IN THE

SUPREME COURT OF VIRGINIA

___________

RECORD NO:

COMMONWEALTH OF VIRGINIA, ex rel.

THE CONCERNED CITIZENS OF PETERSBURG,

an Unincorporated Association

Appellants,

THE HONORABLE LEROY R. HASSELL, SR.

CHIEF JUSTICE OF THE SUPREME COURT OF VIRGINIA

Appellees.

(Richmond Circuit Court Case #LR2125-3)

PETITION FOR APPEAL

(Rule 5:17)

SUBJECT INDEX

Page

TABLE OF CITATIONS

CASES . . . . . . . . . . . . . . . . . . . iii

STATUTES . . . . . . . . . . . . . . . . . iii

NATURE OF THE CASE AND PROCEEDINGS

IN THE TRIAL COURT. . . . . . . . . . . . . 1

QUESTIONS PRESENTED . . . . . . . . . . . . . . 4

STATEMENT OF FACTS . . . . . . . . . . . . . . . 5

ASSIGNMENTS OF ERROR . . . . . . . . . . . . . . 6

PRINCIPLES OF LAW, ARGUMENT AND AUTHORITIES

RELATING TO ASSIGNMENTS OF ERROR . . . . . . . . 7

CONCLUSION . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF SERVICE . . . . . . . . . . . . . 14

TABLE OF CITATIONS

CASES

Albemarle Oil & Gas Company v. Morris, 138 Va. 1, 121 S.E. 60 (1924)

Watkins v. Venable, 99 Va. 440 39 S.E. 147 (1901)

STATUTES AND REGULATIONS

Virginia Code §17.1-105(B)

Virginia Code §8.01-636(2)

Virginia Code §8.01-637(A)

iii

It would seem obvious that if it is improper for a judge to hear a case, it is improper for him to select his replacement. The Plaintiff/appellant presumed that the Chief Justice simply signed off on an order that was pre-filled for him by a Supreme Court employee who had read Judge D'Alton's letter. Should such an appointment be allowed to stand?

The Plaintiff, Commonwealth of Virginia, ex rel., The Concerned Citizens of Petersburg, an unincorporated association ("The Concerned Citizens"), an organization adamantly opposed to the sale of the charitable hospital, filed its Petition for a Writ of Quo Warranto on September 10, 2003, in the Circuit Court of the City of Richmond, John Marshall Courts Building. An unknown judge set a bond of $500.00, which was paid and filed on September 11, 2003. Justice Hassell, who had earlier been sent a "courtesy copy" by mail from the plaintiff's counsel (in the hope that the former would find a solution to the problem without further litigation) then filed a "Demurrer, Plea to the Jurisdiction of the Court and Motion to Dismiss Petition for Writ of Quo Warranto" on September 16, 2003. At this point in time, Justice Hassell had not been formally served, and was not even a proper defendant in the matter until and unless the trial court issued the Writ of Quo Warranto. Counsel was advised by a Richmond Circuit Court Assistant Clerk to call back in several days. The Circuit Court was then closed due to Hurricane Isabel on September 18th and 19th, 2003.

On Monday, September 22, 2003, Judge Markow entered the order denying the appellant's Petition for Writ of Quo Warranto. The order was entered without advance notice to either counsel or with any hearing being set. Plaintiff's counsel, being unaware of the entry of September 22, 2003 order, mailed his response of "Motion to Quash Demurrer, Plea to the Jurisdiction of the Court and Motion to Dismiss Petition for Writ of Quo Warranto" with exhibits to the court on September 24, 2003.

When plaintiffs' counsel called Judge Markow's chambers on September 25, 2003, to obtain available dates for a hearing on the Petition, he was advised that a Final Order had already been entered on September 22, 2003. The Circuit Court mailed and faxed a copy of the order to plaintiffs' counsel the same day.

The Plaintiffs filed a Notice of Appeal on October 22, 2003, followed by its proposed Statement of Facts. The trial court disagreed with the content of the proposed Statement and scheduled a hearing for the entry of the court's alternate Statement of Facts. Plaintiffs' counsel received notice of hearing by mail one day in advance of the hearing, which was held on November 13, 2003, with Plaintiff's counsel in attendance. Judge Markow then entered a Corrected Statement of Facts on November 17, 2003.

QUESTIONS PRESENTED

1.Was it ethical and lawful for a Circuit Court judge who has recused himself from a case in accordance with Virginia Code §17.1-105(B) of the Code of Virginia, to suggest to the Virginia Supreme Court which judge should be designated in place of the recusing judges?

2.Was it proper for the Chief Justice to designate a jurist who was suggested by a trial court judge who recused himself along with others in the same circuit because it would have been improper for them to preside at the trial?

3.If it was improper for the Chief Justice to designate a substitute judge suggested by a recusing judge, does a Writ of Quo Warranto lie as a proper legal way to undo the appointment?

4.Did the Plaintiffs have standing to bring the Writ of Quo Warranto?

5.If the Plaintiffs have standing to bring the Writ of Quo Warranto, what relief can they be granted?

6.In all the circumstances, would it be proper for the Plaintiffs to be awarded sanctions against Justice Hassell?

7.Was the trial judge intimidated by the content of improper pleadings filed by Justice Hassell?

STATEMENT OF FACTS

On or about May 7, 2003, a Petition for the Dissolution of the Hospital Authority of the City of Petersburg (Case No.: CH03000189-00) was filed with the Circuit Court of the City of Petersburg, the goal of which was to obtain the court's authority to sell Southside Regional Medical Center, a charitable institution, to a for-profit company. On May 16, 2003, Judge James F. D'Alton, Jr., a judge of that court, entered an order which stated:

ORDER

It appearing that all of the judges of this court are so situated in respect to this case as to render it improper, in their opinion, for them to preside at the trial, therefore, Thomas V. Warren, James F. D'Alton, Jr., and Pamela S. Baskervill recuse themselves from the trial of this case.

On or about May 20, 2003, Judge D'Alton wrote a letter to the counsel involved in that matter (which matter did not include the present appellants) advising them that the Virginia Supreme Court had designated Donald H. Kent to hear the matter. On June 4, 2003, Justice Hassell entered an order at the Supreme Court designating Donald H. Kent as the Judge to take the place of the recused judges. Justice Hassell made this designation because Judge D'Alton had requested that the Supreme Court do so (see transcript of conversation attached as Exhibit "A").

When the present appellants learned that a judge who was apparently conflicted out of hearing the matter had suggested who the designee should be, they filed the Petition for Writ of Quo Warranto which is presently under appeal to this court.

ASSIGNMENTS OF ERROR

The Plaintiffs set forth their assignments of error to Judge T. J. Markow's final Order entered September 22, 2003, as follows:

1. The court erred in determining that the Plaintiffs failed to plead sufficient facts to show that they have standing to maintain a Petition for a Writ of Quo Warranto, and further erred in finding that "the Plaintiffs have failed to plead any facts showing they are more than citizens or taxpayers or that they have suffered any special injury by Chief Justice Hassell's appointment of Judge Kent";

2. The court erred in finding that "there has been no allegation that the appointment of Judge Kent was procedurally defective or that Chief Justice Hassell lacked the legal authority to appoint Judge Kent";

3. The court erred in finding that sufficient facts were not pled to support a finding at law that the extraordinary Writ of Quo Warranto is authorized in this case under Virginia Code §8.01-636;

4. The court erred in denying and dismissing the Petition for a Writ of Quo Warranto;

5. The court erred in denying the Plaintiffs an opportunity for a hearing, and an opportunity to amend or correct any technical defects;

6. The court erred in rendering an undeniably incorrect description of the content of the Plaintiffs' pleadings, setting a hearing date for arguing the Statement of Facts without any advance telephone coordination with counsel's office; and by failing to list the argument on the court's public docket sheets on display in the court's hallways.

7. The trial court erred in allowing itself to be intimidated by Justice Hassell's putative pleadings, and by not allowing the Plaintiffs ten days to file their response before deciding the case.

PRINCIPLES OF LAW, ARGUMENT

AND AUTHORITIES RELATING TO ASSIGNMENTS OF ERROR

I.THE APPELLANTS PLED SUFFICIENT FACTS TO SHOW THEY HAVE STANDING TO MAINTAIN A PETITION FOR WRIT OF QUO WARRANTO, AND FURTHER PLED FACTS SHOWING THEY ARE MORE THAN CITIZENS OR TAXPAYERS' AND THAT THEY HAVE SUFFERED (OR STAND TO SUFFER) SPECIAL INJURY BY JUSTICE HASSELL'S APPOINTMENT OF JUDGE KENT.

(See Assignments of Error 1, 2, 3, 4, 6 and 7.)

Virginia Code §8.01-637(A), as amended, provides in relevant part that "any interested person may apply ... for a Writ of Quo Warranto."

The Appellants stated in the first paragraph of their Petition for the Writ the nature of their interests: They are "comprised of persons who are interested in insuring that all citizens of Petersburg have access to hospital emergency room services in the City of Petersburg regardless of ability to pay. They have opposed the dissolution of the Hospital Authority of Petersburg and the sell of Southside Regional Medical Center, formerly operated on a non-profit charitable basis, to a for-profit corporation, because services to the indigent population, their families, and/or themselves would be reduced or limited." It is rather curious that Judge Markow's final order of 9/22/03 in this matter state rather curiously: "The plaintiffs have failed to plead any facts showing that they are more than citizens or taxpayers or that they have suffered any special injury by Chief Justice Hassell's appointment of Judge Kent." This is curious, because the plaintiffs never alleged anywhere in their pleadings that they are "taxpayers", and interested parties do not have to allege in the past tense that they have already suffered a special injury; They have already indicated the imminent danger that they perceive to medical services to themselves and their families in the City of Petersburg. It would seem rather obvious that a for-profit medical facility has to charge more than a not-for-profit charitable institution.

In any event, had Judge Markow believed more detail was in order, the appellants would have amended their complaint to add the detail that Judge Markow felt was missing; but the appellants were denied this opportunity.

II.THE APPELLANTS DID, IN FACT, ALLEGE THAT THE APPOINTMENT OF JUDGE KENT WAS PROCEDURALLY DEFECTIVE AND THAT JUSTICE HASSELL LACKED THE AUTHORITY TO APPOINT JUDGE KENT IN THESE CIRCUMSTANCES.

(See Assignments of Error 1, 2, 3, 4, 6 and 7).

The Writ of Quo Warranto, once a common-law writ, has been superseded by Virginia Statute §8.01-635, et seq. The Writ of Quo Warranto "maybe issued and prosecuted in the name of the Commonwealth", inter alia, "against a person for the misuse or nonuse of any privilege conferred upon him by law." (See Virginia Code §8.01-636(2), as amended).

Certainly, the Chief Justice has the "privilege" conferred upon him by law under Virginia Code §17.1-105(B) to designate Judges:

If all the judges of any court of record are so situated in respect to any case, civil or criminal, pending in their court as to render it improper, in their opinion, for them to preside at the trial, unless the cause or proceeding is removed, as provided by law, they shall enter the fact of record and the clerk of the court shall at once certify the same to the Chief Justice of the Supreme Court, who shall designate a judge of some other court of record or a retired judge of any such court to preside at the trial of such case.

Yet, the obvious intent of this section B is to have someone other than the recusing judge, i.e., a neutral party, accomplish the designation in the given circumstances. It is Justice Hassell's either knowing willingness or negligence in permitting a judge or judges for whom presiding would be improper to yet nominate the designee that amounts to his "misuse" of his privilege to designate judges.

In addition, Paragraphs 11-14 of the Petition for Quo Warranto clearly allege that the appointment of Judge Kent by Justice Hassell was defective.

III.SUFFICIENT FACTS WERE PLED TO SUPPORT A FINDING AT LAW THAT THE EXTRAORDINARY WRIT OF QUO WARRANTO IS AUTHORIZED IN THIS CASE UNDER ANY SUBSECTION OF VIRGINIA CODE §8.01-636;

(See Assignment of Error numbers 1, 2, 3, 4, 6 and 7)

While an applicant is not entitled to the Writ of Quo Warranto as a matter of absolute right, the matter being within the exercise of judicial discretion (Watkins v. Venable 99 Va. 440 39 S.E.147 (1901) and Albemarle Oil & Gas Company v. Morris, 138 Va. 1, 121 S.E. 60 (1924), Judge Markow abused his discretion in failing to issue the Writ. The plaintiffs have stated a legitimate interests in the matter of the sell of the hospital; and they have alleged that Justice Hassell has abused his statutory powers in appointing the suggested judge. There is simply no other way to put an end to this problem (other than, perhaps, the Supreme Court utilizing its administrative powers in issuing appropriate orders) to resolve the problem complained of.

IV.THE COURT SHOULD NOT HAVE DENIED AND DISMISSED THE PETITION FOR A WRIT OF QUO WARRANTO WITHOUT GRANTING AN OPPORTUNITY FOR ARGUMENT AND TO CORRECT THE ALLEGED DEFECTS IN THE PLEADING.

(This relates to Assignments of Error numbers 1, 2, 3, 4, 5 and 6.)

Judge Markow abused his discretion in denying and dismissing the Petition for Quo Warranto. His conclusory statements and his final order are clearly contradicted by the contents of the Petition. By failing to allow an opportunity for plaintiffs' counsel to plead on the record, he also denied the appellants the opportunity to give any additional details the court would have wanted; to correct the misapprehensions that are quite apparent in the final orders; and preserve their objections in the usual way. The arguments from the previous sections are also incorporated herein.

V.THE COURT SHOULD HAVE SET A HEARING DATE FOR ARGUING THE STATEMENT OF FACTS WITH ADVANCE TELEPHONE COORDINATION WITH COUNSEL'S OFFICE; AND SHOULD HAVE LISTED THE ARGUMENT ON THE COURT'S PUBLIC DOCKET SHEETS ON DISPLAY IN THE COURT'S HALLWAYS.

(This relates to Assignments of Error numbers 5, 6, and 7.)

The appellants believe that their due process rights under the Fourteenth Amendment to the U.S. Constitution have been seriously impaired by the actions of Justice Hassell and the trial court judge in this matter. In circumstance and circumstance, attempts were made to protect Justice Hassell and to give the plaintiffs' counsel and difficult time: Argument was scheduled on the Statement of Facts without prior telephone coordination with the Judge's Chambers, the written notice being received only 24 hours in advance; the hearing was not displayed on the court's public docket sheets; the difficulties that were encountered in attempting to get a proper Statement of Facts, all point inevitably to Judge Markow's being intimidated by the pleadings against Justice Hassell.

CONCLUSION

The integrity of the Virginia Supreme Court is at issue here. Will its members have the courage to acknowledge that a mistake has been made in the way it conducts business, correcting the problem in a transparent way; or will it slough off the matter with mutterings about standing or insufficient pleadings?

Perhaps those who believe judges are above reproach will think that the appellant has an overly cynical or conspiratorial interpretation of the actions of the Petersburg judge who suggested the jurist to be designated. But it must be asked again: What is the likelihood that a judge who has conflicts which make it improper to hear a case because of possible pecuniary ramifications for friends or family) will propose the designation of another jurist whose judicial opinions or philosophy on certain issues could present a danger to the interests of those family members or friends?

The designation process contemplated by Virginia Code §17.1-105(B) clearly exists to avoid the oxymoronic result of having a judge who has a conflict of interest decide who should hear a case. To allow the instant circumstances to repeat themselves would be a stain on the judiciary, because the appearance of impropriety is so obvious; how long has this practice been allowed whereby those with an interest have been able to pick the judge to be designated? The best way to prevent this behavior from repeating itself would be to invalidate the appointment and orders of a judge so designated - a sort of "fruit of the poisonous tree" doctrine for the judiciary. Nor should judges be permitted to sua sponte volunteer themselves for a particular designation.

Finally, Justice Hassell's attempt to intimidate appellant's counsel with a motion for personal sanctions is truly beyond the pale of acceptable behavior - particularly where a writ had not even been issued; and where the accusations that counsel was `merely going on a fishing expedition' were embarrassingly trumped with the proffered transcript. The fact that a communication to the trial judge by the Chief Justice was not ex parte does not render it proper; expressing that what he did was clearly lawful and that the trial judge had no power over him was obviously intended to intimidate the trial court. It worked.

The Appellants ask that the court determine that the facts of this case are a proper subject for a Quo Warranto proceeding; to remand the matter to the trial court with instructions to permit amendment of the Petition if any technical defects exist, in the interests of justice, and to award the Appellant's counsel at least nominal sanctions which will demonstrate that not even the Chief Justice of the Virginia Supreme Court is above the law.

Respectfully submitted,

COMMONWEALTH OF VIRGINIA, ex rel.

The Concerned Citizen of Petersburg,

an Unincorporated Association

[1]This is a strong word because it does not, by itself, describe the magnitude of the breach. At the very least we are speaking of an appearance of impropriety which has yet to be addressed or corrected by those responsible.