by James C. Sherlock
Updated Feb. 23 at 2:15 pm
In an ongoing series of reports, Ray Locker, enterprise and investigative editor of the Checks and Balances Project, has exposed a story with far-reaching implications.
Norfolk Circuit Court Chief Judge Mary Jane Hall sat in judgment on a case, Chesapeake Hosp. Auth. v. State Health Comm’r, in which Sentara was an included defendant.
It appears from that reporting that she could have recused herself for two reasons:
- prior to her appointment to the bench Judge Hall not only had represented Sentara for years in another COPN case; but also
- the judge’s co-attorney on that previous COPN case, Jamie B. Martin of Williams Mullin, was Sentara’s attorney in Chesapeake Hosp. Auth. v. State Health Comm’r.
From Mr. Locker’s first article:
The Virginia Canons of Judicial Conduct says this about judicial impartiality:
“(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned”
Further under Canon 2,
“The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity and impartiality is impaired.”
My own additional research into published Norfolk Circuit Court opinions shows that Judge Hall sat in judgment on cases in that court involving Sentara as well as on Chesapeake Hosp. Auth. v. State Health Comm’r. This case was filed in Chesapeake Circuit Court.
The Chief Justice of the Virginia Supreme Court, who is charged with overseeing judicial conduct, assigned the case to Judge Hall
Chief Justice Lemons of the Virginia Supreme Court asked Judge Hall to sit by designation in Chesapeake in place of the judges of the First Judicial Circuit (Chesapeake) and hear the case. She accepted. He made the appointment on July 31, 2018.
There would be three possible reasons to import a judge:
- Chief Justice Lemons assessed that there were no judges on the Chesapeake Circuit with the experience to hear a COPN case; or
- he assessed that the Chesapeake Circuit judges were conflicted or could have been considered so; or
- The Chesapeake Circuit had more cases than judges at that point.
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. (Sentara)
I am not an attorney, but I am going to try my hand at this as a reporter.
In 2019 Judge Hall heard Chesapeake Hosp. Auth. v. State Health Comm’r in Chesapeake Circuit Court. That case pitted Chesapeake Regional Medical Center (plaintiff) against both the Health Commissioner and Sentara.
The plaintiff contended that the Health Commissioner had improperly ruled against the plaintiff in a COPN decision. Sentara had been made party to the process within the Virginia Department of Health and in that process successfully challenged a VDH COPN staff recommendation in favor of Chesapeake. Thus Chesapeake’s attorneys made Sentara a defendant in the Circuit Court case.
Sentara was represented by Ms. Martin. The Health Commissioner was represented by Sean J. Murphy, Assistant Attorney General, Office of the Attorney General of Virginia.
Judge Hall found for 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 a great deal of experience and an excellent reputation as an investigative reporter and editor. His articles provide links to the evidence;
- Chief Justice Lemons has a superb reputation. To the point in this issue, he was awarded the prestigious 2019 American Inns of Court Lewis F. Powell Award for Professionalism and Ethics that was presented by Associate Justice of the U.S. Supreme Court Neil Gorsuch in October of 2019. I find nothing in his professional history that would suggest he would have played his role in selecting Judge Hall for this case had he known of her conflict;
- Judge Hall’s presence on the bench, absent conflicts of interests, would have made a great deal of sense in Chesapeake Hosp. Auth. v. State Health Comm’r given her background in COPN law and regulation;
- Judge Hall, from the court opinion records, has heard at least three Sentara cases;
- Mr. Locker reports that Judge Hall worked on a lengthy COPN case representing Sentara before becoming a judge;
- He also reports that Ms. Martin, the attorney for Sentara, worked on that same Sentara COPN case with Judge Hall before she became a judge;
- There is no record that Ms. Martin, an officer of the court, made opposing counsel aware, as reported by Mr. Locker, of either the judge’s previous representation of Sentara or her own previous professional relationship with the judge in support of Sentara.
- Ms. Martin is an excellent and very experienced COPN attorney. I have read a transcript of her work in an adjudication hearing that preceded the Commissioner’s decision that was the subject of the case;
- Sentara’s Chief Legal Officer who hired Ms. Martin may not have known about any potential conflicts with the Circuit Court trial judge in Chesapeake Hosp. Auth. v. State Health Comm’r.;
- There is no indication that the Court of Appeals, the CRMC attorneys or Assistant AG Murphy representing the Commissioner knew anything of potential conflicts;
The risk/reward for these seeming violations simply does not compute to the advantage of any risk taker. The potential conflict of interests proved to Mr. Locker and me to be readily available on the web and would have been there for any of the attorneys to find.
Simply stated, taking career and legal risks like the ones indicated in the reporting seem crazy. There must be some explanation. I reached out to the parties and received no response.
An attorney with a health care practice in Norfolk who is good at her job is pretty much assured to have worked for Sentara, which is headquartered there. When she ascends the bench, however, she needs to follow the rules.
The presence as lead attorney for Sentara in Chesapeake Hosp. Auth. v. State Health Comm’r of the judge’s previous co-attorney representing Sentara, however, pretty much breaks the tie if there was one.
If that judge can sit in judgment of her old client whose lead attorney was her old partner on a case representing that same client, there are no rules.
She should have recused herself.
The Supreme Court of Virginia exercises oversight over the conduct of judges and attorneys. That body can figure it out.
As an aside, I suspect the Chief Justice Lemons is not amused.
Note: Late response from the Supreme Court of Virginia
from 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 be aware, decisions to recuse are generally within a judge’s discretion and parties’ concerns regarding a judge presiding over a case may be raised by the parties at the trial court level or on appeal. The Judicial Inquiry and Review Commission is charged with investigating complaints about judicial misconduct.”
Response from the State Supreme Court
A response to my Feb 22 inquiry on Feb 23 at 11:41 AM from the Judicial Court Manager of the Norfolk Circuit Court provides the information that the referenced case was filed in Chesapeake Circuit Court, not Norfolk Circuit Court. Chief Justice Lemons of the Supreme Court asked Judge Hall to sit by designation in Chesapeake and hear the case. The appropriate changes have been made to the essay.