Author: Ron Cooper

Ever wonder how somebody becomes a judge? As the powers-that-be gear up to find a replacement for retiring 16th Judicial Circuit Judge Edward L. Hogshire, we’ve got a chance to watch the process play out from start to finish. For those seeking a seat on a local bench, that process starts here in the community and ends in the chambers of the General Assembly.

The two constants to remember for aspiring judges, besides the basic requirement of being licensed to practice law by their state bar association, are to make lots of contacts in the legal world (especially influential ones) and don’t piss off too many of your fellow legal practitioners (especially influential ones). A third equally important trait: Have a reputation for being good at what you do before you decide to seek the gavel.

Even if you’re only mildly interested in politics, you’re probably familiar with the U.S. Supreme Court nomination process. That’s where the President’s nominee sits poker-faced in front of a clamorous Senate committee for a few days fielding questions and swearing he or she is not a judicial activist. The nominee is exceedingly careful to conceal any hint of a personality. Upon confirmation, the Supreme Court Justice is then free to assume recognizable human characteristics, including emotions and partisan ideologies.

For local judicial candidates, including those vying for Judge Hogshire’s seat, things play out on a smaller scale. Virginia circuit court judges are elected by a majority vote of both chambers of the General Assembly for eight-year terms. Like in any job application, those seeking to become judges need recommendations. This is where the Charlottesville Albemarle Bar Association (CABA) steps in.

Qualified judicial candidates can seek a nod from CABA’s Judicial Endorsement Committee. The four most recent past CABA presidents, as well as six at-large CABA members and any retired judge interested in participating, form the committee.

“An endorsement from the committee essentially gives the legislature more information on the candidate to help make a more informed decision,” said Committee Chair Page Williams.

To get a CABA endorsement, an individual must first submit a statement of interest to the committee. After that, the interested party fills out a questionnaire. CABA actively recruits public input in the endorsement process by holding an interview forum open to both CABA and community members. The forum is like a large, group interview where anybody can show up and watch. Imagine an interview you had in the past. Now imagine that same interview being conducted by 15 interviewers in front of your peers, colleagues, and anyone else who happens to meander in off the street. Sounds fun, right?

Much like their U.S. Supreme Court candidate counterparts, Commonwealth judicial hopefuls typically must endure some public scrutiny if they desire a judgeship. They don’t have to worry about constant C-SPAN coverage, however.

The committee accepts questions from the public and other CABA members to be considered for the interview forum. Each candidate is asked the same set of questions. The committee’s end goal is to determine which individual or individuals are “highly qualified” to assume the judgeship, according to CABA’s bylaws. In the end, all of CABA’s members will vote to select which names to send to the General Assembly. These may or may not include the individuals deemed to be highly qualified by the committee.

The public forum for the vacant 16th Judicial Circuit seat was held December 9 at the Charlottesville Circuit Court. The committee determined three of the six candidates to be highly qualified. David B. Franzen, Judge Richard E. Moore, and Joseph W. Wright, III now only have to receive the vote of the CABA’s members in order to receive the prized endorsement.

However, like any employment recommendation, there’s no guarantee that it will sway the person on the receiving end to hire you. The same goes for CABA’s endorsement.

“It’s the legislature that ultimately selects judges, not the committee,” said Williams about the committee’s recommendation to the General Assembly. “The last judge elected [in the area] by the legislature did not receive an endorsement.”

The General Assembly will select the individual to fill Judge Hogshire’s vacant seat sometime in January, 2014. The chosen individual’s term will start on February 1, 2014.

High-profile acts of violence tend to bring with them a spike in public awareness of mental illness, but the stigma associated with being mentally ill never subsides. The system still seems to favor locking people up rather than treating them.

My wife and I lived five minutes away from the Safeway in Tucson, Arizona, where Jared Loughner killed six people in 2011. We shopped there. Like many, I believe Loughner is a monster.

But the kinds of acts that garner 24/7 news coverage—from the Tucson killings to Gus Deeds’ attack on his father, State Senator Creigh Deeds, and subsequent suicide in Bath County last month—are also tragic examples of the failings of the mental health system in the U.S.

While our public mental health systems are chronically undersupported, our prisons aren’t. The U.S. has “enjoyed” an imprisonment boom during the past three decades, with ever-increasing incarceration rates. Virginia, like every other state, has directed more and more resources to prisons and jails due to the steady inmate population growth. The Commonwealth spent $1.1 billion on corrections in 2010, which breaks down to $11,858 per offender—over $2,000 above the national average.

One segment of society that has been disproportionately affected by the dramatic growth of America’s prison population are those suffering from mental illness. The largest mental health facilities in the United States are not hospitals or residential treatment centers—they’re jails.

“The criminal justice system’s role is not treatment, it’s for punishment and locking people away,” said local attorney Abigail Turner. “Inmates [with mental illness] need the same type of treatment people on the street receive but there’s not adequate funding to do this.”

Currently, Virginia has around 30,000 inmates in state prisons, served by 14 psychiatrists. Many of these inmates take medication for psychiatric conditions, yet many more suffer from mental illness without receiving any type of treatment.

“We have 400 inmates right now and about 17 to 19 percent of those are taking medication for mental illness,” said Juanita Morris, the director of health services at the Albemarle-Charlottesville Regional Jail. “There are more mentally ill inmates but they don’t take medication.”

Even inmates who receive medication may be poorly diagnosed and may not get the type of individualized treatment necessary for mental illness.

“Prisons and jails should not operate as first line treatment facilities,” said local public defender Jim Hingeley. “They get trapped doing this because of lack of resources for mental health treatment, but they’re not equipped and they don’t want to be doing this type of work.”

Hingeley stressed that it’s low-level offenders with mental illness that come into contact with the criminal justice system a lot more often than violent and dangerous offenders. Due to a lack of alternatives, the only viable option has been to lock these individuals up. This response shows that the criminal justice system doesn’t have a good way to address the needs of mentally ill low-level offenders.

The resulting costs could potentially be tolerated if it could be proven that incarceration prevented recidivism and effectively treated the offender dealing with mental illness. But no proof has been offered as of yet, and the evidence that has been offered proves quite the opposite.

However, some recent developments at the state and community levels may be cause for optimism.

The Virginia Supreme Court appointed the Commission on Mental Health Law Reform in 2006, which was tasked with finding ways to use the law more effectively to serve the needs and protect the rights of people with mental illness. One specific goal was to avoid criminalizing people with mental illness.

The community rallied around the idea of developing a local Crisis Intervention Team (CIT) that same year, which specially trains police officers on how to deal with confrontations involving mentally ill individuals. One crucial benefit of the CIT program is that trained officers can take a mentally ill subject directly to a hospital for treatment rather than the jail in appropriate situations.

Hingeley said the intersection of the mentally ill with the criminal justice system and the corresponding costs is really a subset of the greater debate over mental health resources in Virginia.

“The answer to this involves more things like the CIT program,” he said. There are good ideas out there, “but we need more resources to put [them] into effect.”

Court Squared is a regular column on local legal and justice issues by Charlottesville attorney Ron Cooper.

If you’ve ever sat in on a trial, on top of the multitude of emotions you’re experiencing depending on why you’re there, you’ll instantly recognize that real world litigation looks nothing like an episode of Law & Order. Like in most everything else, real trial proceedings are a lot less sexy than those portrayed on TV—unless we’re talking about the bizarre Cop Rock, because there’s nothing sexy about courtroom musicals.

Likewise, the drama of an actual criminal case may not even be the trial itself. Before most trials, the opposing parties exchange information and evidence in a pretrial procedure known as “discovery.” The discovery process is the essential ingredient in every attorney’s trial preparation recipe. Because it can have such a significant impact on the outcome of the ensuing trial, attorneys are rightfully invested in the discovery process.

But depending on who you ask, Virginia’s discovery rules are either fair and reasonable or biased and inadequate.

“Unlike in Federal Court where there are constitutional protections available, Virginia defense lawyers get essentially nothing during the discovery phase,” said local criminal defense attorney Dean L’hospital. “The accused don’t even have the right to view the police reports associated with their cases.”

Currently, criminal defendants and their attorneys are entitled to statements or confessions made by the defendant and certain forensic reports and medical analyses. Federal law mandates the defense also receive any evidence that tends to show the defendant is not guilty.

Discovery rules vary across the U.S.

“States are all over the map on this issue,” said local public defender Jim Hingeley. “As far as I’m aware, Virginia is at the most restrictive end of the [criminal] discovery spectrum along with a few other states,” said local public defender Jim Hingeley

Earlier this year, the Indigent Defense Task Force (IDTF), sent a proposal to the Virginia Supreme Court recommending that the Court broaden discovery in criminal matters to allow defendants access to relevant police reports and recordings and information that negatively affects the credibility of the Commonwealth’s witnesses, among other things.

The Virginia Association of Commonwealth’s Attorneys (VACA) spoke out strongly against the IDTF’s proposed amendments.

“The idea of police reports, recordings, and witness statements being copied and circulated through the community and even uploaded to the Internet is repugnant to Virginia’s prosecutors and anyone else with an interest in the safety and privacy of victims and witnesses,” reads VACA’s letter.

But the Virginia Association of Criminal Defense Lawyers (VACDL) disagrees.

“[A] person accused of a crime would have a better opportunity to defend himself if he knew the substance of the allegation and the results of the investigation of the allegation by law enforcement,” reads the VACDL’s letter in favor of the amendments. The Commonwealth could opt to withhold information in certain cases with a protective order, VACDL said.

The Virginia Victim Assistance Network said that even with safeguards, the proposed changes could negatively affect victim and witness safety, and discourage their participation in investigations and trials.

“A protective order is absolutely insufficient to guard against dissemination of [police reports, recordings, and witness statements] by a recalcitrant criminal offender who is facing far more consequences for their underlying criminal behavior that the punishment associated with a contempt charge which might flow from violating a protective order,” reads VACA’s letter echoing the Victim Assistance Network’s concerns.

Some Commonwealth’s Attorney’s offices in Virginia—including Charlottesville’s and Albemarle’s—opt to work more collaboratively, adopting what’s known as an “open file policy.”

Charlottesville Commonwealth’s Attorney Dave Chapman said choosing to share more information with the defense helps avoid mistrust and antagonism between opposing attorneys. “We have an expansive open file policy because it’s the right thing to do,” he said.

But the philosophy isn’t consistent across Virginia, and Hingeley said that’s a big problem. Codifying a more uniform approach to open file policies would go a long way toward providing adequate discovery in Virginia, he said.

Albemarle Commonwealth’s Attorney Denise Lunsford, who worked as a defense attorney for 18 years, said she’s not opposed to changing discovery rules—as long as they don’t tip the balance too far in favor of defendants. She’s concerned about the fact that the changes would require the prosecutors to turn over a broader spectrum of investigative materials, principally police reports and recordings of witness statements, without placing a corresponding duty on the defense to provide similar information regarding defense witnesses.

“There needs to be more reciprocity in terms of what the defense should provide to the prosecution,” said Lunsford.

Chapman agreed. “The proposed modifications are intended to maximize advantage rather than merely ensure fairness,” he said.

The Virginia Supreme Court recently decided to appoint a committee to perform its own study on criminal discovery. It’s not clear how long the study will take, but a spokesman said the Court was committed to bringing all stakeholders to the table.

L’hospital thinks change is overdue.

“As long as the prosecutor has ultimate control over when and what information to disseminate, defense attorneys will be subjugated and beholden to prosecutors, rather than being equals on a fair playing field,” he said.

Imagine your boss approaches you one day, takes you aside, thanks you for your many years of dedicated service to the company, and then offers you a chance to retire early with increased retirement pay. Doesn’t sound too bad, does it? Now imagine that you accept the offer, taking early retirement in reliance on the specific amount of the offer, only to learn a few months later that your stipend amount was incorrectly calculated, resulting in an overpayment of benefits.

Worse yet, your former company decides to immediately correct your stipend amount resulting in a reduction of your monthly payments. Uh-oh. You confront your boss, but to no avail. While he sympathizes with your position and apologizes for the error, he says the company’s board of directors determines retirement benefits and the amounts can’t be increased by a calculating error. Now what?

A few years ago, 13 former Albemarle County employees found themselves in that exact situation. Each employee decided to retire in 2009, after the county offered them an incentive to do so. That incentive, provided by the Voluntary Early Retirement Incentive Program (VERIP), was in addition to their retirement benefits under the Virginia Retirement System. Unfortunately, a clerk in the county’s human resources department made a mistake in calculating the amount of the offer given to the employees and, upon discovering the error, the county reduced the employee’s agreed upon retirement compensation under VERIP.

After the Board of Supervisors disallowed payment on the promised retirement benefits in 2010, the retirees appealed to the circuit court of Albemarle County where a jury ultimately found that the county breached its contracts with the employees and awarded them their full promised benefits. The retirees’ success proved to be short-lived, however, as the Supreme Court of Virginia reversed the jury award and entered final judgment in favor of the county earlier this year due to a procedural error in the retirees’ original appeal. While a major setback, the Supreme Court’s decision was not the end of the story for the former county staff.

The former employees’ attorney, Edward Lowry, has brought a new complaint against the county and Board that argues for rescission of the retirement contracts because of a mutual mistake of fact—the amount of the stipend—and a declaration that the contracts are void. The fight isn’t over yet, and the remedy the plaintiffs are seeking is reinstatement to their prior positions at their previous salaries.

Jim Guynn, the attorney representing the county, maintains that the retirees’ new complaint is identical in all material respects to their original appeal and complaint. Accordingly, the State Supreme Court’s dismissal of the retirees’ original claim invalidates the viability of the new complaint, even though the dismissal was based on the retirees’ procedural error rather than on the merits of their claim.

“The county takes the position that the Supreme Court’s decision extinguished any claims the employees had,” Guynn said.

Illegal procedure 

Whether the retirees will be successful with this new complaint is for the court to decide. Regardless of the outcome, there is an important takeaway from this case: If you plan on suing a Virginia county, be sure you follow the correct statutory procedure. To perfect their appeal to the Board, the retirees were required by law to execute a bond to the county and file a separate written notice of appeal on the clerk of the Board. They did not file the notice of appeal.

Virginia counties, being governmental districts of the Commonwealth, enjoy sovereign immunity against many types of lawsuits, which means a doctrine prevents the government or its political subdivisions from being sued without its consent. There are certain exceptions from immunity involving other civil disputes that allow citizens to sue counties but strict rules apply.

One such exception allows citizens to appeal the disallowance of their claims against a county by the governing body of that county, like the Board of Supervisors. However, the claimant must fulfill the bond and written notice of appeal requirements mentioned above. The retirees’ failure to file the notice was ultimately the reason the county prevailed at the Supreme Court.

The only question that remains is whether the Supreme Court’s dismissal of the retirees’ original appeal bars their current claims. Whatever the outcome, the retirees have made it clear from the start of this case that they intend to keep fighting for their promised benefits.

“[W]e remain disappointed in the county’s unwillingness to honor its commitments to its employees who relied on the county’s offer of a supplemental retirement payment when they chose to retire at the time they did,” said Lowry.

The county court is expected to issue a ruling on their appeal soon.

LAW STAR

Lori H. Schweller,
Partner at LeClairRyan

What type of law do you practice? 

Primarily real estate law–both transactional and land use/zoning.

What is one case you’ve worked on that is particularly meaningful to you?

It’s always meaningful to me to help someone accomplish something or solve a problem. It’s particularly satisfying to come up with a creative solution to a difficult problem and then make it work. I’ve enjoyed working with several Virginia localities to help them amend zoning ordinance provisions relating to wireless communications towers because the work requires balancing my industry client’s needs and pertinent law with the concerns of local officials and citizens. It’s also very rewarding to complete a complex deal with lots of moving parts just because of the sheer volume of work and the energy it requires to pull everything together to meet a deadline.

What advice would you give newly graduated law students?

Law practice can vary greatly from firm to firm, public sector and in-house, so explore to find the type of work you like to do, the type of client you like to serve, and people with whom you enjoy working. Keep in mind that landing a job can be a matter of timing – so make your availability known so you’re called when needed.

What is one thing you like about practicing law in the Charlottesville/Albemarle community?

The real estate attorneys in our community are collegial and conscientious. We’re always learning from one another to improve our practices.