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Special powers: Lawyer-legislators pick judges, can stop cases with privilege

Peter Vieth//May 29, 2021

Special powers: Lawyer-legislators pick judges, can stop cases with privilege

Peter Vieth//May 29, 2021//

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Virginia lawyers who serve in the General Assembly enjoy outsized powers and privileges in their interactions with the judges who rule on their cases.

But any regulation would be impractical, many of them say.

In Virginia, lawyer-legislators can have a major role in picking the judges who will decide their cases, since majority party caucuses traditionally defer to local members on judicial selection. Under the right circumstances, a single lawmaker can put a lawyer on the hometown bench or block re-appointment of a sitting judge.

Virginia is one of only two states – South Carolina is the other – where the state legislature elects judges.

Lawyer-legislators also wield the power to repeatedly delay litigation by invoking a legislative privilege statute. It’s a tactic deemed necessary by litigators who serve in the Assembly, but there are no limits on the use of such legislative continuances.

None of the ethics rules for Virginia lawyers expressly mentions the singular relationship between lawyer-legislators and judges they help select. Likewise, the canons of ethical conduct for judges are silent on standards for a judge when a political patron appears as counsel.

No Virginia court ruling, attorney general’s opinion, Virginia State Bar legal ethics opinion or other guidance attempts to define when the appearance of special influence requires either a judge or lawyer to step aside.

But several lawyer-legislators say they don’t see undue influence at play when lawyer-legislators go to court, and they insist the legislative continuance privilege is essential for legislators who litigate.

Mullin’s role challenged

A Hampton judge this month rejected an effort to force a lawyer-legislator out of his prosecutor’s role in a criminal case.

Del. Michael Mullin, D-Newport News, is an assistant commonwealth’s attorney in Hampton. Hampton Public Defender Matthew A. Johnson argued Mullin’s role as prosecutor before a judge elected by the General Assembly violated the separation of powers doctrine of the Virginia Constitution.

Mullin personally participated in the appointment of Hampton judges, Johnson argued in a brief.

“In every case that Del. Mullin prosecutes, the sitting judge’s impartiality must be questioned,” Johnson wrote. Mullin’s work as a prosecutor in front of judges with “a clear and compelling reason to show deference to him … would completely erode confidence in the courts’ independence.”

Johnson said he looked in vain for guidance from the law books.

“There’s really no law on this. There’s none,” he said.

Hampton Circuit Judge Bonnie L. Jones denied Johnson’s motion at a May 14 hearing, Johnson said.

While admitting he had no beef with Mullin’s actions, Johnson nonetheless said May 18 that, “The potential for abuse is very scary to me.”

Mullin declined to comment.

Recusal in Richmond

The perceived power of lawyer-legislators became an issue in another recent case.

In December, Richmond General District Judge David M. Hicks recused himself from a case involving state Sen. Joe Morrissey, D-Richmond, after The Washington Post described how Morrissey had praised Hicks in a legislative committee meeting. The committee meeting took place while Morrissey’s case involving alleged election misconduct was pending before Hicks.

The actual influence of lawyer-legislators is unclear. A 2016 review of court records by The Daily Press in Newport News showed legislators who regularly appeared in district court criminal cases did only marginally better than other lawyers.

Richmond criminal lawyer Steve Benjamin said there are real-world remedies for abuse of influence.

“Both the lawyers who appoint judges and the judges who seek reappointment know they are subject to scrutiny, and that even the appearance of bias or impropriety can mar or end a judicial or political career,” Benjamin said.

Continuance power

When timing gets tight in any court case, whether at the local or appellate level, Virginia Code § 30-5 gives parties represented by an Assembly member a right to postponement of any court action before, during and after a legislative session.

The statute has no limitations on the number of times it can be used, even when the Assembly never formally adjourns from its regular session.

A New Kent County divorce case was delayed at least 10 times since it was filed in 2017, according to WRIC-TV, with many of those continuances based on motions by state Sen. Tommy Norment, R-Williamsburg, invoking the legislative privilege statute.

Del. Jeff Campbell, R-Marion, used the legislative privilege to delay review of a domestic violence case for a year and a half, according to the Associated Press. His client, a former NASCAR driver, was accused by his ex-wife of using the delay tactic to drag out a divorce case.

The late Del. William P. Robinson Jr., D-Norfolk, reportedly abused the delay privilege to the point it contributed to his defeat for re-election in 2001, according to a Richmond Times-Dispatch account of his death in 2006. Suffolk Circuit Judge D. Arthur Kelsey – now a Supreme Court justice – sentenced Robinson to 10 days in jail with five days suspended for failure to appear at a client’s criminal trial in 2001.

Continuance right backed

Three legislators interviewed by  Virginia Lawyers Weekly all said the continuance privilege of § 30-5 is absolutely necessary given the demands on legislators’ time.

“I am sure that there are those … that use it as both a sword and a shield; however, I can tell you personally, I would be unable to serve in the Senate of Virginia without § 30-5 at times,” said State Sen. Richard H. Stuart, R-Montross.

“I am sure that there are those … that use [the legislative privilege] as both a sword and a shield; however, I can tell you personally, I would be unable to serve in the Senate of Virginia without § 30-5 at times.”

– Sen.Richard H. Stuart, R-Montross

Sen. Scott A. Surovell, D-Fairfax County, said individuals should not suffer prejudice to their cases just because they picked a lawyer who serves in the Assembly.

Benjamin, the Richmond attorney who has served as counsel to the Senate Judiciary Committee, agreed. It’s the “only workable solution,” he said.

Judicial selection

In addition, lawyer-legislators largely have a free hand when they decide who will sit in the courts of Virginia. Eyebrows were raised in 2019 when the late Sen. Ben Chafin, R-Lebanon, sat with the Senate Courts Committee as his sister, now Justice Teresa Chafin, interviewed for a Supreme Court vacancy. No one suggested any rules had been violated.

The year before, Chafin and Del. Terry Kilgore, R-Gate City, were tight-lipped as Dickenson County Circuit Judge Henry Vanover was quietly left off a list of judges up for reappointment. No legislator spoke publicly to explain why a judge with good reviews and a local bar endorsement was passed over for another term.

In 2019, three lawyer-legislators introduced their practice partners or associates in a committee meeting and urged their selection for the bench. All were elected.

In 2014, the legislative machinery was hobbled by objections to a J&DR judgeship for a senator’s daughter. In 2007, a Hampton delegate jammed up the judicial appointment process because his sister was a candidate for a J&DR seat.

“Local delegations do control the process. And they zealously and jealously guard their prerogatives,” said Prof. Carl Tobias of the University of Richmond, who studies judicial selection and regulation.

A different practice is used in Fairfax County, where judicial candidates undergo a rigorous round of evaluations before they are considered by the local delegation, largely removing any appearance of direct legislative patronage. Many other populous localities have selection processes that are respected by local legislators.

No ethics guidance

The Virginia State Bar has never weighed in on the ethical limits for lawyer-legislators.

VSB Ethics Counsel James M. McCauley said the bar’s Standing Committee on Legal Ethics has not officially considered the issue. He recalled that there once was an informal request for an opinion on the subject, but said he could not describe what happened to that initiative. VSB rules mandate secrecy for deliberations of the ethics committee.

Bar Counsel Renu Brennan – head of the VSB ethics prosecution office – said the issue of legislative influence has not arisen as a bar discipline issue in her tenure, which began in February 2019. Former Bar Counsel Michael L. Rigsby said he had no recollection of the issue being addressed by the ethics committee, discipline committee or any ad hoc committee.

Tobias said it would be difficult to craft clear guidance on when it looks like undue influence is at work.

“You want the judges both be independent and to appear independent. There’s no easy solution,” he said.

No conflict, lawmakers say

Explicit ethics guidance is not needed, according to several lawyer-legislators.

Stuart said he does not see a conflict in legislators reviewing someone’s qualifications for a judgeship and then appearing before that judge.

“I do believe the system works pretty well in Virginia. We are elected by the people and answerable to the people, and as such, we are tasked with selecting judges that we believe are competent and capable in sitting in judgment of others,” Stuart said.

Benjamin agreed.

“I have observed nothing that persuades me there is a need for legislation or additional ethical regulation just because lawyer-legislators participate in the selection of judges. Lawyers are already admonished by ethical principles to avoid conflicts of interest, and anyone can raise a challenge to judicial bias or an abuse of authority…,” Benjamin said.

Surovell also vouched for the status quo.

“Our existing system has produced fair results that can adjust over time and we have never had a judge removed from the bench for corruption as in other states that use alternate selection methods,” Surovell said.

He said he has seen judges recuse when a legislator or a legislator’s family member was a party, but “generally I have not seen judges recuse simply because an attorney appearing before them was a legislator.”

Surovell pointed to a 2015 study headed by former U.S. Rep. Rick Boucher which recommended evaluation procedures for would-be judges at all levels of the court system and in all communities.

The study cited the multi-step Fairfax County judicial screening process as a model. “Every local delegation should follow a similar process when possible,” Surovell said.

Five other lawyer-legislators did not respond to questions about the system as of press time.

“I can understand why General Assembly members do not want to talk about that. It’s awkward,” Tobias said.

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