As state House and Senate budget conferees last night reported the results of their deliberations, funding needed for a fourth Circuit Court judge in Loudoun remained one of the cuts.
While members of Loudoun’s General Assembly worked in recent weeks to secure money for the seat, they were unable to sway the Senate representatives.
Losing the judgeship is expected strain the workload of the three remaining judges and all but ensures that Loudoun leaders will be unable to pursue plans to reestablish a drug court.
Del. J. Randall Minchew, an attorney who lives in Leesburg, informed the Loudoun County Bar Association of the outcome in an email this morning.
“As a result of this ill-conceived and imprudent action, the third most-populous county in Virginia has lost 25% of its judicial workforce and will now have only three resident circuit court judges to handle a complex and growing docket.” He wrote. “I fear that this reduction in Loudoun judicial force will most certainly lead to a postponement of the proposed establishment of a remedial drug court in Loudoun County given the judicial time commitments required to run such a program.”
After years of work by legislators, judges and lawyers to persuade the General Assembly of the need for more help in addressing Loudoun’s growing and complex caseload, a fourth Circuit Court judgeship was created two years ago. Judge Douglas L. Fleming Jr. was appointed to that seat.
The current debate arose when Judge Burke F. McCahill, who had served since 1998, announced his retirement effective Jan. 1. Loudoun’s legal community recommended Alexander N. Levay to fill the vacancy. The attorney has received strong support locally and in Richmond and, following a formal interview before the Assembly’s judicial panel on Friday, was expected to be certified as fully qualified for the post this week.
The budget battle was triggered by a new caseload study complied by the National Center for State Courts. Under metrics used for that report, Loudoun’s need was identified as just under 4.7 judges for the 20th Circuit, which also include a judge dedicated to cases in Fauquier and Rappahannock counties. Members of the House, with Del. Thomas A. Greason (R-32) leading the effort, agreed to round the number up to five; members of the Senate did not.
How busy is Loudoun’s docket? According to figures provided by Clemens’ office, even with four judges serving full time, substitute judges were called to help out on 105 days during 2016—44 percent of the 241 days courts were open. The substitutes—retired judges paid $100 a day by the Virginia Supreme Court—picked up the overflow of 1,420 criminal hearings or trials, 475 civil court hearings or trials, 87 juvenile appeals or adoption case hearings and 389 concealed handgun permit cases last year. If the budget cut stands, the role substitute judges will be expected to play will grow substantially.
MaCahill handled 3,855 cases during 2016, according to the clerk’s office.
“I do not know what steps are available to remedy this, other than wait for the 2018-2020 Biennial Budget process and hope that funding can be restored effective July 1, 2018,” Minchew wrote. “But, together with the other ten members of the Loudoun delegation, we will investigate all available options and continue the fight.”
Minchew said the Senate’s budget conferees “basically took advantage of” McCahill’s retirement to defund the position. He said that had he known the judgeship was in jeopardy, he would have asked McCahill to delay his retirement for a few months. “I do not think that the Senate Budget conference committee members would have chosen to defund a Loudoun Circuit Court judgeship that was filled by a working judge.”
Loudoun’s Clerk of the Circuit Court Gary Clemens also was active in the push to restore funding for the judgeship. He said it was clear that the cutback will make it difficult for the court to keep up with the number of murder trials and other criminal cases that have statutory deadlines, but the civil cases, including divorces, will be hit the hardest.
Before Fleming was appointed, civil litigants were strongly advised to settle their disputes outside of court or to seek mediation rather than endure long waits for court dates. Clemens acknowledged that situation is likely to return.
“I know that the House Appropriations Committee had a $1.2 billion hole to fill while funding needed State Police and public school teacher pay raises and producing a structurally balanced budget, but defunding 25 percent of the Circuit Court judge workforce in Virginia’s third largest and fastest growing county is horribly imprudent,” Minchew said Thursday.
For Levay, the past three months have been a roller coaster of emotion. Initially one of eight attorneys to apply for the judgeship, he proved to be the overwhelming choice of the Loudoun Bar membership. While contemplating the complexities of shutting down his private practice after more than 20 years, he was buoyed by the widespread support. The highlight came last Friday in a final interview before legislators in Richmond when it was clear they found him qualified to serve. He said it felt like a validation for his 30-year legal career.
Sitting in his King Street office on Thursday afternoon—less than 24 hours after learning the funding had been cut for the judgeship—Levay wasn’t just thinking about himself.
“The people who are really going to suffer are the people of Loudoun County,” he said.
Cutting a quarter of the workforce would hurt most businesses, but it will be a heavy blow to Loudoun’s busy and complex Circuit Court docket, he said. Levay also is a supporter of reinstating the Drug Court, which he said proved effective before a previous Board of Supervisors cut its funding. He agreed that the new push to reestablish the court to help address the epidemics of opiate and methamphetamine addition won’t be possible with only three judges available to support it.
Levey said that Loudoun’s representatives in Richmond pushed hard to save the funding. “Our local delegation understood the issue and the consequences,” he said.
While never taking his appointment to the bench as a certainty, Levay turned away many clients during the past three months because of the possibility that he would not be able to see their cases to fruition. Now his focus will return to rebuilding his client base as a new realization sinks.
“I’m still in practice. Let your readers know,” he said.