Shortchanging justice?

Funding problems hobble efforts to fill judicial vacancies

Published January 30, 2013 by Robert Burke

Virginia doesn’t have enough local judges to keep up with the workload, and so far, it hasn’t found enough money to fill all its vacancies.

There are currently 43 judicial vacancies around the state out of roughly 400 judgeships, and that means slower access to justice for everyone, says Hugh M. Fain III, managing director of Spotts Fain in Richmond, who in January stepped down as president of the Virginia Bar Association. Vacancies come up every year by the dozens — there are circuit courts and general district courts in every city and county in the state, and every year judges resign or retire, he says. “We have backlogs now that are bigger than before, and that affects our overall [standing] relative to other states, and that’s not good. So there’s a good business reason to fund our judiciary,” Fain says.

For years it wasn’t a big deal, because the funding was in place to pay for hiring replacement judges. But lately the task of filling those vacancies is more difficult, says Karl Hade, executive secretary of the Virginia Supreme Court.

“We’re kind of in new territory here,” he says, because of a change in the funding formula made in the 2010 budget. “The General Assembly inserted language into the budget bill that said [that] when a vacancy occurs at the circuit or district court level because of a resignation, retirement or death, the position basically becomes unfunded.”

Before that move, vacancies that came up were filled more easily, but now they pile up until the General Assembly decides. “So that has put us in a situation unlike we’ve ever seen before,” Hade says.

It’s clear the state is facing a wave of vacancies this year and next. Only seven of the 43 vacancies date to 2011 or earlier, the rest happened in 2012 or will happen this year. Hade says that, before the 2010 change, filling of vacancies was a lot easier. “Generally speaking, yes, the numbers were less, because judgeships tended to be filled as they became vacant, versus queuing them all up throughout the year until the next General Assembly,” he says.

Many of the vacancies are in the state’s most densely populated court districts. The 19th District, which is just Fairfax County, with its population of 1 million people, has four judicial vacancies, according to data from Hade’s office. The 13th District, covering the city of Richmond, has three vacancies. The 4th District in the city of Norfolk may have it the worst, with four vacancies out of 12 judicial slots in the circuit and general district courts.

Overall, 23 of the state’s 31 districts have vacant judgeships, and 11 have more than one vacancy. The vacancies show no particular regional pattern, affecting urban and rural localities in nearly every part of the state. The urban crescent from Hampton Roads through the Richmond region — which includes all or part of several judicial districts — on to Northern Virginia has a string of vacancies. But so do Southern and Central Virginia, the Shenandoah Valley and the southwestern region reaching to the 29th District, which includes Russell, Tazewell, Dickinson and Buchanan counties.

Before the current General Assembly session opened in January, there was movement to deal with the problem. In December, Gov. Bob McDonnell proposed a budget amendment that would fill 15 vacant judgeships — eight district court, five circuit court and two juvenile court vacancies. The governor’s proposal includes an additional $675,616 in state funding for the fiscal year starting in July and $3 million in funds not spent because of the vacancies.

The governor’s amendment is welcome, Fain says, but it’s not enough. “We have in the commonwealth about a $42 billion annual statewide budget, and less than 1 percent of that is required to fund the entire judicial branch,” he says.

The state’s court system brings in about $600 million, which is nearly twice what it costs, he adds. Plus, the bar association hopes the governor and the General Assembly also will do something for the judicial system’s employees. “Judicial branch employees have not had a base salary raise since 2007,” Fain says. “These folks are doing more with less and have had staff cuts, so they are doing more work.”

One challenge is that people working in the judiciary oftentimes could be making more money in the private sector. “These folks working in the judicial branch could be working in the private sector, and we just haven’t kept pace with compensation,” Fain says.

This is a difficult issue because judicial branch employees can’t lobby the legislature for more money. “The judiciary in many respects can’t speak for itself” largely because of its need to keep politics at arm’s length, so the bar association tries to fill that role, Fain says. “We would certainly like to have our judiciary fully funded.”

Fain and others expect a lot of changes as the legislature works through the budget appropriations. They expect even more change in the 2014 session. That’s because last year the General Assembly and the governor passed legislation requiring the Virginia Supreme Court to conduct a weighted analysis “to determine the need for judicial positions and the optimum distribution of judicial positions throughout the commonwealth and to prepare a recommended plan for the realignment of the circuit and district boundaries.”

The results of that study aren’t due until October, so many changes concerning how the judiciary is funded might end up waiting until the next session. When McDonnell decided which judicial vacancies he would propose to fill, he used an analysis that counted the volume of cases expected. Fain, however, says the new analysis, which is being developed now, should be more accurate. “The word ‘weighted’ is real important, because there’s a more precise way [to measure caseload] than just volume,” he says. “The governor’s caseload analysis … has to be a little less precise. There’s a methodology that’s more precise and complicated than just looking at the number of cases in a county,” he says.

McDonnell’s budget amendment also includes extra state funding for salary increases for assistant commonwealth’s attorneys. It would give each a flat increase in pay of $3,300 in 2014 and an identical raise in 2015, bringing the annual starting salary for the position to nearly $52,000.

McDonnell, who once worked as a prosecutor in Virginia Beach, said in the news release that the pay raises “will put the most capable prosecutors in our courtrooms, which will best support the criminal justice system and, in turn, make all Virginians safer.”

Proponents of filling the judicial vacancies think filling those vacant jobs would have the same effect. In last year’s session, the bar association lobbied hard to get funding for judicial vacancies and to increase staffing for courts, especially general district courts. Of 48 judicial vacancies last year, the General Assembly agreed to fund 34. “And that’s great. But we’re still operating at 80 percent of our judicial courts staffing, so it’s not done,” Fain says.

A lot is going to change during the assembly session. Fain and the bar association will try to make their case. “It’s obviously been a tough time for budgeting,” he says. “The judicial branch has been one of many areas that hasn’t been able to get funding. We’re just trying to keep it front and center for the legislature.”