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Arlington needs judges

County is feeling the squeeze from lack of jurists

Peter Vieth//March 26, 2012

Arlington needs judges

County is feeling the squeeze from lack of jurists

Peter Vieth//March 26, 2012

Lawyers and county officials in Arlington are pleading for an extra circuit court judge from the General Assembly, where money for judgeships remains tied up in a political showdown.

Arlington has four authorized circuit judgeships, but is making do with only two. Even if the Assembly approves current budget proposals from the House and Senate, the Arlington court will remain at half staff.
The situation is “untenable,” according to the president of the Arlington County Bar Association. “It doesn’t work with only two,” adds Arlington Circuit Judge Joanne F. Alper, who plans to retire in May.

“We’re going to be in serious trouble if the General Assembly leaves us with just two judges,” said Del. Patrick A. Hope, D-Arlington.

To save money, legislators imposed a freeze in 2009, blocking the hiring of new trial court judges as bench seats are vacated. The freeze has hit hard in Arlington, where Judge Benjamin N.A. Kendrick retired last February and Judge James F. Almand retired at the end of 2011.

Arlington will be left with only one judge when Alper steps down May 31. An Assembly budget proposal would allow the hiring of one additional judge in July, but only if the Assembly resolves its budget stalemate. Even then, there would be only one Arlington circuit judge during June.

“The conventional wisdom in our courthouse right now is don’t set trials for May and June,” said Arlington lawyer David A. Oblon.

General Assembly budget planners decided Arlington could manage with just two circuit judges based in part on caseload statistics. The numbers fail to tell the whole story, Arlington leaders say. They argue cases are different in Arlington than elsewhere in Virginia.

“We have a lot of jury days compared to a lot of other jurisdictions,” said Chief Judge William T. Newman Jr.
“We’re an exception because – looking beyond the numbers – our cases are more complex and take longer,” Hope said. “They’re just looking at the caseload and they’re not digging into the numbers.”

Criminal cases are more complicated, according to Commonwealth’s Attorney Theo Stamos. Felony cases make up more than 80 percent of the criminal docket, the highest felony percentage in the state, she said in a letter to the chair of the Senate Courts committee.

With only two judges, Stamos argued, cases will be delayed, and dismissal on speedy trial grounds becomes more likely.

“We are increasingly seeing cases being continued because of a lack of available judges,” said Assistant Commonwealth’s Attorney Jay E. Burkholder, president of the Arlington County Bar Association. He said a multiple-day criminal trial recently had to be recessed in the middle because the judge was not available for the next day.

As an urban county just across the Potomac from Washington, Arlington’s civil docket also presents a unique challenge.

“We have a lot of very complex civil cases that other courts around the state may not have,” said Alper.

Typical cases involve construction law, real estate, zoning issues and medical malpractice, said Arlington Circuit Court Clerk Paul F. Ferguson. He said 55 percent of the civil cases set for trial are scheduled for more than two days. Of the cases that actually go to trial, 93 percent run longer than two days.

Because criminal trials take precedence, delays in scheduling civil cases will grow longer, attorneys predict. Oblon said lawyers will start filing civil cases in nearby localities to avoid the Arlington bottleneck.

“Arlington will cease being a court that handles any civil cases,” Oblon said.

Alper said the Arlington court used to offer mediation sessions with disinterested judges. “We can’t do that anymore,” she said. “We are just pedaling ahead to try the cases we need to try.”

With the circuit court bench strength reduced to two, substitute judges fill in frequently. “They’ve been coming from all over the state to help us out,” Newman said.

Familiar faces include retired Judges Alfred D. Swersky of Alexandria and Gaylord L. Finch Jr. from Fairfax County. Judges Kendrick and Almand often return to the Arlington bench as substitute judges. Retired Court of Appeals Judge Rosemarie Annunziata of Fairfax is also hearing cases in Arlington.

Even the supply of substitute judges is being squeezed, according to Ferguson. “We’re in competition with all the other courts that are short on judges,” he said.

Courts in Stafford County and Winchester also are feeling the pinch, Ferguson said, with judges from the Washington suburbs called in to help there.

Oblon said the current situation, with substitute judges and irregular schedules, means lawyers lose one of the tools they offer to clients: the ability to predict how a case will be handled with a particular judge. Without knowing who the judge is going to be, “I can’t provide that value,” he said. “Important decisions are being made relatively blind.”

“The substitute judges have been great, but they can only do so much,” Alper said. She said it is hard to set longer trials, because substitute judges want to come for only a day or two at a time, not for a trial measured in weeks. “That’s why they retired,” she said.

“If something is not done, this could get to be a real problem,” Newman said.

At press time, General Assembly conferees were meeting to try to break the budget impasse. A vote on judges was tied up with the money issues. Del. David Albo, R-Springfield, blamed Senate Democrats for the delay. “We have a resolution; we have a list of judges; we’re ready to go,” he said.

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