Virginia's Inbred Judiciary

Virginia's Inbred Judiciary

How can this happen? Why do judges in Virginia issue court orders that can make an innocent-enough person feel like the victim of a “hate crime” when some sensibly administered justice would have sufficed? This can happen to people in Virginia because the judicial selection and re-selection process is deformed and has created a judiciary that is inbred which is producing even greater deformity as judicial rulings deteriorate and as judicial respect--for the dignity and the resources of litigants--declines.

When legislative sessions close leaving judicial vacancies, circuit court chief judges must appoint district-level (juvenile district and general district) judges to fill the vacant posts. Circuit chiefs are also responsible for choosing lawyers to serve as substitute judges. Substitute judges and sitting district-level judges are more likely to be appointed or elevated by the legislature and the governor, when legislators are unable to agree, to a permanent seat either on district court or circuit court, if already a substitute judge, and circuit court, if already a district judge, juvenile or general, than non-insider status candidates. Judges for the appeals court and justices for the supreme court are generally recruited from the circuit bench, possibly even landing some of those judge-appointed substitute judges and judge-appointed district-level judges on Virginia’s highest courts. I have never completely understood how some of these promotions, or elevations, are decided.

Furthermore, I have noticed, when a judge advances to another court in mid-term, his or her interview is postponed, that is, delayed by the length of the term associated with that particular court: 8 years for circuit court, 8 for appeals and 12 for supreme. With the Judicial Performance Evaluation (JPE) program now cancelled by decision of the 2009 legislative session, “interviews,” known officially as “Judicial Interviews of Incumbents,” is the only screening mechanism in place, acting to protect citizen-consumers of legal services from defective judges. The event is annual and it really is Virginia’s ultimate oversight agency for the judiciary because even “Judicial Inquiry and Review Commission” board members must submit to “interviews.” But, and especially since most members of the general public do not go to “interviews,” it is mostly a “rubber-stamp affair.” Citizens, tragically, are skipping “interviews” because it is such a poorly promoted event, and sitting judges, apparently, are skipping “interviews” because jurists promoted before the end of their term slip through such a poorly designed system for screening them.




Incompetent Legislature


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The General Assembly’s Courts of Justice Committee, under the tutelage of Mr. Albo, is derelict in its duty to appoint and re-appoint good people to the bench because: it has dumped a constitutional responsibility into the laps of circuit court judges (and the governor in those cases when legislators fail to fill judge vacancies at the circuit, appeals, and supreme court levels by close of session of the general assembly), it has junked the Judicial Performance Evaluation program, and it has routinely “qualified” candidates other judges handpicked for confirmation by the entire general assembly in “rubber-stamp affairs” known as “Judicial Interviews of Incumbents.” Though Mr. Albo this winter stated, “[S]omething we need to improve, is that it's too difficult [for members of the general public] to find out when judges are up for appointment and when [citizens] can speak," and, “[U]nless anyone comes to complain, judges usually get re-appointed,” he took no action to ameliorate the situation. Since telling a reporter for The Post 12 months ago exactly the 2008 selection process had been a “total disaster,” Mr. Albo has done an excellent job of showing the problem his back.

A referendum on retention election of state judges by the voters, if successful, would restore a reasonable and intelligent judiciary, improve judicial respect for the dignity and resources of litigants, and increase the likelihood of sensible court orders. Retention election would control for the ever-growing risk of killer-rulings that can make an innocent-enough citizen feel like the target of a “hate crime” because retention election interrupts judge-inbreeding. Retention election would eliminate legislator-commitment to not getting along at judge appointment time and cutting out public input, which encourage judge-inbreeding, because retention election removes the state legislature from any involvement in re-selection and gives the voters the final word on who gets to remain a judge.

The blind and sheltered re-appointment and confirmation of judges, many of whom were handpicked by other judges, simply is not creating a reasonable, intelligent and empathetic judiciary in Virginia. How can it? A judicial candidate, who was probably chosen by another judge, is “qualified” for re-appointment--without performance data, without public testimony, and without professional criteria to determine qualification--in a quiet “rubber-stamp affair,” that is, a candidate is subjected to a silly (Come see for yourself!) interview, lasting no more than 5 or 10 minutes, by a tiny panel of (trial) lawyer-legislators, then almost always breezes right through confirmation by an entire state legislature in yet another “rubber-stamp affair” that, like the silly interview, is nothing more than another formality.

If you agree the process is not “dumb, disgusting, and outright dangerous,” if you believe there is no emergency, you should stop reading now, click out and pray you never find yourself inside a court of law of this commonwealth. If, however, you find my information a wee bit disturbing then please let me know. I urge you also to tell your legislators--the delegate and the senator in your district--and maybe Mr. Rubin too. Send them your idea for a smarter, sounder, and safer judge re-appointment system in Virginia if you don’t like mine.

I propose amending the state constitution to allow the voters to decide in general elections whether to retain judges. I think we need a question on the ballot in November that will address the issue of inserting retention elections into the Virginia judge re-appointment, or re-selection, process. I hope you do too. I know that together we can stop the blind and sheltered re-appointment and confirmation of judges in Virginia and put sensible justice back into our courtrooms.




Public Input
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You might be asking, What is a “retention” election? Let me clarify with some help from Mr. Litten who wrote in “Let the People Judge the Judges: Reforming Virginia's Judicial Selection Process”:

…The new judge then serves a trial period at the end of which the voting public, through the use of an uncontested “yes/no” retention election, decide whether or not he or she should continue service. If retained the judge goes on to serve a full term and is subject to retention elections at the end of each term.

And,

…Retention elections insert democratic principles into the [judicial selection] process by allowing the ultimate authority in this country, the people, to hold judges accountable while still avoiding the serious problems found in contested elections, such as possible conflicts of interest when contributors to a judge’s campaign appear before the judge in court. “In retention elections, judges run against their records, rather than against opposing candidates, which means that incumbents are at risk of losing their seats only if voters deem their records unacceptable.” Holding retention elections serves “to remind judges that they are judges, not legislators, and that their conduct in office is important. Elections allow citizens to evaluate the judges” while still freeing judicial candidates “from traditional partisan politics and fundraising” and “judicial decisions are more impartial because judges are in a secure environment to decide the cases in a neutral and fair manner.”

Mr. Litten explains that “judicial decisions are more impartial because judges are in a secure environment to decide the cases in a neutral and fair manner” when freed from fundraising, traditional partisan politics, and lawyer-legislators who confirm them and also appear before them in court. I agree. In our current system, it is understandable state judges can be less preoccupied and less concerned with how the public might measure their loyalty to “Black Letter Law” or the “Canons of Judicial Conduct” than how their decisions might play out in “House Room C” at interview time.

Judge Garland L. Bigley was fired, in 2006. She had boldly told her interviewers, “Yes, I sanction lawyers.” Chairman Albo and the other lawyer-legislators were unimpressed. The judge had given, as an example, the lawyer who inconvenienced a lot of people--people like you and me--by not showing up for trial. So she sanctioned him, she said. The legislature disqualifies, or does not confirm, one judge a year, roughly. I was sorry to see Judge Bigley go. The people of the 11th Judicial District had lost a good judge, I thought.

“[L]egislators can and do set their own criteria for determining whether a judge belongs in office,” we learn from Mr. Litten. We learn formal written judicial selection criteria do not exist in Virginia. I highly recommend his article.

The people of Virginia should demand from Richmond more separation between the legislative branch and the judicial branch in matters pertaining to the hiring and the firing of state judges and should see as normal, and urgent, more involvement of the electorate in the judge re-selection (re-appointment) process. It’s really a two-part issue: judge selection and judge re-selection (re-appointment). Retention election addresses the second half of this issue and is the first step toward a true Missouri Plan for Virginia. But Mr. Rubin says we must first amend (definition) the constitution to allow for the public input in judge re-selection (re-appointment) via retention elections.
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The Question

I ask for your support in getting on the 2009 November ballot the following question:

“Should the Constitution of Virginia be amended to change the method of re-appointing state judges from confirmation by the legislature to retention election by the voters?

_ YES

_ NO”

Please show your support, or even lack thereof, by sending your comment, your vote, to:

YES.Judge.Retention.Election@gmail.com,

Or,

NO.Judge.Retention.Election@gmail.com.

And please share your viewpoint with your legislators (senator and delegate) when you share it with me. Why not also forward a copy to Counselor and Senior Advisor to the Governor Mark E. Rubin? Information on Mr. Rubin can be found below in my recent email message for him and his answer for me (which also prefaces this post).





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