The VLW Blog

Some lawyer members of a House subcommittee studying proposed Rules of Evidence fear the proposed legislation would change the balance of power between the legislature and the Supreme Court.

What happens to the body of common law the Rules codify, and what is the process for changing the Rules, going forward, subcommittee members wanted to know. Del. C. Todd Gilbert, R-Woodstock, chairs the House Courts subcommittee on evidence and led today’s discussion.

The legislation, House Bill 101, is sponsored by House Courts Committee Chair Dave Albo, R-Fairfax, Del. Manoli Loupassi, R-Richmond and Del. Betsy Carr, D-Richmond.

UVa law professor Kent Sinclair outlined the process leading up to the current Rules, speaking on behalf of the Boyd-Graves Conference recommendation to adopt the Rules of Evidence.

“Case law will continue to evolve,” Gilbert said. “From a process standpoint, if the Supreme Court decides it has changed its mind” on a Rule, “what will be the process by which it updates” the Rules, he asked. According to Sinclair, the legislation is designed to keep in place the same process by which the Supreme Court makes changes in any other rules of court. Rule changes are proposed by the court’s advisory committee on rules, then adopted by the Supreme Court, subject to change by the legislature.

It’s a process that already happens on an annual basis, Sinclair indicated. “The General Assembly passes things every year that affect [court rules] and the advisory committee amends rules so they conform exactly to what the General Assembly has done,” he said.

Sinclair cited legislative response to the Supreme Court decision in Ligon v. Southside Cardiology Assocs., involving evidence of “habit,” as an example of how the General Assembly historically has asserted its role in deciding the law of evidence.

But some legislators saw a distinction between current court rules and the Rules of Evidence.

The rules of court are “management of court rules,” rules of evidence are “more substantive law,” said Del. Greg Habeeb, R-Salem. “I see much greater opportunity for conflict on an ongoing basis,” session to session. “We’re giving the court a little bit of legislative power, along with its interpretive power.” Habeeb said the result could “lead to some very fun courts committee meetings down the road.”

HB 101 is not an abdication of legislative power, Loupassi said. Currently, the Supreme Court can issue a case decision and the General Assembly can come back into session and pass a statute and “change the rules as it sees fit. This doesn’t change the current relationship and power structure,” he said

“This dramatically changes Supreme Court power. The Supreme Court currently is limited by restraints and checks on how courts can change” the law, as cases are presented “on specific records, with particular assignments of error,” Habeeb said.

Sinclair said administering the Rules of Evidence the same way as other current court rules would provide “more warning than just announcing a court decision.”

“There’s a certain way to process rules, but this is kind of a hybrid, it’s not mere process, not writing law, but something in between. How do I know going forward that some activist Supreme Court won’t try to change the law by changing the rules,” Albo asked.

Legislators also discussed a possible need to amend the legislation to clarify the status of the body of case law from which the proposed Rules of Evidence derived.

“If I have a case that’s better for me,” but the prosecutor argues a Rule of Evidence, Albo said he wanted to be free to argue the case. “We need to spell this out, this does not repeal the common law.”

Albo said the subcommittee needs more time to work through some of these issues before the bill goes to the whole committee. The evidence subcommittee plans to meet again Feb. 3 for more discussion of HB 101.

Richmond lawyer Hugh Fain, president of the Virginia Bar Association, and Charlottesville lawyer Lee Livingston, speaking for the Virginia Trial Lawyers Association, also spoke in support of the legislation.
–Deborah Elkins

Federal Magistrate Judge F. Bradford Stillman of Norfolk will retire in September, he says.

Stillman, 65, tells The Virginian-Pilot he plans to enjoy his family and his expected first grandchild.

Stillman’s legal career was not so placid. As lead attorney for the company that won exclusive salvage rights to Titanic artifacts, Stillman was aboard a submersible vessel that plunged two miles into the ocean to explore the wreckage of the ill-fated luxury liner.

Stillman was named a magistrate judge in 2000. His replacement will be named by the district court judges of the Eastern District.

A police officer is talking to a criminal defendant when the defendant offers some information and asks about a plea deal. The officer calls the commonwealth’s attorney’s office and asks if he can talk to the defendant about some horse trading.

The request should set off ethical alarm bells for the prosecutor who takes that call, says Virginia State Bar Counsel Edward L. Davis. If the defendant is represented by a lawyer, talking about plea deals through a police officer is misconduct under the Rules, Davis explains in a comment posted on the VSB website this week.

The prohibition stands even if the accused defendant is the one who brings up the subject, Davis says. Furthermore, it won’t help to argue that “everyone else is doing it.” Davis says the fact that a procedure is commonplace is no defense.

Davis says he wrote the piece based on an inquiry from someone concerned about the practice. He declined to say whether his advice was prompted by the case of Caroline County Commonwealth’s Attorney Tony Spencer. Spencer is asking the Supreme Court to overturn an admonition for talking to a jail inmate without notifying the inmate’s lawyer.

By Peter Vieth

There are a least five potential candidates for a pending seat on the Court of Appeals.

Appeals Court Judge James Haley will be retiring later this year, so the General Assembly will be choosing a successor this session.

Maybe. That’s if the House and Senate can get along and the evenly split Democrats and Republicans can reach an agreement.

The Senate was later than usual in organizing, which may account for the slowness in candidates coming forward; Haley made his announcement in December.

The Virginia State Bar will be vetting candidates early next month and other bars have announced their interview plans as well.

So far, we have been able to glean the names of five potential candidates:

• Tazewell County Circuit Judge Teresa Chafin. The candidate backed by Del. Terry Kilgore.
• Collin Hite, a commercial litigator at the Richmond office of McGuireWoods LLP.
• Monica Monday, a Roanoke lawyer who specializes in appellate practice
• Fairfax Circuit Judge Lorraine Nordlund. The candidate backed by Del. David Albo and other legislators from Northern Virginia.
• Larry Shelton, the federal public defender in the Western District

Stay tuned as more candidates may come forward by next week’s VSB deadline of Feb. 1.

- Paul Fletcher and Peter Vieth

The Virginia General Assembly reelected incumbent judges today, but did not elect two former legislators to the bench. Former Front Royal delegate Clay Athey, a Republican, was up for a seat on the 26th Judicial Circuit in Harrisonburg and former delegate Bud Phillips of Castlewood, a Democrat, was nominated for the 30th General District Court bench in Wise.

Supreme Court Justice Donald W. Lemons was reelected to another 12-year term on the high court.

Judges reelected to the circuit court bench are: Judge W. Allan Sharrett, 6th Circuit; Judge Michael S. Irvine, 25th Circuit; Judge Malfourd W. Trumbo, 25th Circuit; and Judge Lon E. Farris, 31st Circuit. Norfolk Circuit Judge Norman A. Thomas, who ran into trouble during House and Senate committee interviews, was not on today’s list.

Incumbents returned to the general district court bench are: Judge Gordon S. Vincent (2-A); Judge Roxie O. Holder (3); Judge S. Clark Daugherty (4); Judge Richard C. Kerns (7); Judge Philip V. Daffron (12); Judge Thomas L. Vaughn (12); Judge L. Neil Steverson (14); Judge John R. Stevens (15); Judge Stewart P. Davis (19); Judge Lisa A. Mayne (19); Judge Donald P. McDonough (19); Judge Mark C. Simmons (19); Judge J. Frank Buttery Jr. (20); Judge George A. Jones Jr. (22); Judge Vincent A. Lilley (23); Judge Joseph M. Serkes (24); Judge Louis K. Campbell (25); Judge W. Dale Houff (26); Judge J. D. Bolt (27); Judge R. Glennwood Lookabill (27); and Judge Sage B. Johnson (28).

Judges reelected to the juvenile and domestic relations courts are: Judge Deborah M. Paxson (2); Judge Winship C. Tower (2); Judge Joel P. Crowe (3);Judge William P. Williams (4); Judge Robert S. Brewbaker Jr. (5); Judge Barry G. Logsdon (7); Judge Valentine W. Southall Jr. (11); Judge Ashley K. Tunner (13); Judge Margaret W. Deglau (14); Judge Denis F. Soden (14); Judge Richard S. Wallerstein Jr. (14); Judge Edward DeJ. Berry (16); Judge Frank W. Somerville (16); Judge Gayl Branum Carr (19); Judge Glenn L. Clayton II (19); Judge Thomas P. Mann (19); Judge Sarah A. Rice (22); Judge Joseph P. Bounds (23); Judge John B. Ferguson (23); Judge Charles L. Rickets III (25); Judge Ronald Lewis Napier (26); and Judge H. Lee Chitwood (27).

Virginia Beach JDR Judge Ramona Taylor, who was censured in 2009, was not considered for reelection.

The legislature also reelected Fauquier prosecutor James P. Fisher to the Judicial Inquiry & Review Commission, and Judge Judith Williams Jagdmann to the State Corporation Commission.

–Deborah Elkins

WILLIAMSBURG–The Virginia Bar Association presented its Award for Excellence in Legal Journalism to Virginia Lawyers Weekly and Virginia Business on Jan. 20 at the group’s winter meeting.

The award is given in recognition and appreciation of exceptional legal journalism. In 2010, the VBA presented the award to the Bristol Herald Courier for a Pulitzer Prize-winning series of articles about the mismanagement of natural gas royalties in Virginia’s coalfields.

Virginia Lawyers Weekly and Virginia Business both celebrated 25 years of publication in 2011, which VBA President Lucia Anna “Pia” Trigiani called “a tremendous achievement, particularly in this day of electronic media and the challenges faced by print media.”

She said that the VBA was recognizing both publications for “their independence, quality reporting and for their service to the legal profession.”

Trigiani called Virginia Lawyers Weekly “an essential resource for Virginia lawyers.” She asked, “How many lawyers have been heard to say, ‘It is malpractice not to read Virginia Lawyers Weekly.’”

She continued, “The reporting is fair, sometimes tough … but, with the focus on accuracy and attention to detail, Virginia Lawyers Weekly has accomplished so very much in connecting lawyers across our vast and varied commonwealth.”

The paper has “lifted up the legal profession, without being untrue to fair reporting,” Trigiani said.

VLW Publisher Paul Fletcher accepted the award on behalf of the paper.

Trigiani hailed Virginia Business as a publication that is “the leading source of information about the people and industries most significantly affecting Virginia’s economy.”

She added, “As the practice of law has morphed more and more into the business of law, Virginia Business’s coverage of the legal profession has grown.” The magazine has partnered with the VBA for 10 years to produce the “Legal Elite” survey.

“Virginia Business has been a friend of lawyers, an essential source and resource for connecting law and business,” Trigiani said.

Accepting the award for Virginia Business was Publisher Bernard Niemeier.

Both Fletcher and Niemeier serve on the VBA’s Committee on Special Issues of National and State Importance.

A political clash in the state Senate Tuesday delayed otherwise routine Virginia judicial elections at least until Thursday.

Democrats and Republicans differed over whether to elect a slate of 49 judges that included two new faces – both former delegates. Democrats claimed they had an understanding that only incumbent judges would be up for re-election, but Republicans wanted to vote on the entire slate, including the two delegates.

With the Senate evenly split between parties, and with Lt. Gov. Bill Bolling barred from voting as a tie-breaker in judicial elections, the session devolved into stalemate.

Each side accused the other of being obstructionist.

“We’re ready to go right now on these 47 incumbent judges,” said Richard L. Saslaw, D-Fairfax. “It’s the opposition of the other party that’s brought this thing to a halt.”

Tommy Norment, R-Williamsburg, prodded Saslaw to explain the Democrats’ unwillingness to vote on the two former delegates, suggesting it was merely payback for the GOP’s takeover of the Senate. “Is this a judicial selection issue or is this a bruised feelings and political ego question?” Norment said.

Saslaw responded it was best for neither party to question the other’s motivations.

The two new judge candidates are former Del. Bud Phillips of Castlewood and former Del. Clay Athey of Front Royal. Phillips is a Democrat and Athey a Republican. Both are nominated for circuit court seats. No legislator has publicly opposed their election.

Sen. Jill Vogel, R-Winchester, said lawyers in her district were “deeply upset” over the judicial vacancy in the 26^th circuit where Athey would replace Judge John R. Prosser, who retired last March.

The Senate showdown ended when Norment withdrew a motion to suspend the rules. The judgeships issue could be taken up again on Thursday, according to published reports.

-Peter Vieth

Sen. Creigh Deeds, D-Bath Co., has introduced a bill to abolish the Virginia Court of Appeals.

Senate Bill 630 would simply do away with Virginia’s 28-year-old intermediate appellate court effective Oct. 1, restoring the Supreme Court’s authority to hear criminal, traffic, domestic and administrative appeals.

The judges of the Court of Appeals would remain in office through the end of their terms, with salaries, but it’s not clear what they would do after October.

Deeds says the idea is just to save money – at least $8 million a year, he says. “It’s about getting the most bang for our buck,” he said.

Deeds said when the state is cutting services to children the judiciary ought not be immune from the budget ax. He denied any animosity for the court. “I don’t want to hurt anybody’s feelings,” he said.

Nevertheless, he said few of the Court of Appeals judges had experience in criminal, domestic or workers compensation practice before going on the bench. “We’ve used the court as a place to reward folks,” he said.

Deeds disavowed any support from other quarters. “This is my idea,” he said.

The bill has been referred to the Senate Courts committee.

Deeds’ is the second legislative proposal to address the Court of Appeals. The other measure moves in the opposite direction, seeking to give the appeals court more authority. House Joint Resolution 111, introduced by Del. Sal Iaquinto, R-Virginia Beach, would authorize a study of whether to expand the jurisdiction of the appellate court. That proposal has been assigned to a House Rules subcommittee.

On the heels of the Senate courts committee’s judicial interviews last Friday, both legislative courts committees have certified incumbent judges for possible re-election by the General Assembly this week.

Supreme Court Justice Donald W. Lemons has been certified for another 12-year term on the high court, and Fauquier prosecutor James P. Fisher has been approved for another term as chair of the Judicial Inquiry and Review Commission. Courts committees also certified Judith Jagdmann to a term on the State Corporation Commission.

The following incumbent circuit court judges have been certified: Judge W. Allan Sharrett, 6th Circuit; Judge Michael S. Irvine, 25th Circuit; Judge Malfourd W. Trumbo, 25th Circuit; and Judge Lon E. Farris, 31st Circuit. Former Delegate Clifford L. Athey Jr. has been certified for a judgeship in the 26th Circuit. Norfolk Circuit Judge Norman A. Thomas, who ran into trouble during House and Senate committee interviews, was not on today’s list.

The following names have been certified for Virginia General District Courts: Judge Gordon S. Vincent (2-A); Judge Roxie O. Holder (3); Judge S. Clark Daugherty (4); Judge Richard C. Kerns (7); Judge Philip V. Daffron (12); Judge Thomas L. Vaughn (12); Judge L. Neil Steverson (14); Judge John R. Stevens (15); Judge Stewart P. Davis (19); Judge Lisa A. Mayne (19); Judge Donald P. McDonough (19); Judge Mark C. Simmons (19); Judge J. Frank Buttery Jr. (20); Judge George A. Jones Jr. (22); Judge Vincent A. Lilley (23); Judge Joseph M. Serkes (24); Judge Louis K. Campbell (25); Judge W. Dale Houff (26); Judge J. D. Bolt (27); Judge R. Glennwood Lookabill (27); and Judge Sage B. Johnson (28). Former Delegate Clarence E. Phillips has been certified for the bench in the 30th Judicial District.

The following incumbents have been certified to return to the Juvenile and Domestic Relations Courts: Judge Deborah M. Paxson (2); Judge Winship C. Tower (2); Judge Joel P. Crowe (3);Judge William P. Williams (4); Judge Robert S. Brewbaker Jr. (5); Judge Barry G. Logsdon (7); Judge Valentine W. Southall Jr. (11); Judge Ashley K. Tunner (13); Judge Margaret W. Deglau (14); Judge Denis F. Soden (14); Judge Richard S. Wallerstein Jr. (14); Judge Edward DeJ. Berry (16); Judge Frank W. Somerville (16); Judge Gayl Branum Carr(19); Judge Glenn L. Clayton II (19); Judge Thomas P. Mann (19); Judge Sarah A. Rice (22); Judge Joseph P. Bounds (23); Judge John B. Ferguson (23); Judge Charles L. Rickets III (25); Judge Ronald Lewis Napier (26); and Judge H. Lee Chitwood (27).
– Deborah Elkins

Candidates for the seat of retiring Court of Appeals Judge James Haley Jr.  face a round of interviews.  Not only will they sit down with representatives of the Virginia State Bar on Feb. 16, they also are invited to meet with several special interest bar groups.

The Old Dominion Bar Association is making it easy for the candidates. The ODBA will conduct candidate interviews at the VSB offices on Feb. 16, the same day as the VSB’s judicial nominating committee.

ODBA president Beverly Burton says candidates should send her copies of the same materials they submit to the VSB.

Burton said electronic mail is preferred. Her address is BABurton@aol.com. Candidates also can mail a hard copy to B. A. Burton, 2506 Riverside Drive, Richmond, VA  23225.  The deadline for submission of materials is February 1, 2012.

Other groups that conduct interviews of judicial candidates include the Virginia Women Attorneys Association, the Asian Pacific American Bar Association, the Northern Virginia Association of Black Attorneys and the Hispanic Bar Association.

UPDATE: The VWAA also will do interviews at the VSB offices on Feb. 16.

The Virginia Bar Association does not do personal interviews with judicial candidates, but it requests materials be sent by Feb. 1 for consideration. The VBA seeks:

1. Responses to the VSB questionnaire,
2. A personal résumé and
3. A writing sample.

The materials should be emailed to VBA executive director Yvonne McGhee at yvonnemcghee@vba.org.