Virginia Lawyers Weekly

House Majority Leader H. Morgan Griffith, R-Salem, says he will not pursue legislation this session that would give judges the authority to defer judgment in most cases.

House Bill 553 was carried over from the last session of the General Assembly to the next one, largely because the Supreme Court of Virginia had two cases on its docket – Moreau v. Fuller (VLW 008-6-058) and Gibson v. Commonwealth (VLW 008-6-054) – that addressed the issue.

Ultimately, in opinions by Justice Donald W. Lemons, the court said there was never a clear order in either case that the trial judge would have deferred judgment. Because courts speak through their orders, the Supreme Court therefore had no reason to rule on whether they have the inherent authority to do so, Lemons wrote.

The decisions produced a concurrence from Justice Lawrence L. Koontz Jr. and a counter-concurrence from Justice Cynthia D. Kinser that was joined by Justice Ke-enan and then-Justice G. Steven Agee.

“Surely, in time a case will come before this court with the appropriate record to permit us to properly address this issue,” Koontz wrote. He said he believed the court’s inherent authority extended at least to allowing deferred judgment “in appropriate cases and upon consent of the accused and the Commonwealth.”

Kinser acknowledged that lower courts sometimes do defer judgment. “The Court’s inability to address this issue should not viewed as a tacit approval of the practice.”

“Obviously, it’s a philosophical divide,” Griffith said. “We were hoping that they would make a decision.”

Griffith said he believes that judges do have the inherent authority to defer judgment and bring equity to a disposition. “Sometimes you have to feel your way through a case,” he said.

But he said he did not want to present what would surely be a contentious issue to the House Courts of Justice Committee in a short session that will be dominated by a shortfall of $3 billion in the state’s $78 billion biennial budget.

The General Assembly has granted judges the authority to defer judgment in some cases, most notably first-time drug offenses. Prosecutors view the grant of authority in some instances as support for their position that judges have only the power that the legislature gives them.

Defense attorneys and some judges contend that sentencing is such a core judicial function that judges have the authority to defer judgment. Any effort to encroach on that function by the legislature would create serious separation of powers questions, they contend.

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