The VLW Blog

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

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

The Virginia State Bar, the Virginia Bar Association and the Virginia Trial Lawyers Association have endorsed candidates for the State Corporation Commission vacancy created by the retirement of Commissioner Theodore V. Morrison Jr.

The VSB’s judicial nominations committee told Gov. Timothy M. Kaine that it found four candidates to be highly qualified:

- Philip R. deHaas, counsel to the SCC

- James C. Dimitri, a partner at McGuireWoods in Richmond

- JoAnne L. Nolte, a partner in The Conrad Firm in Richmond

- Michael D. Thomas, an SCC hearing examiner

It found Julia A. Lake, an attorney with the Federal Energy Regulatory Commission, and Richmond Circuit Judge Richard D. Taylor Jr. to be qualified.

The VBA and VTLA endorsed all those candidates except Lake. Committees for those organizations based their endorsements on a background investigation and review of materials submitted by the candidates.

The VSB committee interviewed the candidates in addition to reviewing materials and conducting background checks. It submitted cover letters and summaries to Kaine detailing its findings.

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.

Read it and weep if you had a claim that you thought was covered by American National Lawyers Insurance Reciprocal or Doctors Insurance Reciprocal.

The State Corporation Commission ruled today that you have the same status as a general creditor in the receivership for Reciprocal of America, the parent of the retention groups. Because the commission estimates that ROA has a negative surplus of almost half a billion dollars, your chances of getting even a few cents on the dollar are minuscule.

ROA provided reinsurance for the risk retention groups, which are based in Tennessee, and they were declared insolvent shortly after ROA went under in January 2003.

Attorneys for the groups had contended that ROA and the groups were so closely related that they should be considered a single entity, with the policyholders of the groups having the same priority as those of ROA.

While acknowledging that irregularities probably occurred, the commission said it was powerless to change the priority status established in Virginia Code §38.2-1509.

Suddenly a seat on the State Corporation Commission is a hot item of discussion on Capitol Hill. Two potential candidates have backed out and names of four others are being floated, according to the Richmond Times-Dispatch.

Gov. Tim Kaine announced last week he won’t fill the opening to be created by the Dec. 31 retirement of Judge Theodore V. Morrison. Both Sen. William C. Wampler Jr., R-Bristol, and lawyer/lobbyist Bernard L. McNamee II had been mentioned as possible judges; they both since have withdrawn from consideration.

Four other names now are on the table: Former Del. Ralph L. “Bill” Axselle Jr. and David W. Clarke, both lawyer/lobbyists; Chief Deputy Attorney General William C. Mims, who recently was on some lists for a seat on the Supreme Court of Virginia; and former Del. Jean W. Cunningham, D-Richmond, now chair of the State Board of Elections.

Gov. Tim Kaine says he won’t appoint a new judge to the State Corporation Commission, leaving the choice to the 2008 General Assembly, reports the Richmond Times-Dispatch.

Judge Theodore V. Morrison is retiring at the end of this month, giving Kaine an opportunity to fill the seat, since the Assembly won’t convene until Jan. 9.

Speculation had been that the governor would name Sen. William Wampler Jr., R-Bristol, to the position. But Wampler’s hope of being the first non-lawyer to sit on the SCC will have to wait. Kaine said he did not want to aggravate legislators by naming a judge just days before the legislature met.

But if the divided Assembly can’t agree on anyone, he stands ready to make the appointment, he said.