The VLW Blog

Gov. Timothy M. Kaine named Court of Appeals Judge LeRoy F. Millette Jr. to the Supreme Court of Virginia and replaced him with Chesterfield Circuit Judge Cleo E. Powell on the intermediate appellate court.

Kaine also named McGuireWoods LLP partner James C. Dimitri to the State Corporation Commission. And he appointed two circuit judges in Fairfax County, Jan Louis Brodie, deputy county in Fairfax, and David S. Schell, a juvenile and domestic relations distrct judge, in Fairfax, and Charles S. Sharp, the commonwealth’s attorney in Fredericksburg, to a post in the 15th Judicial Circuit. Noticeably absent from the appointments were posts in Hampton, Norfolk and Virginia Beach where the delegations are bitterly divided over judicial vacancies.

Judges who accepted appointments to higher courts did so at some risk. Some Republicans had warned that no appointee could be assured of election to a full term when the General Assembly convenes next year, and the candidates have no assurance of returning to their former posts if the legislature rejects them.

Kaine appointed Millette, who has been a circuit judge in Prince William County, to the court of appeals in November, and sources close to the appointment said Powell was on the very short list for that seat. She will be the only black member of the court.

By Alan Cooper

The Virginia Court of Appeals today issued a writ of actual innocence, the first petition to be granted since the law authorizing the procedure was enacted in 2004.

The action was expected because Attorney General Robert McDonnell acknowledged in his response to the petition that Darrell Andrew Copeland was improperly convicted of possessing a firearm after having been convicted of a felony.

The Virginia Department of Forensic Science issued a report after Copeland’s conviction that the “firearm” did not meet the statutory definition of a firearm because the weapon expelled a projective with compressed gas rather than by an explosion.

In a short opinion granting the writ, a three-judge panel of the court seemed to go out of its way to limit the extent of the ruling. It emphasized that it is not bound to accept what amounted to a confession of error by the attorney general’s office but concluded that issuing the writ was appropriate in light of the “the unique circumstances of the this case” even though its analysis “cannot be subordinated to the private opinions of litigants.”

“Such hesitation is particularly appropriate here given the need to ensure that the writ of actual innocence does not evolve into an omnibus substitute for the carefully crafted procedures of the habeas corpus writ … or impinge upon the Governor’s exclusive power over executive clemency.”

The Virginian-Pilot has an article with more background than the opinion contains.

By Alan Cooper

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

University of Richmond law professor Peter Swisher has been selected by Virginia’s Court of Appeals to serve as Court Reporter for Civil Cases. As explained in the release from the law school, the job involves advising, editing, and counseling the court as it drafts its opinions. No word on what this gig pays, but it’s bound to be an interesting experience.

The Supreme Court of Virginia handed down opinions in a slew of criminal cases listed in a VLW blog Friday, but it didn’t issue a decision in the cases prosecutors and criminal defense attorneys were watching the closest.

Those would be Gibson v. Commonwealth, the Virginia Court of Appeals decision in August that held judges have the authority to defer judgment only when the General Assembly has granted it to them explicitly, and Moreau v. Fuller, Record No. 062688.

That’s the appeal of a writ of mandamus from Danville Circuit Judge Joseph W. Milam Jr. directing a juvenile and domestic relations district judge to enter a finding of guilt after she had concluded that a 21-year-old man had contributed to the delinquency of a minor by having sex with a 15-year-old girl. Judge Stacey W. Moreau had continued the case with the apparent intention of dismissing the charge six months after the trial.

The court was expected to issue a decision in Moreau on Jan. 11, and when it didn’t most court observers concluded that it had not done so because it wanted to decide the case and Gibson at the same time. But the court heard arguments in Gibson in February and again was off schedule Friday in not issuing an opinion in either case.

The issue may turn out to be a matter for the legislature in any event. House Majority Leader H. Morgan Griffith of Salem introduced HB 553, which would give judges the authority to defer judgment in most cases, but moved to carry the legislation over to next year to give the Supreme Court an opportunity to rule on the matter.

The issue long has been a source of contention between judges and prosecutors. Some judges argue that they have the inherent authority to defer a finding of guilt for several months or a year and then dismiss the charge if a defendant has no further legal difficulty.

Prosecutors counter that any such authority must come from the legislature and point to the grant of it in some cases, most notably first-time drug offenses, as support for their position that judges lack the power to do it on their own hook.

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.

What part of de novo don’t you understand?

That was the question the Virginia Court of Appeals had for Colonial Heights Circuit Judge Timothy J. Hauler.

A mother appealed a juvenile and domestic relations district court’s award of custody of her minor child to its father. At the beginning of the custody hearing Hauler told the mother’s attorney, Neil Kuchinsky, that he had read the transcript of the juvenile court proceeding and the result would be the same unless he presented new evidence. And if it is the same, Hauler said, “it is going to cost you client an awful lot of money” in attorney’s fees.

Kuchinsky objected to Hauler’s having read the transcript and unsuccessfully asked him to recuse himself. Hauler noted that the transcript was in the record, “inexplicably” so, appellate Judge Sam W. Coleman III noted, but Kuchinsky said he had not had a previous opportunity to object to its inclusion.

Hauler also awarded custody to the father and assessed attorneys’ fees of $16,918.50 and $2,507.15 in costs, including an award of fees and costs that was higher than the amounts originally awarded in juvenile court.

The CAV panel reversed and remanded the case for trial before a different judge. “[T]he trial judge abdicated his responsibility to independently weigh the evidence, make his own credibility determinations, and decide in the exercise of his sound discretion in which parent custody should be vested so as to serve the best interest of the child,” Coleman wrote in Alexander v. Flowers. “Instead, as a punitive measure for pursuing her right to a trial de novo the court imposed a punitive award of attorney’s fees.”

Supreme Court Justice S. Bernard Goodwyn and Court of Appeals Judge LeRoy F. Millette Jr. won’t have a break in service after all.

Their appointments by Gov. Timothy M. Kaine would have expired tonight in the absence of action by the General Assembly, and they became the pawns in an assertion of institutional clout by Republicans in the House of Delegates described in a post on Monday and in more detail today by Jeff E. Schapiro in the Richmond Times-Dispatch.

Just how much horse trading went on wasn’t clear immediately, but Goodwyn and Millette were elected this afternoon by a unanimous vote in both houses.

It all seems a little silly, especially when the Republicans acknowledged all along that Goodwyn and Millette were excellent choices for their respective positions.

Justice S. Bernard Goodwyn and Judge LeRoy F. Millette Jr. of the Virginia Court of Appeals could be out of a job Saturday.

Nobody expects that to happen, but their appointments by Gov. Timothy M. Kaine expire Friday in the absence of action by the General Assembly.

Del. David B. Albo, R-Fairfax, chairman of the House Courts of Justice Committee, said Goodwyn and Millette are excellent appointments, but the House has, in effect, placed a hold on electing them and also on reelecting court of appeals Judges Jean Harrison Clements on Robert J. Humphreys, whose terms expire later in the year.

Albo and Del. Jerry G. Kilgore, R-Scott, another powerful member of the courts committee and chairman of the House Commerce and Labor Committee, said the action is intended as a reminder to the Democratic governor and Senate they still have to deal with the House and Republicans on judicial appointments.

They suggested that House Republicans are looking toward having a substantial say in filling a vacancy on the State Corporation Commission created by the retirement of Theodore V. Morrison Jr. and an empty seat on the Workers’ Compensation Commission created by the departure of Lawrence D. Tarr.

The position of the Republicans may signal hardball in filling judicial vacancies in the lower courts as well. They were contentious enough when the Republicans controlled both houses and only figure to get worse with control split between the two houses.

The candidates historically have been chosen by a caucus of the party in control of each house of the legislature, with legislators from the area where the judge will serve typically having the final say.

Although it’s a little early for the horse-trading to start, Kilgore said, the governor and circuit judges may have more seats to fill than is usually the case. They pick lower court judges if the legislative session expires without a seat being filled.

Gov. Tim Kaine appointed Prince William Circuit Judge LeRoy F. Millette Jr. today to fill the Virginia Court of Appeals vacancy created by the retirement of Judge James W. Benton Jr.

Millette, who has a background as a law firm associate and partner, a sole practitioner and a state prosecutor, was named a general district judge in 1990 and elevated to the circuit court in 1993.

He is a graduate of the College of William and Mary and its law school.

Millette, 58, probably is best known for presiding over the capital murder trial of sniper John Muhammad.

“To me as a trial lawyer, temperament is the key, and Lee has always had that,” said John D. Whittington, a Prince William lawyer who tried cases against Millette when Millette was in private practice and has appeared before him after he was appointed to the bench. “He’s got the whole package.”