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High court weighs sanction for sitting judge

Appellate arguments sometimes reduce to a couple of questions: How does this set of facts fit with prior precedent and how will the court’s decision affect future conduct?

There have only been five published cases in which the Supreme Court of Virginia has considered sanctions against a sitting judge, according to Virginia Beach lawyer Kevin Martingayle. He appeared before the high court Thursday to defend Hopewell Juvenile and Domestic Relations Judge Jacqueline Waymack. The Judicial Inquiry and Review Commission charges Waymack violated judicial canons by sending text messages to a court employee that indirectly referenced the judge’s nephew’s political campaign and that she improperly appeared in the back of the courtroom in a case in which she had been recused.

In the first charge, JIRC alleges Waymack “knowingly assisted her mother” who was actively campaigning for the nephew by texting the court employee to request a phone number of the employee’s mother, who in turn could be called by Waymack’s mother.

“How is this assisting in a campaign”? asked Justice Leroy F. Millette Jr.

“Basically, it’s a get out the delegate” effort for the upcoming meeting to select a political candidate, responded Donald R. Curry, JIRC counsel.

“How is getting a phone number campaign activity? This is just obtaining a phone number,” Millette followed up. “Doesn’t the record show they were friends,” not just professional colleagues, asked Justice Elizabeth B. Lacy, who was sitting as a senior justice. Justice Cleo E. Powell, who supervised Waymack pursuant to an earlier disciplinary proceeding, did not hear the case.

“If the text did not refer to the meeting and only said is it too late to call your mother, would that make a difference?” Lacy asked.

It might, Curry said, because we wouldn’t know what the communication was about. But the reference to the meeting the next day showed the judge’s contact was intended to “smooth the way,” he said.

The second charge alleged Waymack acted improperly when she took a seat in the back of the courtroom at a substitute judge’s hearing in Brenzie v. Brenzie, which involved a party Waymack was dating. The local judges all had recused themselves because of the personal relationship between the judge and Mr. Brenzie.

There was a question about what other kinds of relationships would make a courtroom out-of-bounds for a sitting judge.

“Would it make any difference if a judge was actually married to the party in the proceeding”? Lacy asked. “If a judge-spouse recuses herself, could the judge-spouse be present in the courtroom during the proceedings”?

Curry said he would advise against the judge-spouse being present in the courtroom because of an appearance of impropriety. Think about how that appears to everyone else in the courtroom, Curry argued. Other community members in the audience could misinterpret the judge’s show of support for a spouse.

Millette and Lacy asked about the significance of the judge’s prior disciplinary record, which JIRC proffered as a reason for pursuing the public case.

If the court decides the judge deserves discipline on a particular set of facts, that says to all judges of the commonwealth that a particular action is grounds for censure, not just grounds for censure with a prior record, Lacy said.

Martingayle said that case law and the judicial canons do not support censure of a judge for “silent, unobtrusive, observational” behavior in a public courtroom, motivated by the judge’s “attempt to console a nervous litigant.”

On a separate matter, Waymack previously sought advice through other counsel on whether she could appear as a witness in a case. Martingayle said Waymack was advised that the better course would be to avoid appearing as a witness, if possible, but she could appear as a fact witness if necessary. Based on this advice, Waymack reasonably thought she “could certainly do the lesser thing” by sitting quietly in the back of the courtroom, Martingayle said.

In his rebuttal, Curry urged the court to consider the overall circumstances of the public’s exposure to Waymack’s involvement in the Brenzie case.

“The judicial system depends on the public’s respect for the judiciary,” Curry said.

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