Your Bar Tax & Funding Judges

As lawyers in Virginia, we are regulated by a monopolistic state agency and have to pay a special tax every year for the privilege of continuing to be an attorney in good standing. That's the reality of our situation. However, we don't like to think of our situation in those terms so we cloak it by thinking and speaking of it as paying dues to our professional organization. Nevertheless, there are times when the reality is brought home forcefully to us.

When money became tight, one of the money saving measures which the General Assembly and the Governor applied was to put a two year embargo on the replacement of judges when a sitting judge left his position. Supposedly, this saves the Commonwealth $250,000 a year per non-sitting judge. Per Article VI sections 7 & 8, it is questionable under the Virginia constitution whether the General Assembly is allowed to do this; language in both sections states that judges "shall" be chosen by the General Assembly without any language allowing the General Assembly to duck this requirement. However, a constitutional challenge is unlikely because the General Assembly clearly has the ability to create or eliminate judicial positions and, if forced to act within its constitutional mandate, could start permanently cutting judicial slots. That this didn't happen initially is probably because it would be politically difficult. After all, the places most likely to have more judges than they need are going to be the places with political pull. Technically, this is what the General Assembly should have done, but it ducked the difficult decision by merely halting appointments.

Of course, anyone with a little clarity of thought can picture the results. Judges retire and judges quit. It happens all the time and usually it doesn't mean much except that the local Bar gets together and endorses a particular candidate and thereafter the General Assembly picks someone else entirely to sit as the new judge. Now, there are judges hitting the mandatory retirement age of 70 and others are quitting. Dockets are getting heavier. Judges are being made to run from courthouse to courthouse. The system is getting stressed. By report, about 30 judicial slots are currently empty. The worst case seems to be the 11th Circuit Juvenile and Domestic Relations court where "only one juvenile and domestic relations judge hears the cases in Petersburg and the counties of Amelia, Dinwiddie, Nottoway and Powhatan, with a combined population of 1.6 million." Of course, the problem in the 11th Circuit isn't only the size of the population, it's the distance between the five courthouses and the fact that Petersburg itself could probably operate a J&DR court five days a week all by its lonesome. It's probable that many rural areas are getting the squeeze as they had minimal judges to begin with and the absence of a single judge has much more impact on a circuit with three judges in three counties than the absence of one judge has on a city which has six judges in the same courthouse.

The president of the Virginia State Bar placed the Bar in the middle of this argument, attempting to show the difficulties that the lack of judges has caused. The reaction to this was for the governor to propose $1.7 million from the budget for longstanding priority judgeships and simply take $5 million from the Virginia State Bar's money. According to Delegate David Albo, chairman of the House Courts of Justice Committee, the snatching of half the Bar's annual budget is being done to punish the Bar for lobbying the General Assembly on behalf of the Judiciary.

Okay, fine, I had no delusions that the Bar, "an agency of the Supreme Court of Virginia" was an independent, non-governmental, self-governing, professional organization. It's less a guild than a governmental administrative agency setting out regulations and enforcing them. I've known as long as I've been a lawyer that the "dues" I sent in each year went to the government. And, the Bar does seem to have more money than it actually needs at times - enough to attempt wasting it on social engineering which the Bar should not be involved in. All I can really ask is that the money be spent wisely.

There's talk of funding "longstanding priority judicial vacancies." Of course, everyone will think that their jurisdiction badly needs the judge(s) of whom their circuit is short. If the General Assembly isn't going to fund all the judges, I'd ask for a few tests as to whether a judicial vacancy should be listed as a priority.

1. More than 25% of the judicial slots of a particular type (Circuit, GDC, JDR) are empty if the jurisdiction sits in 3 or more counties/cities.

2. More than 40% of the judicial slots of a particular type (Circuit, GDC, JDR) are empty if the jurisdiction sits in 2 or fewer counties/cities.

3. After passing through the first two tests, the circuits will be ranked in order of which has the largest number of pending cases per currently sitting judge in the type of judicial slot which is open.

4. Without exception, the slots with the highest ranked need are to be filled first.

Why do it this way? Well, to begin with the first two tests are to take into account the fact that judges in multiple jurisdictions spend a lot of time traveling from courthouse to courthouse - often drives that take an hour or more. If forced to travel between courthouses in a day a lot of time is eaten up by this travel. On the other hand, judges in single jurisdictions, or even dual jurisdictions, go to the same courthouse every day and sit there all day long thus giving them the ability to handle more cases.

Part three is just common sense. If each JDR judge in the 57th Circuit has 2,900 pending cases and each Circuit judge in the 96th Circuit has 2,400 pending cases the JDR slot in the 57th needs to be filled first.

Part four is necessary. If exceptions are allowed they will become the norm. It is doubtful that Big City needs judges more the Rural Circuit, but it's a surety that Big City will have more political pull. And any competent politician should be able to come up with a plausible reason why his area needs the judge more. The moment you allow a single deviation from this plan it fails and you have only the places with political pull getting judges.

Finally, I want to say that, unlike the newspaper editorials, I want to endorse the retention of mandatory retirement for judges at 70. I don't have a political reason for this; I have a practical one. We've all seen far too many judges late in their careers who are not doing a good job. Some are hampered by illness. Some are out of touch. Some haven't picked up a law book in 10 years. Some just don't give a dang. There are undoubtedly judges at 70 years who are razor sharp and completely up on each and every legal development. Unfortunately, I think the preponderance leans the other way. There's no shame in that; if I survive to 70 years I doubt my legal acumen will be as sharp as it has been. Yes, 70 is an arbitrary number plucked from the sky, but any number chosen would be and, unless we start retiring people when they fail some sort of aptitude test, you have to choose some number where believe you are doing more good than harm when you force people to retire. I think that 70 does this.