Assembly Punts Nominees to Governor

Assembly Punts Nominees to Governor

Dawkins, Niebauer up for court appointments, appear in Richmond hearings.

The General Assembly, to avoid a controversial floor fight over two judicial appointments, has agreed to allow Governor Mark Warner (D) to make the appointments to the Alexandria Circuit Court and the Juvenile and Domestic Relations court benches. The Senate had agreed to support the local delegations’ candidates but the House had not.

The problems began when Republican members of the House Courts and Justice Committee held their own interviews after the city’s legislative delegation had selected Judge Nolan Dawkins to fill the Circuit Court vacancy, which was created when Judge Alfred Swersky retired. The Republican delegation, which consisted of members from throughout the state, selected local attorney Tim Battle.

The local delegation also selected Jean Niebauer to fill the Juvenile and Domestic Relations Court vacancy, which was created by the retirement of Judge Stephen Rideout. Republicans selected Assistant U.S. Attorney Constance Frogale to fill this vacancy.

The agreement will allow Warner to appoint Judge Nolan Dawkins but the Juvenile and Domestic Relations vacancy will be filled by an appointment from the chief judge of the city’s Circuit Court. The appointments would then be ratified by the General Assembly during the 2005 legislative session.

“I am just very disappointed that the members of the House did not recognize the quality of our designees for these vacancies and hold firm to the practice of allowing local legislative delegations to make these appointments,” said Senator Patricia S. “Patsy” Ticer (D-30). “The assumption is that the governor will now make the appointment to Circuit Court and we will go from there. The judges do have to be reconfirmed in January, but by then they will have served some significant time on the bench and things should be fine,” said Ticer.

THE HOUSE AND SENATE Courts of Justice committees met jointly in Richmond last week to hear testimony from all four nominees – two nominees that were selected by Alexandria’s own legislative delegation and the two who were selected by Republican members of the committee.

“As you have seen here today, the support of the legislative delegation from every jurisdiction has been given great weight,” said Alexandria Delegate Brian Moran (D-46) “We hope that the committees will strongly consider this in these cases as well.”

The legislative delegation chose Nolan Dawkins to fill the vacancy on the city’s Circuit Court bench, which was created by the retirement of Judge Alfred Swersky. Dawkins has served on the Juvenile and Domestic Relations bench since 1994. Before that, he was in private practice and in the City Attorney’s office in Alexandria. The Republican nominee for this vacancy is Tim Battle. Battle is an attorney in Alexandria and Fairfax County. He represents attorneys on many occasions, is a teacher and serves on an ethics panel.

“Have you ever represented a litigant in a domestic dispute,” asked Moran of Battle.

“No, but I have represented attorneys who have been involved in domestic cases,” Battle replied. “I don’t believe that every attorney has to specialize in every type of case. When people call me to do a will, I tell them that the last one I did was for Thomas Jefferson and I got a B-plus. I think he was satisfied. I work closely with other attorneys and refer clients appropriately.”

Senator Linda T. “Toddy” Puller (D-36) was interested in Battle’s place of residence. “I understand that you live in my District in Fairfax County,” she said. “I don’t believe that you have ever applied for one of our many judicial vacancies in the county. Are you aware that a judge must live in the area in which he serves? Are you planning to move to Alexandria if you receive this appointment?”

Battle responded, saying, “I have many ties to Alexandria,” he said. “I grew up there, went to school at Blessed Sacrament and at Bishop Ireton and continue to attend church at Blessed Sacrament. My wife and I moved just south of Alexandria because we wanted more room for our family when our children were growing up. If I am appointed to this position, I do intend to move back into the city,” he said.

Dawkins’ experience was not questioned.

“I knew when I applied for this vacancy that my achiles heal was that a child died in a case in which I made many decisions,” Dawkins said. “I made nine separate appealable decisions in this case and only one was appealed. That decision was upheld on appeal.

“As a judge in juvenile and domestic relations court, I see every type of situation. I did my best in this child’s case, just as I have done in every case in which I have been involved,” he said.

THE CASE, of course, was that of three-year-old Katelynn Frazier who died shortly after being returned from foster care to her biological mother. Alexandria Commonwealth’s Attorney S. Randolph Sengel spoke about that case before the committee.

“I am here to support Judge Dawkins,” Sengel said to the members of the committee. “Judges can only rule on what is before them. Given what Judge Dawkins knew, he made the same ruling that any judge in his position would have made.”

One member of the committee asked about responsibility for Katelynn’s death. “If you are saying that the judge did nothing wrong, then who dropped the ball,” he asked. “Was it the guardian ad litem or the other attorneys? Who was at fault?”

Sengel said, “If you say that the child’s mother and her boyfriend were ultimately responsible then you must place pinultimate responsibility with social services,” he said.

The committee also heard from a local minister, representatives of the Fairfax County Bar Association and the state Bar Association, all praising Dawkins’ experience and commitment to his community. More than 75 Alexandrians made the trip to Richmond to watch the committee hearings.

“We are very supportive of Judge Dawkins and are gratified at the number of folks who went to Richmond to show that support,” said Alexandria Mayor William D. Euille, who rode down on a bus with a number of city residents. “He is clearly the most qualified candidate and I hope that the members of the General Assembly will put aside partisan politics and do the right thing.”

THE OTHER vacancy is in Juvenile and Domestic Relations Court. The legislative delegation nominated Jean Niebauer, the director of Human Rights for Alexandria. The Republicans nominated Constance Frogale, an Assistant United States Attorney for the Eastern District of Virginia.

Before becoming involved in the city’s Office of Human Rights, Niebauer worked in private practice and as a legal aid attorney. “She is an advocate for all Alexandrians but mainly for Alexandria’s children,” Moran said. “And that doesn’t end at 5 p.m. She’s an advocate 24 hours a day, seven days a week.”

Niebauer was asked about her lack of criminal experience. “I do not have a great deal of criminal experience,” she said. “But in many instances, I prepared cases for clients up to the point of going to court and sometimes passed off those cases at the courthouse door because of the constraints of my position as a legal aid attorney,” she said.

Frogale has been with the U.S. Attorney’s office since 1985. Prior to that, she was an Assistant Commonwealth’s Attorney in Alexandria. “I have worked in Alexandria since 1978,” Frogale said. “I am very familiar with the city and look forward to serving in this capacity if I am appointed.”

All other nominees for judicial vacancies throughout the state who were supported by their legislative delegations had no opposition. “It is a tradition throughout the Commonwealth that judicial nominees are selected by the legislative delegation,” said Senator Patricia S. “Patsy” Ticer. “We have had a fair and impartial process to do so for many years. Judges should be selected without regard for Party affiliation. I can only hope that we put partisan politics aside and select the best qualified candidates for these positions.”