By Tom Jackman
Washington Post Staff Writer
Monday, March 2, 2009
A group of more than 200 Virginia residents, calling themselves the "Pitchfork Rebellion" and frustrated with the way the state selects judges, wants the public to have more say in who sits on the bench and for how long. Virginia is one of only two states, along with South Carolina, that empower their state legislatures to pick state judges, a process primarily conducted behind closed doors.
The citizens group is advocating term limits for judges and an overhaul of the state's process of evaluating judges. It also wants public participation in judicial selection from start to finish, hearings that are open to the public and anonymity or immunity for those who testify against sitting judges.
The group has organized over opposition to the reappointment of several circuit court judges, including Fairfax County Judge Gaylord L. Finch Jr., who was recently up for another eight-year term before the Virginia General Assembly. Finch also served for 19 years as a juvenile court judge.
Parents who had appeared before Finch in child custody cases and litigants on the losing side of a Fairfax school district case felt that the judge hadn't followed the law or given serious consideration to their cases. Eventually, the dissatisfied parties found each other.
The group became particularly frustrated trying to find out when legislators would meet to discuss judgeships. On Friday night, in response to an e-mail from Elizabeth Haring of Leesburg, Sen. Henry L. Marsh III (D-Richmond) wrote that his "Senate Courts of Justice [committee] is not meeting regarding Judge Finch."
Then, on Saturday, the committee did meet, discuss and vote on Finch and refused to let Haring testify. Marsh has declined repeated requests to discuss the process. An agreement has been reached in which Finch will be reappointed to another eight-year term and then retire at the end of this year.
"This is a travesty of justice," said Haring. She questioned why Northern Virginia legislators, led by Del. David B. Albo (R-Fairfax), chairman of the House Courts of Justice Committee, "think the general public will be okay with cutting a deal and putting an unqualified, unfit judge on the bench for any length of time?"
Finch declined to comment.
The District and more than 30 states, including Maryland, use a process that does not involve the state legislature, called the "Missouri Plan." A nominating commission of lawyers and non-lawyers reviews candidates for new judgeships and submits a final panel to the state's governor or, in the case of the District, the president. After the chief executive selects a judge, the judge must then run for retention -- a yes or no from the voters -- at the end of each term.
Other states, including Texas, have public elections, complete with fundraising, advertising and politics. Most judges find that prospect highly distasteful.
In Virginia, local delegations for each judicial circuit select or reappoint their judges, but decisions about who will sit on the state appeals court and Supreme Court are decided by the entire General Assembly.
A Prince William County Circuit Court judge who had not applied for a vacancy on the state appeals court was recently added into the mix the night before the legislature interviewed candidates. The judge, Rossie D. Alston Jr., got the job as part of a trade in appointments between Democrats and Republicans. The move angered some lawyers, who said Alston was the fifth such candidate in recent years to bypass the evaluation process.
"This method of selection, conducted in secret, threatens to undermine public confidence in the judiciary and, in fact, the entire legal system," said Joseph A. Condo, a former Virginia Bar Association president. "It's also discouraging and demoralizing to candidates for judgeships."
The Pitchfork Rebellion, a term for a populist uprising, formed after disgruntled litigants in Fairfax, Chesterfield and Gloucester counties and the Hampton Roads area found one another on the Internet and shared their disdain for the judicial selection process. The group plans to incorporate as a nonprofit association and try to ensure citizen involvement in every stage of picking judges.
"Overall, our goal is to take back our courts," Haring said, "and achieve some measure of judicial accountability in Virginia and weed out bad jurists. No man should be above the law. However, we have a judiciary with absolute, unfettered power."
Haring, who lost rulings by Finch in a child custody matter, recently found other people who think Finch should go. Then she found pockets of people unhappy with other long-serving judges, and the movement gained steam.
"People across the state are hooking up where we have seen defective judging taking place," said Bruce Bennett of the Reston area. Bennett was part of a group in Fairfax that tried to challenge the school district's plan last summer to redraw some high school boundaries. After stacks of legal briefs were filed, followed by a lengthy hearing and then more briefs, Finch issued a short letter, with virtually no explanation, ruling in favor of the school district. Parents challenging the district were stunned -- and out more than $120,000 in legal fees.
When legislators asked Finch about the case at an interview in January, the judge told them that he'd been assigned the high-profile case only 10 minutes before taking the bench and that he was shocked to find a packed courtroom, according to a tape of the interview. "I had no preparation on it," the judge told legislators.
But during the court hearing, Finch told the attorneys at the outset: "I am familiar with the case. I went through the issues, as I saw them." And the court's own docket reflects that Finch had been assigned to the case at least three weeks before the hearing. Not counting the background explanation of the case, Finch's written ruling on the issue amounted to one paragraph. He told the legislators that he spent "several hours" on the case.
"We talk all the time in this delegation," state Sen. Ken Cuccinelli II (R-Fairfax) told the judge, "about how important it is for people to leave the courtroom having felt like, whether they won or lost, they were fully heard. And you don't get that when you don't have some explanation of why a decision is made."
The joint Courts of Justice committees held Finch back from the initial round of approval, along with Chesterfield Circuit Judge Timothy J. Hauler. As opposition grew to Finch, with other unhappy litigants contacting legislators, Finch submitted his retirement Feb. 2, effective at year's end.
But Hauler was later approved by the committees, despite concerns raised by some opponents, including the fact that he filed a libel suit against his circuit clerk when she opposed his last reappointment. In a Feb. 4 letter to the judge, Sen. Stephen H. Martin (R-Chesterfield) wrote that Hauler was reversed or remanded 44 percent of the time, compared with a 16 to 21 percent rate for the other circuit judges. The senator also said that he had received 46 letters from lawyers on Hauler's behalf but heard from more than 100 residents who opposed Hauler.
"I'm just very frustrated about what [the process] is now coming to be," Martin said in an interview, noting that some lawyers opposed the judge privately but praised him publicly.