The Court of Appeals of Virginia has declined to address a divorce lawyer’s appeal of her overnight jail stay on a purported contempt finding. The lawyer says the decision illustrates that she was never officially held in contempt by the judge.
In the Jan. 31 incident, Sterling attorney Rachel L. Virk said she was hauled out of the courtroom, strip searched, imprisoned and fined after Loudoun County Circuit Judge James P. Fisher found her in contempt for repeatedly requesting clarification of a divorce order.
But Fisher never issued a written order of contempt, the Court of Appeals said. Virk spent a night in jail based on an order signed only by a court clerk, according to her lawyer, Thomas Plofchan of Potomac Falls.
Without a written order finding Virk in contempt, her appeal was dismissed.
“No Virginia statute grants this Court jurisdiction of an appeal from an order entered by a clerk and committing a person to jail… Accordingly, this Court is without jurisdiction to entertain the appeal at this juncture,” according to an Aug. 14 unpublished order from a three-judge writ panel of the Court of Appeals.
Plofchan said that the appellate dismissal suggests that, because the judge didn’t sign a court order, he could not be faulted; rather, the clerk and sheriff’s deputy who detained Virk overnight were technically in the wrong.
“To me, that’s what they indicated. Because the judge didn’t sign an order, the judge had not gone to that step of actually completing an error that could be reviewed,” Plofchan said.
According to Plofchan, there were two orders entered: one that was signed by the clerk, and one that was “modified and edited” by an individual responsible for altering the amount of jail time given to Virk.
“That was also not signed by a judge,” Plofchan said. “We’re not sure if it was signed by the same clerk or not. It’s something very peculiar.”
Plofchan said the court’s dismissal is a “positive outcome” for Virk that may allow her to bring action against the Circuit Court clerk or sheriff’s deputy who held her in custody on Jan. 31.
Neither the clerk nor the sheriff’s deputy were named in this case.
“A clerk should know that they can’t sign such an order, and the sheriff’s [deputy] should know that they can’t execute such an order. When those actions occur to deprive someone of liberty, it stands to reason that there should be consequences,” Plofchan said.
In addition to her request for criminal appeal, Virk filed a complaint against Fisher with the state Judicial Inquiry and Review Commission.
The commission reported it took “action it deemed most appropriate under all the relevant circumstances,” according to a Sept. 8 letter. The commission did not elaborate.
“I don’t know what they did… But I would hope that they addressed it so that there’s a less than likely chance of something like this happening again,” Plofchan said.
The Jan. 31 incident arose out of a divorce action that presented questions about management of the husband’s business interests, according to Virk’s petition. Representing the husband, Virk had argued the judge did not have jurisdiction to impose restrictions on a foreign company in which the parties had been equal shareholders.
At the hearing, Fisher said he accepted the position of the wife’s lawyer and would order the business controls the wife requested, according to the appellate pleadings. As Virk pressed for clarification, Fisher said she was being disrespectful.
“You’re held in contempt, ma’am. Take custody of Mrs. Virk. Step her back. I impose a penalty of $250 and one night in the county jail. This matter is adjourned,” Fisher said, according to court documents.
According to Plofchan, Virk never received a fine.
“There’s no contempt order at all; so she wasn’t fined because she wasn’t imprisoned by the court, and yet she was taken into custody and spent a day in jail,” Plofchan said.
Plofchan said that, luckily, this incident has not interfered with Virk’s legal practice. Rather, there has been some discussion among bar members indicating that people are hesitant to make arguments on the behalf of their clients “because they don’t also want to suffer being ordered to jail.”
“You want to have a zealous advocate who should feel free in a courtroom to push back and to argue and to ask for rulings and preserve the record,” Plofchan said. “When zealous advocacy is punished through contempt power, I think the citizens suffer.”
In terms of “what’s next” for Virk, Plofchan said she is exploring her actions to ensure a similar outcome will never be repeated against another lawyer.
“The matter is closed as far as Ms. Virk, the judge and any allegations of contempt,” Plofchan said.
Fisher took office as a judge on July 1, 2019, after election to the bench by the General Assembly that January on a narrow party-line vote. At the time, he was the elected Fauquier County commonwealth’s attorney.
Fisher was not available for comment.
Virk is a family law attorney who has been in practice without prior sanction from a court or from the Virginia State Bar since 1990, her petition for appeal said.
Virk did not respond to a request for comment.