by James C. Sherlock
Updated on February 23 at 2:15 pm
In a series of ongoing reports, Ray Locker, the investigative and corporate editor of the Checks and Balances Project, laid out a story with far-reaching implications.
Norfolk Circuit Court Chief Judge Mary Jane Hall dismissed a case, Chesapeake Hosp. Auth. v. Comm’r Health Status, where Sentara was a defendant included.
From that report, it seems that she could have refused for two reasons:
- prior to his appointment to the bench, Judge Hall not only represented Sentara for years in another COPN case; but also
- of the judge co-attorney in that previous COPN case, Jamie B. Martin of Williams Mullin, was Sentara’s lawyer in Chesapeake Hosp. Auth. v. State Health Commissioner.
From Mr. Locker’s first article:
The Canons of Judicial Conduct of Virginia say the following about judicial impartiality:
“(1) A judge must disqualify himself in a process in which the judge’s impartiality can be reasonably questioned”
Further on Canon 2,
“The test for the appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to fulfill judicial responsibilities with integrity and impartiality is impaired.”
My own additional research on the published opinions of the Norfolk Circuit Court shows that Judge Hall judged the cases in that court involving Sentara, as well as in Chesapeake Hosp. Auth. v. Comm’r Health Status. This case was brought before the Chesapeake Circuit Court.
Virginia Supreme Court President, charged with overseeing judicial conduct, attributed the case to Judge Hall
Virginia Supreme Court President Limões asked Judge Hall to sit by appointment in Chesapeake in place of the First Circuit Judges (Chesapeake) and hear the case. She accepted. He made the appointment on July 31, 2018.
There would be three possible reasons for importing a judge:
- Chief Justice Limões assessed that there were no judges on the Chesapeake circuit with experience to hear a COPN case; or
- he judged that the judges on the Chesapeake circuit were in conflict or could have been considered so; or
- The Chesapeake circuit had more cases than judges at the time.
There is no indication in the record of why Judge Hall was imported in this case.
Chesapeake Hospital Authority d / b / a Chesapeake General Hospital v. State Health Commissioner, et al. (Seated)
I am not a lawyer, but I will try my luck as a reporter.
In 2019, Judge Hall heard Chesapeake Hosp. Auth. v. Comm’r Health Status at Chesapeake Circuit Court. This case pitted Chesapeake Regional Medical Center (plaintiff) against the Commissioner of Health and Sentara.
The plaintiff claimed that the Health Commissioner had wrongly pronounced himself against the plaintiff in a COPN decision. Sentara had become part of the process within the Virginia Department of Health and, in the process, successfully challenged a recommendation from the VDH COPN team in favor of Chesapeake. Thus, Chesapeake’s lawyers appointed Sentara as a defendant in the Circuit Court case.
Sentara was represented by Mrs. Martin. The Health Commissioner was represented by Sean J. Murphy, Deputy Attorney General, Virginia Attorney General’s Office.
Judge Hall found the defendants.
The case was appealed to the Virginia Court of Appeals and Judge Hall was upheld.
What is to be done?
So, we are left with the following:
- Mr. Locker has extensive experience and an excellent reputation as an investigative reporter and editor. Your articles provide links to the evidence;
- The President of Justice Lemons has an excellent reputation. In this edition, he received the prestigious 2019 Lewis F. Powell Award for Professionalism and Ethics from American Inns of Court, presented by the United States Supreme Court associate judge Neil Gorsuch in October 2019. I find nothing in his professional to history that would suggest that he would have played his part in choosing Judge Hall for this case if he had known of his conflict;
- Judge Hall’s presence in the court, in the absence of conflicts of interest, would have made a lot of sense in Chesapeake Hosp. Auth. v. Comm’r Health Status given their training in COPN legislation and regulation;
- Judge Hall, from the court’s opinion records, heard at least three Sentara cases;
- Mr. Locker reports that Judge Hall worked on a long COPN case representing Sentara before becoming a judge;
- He also reports that Ms. Martin, Sentara’s lawyer, worked on the same Sentara COPN case with Judge Hall before becoming a judge;
- There is no record that Ms. Martin, a court official, informed the opposing attorney, as reported by Mr. Locker, about the previous representation of Sentara by the judge or her own previous professional relationship with the judge in support of Sentara.
- Ms. Martin is an excellent and experienced COPN lawyer. I read a transcript of his work at a trial hearing that preceded the Commissioner’s decision which was the subject of the case;
- The Sentara Legal Director who hired Mrs. Martin may not be aware of any potential conflicts with the Circuit Court judge in Chesapeake Hosp. Auth. v. Comm’r Health Status.;
- There is no indication that the Court of Appeals, CRMC lawyers or Assistant AG Murphy representing the Commissioner were aware of any potential conflict;
The risk / reward for these apparent breaches is simply not computed to the advantage of any risk taker. The potential conflict of interest proved to Mr. Locker and me to be readily available on the web and would be there for any of the lawyers to find.
In simple terms, taking legal and career risks like those indicated in the report seems crazy. There must be some explanation. I reached out to the parties and received no response.
A practicing lawyer in Norfolk, who is good at her job, is pretty sure she worked for Sentara, which is based there. When she gets on the bench, however, she needs to follow the rules.
The presence as Sentara’s principal lawyer in Chesapeake Hosp. Auth. v. Comm’r Health Status from the previous co-attorney of the judge representing Sentara, however, practically breaks the tie, if any.
If that judge can try his former client, whose primary attorney was his former partner in a case that represents the same client, there are no rules.
She should have refused.
The Virginia Supreme Court exercises oversight over the conduct of judges and lawyers. That body can find that out.
As an aside, I suspect that Chief Justice Lemons did not like it.
Note: Late reply from the Virginia Supreme Court
by Kristi S. Wright
Director of Legislative and Public Relations
Office of the Executive Secretary, Supreme Court of Virginia
100 N. Ninth Street, Third Floor
Richmond, VA 23219
“As you may know, refusal decisions are usually left to the judge’s discretion and the parties’ concerns about a judge presiding over a case can be raised by the parties in the lower court or on appeal. The Judicial Investigation and Review Commission is charged with investigating complaints about judicial misconduct. “
State Supreme Court Response Block
A response to my February 22 inquiry on February 23 at 11:41 am from the manager of the Norfolk Circuit Court Judicial Court provides information that the referenced case was filed at the Chesapeake Circuit Court, not the Norfolk Circuit Court . The President of the Lemons Supreme Court of Justice asked Judge Hall to sit by appointment in Chesapeake and hear the case. Appropriate changes were made to the assay.
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