Richmond Times-Dispatch, August 16, 2008

by Jeff Schapiro

Deadlock in the legislature gave governor the picks; legislators still must approve

Gov. Timothy M. Kaine is filling prized judgeships tossed him by a deadlocked legislature with, among others, the veteran judge from the trial of the mastermind of the 2002 Washington-area sniper shootings.

Two other key posts went to a Chesterfield County judge and a Richmond lawyer.

LeRoy F. Millette Jr., who as a circuit judge in Prince William County sentenced John Allen Muhammad to death for one of 10 sniper killings, rises to the Virginia Supreme Court from the Court of Appeals. Millette succeeds G. Steven Agee, now a federal appeals judge. Kaine appointed Millette to the intermediate court last year.

Kaine named Chesterfield Circuit Court Judge Cleo F. Powell to succeed Millette on the appeals court. She is the first black woman on the midlevel court.

Also, Richmond regulatory lawyer James C. Dimitri, whose clients include the electric utility Dominion Virginia Power, was selected for the State Corporation Commission. He fills a vacancy left by the December retirement of Theodore V. Morrison Jr.

The appointments fell to the governor because of an impasse in the General Assembly. Rivalries among lawmakers and partisan tensions repeatedly prevented agreement on some of the state's top judicial posts.

Democrat Kaine's choices still must be endorsed by the legislature, which is required by the state constitution to elect all judges.

Yesterday, the Republicans who control the House of Delegates gave no assurance they will back Kaine's selections when the General Assembly returns in January. If not approved, the appointees would lose their jobs.

Other than Millette, whom he knows personally, House Courts of Justice Committee Chairman David B. Albo, R-Fairfax, said he is not prepared to endorse Kaine's nominees.

"I don't know whether I'm going to like them or not," said Albo, repeating his warning from last winter that the House GOP majority will not be bound by Kaine's preferences.

During an appearance in Virginia Beach, Kaine said House Republican leaders had not expressed to him objections to the three when apprised in advance of a pool of judicial prospects.

Kaine said Republicans previously said they would tell him ahead of time if they disliked his picks. Democrats control the Virginia Senate.

"One question is whether Governor Kaine secured a commitment from the GOP in the General Assembly to elect the three appointees in January," University of Richmond law professor Carl Tobias said in an e-mail.

"If not, the appointees may only briefly hold their positions."

Millette, 59, is a Pennsylvania native who grew up in Alexandria and Fairfax County. He was a prosecutor in Prince William before he began his judicial career in 1990 in general district court.

Powell, 51, born in Roanoke Rapids, N.C., was mentioned this spring for the SCC because, among other things, she had been a lawyer for Dominion Virginia Power. She is a former general district court judge and senior assistant attorney general.

Dimitri, 57, was an earlier prospect for the corporation commission, but Republicans balked because of his Democratic pedigree. The Somerville, N.J., native donated more than $5,000 to Kaine's gubernatorial campaign and inaugural committee.

Kaine's office released letters from environmental groups supporting Dimitri's selection for the SCC, for which Dimitri served as a lawyer for six years before joining megafirm McGuireWoods.

Contact Jeff E. Schapiro at (804) 649-6814 or jschapiro@timesdispatch.com.

Staff writer Bill Geroux contributed to this report.