Openness, input urged in choosing judges

Virginia is one of only two states in which the legislature elects judges. Legislators say the system works well, despite the potential for political favoritism.

But there is a groundswell of discontent among Virginia residents who find the system mysterious and impenetrable. They have appealed to legislators, but they're now broadening their crusade for a wholesale evaluation of the judicial-selection process.

"I'm inflamed by what I've seen, over what's happened the last six months," said Bruce Bennett, a Fairfax County resident who traveled to Richmond to oppose a Fairfax County judge's re-election.

The residents -- who call themselves the "Pitchfork Rebellion" -- started as litigants who were displeased with the way a judge handled their case. But as they tried to work their complaints through the proper channels, they grew increasingly frustrated by what they perceive as a closed, often secretive system.

Recently, others have raised questions about the process -- people who have watched it closely for years, including the former delegate who is now the Republican nominee for governor.

University of Richmond law professor Carl Tobias wrote in the University of Richmond Law Review last December that the legislative infighting has become so severe that the General Assembly might consider another method of electing judges.

But state Sen. Thomas K. Norment Jr., R-James City, a trial lawyer and senior member of the Senate Courts of Justice Committee, questions what system would work better, when no one is advocating for popular election of judges.

"We not only have good judges, we have damned good judges," he said. "There have been very few instances of judicial impropriety."

To Norment and other assembly members, the periodic review of judges when they come up for re-election before the assembly holds them accountable. But the funding for the judicial performance evaluation program was dropped this year in the face of a budget deficit and a dispute between the Supreme Court and lawmakers.

Picking Virginia's judges

In electing or re-electing Virginia's judges, the legislature's House and Senate Courts of Justice committees, dominated by lawyers, interview candidates in public meetings and make recommendations to the full House and Senate. Sometimes the committees rely on recommendations of local bar associations. The full assembly of 40 senators and 100 delegates then votes on the prospective judges.

In assessing a prospective judge, committee members might ask a new candidate why he wants to be a judge and about his legal background. If a judge is up for re-election, committee members might ask about potentially controversial opinions and the results of his judicial evaluation forms.

Under the performance evaluation system, lawyers who appear before judges are asked to confidentially evaluate their patience, knowledge of the law, courtesy and their promptness in rendering decisions, among other things. The results are given to the assembly.

The evaluations are designed to help judges with self-improvement and to inform lawmakers who reappoint them. But the state Supreme Court in 2008 sent an order to lawmakers stipulating that only members of the assembly should view the evaluations.

Del. David B. Albo, R-Fairfax, chairman of the House Courts of Justice Committee, thought that put him in a tough spot because of his constitutional duty to share information with his constituents.

An agreement eventually was reached allowing lawmakers to ask questions based on the evaluations during public hearings with the candidates. But at the end of the meeting lawmakers turned over the documents to the administrator of the evaluation program.

The future of the program is in question.

Problems can arise when the courts committees certify more than one candidate for a judgeship. If legislators cannot agree on a candidate, the judgeship can go unfilled.

Then add philosophical differences between the parties. Democrats control the state Senate, and Republicans have the majority in the House of Delegates. That split has led to numerous fights over judgeships. Last year, Gov. Timothy M. Kaine had to fill 11 judgeships because the General Assembly couldn't agree.

This year, one judgeship in Portsmouth was left unfilled when legislators from the area couldn't come to a consensus. Republican legislators wanted the Portsmouth chairman of the Republican Party. Del. Johnny S. Joannou, a Democrat, wanted his law partner.

The assembly has elected judges since 1776, with the exception of 19 years between 1851 and 1870, when the people elected judges. Tobias says the state reinstated elections by the legislature because the assembly wanted to employ judgeships as political patronage.

Rodney Smolla, dean of the Washington and Lee University Law School, said he travels extensively and finds a general perception around the country that Virginia has a high-quality state judiciary.

"It has a reputation for judicial independence and judicial integrity," he said.

University of Virginia law professor A.E. Dick Howard, who helped rewrite the Virginia Constitution in 1971, said the constitutional convention considered changing the method of selection because, in theory, having legislators elect judges could cause problems. But the convention retained the system because there did not seem any evidence of abuses, he said.

Calls for reform

Fast forward about 30 years, and the Pitchfork Rebellion group last week fired off an open letter to all candidates running for statewide office, asking for a review of Virginia's judge-election process. They want greater transparency in examining a judge's record and in how the public can play a role in re-electing judges.

They are not advocating for any election model in particular, but would like a group of legal experts, residents and lawmakers to examine the system in a public forum.

"The judicial selection and retention process lacks formal guidelines and transparency, provides little meaningful opportunity for public input, and is susceptible to backroom dealings driven by personal and political agendas," the letter states. "This comes at the expense of selecting the most qualified candidates."

Republican gubernatorial nominee Bob McDonnell, a former attorney general, has already added this plank to his campaign platform.

He said the process of selecting judges is a mystery to most Virginians, who should be given access to and information about the process so they can voice their opinions. He noted that in some parts of the state, the local bar association or a panel of residents interviews people who are interested in serving as judges and then sends a list of recommendations to local legislators.

"These existing processes should serve as a guide for the rest of the state," he said, adding that he will encourage every district to follow that lead. "Selections must be made on merit and ability to perform and not political connections."

Of the Democratic gubernatorial hopefuls, state Sen. R. Creigh Deeds of Bath County favors a merit-based system. Former Del. Brian J. Moran of Alexandria wants more citizen participation in the process. The camp of former Democratic National Committee chairman Terry McAuliffe of McLean said the candidate would seriously consider any good option for increased citizen participation and transparency.

Tobias acknowledged that the legislature would be reluctant to give up its authority to elect judges. But he said a study might be in order, perhaps to consider something similar to the federal system, in which the governor would nominate judges and the assembly give its consent.

Last year, state Sen. Stephen H. Martin, R-Chesterfield, fought to block the re-election of Judge Timothy J. Hauler of the Chesterfield County Circuit Court and tried to assist constituents who wanted to do the same, including Chesterfield residents Robert and Robin Martinko.

The Martinkos disapprove of Hauler's courtroom style, not to mention a decision he made in a case regarding a fatal traffic crash in which their daughter was an injured passenger. They questioned some of Hauler's decisions and conduct, including keeping a novelty noisemaker in his courtroom.

After frustrating attempts to find information about Hauler's judicial record -- such as how many of his decisions were overturned on appeal -- and then feeling ignored by some legislators, the Martinkos said they have lost faith in the system.

"It left you with the opinion of, 'they've already made up their minds, they're just going through the process.' We didn't feel very welcomed. They weren't interested in what we had to say," said Robin Martinko, who added that they would never have known how to find documents or public hearing times without the help of Martin and judicial-reform advocates they discovered.

Martin, who has served in the assembly for 20 years, was dismayed by his constituents' difficulty in voicing their opinion in Hauler's re-election.

The current system, he said, is "now built for friendships and political pressures to weigh out over the honest and sincere judgment of the legislators that should be exercised.

"I have had confidence in the past but right now I don't hold that same confidence," he said.

Other legislators' views

Given that in Virginia politicians elect judges, they sometimes elect their former colleagues. Sometimes they elect law partners. Regardless, legislators say there have been few instances of corrupt judges, or even incompetent judges.

Sen. Henry L. Marsh III, D-Richmond, chairman of the Senate Courts of Justice Committee, said, "One of the things we have is quality people who go on the bench."

He attributes that, in part, to good salaries paid judges. Circuit court judges are paid $158,134 a year. District court judges receive $142,329 a year. Plus, when they retire, they are allowed 2½ years toward their pension benefits for each year they serve on the bench.

But even a defender such as Norment acknowledges that the selection process can become contentious.

"You have 140 personalities" in the assembly "each of whom may have a different persuasion," he said.

Del. William K. Barlow, D-Isle of Wight, a longtime member of the House Courts of Justice Committee, said the current system "doesn't work as well as it should. We've gotten to be very political, very partisan."

Though he, like every other lawmaker interviewed, is opposed to the popular election of judges, Barlow said the public needs to be more involved in the process. He suggested that legislators seek more input from residents in public hearings in each judicial circuit.

"This would make citizens less suspicious that deals are going on behind the scenes," he said.

Despite the current criticism, the assembly has opened up the process in recent years. It's opened the legislative hearings to the public and instituted the judicial evaluation system, Albo said.

He's been in contact with some of the Pitchfork members and agrees with a proposal by the group's members to post online which judges are under review. Meeting schedules can seem uncertain, but they sometimes are scheduled or changed on short notice because of the condensed session of a part-time legislature, Albo said.

While the judicial evaluation system has run into problems, Barlow said it will work better as judges become more comfortable with it and "realize it's a tool for self-improvement."

There were two judges last year whose evaluation showed they needed improvement in their demeanor, Albo said. One was criticized as inattentive, and it was discovered he was hard of hearing, he said. Another judge had demeanor problems and took corrective action, he said.

Complaints and sanctions

Someone who has a complaint about a judge can contact the Judicial Inquiry and Review Commission. The commission consists of three judges, two lawyers and two Virginians who are not lawyers. Like judges, commission members are elected by the General Assembly.

Drafters of the 1971 state constitution created JIRC to review reports of judicial misconduct. The constitutional amendment also made the investigations secret, so that frivolous charges against judges would not be aired.

Last year, according to a summary of the review commission's actions presented to the assembly, there were 500 written inquiries and 967 phone inquiries. Some complaints claimed rude behavior or bias. Others took issue with judges' decisions. Most of the allegations were found to be frivolous. After investigation, JIRC found 40 inquiries worthy of further investigation. Sixteen of these were dismissed. Three judges resigned, and one was suspended.

None of these judges was named in the summary.

Since the review commission's inception, only two judges have been removed from the bench by the official action of the Virginia Supreme Court. Judge Harold C. Maurice of Richmond General District Court was found in 1977 by the Supreme Court to have misappropriated confiscated items, including alcohol. He was stripped of his title and retirement benefits.

Judge James Michael Shull of Wise County Juvenile and Domestic Relations District Court was removed in 2007 after ordering a woman to pull down her pants during a custody hearing to show a wound on her thigh that she said her estranged husband had inflicted, and after deciding a child-visitation dispute by a coin toss.

Because formal complaints about both judges were filed with the Supreme Court in open court, the judges were named.

State law allows for a judge to be impeached in the House of Delegates and tried in the Senate, although this has never been done.

Howard acknowledged that the fact that JIRC found only two cases in 28 years might be evidence of a lack of enforcement. But he said that if a judge engaged in serious misconduct "you would have murmurings in the legal community."

This fall, a Virginia Beach Juvenile and Domestic Relations District Court judge, Ramona D. Taylor, faces possible censure by the state Supreme Court after being accused of ordering a juvenile held without bond and refusing him a chance to appeal.

More often than not, judges are allowed to quietly retire before an inquiry gets to the formal complaint stage.

In 2004, Judge Ralph B. Robertson of Richmond General District Court retired after he made racially charged postings on an Internet message board.

Judge M. Keith Blankenship of Wythe County Juvenile and Domestic Relations District Court was suspended with pay by JIRC last year after two separate traffic charges, including reckless driving. He then retired.

In 2003, Judge D. Gregory Baker of Scott County Juvenile and Domestic Relations District Court resigned after it was discovered that he had been convicted nine years earlier of soliciting for prostitution.

Despite occasional sanctions, advocates of judicial selection reform say the system needs more sunlight.

"I was concerned we were mishandled and had justice denied," said Bennett, the Fairfax County resident, "but then I realized this is a systemic problem."

Contact Tyler Whitley at (804) 649-6780 or .

Contact Olympia Meola at (804) 649-6812 or .

Staff writer Reed Williams contributed to this report.