ANALYSIS OF NOVEMBER 27, 2017 SUPREME COURT OPINION
(Posted November 27, 2017) We get a very rare Monday opinion release in a very rare case area for the Supreme Court of Virginia.
I have never interviewed any of the justices about this, but I’m confident that judicial-discipline proceedings are among the most troubling matters they see on their docket. The court today decides JIRC v. Pomrenke, argued just 25 days ago.
The Judicial Inquiry and Review Commission charged a JDR judge with misconduct in connection with a federal prosecution of the judge’s wife. The feds had indicted the wife for corruption in her role as an officer of the Bristol Virginia Utilities Authority.
Shortly after the indictment, the judge sent a short handwritten note to his wife’s boss:
I just wanted to sincerely thank you for your kindness and understanding support for Stacey during these horrible times. By now I am sure you would agree she is absolutely honest, truthful, ethical, and innocent! It is horrible what our government is doing to her. She will be proven innocent. Thank you for believing in her.
The judge explained that the criminal defense was draining the family’s finances, and he wanted to thank the boss for allowing the wife to keep working and earning money during the prosecution. He inserted one of his judicial business cards in the envelope.
The boss, a licensed attorney, read the note and blanched. He took it to the federal prosecutor, and the wife was eventually charged with contempt of court. The boss, you see, was a possible witness in the upcoming criminal trial. (In fairness to the judge, he sent the note 2 ½ months before the feds filed a witness list in the case. He contended that he hadn’t known at the time that the boss would be a witness.)
Three days before the trial, the judge compounded his problems by leaving a voice message for a person he knew would be testifying (I infer she would testify on behalf of the wife, though I’m not sure), a “close personal friend” of the judge. This voice message suggests ways in which the witness could shade her testimony by inserting laudatory statements about the wife, even where the question wouldn’t call for any such statements.
As it turns out, the boss didn’t testify, and the federal court convicted the wife. But no matter; JIRC instituted these charges anyway, citing Canons 1 (integrity and independence of the judiciary), 2A (public confidence in the judiciary), and 2B (lending prestige of judicial office for private benefit) of the Canons of Judicial Conduct. After a hearing, the Commission unanimously found the charges to be well-founded.
It’s here that we’ll take a minor detour to mention a couple of procedural aspects of these rare proceedings. The Commission’s finding is the functional equivalent of an indictment: It’s an accusation, not a conviction. The trial court in JIRC proceedings is the Supreme Court of Virginia. That makes this what court insiders call an “OJ proceeding,” invoking the Supreme Court’s original jurisdiction. This was not an appeal at all, and it didn’t require a writ.
In the Supreme Court, the judge commendably agreed that his actions were wrong; he apologized to the justices, as he had done in the hearing before the Commission. That means that the finding of misconduct will stick, and the only issue is what to do about it. By law, there are only two options for the Supreme Court: censure of the judge, or removal from office.
The judge had produced character witnesses and plenty of supporting letters from local attorneys during the Commission hearing. In the end, those letters are unavailing. Citing the effect of the judge’s actions on the judiciary – not on the pending criminal trial, which is almost a secondary factor in the ultimate disposition – the justices take the extremely rare step of ordering the judge’s removal from office. The Supreme Court finds that what the judge did “strikes at the heart of the judicial system” and impairs the functioning of that system – all 400 judges’ worth. Although the federal prosecution obviously took a terrible toll on the judge’s family, “such considerations cannot outweigh the extraordinary harm that will be done if he remains on the bench.”
My sense as I read the factual recitation is that the initial note to the boss may have been a somewhat close call for the court, especially if the judge really didn’t know that the boss would be a potential witness. That being said, today’s opinion adopts several facts from JIRC’s brief that establish that he should have known. The voice mail is another matter entirely; there is no question that this was an attempt to tamper with a witness. And no judge can do that and expect to keep his robe.
The chief justice writes the opinion today for a unanimous court. While the assignment of opinion writing is at least initially random, I would be very much surprised if that happened here. There is an air of professional disappointment and even betrayal about this opinion, and I believe the chief justice was unwilling to impose its authorship upon any other member of the court.
May it be a good, long time before we ever see another of these cases.