Judicial Inquiry & Review Comm'n v. Waymack ( 2012 )

PRESENT: Lemons, Goodwyn, Millette, Mims, and McClanahan, JJ.
and Russell and Lacy, S.JJ.
JUDICIAL INQUIRY AND REVIEW
COMMISSION OF VIRGINIA
OPINION BY
v. Record No. 120398 JUSTICE DONALD W. LEMONS
NOVEMBER 1, 2012
JACQUELINE R. WAYMACK,
JUDGE OF THE SIXTH JUDICIAL DISTRICT
The Judicial Inquiry and Review Commission (the
"Commission") filed the present complaint against Jacqueline R.
Waymack, Judge of the Sixth Judicial District, pursuant to the
original jurisdiction of this Court set forth in Article VI,
Section 10 of the Constitution of Virginia and Virginia Code
§ 17.1-902. The Commission asserted that its charges against
Judge Waymack for allegedly violating the Canons of Judicial
Conduct (the "Canons") are well founded in fact, and that the
violations are of sufficient gravity to constitute the basis for
censure or removal by this Court. We conclude that there is not
clear and convincing evidence that Judge Waymack engaged in
either "misconduct" or "conduct prejudicial to the proper
administration of justice." Va. Const. art. VI, § 10.
Therefore, we will dismiss the complaint.
I. FACTS AND PROCEEDINGS
On October 11, 2011, the Commission issued a Notice
establishing formal charges ("Notice") against Judge Waymack
that she had engaged in misconduct or engaged in conduct
prejudicial to the proper administration of justice while
serving as a judge in the Juvenile and Domestic Relations Court
for the Sixth Judicial District (the "J&DR court"). Judge
Waymack was charged with alleged violations of Canons 1, 2, 2B,
and 5A(3).
A. The Electronic Text Messages
The Commission alleged that on the evening of July 22,
2011, Judge Waymack sent inappropriate electronic text messages
from her cellular telephone to an employee of the City of
Hopewell District Court's clerk's office. At the time Judge
Waymack sent the messages to the court employee, her nephew,
Joseph Waymack, was seeking his party's nomination to run for a
seat in the House of Delegates. The nominee was to be chosen at
a meeting in Windsor, Virginia, on the following day. According
to the Commission, Judge Waymack attempted to assist her nephew
in obtaining the nomination by sending a text message to the
court employee to ascertain whether the court employee's mother
would be attending the meeting.
In the messages that Judge Waymack sent to the court
employee, she identified herself as "Jackie." Judge Waymack
informed the court employee that the employee's mother had
"signed up to go to this meeting tomorrow for my nephew Joseph,"
and then asked, "[i]s your mom still awake? Do you know if
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she's going or if it's too late for my mom to call her?" When
the court employee informed Judge Waymack that her mother was on
vacation, Judge Waymack responded, "Serious? Well guess she
won't be at the meeting then...Ok. Thanks!"
In Judge Waymack's answer to the Notice of formal charges,
she admitted that she sent the referenced message to the court
employee, and that when she sent that message her nephew was
seeking his party's nomination to run for a seat in the House of
Delegates. Judge Waymack denied, however, that the text message
violated any Canons. Judge Waymack further denied that her
intent in sending the message was to assist her nephew in
obtaining the nomination.
B. The Courtroom Appearance
In June of 2011, the case of Carmella Brenzie v. Mark A.
Brenzie was pending in the JD&R court in Hopewell. On June 22,
2011, Mark Brenzie ("Brenzie"), by counsel, filed a motion dated
June 9, 2011, requesting that the judges of the juvenile and
domestic relations court recuse themselves because it was well
known in the general public that Brenzie was in a "close
personal relationship with a sitting judge of this Court." That
motion was granted, and Retired Judge Jannene L. Shannon was
designated by the Chief Justice to hear the case.
On July 27, 2011, Judge Shannon heard the matter of
Carmella Brenzie v. Mark A. Brenzie. Judge Waymack accompanied
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Brenzie into the courthouse and the courtroom, and she sat in a
chair at the back of the courtroom. At the beginning of the
hearing, counsel for Carmella Brenzie ("Carmella"), Adrienne
Eliades ("Eliades"), informed Judge Shannon that a motion to
recuse had been filed in this case because it was known that
Brenzie was in a relationship with a judge from the
jurisdiction. Eliades explained that the judge in question,
Judge Waymack, was sitting in the courtroom. Eliades argued
that Judge Waymack was the reason for the recusal, so she should
not be permitted to be in the courtroom.
Counsel for Brenzie, Stephen Heretick ("Heretick"),
responded that Brenzie did not plan on calling Judge Waymack as
a witness and that she was present in the courtroom merely as a
member of the public. Judge Shannon asked Judge Waymack if she
was the judge they were describing. Judge Waymack responded
affirmatively. Judge Shannon then stated that she thought "it
would be better if you were not in the courtroom." Judge
Waymack replied, "All right. Certainly. Certainly." Judge
Shannon stated that she thought that would "[p]rotect at least
the appearance of propriety, even though there would be no
impropriety, per se." Judge Waymack left the courtroom.
In Judge Waymack's answer to the Notice, she admitted that
she attended the court hearing with Brenzie, but she denied that
doing so violated any applicable Canons. Judge Waymack also
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alleged that she had previously contacted counsel for the
Commission through her counsel and obtained advice that it was
permissible for her to be a factual witness in related
proceedings, but not a character witness.
C. Prior Misconduct
In its Notice, the Commission alleged that all of the
foregoing conduct occurred after Judge Waymack had been formally
charged by the Commission in 2004 with several violations of the
Canons, had consented to a written finding that she had violated
the Canons, had agreed to a two-year period of supervision, and
had completed the supervision period in 2007. Judge Waymack
responded in her answer to the Notice that the prior Commission
record had no relevance or materiality to any of the issues
raised, and that it was inappropriate, prejudicial, and violated
due process and equal protection principles to reference, rely
upon, or make use of the prior Commission records in the current
proceeding. Judge Waymack asked the Commission to refrain from
making any further use of this material.
D. Commission Hearing
On February 14, 2012, the Commission conducted an
evidentiary hearing on the charges, at which time Judge Waymack
was present and represented by counsel. Judge Waymack filed
three motions prior to the evidentiary hearing; a motion to
dismiss and motion to strike, a "motion to exclude and strike
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evidence and allegations that are irrelevant, immaterial and/or
more prejudicial than probative," and a supplemental motion to
exclude any evidence or areas of inquiry outside the scope of
issues raised in the Notice. The Commission heard argument on
these motions and subsequently denied them.
Judge Waymack testified at the hearing that she sent the
text messages to the court employee, Lindsay Reid ("Reid"), to
get Reid's mother's phone number. Judge Waymack testified that
she had known Reid for many years, and they were on a "first
name basis" outside of the courtroom. Judge Waymack testified
that her mother was trying to see if people needed a ride to the
meeting the next day, and her mother did not have a phone number
for Reid's mother. Judge Waymack stated that she had never
discussed her nephew's campaign with Reid.
Regarding the courtroom appearance, Judge Waymack testified
that she went to the courthouse with Brenzie because he was
"very very upset." She stated that she went into the courtroom
to observe and sat in the back. When Judge Shannon said it
might be best if she left the courtroom, she agreed to do so and
left. Judge Waymack testified that because she had been
informed that it would be permissible for her to testify as a
fact witness, she believed she could come inside the courtroom
and sit silently in the back as an observer. Judge Waymack
testified that if she thought that anyone would be intimidated
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by her presence in the courtroom, she would not have gone in.
She stated that she attended the proceeding out of concern for
her friend and to observe on his behalf.
Carmela testified that when she saw Judge Waymack come into
the courtroom during the July 27, 2011 hearing, she was very
upset, and that having Judge Waymack in the courtroom made her
want "to vomit." Heretick testified that before the July 27,
2011 hearing, he met briefly with Eliades. At the conclusion of
that meeting, Eliades asked if Judge Waymack was going into the
courtroom, and said she would have a problem with Judge Waymack
being present in the courtroom. Heretick responded that he did
not know if Judge Waymack planned on going into the courtroom,
but that he believed she was entitled to attend as a public
citizen, and that she was just there for moral support.
Heretick did not have an opportunity to tell Judge Waymack about
Eliades' concerns, because when he left his meeting with
Eliades, Judge Waymack was already in the courtroom and Judge
Shannon was on the bench.
After the hearing, the Commission determined that Judge
Waymack violated Canons 1, 2, 2B, and 5A(3) and "that the
charges as stated in the Notice are well founded and of
sufficient gravity to constitute the basis for retirement,
censure or removal." The Commission then directed its counsel
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to file a complaint against Judge Waymack in this Court with a
recommendation of censure.
On March 12, 2012, the Commission filed its complaint with
this Court. In her answer to the Commission's complaint, Judge
Waymack alleged that the evidence in the record was insufficient
to establish any violations of the Canons. In addition, Judge
Waymack alleged that the Notice issued against her failed to
articulate any violations of the Canons, and that therefore
there was no basis for conducting a hearing at the Commission
level. Finally, Judge Waymack asserted that there was an
insufficient basis for any form of discipline based upon the
allegations, and she asked the Court to resolve all issues in
her favor and to dismiss the Complaint.
On March 28, 2012, Judge Waymack filed a demurrer and
motion to dismiss. Judge Waymack asked the Court to conduct an
initial review of the Commission's complaint, make a
determination whether the Complaint was sufficient to justify
any further proceedings, and dismiss the matter with prejudice.
The Commission filed an opposing response, and argued that once
it files a complaint in this Court, this Court must conduct a
hearing in open court, and that a demurrer or motion to dismiss
had no application in this type of proceeding. We issued an
order denying the demurrer and motion to dismiss.
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II. CANONS
The relevant portions of the Canons at issue in this case
state the following:
Canon 1:
A Judge Should Uphold the Integrity and
Independence of the Judiciary.
Canon 2:
A Judge Shall Avoid Impropriety and the
Appearance of Impropriety in All of the Judge's
Activities.
. . . .
B. A judge shall not allow family, social,
political or other relationships to influence the
judge's judicial conduct or judgment. A judge
shall not lend the prestige of judicial office to
advance the private interests of the judge or
others; nor shall a judge convey or permit others
to convey the impression that they are in a
special position to influence the judge. A judge
shall not testify as a character witness.
Canon 5:
A.(3) A judge shall not engage in any other
political activity except in behalf of measures
to improve the law, the legal system, or the
administration of justice.
Va. Sup. Ct. R., Part 6, § III, Canons 1, 2 and 5.
III. ANALYSIS
The filing of a formal complaint by the Commission
triggered this Court's duty to conduct a hearing in open court
to determine whether Judge Waymack "engaged in misconduct while
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in office, or . . . has engaged in conduct prejudicial to the
proper administration of justice." Va. Const. art. VI, § 10.
In conducting the hearing on the formal complaint
filed by the Commission, this Court considers the
evidence and makes factual determinations de
novo. The Commission must prove its charges in
this Court by clear and convincing evidence. The
term "clear and convincing evidence" has been
defined as "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 in criminal cases. It
does not mean clear and unequivocal."
Judicial Inquiry & Review Comm'n v. Lewis, 264 Va. 401, 405, 568
S.E.2d 687, 689 (2002) (citations omitted). This Court does not
accord any particular weight or deference to factual
determinations, findings and opinions of the Commission. See
Judicial Inquiry & Review Comm'n v. Peatross, 269 Va. 428, 444,
611 S.E.2d 392, 400 (2005). After conducting an independent
review of the record and hearing argument of counsel, we must
decide whether there is clear and convincing evidence of a
violation of the Canons as charged in the Commission's
complaint. Id. If we find such clear and convincing evidence,
we are required to censure or remove the judge from office. Va.
Const. art. VI, § 10.
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A. The Electronic Text Messages
Judge Waymack has admitted sending the electronic text
messages in question. The only issue before us is whether the
sending of these messages constitutes a violation of the Canons.
Judge Waymack testified that when she sent the text messages,
she was merely attempting to get the phone number of Reid's
mother and to ascertain whether it was too late for Judge
Waymack's mother to telephone Reid's mother. We conclude that
there was nothing in the actual language of the text messages
that was overtly political. There is also no evidence in the
record that Reid, when she received these messages, understood
them as being political in nature. We conclude that Judge
Waymack was not using the "prestige of judicial office"; she
merely asked a friend for a telephone number. Therefore, we
conclude that there is not clear and convincing evidence that
this conduct violated any of the Canons.
B. The Courtroom Appearance
Judge Waymack does not deny that she attended the Brenzie
hearing on July 27, 2011. There is no dispute that Judge
Waymack and the chief judge of the district were both recused
from the matter because of Judge Waymack's close personal
relationship with Brenzie. The Commission asserts that by
attending this hearing, Judge Waymack conveyed the impression
that she was not impartial with respect to the case or the
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parties, and that she was lending the prestige of judicial
office to Brenzie's interests.
In support of its argument, the Commission cites to cases
from New Jersey, California, and New York where judges were
disciplined for attending court proceedings as observers. In
the case of In re: Perskie, 24 A.3d 277 (N.J. 2011), the judge
was charged with, among other things, failing to recuse himself
when initially requested despite having a professional and
social relationship with a central witness in the case, and
appearing in the courtroom during the trial from which he had
finally recused himself. The judge appeared twice in the
courtroom during trial and remained for an hour on each
occasion, speaking with one of the plaintiff's attorneys during
one of those occasions. Id. at 283-84. In Broadman v. Comm'n
on Judicial Performance, 959 P.2d 715 (Cal. 1998), the judge
attended the malpractice trial of an attorney with whom he had
an antagonistic relationship. When a court employee asked the
judge why he had come to the trial, the judge replied that he
was "just being an asshole." Id. at 730. Several jurors knew
the judge and noted and discussed his presence in the courtroom.
Id.
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The Commission also cites In re: Thwaits, 2003 Ann. Rep.
171, 171-72, (N.Y. Comm'n on Judicial Conduct, Dec. 30, 2002). *
In that case, a judge recused herself from a case because of her
relationship to the defendant but then attended the trial and
sat in the courtroom near members of the defendant's family.
This judge, however, was not censured merely for attending the
family member's trial. Other egregious conduct was involved.
The judge reduced that same defendant's bail and modified the
protective order against him before recusing herself.
Additionally, in two other cases, one involving a family member
and one involving a social acquaintance, the judge granted
"adjournment in contemplation of dismissal" without consent or
notice to the prosecution as required by law. In yet another
case, she dismissed charges against a family member and did not
disclose to the prosecution her familial relationship to that
defendant. Id.
The Commission asserts that facts surrounding Judge
Waymack's presence at the Brenzie hearing are comparable to the
facts articulated in the cases above. We disagree. The facts
in the cases discussed above are more troubling than the facts
before us in this case. Here, Judge Waymack attended the
*
The opinion is a part of the 2003 Annual Report of the New
York State Commission on Judicial Conduct. See
http://www.cjc.ny.gov/Publications/AnnualReports/nyscjc.2003annu
alreport.pdf (last visited Sept. 19, 2012).
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hearing with her friend to observe as a member of the public.
She sat in the back of the courtroom. Until it was called to
her attention, presiding Judge Shannon did not know who Judge
Waymack was. As soon as Judge Shannon asked her to leave, Judge
Waymack did so. Although Judge Waymack's decision to attend
this hearing did not "exemplify the level of professionalism
that judges in this Commonwealth should exhibit," we cannot say
that Judge Waymack's actions and conduct violated the Canons,
nor were they so egregious as to amount to judicial misconduct
or conduct that was prejudicial to the proper administration of
justice. See Peatross, 269 Va. at 449-50, 611 S.E.2d at 404.
C. Prior Misconduct
Having determined that there is insufficient evidence of a
violation of any of the Canons, we do not need to consider Judge
Waymack's argument regarding prior history with the Commission.
IV. CONCLUSION
For these reasons, we hold that there is not clear and
convincing evidence showing that Judge Waymack violated the
specified Canons as charged. Judge Waymack's actions were not
so egregious as to amount to judicial misconduct or conduct that
was prejudicial to the proper administration of justice
warranting censure or removal from office. Therefore, we will
dismiss the complaint.
Dismissed.
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