RICHMOND, Va. (WAVY) - Justice William Mims is one of seven State Supreme Court justices who will decide whether tolls at the Downtown and Midtown Tunnels are constitutional. It's a decision that could cost drivers in Hampton Roads a lot of money, and while some question Mims’ interest in the case, he has said little in defense and has given no signs of recusing himself.
Arguments on both sides of the case were heard in the Richmond courtroom Wednesday. One side argues it is unconstitutional for the Virginia Department of Transportation and its private partner to have the power to set tolls without regulation from an elected body. The other side says the tolls are not taxes that need an elected body to regulate, but user fees to fund a rehabilitation project on the tunnels.
The question of Justice Mims’ interest in the case has several facets. First, the case is ultimately challenging a piece of legislation he voted for as a member of the House of Delegates in 1995. Second, Mims was a partner at the same law firm as the head lawyer arguing VDOT’s side of the tunnel tolls case, attorney Stuart Raphael.
A third facet has to do with Mims – as a state senator in 2002 -- sponsoring a resolution to create an oversight office in the transportation department for public-private partnerships.
WAVY.com called the State Supreme Court and gave a staffer questions to ask Justice Mims. Katya Herndon, a spokeswoman for the office of the executive secretary of the state supreme court, responded: “Justice Mims does not know Mr. Raphael personally, and they never worked on any matter together. There is no word on his recusing himself from the case."
That is the first and only statement WAVY.com has received from the court on Justice Mims's impartiality.
Raphael is a partner at Hunton & Williams Law Firm. Mims was a partner at the large law firm for two months in 2010.
Virginia's Canons of Judicial Conduct says “a judge should disqualify himself if the judge served as a lawyer in the mater in controversy."
Mims did not serve as a lawyer in any case regarding the 1995 legislation being challenged in the tunnel tolls case. That legislation – the Public-Private Transportation Act – came to Hunton & Williams after Mims left the firm.
But that does not dismiss the fact that Mims showed favor toward the Public-Private Transportation Act when he voted in support of it along with 98 other House members in 1995.
“A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned,” reads another section of the Canons of Judicial Conduct for the State of Virginia.
Attorney Steve Heretick, who has argued many cases before the State Supreme Court, believes there is reasonable question for Justice Mims’ impartiality.
"He is being called on as a justice to pass on a bill he voted for as a member of the legislature,” Heretick said.
Heretick also says Mims has not addressed the issues that call into question his impartiality, which the judicial conduct canons also require: "A judge should disclose information the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification."
Heretick says at the very least, Mims should have said something like this at the beginning of Wednesday’s hearing: "This attorney is from my former law firm, and that presents a potential conflict, and I would like council to understand what this relationship is, and I want council to tell me whether they are comfortable with my remaining as a judge in this case."
"Knowing what his background is, I think anytime someone in Hampton Roads pays that toll, that person will be wondering if they were treated fairly by the Virginia Supreme Court in this decision," Heretick said.
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