Concerns about Republican opposition to judicial appointments by Gov. Timothy M. Kaine appeared to be unfounded on Dec. 11, when members of the House and Senate Courts of Justice Committees interviewed about 60 incumbent judges up for reappointment – or appointment to a first full term in a few instances.
The two most prominent of those appointments, Virginia Supreme Court Justice LeRoy F. Millette Jr. and Virginia Court of Appeals Judge Cleo E. Powell, were greeted with courtesy and praise in their few minutes before the legislators.
Kaine filled the appellate court vacancies after the legislature was unable to do so during this year’s regular session or in two special sessions. Some Republican legislators warned that any candidates who took the appellate appointments, or several more at the circuit level, did so at their peril.
All indications were that Millette, Powell and three Norfolk Circuit judges appointed by Kaine – former General District Judge Louis A. Sherman, former Juvenile and Domestic Relations District Judge Jerrauld C. Jones and former Commonwealth’s Attorney John R. Doyle – will get quick approval.
The road may be rockier, if it isn’t blocked altogether, for Chesterfield Circuit Judge Timothy J. Hauler and Sixth District J&DR Judge Jacqueline R. Waymack. They were the only two incumbents to encounter substantial flak from committee members.
Waymack had to contend with a finding by the Judicial Inquiry and Review Commission that she failed to avoid the appearance of impropriety in two instances: a bond hearing shortly after she was appointed in which her former partner represented the defendant, and in a comment she made after she denied a change in custody from a grandmother to a mother who worked as a stripper.
She remarked that the case might be decided differently by “one of our male liberal judges upstairs.”
In her formal response to the initial JIRC complaint, she said she regretted the comment but explained that she had made it in response to the argument by mother’s attorney that stripping was a wholesome activity and that it would be better for the child to go to work with the mother than to stay with the grandmother.
Lawrence D. Diehl, the attorney who represented the mother, told the committee he said no such thing and contended that “a false statement to mitigate a JIRC complaint” made Waymack unworthy of reappointment.
Several attorneys, including Hopewell Commonwealth’s Attorney Anthony Sylvester, contended that JIRC’s requirement that Waymack recuse herself from hearing cases involving attorneys who had made complaints about her created administrative difficulties.
Waymack responded that her description of Diehl’s remark was “a paraphrase of my interpretation of what was said” and did not differ significantly from his argument. She added, “Certainly Mr. Diehl is an interested party. He was interested in this position the last time.”
As for administrative difficulties, she said she and the other J&DR judge in the district have worked out a system to minimize problems with recusals.
Several lawyers and a contingent of Prince George County and Hopewell residents spoke on her behalf, and Sen. L. Louise Lucas, D-Portsmouth, a member of the Senate Courts Committee said, “I recommend her without reservation.”
JIRC placed Waymack under supervision in 2005 and concluded two years later that she had complied with the terms of the supervision.
Hauler ran into criticism on four fronts: a sentencing in a vehicular manslaughter case, a sharply worded reversal by the Virginia Court of Appeals in a custody case, run-ins with neighbors who pointed to what they said were administrative irregularities related to a bed and breakfast run by his wife, and the defamation lawsuit he filed against Circuit Court Clerk Judy L. Worthington, who had opposed his reappointment eight years ago.
Committee members appeared to regard the manslaughter sentencing more as a reflection of sentencing guidelines than as an indication of light sentencing in general.
The members were more critical of his decision to read a transcript of a J&DR hearing before conducting a de novo review of the custody case. Hauler acknowledged he made a mistake in doing so.
And one committee member, Sen. Ken Cuccinelli II, R-Fairfax, said the interplay between his business concerns and his duties as a judge “causes me considerable concern.”
The suit against Worthington, which was eventually settled at a cost to taxpayers of nearly $300,000 in attorneys’ fees and a payment of $90,000 to Hauler, “causes me very sincere concern with respect to your continuing to serve on the bench,” Cuccinelli said.
Whatever the merits of the case, filing suit against a critic of his judicial performance “is very problematic in what is a very challenging process for us,” Cuccinelli said.
A contingent of Chesterfield lawyers, including Commonwealth’s Attorney William Davenport, appeared on Hauler’s behalf, as did Sen. John Watkins, R-Chesterfield.