Code of Virginia

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Code of Virginia
Title 17.1. Courts of Record
Chapter 9. Judicial Inquiry and Review Commission
9/23/2021

Chapter 9. Judicial Inquiry and Review Commission.

§ 17.1-900. Definitions and application of chapter.

As used in this chapter, unless the context requires a different meaning:

"Commission" means the Judicial Inquiry and Review Commission provided for in Article VI, Section 10 of the Constitution of Virginia.

"Judge" means a justice of the Supreme Court, judge of the Court of Appeals, judge of a circuit or district court, member of the State Corporation Commission, or a member of the Virginia Workers' Compensation Commission and includes (i) persons who have been elected or appointed to be judges but have not taken the oath of office as judge as well as persons who have taken such oath, (ii) judges designated under § 17.1-105, (iii) judges under temporary recall under § 17.1-106, (iv) judges pro tempore under § 17.1-109 and (v) special justices appointed pursuant to § 37.2-803, all of whom shall be subject to investigations and proceedings under the provisions of this chapter.

"Term" means (i) the period of time between either election or appointment of service as a judge and the first taking of the oath of office, (ii) each period of time for which the person was either elected or appointed as a judge, and (iii) any period of time after retirement during which the person hears cases as a retired judge.

1971, Ex. Sess., c. 154, § 2.1-37.1; 1984, c. 703; 2001, cc. 113, 844; 2004, c. 363.

§ 17.1-901. Commission created; membership and terms of office.

There is created a Judicial Inquiry and Review Commission in the judiciary branch of government, composed of seven persons who shall be citizens and residents of the Commonwealth. The members of the Commission shall be chosen by the vote of a majority of the members elected to each house of the General Assembly. The Commission shall elect a chairman and vice-chairman annually from its membership.

The Commission shall consist of three judicial members, who shall be (i) one active judge of a circuit court, (ii) one active judge of a general district court and (iii) one active judge of a juvenile and domestic relations district court; two lawyer members, who shall be active members of the Virginia State Bar who are not judges and who have practiced law in the Commonwealth for 15 or more years immediately preceding their appointment; and two public members who shall not be active or retired judges and shall never have been licensed lawyers.

After the initial appointments, the term of office of each member shall be four years commencing on July 1. No member of the Commission shall be eligible to serve more than two consecutive terms. The remainder of any term to which a member is appointed to fill a vacancy shall not constitute a term in determining the member's eligibility for reappointment.

Commission membership terminates whenever a member resigns or ceases to possess the qualifications that made him eligible for appointment. During any vacancy, which may exist while the General Assembly is not in session, the Governor may appoint a successor to serve until 30 days after the commencement of the next session of the General Assembly. Upon election of a successor by the General Assembly, the new member of the Commission shall serve for the remainder of the term of office of his predecessor.

Any member of the Commission who is the subject of an investigation or hearing by it or is otherwise personally involved therein shall be disqualified by the Commission from acting in such proceedings. In such a case the Governor shall appoint a person possessing the original qualifications of such member as prescribed by this section to serve temporarily as a substitute member of the Commission in such proceedings.

1971, Ex. Sess., c. 154, § 2.1-37.3; 1978, c. 452; 2001, c. 844; 2004, c. 1000.

§ 17.1-902. Powers and duties of Commission generally.

The Commission is vested with the power, and it shall be its 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 under Article VI, Section 10 of the Constitution of Virginia and the provisions of this chapter even though the subject judge may have been reelected to a new term of office.

The Commission, after such investigation as it deems necessary, may order and conduct hearings at such times and places in the Commonwealth as it shall determine.

If the Commission finds the charges to be well-founded, and sufficient to constitute the basis for retirement, censure, or removal of a judge, it may file a formal complaint before the Supreme Court.

The Commission shall have the authority to make rules, not in conflict with the provisions of this chapter or of general law, to govern investigations and hearings conducted by it.

No act of the Commission shall be valid unless concurred with by a majority of its members.

1971, Ex. Sess., c. 154, §§ 2.1-37.4, 2.1-37.5, 2.1-37.6; 2001, c. 844.

§ 17.1-903. Officers and employees; experts and reporters; witnesses; legal counsel.

The Commission may (i) employ such officers, assistants, and other employees it deems necessary for the performance of its duties; (ii) arrange for and compensate medical and other experts and reporters; (iii) arrange for attendance of witnesses, including witnesses not subject to subpoena; and (iv) pay from funds available to it all expenses reasonably necessary for effectuating the purposes of Article VI, Section 10 of the Constitution of Virginia and the provisions of this chapter, whether or not specifically enumerated herein. The Attorney General shall, if requested by the Commission, act as its counsel generally or in any particular investigation or proceeding.

The Commission may employ counsel, notwithstanding the provisions of § 2.2-510.

1971, Ex. Sess., c. 154, § 2.1-37.7; 1978, c. 260; 2001, c. 844.

§ 17.1-904. Compensation and expenses.

Members of the Commission shall receive compensation for their services and shall be allowed all reasonable and necessary expenses incurred in the performance of their duties as provided in §§ 2.2-2813 and 2.2-2825. The compensation and expenses of members and all other necessary expenses of the Commission shall be provided from existing appropriations to the Commission.

1971, Ex. Sess., c. 154, § 2.1-37.8; 1978, c. 452; 1979, c. 316; 2001, c. 844; 2004, c. 1000.

§ 17.1-905. Annual report.

On or before December 1 of each year, the Commission shall publish a report detailing the activities of the Commission for the prior year. The report shall include the number of complaints filed with the Commission; the number of complaints originating from attorneys, judges, court employees, or the general public; the number of complaints dismissed 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; the number of complaints for which the Commission concluded that the Canons of Judicial Conduct were breached; and the number of cases from which the staff or any member of the Commission recused himself due to an actual or possible conflict.

1997, cc. 914, 921, § 2.1-37.8:1; 2001, c. 844.

§ 17.1-906. Jurisdiction of Supreme Court.

In addition to the jurisdiction conferred on the Supreme Court by Article VI, Section 1 and Section 10 of the Constitution of Virginia, to conduct hearings and impose sanctions upon the filing by the Commission of complaints against justices of the Supreme Court, judges of other courts of record, and members of the State Corporation Commission, the Supreme Court by virtue of this chapter shall have the same jurisdiction, to be exercised in the same manner, upon the filing by the Commission of complaints against all other judges as defined in this chapter.

1971, Ex. Sess., c. 154, § 2.1-37.2; 2001, c. 844.

§ 17.1-907. Oaths; inspection of books and records; subpoenas.

In the conduct of investigations and formal hearings, the Commission may (i) administer oaths and affirmations; (ii) order and otherwise provide for the inspection of books and records; and (iii) issue subpoenas for the attendance of witnesses and the production of papers, books, accounts, documents, and other records or tangible evidence relevant to any such investigation or formal hearing.

The power to administer oaths and affirmations, to issue subpoenas, or to make orders for or concerning the inspection of books and records may be exercised by any member of the Commission, unless the Commission shall otherwise determine.

1971, Ex. Sess., c. 154, § 2.1-37.9; 2001, c. 844.

§ 17.1-908. Scope of process.

In any investigation or formal proceeding in any part of the Commonwealth, any process issued pursuant to the provisions of § 17.1-907 shall be effective throughout the Commonwealth.

1971, Ex. Sess., c. 154, § 2.1-37.10; 2001, c. 844.

§ 17.1-909. Order compelling witness to attend and testify.

If any person refuses to attend or testify or produce any writings or things required by any such subpoena, the Commission may petition any court of record in the Commonwealth for an order compelling such person to attend and testify or produce the writings or things required by the subpoena before the Commission. The court shall order such person to appear before it at a specified time and place and show cause why he had not attended or testified or produced the writings or things as required. A copy of the order shall be served upon him. If it appears to the court that the subpoena was regularly issued, the court shall order such person to appear before the Commission at the time and place fixed in the order and testify or produce the required writings or things. Upon failure to obey the order, such person shall be dealt with by such court as for contempt of court.

All process in any such case may be served in the manner prescribed by law for service of process in civil actions.

1971, Ex. Sess., c. 154, § 2.1-37.11; 2001, c. 844.

§ 17.1-910. Depositions.

In any pending investigation or formal hearing, the Commission may order the deposition of a person residing within or without the Commonwealth to be taken in such form and subject to such limitations as may be prescribed in the order. If the subject judge and counsel for the Commission do not stipulate as to the manner of taking the deposition, either the judge or counsel for the Commission may file in a trial court of record a petition entitled "In the Matter of Proceeding of Judicial Inquiry and Review Commission No.....… (state number)" and stating generally, without identifying the judge, the nature of the pending matter, the name and residence of the person whose testimony is desired, and directions, if any, of the Commission, asking that an order be made requiring such person to appear and testify before a designated officer. Upon the filing of the petition, the court may make an order requiring such person to appear and testify. A subpoena for such deposition shall be issued by the clerk of the court and the deposition shall be taken and returned, in the manner prescribed by law for depositions in civil actions. Upon failure of the person named in the subpoena to appear and testify, he shall be dealt with by such court as for contempt of court. If the deposition is that of a person residing or present within this Commonwealth, the petition shall be filed in the court of record of the county or corporation in which such person resides or is present; otherwise in the Circuit Court of the City of Richmond.

1971, Ex. Sess., c. 154, § 2.1-37.12; 2001, c. 844.

§ 17.1-911. Suspension of judge.

A. In any pending investigation or formal hearing, 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.

B. The Commission shall give the judge reasonable notice of such suspension as prescribed by the rules of the Commission and, if requested by the judge or his attorney, shall schedule a hearing during the first fifteen days of the suspension in order to determine whether justice would be served for the suspension to continue until the completion of the investigation or formal hearing.

C. Any judge whose powers are suspended by the Commission shall not exercise judicial powers during such suspension, but shall continue to be bound by the Canons of Judicial Conduct.

1998, cc. 672, 862, § 2.1-37.12:1; 2001, cc. 309, 318, 844.

§ 17.1-912. Physical or mental examination.

A. Whenever the Commission has probable cause to believe a judge is unable to perform his duties as a judge because of excessive use of alcohol or drugs or physical or mental illness, the Commission, after preliminary investigation by informal conference, may direct that the judge submit to a mental or physical examination by a health care provider approved by the Commission after consultation with the judge. The health care provider's report shall be in writing. Upon request, the judge shall provide the Commission with all waivers and releases necessary to authorize the Commission to receive all medical records, reports, and information from any health care provider regarding the judge's mental or physical condition.

B. Any judge ordered to be examined pursuant to this section shall be afforded reasonable notice and an opportunity for a hearing before such examination is conducted as to any matters regarding the examination and as to whether there is probable cause to believe that the judge is unable to perform his duties as a judge because of excessive use of alcohol or drugs or physical or mental illness. During such hearing, the judge shall have the right to call witnesses on his behalf.

C. All costs related to examinations conducted at the direction of the Commission shall be paid out of sums appropriated for the operation of the Commission. The failure of a judge to submit to an examination ordered pursuant to this section or to provide waivers and releases required by this section shall constitute grounds for a new charge.

1998, cc. 672, 862, § 2.1-37.12:2; 2001, c. 844.

§ 17.1-913. Confidentiality of papers and proceedings.

A. All papers filed with and proceedings before the Commission, and under §§ 17.1-909 and 17.1-910, 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, except that the record of any proceeding filed with the Supreme Court shall lose its confidential character. However, if the Commission finds cause to believe that any witness under oath has willfully and intentionally testified falsely, the Commission may direct the chairman or one of its members to report such finding and the details leading thereto including any transcript thereof to the attorney for the Commonwealth of the city or county where such act occurred for such disposition as to a charge of perjury as the Commonwealth may be advised. In any subsequent prosecution for perjury based thereon, the proceedings before the Commission relevant thereto shall lose their confidential character.

All records of proceedings before the Commission which are not filed with the Supreme Court in connection with a formal complaint filed with that tribunal, shall be kept in the confidential files of the Commission.

However, a judge who is under investigation by the Commission, or any person authorized by him, may divulge information pertaining to a complaint filed against such judge as may be necessary for the judge to investigate the allegations in the complaint in preparation for the proceedings before the Commission.

B. Advice on judicial ethics given by an attorney employed by the Commission to a judge and the records of such advice shall be confidential and not be divulged except as permitted in subsection A. However, the Commission may share such advice, but not the identity of the judge to whom the advice was given, with a committee established by the Supreme Court for the development of formal judicial ethics advisory opinions. Any such shared information shall remain confidential within such committee.

1971, Ex. Sess., c. 154, § 2.1-37.13; 1979, c. 11; 1984, c. 650; 1993, c. 92; 2001, c. 844; 2005, c. 508.

§ 17.1-914. Privilege.

The filing of papers with and the giving of testimony before the Commission shall be privileged, except where such filing of papers or giving of testimony is motivated or accompanied by actual malice. No other publication of such papers or proceedings shall be privileged in any action for defamation except that (i) the record filed by the Commission with the Supreme Court, in support of a formal complaint filed therewith, continues to be privileged and (ii) a writing which was privileged before its filing with the Commission shall not lose such privilege by such filing.

1971, Ex. Sess., c. 154, § 2.1-37.14; 2001, c. 844.

§ 17.1-915. Witness fees; mileage; exception.

A. Each witness, shall receive for his attendance the same fees and all witnesses shall receive the same mileage allowed by law to a witness in civil cases. The amount shall be paid by the Commission from funds appropriated for the use of the Commission.

B. This section shall not apply to an officer or employee of the Commonwealth or a political subdivision thereof, or an officer or an employee of a court of the Commonwealth.

1971, Ex. Sess., c. 154, § 2.1-37.15; 2001, c. 844.

§ 17.1-916. Costs.

No award of costs shall be made in any proceeding before the Commission or the Supreme Court.

1971, Ex. Sess., c. 154, § 2.1-37.16; 2001, c. 844.

§ 17.1-917. Assistance and information.

State and local public bodies and departments, officers and employees thereof, and officials and all personnel of the courts of the Commonwealth shall cooperate with and give reasonable assistance and information to the Commission and any authorized representative thereof, in connection with any investigations or proceedings within the jurisdiction of the Commission.

1971, Ex. Sess., c. 154, § 2.1-37.17; 2001, c. 844.

§ 17.1-918. Transmission of certain information to Virginia State Bar, House Committee for Courts of Justice, the Senate Committee on the Judiciary, and other members of the General Assembly.

A. The Judicial Inquiry and Review Commission shall transmit to the appropriate District Committee of the Virginia State Bar any complaint or evidence that may come to its attention with reference to the alleged misconduct of a judge, substitute judge or pro tempore judge which relates to his private practice of law.

B. The Commission shall also transmit any evidence that it has in its possession with reference to the alleged misconduct of any judge whose election is to be considered at the next session of the General Assembly to (i) the House Committee for Courts of Justice and the Senate Committee on the Judiciary and (ii) any member of the General Assembly, upon request. Such evidence shall include the nature of the complaint, the current status of the complaint, the duration of any suspension and the evidence supporting the probable cause finding therefor, a description of any remedial course of action, and a statement concluding whether any such remedial course was successfully undertaken. A copy of any evidence in whatever form so transmitted shall be sent to the judge in question. Any such evidence transmitted to the House Committee for Courts of Justice and the Senate Committee on the Judiciary or to any member of the General Assembly shall lose its confidential character.

1973, c. 387, § 2.1-37.17:1; 1993, c. 92; 1997, c. 914; 1998, cc. 757, 804; 2001, c. 844; 2004, cc. 332, 363.

§ 17.1-919. Service of process; execution of orders.

It shall be the duty of the sheriffs and sergeants in the several counties, cities, and towns, upon request of the Commission or its authorized representative, to serve process and execute all lawful orders of the Commission or entered by the court at its request without costs therefor.

1971, Ex. Sess., c. 154, § 2.1-37.18; 2001, c. 844.