judiciary Committee because Democrats have a majority in the Senate.

Getchell sent the White House a letter Thursday asking that the President pull his name.

The Richmond Times-Dispatch has the details.