SCC continuity becomes a political battlefield Once a model of continuity, SCC becomes casualty of assembly politics

RICHMOND - For more than a century, the State Corporation Commission has been a model of continuity in Virginia government while overseeing some of the state's most critical industries - electric utilities, insurance companies, banks and, for a time, railroads and telephone companies.

But the election of judges to the three-member commission has become a partisan battlefield at the General Assembly, which failed on Wednesday to fill a vacancy on the SCC created by the legislature's removal of a recently elected judge for the second time in three years for political reasons.

The SCC currently has two judges - Judith Jagdmann and Jehmal Hudson - and the third slot remains vacant.

The legislature's failure on Wednesday to replace Angela Navarro, who Democrats elected last year, came two years after that same Democratic majority had summarily replaced Patricia West. Republicans had elected her in 2019 to fill a vacancy on the SCC that had languished for a year because legislators couldn't agree on a new judge. Republicans retaliated against Navarro this year after regaining control of the House.

"I wish the legislature would understand the importance of what the SCC does and not trifle with replacing a judge," said former SCC Judge Ted Morrison, who spent 20 years as a Democratic delegate from Newport News before serving 18 years on the commission.

Some legislators involved in the messy process of electing judges share his dismay, as do people outside of the assembly who rely on the SCC and its staff to protect consumers, while carrying out legislative mandates for energy regulation.

Those mandates include the requirements of the Virginia Clean Economy Act, which the legislature adopted in 2020. It directed the SCC to approve a $9.8 billion off-shore wind farm that raises the state's investment in renewable energy and the risks for electric utility customers of Dominion Energy, Virginia's largest electric utility monopoly.

"I think it is unfortunate that the commission has ended up being sort of a political football," said Will Cleveland, an attorney with the Southern Environmental Law Center, based in Charlottesville. "It has not been able to just have the full complement of judges needed to run the organization the way it deserves to be run."

"The commission's oversight and implementation of the Virginia Clean Economy Act is vital to making sure that we achieve what we were trying to achieve through that legislation," Cleveland said.

Sen. Creigh Deeds, D-Bath, who co-chairs the Senate Judiciary Committee and serves on the Commerce and Labor Committee that oversees the SCC, also lamented the political stalemate.

"This is a critical job at a critical time," said Deeds, who added that "the SCC position is probably more important to me - and I think to most Virginians - than the [state] Supreme Court vacancies we filled last spring."

Sen. Scott Surovell, D-Fairfax, who led the Senate negotiating team, agrees with the urgency of filling the empty seat.

"I think the SCC is the most important entity in state government that nobody has heard of," Surovell said on Saturday. He added: "Everybody recognizes it's important."

The assembly has elected two different judges - first West and then, a year later, current commissioner Hudson - to succeed Judge James C. Dimitri, who retired in early 2018 after 10 years on the commission.

Last year legislators elected Navarro to fill the unexpired term of Judge Mark Christie, who joined the Federal Energy Regulatory Commission after 17 years on the SCC. This year Republicans refused to re-elect Navarro for a full six-year term.

On Wednesday the Republican-controlled House and Democratic-controlled Senate deadlocked during a one-day special session called to elect a judge to replace Navarro. House Republicans favored Meade Browder, consumer counsel under Democratic and Republican attorneys general. Senate Democrats backed longtime lobbyist Phil Abraham as a compromise candidate, as the Senate had in 2018 to replace Dimitri.

"I don't think it's about the two candidates," said Steve Haner, a senior fellow with the Thomas Jefferson Institute for Public Policy, a conservative think tank. "I think it's more egos between the House and the Senate, and then the House Republicans and the Senate Democrats."

Haner said the election of a new judge has "gotten too wrapped up in the politics."

The politics included a condition sought by House Republicans, led by Speaker Todd Gilbert, R-Shenandoah, that the Senate adjourn the one-day session sine die, Latin for "without a day," which formally ends legislative sessions.

Both parties have temporarily recessed rather than adjourned special sessions in order to prevent a governor from being able to make appointments or set special elections for vacant legislative seats when the assembly is not in session.

(In mid-2015, when the assembly was not in session, then-Gov. Terry McAuliffe filled a vacancy on the state Supreme Court through a recess appointment. He named Fairfax County Circuit Judge Jane Marum Roush to the bench to complete the term of retiring Justice LeRoy F. Millette Jr. The General Assembly's GOP leaders said McAuliffe broke protocol by failing to properly consult them on the appointment. The next year Republican lawmakers denied Roush a full 12-year term and replaced her with Court of Appeals Judge Stephen R. McCullough.)

Last week Senate Majority Leader Dick Saslaw, D-Fairfax, thought he had an agreement with House Majority Leader Terry Kilgore, R-Scott, for the House to elect Abraham and for the Senate to adjourn sine die.

"But somebody over there [in the House] put the kibosh on it," Saslaw said Friday. "That was the deal."

Kilgore no longer is chair of the House Commerce and Energy Committee. Del. Kathy Byron, R-Bedford, whom Gilbert had tapped to lead the search for a new SCC judge, now leads the committee.

Byron, who favored Browder, said she had spoken to Saslaw, "but no agreement had been made."

"Meade Browder is both extremely well qualified to serve on the SCC and has a demonstrated history of working for and with the leadership of both parties," she said in a text message on Friday.

"His history of the last decade, going back to [electric industry] deregulation, would be beneficial in understanding the intent of the General Assembly and the best interest of the commonwealth."

Senate Democrats didn't want to give Gov. Glenn Youngkin the power to make appointments and set the timing of special elections, especially if Sen. Jen Kiggans, R-Virginia Beach, defeats Rep. Elaine Luria, D-2nd, in November and the Republican's Senate seat comes open.

"There was never any discussion of sine die until the very end," said Deeds, who was part of negotiations that had been under way for months to fill the SCC seat.

Kilgore confirmed Saturday "that could have been the agreement, but then on both sides it got political and we weren't able to get there."

Raighne Delaney, a Northern Virginia lawyer who had been one of three candidates on the initial list of House nominees, also emerged as a contender late in the negotiations, Kilgore confirmed.

Delaney is a law partner of Del. Rip Sullivan, D-Fairfax, and Democratic supporter, but he also had become close to Republicans after his work on behalf of a country club in Arlington County in a local tax dispute that spilled into the assembly in 2019.

In the end, the House adjourned sine die but the Senate recessed, subject to recall with 48 hours notice, in order to prevent Youngkin from filling the seat with his own pick. Gilbert made clear that he does not want the governor to appoint someone to a seat that is a constitutional duty of the assembly, but suggested the legislature would act when it convenes in January for a 45-day session.

Byron said: "I believe not having the right candidate would be more of a detriment and the SCC has the ability to bring additional temporary assistance if needed."

But Kilgore suggested, "If we have to go back, we will."

Regardless, Surovell said, the political shuffling of SCC judges doesn't help with "job stability" for qualified candidates to lead an institution that depends on experience with complex subjects.

"This removing people constantly has to end," he said.

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