You can’t give us information about judges and order us not to disclose it, members of the House Courts of Justice Committee told representatives of the Supreme Court of Virginia this morning.
At issue are judicial performance evaluation reports on judges up for reelection this year.
The Supreme Court entered an order in August telling the survey lab that compiles the reports to deliver those on the first five judges that the legislature will consider under the judicial performance evaluation, or JPE, program to the chairmen of the House and Senate courts committees.
The court ordered the chairmen to disclose the reports only to members of the committees and to legislators who represented the judicial districts in which the judge sits.
House Courts Chairman David B. Albo, R-Fairfax, said he called Chief Justice Leroy Rountree Hassell Sr. and told him the order was too restrictive because all members of the legislature vote on judges. The court responded with a second order that allowed all legislators to view the reports but barred anyone else from seeing them and directed Albo and his Senate counterpart, Henry L. Marsh III, D-Richmond, to return all copies of the evaluations to the lab once the legislature completed its work on the reappointments.
That set up today’s showdown.
Albo asked the Supreme Court to send representatives from the JPE Commission to the joint meeting of the House and Senate Courts Committee meeting this morning. The committee was scheduled to review about 60 judges who were up for reelection, including the five for whom JPE reports had been prepared.
Albo told Ed Macon, the No. 2 man in the Supreme Court’s administrative arm, and Patricia Davis, coordinator of the JPE program, that he had not opened the sealed envelope containing the JPE reports because of the possibility that he could be held in contempt of court and jailed if a disclosure the Supreme Court viewed as improper occurred.
“The fact that you can’t open it without fear of going to jail means that the Supreme Court has not complied with the law,” House committee member and Majority Leader H. Morgan Griffith, R-Salem, said.
The statute that creates the JPE program, Virginia Code § 17.1-100, directs the Supreme Court to establish it by rule to “provide a self-improvement mechanism for judges and a source of information for the reelection process.” The reappointment of judges is a public proceeding, and the court failed to follow the law in trying to impose secrecy on it, Griffith said.
Del. Bill Janis, R-Henrico, said the order creates a broader separation-of-powers issue. “I don’t think the Supreme Court has the authority to order members of the legislature to do anything.”
Macon told the committee members, “There is a genuine and honest disagreement” about whether the reports can be kept secret. He said the court considers them personnel files of the type that are exempt from disclosure under the Virginia Freedom of Information Act.
Griffith said he does not believe the exception for personnel matters applies because the reappointment process is public. “For this to possibly work,” legislators have to be free to discuss a question, pro or con, raised by a JPE report, he said.
Several committee members appeared to be looking for, as Del. David W. Marsden, D-Fairfax, put it “some middle on this. It doesn’t look like there is.”
Albo seemed to hold out hope that there might be. “I’m not mad at anybody. We just have a problem, and we need to get it fixed.”
By Alan Cooper