J&DR judge may face questions on JIRC report

Hopewell J&DR Judge Jacqueline R. Waymack will seek another six-year term on the bench during the 2009 General Assembly session, but she may be asked to explain a finding of misconduct by the Judicial Inquiry and Review Commission to win reelection.

Most JIRC proceedings remain behind closed doors. But when a judge comes up for reappointment, the commission is required by law to report any findings of misconduct to the General Assembly.

The matter involving Waymack, who sits on the juvenile and domestic relations bench in the Sixth Judicial District, occurred three years ago. The judge avoided a formal hearing in January 2005 when she accepted the commission’s conclusion that she had failed to avoid the appearance of impropriety. She also agreed to a two-year period of supervision and not to hear cases involving the Hopewell commonwealth’s attorney’s office and her former law partner for a period of time.

Waymack successfully completed that two-year term of supervision, and in January 2007 the commission entered an order removing the case from its docket.

Much of the formal notice of alleged misconduct filed in November 2004 focused on a motion by Hopewell Commonwealth’s Attorney Anthony Sylvester for Waymack to recuse herself from hearing cases involving her former law partner and fiancé Brad P. Butterworth.

After a hearing on the motion, Waymack wrote a 10-page opinion order in which she found that the motion was “clearly not made in good faith” and criticized Sylvester for failing to produce evidence of a relationship with Butterworth that would require recusal. She indicated that she would report Sylvester to the Virginia State Bar because she believed he had violated legal ethics in filing the motion.

The notice also alleged that Waymack took substantive action at least 25 times in cases involving Butterworth during her first six months on the bench.

Butterworth and Waymack were partners when she was appointed, and they were engaged from December 1998 to June 2000. In her answer to the notice, Waymack acknowledged that she took some administrative actions involving Butterworth but said she “scrupulously scheduled cases involving Mr. Butterworth for hearings on days when she knew she would not be on the bench.”

Significantly, despite the initial allegation of a pattern of favoritism toward Butterworth, the formal finding of misconduct cited only one instance in which Waymack acted improperly in a case involving Butterworth. About four months after taking the bench, she told Butterworth that she would handle a bond hearing if she and a prosecutor could reach an agreement.

Butterworth went to another court where the prosecutor told him that he was tied up but that Butterworth could represent to Waymack that he would agree to release of the defendant on a secured bond. After Butterworth conveyed that information, Waymack released the defendant with an electronic monitor.

The commission also found improper a comment by Waymack in a case involving an effort by a mother, who was a stripper, to regain custody from the child’s paternal grandmother. Waymack refused to change custody and commented that the case might be decided differently by “one of our male liberal judges upstairs.”

In her response, Waymack acknowledged that the comment was inappropriate and said she was sorry to have made it. But she said it was in the context of an argument by the mother’s attorney that she found “disingenuous and offensive.” The attorney said stripping was a wholesome activity and it would be better for the child to go to work with her mother than to stay with the grandmother, Waymack said.

Waymack said she believed that the appropriate period of time to avoid hearing cases involving a former law partner was six months, although she subsequently learned that 12 months might have been a more suitable period. Scheduling because of recusals was difficult in the far-flung judicial district that extends from Hopewell to the North Carolina line because it has only two J&DR judges, she said.

The authority of JIRC to enter into supervisory agreements came into question in June 2006 when the Supreme Court of Virginia split 4-3 on the issue. The majority found implicit authority for the commission to impose a lesser sanction than censure, retirement or removal, but the dissenters consented that the lack of an explicit provision for such a sanction prevents the commission from imposing it.

As for any complaint Waymack might have filed with the VSB, Bar Counsel Edward L. Davis said he could not comment on the existence of such a complaint. Public bar records contain no disciplinary proceedings against Sylvester, and Davis said complaints found to have no merit after a preliminary investigation typically are destroyed after a year.