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.

STATEMENT OF OBJECTIONS TO JUDGE T. J. MARKOW'S

"CORRECTIONS" TO PLAINTIFF'S WRITTEN STATEMENT OF FACTS

Comes now the plaintiff, by counsel, and sets forth his objections to Judge T. J. Markow's Corrections to the Plaintiff's

Written Statement of Facts. The Court's proposed corrections were listed on the undated "Notice" sent to counsel for the plaintiff, Neil Kuchinsky, and received by him on November 12, 2003. The objections are as follows:

1. The plaintiff objects because it avers that Judge Markow has demonstrated in his conduct concerning the "Written Statement of Facts" that he is possessed of a bias or conflict in favor of the defendant that makes his failure to recuse himself from this matter an abuse of discretion. Examples derived solely from the matters relating to the filing of the "Written Statement of Facts" are as follows:

A) The Court set this hearing to hear arguments of counsel without any advance coordination with plaintiff's counsel, who only received the written Notice one day prior to the scheduled hearing, which is completely at odds with appropriate norms of judicial behavior;

B) The Notice to plaintiff's counsel contains no date of mailing, or when Judge Markow signed it;

C) The plaintiff notes that while Judge Markow complains that the first paragraph of the "Written Statement of Facts" is inaccurate in that "this Judge did not order the filing of a bond", obviously, some Judge determined the amount of bond in accordance with statute. One would think that a proper correction would indicate which Judge did order the bond, rather than simply state that "this Judge" did not order the bond. This also raises the questions of why this suit would have been transferred from one Judge to another.

2. Judge Markow states that the second paragraph of the proposed Statement of Facts is inaccurate because "there is no basis in fact" for the assertion that he was initially undecided as to whether he should recuse himself from the matter. Yet, while counsel did not receive this information directly from Judge Markow or his chambers, he was advised of this by a member of the staff of the Clerk of Court, and it is a mystery to the plaintiff why a member of staff of the Richmond Circuit Court Clerk's Office would invent such a fact; furthermore, Judge Markow has not sought to correct the third paragraph of the Statement of Facts, which is entirely consistent with the second paragraph objected to by Judge Markow;

3. Paragraph 5 of the Statement of Facts is entirely relevant, because it illustrates the exceedingly short time period from filing in which Judge Markow entered his Final Order in this matter, without allowing for a reasonable period for plaintiff's counsel to set a hearing and argue his case, or, if necessary, to move for an appropriate amendment to the pleadings. Since Judge Markow is not sure what plaintiff's counsel's objections to his court's decision will be before the Virginia Supreme Court, having not allowed a hearing on the Petition, he cannot be in a position to say that the facts set forth in paragraph 5 are "irrelevant to any decision or to the record".

4. Judge Markow has objected to paragraph 9 of the proposed Written Statement of Facts because it states that it is "argument" that "counsel did not have an opportunity to note objections to the Judge's ruling or order at the time they were made". This would only be an "argument" if adverse counsel or the Supreme Court were to aver that the plaintiff had not timely noted its objections for purpose of appeal. But for purposes of the Statement of Facts, the fact that counsel did not have an opportunity to note objections to the Judge's ruling or order at the time it was made is absolutely, undeniably a fact, although it is one that is not otherwise stated explicitly in the record. This is a fact which has obvious procedural implications for appeal; and Judge Markow's apparently vigorous objection to allowing such a fact is further evidence of the bias or conflict complained of in paragraph 1 above which should have resulted in his recusing himself.

THE CONCERNED CITIZENS

OF PETERSBURG

By:

Counsel

CERTIFICATE

I hereby certify that a true and correct copy of the foregoing Statement of Objections to Judge Markow's "Corrections to Plaintiff's Written Statement of Facts 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 November, 2003.

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