Publisher's Notebook

What is the worst city in America for commuters? Where do people sit in traffic the longest?

If you’re from Northern Virginia, you already know the answer, based on sad, sad experience.

According to the latest Urban Mobility Report, compiled by the Texas Transportation Institute, the worst place for traffic is the Metro Washington, DC area. Actually, it is tied with the Chicago area for that honor.

Commuters in those regions spend a total of 70 hours a year sitting in their cars, waiting out delays. That’s nearly two work weeks’ worth of time wasted.

One hopes the General Assembly takes note of these statistics.

The Los Angeles-Long Beach-Santa Ana area of California is third, with 63 hours sitting in traffic behind the wheel, and metro Houston is fourth, with 58 hours.

Fifth place is held by the worst mid-sized city, Baltimore, where commuters log 50 hours in traffic. If you’ve ever been through Charm City at rush hour, that ranking makes sense.

Give props to the headline writers at the Wall Street Journal, which featured the report in their edition this morning. Their headline for a piece about people in this country just sitting in traffic: “American Idle.”

The 2011 General Assembly, which convenes Wednesday, will be seeking to elect a new justice to take the seat of retiring Supreme Court Justice Lawrence Koontz.

Eight statewide bars have handed down endorsements, with the results a veritable crazy quilt and with no runaway winner emerging. Judge Elizabeth McClanahan of the Court of Appeals is the ostensible leader in endorsements, having been tapped by all eight bars and given the highest recommendation by five. Danville Circuit Judge Joseph Milam was the only other candidate to be endorsed by all eight, earning the top backing of three.

There are 10 people in the running, including four members of the appeals court – Judges McClanahan, Arthur Kelsey, Randolph Beales and Robert Humphreys – and two circuit judges, Pamela Baskervill of Petersburg and Milam. Appellate lawyers Steve Emmert and Monica Monday round out the list, as do Virginia Beach litigator Glen Huff and William Thro, a former state solicitor general.

Those who earned the bar endorsements should rightfully consider them a vote of confidence in their abilities. But for better or worse, all the nice things that bar groups say may not mean that much once the Assembly is in session.

Del. Dave Albo, R-Fairfax, is chair of the House Courts of Justice Committee and will play a key role in whoever gets Koontz’s seat on the court.

He told this newspaper in an interview this week that he views himself as the broker of the process and he won’t be advocating one candidate over another.

The race is wide open, he indicated, and that basically it will depend on the effectiveness of a candidate’s legislative angels. An angel, in this context, is a legislator who will takes the candidate around to meet other legislators, talks up his guy’s or gal’s chances and serves as an advocate.

If needed, the angel may even work a deal for the candidate. Supreme Court Senior Justice Elizabeth Lacy once noted, famously, that the Assembly is a place where you might see a judge traded for a bridge.

Expect the 10 – or as many of the 10 that can spare the time – to be working the halls of the Assembly, meeting and greeting delegates and senators.

Albo provided some clues to the Assembly’s mindset in a separate interview with the Associated Press earlier in the week. Albo told the AP, “The perfect candidate is somebody who geographically represents an area not represented or underrepresented on the Supreme Court.”

He added, “It’s someone who has been an accomplished lawyer for years, has lots of experience and has been a judge for a little bit.”

Check your scorecards to figure out what the geographical comment means. If justices are identified with their original home areas, then Northern Virginia has Justices Bill Mims and LeRoy Millette; Central Virginia has Chief Justice Leroy Hassell and Justice Don Lemons; Hampton Roads has Justice Bernard Goodwyn; and Southwest Virginia has Justice Cynthia Kinser. The Valley and Southside aren’t presently represented, and the Southwest would lose a little clout with the departure of Koontz, who is from Salem.

The thought that the new justice should have prior judicial experience may be the most telling detail and could tilt things to the appeals court candidates, who have been not just judges but appellate jurists.

Expect the six candidates with judicial experience to play that card when making the rounds. And the other four have been trained as lawyers, so they should know how to distinguish an argument that goes against them.

When I was a newbie lawyer years ago, I got one of those nuggets of advice you hang on to.

I was discussing case files with one of the partners, describing the legal research I’d done and what the case law seemed to be. He asked, “What does the Code say?” He added, only half in jest, “When in doubt, always look at the Code.”

A week or so later, different partner and different set of files. Same question after I delivered my spiel: “What does the Code say?”

It took hearing this question about three times until I realized it was a good idea to check the Virginia Code before meeting to discuss files.

And, after changing careers and moving to this newspaper, I myself have asked that question of every reporter I’ve worked with when we’ve reviewed stories before publication. Different venue, same important point.

The Code of Virginia controls. The Code is complicated, with clauses that have to be harmonized with other pieces and parts. In numerous sections, it looks like what it is: a patchwork put together over a number of years, sometimes haphazardly. But it’s the law, so you always look at the Code.

A lawyer named Eric Clingan in Fairfax looked at the Code and won a big victory for a traffic client a few weeks ago, in a case that drew national attention.

The guy was charged with passing a stopped school bus, which is a reckless driving offense.

The General Assembly amended the law in 1970, but it inadvertently wiped out a two-letter word, “at,” in the statute. Haphazardness at work, no doubt.

Virginia Code § 46.2-859 states, “A person is guilty of reckless driving who fails to stop, when approaching from any direction, any school bus which is stopped…for the purpose of taking on or discharging children.”

Clingan argued to a general district judge that the “at” was missing. Thus, the statute applies, he argued, to the driver of the bus, not another motorist. Take out the clause that starts “when approaching” and you’ll see: “A person is guilty of reckless driving who fails to stop…any school bus.”

Clingan said the general district judge told him, essentially, “Very interesting argument, Mr. Clingan. Guilty.”

Reckless driving is a six-point traffic offense. The client, whose name was Mendez, wanted to appeal, Clingan said.

In circuit court, Clingan argued again the word “at” had been dropped when the statute was amended 40 years ago. And he repeated the theory that the statute as worded now is pointed at the bus driver. He consulted a composition professor at George Mason who concurred.

Fairfax Circuit Judge Marcus Williams listened to the argument, Clingan said, then dismissed the charges.

You know you have an important case when a legislator immediately jumps on your case and promises a legislative fix. Del. Scott Surovell, D-Fairfax, already has introduced House Bill 1469 for the 2011 General Assembly session; the bill will restore the word “at” to the law.

You know you have a really important case when it’s turned into a hypothetical for legislators interviewing judges seeking another term.

On Dec. 10, a couple of legislators asked a general district judge about the school bus case, and what he would do if he had the matter on his docket.

In so many words, he said the Assembly obviously intended to protect children when it passed the statute, and he would convict the defendant.

Along with the Fairfax general district judge, that makes two judges who read a statute, knew or should have known the law had a mistake, but convicted, or would convict, despite that error.

When in doubt, look at the Code.

Doesn’t that apply to judges too?

With the General Assembly session starting in a month, the leaders of several state bar groups are seeking war stories about how the judicial hiring freeze is affecting the administration of justice in the commonwealth.

A quick recap: Last year, for budgetary reasons, the legislature decided to stop filling open judgeships for two years. According to the Virginia State Bar, 19 judgeships are currently vacant due to the freeze. The state budget anticipates that the number will rise to 32 by the end of the budget period in 2012, due to retirements.

When he took over the VSB presidency last June, Irv Blank promised he would make the judicial freeze an issue. With an e-mail sent to all bar members last week, Blank stirred the pot and made good on his promise. Blank said that due to the freeze, “Signs of crisis are emerging in pockets across the state.”

But apparently no one is squawking. He said, “I have been told by members of the General Assembly that they have not been hearing from constituents on this issue.”

Blank wants to change that. “We need your stories of the effects of the freeze on your clients — individual and corporate — as well as on the senior and substitute judges who are taking up the slack where full-time judges are not available. I encourage you to submit those stories to me and to contact your legislators with your concerns,” Blank said.

He asked that any observations be sent to breeden@vsb.org or to Irving M. Blank, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, VA 23219.

Blank’s request comes on the heels of a similar e-mail missive from Virginia Trial Lawyers Association Executive Director Jack Harris.

Harris noted that the VTLA wants to focus first on those circuits and districts where the freeze is being felt most acutely and to do that the group needs more than statistics from the Supreme Court’s executive secretary. He asked that members “tell us directly what problems this freeze is causing you in terms of delays in getting trials scheduled, having motions heard, etc.”

Harris asked that stories be sent to him (jharris@vtla.com) or the association’s director of government relations, Mandy Burnett (mburnett@vtla.com).

VBA President Steve Busch and VBA Executive Director Guy Tower recently advised members of that association that the VBA had formed a special committee on the issue, with representatives from all VBA sections. But like Blank and Harris, they want the local scoop.

“The Supreme Court’s statistical information demonstrates the overall scope of the problem, but we also want to share more real world stories about how the freeze is being felt most acutely by you—the practicing lawyers of Virginia” they wrote.

They acknowledged that continuing budget concerns probably will prevent a restoration of all the scheduled positions. But they expressed hope that information from lawyers might contribute to a working on solutions for particularly hard-hit jurisdictions.

“Thus, we ask that you supply us with stories of justice delayed or endangered in particular Circuits and Districts,” the two leaders said. They asked that information be sent to lawyersforfillingjudgeships@vba.org.

Time to speak up.