Judge? Lawyer? Depends On Case

A small cadre of Southwest Virginia attorneys know the courtroom from both sides of the bench.

Most of the time, they argue cases. Sometimes, they decide them.

The dual legal hats are worn by 16 area attorneys, who as substitute judges wield, when sitting on the bench, the same powers as a full-time judge elected by the state legislature.

Substitute judges also are governed by the same financial interest disclosure laws. But they comply to a much lesser degree than full-time judges, a Bristol Herald Courier review of their 2009 disclosure statements shows.

Of the 16 substitute judges in the 28th, 29th and 30th Judicial Circuits, 12 filed a form that was either obsolete, after the deadline or incomplete. These shortcomings go undetected for the most part because the Secretary of the Commonwealth, whose office houses the disclosure statements of judicial officers, does not review them for compliance.

The SOC does follow up with officials who fail to file on time, but the office has no independent authority to compel a judge to file. When the Herald Courier requested the disclosure statements of all judges and substitutes in the region nearly four months after the January filing deadline, seven – including five substitutes – had not filed.

The SOC has no policy on when or how often to solicit disclosures from judges who are delinquent in filing them. Two local substitute judges who filed late this year did not file at all in 2008, according to SOC records.

Substitute judges are a singular feature of the Virginia judicial system – the equivalent of third-string jurists who are called in only when a sitting judge has a conflict and a retired judge is unavailable. They might serve as often as twice a week for an extended period, or as infrequently as twice a year.

Most attorney-judges contacted for this story described their judicial moonlighting as both a privilege and a community service; it pays $200 a day or $100 for half a day – a fee they can command for an hour’s work in private practice.

One aging, disaffected substitute judge described the office as a young attorney’s work – a way to gain experience for someone aspiring to full-time judicial office.

“I’m 67 years old and it just isn’t worth my time,” said George Maddux, a Gate City, Va.-based attorney who did not file a 2009 disclosure and said he would resign when contacted by a reporter.

“I’d like to give a younger lawyer in Scott County a chance to do that,” Maddux said. “You lose money any time you go. There’s no future in it for me.”

The dual roles of an attorney-judge also raise a question about potential conflicts of interest that are not addressed on financial disclosure statements: when substitute judges rule in courts where they regularly argue cases.

The noncompliant few

Officially, the Secretary of the Commonwealth does not acknowledge that substitute judges – or any subset of officers – comply with disclosure requirements to a greater or lesser degree. But a former SOC employee who until recently handled the collection and filing of disclosure forms drew a distinction regarding part-time officials, while fielding the Herald Courier’s request for statements.

“For substitute judges, these can be especially tricky,” wrote Paul Brockwell, who left his post as conflict of interest director in April. “They change more frequently, and often without solid contact. I’ve found cases in which our office and the [Secretary of the Commonwealth] is not immediately notified so we can begin to solicit statements.”

Brockwell’s successor, Matt Gross, called tardy disclosures a “concern,” but his office stops short of contacting the attorney general.

When faced with a judge who has not filed, “we don’t assume that it is a criminal act as such,” said Bernard Henderson, deputy secretary of the commonwealth, who supervises Gross’ office.

Knowingly violating a provision of the State and Local Government Conflict of Interests Act, which mandates the disclosures, rates a misdemeanor, and constitutes malfeasance of office. That standard leaves even the noncompliant some wiggle room.

“A knowing violation is a rather high burden for anyone to prosecute a violation of this act,” said Jeffrey Geiger, a legal scholar at the University of Richmond and an attorney with the firm Sands, Anderson, Marks & Miller.

“If a judge fails to file on time, and notice is given to the judge, it is reasonable to presume that the judge is acting in a manner to obtain necessary information to provide the disclosure,” Geiger said.

Of the seven local jurists who had not filed disclosures by April, five did so within two weeks, one filed three months later, and another, Maddux, opted not to file.

But regardless of the timeliness or completeness of a judge’s disclosure, Geiger cautioned against “automatically presuming that they are not going to act fairly.” Judges can recuse themselves from cases when they have a conflict, and two opposing lawyers arguing for clients can serve as a check on a judge’s impartiality, Geiger said.

Judges and substitute judges who filed late or incomplete chalked it up to oversight, declined to elaborate or did not respond to requests for comment. Some were unaware of the errors or omissions.

Substitute Judge Joseph Rasnic, an attorney in Lee County, did not sign his 2009 disclosure, which is notarized.

“I think we were late on it. I don’t know,” he said by way of explaining the blank signature field.

Though he filed the latest disclosure form, he used an outdated schedule to report his investments. The requirement was broadened in 2006. Rasnic guessed he might have copied the form from a previous version.

“I don’t think I have anything to report over $250,000,” he said, alluding to the new requirement.

Donna Sue Baker Cox, a substitute judge and Wise County attorney, did not realize her 2009 disclosure statement wasn’t on file until contacted by Brockwell in April.

“We had a change in office staff,” her paralegal said. “That person had downloaded the disclosure forms and then not prepared them.”

Both sides of the bench

Virginia law is clear about when a private attorney can serve as judge: only when the sitting judge has a conflict and a retired judge cannot be found. In such a case, it is up to the chief district court judge to find a substitute, who, whenever possible, “does not regularly practice law in the court requiring the substitute,” according to the Virginia Code.

Courts in the 28th, 29th and 30th judicial circuits have a mixed record on this mandate. In about one-third of the 234 occasions that a substitute judge served in these courts in fiscal year 2008, the jurists served in localities where their law practice is based, according to a Herald Courier analysis. The total number does not include the days Substitute Judge Sandra McGlothlin served on the bench because she is a law professor and does not practice in the courts where she lives.

The regularity with which substitute judges serve in courts where they practice varies substantially by circuit. In the 30th Circuit, comprising the counties of Lee, Scott and Wise, substitute judges served in courts where they practiced only 16 percent of the time.

That scenario is more frequent in the 28th and 29th circuits, where substitute judges spent 50 percent and 44 percent, respectively, of their time on the bench located blocks away from their private practice.

“Fifty percent – obviously, it’s not ideal,” said Sage B. Johnson, chief district court judge in the 28th Circuit, comprised of Bristol, Washington and Smyth counties. “It doesn’t surprise me given the limited number of retired judges available to us,” he said.

“We don’t want a substitute judge that is going to be looked upon as deriving some benefit from that tomorrow,” Johnson said. “We can do that when we have enough time to plan for it.”

Often, as in the case of a sudden illness or family emergency, there is not time.

Jack S. “Chip” Hurley, chief district judge in the 29th Circuit, said calling a substitute judge who is also a local attorney can be the lesser of two evils.

“It’s a tremendous inconvenience for the public if we have to cancel court,” he said. Booking a local substitute is a “greater good than cancelling court because we couldn’t find a substitute judge from outside the county.”

One such attorney-judge, H. Shannon Cooke, found himself in that position often between 2007 and 2008. Of the 36 times he served as a substitute during a year, 23 of those days were in Tazewell, where his practice is based.

Said Cooke: “I go where I’m needed, if I have time in my schedule.”

To be sure, substitute judging gigs are not lucrative.

Karen Bishop, a Wise County attorney, spent more time on the bench than any other substitute judge in the region – 59 and a half days. For a few months between the summer and fall of 2007, she drove to Lee County to serve twice a week. Her annual haul from judging fees: $11,900.

“That was a service,” she said of the time she stood in for a juvenile and domestic relations court judge who had been removed from the bench.

The topic of judges serving in courts where they practice also has surfaced in a statewide judicial policy body.

The Judicial Council of Virginia, in its 2008 report to the General Assembly and the state Supreme Court, recommended several modifications to the judicial system, including “requiring that reasonable efforts be made to locate a substitute judge who does not regularly practice before the court where the substitute judge is to be assigned.”

dgilbert@bristolnews.com | (276) 645-2558