When the late Judge John W. Scott Jr. learned in the spring of 2007 that Fredericksburg might not complete a new courts complex until 2012 or 2013, he wrote to the seven other judges in Virginia's 15th Judicial Circuit.
"This delay is unacceptable and may require litigation against the City," Scott wrote in a letter on May 10, 2007.
His colleagues on the bench supported Scott, who died this past April.
"Your court facilities are in dire need of repair, demolition and/or new construction," Judge Harry T. Taliaferro III wrote on May 29, 2007, to City Manager Phillip Rodenberg and City Attorney Kathleen Dooley.
As these letters were being written, Fredericksburg was coming to realize that it was no longer king of the regional retail mountain.
New developments in Stafford and Spotsylvania counties and the slowdown in the housing market--which led to today's recession--meant the city was getting less money from its sales tax.
In the spring of 2008, City Council members approved a budget that called for 2.5 percent less spending than the year before.
That brought to a close a four-year streak of roughly 10 percent yearly growth in the city budget. That growth was fed largely by sales-tax increases driven by Central Park's short-lived dominance as the regional retail hub.
Council members are already talking about having to raise taxes just to balance next year's budget--without any $54.1 million courthouses in the picture.
Nobody knows what the economic picture will look like a few years from now, when the cost of building such a facility would actually hit the city budget.
But as council members discussed at their last meeting, they don't get to make this decision based solely on what the city can afford.
$10 MILLION PEN-STROKE?
Virginia law gives circuit judges the power to put localities under court order to build adequate court facilities. That's the litigation Scott referred to in his letter last year.
The process starts when the judges enter an order that essentially requires the local government to show why it should not have to upgrade its court buildings.
The judges and the local government both lawyer up, and the taxpayers foot the bill for a legal battle that can be long and expensive.
At the Dec. 9 City Council meeting, City Attorney Dooley mentioned five other localities that have been under such orders recently. Even when local governments argued that they couldn't afford new courts, Dooley said, "In every case, the locality was ordered to build."
Judges in Portsmouth have for more than a decade been urging that city to build better court facilities. The city had been moving forward on a $45 million plan to build a new circuit courthouse.
But just like Fredericksburg, Portsmouth is facing a budget shortfall. So last summer, City Council members there asked the city manager to find a cheaper plan.
The same day that the manager proposed a $27 million plan to renovate an office building as courts, judges filed a legal motion that has brought court planning in that city to a halt. Both sides are now engaged in pretrial conferences and other legal maneuverings.
Portsmouth Councilman Steve Heretick, an attorney who voted against the cheaper courts plan, said he believes the judges' order will add 25 percent to 40 percent to the final cost of the courthouse and will drag the process out at least an extra year.
"The pen-stroke on that order is probably going to cost us somewhere in the realm of $8 million to $10 million," he said.
OUT OF LOCAL HANDS?
Fredericksburg Mayor Tom Tomzak has said he believes the conditions of the city's court facilities mandate action.
But he also said he agrees with some of the points that Councilman Matt Kelly--the loudest voice against moving forward with the courts now--has made. Councilman Brad Ellis also has said he thinks the courts project should wait for better financial times.
Kelly recently wrote an e-mail to state legislators saying that he thinks the judges' ability to order new courts amounts to "the authority to circumvent the democratic process."
Kelly said he doesn't understand why more people aren't upset that judges--who don't stand for election--have the power to order capital projects that effectively require tax increases.
Tomzak said he thinks that's a problem, even though he thinks the city should move forward with this project.
"In this particular circumstance, the judges are, I think, behaving responsibly," he said. "But the potential exists that if a judge wants to mandate an expansion, a judge can do it, and I have a problem with that."
COURTS DRAW CROWDS
In his letter to Rodenberg, Judge Taliaferro wrote, "There is a tendency on the part of many to regard courtroom construction as building palaces for lawyers and criminal defendants."
But he urged the city to consider how many people use the courts on a daily basis.
Similarly, Portsmouth's Heretick said he thinks people lose sight of how heavily used court buildings are.
"On any given day, there are far more citizens of our city in and out of our courts than are in and out of City Hall," he said. "Just like we have to provide safe and adequate schools for our kids, we have to provide safe and adequate courts for the people who use them."
Right now, it appears that the majority of Fredericksburg's council members will vote to keep moving forward with the courts plan when the matter comes up at their first meeting of 2009.
Even though the current plan is on a timeline that Scott called unacceptable in his 2007 letter, council members who have consulted with the judges say that if the city keeps moving forward, it should avoid a court order.
Judge Gordon F. Willis, who has been talking to council members, said through his secretary that it "would be inappropriate for him to comment" for this story.
To Vice Mayor Kerry Devine, it's a matter of keeping control of a signature downtown project in the hands of local elected officials--not a court-appointed committee of lawyers and architects.
"What I really don't want to see is us continuing to drag our feet to the point that this is taken out of our hands," Devine said. "At that point, there will be no input from the community."
Emily Battle: 540/374-5413
Email: ebattle@freelancestar.com