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Sunday, March 8, 2009

Dave Albo "digs out" and finds Judge Finch's "Performance Evaluation"

This just in... The Pitchfork Rebellion has obtained a copy of a letter dated March 5, 2009 from Delegate David Albo (Chairman of the House Courts of Justice Committee in VA) to Elizabeth Haring. Dave Albo says he cleaned up his desk this week and found Judge Finch's performance evaluation after telling her a month ago he threw it away.

A little background first... on January 15, 2009, Ms. Haring sent Dave Albo a FOIA request for Judge Finch's unofficial "performance" evaluation prepared by the Fairfax Bar Association. After himming and hawwing, Dave Albo told Ms. Haring he threw it away.

Ms. Haring, not to be deterred, sued Dave Albo on February 18, 2009, in a landmark VA Supreme Court case that is ongoing. Ms. Haring complained that Dave Albo destroyed a public document that she is entitled to under FOIA and asked for various forms of relief. The case challenges Judge Finch's re-appointment on the grounds it was procedurally defective, unlawful and illicit. The thrust of her case is that the state did not do an official Judicial Performance Evaluation for Judge Finch, even though it is mandated by law (VA Code 17.1-100). Instead, the Fairfax Bar Association, a private member organization which Judge Finch belongs to, sent an "evaluation" to the local delegation. This evaluation was the source upon which the local delegation relied in their decision to re-appoint Judge Finch.

Now, back to Dave Albo's March 5 letter to Ms. Haring. It states, in part, "Today, March 5, while "digging out" stacks of mail and information on my desk in the General Assembly building, I found one copy. Thus, I must amend my FOIA response."

Dave Albo goes on to say that the Fairfax Bar Association "evaluation" of Judge Finch was given to him on the assumption it would not be made available to the public. He then goes on to say that, although his position is that the evaluations "should be available to the public,"
he gave it to his attorney and will not give it to Ms. Haring.

To add insult to injury, Dave Albo copies the Fairfax Bar Association on the letter, advising them that future judicial evaluations he receives ,"will be made available to the public, if requested."

So, let's get this straight, Dave Albo will give other people judicial evaluations by the Fairfax Bar Association, but not give it to Ms. Haring? That's right, Dave Albo wants to force the issue and make Ms. Haring subpoena the evaluation in order to get it.

Dave Albo's position, which is not well taken or legally correct, is that the Fairfax Bar Association evaluation is his "working document" and therefore exempt from FOIA.

Sounds like Dave Albo is grasping at straws and trying to find some weak legal argument to keep Ms. Haring from getting Judge Finch's performance evaluation.

We'd like to know: does Dave Albo really think he can violate FOIA? The VA Supreme Court rescinded its order requiring the official Judicial Performance Evaluations to be secret. There is no statute or Rule of the VA Supreme Court which requires judicial evaluations to be secret.
So on what legal basis does Dave Albo think he can withhold a public document that is subject to FOIA? Yep, you guessed it, on the assumption that the document would not be made public. On a gentleman's ageeement.

Sorry Dave, but that does not cut it.


  1. “The results of these judicial performance evaluations then are distributed to the public via the media, the League of Women Voters and the Internet.”

    See . . .


    We need to think about an "initiative referendum" to get the MISSOURI PLAN going in Virginia.


  2. Ms. Haring's lawsuit was not a "landmark VA Supreme Court" case by any nature. Her case was refused by the Court 2 days after you posted this entry. If you are so concerned about setting the record straight you should blog the truth about these lawsuits and attacks from your so-called rebellion... for starters point out how they are largely without merit and your stories misleading at best.

  3. Anonymous, we stand by our account of Ms. Haring's VA Supreme Court lawsuit -- it was unprecedented in Virginia legal history. Often the VA Supreme Court refuses petitions for writs on the basis the actions of the defendants are discretionary. Notably, the Court did NOT take that position in her case. Nor did the court give any legal reasoning for its refusal, which occurred two days AFTER our post. Moreover, the Defendants Dave Albo and Henry Marsh did NOT deny any of the allegations in her petition. Whether our law-makers can appoint judges in a manner contrary to the statutory scheme is a legitimate and important legal question.

  4. Anonymous, A landmark case is one of great magnitude and importance. The fact that the VA Supreme Court did not grant Ms. Haring's petition does not diminish the importance of that case. The VA Supreme Court, in its brief ruling, merely stated it was of the opinion not to grant the relief she prayed for; the court did not provide any reasoning why it was of this opinion.