Virginia Lawyers Weekly VA Lawyers Weekly
A handful of withering interviews with judges seeking new terms this month may signal a new level of scrutiny for the judiciary at the Virginia General Assembly.
The sharp questioning from legislators Dec. 12 was driven by anonymous surveys of judges’ performance filled out by lawyers and other court participants.
The interrogation of some sitting judges led Virginia State Bar president Kevin E. Martingayle, who attended the interview session, to urge legislators to respect the independence of the judiciary.
Others, including an embattled Richmond general district judge, suggested the judicial performance reports might be biased against women and blacks.
One judge with lower scores on the surveys was not invited to interview at all.
Still another judge was on the defensive over actions that led to a judicial ethics prosecution, even though she ultimately was exonerated.
Judge defends performance
Richmond General District Chief Judge Birdie Hairston Jamison was one of the targets for heightened scrutiny.
She questioned the validity of judicial performance surveys that placed her at the bottom of a group of 19 judges. She suggested the reports, produced by a Supreme Court evaluation program, could reflect a bias against women judges or concerted action by attorneys to remove a judge.
The judicial performance evaluation program was revived this year; surveys were conducted for only those judges who had received an earlier, mid-term self-improvement review.
Acknowledging her low scores, Jamison said she sought counseling from a bench colleague and a facilitator judge about her courtroom practices. Both approved of her performance, she said.
Jamison, a 23-year bench veteran, was accompanied by a group of supporters at her legislative interview. The Hill-Tucker Bar Association wrote a letter of support, praising Jamison’s “consistency and impartiality.”
Jamison pointed to a clean record on judicial ethics complaints.
She said lawyers might disapprove because she rejects certain plea agreements and imposes extra requirements for drunken driving defendants.
“I wonder if maybe some of the attorneys whose pleas were rejected felt disrespected,” she said.
“Maybe the impression I am giving is that I am stern,” she said.
Jamison raised the possibility the surveys reflected a bias against women on the bench.
“I am not saying that’s the reason. I am saying that possibly could be a reason,” Jamison told the panel.
Later, Martingayle agreed women judges might be held to a different standard.
“Men don’t like women telling them what to do in the black robe,” Martingayle said. “We don’t live in a perfect society yet.”
Other women judges with relatively poor surveys were Norfolk Circuit Judge Karen J. Burrell – who was passed over altogether for a legislative interview – and Virginia Beach General District Judge Pamela E. Hutchens and Williamsburg General District Judge Colleen K. Killilea.
But legislators also had pointed questions for two male judges with low approval scores.
Sen. Bill Stanley, R-Moneta, spoke up for Jamison, saying he had handled two cases in her courtroom.
“In my opinion, she’s a good judge,” Stanley said, and then questioned the validity of the surveys.
“Politics is not only in here – politics is in the bar,” Stanley said, to applause from Jamison supporters.
Waymack seeks to remain on bench
Prince George County Juvenile and Domestic Relations Judge Jacqueline R. Waymack battled allegations of an earlier ethics complaint, rather than negative survey results, in her appearance at the Capitol.
Waymack was cleared of the ethics charges in a unanimous 2012 Supreme Court opinion, but legislators questioned whether her actions still presented the appearance of impropriety.
Waymack had initiated a text exchange with a court staffer to assist her family’s efforts in a nephew’s political campaign. She also appeared as an observer in a courtroom where her companion was involved in a custody case.
“The complaint should never have been filed,” Martingayle said on Waymack’s behalf. “She hasn’t done anything to be removed from the bench.” Martingayle emphasized that he was appearing as her advocate without additional compensation.
Both of Waymack’s actions were seen as close to the line by some legislators, and one noted that the judge had been on notice from an earlier complaint about the appearance of impropriety.
“But she’s on double secret probation, and she knows it. It wasn’t even secret,” said Del. Manoli Loupassi, R-Richmond.
Waymack disagreed that her actions presented the appearance of impropriety.
About 30 people appeared at the legislative meeting to show support for Waymack.
Other judges grilled
Still other judges were asked to explain why their survey approval scores were low. Killilea noted the general district surveys went only to attorneys.
“I am not the attorneys’ favorite judge,” she said. Killilea said she was serious on the bench, did not play favorites and was strict on the law.
“I also will reject plea agreements if I think they are inappropriate,” she said.
Other judges asked to explain bad reviews included Hutchens, Chesapeake General District Judge David L. Williams and Newport News General District Judge Alfred O. Masters Jr.
Albemarle County Circuit Judge Cheryl V. Higgins scored well on her surveys, but was questioned about her sentencing in child victim cases.
Higgins explained why she accepted plea bargains in certain cases with unusual circumstances.
A child advocacy group provided figures on circuit judges’ sentencing, but some legislators complained the raw data lacked context, including details of the cases and whether plea bargains were presented.
One judge not invited
Burrell – the judge whose name did not appear on the interview list — appeared to have lost the support of Norfolk legislators.
Under the procedure for judicial interviews at the General Assembly, judges are invited to appear before the courts committees for consideration of another term on the bench. Generally, a member of the local delegation initiates the invitation.
No Assembly member stepped up to invite Burrell to interview.
Burrell’s approval scores on her JPE surveys were third from last among 19 candidates in two key categories – respect shown toward court participants and overall performance.
Burrell became the first African-American female judge on the Norfolk circuit bench when she was elected in 2007. She had been a prosecutor for 13 years before becoming a judge.
Judicial independence
Watching the process, Martingayle spoke out as VSB president before he took on the role as advocate for Waymack. He cautioned legislators about the tenor of the questioning.
“I know you have an oversight role, but I would urge that you start with the notion that judges need to feel independent,” Martingayle said.
After the session, Sen. Mark Obenshain, R-Harrisonburg, defended the interview procedure.
“We have an obligation to balance independence with accountability,” he said. “When we are given data, I think we are duty bound to take it into consideration.”
“I think the review process is imperfect. There are ways we could make it better,” Obenshain said. He said he had not decided whether the process was biased against women.
Additional appellate candidates interviewed
In contrast to the sometimes testy confrontations with trial judges, a Senate panel exchanged pleasantries with 20 contenders for seats on Virginia’s two appellate courts earlier in the day. Chafing at a short list scheduled for November interviews, the senators determined to interview any and all comers at the Dec. 12 session.
Candidates interviewed included judges of the Court of Appeals hoping for elevation to the Supreme Court, a general district judge seeking a seat on the Court of Appeals, practicing lawyers and even one attorney currently not in practice.
Votes will come in 2015, leaders said.
