Despite a study by the National Center for State Courts that found Loudoun needs another judge—and despite having a person ready for the job—a key House of Delegates committee has decided not to restore funding for a Loudoun Circuit Court judge that the General Assembly took away in 2017.
Loudoun’s legal community pushed for several years to create a fourth bench seat because of the circuit’s heavy and complex caseload, finally gaining approval in 2015. However, through retirements and, last year, a funding cut, the full complement of seats has never been filled. The Senate Appropriations Committee relied on a 2013 caseload study—and the retirement of Judge Burke F. McCahill—to conclude Loudoun could make do without a fourth judge and strip funding for the position.
Last year, a report by the National Center for State Courts concluded that Virginia needs 28 more judges in its Circuit, District, and Juvenile and Domestic Relations courts—including one in the 20th Circuit that serves Loudoun.
The Loudoun Bar Association had also nominated Leesburg attorney Alex N. Levay for the job. Levay had been poised to take McCahill’s seat, including gaining endorsements from the local legal community and being declared qualified by the General Assembly, just before the Senate pushed to defund the seat.
While Loudoun’s Circuit Court has struggled with only three judges, the court has relied on a platoon of substitute judges, including retired Loudoun Judge Thomas D. Horne.
Outgoing Gov. Terry McAuliffe (D) proposed funding that seat in the next state biennial budget, but the House Appropriations Committee took that money back out this week, while funding six other Circuit Court judgeships across the state. That action followed an analysis conducted by the committee’s staff that ranked Loudoun’s judgeship 24th on a list of 28 vacancies in terms of need.
The House is scheduled to consider amendments to the Appropriations Committee budget during its session on Thursday.
Former Del. J. Randall Minchew, who had served on the House Courts of Justice Committee and practices law in Leesburg, said he was “very disappointed” in the vote and that “at this juncture, our only hope is for Governor [Ralph] Northam to offer an amendment to fund our Judgeship.”
The Senate’s version of the budget does, however, include money for an additional judge, according to state Sen. Jennifer T. Wexton (D-33), who also works as an attorney in Leesburg. The Senate and the House will vote on each of their proposed budgets Thursday, and then the differences will have to be hammered out in conference by leaders from each chamber.
“I don’t know whether it will survive conference committee,” Wexton said. “Obviously, those in Loudoun’s delegation are doing everything we can.”
Minchew also said it is “very ironic” that the appropriations committee is proposing expanding funding for drug courts—something Loudoun supervisors and judges have pushed toward, but which they have also warned will be impractical without a fourth seat on the bench.
Nonetheless, according to a report by county staff members, Loudoun could press ahead with a drug court.
From 2004 to 2012, some Loudoun drug offenders got a chance to avoid jail time after violating probation by going instead to an intensive outpatient treatment program. Offenders would be under intensive supervision and mandatory treatment, and if they fell off the wagon, they could wind up back in jail. But the program saw few participants, and in 2012, the Board of Supervisors voted to end it.
The current Board of Supervisors, with a majority of new members, however, has examined the idea of starting a new drug court, learning from the lessons of the last one.
In a letter to County Chairwoman Phyllis J. Randall (D-At Large), the judges of the 20th Circuit jointly wrote “while we don’t believe a drug treatment court is necessarily precluded if a fourth judge is not funded, the scope of the drug treatment court may have to reflect the more limited judicial resources available to preside over and manage this special docket.”
Representatives from the county departments of community corrections; mental health, substance abuse and developmental services; and county administration have recommended supervisors push ahead with the first step of setting up a drug court, setting up a state-mandated drug court advisory committee.
Supervisors are scheduled to discuss that question Feb. 22.