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Fairfax needs judges

Senator says largest jurisdiction got ‘hosed’ over case counts

Lawyers and legislators from various Virginia locales, including populous Fairfax County, say Gov. Bob McDonnell missed the mark when he proposed money to fill certain judgeships.

The governor overlooked areas badly in need of judicial help, in part because the available caseload numbers are unreliable, Fairfax lawyers say.

Other regions – including Arlington, Charlottesville, Roanoke, Lynchburg and the Shenandoah Valley – say the special circumstances of their courts warrant attention, even if the raw numbers alone don’t justify unfreezing vacant judgeships.

“It’s a puzzle and everyone wants their piece of the puzzle filled,” said Del. Gregory D. Habeeb, R-Salem, who joined colleagues in submitting budget proposals to unfreeze additional vacant judgeships beyond the governor’s plan.

The warnings about overworked judges highlight questions about whether Virginia courts are fairly counting their cases, questions not due to be answered until well after the 2013 General Assembly has finished its work. The results of a study of court caseloads – with adjustments for discrepancies in methodology – are expected in November.

“A lot of people back home are interested in the outcome,” Sen. Jill H. Vogel, R-Upperville, told a Supreme Court official this month.

Fairfax County leaders have already concluded their court system is getting a raw deal in case counts.

“Fairfax County got totally hosed,” said Sen. J. Chapman Petersen, D-Fairfax, referring to the county’s practice of assigning one case number for each criminal defendant, regardless of the number of charges. Other courts create a separate case number for each separate charge.

The result is a vast disparity in caseload numbers that puts Fairfax County’s courts at a disadvantage when politicians attempt to fairly distribute money for judges, say Petersen and others familiar with the county courts.

When the numbers are adjusted for the number of criminal counts per defendant, “Fairfax suddenly leaps to the top of the list,” Petersen said.

Indeed, a chart prepared by Chief Circuit Judge Dennis J. Smith puts Fairfax County fifth on a list of circuits based on total cases per judge, adjusted for the number of counts per defendants.

Fairfax criminal practice further skews the numbers, advocates say, because there are very few multi-count indictments. “Our commonwealth’s attorney cuts his deals at the district court level,” Smith said.

Fairfax advocates also complain the numbers fail to account for the complexity of cases in the populous county. Civil cases outnumber criminal cases, and trials frequently take more than one day.

Smith took a look at his circuit court docket for Feb. 4: All 13 judges were scheduled to be holding court, but there were 17 cases set for trial, including a six-day murder case. One January case had to be postponed on the day of trial because no judge was available. “It’s a real problem; it’s not a made-up problem,” Smith said.

The judge said he worries about dragging out the docket on cases that affect the lives of litigants. “We need to try to get some quick finality so people can get their lives re-ordered and move on,” he said.

Meanwhile, Fairfax County’s general district court is bracing for a “tsunami” of cases on the traffic dockets from new “hot lanes” on local highways. Enforcing the high-occupancy requirement for those restricted lanes is estimated to produce between 100,000 and 200,000 cases a year, said Jay B. Myerson, president of the Fairfax Bar Association. He said the figures came from the highway contractor.

The added cases “will crush that court,” Myerson said.

Even though the county will be short two judges in both the general district and circuit courts, Myerson said the FBA is asking for just one judgeship each, “to buy us time until we can get the results of the study.”

All 22 members of the county’s General Assembly delegation are on board with the request, in what Myerson calls a “rare display of unanimity and bi-partisanship.

That alone should get somebody’s attention,” he said.

Localities prepare their pitches

Arlington County lawyers also stepped up to make their case for unfreezing one of two general district court vacancies. The retirement of Judge Karen A. Henenberg at the end of this month will mean the court has lost two of its four judgeships in two years.

“Going to a two-judge court would be frankly disastrous,” said Ellen “Kate” Fitzgerald, president of the Arlington County Bar Association. “Our judges are already doing more than what many judges around the state are doing.”

Fitzgerald and fellow bar members urged the nine legislators representing Arlington to unfreeze just one of the two openings. “I know they are facing some huge budget issues,” she said, adding, “We have tried to be very measured in our request.”

Another full court press came from lawyers in Waynesboro and Harrisonburg, where General District Judge William D. Heatwole retired on Jan. 1. Under a unique provision of Virginia law, Heatwole served courts in both the 25th and 26th Districts, with the larger part of his docket in Harrisonburg, according to figures provided by Harrisonburg lawyer James O. Clough.

Because of the seat’s dual function, it is “absolutely imperative” that the seat be filled, wrote Eric N. Laurenzo, president of the Augusta Bar Association in a Dec. 20 letter to McDonnell. Substitutes and judges from the southern parts of the sprawling 25th district can step in, he said, but it helps to have a judge who knows the local scene.

It also helps to know who the judge is going to be, Laurenzo said. “It’s tough to get the best results for your client when you don’t know who your audience is,” he said.

In Charlottesville and the eight-county 16th District, the retirement of General District Judge Roger L. Morton is expected to cause hardship, reported J. Lloyd Snook, president of the Charlottesville-Albemarle Bar Association. “That’s going to be a real disaster in a lot of areas,” Snook said.

Without Morton, the caseload per judge for the 16th District is 43.6 percent above state average, according to Supreme Court figures. Two delegates have proposed filling the judgeship.

The need for funding a circuit judgeship in the Roanoke Valley is driven, not by caseload numbers, but by timing, lawyers say. The 23rd Circuit will lose two judges a month apart, with the retirements of Judges Jonathan M. Apgar and Robert P. Doherty Jr. The circuit will go from six judges to four in a space of 31 days, with attendant administrative problems.

“We know we’re not first in line based on numbers,” Habeeb said, but he argued for more of a “soft landing.” He hopes to restore funding for one of those frozen judgeships while awaiting the study results. The Roanoke Bar Association has added its voice to the call for help.

The numbers are more compelling for Habeeb’s move to fund a juvenile and domestic relations judgeship for the Roanoke Valley, with three courthouses. Expecting the loss of two judges in the coming year, the district would go from four judges to two.

“That would be a disaster to have three busy J&DR dockets with only two judges,” Habeeb said.

Lynchburg is also looking to unfreeze a general district judgeship, although its caseload numbers are not as dire. Del. Benjamin L. Cline, R-Lexington, has put in a budget amendment to pay for replacing Judge Joseph M. Serkes, who retired at the end of January.

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