Can a retired Virginia judge who has taken his name off the Supreme Court's recall list still officiate weddings without posting a bond?

Plain-English summary

In Virginia, a few categories of people can officiate weddings without having to post a bond or get a court order authorizing them. Active judges. Active and senior federal judges. And, under a 1987 amendment to Va. Code § 20-25, "any retired judge or justice of the Commonwealth."

Williamsburg/James City County General District Court Judge Colleen Killilea asked the Attorney General a narrow question about that retired-judge category. After honorable service, retired Virginia judges can offer to perform "recall service" (hearing cases or doing other judicial duties on a temporary basis). The Supreme Court's Executive Secretary keeps a list of these eligible-for-recall retired judges. Some retired judges later ask to be removed from that list. The question: does removal from the recall list also take away their authority to officiate weddings under § 20-25?

Attorney General Herring concluded no. A retired judge who has voluntarily removed himself from the recall list is still a "retired judge of the Commonwealth" within the meaning of § 20-25. He remains in good standing with the Supreme Court of Virginia and remains subject to possible recall by the Chief Justice under Va. Code §§ 16.1-69.22:1 or 17.1-106. That ongoing status is enough.

The history matters here. A 1985 AG opinion had concluded retired judges couldn't perform marriages without bond unless they had been actively recalled. The General Assembly responded in 1987 by amending § 20-25 to add "any retired judge or justice" to the list of authorized officiants, with no requirement of active recall status. The 1987 amendment effectively overruled the 1985 AG opinion, and Herring relied on that legislative history to conclude that taking yourself off the recall list does not strip the authority either.

Herring carefully limited the opinion. It does not address retired judges removed from the recall list because of disability or misconduct, or retired judges who self-report disability to remove themselves from the list. Those scenarios involve different policy concerns.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify the current text of Va. Code § 20-25 and the recall-list rules before relying on any specific procedure mentioned here.

Common questions

Does a retired Virginia judge need any special paperwork to officiate a wedding?

No. Under Va. Code § 20-25, a retired Virginia judge may officiate weddings anywhere in the Commonwealth without a bond or a court order, the same as an active judge. The couple still needs a valid marriage license.

What if the retired judge moved out of Virginia after retirement?

The opinion doesn't directly address that, but § 20-25 conditions the authorization for federal judges on Virginia residency. For state retired judges, the statute doesn't impose a residency requirement, so the retired judge's residence may not matter. But this is a question worth confirming with the clerk who issues the marriage license.

What if a retired judge was removed from the recall list because of misconduct?

The opinion expressly didn't address that scenario. Removal for misconduct would raise different policy concerns and is outside the scope of this opinion.

What if a retired judge takes himself off the list because of a health condition?

The opinion expressly didn't address self-reporting of disability either. That's outside the scope.

Does this apply to retired federal judges in Virginia?

Federal retired judges are separately addressed by § 20-25 ("any active, senior, or retired federal judge or justice who is a resident of the Commonwealth"). They have authority to officiate without bond. The Killilea opinion is specifically about Virginia state retired judges.

Background and statutory framework

Virginia's marriage officiant law is in Va. Code § 20-25. The relevant text:

"Any judge or justice of a court of record, any judge of a district court, any retired judge or justice of the Commonwealth, and any active, senior, or retired federal judge or justice who is a resident of the Commonwealth may celebrate the rites of marriage anywhere in the Commonwealth without the necessity of bond or order of authorization."

The retired-judge clause was added in 1987 by 1987 Va. Acts ch. 149. Before 1987, the statute listed only active judges. A 1985 AG opinion (1984-85 Op. Va. Att'y Gen. 153) had read the pre-1987 statute to exclude retired judges unless they had been actively recalled. The 1987 amendment changed the rule.

The recall system for retired judges is set up by Va. Code § 16.1-69.35, which directs the Supreme Court's Executive Secretary to maintain a list of retired judges who have offered services and are eligible for recall. Sections 16.1-69.22:1 and 17.1-106 give the Chief Justice authority to recall retired judges for temporary service. The Chief Justice can recall any retired judge subject to those statutes, whether or not the judge is on the eligible-for-service list.

Herring's analysis turned on the 1987 amendment's plain language. "Any retired judge or justice" doesn't require active recall status. A judge who is still a "retired judge" in the legal sense (in good standing, subject to possible recall) qualifies. Voluntary removal from the eligible-for-service list doesn't change "retired judge" status.

Citations

• Va. Code Ann. § 2.2-505 (AG advisory opinions)
• Va. Code Ann. § 16.1-69.22:1 (Chief Justice recall authority)
• Va. Code Ann. § 16.1-69.35 (recall list maintenance)
• Va. Code Ann. § 17.1-105 (recall service)
• Va. Code Ann. § 17.1-106 (recall service)
• Va. Code Ann. § 20-25 (marriage officiants)
• Va. Code Ann. §§ 51.1-300 to 51.1-309 (Judicial Retirement System)
• 1987 Va. Acts ch. 149 (adding "any retired judge or justice" to § 20-25)
• 1984-85 Op. Va. Att'y Gen. 153 (overruled in part by the 1987 amendment)
• 1996 Op. Va. Att'y Gen. 114, 116
• 1978-1979 Op. Va. Att'y Gen. 147, 149
• 1977-1978 Op. Va. Att'y Gen. 341, 342
• 2003 Op. Va. Att'y Gen. 124, 127
• Appalachian Power Co. v. State Corp. Comm'n, 284 Va. 695 (2012)
• BBF, Inc. v. Alstom Power, Inc., 274 Va. 326 (2007)
• Melanson v. Commonwealth, 261 Va. 178 (2001)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2016/15-044-Killilea-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

September 1, 2016

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071

The Honorable Colleen K. Killilea, Judge
Williamsburg/James City County General District Court
5201 Monticello Avenue, Suite 2
Williamsburg, Virginia 23188-8218

Dear Judge Killilea:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether a retired judge, who has voluntarily removed himself from the recall list of the Supreme Court of Virginia, after years of honorable active and recall list service, may celebrate the rites of marriage under § 20-25 of the Code of Virginia without necessity of bond or order of authorization.

Applicable Law and Discussion

In Virginia, a judge who has retired under the Judicial Retirement System[1] may offer to perform recall service to hear certain cases or perform other judicial duties on a temporary basis.[2] Pursuant to § 16.1-69.35 of the Code, the Executive Secretary of the Supreme Court of Virginia maintains a list of such retired judges who have offered their services and are eligible for recall duty.[3] Should a retired judge decide that he no longer desires to remain on the list, he may request that his name be removed. However, that judge still remains subject to possible recall at the discretion of the Chief Justice under the provisions of §§ 16.1-69.22:1 or 17.1-106.

Section 20-25 of the Code, which is the subject of your inquiry, provides that "retired judges" are authorized to celebrate the rites of marriage in Virginia without necessity of bond or order of authorization. That statute provides, in relevant part, that

[a]ny judge or justice of a court of record, any judge of a district court, any retired judge or justice of the Commonwealth, and any active, senior, or retired federal judge or justice who is a resident of the Commonwealth may celebrate the rites of marriage anywhere in the Commonwealth without the necessity of bond or order of authorization.[4]

Prior to 1987, this provision of § 20-25 did not include "retired judges of the Commonwealth" in the list of individuals authorized to perform marriages without necessity of bond or order of authorization. Although the provision included "any judge or justice of a court of record and any judge of a district court,"[5] it was silent as to the authority of a retired judge. Interpreting that prior language of the provision, in 1985 the Attorney General issued an opinion concluding that a retired judge was not authorized to perform marriages without bond or order of authorization, unless he had been recalled by the Chief Justice and had thereby regained, on a temporary basis, all the "powers, duties[,] and privileges" of the position.[6] In response to this opinion, the General Assembly amended the statute in 1987 to allow retired judges and justices of the Commonwealth to perform marriages with no bond or order of authorization, and with no requirement that a judge be on active recall status at the time.[7]

I conclude that the 1987 amendment indicates that a retired judge may perform marriages even if he has voluntarily had his name removed from the Supreme Court's recall list. Such an individual is still a "retired judge" so long as he remains in good standing with the Supreme Court of Virginia, and is a "public official" in the limited sense that he remains subject to possible recall under §§ 16.1-69.22:1 or 17.1-106.[8] Therefore, in light of his status, he may perform marriages in the Commonwealth without necessity of bond or order of authorization.[9] This is so regardless of whether he is ever recalled to active service or whether he even remains on the recall list.

Conclusion

Accordingly, based on the language and legislative history of § 20-25, it is my opinion that a retired judge under the circumstances you describe may celebrate the rites of marriage in the Commonwealth without necessity of bond or order of authorization.[10]

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] See VA. CODE ANN. §§ 51.1-300 - 51.1-309 (2013 & Supp. 2016).

[2] See VA. CODE ANN. §§ 16.1-69.22:1 (2015), 16.1-69.35 (2015), 17.1-105 (2015), 17.1-106 (2015).

[3] This list is approved by the Chief Justice of the Supreme Court of Virginia. See VA. CODE ANN. § 16.1-69.35.

[4] VA. CODE ANN. § 20-25 (2016).

[5] See 1984-85 Op. Va. Att'y Gen. 153, 153.

[6] See id.

[7] 1987 Va. Acts. ch. 149 (adding the phrase "any retired judge or justice" to the list of persons authorized to perform marriages); 1996 Op. Va. Att'y Gen. 114, 116. "Rules of statutory construction prohibit adding language to . . . a statute." Appalachian Power Co. v. State Corp. Comm'n, 284 Va. 695, 706 (2012) (citing BBF, Inc. v. Alstom Power, Inc., 274 Va. 326, 331 (2007)).

[8] See 1978-1979 Op. Va. Att'y Gen. 147, 149; 1977-1978 Op. Va. Att'y Gen. 341, 342; cf. 2003 Op. Va. Att'y Gen. 124, 127.

[9] "The primary objective of statutory construction is to ascertain and give effect to legislative intent." Melanson v. Commonwealth, 261 Va. 178, 183 (2001); see generally VA. CODE ANN. §§ 16.1-69.22:1(B), 17.1-106(8) (providing, in certain circumstances, for the obligatory recall of retired judges).

[10] This conclusion is not intended to address situations in which a retired judge is removed from the recall list by the Supreme Court following disability or misconduct. Further, it is not intended to address situations in which a retired judge voluntarily has had himself removed from the recall list for reasons of disability (i.e., self-reporting of disability). Those scenarios are outside the scope of this Opinion.