Commentary

In Virginia, who judges the judges?

September 27, 2021 12:02 am

Activists outside the Loudoun County Courthouse condemned a judge who sentenced the witness in a domestic violence case to jail. (Ned Oliver/Virginia Mercury)

She was jittery when she took the witness stand, by all accounts. Katie Orndorff, 33, was testifying in her boyfriend’s felony domestic violence trial in a Leesburg courtroom. Then, through a fast, strange and terrifying turn of events, the witness/victim became the accused and, before she knew it, was being dragged off to jail after a judge summarily found her in contempt.

Her supposed crime? She had smoked marijuana at home – since July 1, something as legal in Virginia as having a beer – to steady her nerves in advance of confronting her former boyfriend and alleged abuser — accused of punching her in the face —  in court where prosecutors assured her she was safe.

During Orndorff’s testimony, Loudoun County Circuit Judge James P. Fisher turned the proceeding in a whole new direction, effectively assuming the role of prosecutor. The former commonwealth’s attorney asked her if she used drugs. She admitted smoking pot hours earlier.

Prosecutors, however, said the woman showed no signs of impairment – no slurred speech, no incoherence, no dozing off – but was clearly nervous. One would expect as much from a woman whose testimony could put her tormentor in prison or perhaps subject her to his wrath should he be acquitted.

Before she grasped what had happened, Fisher had sentenced Orndorff to 10 days in jail without allowing her the benefit of counsel or even advising her of her rights. Fisher declared a mistrial in the felony assault and battery proceedings against her alleged assailant. Orndorff served two days behind bars before being freed on $1,000 bond pending an appeal of her conviction. Fisher canceled a hearing Thursday on a motion to vacate the contempt charge after he rejected the motion as “wholly without merit.” Protesters who had gathered outside the Loudoun County Courthouse demanded an investigation into Fisher’s actions.

“This judge shouldn’t be on the bench,” said domestic violence survivor and women’s rights activist Lisa Sales according to reporting from the Mercury’s Ned Oliver.

The courtroom drama portrayed in news accounts was at once Kafkaesque and infuriating. The terrified, confused woman being victimized anew as deputies muscled her from the courtroom to a jail cell on a judge’s order. Dismayed and apoplectic prosecutors. Accountability deferred and perhaps a free pass for a defendant with two previous domestic violence convictions. A stark and dispiriting message to battered women.

John Grisham would struggle to make readers believe a scene like this.

So did Fisher’s actions breach Virginia’s Canons of Judicial Conduct? While they seemed outrageous to me and the 30 or so protesters on the courthouse lawn Thursday, I am not a lawyer and don’t know what the threshold is for making such a  determination. Perhaps Fisher’s actions were legally justified. Perhaps they were beyond the pale. Who decides?

By law, it’s the Judicial Inquiry and Review Commission. It is the state agency that, since 1971, has been responsible under the Virginia Constitution and state statutes for vetting allegations from the public, from lawyers, court staff and other jurists against judges accused of misconduct or physical or mental impairments that render them unfit for the job.

Before 1971, the only means for removing a Virginia judge for cause or infirmity was impeachment by the General Assembly. That happened just twice, in 1903 and 1908.

Almost everything JIRC does is, by law, secret. Even lawyers like Brad Haywood who have filed complaints with JIRC against judges for alleged violations rarely learn anything about their complaints.

“There’s no transparency at all. It’s a black box,” said Haywood, the chief public defender in Arlington and Falls Church who said he has filed several JIRC complaints.

The only feedback he said he’s ever received is a two-paragraph form letter from JIRC acknowledging receipt of his complaint and advising him that the commission will do what it deems most appropriate.

“This is not something that a defense attorney does lightly. There is a belief that when you do that, judges are ready and they’re going to take it out on you. Most lawyers, unless something terrible happens, they’re not going to file a JIRC complaint,” Haywood said.

The seven-member commission has authority to dismiss a complaint. If it substantiates a charge but determines it does not rise to the level of a judge’s censure, removal or forced retirement, it can advise the judge of its findings and dismiss the complaint – essentially a warning – while reserving the right to resurrect the charges should the judge face another valid complaint.

Complaints emerge from their cocoon of secrecy only if JIRC finds a charge credible and egregious enough to advance to the Virginia Supreme Court for adjudication. The court conducts its own proceedings from scratch and determines whether a judge should be censured, removed or forced into retirement, or whether a complaint should be dismissed. According to JIRC, of the thousands of complaints it has handled in its 50 years, only 15 judges have had their cases reach the court: seven were censured, three were removed from the bench and five had their cases dismissed.

For a timelier snapshot, annual statistical summaries the commission files with the General Assembly show that JIRC received 2,274 complaints from November 2015 through October 2020. Two complaints (involving a total of three judges) made it to the high court, according to published online Supreme Court opinions. See here and here for examples. 

There is, however, a fully confidential alternative to being subjected to public Supreme Court proceedings that JIRC can offer judges in cases where validated claims are not deemed grave enough for the court’s attention. The commission has the discretion to enter into “supervision agreements” with judges. Both remedial and punitive, judges who meet an agreement’s terms and conditions and successfully complete its steps can have the charges dismissed. Failure to comply with the agreement constitutes another misconduct charge. Some legal scholars argue that the agreements are an overreach not authorized by state law but they are allowed under a state Supreme Court decision.

Confidentiality pervades the judicial branch of state government. In Virginia, judges from Juvenile and Domestic Relations Courts to Supreme Court justices are elected by the General Assembly in a largely veiled process.

Once appointed to a set term of years, judges have broad authority to act outside the public view except for proceedings in open court such as hearings, arguments or trials and most filings related to those matters.

Much of the secrecy is reasonable. Public and private-sector hiring decisions are almost exclusively deliberated in private. Judges also need some leeway to conduct sensitive closed-door proceedings in matters before the court.

But are Virginians owed more transparency and accountability about legitimately questionable actions by judges whom the law vests with great power over individuals’ liberty and property?

Open government advocates think so.

“It’s so bad that I have this bad habit of pretending it doesn’t even exist,” said Megan Rhyne, the executive director of the Virginia Coalition for Open Government, who earned a law degree from the University of Colorado. The courts are off-limits as far as Virginia’s Freedom of Information Act is concerned.

“There’s just no way to demand accountability. There is nothing you can latch onto the way you could with a state agency or a local government to say to them, ‘You should be more accountable!’” she said. “Nothing sticks when you’re dealing with the judiciary.”

It’s not as though the press and public are trying to intrude on legitimately closed judicial deliberations. They’re not.

“These guys buy chairs. They pay payrolls. They talk about expansions, and all of that should be subject to disclosure just like anything else,” Rhyne said. “Yet anything a judge has is off-limits.”

Which brings us back to Judge Fisher and the issue of who judges the judges. Has a complaint been filed against him? Did his actions violate the Canons of Judicial Conduct? And will we ever find out, one way or the other?

If the past five years hold any clue, the chances of that are roughly 2 out of 2,274.

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Bob Lewis
Bob Lewis

Bob Lewis covered Virginia government and politics for 20 years for The Associated Press. Now retired from a public relations career at McGuireWoods, he is a columnist for the Virginia Mercury. He can be reached at [email protected]

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