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Lawyer Sues JIRC Over FOIA Dispute

A Norfolk lawyer is suing the Judicial Inquiry and Review Commission, claiming that the JIRC has violated the Virginia Freedom of Information Act by refusing to provide an advisory opinion the commission may have issued to a Norfolk circuit judge.

In a suit filed last week in Richmond Circuit Court, Allan D. Zaleski seeks to compel the JIRC to provide a copy of an opinion mentioned by Norfolk Circuit Judge Charles D. Griffith Jr. during a sentencing dispute two years ago.

Griffith said he was relying on a JIRC advisory opinion before declining to recuse himself from a September 2001 hearing involving another lawyer’s client. Norfolk lawyer Daniel J. Miller had sought the judge’s recusal in his client’s probation-revocation hearing because Griffith had served as commonwealth’s attorney when Miller’s client was initially convicted.

The Court of Appeals of Virginia eventually reversed Griffith’s ruling in the case and said the judge should have recused himself.

In May 2003, Zaleski asked the JIRC to provide a copy of the advisory opinion referenced by Griffith. The JIRC refused Zaleski’s request, contending that commission documents are confidential.

“Nobody ever asked for it at trial,” Zaleski said. “I, as a lawyer who’s defending these matters, would like to study the JIRC opinion.”

Recusal justified?

Kenneth Jackson pleaded guilty to two counts of cocaine possession in October 1997. He was sentenced to 20 years in prison, with 18 suspended, and probation upon his release. At the time, Griffith was the commonwealth’s attorney for the city of Norfolk.

By 2001, Griffith had been elected to the bench. He was assigned to a probation-revocation hearing in September 2001 at which Jackson was represented by Miller.

Writing for the Court of Appeals of Virginia in April 2003, Judge Robert J. Humphreys explained why Griffith declined Miller’s request to recuse himself in the probation-revocation hearing.

“Judge Griffith indicated he had obtained an advisory opinion from the Judicial Inquiry and Review Commission and needed to consider only whether he was the commonwealth’s attorney when the violation occurred, not whether he was commonwealth’s attorney at the time of the underlying conviction,” Humphreys wrote. “On that basis, Judge Griffith denied Jackson’s motion for recusal.”

On appeal, the appeals court reversed Jackson’s conviction, holding that “Judge Griffith’s failure to recuse himself under these circumstances ‘necessarily’ resulted in a situation undermining the integrity of our judicial system.”

Curry, counsel to the JIRC, could not be reached for comment.

On May 7, 2003, Zaleski sent a letter to the JIRC in which he asked for “an opinion either formal or informal, either in writing or oral,” addressing Griffith’s recusal issue during the Jackson hearing.

Twelve days later, Curry denied Zaleski’s FOIA request.

“Pursuant to Virginia Code Sect. 17.1-293, Commission proceedings and documents specifically are made confidential and generally not subject to public disclosure,” Curry wrote. “The [Freedom of Information] Act, therefore, does not apply to Commission proceedings or documents.”

Concurrently, Richmond lawyer David P. Baugh asked Griffith for “any advisory opinion you may have” from the JIRC “concerning the propriety of a judge sitting on a case which originated when he or she might have been Commonwealth’s Attorney.” Baugh’s June 10 letter also said he was seeking the same information from the JIRC.

Griffith replied to Baugh on June 20.

“I am in receipt of your letter dated June 10, 2003, in which you make a request pursuant to the Virginia Freedom of Information Act for a copy of an opinion that I received from the Virginia Judicial Inquiry and Review Commission,” wrote Griffith. “Even if the Virginia Freedom of Information Act were to apply, I have no record in my possession responsive to your request.”

Baugh, who now is representing Zaleski in his FOIA suit against the JIRC, said, “We’ve tried to find [the opinion]. We can’t find it.

“Most of the opinions from JIRC are on their Web site. This one is not,” Baugh continued, adding that he wanted “some guidance” from the opinion.

In Baugh’s view, the JIRC would be hard-pressed to justify its decision not to release the opinion. “I find it hard to imagine that if such a document does exist, there’s a way to keep it secret,” he said.

Different battle, same war?

In an ongoing dispute, Zaleski and Griffith have tangled over Zaleski’s client’s last-minute request for a jury trial in July 2002. Zaleski’s client, accused of possession of cocaine with intent to distribute, requested the change after learning that Griffith was to preside over his trial. (See “Criminal defense group blasts judge in Norfolk,” May 26, 2003).

In what Zaleski described as retaliation, Griffith removed Zaleski from the court-appointed list in Norfolk. Zaleski, a 25-year veteran of the list, filed a separate complaint with the JIRC in November 2002; he said he has heard nothing from the JIRC since then.

In the May 2003 edition of its journal, The Champion, the Virginia Association of Criminal Defense Lawyers described Zaleski’s removal from the court-appointed list as a “travesty.”

In May, a representative of the Virginia Bar Association’s judiciary committee suggested that the committee might investigate the VACDL’s criticism of Griffith.

“What we did is we talked to the local bar,” said C. Breck Arrington Jr., executive vice president of the VBA. “[The Norfolk-Portsmouth Bar Association] agreed to look into it and let us know what they found.”

Added Arrington, “They did look into it and, I think, concluded there was nothing they could do or say publicly.”

Asked if there was a link between his removal from the court-appointed list and his suit against the JIRC, Zaleski said: “They are two separate matters. Probably, if my first run-in hadn’t occurred with him, I would have sought the opinion anyway. But my run-in with him gives me reasons to pursue it the way we have.”

“Yes, I see a connection,” said Baugh. “Yes I do.”

Griffith could not be reached for comment.

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