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SEPTEMBER 2002 Law 6, Politics: the Imperative of Judicial Self-Restraint

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SEPTEMBER 2002 Law 6, Politics: the Imperative of Judicial Self-Restraint MY EMPLOYEES DON’T WANT TO LIVE IN ONLY HALF A HOUSE. THEY DON’T WANT TO DRIVE ONLY HALF A CAR. THEY DON’T WANT TO SEND ONLY HALF THEIR KIDS TO COLLEGE. SO I DON’T WANT TO BE ABLE TO COVER ONLY HALF THEIR PAYCHECK. INCOME PROTECTION -- You spend your day taking care of your employees. But what if you FUNDS / INVESTMENTS could take care of them a TERM CARE INSURANCE little better? With products that ANNUITIES build on existing group long-term disability plans. Al! with little or RETIREMENT SERVlCES/4OI(K) PLANS no cost and administration for LIFE INSURANCE you. To find what more you can TRUST SERVICES do, try our Needs Calculato~ www.halfapaycheck.com Find out more. Call Dean Hardy and Howard DiSavino, 4510 Cox Road, Suite 200, Glen Allen, VA 23060. MassMutual Phone: 1-800-358-7987. wwvz.hardy-disavino.com FINANCIAL G RO U P"~ © 2001 Massachusetts Mutual Life Insurance Company (MassMutual), and subsidiary companies, Springfield, MA 01111. Securities offered through Registered Representatives of MML Investors Services, Inc., Trust services offered by ]he MassMutual Trust Company, FSB, www.massmutual.com Member SIPC 4 President’s Page: Judicial Independence Vir~nia.$~/le’ j. Edward Betts 6 The Independent Judiciary:. Law and Politics: The Imperative of Judicial Self-Restraint Hon. D. Arthur Kelsey 9 VBA Model Criteria for Judicial Selection and Retention 10 ° The VBKs 112th Summer Meeting in ~ 12 ° Legal Focus/Civil Litigation: Recovery of Lost Profits: An in the War on Trade Secret Attison L. Barnes IIl and Charles C. Lemlcy 16 ° Young Lawyers Division: 17 ° Book Program An~nced! 18 ° Across the Commonwealth New group for arts, Rumsey receives VBA fall meetings announced Two members named ~ Joint,O.E ’Court End Society" 21 VBA Law Practice Management ~ ~ Professional Skills Survey ~lendar The Official Publication of The Virginia Bar Association Volume XXVilI, Numbcr 6 ~"acptcmDcr 2002 ...... PRESIDENT’S PAGE Judicial Independence Virginia-Style m* J. EDWARD BETTS IT]he Judicial Department comes Another important element of judges’ home /27 its effects to every man’s independence is tenure in office. This f/?eside: it passes on h/~ proper04 his was the issue that inspired Chief Justice reputation, h/} Iif~, h/} all Is it not to the Marshall to his oratorical heights quoted last degree important, that [a judge] should be rendered perfectly and above. Some, like John Adan~s, believed completely independent... ? / have in lfl~ tenure to maintain an independent always thought, from my earliest youth judiciary,- so that judges were "subservient till now, that the greatest scourge an to none." D. McCullough, John Adams, and~ Heaven ~v~r /bf//~t~d upon an at 103. This is the federal model. Some undrat~fu/ and sinnin~ p~op/6 was an states hold popular elections for judges. /dnoran~ a corrup~ or a d~p~nd~nt Virginia has taken a middle ground. The Judic/~ ~l/ you draw down th/~ curs~ General Assembly selects and rene~vs upon ~?d/b/b ?* the terms of our judges, ~vith the Governor havhag limited appointment Thanks to Chief Justice Marshall and rights while the General Assembly is not those who have followed him, Virginia in session. Va. Const. Art.VI, §7. offers a workable Constitutional Economic security also fosters framework for preserving a Virginia judicial independence. In Virginia, the judge’s ability to think and rule General Assembly prescribes salaries, independently. Various of the other states which can be supplemented from local and the federal goven~nent have taken The occupants of the funds. Va. Const. Art.VI, §9. Given somewhat different approaches to three branches of the critical role of an independent preserving an independent and thus ~overnment must act with judiciary in our free society, it is my impartial judiciary, with some having comity and deference personal hope that our General greater success than others. But let us Assembly will always keep in mind focus upon Virginia. towards each other to how important an independent Our Constitution declares "That the strike the balance that judiciary is when it prescribes judicial legislative, executive and judicial preserves the separation salaries. Virginia cannot afford to have departments of the Commonwealth of powers, and only wealthy judges of impartial mind. should be separate and distinct...." Va. particularlyjudicial Although Virginia’s Constitution Const. Art. I, §5. Other Constitutional provides a framework for the judiciary provisions prohibit sitting judges from independence. to maintain its independence, it is being members of the General inevitable that tensions will arise Assembly or officers in the Executive among our three branches which could Branch. Va.Const. Art. IV, §4, and in the early days decreed divorces, granted discharges in bankruptcy and undermine this Constitutional intent. Art.VI, § 11. These declarations of the Thus, the occupants of the three separation of powers are essential to rendered a wide variety of decisions that branches must act \vith comity and an independent judiciary. we consider today to be reserved to the deference towards each other to strike Yet even though this doctrine appears judiciary," L.L. Fuller, Mammy of the the balance that preserves the to be a permanent fixture of American Law, at 32. Thus, we must remain vigilant to assure that incursions on an separation of powers, and particularly law, the functions of the three branches judicial independence. President have often been blurred in our history. independent judiciary do not occur in Roosevelt’s attempt to "pack" the For example: "American state legislatures any form. United States Supreme Court is an example of an executive department’s *John Marshall, then Chief Justice of the United States, made these remarks in Virginia’s Constitutional overreaching. Judge Kelsey’s fine Convention of 1829-30, as a representative of the city of Richmond, Ex-Presidents James Madison and James Monroe also participated in the Convention, Marshall’s efforts, directed to article on judicial self-restraint, protect judicial tenure, were successful, and the Judiciary article was adopted substantially as he published in this issue starting on page had written it. J.E.Smith, John MarshalL. Dcf/her of a Nation, at 504-06. 6, demonstrates how the judiciary 4 THE VIRGINIA BAR ASSOCIATION should not confuse its role with that as it engages in its selection and rene~val of the legislative branch. Buttressing process of judges, such that the latter his article is The Virginia Bar remain free to render independent, Association Model Criteria for Judicial impartial derisions. Selection and Retention (Model The VBA, along with Virginia’s Chief Criteria), published on page 9 of this Justice, has constantly called for a merit issue. One of its criteria is the selection and retention process for Suite 1120 "Willingness to Follow the Law." judges, and the General Assembly has 701 East Franklin Street Of course, "following the law" does moved in that direction in recent times. Richmond, VA 23219 This is the reason for the VBA’s Model (804} 644-0041 not inhibit a judge from construing a FAX (804) 644-0052 statute reasonably. That is the very Criteria. In the context of judicial E-mail: [email protected] essence of a judge’s work. Indeed, a independence, three of these criteria bear Web: http://www.vba.org judge’s ability to do so impartially particular attention. Under the general President demonstrates the importance of judicial heading of "Integrity," we set forth as J. Edward Betts, Richmond independence. And a judge’s right to criteria: "Free of Bias or Prejudice"; "Free President -Elect make a reasonable construction of a of Favoritism"; and "Evenhandedness." Frank A. Thomas Ill, Orange statute imposes a concomitant Without comity and deference among Immediate Past President responsibility on the General Assembly, our three branches of government, these Jeanne E Franklin, Alexandria that of deference to the judiciary. criteria, and impartial justice, will never Young Lawyers Division Chair Vaugnan Gibson Aaronson, Richmond In fact, an impartial judge is often in a be realized. Nor will our Constitution Young Lawyers Division Chair-Elect better position to construe a statute than be honored. Va. Const. Art. I, § 15, Stepnen D. Otero, Richmond are the draftsmen. In one famous English states that in order to preserve a free Law Practice Management Division Chair debate, Lord Nottingham stated that he government: Heman A. Marshall Ill, Roanoke had reason to know the meaning of a ... all citizens [recognize] that they Chair, Board of Governors given statute since he had drafted it. In have duties as well as rights, and E. Tazewel Ellett, Alexandria response, it was stated "if Lord that such rights cannot be enjoyed Board of Governors Nottingham dre~v it, he was the less save in a society where law is Th~ Oftic~rs ancl Ann T. Burks, Richmond qualified to construe it; the author of an respected and due process is ~rof. Roger D. Groot, Lexington act considering more what he privately observed. James V. Meath, Richmond intended than the meaning he has Without an independent judiciary, Hon. William C. Mims, Leesburg Frank West Morfison, Lynchburg expressed." Fuller, supra, at 33-34. law will lack respect and due process Sharon E. Pandak, Prince William Moreover, restraint and deference must will go unobserved. @ D. Alan Rudlin, Richmond also be honored by the General Assembly Grego~ T. St. Ours, Harrisonburg Harriette H. Shivers, Roanoke William R. Van Buren Ill, Norfolk More on the subject: The American Bar Association has chosen Hon. John E. Wetsel Jr., Winchester E Blair Wimbush, Norfolk "Independent Courts Protect Our Liberties" as the 2003 Law Day Member of ABA House of Delegates theme. The Constitution grants us rights, but without courts the Constitution Hon. R.
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