Virginia House approves bill to boost transparency when judges get punished

A proposal to make more information public when Virginia judges violate ethics rules passed the House of Delegates Friday on a bipartisan vote.

Currently, almost all records of the state’s Judicial Inquiry and Review Commission (JIRC) are kept strictly confidential unless they involve a proven breach serious enough to rise to the Supreme Court of Virginia for a formal censure or removal from the bench. 

Each year, the seven-member commission files a report detailing how many complaints about judges it received. But those reports aren’t required to identify which judges were disciplined, what rules they broke or what their punishment was. The bill sponsored by Del. Wren Williams, R-Patrick, would instruct the commission to include that information in future reports.

“Obviously, we appoint judges and keep tabs on how they’re doing,” Williams said as he presented his bill to a legislative committee.

The bill was approved by a 67-31 vote, with most Democrats in the no column but more than a dozen voting yes. The opposition appeared to be more about Williams’ conduct the day before the vote rather than the substance of his bill.

On Thursday, Williams refused to yield the floor to take a question about the JIRC bill from Del. Mike Mullin, D-Newport News, bucking the tradition of engaging colleagues who may be seeking clarity, debate or technical fixes to a piece of legislation.

“I just thought that we should include retired judges in the bill,” Mullin said in an interview Friday.

Retired Virginia judges are frequently called in to hear cases from which active judges have recused themselves. It’s a common practice in politically sensitive cases involving sitting legislators, because the General Assembly has the power to hire, promote and fire active judges.

When told why Democrats had opposed a bill that received unanimous support in committee, Williams insisted his bill already covered retired judges.

“It actually includes anybody who has ever taken the judge’s oath and is going to sit on the bench,” Williams said.

Whichever interpretation is correct, the bill can be amended when it passes over to the state Senate. In the other chamber, Sen. Mark Obenshain, R-Rockingham, has filed a similar JIRC transparency bill that has not yet been heard.

Complaints against judges rarely lead to formal punishment. In 2022, the commission received a total of 415 complaints, and 402 were dismissed. The vast majority of complaints were dismissed for either failing to fall under the commission’s jurisdiction or failing to allege a specific violation of the Canons of Judicial Conduct, the state’s official rulebook for judges. The commission determined a breach occurred in five cases, but all five of those cases were also dismissed, according to the body’s annual report.

Raymond F. Morrogh, commission counsel for JIRC, explained in an email last month that “some matters may not be of sufficient gravity to constitute the basis for a judge’s retirement, removal, or censure.”

“Where breaches of the Canons may be minor, it is conceivable that a matter may be resolved without resort to a formal hearing, or the filing of a complaint in the jurisdiction of the Supreme Court of Virginia,” Morrogh said.

The Canons of Judicial Conduct deal with a wide array of issues, including judges’ fairness and impartiality, diligence about avoiding conflicts of interest, gifts and other favors, and use of social media.

Most complaints against judges come from the general public, but some originate with lawyers, court employees and other judges.

Williams’ bill would only require disclosure when a breach is substantiated and results in discipline, which would prevent frivolous or unproven accusations from being made public.

“It’s a very small universe of people,” said Robert Tracci, a senior attorney in the office of Attorney General Jason Miyares, referring to the number of judges likely to be identified under the proposed law. “And it does promote transparency in government.”

The attorney general’s office has called for more openness in the judicial discipline process, a proposal that seemed to take on new urgency because of its connection to Republican efforts to investigate the actions of a former chair of the Virginia Parole Board who’s now serving as a judge in Virginia Beach.

Bennett, whom Miyares has accused of abusing her Parole Board powers and breaking the law in a rush to release inmates in early 2020, was suspended from her role as a judge in the Virginia Beach Juvenile and Domestic Relations Court in 2021. Media outlets’ efforts to figure out what she was disciplined for have been unsuccessful due to the secretive nature of the process.

The Richmond Times-Dispatch filed a legal petition seeking to have the disciplinary records unsealed, but the Supreme Court of Virginia issued a split opinion last year that kept most of the documents confidential.

“From the start, Judge Bennett made clear that she did not want anyone but us to see the reason why JIRC had suspended her,” Supreme Court Justices D. Arthur Kelsey and Teresa M. Chafin wrote in a dissenting opinion. “The majority holds that Judge Bennett has a statutory right to keep that information secret and that the public has no constitutional right to break the seal of secrecy.” 

In 2021, JIRC reported receiving 395 complaints. Only one was ruled a breach of judicial conduct and not dismissed.