The VLW Blog

Granted, the General Assembly’s treatment of Court of Appeal Judge Robert J. Humphreys is shameful.

No one seems to suggest that he is unworthy of appointment to a second eight-year term, but he has fallen victim to political infighting that resulted in the failure of the legislature to fill about 30 vacancies and reappoint him and fellow CAV Judge Jean Harrison Clements.

Although technically still in session, the legislature can’t do anything about filling those vacancies until April 23 when it reconvenes. Humphreys’ term expires April 15, so he will be off the bench at least a week.

Assuming that the General Assembly comes to its senses and takes action on the pending judicial appointments, as it is expected to do by the end of May at the latest, there will be no effect on his retirement benefits.

Dire consequences for a “break in service” are largely a myth, according to Brian Goodman, legal affairs and compliance coordinator for the Virginia Retirement System. Humphreys will get credit for any month in which he is employed by the state. Even if he were to have a month with no service, he would lose only that month, and his benefits would continue to accrue with his reappointment, Goodman said.

It’s official. The civil remedial fees for motorists convicted of driving crimes ended today with the signature of Gov. Tim Kaine on Senate Bill 1 and House Bill 1243.

The emergency legislation provides for refunds for those who have already paid a portion of the fees and excuses them from further payment. It even provides that a license can’t be suspended for failure to pay the fee. Motorists are still liable, however, for the fines and costs associated with the underlying criminal offense.

The law required motorists convicted of traffic felonies and misdemeanors to pay $750 to $3,000 over 26 months in three installments. The fees drew little notice when they were enacted as a relatively small part of a package to fund state transportation projects but was attacked after publicity when it took effect in July. They generated a firestorm of opposition over their high cost and their application to Virginians but not to out-of-state drivers.

It also became obvious that they would generate only a fraction of the $65 million annually they were originally expected to produce.
“In the earnestness of trying to solve the transportation issue, a mistake was made,” said Senator Edd Houck, the sponsor of SB 1. “This was simply the wrong way to go about funding transportation. And today is the day we correct all that.”

The governor issued a press release and another statement explaining it all.

Virginia Court of Appeals Judge Robert J. Humphreys apparently will be off the bench – at least temporarily – because of an impasse in the General Assembly over the appointment of judges.

The legislature had an opportunity to fill more than two dozen vacancies when it met last night to complete work on the 2008-10 state budget. Instead, after completing most of the work on the budget, it voted to hold a special session for consideration of a bond issue and the appointment of the judges. Under the Virginia Constitution and legislative rules, that can’t happen until April 23. Humphreys’ term expires April 15

Senate Republicans on Monday tried to get their Democratic colleagues to agree to the reappointment of Humphreys and another CAV judge, Jean Harrison Clements, but the Democrats rejected the proposal. Clements’ term expires June 30.

Some legislators, such as Del. Bill Janis, R-Henrico, and Sen. Ryan McDougle, R-Hanover, have pressed to have the legislature fill the vacancies for which there is no controversy, but others have insisted that the action occur in a block vote.

The positions on which legislators have been unable to agree are a State Corporation Commission seat, circuit judgeships in Virginia Beach and Norfolk and a general district position in the circuit that includes Roanoke and Salem.

An article written before last night’s legislative session that will appear in Monday’s Virginia Lawyers Weekly has an analysis of the situation.

Virginia’s 14 drug courts survived the General Assembly budget battle and will get a $6 million allocation under the agreement just hammered out. But a new $2 million program to help inmates re-enter society after prison was gutted.

The Daily Progress has this account, which includes comment from local drug court officials.

And The Virginian-Pilot offers some of the back-and-forth trading that prompted a budget deal between the House of Delegates and the Senate.

Norfolk Circuit Court Judge Charles E. Griffith has lost his bid for another eight-year term, reports The Virginian-Pilot. One House Republican leader acknowledged that Griffith, who served as commonwealth’s attorney before going on the bench, will not be reelected.

The General Assembly will extend its session by three days, reports the Richmond Times-Dispatch.

Disagreements remain on the budget, but legislators apparently can’t agree on judicial choices, either. Some 36 seats – including a spot on both the State Corporation Commission and the Workers’ Compensation Commission – could go empty by adjournment if deals aren’t worked out.

The T-D says that the open SCC position is causing some friction. Republican Del. Bill Janis and Democratic Sen. Donald McEachin have cut a deal to elevate Henrico Circuit Judge Catherine Hammond to the SCC, in return for an African-American lawyer’s taking her seat on the circuit bench. But other legislators in the Richmond area, namely Sens. Walter Stosch and John Watkins, have objected.

Stay tuned.

Norfolk Circuit Judge Charles D. Griffith Jr. acknowledged to members of the Senate and House Courts of Justice Committees yesterday that there’s usually “a kernel of truth” to any complaint about a judge’s performance or demeanor.

He said he believes that criticisms of him to legislators come from his view of himself as “a firm but fair judge.” Firmness might have outweighed fairness at times, he said, but he has taken to heart the criticisms that have delayed – and perhaps – derailed his appointment to a second eight-year term.

He was one of only two judges interviewed by the committees yesterday not to be certified today by House Courts as qualified. Under legislative rules, a judge cannot be considered for appointment unless the committees certify them as qualified. Senate Courts had not taken a certification vote by late this afternoon.

Griffith brought prominent friends yesterday to vouch for him – Norfolk Mayor Paul Fraim, Circuit Court Clerk George E. Schaefer, a representative from an organization of ranking Norfolk police officers and Virginia Beach Commonwealth’s Attorney Harvey L. Bryant III.

He also brought upwards of 50 people who stood in support after sitting through almost six hours of hearings, most of them on judicial vacancies they had no interest in.

Griffith’s principal obstacle to reappointment appears to be the rebuke 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.

Zaleski spoke against the reappointment, but he was the only person to do so. He blamed the absence of critics on fear of retribution by Norfolk judges. The committee got bogged down in deciding whether to hear testimony about cases pending before state appellate courts. An effort to override the chair and allow it lost on a 12-7 vote, which appeared at the time to be a good sign for Griffith.

The legislature is expected to fill more than 20 vacancies tomorrow.

The local delegations appeared to have reached a consensus on most of those vacancies, but it was not clear yesterday whether there is a consensus on a general district seat in Roanoke or a seat in the circuit that includes Charlottesville and Albemarle County or in a few other circuits.

The General Assembly is scheduled to adjourn this weekend, but there is some currently unfinished business on selection of judges.

With the House of Delegates in the hands of the Rs and the Senate controlled by the Ds, it will take plenty of horsetrading to get the seats filled.

The two Courts of Justice committees are scheduled to conduct judicial interviews this afternoon; Norfolk Circuit Judge Chuck Griffith is to appear, explaining why he should be given another term on the bench.

The judicial selection process, including the political tinge, is making its way into the daily newspapers:

Several open or pending judgeships in South Hampton Roads could remain vacant after the General Assembly adjourns, if a political stalemate between the parties isn’t resolved, reports The Virginian-Pilot.

And out west there is another disagreement that could end up falling on party lines:

Two candidates for a seat on the Roanoke general district court – Chris Clemens and Donald Caldwell – will be in Richmond this afternoon for interviews with legislators, reports the Roanoke Times. The new judge will succeed Judge Julian Raney, who is retiring.

The Supreme Court of Virginia ruled today that the regional transportation plan for Northern Virginia violates the state constitution.

The constitution bars the imposition of taxes by non-elected bodies such as the Northern Virginia Transportation Authority, Justice S. Bernard Goodwyn wrote for a unanimous court. It doesn’t matter that the all but two of the members of the authority are elected officials – representatives of the Northern Virginia localities, two members of the House of Delegates, a member of the Senate and two citizens appointed by the governor.

The designation of the seven taxes and fees and their rates by the General Assembly doesn’t save the proposal either because the authority still has the power to refuse to impose them, Goodwyn said.

The taxes and fees would have provided the revenue for $130 million in bonds designated for transportation projects in the area. They were part of a transportation plan that sharply divided the legislature in 2006 and 2007.

Goodwyn was appointed last year by Gov. Timothy M. Kaine and elected to a 12-year term as a justice earlier this month. Marshall v. Northern Virginia Transportation Authority is his first opinion for the court.

A comprehensive restructuring of the way localities pay for the costs of growth perhaps proved to be too comprehensive too soon.

Senate Bill 768 would have replaced cash proffers, the amount developers pay per unit to get a rezoning approved, with impact fees, an amount per unit when a building permit is approved, regardless of rezoning.

Sen. John Watkins, R-Powhatan, the sponsor of the bill, and the Home Builders Association of Virginia relied on a study by a George Mason University that concluded that the proposal would produce more money than proffers.

With some proffers topping $40,000 and the impact fees initially limited to $8,000 in Northern Virginia and $5,000 elsewhere, localities had trouble accepting that logic. The Virginia Association of Realtors and localities also were not fooled by an effort to label an increase in the grantor’s tax a “real property tax relief fee.”

Watkins got the bill through the Senate on a 21-19 vote by dropping the grantor’s tax increase and agreeing to increase the impact fees to $12,500 in Northern Virginia and $7,500 elsewhere.

Localities said they aren’t opposed to studying the issue but contended it was too much too soon. The House Rules Committee agreed yesterday and carried the bill over till next year.