Virginia Lawyers Weekly VA Lawyers Weekly
NORFOLK – Virginia circuit judges have been put on notice that state legislators are willing to try to regulate the judiciary if they believe judges are falling short in their duties.
In a State of the Judiciary address to state circuit and appellate judges, Chief Justice Donald W. Lemons pointed to legislative oversight proposals that sputtered, but which could be revived.
Bills targeting judges, even if unsuccessful, were “a clear message that is meant to be sent to the judiciary,” Lemons cautioned at the Judicial Conference of Virginia May 16.
Sentencing explanations lacking
In the view of lawmakers, some judges were not sufficiently explaining why their criminal sentences were higher than average.
One 2017 bill would have addressed criminal sentences when judges fail to provide written explanations for sentences in excess of the state sentencing guidelines. House Bill 1655 provided for appellate review of a trial court’s failure to file the required written explanation. The bill died at the recommendation of the House Criminal Law Subcommittee.
Nevertheless, the bill signaled real concern, Lemons said. Del. David B. Albo – chair of the House Courts Committee – expressly requested that judges be educated about the problem, Lemons said.
“I think it’s highly likely, in reconfirmation hearings for your seat as a judge, if you’re not completing these forms to the satisfaction of the legislature, you will have to answer in front of the House and Senate courts committees,” Lemons said.
Substitute judge appointments
Another legislative effort this year reflected concern that inexperienced lawyers were being named to serve as substitute judges in the district courts. House Bill 1523 also died at the hands of a House Courts subcommittee, but would have turned the power to appoint substitute judges over to chief judges of the district courts, rather than those of circuit courts.
“This is not a new issue,” Lemons said. “Circuit court judges have been asked in the past to consult with district court and juvenile and domestic relations court judges when they make these appointments, and the General Assembly is concerned that that’s not being done,” he continued.
“Frankly, there are some substitute judges that are appointed that have not had much of a practice in either the general district court or the juvenile and domestic relations court,” Lemons said.
There has to be consultation with the district level judges on sub-judge appointments, Lemons cautioned.
“Don’t be surprised if the bill comes back, and the chief circuit judges are stripped of that responsibility,” Lemons said.
Retired judges
The Assembly also threatened largely to remove the chief justice’s power to authorize retired judges to serve as substitutes, and instead have the courts committees decide who is able to serve.
Lemons said the unsuccessful proposal – Senate Bill 928 – arose from “a few incidents” brought to legislators’ attention.
“We simply have to be aware that we’re being watched by the General Assembly,” Lemons told the gathering of judges.
Afterwards, Lemons alluded to sporadic problems associated with aging substitute judges, including reports of long delays in getting rulings. Lemons urged legislators to contact him when constituents voice concerns about a recall substitute judge.
“Every time that is done, it becomes the highest priority on my desk,” Lemons said.
“Sometimes, with gentle nudging, somebody who ought not be sitting any longer reaches that conclusion and does so gracefully,” Lemons said, adding, “We all get old.”
The right to withdraw
Lemons reminded circuit judges that lawyers soon will have the right to withdraw from criminal representation without leave of court after the preliminary hearing stage based on a client’s failure to abide by a fee agreement.
Virginia Code § 19.2-190.2 becomes effective July 1. The bill creating that new statute called for a Judicial Council study of whether to include similar provisions for unpaid lawyers in civil cases.
“This summer we are going to have a study group deal with it, and we are required to report back to the chairmen of House and Senate Courts on Nov. 1,” Lemons said.
Special dockets
Lemons urged judges to maintain uniform standards amid growing numbers of drug courts and other special purpose dockets in Virginia courts. Alarming statistics on opioid deaths support the creation of more court-supervised addiction treatment programs, he said.
“It is a way of dealing with a crisis in our community, and it is working,” Lemons said.
A task force is preparing a list of best practices for special court dockets, Lemons said.
Guardianships under review
Lemons said a new group has been formed to look at gaps in the state’s system of guardianships and conservatorships that protect the elderly and infirm from financial abuse.
The group had an initial meeting in November, Lemons told the judges.
“We are trying to catch it on the upswing and deal with it in a way that doesn’t catch us in a crisis,” Lemons said after his public remarks.
Collections reform
Lemons noted the Assembly codified nearly all aspects of the court’s new rule to reform collection of court fines and fees.
“It will result in fewer defaults and license suspensions and a much more efficient and equitable collections system,” Lemons said.
No action on pro bono reporting
Lemons said in an interview that the court is not currently considering any proposal for mandatory pro bono reporting by Virginia lawyers.
Advocates for efforts to close the access-to-justice gap last year urged a system where lawyers would be asked each year how much they contributed to pro bono legal help. The idea was rejected 29-25 by the Virginia State Bar Council in October.
Lemons acknowledged that the court’s imposition of pro bono reporting would be seen as a repudiation of those lawyers who voted against the idea.
“It’s not on any of our business dockets at the moment,” Lemons said.
