RD84 - Annual Report of the Judicial Council of Virginia (2004)


Executive Summary:
INTRODUCTION

The Judicial Council of Virginia was established by statute in 1930 and is charged with the responsibility of making a continuous study of the organization, rules and methods of procedure and practice of the judicial system of the Commonwealth of Virginia. It is responsible for examining the work accomplished and results produced by the judicial system and its individual offices and courts. Central to meeting these responsibilities is the preparation and publication of the court system's biennial comprehensive plan.

During 2004, the judiciary continued to make progress under the strategic plan for 2004-2006, "Bringing the Future to Justice: Charting the Course in the New Dominion." Some of the actions required by the strategic plan are the direct responsibility of the Judicial Council or the Office of the Executive Secretary, while others directly involve local courts. The Judicial Council presents in this report a status report on the Plan’s implementation in order to inform members of the General Assembly, judges and court personnel, the Bar, media, and the public about the judiciary's efforts to better serve the citizens of Virginia.

This report also sets forth the legislative recommendations of the Judicial Council for the 2005 Session of the General Assembly and reviews various other activities of the Council throughout 2004.

LEGISLATIVE PROPOSALS FOR THE 2005 SESSION OF THE GENERAL ASSEMBLY

Request for a New Judgeship in the Twenty-eighth Judicial Circuit

During 2004, the Judicial Council considered requests from two Judicial Circuits for an additional judgeship. After a careful review of these circuits' caseloads and judicial workloads, as well as interviews with judges and members of the bar in the circuits, the Council recommends an additional judgeship in the Twenty-eighth Judicial Circuit, effective July 1, 2005. A detailed analysis of workload for this circuit can be found in Chapter 3 of this report.

Simplifying Civil Practice: Creating a Unified Civil Procedure

The Judicial Council of Virginia recommends to the General Assembly minor amendments to several statutes that will allow both legal and equitable claims to be filed in a single lawsuit, to be known as a civil action. This recommendation is the result of seven years of work on the part of the Judicial Council and others throughout the Commonwealth, including the Bar.

The present system for filing of claims at the circuit court level requires a litigant either to file the entire case as an equity proceeding, thereby being forced to give up the jury trial right that would apply to the case “on the law side,” or to file two lawsuits to litigate aspects of the same case, trying the damage case to a jury and in a separate proceeding asking the court to award equitable relief. The recommended statutory changes, accompanied by appropriate changes in the Rules of Court, would help to alleviate the burdens of these multiple filings on the trial courts and the unnecessary clogging of the courts with multiple actions that can create “pleading traps.” In addition, these recommended changes would eliminate exposure to multiple claims arising from the same events which many feel are anti-business and do not constitute good service to individual parties in the Commonwealth.

A more thorough discussion of this matter can be found in Chapter 4 along with proposed changes to the Rules of Court. Proposed statutory amendments can be found under the Proposed Legislation section of this report.

Use of Commissioners in Chancery

During 2004, the Judicial Council of Virginia undertook a detailed examination of issues related to the use of Commissioners in Chancery, their effect on litigants, and the advisability of limiting and/or abolishing their use in domestic relations cases.

After consultation and input from judges, lawyers, and Commissioners in Chancery, the Judicial Council recommends amendments to § 8.01-607, § 25.1-241, § 56-522, and § 58.1-3969 to limit the use of Commissioners as follows: (1) the use of Commissioners in Chancery would not be permitted in uncontested divorce cases; and (2) in all the other cases, Commissioners in Chancery would be permitted only by agreement of the parties with the concurrence of the court; or (3) upon motion of a party or the court on its own motion with a finding of good cause shown in each individual case. Necessary changes to Rule 2:18 of the Rules of Court, Use of and Proceedings Before a Commissioner in Chancery, have been recommended by the Judicial Council to the Supreme Court of Virginia. Additional information on this proposal can be found in Chapter 5.

Exercise of Appointive Powers of Circuit Judges

The Judicial Council recommends an amendment to § 17.1-501 which would allow an order of appointment within a circuit to be signed by the chief judge or that judge’s designee on behalf of the other judges.

Family Court Study

The 2004 General Assembly asked the Judicial Council to evaluate and make recommendations on the funding, resources, and statutory changes required to implement a system of family courts in Virginia pursuant to the provisions contained in Chapters 929 and 930 of the Acts of Assembly of 1993. The first phase of this study, undertaken during 2004, involved the updating of the original 1993 legislative enactments taking into account the numerous changes to the Code of Virginia during the intervening years. In addition, all reports identifying the number of judges, clerks’ office personnel, and funding which would be required to implement this system of family courts were brought current. This preliminary work was completed and presented to Council for its review at its December meeting.

During 2005, the second phase of this study will be completed. This step will involve a thorough review of the original proposal by a broad group of judges, clerks, and domestic relations attorneys. The Chief Justice will appoint a task force early in the year to accomplish this task and to make recommendations to the Judicial Council. The Council will then prepare and submit its final report to the General Assembly by December 1, 2005.

Continuing Education Policy for Retired Judges

During 2004, the Judicial Council reviewed the continuing education policies for retired judges who are subject to recall pursuant to the provisions of § 17.1-106 and § 16.1-69.35, and for substitute judges who are appointed pursuant to § 16.1-69.9. In order to assure that judges recalled to the bench remain informed on the current status of the law, the Council adopted policies to require retired recalled judges to attend the annual mandatory or voluntary Judicial Conference; those who elect to attend the voluntary conference are also required to certify completion of a distance learning program or other conference program dealing with recent legislation and recent state and federal law updates. Under the newly adopted policy, substitute judges must attend one four-hour regional continuing education program annually sponsored by the Office of the Executive Secretary (OES). In addition, substitute judges must certify completion of an annual learning program distributed by OES on topics designated by the Education Committee of the Judicial Conference of Virginia for District Courts.

Fee Guidelines for Fiduciaries

The Judicial Council in 2004 considered proposed Guidelines for Fiduciary Compensation from the Standing Committee on Commissioners of Accounts. The proposed guidelines were the result of a two-year effort involving substantial input from practitioners and banks. The Council approved these Guidelines which will be circulated to circuit court judges for implementation in 2005. The Guidelines can be found in Chapter 7.

The Honorable Harry L. Carrico Outstanding Career Service Award

In honor of the retired Chief Justice of Virginia, the Honorable Harry L. Carrico, the Judicial Council of Virginia, in 2004, created an Outstanding Career Service Award. This award will be presented annually to one who, over an extended career, has demonstrated exceptional leadership in the administration of the courts while exhibiting the traits of integrity, courtesy, impartiality, wisdom, and humility.

The first recipient of this award was the Honorable Charles B. Flanagan, II, Judge of the Twenty-eighth Judicial Circuit. Judge Flanagan retired in early 2004 after over two decades of service on the bench. Judge Flanagan was honored for his unfailing commitment to the administration of justice, his contributions to bench-bar relations, and his advocacy for the use of mediation. In addition, Judge Flanagan’s contributions to citizens of his community, the local bar, and other government agencies earned for him the greatest respect of those who practiced or appeared before him.