The House and Senate Courts of Justice Committees voted yesterday to send an ultimatum to Chief Justice Leroy Rountree Hassell Sr.: withdraw the order limiting dissemination of judicial performance evaluation reports or appear before the committees to explain why legislators can’t make free use of the reports.
The action came at the beginning of a four-hour session to review about 60 candidates for judicial appointments or reappointments to roughly 30 seats.
First up were the first five judges to be evaluated under the program that the legislature directed the Supreme Court to develop.
Much of the evaluation is based on confidential responses to questionnaires by attorneys, jurors and juvenile court personnel. A contractor sends and tabulates the surveys, which are given to the judges for review by a retired judge.
The evaluations are conducted three times during a judge’s term. They are described in the legislation creating them as “a self-improvement mechanism for judges and a source of information for the reelection process.” Supreme Court personnel never see them, but the third report in a judge’s term is to be given to legislators for their consideration in reappointing a judge.
The five judges who have had complete judicial performance evaluations told the committees that they received an e-mail in September from Hassell telling them not to share the reports with anyone, “including disclosure to members of the General Assembly.”
“The continued success of the Judicial Performance Evaluation Program depends on our ability maintain the highest levels of anonymity and confidentiality,” Hassell said in the e-mail, which one of the judges provided at the request of the committees.
Evaluations of the five judges were sent to the chairmen of the courts committees with an order directing them to limit disclosure to members of the committees. A second order expanded dissemination of the reports to the legislature but directed the chairmen to collect all copies and return them to the contractor that prepared them.
Neither House Courts Chairman David B. Albo nor Senate Chairman Henry L. Marsh III have opened the packet with the evaluations, Albo because the order implies the possibility of being held in contempt of court and Marsh because he believes the program is unfair to judges.
The order has infuriated some legislators who contend that the Supreme Court has no authority to order legislators to do anything. They note that the legislation authorizing the JPE program says nothing about confidentiality and contend that the limitation on disclosure is inconsistent with the legislation, Virginia Code Sec. 17.1-100.
Sen. Kenneth W. Stolle, R-Virginia Beach, made the motion to require an appearance by Hassell or withdrawal of the order after noting that the bill was intended in part to protect judges. Stolle was an early proponent of the JPE program and argued when it was being considered that anonymous responses to a questionnaire by those most familiar with a judge’s work would give legislators a better perspective on a judge’s work than a brief interview before the courts committees.
Positive responses also would serve as a counterweight to complaints from a small number of disgruntled and vociferous litigants, Stolle and other proponents of the program argued.
Del. Kenneth Melvin, D-Portsmouth, supported the motion. He said he had heard reports of temperament problems about one or more of the five. “I don’t know whether it’s true or whether it’s smoke. I want to see the evaluations.”
Once the discussion of the JPE program was out of the way, interviews of the remaining candidates went smoothly.Only one candidate was interviewed for some vacancies, an indication that the local delegation had agreed on his or her selection, while as many as five candidates were interviewed for other posts. It was unclear whether those interviews represented a split in the delegation or a courtesy to the candidates who had expressed interest. Only one of the apparently unopposed candidates – Clay L. Macon, who is seeking a general district judgeship in Norfolk – appeared to run into trouble.
He neglected to include a bar complaint that had been dismissed with terms on a judicial questionnaire, and the omission was caught by legislative staff.
Macon said it was a minor matter that happened a number of years ago, and he had focused on the word “dismissed” rather than on the terms set by the bar.
Stolle and Sen. Thomas Norment, R-Williamsburg, said they found the explanation for the omission unconvincing, and another candidate, Joseph A. Migliozzi, the capital defender in Hampton Roads, was called in, apparently at the last minute, to interview for the seat.
The legislature is expected to fill most of the seats next week. We had a link to a list of the candidates, a few of whom dropped out before the interviews, in a Thursday post.
By Alan Cooper