VCC Magazine Fall-Winter 20-21

V irginia C apitol C onnections , F all 2020/W inter 2021 5 V About 20 years ago, a friend found herself engaged in a dispute with a contractor she hired to do some work on her home. A solution could not be found and the two sides headed to court. The contractor’s attorneywas a prominent member of the Virginia General Assembly, and my friend confided before the hearing that she was sure it would be harder to win as a result. In the end, she and her husband lost—a decision that I suspect she still believes was at least somewhat affected by the complicated relationship between the Virginia General Assembly and the commonwealth’s courts. The perception that Virginia’s lawmakers fare better in court than other attorneys is deeply held among good governance advocates—a result of the appearance of conflict of interest that results from the intersection of Virginia’s use of legislative appointment for judges and of the General Assembly’s short legislative sessions that allowmembers to continue in their regular careers, including as attorneys. Notably, Virginia is one of only two states that uses legislative selection of judges to staff its courts. Article VI, Section 7 of Virginia’s Constitution describes the process: The justices of the Supreme Court shall be chosen by the vote of a majority of the members elected to each house of the General Assembly for terms of twelve years. The judges of all other courts of record shall be chosen by the vote of a majority of the members elected to each house of the General Assembly for terms of eight years. During any vacancy which may exist while the General Assembly is not in session, the Governor may appoint a successor to serve until thirty days after the commencement of the next session of the General Assembly. Upon election by the General Assembly, a new justice or judge shall begin service of a full term. Virginia’s method for appointing judges represents the purest form of legislative selection, in that initial nominations for vacancies are made by state legislators (with the exception of those that might occur when the General Assembly is not in session), who then also vote whether to seat the nominee. South Carolina, the only other state that uses legislative selection, relies on a Judicial Merit Selection Commission to suggest names to its state legislature. Once seated, Virginia’s judges sit on courts that review hundreds of thousands of case filings per year; many of the litigants in these cases are represented by members of the Virginia Bar, including sitting members of the General Assembly. Currently, 22 members of the House of Delegates list their occupation as attorney; in the state Senate, that number is 14. Not all of these General Assembly members are presently practicing, but among those who are, many explicitly refer to their position as a state legislator on their firms’ websites. For example, Senate Minority Leader Tommy Norment’s law firm profile notes that: “Tommy’s extensive legal background, combined with serving as Virginia Senator for the 3rd Senatorial District since 1992, brings … clients a unique perspective in their representation.” 1 Delegate Jerrauld (Jay) Jones’ firm profile features two videos of the delegate speaking on the floor of the House. 2 Given the confluence of these conditions — short legislative sessions that allow lawyer legislators to continue their practices, legislative appointment of the Commonwealth’s judges, and a lack of prohibition on advertising one’s service in the legislature—it is not a surprise that the relationship between the legislative and judicial branches in Virginia reduces the perception of an independent state judiciary. Indeed, a 2009 study published in the Duke Law Journal found that in states where judges must be reappointed by the legislature, judges were statistically-significantly more likely to vote in favor of government litigants of all types. 3 The Brennan Center for Justice has also pointed to the same constellation of factors to suggest that courts may be more likely to decide cases in favor of those who are represented by legislators in bothVirginia and South Carolina. 4 Appearances Can Be Deceiving But, while conditions certainly seem ripe for Virginia’s lawyer legislators to prevail in court, neither academic nor media investigations have foundmuch evidence that hiring a legislator yields a better outcome in court. In 2005, I and my colleague Margaret Williams, then at James Madison University, set out to test whether Virginia’s lawyer legislators won more frequently in front of the Supreme Court of Virginia. We looked at 226Virginia Supreme Court cases decided between 1995 and 2004, and found no evidence that Virginia’s legislators fared any better than other attorneys during that time frame. We concluded: “Members of the state legislature, who should enjoy reputational and professional advantages over other types of attorneys, are no more or less likely to be successful at the Supreme Court than any other litigant.” A 2016 report in the Newport News Daily Press reached a similar conclusion following a review of nearly half a million Virginia district court cases from 2015, finding that state legislators won 39 percent of their cases, compared with 37 percent for non-legislator attorneys. 5 Of course, it’s hard to compare individual cases. And win-loss rates aren’t the only possible measure of success in court. Perceptions matter. As the National Center for State Courts notes: “Because the judicial branch relies heavily on public support to perform its role in our system of government, public trust and confidence is a precious commodity for the courts.” Although we didn’t find that state legislators were more successful advocates, Williams and I did note back in 2005 that “the presence of a state legislator as counsel in a particular case sends a powerful message that a member of the state’s political elite believe the case worthy of consideration and decision in a particular direction.” At a time when perceptions of legal institutions are in decline, and calls for criminal justice reform are growing, perhaps it is time for Virginia to take a look at whether the specific circumstances of our judicial selection process best allow for the public trust and confidence so essential to the administration of justice. Lauren C. Bell is a professor at Randolph-Macon College. Reconsidering Legislative Appointment of Judges By Lauren C. Bell 1 See: https://www.kaufcan.com/attorneys/thomas-k-norment-jr/. Last accessed November 8, 2020. 2 See: https://bischoffmartingayle.com/our-firm/jerrauld-c-c-jay- jones/. Last accessed November 8, 2020. 3 See: https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer= &httpsredir=1&article=1409&context=dlj. Last accessed November 8, 2020. 4 See: https://www.brennancenter.org/our-work/research-reports/ legislative-appointments-judges-lessons-south-carolina-virginia- and-rhode. Last accessed November 8, 2020. 5 See: https://www.dailypress.com/news/crime/dp-nws-legislator- lawyers-20160410-story.html. Last accessed November 8, 2020. B ERNIE H ENDERSON President Emeritus Funeral Celebrant Phone: (804) 840-8586 Bernard.L.Henderson@gmail.com