Virginia Lawyers Weekly

Virginia Chief Justice Leroy Rountree Hassell Sr. says he will forgo the 2 percent raise the General Assembly has approved for judges but will leave it to the conscience of his judicial colleagues as to whether they will do the same.

Hassell made the comment at a meeting of the Virginia Judicial Council, the judiciary’s top policy-making body. He typically presides over the meetings but missed most of it to attend a meeting of the House Appropriations Committee on the condition of the state’s finances.

All state employees got the same 2 percent raise, but Gov. Timothy M. Kaine has deferred it because of the state budget shortfall.

He can’t defer raises for the judges, however, because the state constitution forbids the diminution of a judge’s salary, so judges will receive their raises unless they reject them.

When a similar shortfall occurred during the administration of former Gov. L. Douglas Wilder, he asked judges to forgo their raises.
When he returned from the legislative meeting, Hassell told the Judicial Council that he will not make such a request this time, but added, “I will not accept 2 percent when [other court employees] will go without.”

He noted after a reminder from Sen. Henry L. Marsh, D-Richmond, a member of the council, the different approaches judges took after Wilder’s request.

A relative few took the increase, while some did not take it, some took it and donated it to charity, and some took the money and refunded it to the state because they were near retirement and the higher salary increased the size of their pensions.

As for other cuts in the judiciary budget, Hassell said he has identified about $5 million in reductions for 2008-10. They include a hiring delay of 90 days when a vacancy occurs, the elimination of the judicial programs department, the elimination of voluntary judicial conferences and the reduction of a day of the mandatory conferences.

Hassell said the judiciary will look for other ways “to reduce our costs without adversely affecting our ability to administer justice.”

He added, “We are going to have to do more with less and become even more reliant on our information technology.”
In other matters, the council:

• Recommended that the General Assembly increase the mandatory retirement age for judges from 70 to 75. The Senate carried over the same proposal from last year to this session of the legislature, but the House defeated it after considering reducing the mandatory age to 73.

• Recommended an immediate revision of Rule 5:9 for the Supreme Court and Rule 5A:6 for the Court of Appeals. As written, the rules require notices of appeal to be filed within 30 days after the entry of final judgment. In an unpublished order earlier this year, the court dismissed an appeal because it was filed after a judge ruled from the bench but before the written order was entered.

The court quickly withdrew the order after Appellate Defender S. Jane Chittom filed a friend of the court brief noting that defense attorneys had relied on a 1991 decision from the court of appeals that concluded that the rule was not jurisdictional, despite language in the rule strongly suggesting that it is.

Hassell said attorneys appear to routinely file notices of appeal before final orders are entered because of fear that they might not learn when it was entered and miss the 30-day deadline for filing the notice after entry of the order. “The practice is inconsistent with the language of the rule,” he said.

The court will consider the change during its argument session this week. Changes in court rules typically take effect 60 says after the court approves them, Hassell said.

The rule is part of a comprehensive reworking of the appellate rules by a committee chaired by Justice Donald W. Lemons. The council and the court will consider the rest of the changes later.

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