Virginia Lawyers Weekly VA Lawyers Weekly
With a dozen legislators of both parties on board, a request to add a seventh judge to the circuit bench in fast-growing Prince William County seems likely to prevail at the 2022 General Assembly.
The request, which is supported by the county’s entire legislative delegation, originated with the court itself, where Chief Judge Kimberly A. Irving described an “unmanageable” backlog of cases not reflected in the formula normally used to allocate Virginia trial court judgeships.
The 12 legislators are asking Gov. Ralph Northam to add about $300,000 to his budget proposal for the next two years to fund an extra judge for the Prince William court. The governor’s budget is set to be released Dec. 16.
The Virginia Supreme Court’s Judicial Council endorsed the proposal Oct. 19, based on a package of documents from the Prince William legal community. The requestors described how a workload assessment used by the Supreme Court to recommend the number of judges for local courts may not reflect the reality of demands on court systems.
Docket backlogs
With more than 482,000 residents, Prince William is the second most populous locality in Virginia and one of the two fastest growing counties, according to census data. The cities of Manassas and Manassas Park add more than 58,000 residents to that number.
Prince William is also the most diverse county in the state: More than a third of residents have a primary language other than English.
The circuit court has had a backlog since at least 2015, according to a memo prepared by Irving.
“Today, while our closure rates are 63 percent for criminal cases, our dockets are growing faster than we can address the backlog,” the chief judge wrote. Cases are more complicated and many require interpreters, she added.
Irving said the dockets have become “unmanageable” for six judges. “Our judicial resources are stretched thin,” she wrote.
Prospects for relief outside of more judicial help are scant, said Public Defender Tracey Lenox. “The Court is at a serious breaking point today, but the pressure will inevitably build in the months to come,” Lenox wrote in a letter urging a new judgeship. “It is untenable, it results in patent unfairness to the users of our Circuit Court system, and the residents of Prince William County deserve better.”
The court is now scheduling civil jury trials for 2023, Irving said in a Dec. 6 interview.
“Prince William cannot credibly claim to provide access to justice when parties are asked to wait upwards of 10 months for a hearing,” wrote Donna Dougherty, president of the Prince William County Bar Association.
Public defender sets new tone
Criminal cases have dramatically added to the court’s docket in recent years, practitioners said. They point to a change in the commonwealth’s attorney’s office and the creation of a Public Defender Office for Prince William.
“The new Public Defender Office has really transformed the way criminal practice is conducted in the county,” said Sen. Scott A. Surovell, D-Fairfax County. He’s a sponsor of Senate Bill 6, which would increase the number of Prince William circuit judges from six to seven.
Lenox said her office began insisting on jury trials in nearly every case when it opened in 2020.
“When the public defender’s office does that, it sort of raises the bar for all criminal practitioners,” Lenox said Dec. 6. The “ripple effect” meant private attorneys and court-appointed lawyers also took more cases to trial, she said.
Jury trials require motions, and the criminal dockets grew. Judges are now spending up to eight hours on the bench hearing cases. A seventh judge would greatly improve access to justice for indigent criminal defendants, Lenox said.
New prosecutor
The practices of the prosecutor’s office have changed, as well. For more than 50 years, Commonwealth’s Attorney Paul Ebert earned a reputation as a bulldog, sending 15 people to Virginia’s death row. He retired in 2019 and new Commonwealth’s Attorney Amy Ashworth brings a different outlook on prosecution.
“We have stopped overcharging,” Ashworth said.
Before, a defendant might be charged with 25 felonies and all 25 would be sent up to circuit court, only to have 20 of them dropped in a plea agreement.
Now, “we’re only going to send the five up,” Ashworth explained. Her practice of limiting the number of charges, or dispensing with extra charges at the district court level, means the felony numbers appear to have dropped when state officials calculate the workload.
That means the assessment used to allocate judges penalizes the county for that gap in felony charges, Irving said in her memo to the Judicial Council.
“We have a prosecutor who will not overburden the defense or the system with charges she does not intend to pursue; under the Workload Assessment, there is a direct line of causation between this independent constitutional officer’s policy and understaffing the Circuit Court,” Irving wrote.
Family law
An increasing number of divorce cases are also swelling the docket numbers, Irving said. As of October, the circuit court had 2,910 pending family law cases – 1,036 of which were filed in 2021 alone – according a letter of support signed by co-chairs of the PWCBA Family Law Committee.
Hearings take longer with interpreters, as well.
“It can double the time it takes to try a case to have an interpreter,” Ashworth said.
The “unique challenges” faced by the court are largely a result of its fast growth, legislators told Northam in their Nov. 17 letter.
“A sixth judge was added in 2015 when the court served 500,000 people. Today, the court serves over 540,000 people and the population is the most diverse of any jurisdiction in the Commonwealth,” the letter said.
Other courts have pleaded in Richmond for extra judgeships. Fairfax County General District Court judges traveled repeatedly to the Capitol before their request for a 12th judge was approved in 2020.
Prince William leaders hope for success on the first try.
“I’m optimistic. I hope that they strike while the iron is hot this budget session,” Lenox said.
