Under the 2023 amendment to Virginia's judicial-misconduct disclosure statute, when does the Judicial Inquiry and Review Commission have to publicly name a judge it has investigated, and what counts as 'disciplinary action' that triggers naming?

Plain-English summary

Virginia's Judicial Inquiry and Review Commission (JIRC) investigates complaints about judges. A recent amendment requires its annual report to identify a judge when the Commission both concludes that the judge breached the Canons of Judicial Conduct and takes disciplinary action because of that conclusion. The report must also identify the Canons breached and describe the action taken.

The Commission's chair and vice chair asked Attorney General Jason Miyares when that naming requirement applies and what counts as “disciplinary action.” The opinion answers that both conditions must be met. A breach conclusion alone does not trigger naming, and neither does action taken without a breach conclusion.

The AG identifies three JIRC actions that count: filing a formal complaint with the Supreme Court of Virginia, suspending a judge, and entering a supervision agreement with a judge. Censure and removal are sanctions that only the Supreme Court can impose. The AG reasons that the amendment would have no effect if “disciplinary action” referred only to sanctions the Commission cannot impose. He treats suspension and supervision as remedial forms of informal discipline.

The opinion mentions that JIRC may direct a judge to undergo a mental or physical examination in certain circumstances. It does not classify an examination order as disciplinary action for the annual-report naming rule.

What this means for you

JIRC members and staff

The opinion says the annual report must name a judge only when JIRC concluded that the judge breached the Canons and then filed a formal complaint, suspended the judge, or entered a supervision agreement as a result. If either condition is missing, the new naming requirement does not apply.

Virginia judges under JIRC investigation

The opinion identifies the three JIRC actions that can trigger naming when tied to a Canon-breach conclusion. It does not add examination orders to that list. It also explains that a warning that removes well-founded charges from JIRC's docket without further action is not the same as the listed disciplinary actions.

Complainants and court reporters

The opinion addresses disclosure in JIRC's annual report. It says the new provision creates an exception to the general confidentiality of a subject judge's identity for the specified combination of a breach conclusion and disciplinary action. Other complaints still contribute to the aggregate numbers that the annual report must provide.

Common questions

Q: When must the annual report name a judge?

A: Only when JIRC both concludes that the judge breached the Canons of Judicial Conduct and takes disciplinary action as a result of that conclusion.

Q: Which JIRC actions count as disciplinary action?

A: The opinion identifies filing a formal complaint with the Supreme Court of Virginia, suspending a judge, and entering a supervision agreement with a judge. It does not include an examination order in its conclusion.

Q: What if JIRC finds a breach but takes no disciplinary action?

A: The opinion says the naming requirement does not apply if either condition is absent.

Q: Does a warning trigger naming?

A: The opinion describes a warning that removes well-founded charges from the docket without further action as a separate option. Its conclusion identifies formal complaints, suspensions, and supervision agreements as disciplinary action for the naming rule.

Q: Can JIRC itself censure or remove a judge?

A: No. The opinion says those sanctions are available exclusively to the Supreme Court of Virginia.

Background and statutory framework

JIRC has authority to investigate charges that could form the basis for a judge's retirement, censure, or removal. When it finds charges well-founded, it may file a formal complaint with the Supreme Court of Virginia. The Court then conducts a public hearing and may impose the sanctions available to it on the required showing.

The opinion describes general confidentiality for papers and proceedings before JIRC, including a subject judge's identity. It also explains that the Commission's annual report has long included counts of complaints, dismissals, and Canon-breach conclusions. The recent amendment requires identification of judges only where a breach conclusion and resulting disciplinary action both occur.

JIRC may also suspend a judge when it finds probable cause that continued judicial duties pose a substantial and immediate threat to the public interest in the administration of justice. A supervision agreement is another option when charges are well-founded and the judge consents. The AG concludes that suspensions and supervision agreements are remedial measures that can constitute informal discipline. The opinion's final list of qualifying actions includes those two measures and a formal complaint filed with the Supreme Court.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2023/23-056-Franklin-&-Melvin-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Jason S. Miyares
Attorney General

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

November 20, 2023

Humes J. Franklin, III, Esquire, Chairman
The Honorable Kenneth R. Melvin, Vice Chairman
Judicial Inquiry and Review Commission
Post Office Box 367
Richmond, Virginia 23218

Dear Mr. Franklin and Judge Melvin:

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 inquire regarding a recent amendment to the annual reporting requirements of the Judicial Inquiry and Review Commission ("JIRC" or "Commission"), as set forth in Virginia Code § 17.1-905. You more specifically ask under what circumstances the Commission must disclose the name of a judge who is the subject of a complaint filed with the Commission. Implicit in your inquiry is what constitutes "disciplinary action" for purposes of the statute.

Response

It is my opinion that the Commission must report the name of a subject judge when, and only when, both of two conditions are met: 1) the JIRC has concluded that the judge breached the Canons of Judicial Conduct and 2) it has taken disciplinary action against the judge based on its conclusion. It is further my opinion that the Commission takes "disciplinary action" as contemplated by amended Code § 17.1-905 when it does any of the following: files a formal complaint with the Supreme Court of Virginia, suspends a judge, or enters into a supervision agreement with a judge.

Applicable Law and Discussion

As required by the Constitution of Virginia, the General Assembly has created the Judicial Inquiry and Review Commission and vested it "with the power to investigate charges which would be the basis for retirement, censure, or removal of a judge." Article VI, § 10 of the Constitution; Chapter 9 of Title 17.1 of the Code of Virginia; and JIRC Rules govern JIRC procedures.

Charges alleging judicial misconduct can be reported to the JIRC for investigation by filing a prescribed complaint form with the Commission. Upon receipt of such a complaint, the JIRC has the duty "to investigate charges arising out of the present or any prior term of office which would be the basis for retirement, censure, or removal of a judge . . . ." In fulfilling its duty, JIRC is empowered "to conduct hearings and to subpoena witnesses and documents." Once the JIRC completes its investigation, if it "finds the charges to be well-founded, it may file a formal complaint before the Supreme Court [of Virginia]."

The Supreme Court is then directed to "conduct a hearing in open court . . . ." Should the Supreme Court find a "disability which is or is likely to be permanent and which seriously interferes with the performance by the judge of his duties, [the Court] shall retire the judge from office." In addition, should the hearing reveal that "the judge has engaged in misconduct while in office, or that he has persistently failed to perform the duties of his office, or that he has engaged in conduct prejudicial to the proper administration of justice, [the Supreme Court] shall censure him or shall remove him from office." The Supreme Court, in exercising its original jurisdiction in such cases, "considers the evidence and makes factual determinations de novo." Censure and removal are the only sanctions for misconduct the Court may impose, and neither is available without clear and convincing evidence supporting the charges alleged in the formal complaint.

Although the hearing before the Supreme Court is required to be public, the "[p]roceedings and documents before the Commission may be confidential as provided by the General Assembly in general law." The General Assembly, in turn, has provided that

> all papers filed with and proceedings before the Commission, . . . including the identification of the subject judge as well as all testimony and other evidence and any transcript thereof made by a reporter, shall be confidential and shall not be divulged, other than to the Commission, by any person who (i) either files a complaint with the Commission, or receives such complaint in an official capacity; (ii) investigates such complaint; (iii) is interviewed concerning such complaint by a member, employee or agent of the Commission; or (iv) participates in any proceeding of the Commission or in the official recording or transcription thereof.

In addition, "[t]he filing of papers with and the giving of testimony before the Commission shall be privileged . . . ." Accordingly, as noted by the Supreme Court of Virginia, "[t]he General Assembly, as the policymaking branch of our government, has determined that[, generally, JIRC] records should be kept confidential."

Despite these confidentiality rules, the JIRC is subject to certain mandatory disclosure provisions. Pertinent to your inquiry, Code § 17.1-905 directs that "the Commission shall publish a report detailing the activities of the Commission for the prior year." The statute expressly identifies information that the JIRC's annual report must contain. Prior to a 2023 amendment, such information was limited, in pertinent part, to the following: 1) the total number of complaints filed with the Commission; 2) the respective number of complaints originating from attorneys, judges, court employees, and the general public; and 3) the number of complaints dismissed. In reporting the number of dismissed complaints, the JIRC also is required to specify the number of dismissals that were "based on (i) failure to fall within the jurisdiction of the Commission, (ii) failure to state a violation of the Canons of Judicial Conduct, or (iii) failure of the Commission to reach a conclusion that the Canons were breached[.]" Also specifically required to be contained in the report is "the number of complaints for which the Commission concluded that the Canons of Judicial Conduct were breached[.]"

The General Assembly amended Code § 17.1-905 in 2023 to require the reporting of additional information. Per the amendment, the JIRC's annual report also must include "the name of any judge who the Commission concluded breached the Canons of Judicial Conduct and took disciplinary action against as a result of such conclusion[.]" For any such named judge, the JIRC is directed further to report "(b) the specific Canons of Judicial Conduct breached by such judge; and (c) the disciplinary action taken against such judge by the Commission." The amendment thus provides a clear exemption to the more general rule against divulging "the identification of [a] subject judge[.]" Nevertheless, the name disclosure is required only to the extent the JIRC 1) has concluded that the judge breached the Canons of Judicial Conduct and 2) has taken disciplinary action against the judge based on its conclusion. If either element is missing, then the new reporting requirement does not apply.

Virginia law makes clear that "[t]he ultimate responsibility . . . for judicial discipline lies squarely with [the Supreme Court]." Although it thus generally is recognized that "the Commission's function is limited to determining whether 'the charges [are] well-founded, and sufficient to constitute the basis for retirement, censure, or removal of a judge,' thereby resulting in a complaint being filed in th[e Supreme] Court[,]" the JIRC is authorized to take other actions with respect to matters coming before it that fall short of filing a formal complaint.

For example, "the Commission may suspend a judge with pay if it finds that there is probable cause to believe that the continued performance of judicial duties by the judge constitutes both a substantial and immediate threat to the public interest in the administration of justice." In addition, "[w]henever the Commission has probable cause to believe a judge is unable to perform his duties . . . because of excessive use of alcohol or drugs or physical or mental illness, the Commission, . . . may direct that the judge submit to a mental or physical examination by a health care provider . . . ."

Moreover, pursuant to JIRC Rule 15, the Commission, "[a]fter an investigation has been concluded, . . . may take any of [several] actions" that are in addition to dismissing the charges or filing a formal complaint. A "third option, [Rule] 15(A)(3), permits the Commission to remove from its docket charges that it determines are well founded, but not by themselves serious enough to warrant disciplinary action . . . . Such a disposition provides a warning to a judge and the opportunity to avoid future misconduct." "[Rule] 15(A)(4)[] permits the Commission, when it finds the charges to be well founded and with the consent of the judge, to place the judge on a period of supervision under such terms and conditions as the Commission shall determine." This fourth option "affords the judge the benefit of a period of supervision to avoid future misconduct and also to avoid some of the consequences of his past misconduct, including censure or removal."

With this backdrop, you ask under what circumstances the new requirement to report the name of the judge attaches. You express concern that the new statutory language may cause confusion given that "[t]he ultimate responsibility . . . for judicial discipline lies squarely" with the Supreme Court, where the only sanctions available are censure and removal.

I first note that "[s]tatutory amendments are presumed to amend statutes, to change something that was there or to add something that was not there before." Therefore "we assume that the General Assembly's amendments to a statute are purposeful, rather than unnecessary." In addition, "[w]hen new provisions are added to existing legislation by amendment, we presume that, in making such amendment, the legislature 'acted with full knowledge of and in reference to the existing law upon the same subject and the construction placed upon it by the courts.'" Accordingly, "in construing a statute that has been amended by the General Assembly, we presume that the legislature acted with full knowledge of the law as it affected the subject matter." Constructions that render statutory amendments meaningless are to be avoided, and we construe "all statutes in pari materia in such a manner as to reconcile, if possible, any discordant feature which may exist, and make the body of the laws harmonious."

The crux of your inquiry thus is what JIRC actions constitute "disciplinary action" for purposes of Code § 17.1-905. Clearly the term cannot refer to the punitive sanctions of censure or removal: the reporting requirement expressly relates only to actions taken by the Commission, but those sanctions are available exclusively to the Supreme Court. Accordingly, although judicial discipline ultimately is reserved to the Supreme Court, the General Assembly must consider some JIRC actions to be "disciplinary" in nature, otherwise the 2023 amendment would be meaningless. The General Assembly, however, has not defined "disciplinary action" for purposes of the statute.

In the absence of a statutory definition, words are to be construed according to their ordinary meaning, given the context in which they are used. A recent Opinion of this Office addressed the meaning of "disciplinary action" for purposes of Code § 23.1-808. Relying on common definitions of "discipline," the Opinion concluded that the term, standing alone, "is not limited only to action that is punitive in nature," so that "a reasonable interpretation of 'disciplinary action' . . . includes remedial action that is intended to correct or train . . . ." The Opinion further noted the "broad view" some judicial decisions have adopted in applying "discipline" and "disciplinary action" in the employment context. The Opinion highlighted one case decision that deemed an action that "was 'designed to establish . . . prescribed conduct[,]' 'reaffirm[ed] a rule or system of rules governing conduct[,]' and sought 'to control . . . situations in the future' to be disciplinary in nature.

Given the exclusive ability of the Supreme Court to punitively sanction judges and the limited role the JIRC maintains, application of this accepted, broader understanding of "discipline" is appropriate here. I first reemphasize, however, that the new reporting requirement only applies to situations in which the JIRC first has concluded that a judge has breached the Canons of Judicial Conduct. The JIRC is obliged already to report the number of complaints resulting in such a conclusion, and it has done so. As amended, Code § 17.1-905 now requires the JIRC to report the name of the judge associated with the conclusion when it also "took disciplinary action against [the judge] as a result of such conclusion[.]" Pursuing formal disciplinary proceedings by filing a formal complaint with the Supreme Court easily falls within the above-described rubric of "disciplinary action." Suspensions and supervision agreements are clearly remedial measures designed to "correct or train" and to "reaffirm" a "system of rules governing conduct," namely the Canons of Judicial Conduct. By taking such actions, the JIRC also seeks "to control . . . situations in the future." I therefore conclude that suspensions and supervision agreements are forms of "informal discipline" the Commission undertakes, and as such, are acts that constitute "disciplinary actions" for purposes of Code § 17.1-905.

Conclusion

For the foregoing reasons, it is my opinion that the Commission must implement Code § 17.1-905's new annual reporting requirements, including the naming of a subject judge, when and only when, both of two conditions are met: 1) the JIRC has concluded that the judge breached the Canons of Judicial Conduct and 2) it has taken disciplinary action based on its conclusion. It is further my opinion that the Commission takes "disciplinary action" as contemplated by the statute's amendment when it files a formal complaint with the Supreme Court of Virginia, suspends a judge, or enters into a supervision agreement with a judge.

With kindest regards, I am,

Very truly yours,

Jason S. Miyares
Attorney General