RD85 - Annual Report of the Judicial Council of Virginia (2005)


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 publication of the court system's biennial comprehensive plan.

During 2005, 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 evolution and 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 2006 Session of the General Assembly and reviews various other activities of the Council throughout 2005.

LEGISLATIVE PROPOSALS FOR THE 2006 SESSION OF THE GENERAL ASSEMBLY

Request for a New Judgeship in the Third Judicial Circuit

During 2005, the Judicial Council considered a request from one Judicial Circuit for an additional judgeship. After a careful review of this circuit's caseload and judicial workload, as well as interviews with judges and members of the bar in the circuit, the Council recommends an additional judgeship in the Third Judicial Circuit, effective July 1, 2006. A detailed analysis of workload for this circuit can be found in Chapter 3 of this report.

Creation of a Courts Technology Fund

The Judicial Council recommends to the General Assembly new legislation, adding in Chapter 1 of Title 17.1 of the Code of Virginia a section numbered 17.1-132, and related amendments to §§ 16.1-69.48:2, 17.1-275, 17.1-328, 17.1-329, and 17.1-418, that would create a Courts Technology Fund to ensure that the judicial system has adequate resources for the maintenance and upgrading of its critical technology infrastructure.

Technology has become an essential instrument for the courts and magistrates. In the last 20 years - and most especially in the last decade - personal computers and automated information and transaction processing systems have improved the productivity of judges, clerks, and magistrates. Automation of the courts is a significant factor in the court's ability to manage basic operating functions, such as indexing, docketing, accounting, and notice generation. These systems improve service to the public; increase productivity, efficiency, and accuracy; reduce the need for additional staff and courthouse facilities; improve managerial control; and provide information and access to other state and local agencies.

Inadequate resources for maintaining and upgrading the courts' technology infrastructure now compromise existing operations and preclude any significant service improvements. Critical areas for improvements include:

• Application development, to significantly upgrade the existing judicial information systems, including the addition of information sharing and enhanced management reporting;
• Videoconferencing technology, to improve user access to the courts and reduce rising travel-related expenses;
• Replacement of personal computers and associated hardware on a cycle more consistent with current best business practices; and
• Telecommunications, to increase the bandwidth necessary to handle and expand services related to the millions of daily transactions within the courts and to minimize the likelihood and disruptive impact of network outages.

To accomplish these aims, the Judicial Council proposes the establishment of the Courts Technology Fund as a special non-reverting fund to be administered by the Supreme Court of Virginia. This fund will be used to advance, update, maintain, replace, repair, and support the telecommunications and technology systems of the judicial system of Virginia. The proposal would increase non-domestic civil processing costs in the District and Circuit Courts by $10 and the filing costs of the appellate courts by $25, generating estimated annual revenues of $8.8 million.

Social Security Numbers on Divorce Decrees

The Judicial Council recommends amendments to correct conflicts between the statutory requirements of Virginia Code § 20-91(B), that requires inclusion of social security or DMV numbers on divorce decrees, and § 20-121.03, that prohibits inclusion of such information, except by way of a separate addendum. The latter statute was passed by the General Assembly last year, and the failure to amend the former statute was probably the result of an oversight.

Statements of Economic Interests

In light of recent, heightened concerns about the security of judges, the Judicial Council recommends that the personal information on the statement of economic interests required of judges, particularly the judge's home address and the names of immediate family members, be protected from disclosure. The statement is required by § 2.2-3114 and the form of disclosure by § 2.2-3117. Currently, the disclosure form requires "Home address" and "Names of members of immediate family." These are the two data fields that have prompted the greatest concern. The proposed amendment to § 2.2-3117 would allow the Secretary of the Commonwealth to produce a modified version of the statutory form that would allow substitution of the judge's court address for the home address and omission of provision of information regarding immediate family. The language of the amendment will not absolve any justice or judge from the responsibility of providing financial information as required by the disclosure form or from the requirement to abide by the canons of judicial conduct.

Appointment of Counsel for Indigent Defendants

The judiciary is concerned that some jurisdictions have an insufficient pool of attorneys whom judges may appoint to represent indigent defendants. Chapters 884 and 921 of the 2004 Acts of the Assembly created the Indigent Defense Commission. The Commission establishes professional criteria for court-appointed lawyers and assumed the duties of the former Public Defender Commission. In order for a private attorney to be eligible for appointment to represent an indigent defendant, the attorney must meet certain criteria established by the Indigent Defense Commission. The establishment of the criteria and the qualification for the new court-appointed list were effective July 1, 2005, § 19.2-163.03. In some jurisdictions, relatively few of the defense attorneys have undertaken to be on the list maintained by the Commission, resulting in significant concerns with respect to meeting Constitutional obligations for the provision of counsel. Therefore, the Judicial Council recommends that the General Assembly amend § 19.2-159 to provide that courts have the authority to appoint otherwise-qualified defense counsel who are not on the list of the Commission when certified counsel are not "reasonably available."

Commission on Virginia Courts in the 21st Century

On October 6, 2005, the judiciary's second futures commission, Virginia Courts In The 21st Century: To Benefit All, To Exclude None, began its yearlong endeavors. At this inaugural meeting, the Chief Justice challenged the Commission to look at what the citizens of the Commonwealth will need from the judicial system in the year 2016 and beyond. He indicated that the Commission's subtitle "To Benefit All, To Exclude None" should be a guide to the members as they look at what the future may hold and ensure that they remember that the judicial system must continue to provide - and be perceived as providing - justice for all Virginians. The Chief Justice challenged the Commission to make recommendations that will safeguard our cherished judicial system and prepare it to address the opportunities and the challenges that we can foresee for the next ten to twenty years.

The Commission's five task forces will fashion their final recommendations to present to the Commission at its final scheduled meeting on October 6, 2006. The Commission will prepare its final report based on the recommendations it adopts at this meeting. The Commission will then present its final report to the Chief Justice in December of 2006 or January of 2007. Following review and adoption by the Judicial Council and Supreme Court, the recommendations will become the basis for future strategic planning within the Virginia courts. Additional information about the futures commission can be found in Chapter 4.

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 that would be required to implement this system of family courts were brought current. This preliminary work was completed and presented to the Council at its December 2004 meeting.

During 2005, the second phase of this study was undertaken. The Chief Justice appointed an advisory committee of judges, clerks, and domestic relations attorneys early in the year to accomplish this task and to make recommendations. This step involved a thorough review of the original proposal as well as consideration of new factors and ideas. The advisory committee submitted its report to the Chief Justice in October. After careful review, the Chief Justice decided not to move forward at this time with the implementation of a system of family courts in Virginia.

Judicial Performance Evaluation Program

During 2005, work began on the statewide implementation of a program for judicial performance evaluation. The program is intended to provide judges with "feedback" concerning their job performance to make them aware of areas in which they could improve the handling of their duties. In addition, the program will provide the General Assembly, which is responsible for electing judges, with objective criteria by which to evaluate judges' job performance when they are being considered for subsequent terms in office. Reports with the evaluation schedules for Virginia's circuit and district court judges were designed in 2005. In addition, work began on the development of requirements for the automation of attorney mailing lists for purposes of distributing evaluation surveys. In October 2005, the Judicial Performance Evaluation Program Director began work in the Office of the Executive Secretary to serve as primary staff to the permanent Judicial Performance Evaluation Commission.

The Commission is chaired by Justice Barbara Keenan and will convene in January 2006 to begin its work. The tasks before the Commission and Program Director in 2006 include the securing of the survey research firm to serve as evaluation contractor for an initial two-year period; working with Clerks of Court to develop procedures for the collection of attorney information; the development and delivery of training for all judges that will be evaluated, as well as for all retired judges that will serve either as observer or facilitator judges; and the actual commencement of the evaluation program for judges who are, based on their terms, scheduled for first-of-term, mid-term, or end-of-term evaluations. Additional information about the Judicial Performance Evaluation Program can be found in Chapter 5.

Drug Treatment Court Program

In adopting the Drug Treatment Court Act (§ 18.2-254.1), the 2004 General Assembly recognized that there is a critical need in the Commonwealth for effective treatment programs that reduce the incidence of drug use, drug addiction, family separation due to parental substance abuse, and drug-related crimes. Through the establishment of drug treatment courts, the General Assembly expressed its commitment to enhance public safety by facilitating the creation of drug treatment courts as a means to fulfill these needs. The Supreme Court of Virginia was authorized to provide administrative oversight for the implementation of the Drug Treatment Court Act.

The Supreme Court of Virginia is also responsible for implementing the state Drug Treatment Court Advisory Committee, chaired by the Chief Justice and comprised of members who represent organizations involved with drug treatment court programs. The purposes of the committee include recommending standards and planning, assisting with program evaluation, and encouraging interagency cooperation. The Act also directs the formation of local drug court advisory committees to establish local eligibility and participation criteria, as well as well as operational policies and procedures.

The Statewide Drug Treatment Court Advisory Committee held its initial meeting in January 2005. During the year, it adopted standards for adult and juvenile drug treatment court programs and an Application for Permission to Establish a Drug Treatment Court. Three Standing Committees, in addition to the Executive Committee, were established and approved. They are 1) the Operations Committee, formerly the Standards Committee; 2) the Planning and Development Committee; and 3) the Evaluation Committee. In 2006, the Advisory Committee will continue to establish standards for the planning and evaluation of drug treatment court programs and will oversee the enhancement of the current automated system for drug courts. In addition, automated support for family drug court programs will be implemented. The Advisory Committee will also carefully review all applications for the implementation of additional drug treatment court programs.

The Virginia Drug Treatment Court Act directs the Office of the Executive Secretary (OES) of the Supreme Court of Virginia, in consultation with the state drug treatment court Advisory Committee, to develop a statewide evaluation model and conduct ongoing evaluations of the effectiveness and efficiency of all local drug treatment courts. The Act further directs the OES to provide the General Assembly with a report of these evaluations each year. The report which reviews the findings of the evaluation research conducted during 2004 and 2005 was submitted to the General Assembly in December of 2005. A brief review of its findings can be found in Chapter Six of this report as part of a more detailed update on the status of drug treatment court programs in Virginia.

Revised Judicial Disqualification Policy

In 2005, Chief Justice Hassell presented a new Judicial Disqualification Policy to the Council that became effective immediately. The Chief Justice explained that the policy was discussed with the other Supreme Court Justices and that they had agreed to implement a formal policy that would preclude a sitting judge from being allowed to choose the judge who would hear a case in a situation in which there is a judicial conflict for the sitting judge. A suggestion was made to add language to the draft that addresses situations in which the Chief Judge is the judge being disqualified. It was also suggested that language be incorporated that allows the clerk to reassign a case when there is a last minute judicial conflict.

Report on Capital Case Judicial Institute

In early 2005, the Chief Justice indicated that, because capital cases are so unique and complicated, he believed the judiciary should spend time and effort to ensure that all judges are better prepared to deal with these types of cases. Consequently, the Capital Case Judicial Institute was established to conduct a one-week-long training program every year. The first program was held on June 20-24, 2005. To make the program as one-on-one and interactive as possible, only one judge from each circuit will attend in any given year. On this schedule, approximately one fourth of the judges in the state will attend the training program each year. The Education Committee of the Judicial Conference of Virginia worked diligently in early 2005 to develop the program. The annual training will be videotaped so that the Office of the Executive Secretary can make it available to other judges as a distance education program.

Report on Chief Justice's Initiative for Training Counsel Representing Indigent Defendants

The Chief Justice announced in 2005 that the Supreme Court of Virginia and the Virginia State Bar would jointly sponsor a seminar designed to improve the representation of indigent criminal defendants in the Commonwealth of Virginia. Two recurring concerns in such representation have been compensation and training. Public Defenders and court-appointed attorneys do not have access to the same comprehensive program of training as Commonwealth's Attorneys.

The seminar is designed to be an annual event, free to all lawyers. They receive six MCLE credits for attendance. The first seminar was held on May 20, 2005, at the Richmond Convention Center and was broadcast simultaneously in Abingdon. The program was also open to members of the Virginia judiciary and other members of the criminal bar in Virginia on a space available basis.

Judge Walter S. Felton, Jr., was this year's Program Chair. The first seminar was well-attended, with capacity crowds at both locations.

Policy Statements Regarding the Continuing Judicial Education of Retired Judges Subject to Recall and Substitute Judges

In 2004, the Judicial Council adopted policies for the continuing judicial education of retired judges who are subject to recall and substitute judges to help them remain informed on the current status of the law. The policies set forth minimum continuing education requirements and became effective January 1, 2005. In 2005, the Council clarified the requirements under the new policy to include that each substitute judge, at least once in every two year period, shall certify in writing that they have watched at least 12 hours of the judicial continuing education programs and that requests be made to the Virginia State Bar for MCLE credit for the programs offered.

Study of Mental Health Laws and The Involuntary Mental Commitment Process

Identifying and addressing mental health issues in the justice community have become significant concerns nationwide, including in Virginia. In response to these concerns, the Chief Justice has organized an initiative titled "Reforming The Involuntary Commitment Process: A Multidisciplinary Effort." This work began with a major conference in Richmond on December 9, 2005, to focus attention on issues related to mental health by obtaining input from sheriffs, judges, special justices, lawyers, and mental health practitioners about how best to reform the involuntary commitment process. The work of the conference will continue as the Chief Justice appoints a multidisciplinary task force that will meet during 2006 and 2007, charged with the task of developing substantive recommendations for improving the service of the courts to those with mental health-related issues. These recommendations will then be considered by the Judicial Council and will be incorporated in the judiciary's comprehensive planning process for implementation. The final report of the Task Force will, therefore, be the basis for initiating a renewed judicial and community mental health focus in the Commonwealth.

Committee to Prepare Rules of Court Defining Public Access to Court Records

In 2005, the Chief Justice appointed a committee, consisting of judges, lawyers, clerks of court, Commonwealth's Attorneys, law enforcement representatives, members of the business community and citizens, to prepare proposed rules of Court addressing public access to court records. The charge of the Committee is to formulate a rule, to be presented to the Supreme Court of Virginia, that preserves the right of the public to review and access court records while protecting the confidential and sensitive material often found in court documents. The Committee will balance the interests of the public and press to free access against the interests of individuals who interact with the courts.

The Committee, chaired by Judge Leslie M. Alden, held its first meeting on November 17, 2005. A sub-committee was appointed to draft the proposed rule, and the full committee is scheduled to meet again in early 2006.

Committee to Study Guardians Ad Litem

In mid-2005, the Chief Justice appointed the Advisory Committee to Study Guardians Ad Litem, comprised of members of the judiciary from the circuit court bench and juvenile and domestic relations district court bench as well as lawyers who serve as guardians ad litem for children and incapacitated adults. Staff from the Bar Counsel's Office of the Virginia State Bar has also joined the Committee to assist in its deliberations. The charge to the Committee is to consider what policy, if any, is needed beyond the current qualification and performance standards now in place for guardians ad litem for children and the qualification standards and statutory guidance provided for guardians ad litem for incapacitated adults. The Hon. Michael McWeeny, Chief Judge of the Fairfax Circuit Court, chairs the Committee. The Committee will continue its work in 2006 and make recommendations to the Chief Justice and the Judicial Council.

Simplifying Civil Procedure: Creating a Unified Civil Procedure

In 2004, the Judicial Council of Virginia recommended to the General Assembly minor amendments to several statutes that would allow both legal and equitable claims to be filed in a single lawsuit, to be known as a civil action. The General Assembly's passage of SB 1118 in 2005 mandated a single form of action for civil cases, effective January 1, 2006. This legislation made appropriate the promulgation of Rules of Court necessary to accommodate this change.

The Judicial Council published its final draft of the proposed new rules in Chapter 4 of its 2004 report. To avoid confusion at the time, these new rules were referred to as "Part Nine." The action recommended by the Judicial Council and adopted by the Supreme Court of Virginia in 2005, effective January 1, 2006, was to repeal the current Parts Two (Equity Practice and Procedure) and Three (Practice and Procedure in Actions at Law), reserving Part Two for future use and replacing Part Three with the new rules. The Office of the Executive Secretary of the Supreme Court worked throughout 2005 to implement the changes in the courts’ automated systems and processes necessary for the creation of a unified civil procedure. These changes were completed and went into effect on January 1, 2006.

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 2005 recipient of this award was the Honorable William H. Ledbetter, Jr., Judge of the Fifteenth Judicial Circuit. Judge Ledbetter retired in 2005 after 18 years on the Circuit Court bench, preceded by 13 years during which he was a substitute judge in the District Courts. Judge Ledbetter was honored for his demeanor, profound knowledge of the law, and exceptional fairness to all parties in each case heard by him. Additionally, in spite of his vast knowledge of the law, Judge Ledbetter, in the opinion of his peers, always demonstrated patience, courtesy, and humility as a trial judge-never being impatient or short with trial counsel or the public.