JUDICIAL INQUIRY AND REVIEW COMMISSION OF VIRGINIA v. WOODROW LEWIS, JR., JUDGE OF THE SECOND JUDICIAL DISTRICT
Record No. 020696
Supreme Court of Virginia
SEPTEMBER 13, 2002
OPINION BY JUSTICE CYNTHIA D. KINSER
Present: Carrico, C.J., Lacy, Hassell, Koontz, Kinser, and Lemons, JJ., and Compton, S.J.
The Judicial Inquiry and Review Commission was created to investigate charges that, if true, would warrant the retirement, removal, or censure of a judge.
The Commission conducted a hearing on February 12, 2002, at which Judge Lewis was present and represented by counsel. The following recited facts were undisputed at the hearing.* Judge Lewis, sitting as judge of the City of Virginia Beach Juvenile and Domestic Relations District Court, entered an order on October 3, 2001, requiring Albert Valery to surrender custody of his two children to their mother no later than 3:00 p.m. on that date. Judge Lewis denied the request of the children‘s guardian ad litem for a stay of his order pending an appeal to the Circuit Court of the City of Virginia Beach.
Mr. Valery did not surrender custody of his children at 3:00 p.m. as ordered. Instead, Mr. Valery brought the children to a circuit court hearing at 4:00 p.m. that day. At the conclusion of that hearing, the circuit court stayed Judge Lewis’ order pending a hearing scheduled for the afternoon of October 5.
On October 4, at the request of the children‘s mother,
At the show cause hearing, Mr. Valery‘s counsel presented Judge Lewis with a certified copy of the circuit court‘s stay order. Judge Lewis proceeded with the show cause hearing, found Mr. Valery in willful contempt of the October 3rd order, sentenced him to ten days in jail, and ordered that he be held without bond. Judge Lewis entered a contempt order styled “Certificate of Conviction,” which stated that Mr. Valery could purge the contempt and be released from jail upon his surrender of the children to their mother. Judge Lewis’ order made no mention of the circuit court‘s stay order. Mr. Valery was taken into custody and remained there until the circuit court dismissed the show cause summons later that afternoon.
Based upon these factual findings, the Commission concluded that Judge Lewis had violated Canons 1, 2, 2A, and 3B(2) of the Canons of Judicial Conduct for the State of Virginia and subsequently filed its formal complaint with this Court. The portions of the Canons referenced in the complaint provide:
A Judge Shall Uphold the Integrity and Independence of the Judiciary.
A. An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of these Canons are to be construed and applied to further that objective.
Canon 2
A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All the Judge‘s Activities.
A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
Canon 3
A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently.
* * *
B.(2) A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor or fear of criticism.
In conducting the hearing on the formal complaint filed by the Commission, this Court considers the evidence and makes factual determinations de novo. Commission v. Hoback, Record No. 911562 (Jan. 10, 1992). The Commission
that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.
Fred C. Walker Agency, Inc. v. Lucas, 215 Va. 535, 540-41, 211 S.E.2d 88, 92 (1975) (quoting Cross v. Ledford, 120 N.E.2d 118, 123 (Ohio 1954)).
It is undisputed that the circuit court did not stay Judge Lewis’ order until after the 3:00 p.m. deadline had passed without Mr. Valery‘s compliance with that order. Nevertheless, the issue we confront is not whether Judge Lewis had the authority to hold Mr. Valery in contempt for his failure to comply with an order that was ultimately stayed or whether a finding of contempt was appropriate given the circumstances of this case. Instead, our concern is focused on Judge Lewis’ inclusion of the purge clause in his “Certificate of Conviction,” providing for Mr. Valery‘s release from confinement if he surrendered the children as Judge Lewis had previously ordered.
From Judge Lewis’ own testimony, we find clear and convincing evidence that, in providing for the purge of contempt and Mr. Valery‘s release from confinement upon his surrender of the children to their mother, Judge Lewis deliberately, and with knowledge of the circuit court‘s stay, attempted to enforce his October 3rd order. Although Judge Lewis acknowledged that Mr. Valery was free to
Public confidence in the judiciary and the administration of our legal system depends upon faithful adherence to the law, an essential part of which is embodied in the judgments and rulings of higher courts. Courts cannot reasonably expect citizens to comply with their orders if the courts themselves do not yield to the orders of higher courts. Thus, we find clear and convincing evidence that Judge Lewis engaged in the conduct set forth in the formal complaint filed by the Commission, and that such conduct was prejudicial to the proper administration of justice, thereby warranting censure.
Accordingly, we order that Judge Lewis be, and he hereby is, censured for engaging in “conduct prejudicial to the proper administration of justice.”