The VLW Blog

A 28-year veteran of the Virginia Senate, Joseph V. Gartlan Jr. is dead at the age of 82.

The Richmond Times Dispatch reports that Sen. Gartlan died overnight. In a statement, Gov. Kaine said of Sen. Gartlan, “He was a tireless and effective advocate for the environment, the mentally and physically disabled, and for abused and neglected children.” Kaine said the Democrat “earned the respect of both parties for his intellect, integrity, and force of will.”

By Peter Vieth

Gov. Tim Kaine will have to fill judicial vacancies because the General Assembly adjourned this morning without filling any seats, just as it failed to reach agreement on transportation policy and funding.

A deal that would have put Chesterfield County Circuit Judge Cleo E. Powell on the State Corporation Commission and Chief Court of Appeals Judge Walter S. Felton Jr. on the Supreme Court of Virginia failed when Democrats balked at Felton, whom they remembered as a top advisor to Republican Gov. Jim Gilmore.

The legislators apparently had no interest in filling vacancies on other courts when they were unable to start at the top, so Kaine will have to fill not only the Supreme Court and SCC vacancies but seats in Norfolk, Virginia Beach and Hampton where partisan divisions are bitter and strong.

The discord may limit the field because some judges and attorneys will be unwilling to risk their positions or practices for an appointment that is only good until February, when the General Assembly will have another opportunity to fill the seats.

Today, the Virginia Trial Lawyers Association became the final statewide bar group to send Kaine endorsements for the Supreme Court vacancy created by the appointment of Justice G. Steven Agee to the 4th U.S. Circuit Court of Appeals.

The trial lawyers found Fairfax Circuit Judge R. Terrence Ney and Roanoke Circuit Judge Clifford R. Weckstein to be highly qualified and Arlington Circuit Judge Joanne F. Alper; Felton; Circuit Judge Colin R. Gibb, who sits in Pulaski and Giles counties; Loudoun County Circuit Judge Thomas D. Horne; Court of Appeals Judge Leroy F. Millette, Jr.; and Chief Deputy Attorney General William C. Mims to be qualified.

By Alan Cooper

You’ve briefed and argued your Virginia circuit court case. Weeks go by and the judge still has it under advisement. Your client wants to know what’s taking so long.

The remedy under the Virginia Code: tell it to the Chief.

That’s right. Under Virginia Code § 17.1-107, if Chief Justice Leroy Hassell, or his designee on the high court, believes a circuit or appellate judge is taking “an unreasonable length of time” to rule in a case, he “shall inquire into the cause of such delay” and can designate another judge to help out.

Now we have a number for “reasonable.” It’s 90 days.

This year the General Assembly amended the statute to provide that if a circuit judge holds a civil case under advisement for more than 90 days after its final submission, the court has to tell the parties or their counsel, in writing, when they may expect a decision.

If the trial judge fails to report to the parties, or to issue a decision within the promised time frame, any party can notify the Chief, who then can apply the “reasonableness standard” and assign help for the slow-poke.

Richmond litigator Ben Ackerly, who mentioned the statutory change at the June 19 “Recent Developments in the Law” update at Virginia Beach, said he’s “not sure this solves the problem.”

If you’re waiting for the trial judge to presumably make a decision in your client’s favor, you don’t want to harass the judge.

But under the statute, the trial judge probably is going to know who gave the nod that led to a nudge from the Supreme Court.

The war of words is escalating over the General Assembly’s failure to appoint judges to fill vacancies in the Hampton courts. In this Daily Press op-ed piece apparently penned by two Democratic senators from Hampton, the writers accuse Delegate Tom Gear, R-Hampton, of holding up the appointments because of his insistence on getting his sister named as a judge.

There are three Hampton judgeships open, one each on the circuit court, district court, and J&DR court. According to the disgruntled senators, Gear is holding out for appointment of his sister, Kathy Gear Owens, to the J&DR court bench, despite opposition from within Gear’s own party.

“Until Gear stops holding the judicial system hostage and drops his insistence on his sister, the people of Hampton will suffer,” huffed the senators.

The Daily Press, for its part, calls for binding arbitration by the Hampton Bar Association.

The General Assembly appears poised to fill at least three judicial vacancies, but legislators are still scrambling to find a Supreme Court justice, an SCC member and judges in Hampton and Norfolk.

Likely to be appointed are Fredericksburg Commonwealth’s Attorney Charles S. Sharp to replace Circuit Judge John W. Scott Jr., who died in April; Stafford sole practitioner Michael E. Levy to a general district seat in the 15th Circuit to replace Judge J. Overton Harris, who was elevated to the circuit court; and Uley M. Norris, a partner in the firm of Damiani & Damiani in Alexandria, to a juvenile and domestic relations district court seat created by the elevation of Judge Nolan B. Dawkins to Alexandria Circuit Court.

There was talk yesterday of elevating Chief Judge Walter S. Felton Jr. to the Supreme Court vacancy created by the appointment of Judge G. Steven Agee to the 4th U.S. Circuit Court of Appeals and of appointing Richmond Circuit Judge Richard D. Taylor Jr. to the SCC.

Some legislators had qualms about Taylor’s lack of experience in regulatory matters, which led to talk of Chesterfield Circuit Judge Cleo E. Powell for the SCC and Taylor to the court of appeals. Powell was a staff attorney for Dominion Power and also did regulatory work while in private practice. Powell also is a candidate for the court of appeals. She and Taylor are black, and the state has never had a black SCC member, and the court of appeals has no black judges now.

The movement for Taylor was strong enough that Courts of Justice Committee members interviewed three candidates to replace him: General District Judges Joi Jeter Taylor and Gregory L. Rupe and McGuireWoods partner Steve C. McCallum.
By Alan Cooper

If you want a favorable review from a statewide bar group for an appointment to the State Corporation Commission, you’d better pull that résumé together and go to Gov. Tim Kaine’s Web site fast.

Kaine has asked candidates to fill out a judicial selection questionnaire and a statement of economic interest (both available on at www.governor.virginia.gov) and get them and the résumé and a writing sample to senior advisor Mark Rubin (mark.rubin@governor.virginia.gov) by May 31.

The Virginia State Bar, the Virginia Bar Association and the Virginia Trial Lawyers Association want the same information the governor is requesting, minus the statement of economic interest and such personal information as date of birth and health history, by May 19. They would prefer to have the information e-mailed to, respectively, breeden@vsb.org, guytower@vba.org and jharris@vtla.com.

The more interesting question may be whether any of you are interested in the appointment. It’s only good until next February, when the General Assembly will have the final say on filling the position. Legislators couldn’t get it done this year, and at least one legislator, Del. Bill Janis, R-Henrico, chairman of a subcommittee on judicial systems, has said anyone accepting Kaine’s appointment should take the job with his eyes open to not lasting past February.

According to the Associated Press, the legislature will reconvene on June 23 to discuss a transportation funding package. As noted by the AP, partisan and regional disagreements are enormous impediments to a compromise.

Roanoke Circuit Judge Swanson noted today that Chris Clemens was appointed to the district court bench by a “majority” of the circuit court judges. The Roanoke Times has more on the impact of the decision on Clemens’ law office and his role as member of the Salem City Council. Having given up his offices as attorney and city councilman, Clemens could be “unbenched” next year if the General Assembly decides to name someone else for the permanent judgeship.

The General Assembly elected 22 judges late yesterday but failed to fill vacancies on the State Corporation Commission and in Norfolk, Virginia Beach, Hampton and Roanoke.

Court of Appeals Judges Robert J. Humphreys and Jean Harrison Clements won reappointments, and the other elections were for vacancies in circuit, general district and juvenile and domestic relations district court.

The failure to reappoint Humphreys promptly was viewed as the most embarrassing aspect of the legislative wrangling over judgeships. He went off the bench April 15 when his term expired even though there was no opposition to his reappointment.

A deal brokered by Del. Bill Janis, R-Henrico, and Sen. Don McEachin, R-Henrico, to appoint Henrico Circuit Judge Catherine Hammond to the SCC and replace her with Mary Bennett Malveaux fell apart. The Richmond Times-Dispatch describes the impasse.

The Daily Press has an analysis of the legislative discord in Hampton, and The Virginian-Pilot has a story on the Norfolk-Virginia Beach squabbling.

In Roanoke, the delegation has been unable to decide between Roanoke Commonwealth’s Attorney Donald S. Caldwell and Salem City Council Member J. Christopher Clemens for the general district seat held by retiring Judge Julian Raney.

The Division of Legislative Services has a list of the appointments.

Judy Rosenblatt wanted her colleagues on the executive committee of the Virginia State Bar to send a letter to General Assembly members stating the committee’s displeasure at the failure of the legislature to fill judicial vacancies.

Almost 30 appointments are pending, but Rosenblatt was most upset yesterday about Court of Appeals Judges Robert J. Humphreys and Jean Harrison Clements. All the other appointments involve open seats, but Humphreys will go off the bench for at least eight days on April 15. Clements’ term doesn’t expire until June.

The General Assembly will reconvene April 23 and is expected to take up the appointments then.

EC member Irv Blank disagreed with Rosenblatt. “The best thing we can do is not put our foot in that tar baby. . . . That is a lose-lose situation” for the VSB, he said.

“I think we need to support our own judiciary,” Rosenblatt insisted.

Blank responded, “If it’s not taken care of on the 23rd, we ought to raise holy hell. It’s really silly juvenile politics.”

VSB President Howard Martin sided with Blank and, with that, the committee moved on to another topic.