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Privacy or secrecy? Legislators want more info on judges they select

Peter Vieth//January 31, 2022

Privacy or secrecy? Legislators want more info on judges they select

Peter Vieth//January 31, 2022

Some of the legislators who elect and re-elect the judges of Virginia’s trial and appellate courts say they wish they had more access to information locked away in government file cabinets.

One state senator wishes legislators could see more reports on judges’ performance surveys filled out by lawyers and others. Another state senator says the legislature should study how to improve transparency at the state Judicial Inquiry and Review Commission. And a former delegate is suing to pry open records at the commission.

The judicial secrecy complaints emerged as the 2022 General Assembly convened in Richmond with two slots to fill on the Supreme Court of Virginia, 50 trial court judges up for re-election and expected openings on trial benches.

Judicial Performance Evaluations

Early in the session, representatives of the Supreme Court pushed back against a suggestion that more judicial performance survey reports be disclosed to legislators.

Judges are evaluated three times during their terms of office. The first two sets of surveys are used privately to mentor the judges on their courtroom skills, according to court officials. The third report goes to the General Assembly as judges come up for possible new terms.

One judge going through the re-election process suggested last month that the second evaluation be shared with the General Assembly. That practice, he said, would allow a legislator who sponsored the judge to speak confidentially to the judge about improving bench behavior.

“There is nothing like hearing you may soon be unemployed to get your attention,” wrote Lancaster County General District Judge John S. Martin in a Dec. 17 letter to Sen. Joe Morrissey, D-Richmond. Morrissey told colleagues he thought legislators ought to see all evaluations and not just the one developed right before voting time.

Court officials disagreed, saying judges should be able to make needed course corrections “without fear of public disparagement.”

In a session with the Senate Judiciary Committee, Supreme Court Justice Cleo E. Powell urged legislators to give the evaluation program a chance to work with troubled judges before they have to face the politicians who put them on the bench.

Judges can be isolated, lacking any indication what lawyers, citizens and jurors think of their performance until they get a critical mid-term review, Powell said.

“For some of them, I suspect it really sets them back on their heels,” Powell told the legislators. Not disclosing the evaluations gives them an opportunity to turn things around, she said.

“It gives the judges another tool to get it right before they have to come before you,” Powell said.

Powell and other court officials took the same message to the House Courts Committee Jan. 14. Influential legislators signaled they had high confidence in the Judicial Performance Evaluations they receive about sitting judges.

Judicial Inquiry and Review Commission

But legislators selecting Virginia’s judges also have complained they don’t get much information from the state commission that investigates judicial misconduct. One lame duck legislator took his complaints to court.

Former Del. Mark Levine, D-Fairfax County, was replaced Jan. 12 as a slate of newly elected delegates and senators took office, but he still hopes the Supreme Court of Virginia will use his lawsuit to force open the files of the state Judicial Inquiry and Review Commission.

On Jan. 4, Levine formally asked the court to order JIRC officials to provide him with information he requested about two Fairfax County general district judges. He cited Va. Code § 17.1-918(B), which requires the commission to provide any evidence “with reference to the alleged misconduct of any judge” who is up for Assembly consideration.

Levine specifically had asked for such evidence about Judges H. Michael Cantrell and Mitchell I. Mutnick. “I wanted to do my due diligence,” he said in an interview. Both Cantrell and Mutnick faced pointed questions from legislators Dec. 10 based on Judicial Performance Evaluation reports.

But the commission’s top lawyer, former Fairfax County Commonwealth’s Attorney Ray Morrogh, refused to open his files to Levine.

“Your specific request exceeds the scope of that statutory provision, as it has been consistently construed and accepted by the General Assembly of Virginia,” Morrogh wrote in a Nov. 23 letter to Levine, attached as an exhibit to Levine’s petition for mandamus.

“I just don’t think the JIRC has discretion to tell us they won’t give it to us,” Levine said in an interview.

In response to a Virginia Lawyers Weekly inquiry, Morrogh declined to comment about Levine’s petition, but he explained the commission reports “any founded claims of alleged misconduct as required by the statute.”

“The Commission does not report to the committees claims of misconduct determined to be unfounded. Doing so would run afoul of both the mandate in 17.1-918 to report ‘evidence supporting the probable cause finding therefor’ and statutory requirements ensuring the confidentiality of Commission papers and proceedings,” Morrogh said in a Jan. 2 email.

In the response Morrogh filed with the Supreme Court, he argued Levine’s proposition would undercut important confidentiality protections.

“Judges targeted by false or meritless accusations of misconduct might find themselves shadowed by those complaints when the Commission’s files were exposed to the General Assembly and to the public in the short days surrounding the judge’s re-appointment consideration,” Morrogh said in his response.

Levine is represented by Thomas K. Plofchan Jr. of Potomac Falls. Morrogh and Assistant JIRC Counsel Benjamin Katz are represented by Cullen D. Seltzer and L. Lee Byrd of Richmond.

Morrogh and Katz also contend that Levine’s mandamus action should be dismissed because Levine lost standing when he was replaced as a delegate and the action became moot.

“I’ve always been surprised about how little information we have from JIRC. People would have more confidence if the things they do had a little more sunshine on them.”

– Sen. Scott Surovell, D-Fairfax County

Cantrell did not wait for the Assembly to deliberate on his reappointment. He announced he would retire before the courts committees could vote on certification of incumbent judges’ qualifications. The Fairfax County Assembly delegation determined to endorse lawyer Todd M. Zinicola, a former assistant public defender, for the general district seat, according to Sen. Scott Surovell, D-Fairfax County.

Levine’s legal action echoes frequent complaints from legislators frustrated by the limited information disclosed by the JIRC.

“I’ve always been surprised about how little information we have from JIRC,” Surovell said. “People would have more confidence if the things they do had a little more sunshine on them.”

Study proposed

Another legislator took a different tack with her concern about the workings of the commission. Sen. Jennifer Boysko, D-Herndon, introduced Senate Joint Resolution 27, which calls for a study of the JIRC by the Joint Legislative Audit and Review Commission.

According to the bill, Boysko is concerned about the lack of any timeframe for the commission to address complaints about judges. Compared to the number of complaints reported, reports of commission action are “few and far between, leading to the public perception of inefficiency, potential bias, and a lack of judicial accountability and oversight,” the bill states.

Boysko proposes that JLARC provide recommendations to increase transparency, eliminate actual or perceived bias, boost efficiency and set timeframes for resolving complaints.

Boysko’s proposal has been referred to the House Rules Committee.

In its annual report submitted Nov. 30, the commission said it received 395 complaints in the prior year, with only six demonstrating a breach of the Canons of Judicial Conduct. Of those six, five were dismissed and only one not dismissed.

The report does not disclose any names or details about the single case not dismissed.

The commission is made up of seven members: a circuit judge, a general district judge, a juvenile and domestic relations judge, two lawyers and two nonlawyer citizens.

Hanover County Juvenile and Domestic Relations Judge Shannon O. Hoehl is the current chair. Staunton lawyer Humes J. Franklin III is vice-chair.  Other members are Gloucester General District Judge Stephanie E. Merritt, Portsmouth Circuit Judge Kenneth R. Melvin, Terrie N. Thompson of Chesapeake, Vienna lawyer Kyung N. Dickerson and Rev. Cozy E. Bailey of Dumfries.

Last year’s Democrat-controlled Assembly removed Loudoun County Circuit Judge James Plowman from the JIRC. “The will of this caucus is to put somebody else on,” Surovell said at the time, without further explanation.

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