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Circuit judge may face conduct inquiry

Virginia CapitolA circuit judge up for re-election at the coming General Assembly session may confront questions about his curt treatment of a lawyer during a 2009 courtroom exchange that prompted a disciplinary charge.

That year, Bedford County Circuit Judge James W. Updike Jr. admitted to the Judicial Inquiry and Review Commission that he failed to be patient and courteous with a lawyer he believed had overstepped boundaries while trying to get an injunction. Updike agreed to a two-year period of administrative supervision, which he successfully completed.

The record of Updike’s strong language and discipline by the commission was provided to the Assembly’s courts committees Oct. 8 and made public in accordance with a Virginia statute, Code § 17.1-918.

The lawyer who represented Updike in the 2009 action said he did not believe the administrative sanction would harm Updike’s bid for another term on the bench.

Charging Updike with misconduct in 2009, the JIRC said he treated attorney H. David Gibson of Roanoke “in an intemperate, impatient and uncivil manner that is entirely inconsistent with the behavior and conduct that is expected and required of Virginia judges.”

Gibson had been trying to get a quick hearing in a civil case, according to a transcript of his brief appearance before Updike on June 4, 2009. The transcript was attached to the formal notice of judicial discipline charges against Updike.

Updike appeared miffed that Gibson first had tried to get a Lynchburg judge to consider the injunction when Updike was unavailable because of a jury trial. Updike also believed Gibson had noticed a hearing in Bedford without first clearing the time with the judge’s office.

Gibson said he relied on a state statute to seek the hearing with the Lynchburg judge, and he believed his office had scheduled the later hearing in Updike’s court. Updike disputed that account, suggesting Gibson noticed the hearing without getting the court’s approval.

“If you ever pull a stunt like this before this Court again I am going to lock you up” for contempt, the judge said, according to the transcript.

“You have been discourteous and disrespectful to this Court,” Updike continued. “And you better, you better count your lucky stars and be thankful that I don’t have these deputies carry you out the back of this courthouse this afternoon. Now, get out of this courtroom.”

The notice of charges that followed three months later does not indicate who made the complaint against Updike. The JIRC charged Updike with three violations of the state Canons of Judicial Conduct.

In an agreement with the JIRC, Updike acknowledged violation of two judicial canons – failure to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary and failure to be patient, dignified and courteous.

The judge agreed to step aside for one year from cases involving Gibson’s law firm, Gentry, Locke Rakes & Moore. He agreed to submit quarterly written reports to the JIRC for two years describing how he handled any incidents implicating the duty of courtesy.

Updike also agreed to provide a final written report on “the benefits, if any, that he has derived from the period of supervision.”

Updike completed the period of supervision, according to a Nov. 8, 2011 order removing the matter from the commission docket.

The matter should not have any effect on Updike’s re-election, said Thomas M. Blaylock of Roanoke, who represented Updike before the JIRC. The incident was over four years ago, Updike “complied with everything he was asked to do,” and he apologized to the lawyer involved, according to Blaylock.

“He’s a good judge. It would be a shame to lose him,” Blaylock said.

Monica Taylor Monday, managing partner of Gentry Locke, responded to an inquiry to Gibson about the underlying case.

Monday said she did not feel it was appropriate to comment on that case, given the circumstances.

“The Judicial Inquiry and Review Commission has addressed this issue and we consider the matter concluded.  We have full confidence and respect for the judicial selection process that is now underway,” Monday said in a later statement.

The case before Updike in 2009 involved a dispute between a landowner and the owner of a communications tower on the land.

The landowner had blocked the road leading to the mountaintop tower, and the communications company wanted a judge to order the landowner to allow access, according to Robert T. Wandrei of Bedford, the lawyer for the landowner.

Wandrei said he believed Updike had reason to be annoyed because lawyers for the communication company had not properly scheduled a hearing.

“He’s like a lot of us. He sometimes gets upset and, in this case, rightly so,” Wandrei said.

Wandrei had no criticism of Updike overall. “He’s very thorough. I think he’s a very good judge,” Wandrei said.

In the communications tower case, the Supreme Court of Virginia in 2008 had affirmed Updike’s earlier ruling that a lease allowed only one communications tower. A wireless provider had already begun construction on a second tower. The case was Nextel WIP Lease Corp. v. Saunders.

Updike, the former Bedford County commonwealth’s attorney, unsuccessfully sought the Democratic nomination for state attorney general in 1993. The General Assembly elected him to the general district bench in 1995 and to the circuit bench in 1998, succeeding William W. Sweeney.

Updike most recently won re-election as a circuit judge in 2006. His term expires March 31, 2014.

As commonwealth’s attorney, Updike prosecuted Jens Soering and Nancy Haysom for the brutal 1985 murders of Haysom’s parents at their Lynchburg-area home. Soering was convicted of the killings and Haysom pleaded guilty to being an accessory.

As a circuit judge, Updike presided over the murder trial of Wesley Earnest, a former Chesapeake school administrator accused of killing his wife in Bedford County and trying to make the death appear to be a suicide.

There were two trials. Updike struck the first guilty verdict because the jury inadvertently was provided materials the judge excluded from evidence. A second guilty verdict in 2010 was upheld on appeal.

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