If  you thought that the continuing back and forth between Governor Kaine and House Republicans is the only struggle going on between the branches of government in Virginia, think again. 

The growing and varied efforts by members of the General Assembly to temper the power of the Supreme Court and to assert its own authority may be the most important story sneaking under the radar in this year’s session. 

While it has received only minimal media coverage, many Assembly members and the Virginia Supreme Court have been tangling over a set of issues- the tenure of the Chief Justice, the evaluation of Virginia judges and the level of control by the Supremes over local Circuit Courts- that ultimately boil down to an argument over the relative powers of each institution.

I’ll begin with a shout out to Alan Cooper who has covered the issues for his blog on the trade publication, The Virginia Lawyers Weekly. Cooper analyzed the bills, attended the hearings, and his stories have a good ear for the telling quote. With the daily newspapers suffering budget and staff cutbacks that have limited the resources allocated to Assembly coverage, specialty publications perform an indispensable service.

The first bill was a proposal by Bill Janis to limit the tenure of the Chief Justice on the Supreme Court to two consecutive terms.  Cooper notes that Janis maintained that current state law invests too much power in the individual Chief Justice than in the Supreme Court as an institution.  In this respect, term limits is a standard political response to the long-term concentration of power. Ken Melvin didn’t like the bill at all and Cooper quotes him as assserting that the bill assume that the justices “don’t have enough sense to choose their own leader.”

The term limits bill was defeated in House Courts of  Justice 12-10, but the very closeness of the vote ensures that the legislation will return. Moreover, in a different political environment, a proposal to term limit the Chief Justice of the Supreme Court could garner considerable attention and be the subject of widespread discussion, especially at a time that we might be considering allowing the Governor’s to seek two consecutive terms. If I was a gubernatorial candidate prepping for the Virginia Bar Association debate this summer,  I’d get my answer ready for this question.

Janis proposed a second bill that would move the judicial performance evaluation program away from the Supreme Court and place it under the control of the General Assembly.

Some quick history on this.

When Republicans became competitive and actually gained a majority in the chambers of the General Assembly in the 1990’s, they made certain that they applied their  newly acquired  power to both judicial appointments and judicial reappointments.  A couple of the reappointments became especially contentious- critics of the new majority argued that they were making assessments of existing judges purely on ideological grounds while the GOP members insisted that they had legitimate concerns with how courtrooms were being run.

The creation of a judicial evaluation instrument that would be developed and administered under the direction of the Supreme Court was advanced as at least a partial solution to the problem.  The purpose of the instrument was to survey attorneys who practiced in a judge’s court and learn what they felt about how a judge performed on a range of appropriate criteria.  As I recall, a survey would be taken a few years prior to reappointment in which the results would only be distributed to the judge so it would be possible to make adjustments in courtroom operations prior to the time of reappointment. But the results of the survey taken immediately before the reappointment decision would be made available to the appropriate legislators.

(For purposes of truth in advertising, I should mention that the organization that won the initial bid and still holds the contract for the development and administration of the instrument, the VCU Survey Research Lab, reported directly to me at the time in my role as Director of the Center for Public Policy and I had strongly encouraged our folks to seek the engagement)

When the Supreme Court issued a directive this year limiting the distribution of the survey results in the Assembly, Janis sponsored a bill to move the reporting requirement of the Survey Lab to the Chairmen of the Committees for Courts of Justice in the House and the Senate, effectively removing the Supreme Court from the process and asserting the full power of the Assembly over judicial reappointment.  Cooper writes that House Majority Leader Morgan Griffith describes the matter as a “classic battle between two branches of government.”  Janis’ bill passed the House by a 49-48 vote on Tuesday.

Ken Stolle in the Senate and Chris Peace in the House opened up a third front in the battle when they proposed that circuit court clerks be permitted to use their own case and financial systems so long as they were willing to pay for the interface with the Supreme Court’s systems.  Cooper reports that when a spokesperson for the Court objected to the legislation on the grounds that it would result in expensive and duplicative systems, Stolle responded by criticizing the excessive centralization of the Court, saying “is this another example of the Supreme Court having to control everything? … I think it’s a dangerous path the Supreme Court is going down.” Stolle’s bill passed the Senate 28-11 and Peace’s the House by 67-32.

Manoli Loupassi proposed a final bill about retired judges who are requested to return to the bench on a temporary basis, adding language to the current requirement obligating the Chief Justice of the Supreme Court to appoint only those individuals who had been approved by the General Assembly. Loupassi’s bill, passed by House Courts of Justice on a 12-10 vote, but was rejected 54-43 by the full House.

While not all the efforts directed at the Court have or will succeed, one only has to read Ken Stolle’s comment to understand that this is an issue likely to be around for sessions to come.

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