V I R G I N I A:

IN THE CIRCUIT COURT OF THE CITY OF RICHMOND

JOHN MARSHALL COURTS BUILDING

COMMONWEALTH OF VIRGINIA, ex rel.

The Concerned Citizens of Petersburg,

an Unincorporated Association, Petitioners,

v. Case No.: LR2125-3

THE HONORABLE LEROY R. HASSELL, SR.,

CHIEF JUSTICE OF THE SUPREME COURT OF VIRGINIA, Defendant.

MOTION TO QUASH DEMURRER, PLEA TO THE JURISDICTION

OF THE COURT AND MOTION TO DISMISS PETITION

FOR WRIT OF QUO WARRANTO

Come now the petitioners, by counsel, and move to quash defendant's Demurrer, Plea to the Jurisdiction of the Court and Motion to Dismiss Petition for Writ of Quo Warranto, and in support of their Motion state as follows:

1. The gravamen of this case is whether the Designation order was lawful. The fact that the Chief Justice signs an order does not automatically confer lawfulness upon it, but only the facial appearance of lawfulness.

2. The Honorable Leroy R. Hassell, Sr., is not properly a defendant in this matter until a Writ is issued. Therefore, the Demurrer, Plea to Jurisdiction, Motion to Dismiss and various requests for attorney's fees and sanctions are premature; the court cannot even take cognizance of them yet, because the Chief Justice has no standing to argue until the Writ of Quo Warranto is issued.

3. The filing of these papers in the circumstances by the Chief Justice amounts to the application of heavy-handed pressure, improper influence and intimidation upon the Circuit Court Judge hearing the Petition and considering the issuance of the Writ.

4. The Chief Justice has made an incredible assertion that the Petitioners are engaged in a "bold fishing expedition without any legal basis whatsoever." It strains credibility to believe that the Chief Justice has not spoken with his Supreme Court employee, Mr. Frederick Hodnett, Jr., concerning the latter's speaker-phone conversation with Mr. Kuchinsky on August 29, 2003, during which Mr. Hodnett candidly admitted that his office utilized Judge D'Alton's suggested retired Judge in completing the designation order for Judge Hassell's signature (see sworn transcript attached as Exhibit "A").

5. To quote the Chief Justice in an article dated September 14, 2003, and published in the Richmond Times-Dispatch (attached as Exhibit "B"):

As judges, we must be ever mindful that we are stewards of the public trust. We must discharge our constitutional and statutorily prescribed responsibilities with diligence, humility, compassion, and competence. We always must exhibit respect and courtesy . . .

In conclusion, since the beginning of our democracy, the citizens of this Commonwealth have recognized the value of an independent judiciary that will resolve disputes free of political, social, or economic influences.

It would appear that the Chief Justice takes one position for public consumption, and quite another "unpublished" position when it comes to the actual implementation of those platitudes in litigation involving the "image" of the Virginia Supreme Court or the Chief Justice. The ad-hominem attack on plaintiffs' counsel through both the implication that he made up the allegations in the petition to go on a "fishing expedition," and the prayer for sanctions, makes a mockery of anything that Justice Hassell has said or will say in the future regarding the importance of civility, humility, compassion and courtesy.

6. In case it is not absolutely clear from the petition that the Concerned Citizens allege the Justice Hassell's "misuse of his privileges" in the Designation, then petitioners would move to be permitted such an amendment.

7. The petitioners have properly alleged why they have an interest and standing in this matter;

8. Even if this court is not empowered to appoint a fiduciary to run the hospital, it is empowered by statute to find the Chief Justice's Designation unlawful; a properly designated judge for the Petersburg Circuit could then deal with any collateral issues.

9. The petitioners now seek monetary sanctions against Chief Justice Hassell for the following reasons:

a) His Motion for Sanctions in accordance with Virginia Code §8.01-271.1 is itself not warranted by existing law or a good faith argument for the extension, modification or reversal of existing law;

b) His allegation that petitioners' counsel was merely engaged in a "bold fishing expedition" is patently untruthful, given what he knew or should have known from communication with Mr. Hodnett that an admission was made as to the truthfulness of the petitioner's factual allegations;

10. It would have been better advised for Justice Hassell to simply acknowledge the problem complained of by the petitioners, and fix it.

WHEREFORE, the Petitioners, by counsel, pray that this court have the courage to resist the heavy-handed pressure tactics of the Chief Justice; that Justice Hassell's Demurrer, Plea to Jurisdiction and Motion to Dismiss Petition be refused by this Court as premature in any event; that sanctions in the sum of $5,000.00 be awarded against the Chief Justice for the reasons set forth above; and that the court find that, in any event, no attorney's fees or sanctions could be awarded in favor of Justice Hassell for any legal work accomplished prior to the issuance of a Writ, in that he is not even a proper defendant in this action at this time.

THE CONCERNED CITIZENS

OF PETERSBURG

By:

Counsel

CERTIFICATE

I hereby certify that a true and correct copy of the foregoing Motion to Quash Demurrer, Plea to the Jurisdiction of the Court and Motion to Dismiss Petition for Writ of Quo Warranto was mailed, postage prepaid, to Edward M. Macon, Senior Assistant Attorney General, Office of the Attorney General, 900 East Main Street, Richmond, Virginia 23219, this ______ day of September, 2003.

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