JUD. INQUIRY & REVIEW COM'N OF VA v. Taylor

PRESENT: Koontz, Kinser, Lemons, Goodwyn and Millette, JJ.,
and Carrico and Russell, S.JJ.

JUDICIAL INQUIRY AND REVIEW
COMMISSION OF VIRGINIA
OPINION BY
v. Record No. 090845 JUSTICE LEROY F. MILLETTE, JR.
November 5, 2009

RAMONA D. TAYLOR, JUDGE OF
THE SECOND JUDICIAL DISTRICT

The Judicial Inquiry and Review Commission (“the

Commission”) filed the present complaint against Ramona D.

Taylor, Judge of the Second Judicial District, pursuant to the

original jurisdiction of this Court set forth in Article VI,

§ 10 of the Constitution of Virginia and Code § 17.1-902. The

Commission asserted that its charges against Judge Taylor for

allegedly violating the Canons of Judicial Conduct (“the

Canons”) are well founded in fact and are of sufficient

gravity to constitute the basis for censure by this Court.

I. FACTS AND PROCEEDINGS

On January 13, 2009, the Commission issued a Notice

establishing formal charges against Judge Taylor 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 District Court for the

City of Virginia Beach (“the juvenile and domestic relations
court”). Judge Taylor was charged with alleged violations of

Canons 1, 2, 2A, and 3B(2).

The Commission alleged that on May 2, 2007, at the

conclusion of an adjudicatory hearing on a misdemeanor assault

charge against a 15 year old defendant (“K.M.”), who was not

then in custody, Judge Taylor found K.M. guilty following his

plea of “not innocent.” During the adjudicatory hearing, the

Commission alleged, “someone in the courtroom audience blurted

out that [K.M] had used a racial epithet toward the victim of

the assault,” and Judge Taylor called witnesses to the stand

to testify about the use of the racial epithet. According to

the Commission, Judge Taylor found that K.M. represented a

risk of harm to the community, and remanded him to custody

pending a sentencing hearing scheduled for May 24, 2007.

The Commission further alleged that Judge Taylor denied

K.M.’s request for immediate sentencing so that an appeal

could be noted, and ordered that a social history be compiled

for the sentencing hearing. In addition, the Commission

alleged that Judge Taylor denied K.M.’s May 2, 2007 written

motion for bond and release pending the sentencing hearing by

order entered on May 3, 2007 that expressly stated it was “an

interlocutory, non-appealable order” (“May 3rd order”).

The Commission further contended that, by letter from his

counsel dated May 4, 2007, K.M. sought reconsideration of the

2
May 3rd order. The Commission alleged that K.M.’s four-page

letter outlined K.M.’s factual and legal argument in support

of bond, his appeal of the denial of bond to the next higher

court, and his request for an immediate sentencing so that he

could immediately appeal, because otherwise denying bail and

imposing incarceration would make K.M.’s right to a de novo

appeal meaningless. However, according to the Commission,

Judge Taylor denied reconsideration by an order in which she

maintained her position that the denial of K.M.’s motion for

bond and release was interlocutory and non-appealable (“May

8th order”). 1 The Commission alleged that when K.M. attempted

to appeal his case, the clerk of the juvenile and domestic

relations court (“the clerk of court” or “clerk”) refused to

process the appeal, and K.M. filed a petition for writ of

mandamus against the clerk in the Circuit Court for the City

of Virginia Beach (“the circuit court”). The writ of

mandamus, which was granted by order dated May 11, 2007,

directed the clerk of court to process an appeal of Judge

Taylor’s order. After a bond hearing also conducted on May

11th, the circuit court released K.M. to the custody of his

parents.

1
Judge Taylor entered a “Corrective Order” containing the
same language that “[t]his order is an interlocutory,
nonappealable order” on May 8, 2007 nunc pro tunc May 3, 2007.
3
 In Judge Taylor’s answer to the Notice of formal charges,

she maintained that she did not recall whether K.M.’s counsel

requested an immediate sentencing. Judge Taylor admitted that

she entered the May 3rd order denying K.M.’s motion for bond

and release pending the sentencing hearing, and that K.M.

requested reconsideration of that order. However, Judge

Taylor denied that K.M.’s counsel cited to authority that

clearly gave K.M. the right to appeal the decision denying

bail and asserted that the authority cited by K.M.’s counsel

is “subject to contrary legal interpretations with regard to

its applicability to juvenile defendants detained post-

adjudication and pre-disposition.”

Judge Taylor admitted that at the mandamus hearing, the

attorney for the clerk of court asserted that the clerk was

“under a direct order by [Judge Taylor] as the Chief Judge not

to process the defendant’s appeal,” but averred that the

attorney incorrectly stated the capacity in which Judge Taylor

served when she advised the clerk regarding the appealability

of the May 3rd order. Judge Taylor asserted that she was

functioning as the presiding judge, not as the chief judge, at

all times when addressing the clerk regarding the

appealability of the May 3rd order. Judge Taylor therefore

requested that the formal charges asserted in the Commission’s

Notice be dismissed.

4
 On March 10, 2009, the Commission conducted an

evidentiary hearing on the charges, at which time Judge Taylor

was present and represented by counsel. The Commission

members voted unanimously to bifurcate the hearing as follows:

(1) evidence about a violation of the Canons, and if the

Commission found a violation, then (2) other evidence

regarding the appropriate sanction, if any.

As part of the evidence before the Commission, the

parties stipulated that when K.M.’s counsel tried to file a

notice of appeal to the May 3rd order, the deputy clerk

advised Judge Taylor that K.M.’s counsel was attempting to

file a notice of appeal and Judge Taylor “confirmed that the

order by its express terms was not appealable, but did not

state to the deputy clerk that the notice of appeal should not

be accepted.” The parties further stipulated that “[t]he

deputy clerk then informed [K.M.’s counsel] that the order was

not appealable and, therefore, the notice of appeal would not

be accepted.”

Judge Taylor testified that at the conclusion of the May

2, 2007 hearing on K.M.’s misdemeanor assault charge, she

ordered K.M. securely detained “in order to safeguard the

community” and ordered a social history, which is a complete

background investigation on K.M. Judge Taylor testified that

5
she did not recall K.M.’s counsel’s request for a final

appealable order.

Judge Taylor testified that in ruling on K.M.’s motion

for reconsideration, she said to his counsel:

[W]hat I’m going to do is I’m going

to put all of my authority [in the order]

to make sure that . . . just in case you

get a Circuit Court judge who we were

talking about, you know, perhaps a Circuit

Court judge shooting from the hip, and

that was the expression that I had used,

thinking that a lot of times they were

busy, they had a very hectic docket, and

because we deal with these juvenile codes

so frequently, I wanted to make sure that

the Circuit Court judge was aware I was

relying upon the Juvenile Code.

Judge Taylor stated that when the deputy clerk asked her

whether the May 3rd order was appealable, she “may have said

something like, Well, I’ve already addressed that in my order,

and that was the end of it.” Later in the hearing, Judge

Taylor testified that when the deputy clerk asked her if the

6
order was appealable, Judge Taylor said, “[a]s my order

states, no. I don’t believe it’s appealable.”

When Judge Taylor was asked at the hearing if it was

apparent to her that the deputy clerk inquired into the May

3rd order’s appealability because the deputy clerk was trying

to decide whether to process the appeal, Judge Taylor replied,

“[y]es.” Nevertheless, Judge Taylor testified that it was the

deputy clerk’s responsibility to consult the clerk of court on

how to proceed, and if doubt remained, it was the clerk’s

office’s responsibility to call this Court to obtain guidance

on the matter. 2 Judge Taylor testified that she would not

2
Although Judge Taylor repeatedly asserted that the
clerk’s office should have contacted the Supreme Court of
Virginia to obtain guidance, she was presumably referring to
the Office of the Executive Secretary (OES), which would be
the appropriate administrative department of this Court to
contact under these circumstances. OES provides
administrative support for all of the courts and magistrate
offices within the Commonwealth. Office of the Executive
Secretary of the Supreme Court of Virginia, The Official
Website for the Supreme Court of Virginia, Court
Administration—Office of the Executive Secretary (OES),
http://www.courts.state.va.us/courtadmin/aoc/oes/home.html
(last visited Oct. 22, 2009). Within the OES, the Department
of Judicial Services (DJS) serves as the liaison between the
judiciary’s administrative offices and the courts throughout
the Commonwealth, providing administrative services through
publications, trainings, field visits, and the research and
support of various programs. Id. (follow “Judicial Services”
hyperlink to
http://www.courts.state.va.us/courtadmin/aoc/djs/home.html
(last visited Oct. 22, 2009)). The Juvenile and Domestic
Relations District Court Services division of the DJS provides
guidance and assistance to juvenile and domestic relations
7
instruct the clerk’s office on what measures to take, as “that

is not [her] function as the judge” and “frankly, as the

judge, [she does not] get involved in the mechanics of

appeals.” Judge Taylor reiterated her position by stating:

“What I have stated and what I sincerely believe is that my

duties as the presiding judge were to decide the case; my

duties were finished.” In Judge Taylor’s opinion, the clerk’s

office had

the responsibility, independent of the language in the May 3rd

order, to accept or deny K.M.’s appeal, depending on the

guidelines the clerk’s office received from this Court [OES].

Judge Taylor described her May 8th order denying K.M.’s

motion to rehear as merely a way to “red flag that there was

an appealability problem” for the circuit court. Judge Taylor

stated, “I don’t believe that the legislators, for whatever

reason, intended juveniles to be included within the appeal

provisions for bond determinations under 19.2-124.” Judge

Taylor continued, “[s]o for whatever reason, juveniles, I

believe, are treated separately,” as she believed Code

§§ 19.2-124 and 19.2-319 are inapplicable to juvenile

district court judges and clerks on caseflow management and
case processing, among other things. Id. We therefore

8
detention. Judge Taylor testified that “[a]s the judge

interpreting the statute, what [she] indicated to [K.M.’s]

attorney was that [she] did not believe that with regard to

where [K.M.] was in the proceeding, that he had a right to

appeal his detention status.” According to Judge Taylor,

“[i]t was a legal determination that because of his status,

post-adjudication/pre-disposition, that he didn’t have the

right to appeal.”

Judge Taylor maintained that when she entered the May 3rd

order she “fully expected” K.M.’s counsel to appeal it. For

that reason, Judge Taylor contended that she was merely

“flagging” the issue of the appealability of the order for the

circuit court, but did not “rule” on that issue. Judge Taylor

explained:

I wanted the Circuit Court judge to know I

had a concern about it. So by saying this

order is an interlocutory, non-appealable

order, that wasn’t a ruling because that was

really for the Circuit Court to look at and to

decide whether this case should be properly

appealed to that court.

reference OES in brackets when Judge Taylor refers to this
Court in relevant portions of her argument.
9
 (Emphasis added.)

After the hearing, the Commission determined that Judge

Taylor violated Canons 1, 2A, and 3B(2), and “that the charges

set forth in the Notice were well-founded and of sufficient

gravity to constitute the basis for censure.” The Commission

made an express finding by clear and convincing evidence that

Judge Taylor had acted intentionally to thwart K.M.’s attempt

to appeal from the order that denied his request for bail.

The Commission then considered additional evidence and

argument regarding the appropriate sanction. In determining

whether to file a formal complaint in this Court pursuant to

Article VI, § 10 of the Constitution of Virginia and Code

§ 17.1-902, the Commission considered two exhibits pertaining

to Judge Taylor’s two prior informal contacts with the

Commission. Judge Taylor’s counsel objected to the exhibits,

because (1) the informal contacts had resulted in dismissals,

arguing that dismissals are inappropriate for consideration by

the Commission, and (2) the exhibits were irrelevant and more

prejudicial than probative. The Commission received the

exhibits into evidence “for the purpose of final disposition.”

Upon deliberation, the Commission decided that the charges of

violations of the Canons were well founded and of sufficient

10
gravity to constitute the basis for censure and filed a

complaint against Judge Taylor in this Court.

Judge Taylor filed a post-hearing motion to dismiss and

for other relief, seeking reconsideration and dismissal of the

complaint on the basis that the evidence at the hearing

revealed “nothing more tha[n] mere legal errors which cannot

support a finding that any of the pertinent Canons of Judicial

Conduct were violated.” Judge Taylor asserted that there was

“no evidence in the record” that she “knowingly and/or

willingly violated any statutes or legal rights,” and that

“she did not knowingly and/or willingly commit any legal

errors.”

Judge Taylor also requested that the Commission

reconsider the admission and use of documents relating to

“prior contacts” between Judge Taylor and the Commission,

contending that there is no legal basis for the use of such

documents. Judge Taylor argued that any slight probative

value of the documents is substantially outweighed by their

prejudicial effect, the use of such documents violates her

right of confidentiality in the Commission’s review process,

11
and denies her equal protection and due process rights under

the United States and Virginia Constitutions. 3

Judge Taylor also asserted that an email written by the

chairman of the Commission, Judge Larry D. Willis, Jr., to the

juvenile and domestic relations court appeared to have

“prompted and/or played a role” in one of Judge Taylor’s prior

informal contacts with the Commission. Therefore, Judge

Taylor argued that Judge Willis should have recused himself.

Additionally, Judge Taylor argued that as applied to the

facts of the complaint against her, the Canons are

unconstitutionally vague and without appropriately definite

standards, resulting in an arbitrary and capricious process.

The Commission denied Judge Taylor’s motion by order

dated April 14, 2009. In an accompanying letter, which

addressed the admission of documents relating to prior

contacts, the Commission stated that, pursuant to Code § 17.1-

913, whatever record the Commission files with its complaint

in this Court becomes public. The Commission also maintained

that certain exhibits would not be sealed because they, or the

information they contained, had already become public as part

of the circuit court file.

3
Judge Taylor has abandoned her equal protection argument
in this Court.
12
 On April 28, 2009, the Commission filed its complaint

with this Court. In her answer to the Commission’s complaint,

Judge Taylor alleged that the evidence in the record was

insufficient to establish that she “knowingly and/or willingly

violated any statutes, legal rights and/or [the] [C]anons.”

In addition, Judge Taylor alleged that there is no factual

basis for any findings against her, that her motion to dismiss

and for other relief is well-founded, and that there is

insufficient basis for a censure.

II. CANONS OF JUDICIAL CONDUCT

The relevant portions of the Canons at issue in this case

are:

Canon 1. A Judge Should Uphold the

Integrity and Independence of the Judiciary.

A. An independent and honorable

judiciary is indispensable to justice in

our society. A judge should participate in

establishing, maintaining and enforcing

high standards of conduct, and shall

personally observe those standards so that

the integrity and independence of the

judiciary will be preserved. The

provisions of these Canons are to be

13
construed and applied to further that

objective.

Canon 2. A Judge Shall Avoid

Impropriety and the Appearance of

Impropriety in All of the Judge’s

Activities.

A. A judge shall respect and comply

with the law and shall act at all times in

a manner that promotes public confidence in

the integrity and impartiality of the

judiciary.

. . . .

Canon 3. A Judge Shall Perform the

Duties of Judicial Office Impartially and

Diligently.

. . . .

B. Adjudicative Responsibilities.–

. . . .

(2) A judge shall be faithful to
the law and maintain professional
competence in it. . . .

14
 Va. Sup. Ct. R., Part 6, § III, Canons 1, 2, and 3.

III. ANALYSIS

The Commission’s filing of a formal complaint in this

Court triggered our duty to conduct a hearing in open court

for the purpose of determining whether Judge Taylor “engaged

in misconduct while 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

15
 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). Factual

determinations, findings and opinions of the Commission are

not accorded any particular weight nor deference. Judicial

Inquiry & Review Comm’n v. Peatross, 269 Va. 428, 444, 611

S.E.2d 392, 400 (2005). If after conducting a de novo review

of the record and hearing argument of counsel, we find clear

and convincing evidence that the judge has engaged in

misconduct while in office or has engaged in conduct

prejudicial to the administration of justice, we shall censure

the judge or remove the judge from office. Va. Const. art.

VI, § 10; Judicial Inquiry & Review Comm’n v. Shull, 274 Va.

657, 670, 651 S.E.2d 648, 656 (2007).

Judge Taylor presents us with four issues to consider:

(1) Whether the record proves by clear and convincing

evidence that Judge Taylor engaged in misconduct while

in office or engaged in conduct prejudicial to the

proper administration of justice sufficient to prove

the charged violations of the Canons;

16
 (2) Whether the Canons, as applied to Judge Taylor and the

record in this case, are sufficiently definite and

certain for purposes of due process;

(3) Whether it was lawful for the Commission to consider

evidence of Judge Taylor’s “prior contacts” with the

Commission; and

(4) Whether Judge Taylor is entitled to any relief based on

the conflict/recusal issue addressed in her post-

hearing motion to dismiss.

A. Sufficiency of the Evidence

The Commission argues that the record proves by

clear and convincing evidence that Judge Taylor engaged in

misconduct while in office or in conduct prejudicial to the

proper administration of justice. As an initial matter, the

Commission asserts that K.M. had the right to appeal Judge

Taylor’s denial of bail. The Commission maintains that “it is

a fundamental precept of Virginia criminal procedure that all

decisions denying bail are appealable by the defendant, at

least until such appeals reach this Court.” The Commission

contends that all criminal cases involve either pretrial bail,

the denial of which is appealable pursuant to Code § 19.2-124,

or post-conviction bail in circuit court, the denial of which

is appealable pursuant to Code § 19.2-319. The Commission

17
further argues that because appeals from a district court

conviction are de novo, a defendant remains in pretrial status

for bail purposes throughout the district court proceedings.

The Commission cites Code § 19.2-120(A) and (E), which state:

A. A person who is held in custody pending

trial or hearing for an offense, civil or

criminal contempt, or otherwise shall be

admitted to bail by a judicial officer, unless

there is probable cause to believe that:

1. He will not appear for trial or hearing

or at such other time and place as may be

directed, or

2. His liberty will constitute an

unreasonable danger to himself or the public.

. . . .

E. The judicial officer shall inform

the person of his right to appeal from the

order denying bail or fixing terms of bond

or recognizance consistent with § 19.2-

124.

18
 (Emphasis added.) Furthermore, the Commission points out

that Code § 19.2-124(A) provides that

[i]f a judicial officer denies bail

to a person, requires excessive bond, or

fixes unreasonable terms of a recognizance

under this article, the person may appeal

therefrom successively to the next higher

court or judge thereof, up to and

including the Supreme Court of Virginia or

any justice thereof where permitted by

law.

According to the Commission, these statutes when read

together make it clear that K.M. had a right to appeal Judge

Taylor’s denial of bond, as he remained within the status of

“[a] person who is held in custody pending . . . hearing . . .

or otherwise.” Code § 19.2-120(A). The Commission asserts

that K.M. falls within the definition of “person” contained in

Code § 19.2-119: “ ‘Person’ means any accused, or any

juvenile taken into custody pursuant to § 16.1-246.” The

Commission argues that nothing in the Code justified the

exception Judge Taylor carved out for a juvenile held “post-

adjudication/pre-disposition.” The Commission contends there

19
is no plausible support in Virginia law for Judge Taylor’s

conclusion that a “no appeal zone” exists in the juvenile and

domestic relations court when a juvenile is first taken into

custody at the conclusion of the adjudicatory hearing and bail

is denied pending a final disposition hearing.

The Commission argues that even if this Court determines

Judge Taylor’s actions were “mere legal error,” this Court

should not excuse the manner in which she “arrogated to

herself the power to rule that her own decision was immune

from appellate review.” At oral argument, the Commission

asserted, “there’s a difference between wrongly concluding

that [the May 3rd order] wasn’t appealable and ruling, putting

in your order that it’s not appealable and then taking action

subsequent[ly] that effectively blocked the appeal.”

Additionally, the Commission contends this Court should not

excuse Judge Taylor’s refusal to retreat from her untenable

position when given ample opportunity to do so. The

Commission avers that Judge Taylor violated the Canons by her

clear misappropriation of judicial power, which constituted

“conduct prejudicial to the proper administration of justice.”

Va. Const. art. VI, § 10.

The Commission asserts that this Court should reject

Judge Taylor’s contention that she did not “rule” that her

order could not be appealed and that she included the

20
“nonappealable” language in the May 3rd order only to “flag”

the issue for the circuit court. As support for this

argument, the Commission points out that Judge Taylor referred

to her action as a ruling in an email to her fellow juvenile

and domestic relations court judges, in which Judge Taylor

wrote:

I found after an adjudicatory hearing that

[K.M.] posed a substantial risk of harm to the

community and ordered him to be securely

detained pending disposition. [K.M.’s counsel]

filed a motion the next day requesting that

[K.M.] be released on bond. I denied that

request and ruled that the order was

interlocutory and nonappealable. . . . I ruled

that the order was not appealable . . . .

(Emphasis added.) Also, the Commission asserts that in

Judge Taylor’s answer to the Notice of formal charges, she did

not deny ruling that the order was nonappealable and did not

at that time state that she merely flagged the issue for the

circuit court.

The Commission argues that the clerk of court believed

that the clerk’s office of the juvenile and domestic relations

court was compelled by the May 3rd order to reject K.M.’s

21
notice of appeal, because the order stated it was “an

interlocutory, nonappealable order.” The Commission asserts

that when the deputy clerk consulted Judge Taylor about

whether the May 3rd order was appealable, Judge Taylor’s only

response of directing the deputy clerk to the order was

tantamount to insuring that the clerk’s office would decline

to process the notice of appeal. The Commission contends that

Judge Taylor violated the Canons by directly thwarting an

appeal by ruling that her own decision was not subject to

appeal and by advising the deputy clerk that the order was not

appealable, when Judge Taylor knew the clerk was faced with

the decision whether to accept a notice of appeal from K.M.’s

attorney.

Judge Taylor contends that nothing in the record supports

the Commission’s assertion that she violated any of the

subject Canons. Rather, Judge Taylor argues, the record shows

that she attempted to apply the law exactly as it is written

and the Commission offered no plausible theory to support its

assertion that she committed a clear misappropriation of

judicial power.

Judge Taylor maintains that a post-adjudication, pre-

disposition detention pursuant to Code § 16.1-248.1(G) does

not implicate Code § 19.2-124 bail appeal rights because the

proceeding is no longer in the pretrial stage. Furthermore,

22
Judge Taylor asserts that Code § 19.2-120 distinguishes “bail”

from “detention,” and subsection E of that statute directs a

judicial officer to “inform the person of his right to appeal

from the order denying bail or fixing the terms of bond or

recognizance,” but does not mention “detention.” According to

Judge Taylor, “[g]iving due consideration to the words

actually used by the General Assembly in the subject statutes,

[her] reading of the provisions is correct or, at a minimum,

plausible and supportable.”

Judge Taylor reiterated that the language in the May 3rd

order that it was an “interlocutory, nonappealable” order was

included to flag the order for the circuit court to ensure

that the appealability issue would be addressed. Judge Taylor

contends that this Court’s prior opinions addressing

complaints brought by the Commission support dismissal of the

complaint against her. Judge Taylor asserts that her case is

distinguishable from Lewis, as there is no allegation nor

evidence that she defied or disrespected an order of any

higher court. 264 Va. at 406, 568 S.E.2d at 690. Moreover,

according to Judge Taylor, the statutes at issue leave room

for a difference of opinion, and she argues that several of

her fellow judges on the juvenile and domestic relations court

agreed with her analysis. She acknowledged, however, that her

legal interpretations could be mistaken. In this manner,

23
Judge Taylor contends that her case is similar to Peatross, as

the record in this matter reveals, at worst, mistakes of law,

which alone do not warrant discipline. 269 Va. at 447-48, 611

S.E.2d at 402-03.

As an initial matter, we note that it is difficult to

understand Judge Taylor’s position that the General Assembly

intended to create a “no appeal zone” for juveniles held post-

adjudication, pre-disposition. The weakness of Judge Taylor’s

argument can be demonstrated by one example, which in essence

was delineated in K.M.’s May 4, 2007 letter to Judge Taylor.

If a juvenile and domestic relations judge has the authority

to detain a juvenile in secure detention pending disposition

without review by the circuit court, the judge, by extending

the date of disposition, can effectively require the juvenile

to be detained indefinitely which would make the juvenile’s

right of appeal to the circuit court for de novo trial

meaningless. Such a result is not only inconsistent with

Virginia’s statutory scheme providing for trial de novo for

appeals from district courts to circuit courts, it also flies

in the face of our commitment to allowing persons accused of

crimes to challenge the denial of bond successively to the

next higher court, and the statutory requirement that the

judicial officer denying bail inform the defendant of his or

her right to appeal.

24
 However, the real issue in this case is not whether Judge

Taylor made a legal error in denying K.M. the right to appeal

his secured detention and denial of bail. The issue at the

heart of this case is whether Judge Taylor thwarted K.M.’s

right to have her ruling reviewed and, if she did thwart the

appeal of her ruling, whether that is a violation of the

Canons.

We conclude the Commission has met its burden of proving

by clear and convincing evidence that Judge Taylor committed

the violations of the Canons charged in the Notice of the

Commission dated January 13, 2009. Although the relevant

statutes support a finding that Judge Taylor erred in her

interpretation of the law, her actions rose to a level beyond

a mistake of law when she affirmatively blocked K.M.’s

attempted appeal to the circuit court.

Judge Taylor’s ethical violations began when she ruled

that her May 3rd order was interlocutory and nonappealable.

It is undisputed that when K.M.’s counsel attempted to file a

notice of appeal at the clerk’s office, Judge Taylor directed

the deputy clerk to the “interlocutory, nonappealable”

language appearing on the order when the deputy clerk sought

guidance on whether to process the notice of appeal.

On May 4, 2007, K.M.’s counsel sought reconsideration of

Judge Taylor’s ruling by letter stating:

25
 I would respectfully ask that you

reconsider your ruling as represented by the

attached Order entered May 3, 2007 in this

case. Please understand that I have the utmost

respect for the Court and it is because of that

I am asking this Court to reconsider its ruling

in light of what I feel to be clear authority

that would allow my client an appeal from your

denial of his request for a bond pending the

sentencing hearing in this matter, and also

your denial of our request of the Clerk to

appeal your ruling.

K.M.’s counsel cited Code §§ 19.2-120 and 19.2-124 in

support of his contention that K.M. was entitled to bail and,

if denied by the juvenile and domestic relations court,

entitled to an appeal to the circuit court. K.M. asserted,

through counsel, that Judge Taylor’s rulings, while

interlocutory, were appealable both as to the denial of bond

and as to Judge Taylor’s ruling that “[t]his order is [a]

. . . nonappealable order,” which denied K.M.’s right to

appeal. K.M.’s counsel also stated that he had “previewed”

the issue briefly with the circuit court and that the circuit

court “certainly felt that [Judge Taylor’s] denial of [K.M.’s]

26
right to appeal on the motion for a bond is an appealable

order.” Judge Taylor did not respond to the letter.

K.M.’s counsel also wrote a letter dated May 4, 2007 to

the clerk of court stating that K.M. wished to appeal the May

3rd order as well as Judge Taylor’s determination that the

order was not appealable, and requested that the clerk’s

office “forthwith today prepare appropriate appeal notices.”

K.M.’s counsel stated that if the clerk’s office did not

prepare the appeal notices, he would have no alternative but

to proceed with a writ of mandamus. The clerk responded by

letter dated May 7, 2007 to K.M.’s counsel, stating: “Please

be advised that I am compelled to follow the ruling entered on

May 3rd, 2007 by Judge Ramona D. Taylor, which states the

order is interlocutory and non-appealable.” A copy of the

clerk’s May 7th letter was sent to Judge Taylor. Judge

Taylor’s only apparent response was to enter her May 8th

“corrective order” nunc pro tunc to May 3, 2007, containing

the same language ruling, “this order is an interlocutory,

nonappealable order.”

Judge Taylor’s testimony at the Commission hearing

further indicates her intention to thwart K.M.’s appeal.

Judge Taylor admitted she knew that when the deputy clerk

inquired into the order’s appealability, the clerk was trying

to decide whether to process the appeal. At the hearing,

27
Judge Taylor repeatedly stated her belief that it was not her

function as a judge to get involved in the processing of

appeals and that her duties ended when she decided the case.

Judge Taylor put the onus on the deputy clerk to consult her

supervisor and on the clerk’s office to consult this Court

[OES] to obtain guidance on the appealability of the order

irrespective of the language of the order. However, Judge

Taylor never provided direction to either the deputy clerk or

the clerk of court to contact this Court [OES]. Despite

denying responsibility for what occurred after she entered the

May 3rd order, Judge Taylor admitted to the Commission that

she was the chief judge at the time and in that capacity, she

had the authority to direct the clerk what to do. 4

Judge Taylor does not deny that the clerk’s office may

have felt compelled to refuse K.M.’s appeal as a result of

Judge Taylor’s instruction to refer back to the language of

the order. Judge Taylor also gave no indication of any

attempt on her part to correct what she now claims was the

clerk’s mistaken belief that she was compelled by Judge Taylor

to refuse to process the appeal. Only four days after the

4
Judge Taylor became chief judge of the juvenile and

domestic relations court on July 1, 2006. Her term was for

two years.

28
order was entered, Judge Taylor was sent a copy of the letter

from the clerk of court, which clearly stated that the clerk

was “compelled” to follow Judge Taylor’s ruling that the order

was nonappealable. Even at oral argument, when Judge Taylor’s

counsel was asked, “when [Judge Taylor] said to the clerk that

the order by express terms is not appealable, wasn’t she at

least implicitly directing the clerk what to do with the

paperwork?,” her counsel responded: “I think it’s fair to say

that one could walk away with that message.”

It is clear from the record that Judge Taylor was well

aware of K.M.’s counsel’s efforts to secure K.M.’s release

either through an appeal of the denial of bond or an appeal of

Judge Taylor’s order that the denial of bond was

nonappealable, or by an appeal de novo of K.M.’s case to the

circuit court. However, Judge Taylor did not seek to clarify

what she now argues was her position that she: (1) did not

rule the May 3rd order was not appealable; (2) did not direct

the clerk’s office to refuse K.M.’s notice of appeal; and (3)

believed the clerk’s office should contact this Court [OES]

for guidance on processing the notice of appeal. In addition,

Judge Taylor had knowledge of the writ of mandamus filed

against the clerk of court and did no more to address the

matter than send an email to fellow judges explaining her

ruling and informing them that K.M.’s attorney had filed a

29
writ of mandamus “to compel the filing of an appeal from [the

May 3rd order],” and stated that she “ruled that the order was

not appealable.” Judge Taylor subsequently sent another email

informing her fellow judges that the writ of mandamus had been

granted, and thanking the clerk “for holding up so well under

the pressure of this litigation and for keeping [Judge Taylor]

so well informed.”

Judge Taylor’s argument that she did not rule that her

May 3rd order was not appealable is implausible. Judge Taylor

described her action as a “ruling” in her email to her fellow

judges. Thus, when the deputy clerk asked whether the order

was appealable, Judge Taylor reinforced the effect of her

ruling by directing the clerk to the “nonappealable” language

that Judge Taylor herself typed on the order. In addition,

Judge Taylor’s argument that her ruling that the order was

interlocutory and nonappealable was merely a “red flag” for

the circuit court is equally implausible. Judge Taylor has

produced no other examples of ruling an order nonappealable

for use as a “red flag” to the circuit court. Finally, what

makes her “flagging” argument most implausible is that her

actions prevented the order from ever reaching the circuit

court where it could purportedly serve as a “red flag.” If

the interlocutory and nonappealable language was truly

intended as a “red flag,” Judge Taylor should have promptly

30
advised the deputy clerk to process the appeal so that the

circuit court could rule.

A judge may not prevent the appeal of his or her own

decisions. More than a century ago, we recognized the basic

principle that a court cannot prevent its own decision from

being reviewed on appeal by refusing to certify the facts

proved and the evidence in the case. Powell v. Tarry, 77 Va.

250, 264 (1883). Therefore, it is clear that a court cannot

expressly rule that its own decision is not subject to

appellate review, by ruling the order is interlocutory and

nonappealable.

We do not agree with Judge Taylor’s argument that she did

not thwart K.M.’s appeal because once she made her ruling, the

case was out of her hands. It is disingenuous of Judge Taylor

to claim that when she responded to the clerk who asked her

whether the appeal should be processed, Judge Taylor was not

in a supervisory position over that clerk. Her argument that

she was acting as the presiding judge and not the chief judge

with supervisory authority over the clerk’s office was

certainly never made clear to the deputy clerk or the clerk of

court. What is clear is Judge Taylor knew that when she

pointed the deputy clerk to the language of her ruling that

the deputy clerk was not going to process the appeal. Judge

Taylor also knew in the days following that the clerk of court

31
had refused to process the appeal because the clerk felt

compelled by Judge Taylor’s order not to process it.

Judge Taylor’s argument that she believed the clerk’s

office should contact this Court [OES] for guidance on

processing the appeal is equally disingenuous. Although she

now states that processing the appeal is in the nature of a

ministerial act under the supervision of the clerk, she never

made that statement to the deputy clerk when the deputy clerk

asked about processing the appeal. Furthermore, Judge

Taylor’s position that the clerk should have brought any

questions to this Court [OES] was never communicated to the

clerk, despite K.M.’s concerted efforts to obtain review by a

higher court in order to secure his release from custody.

Finally, Judge Taylor’s argument that she had nothing more to

do with whether the case was appealed after her entry of the

May 3rd order is belied by her entry of the corrective order

on May 8, 2007 nunc pro tunc to May 3, 2007 amidst the threat

of a pending writ of mandamus.

Judge Taylor’s actions in thwarting K.M.’s appeal of the

denial of bond and even of his appeal of her interlocutory and

purportedly nonappealable ruling violated the law. When K.M.

and his family were prevented by Judge Taylor’s actions from

obtaining appellate review of her rulings, public confidence

in the integrity and impartiality of the judiciary was

32
diminished. Judge Taylor violated Canons 1, 2A, and 3B(2) and

these violations constituted conduct prejudicial to the

administration of justice.

B. Due Process

Judge Taylor asserts that the Canons are

unconstitutionally vague and without appropriately definite

standards as applied to the facts in the complaint against

her, and that vague and indefinite laws and regulations offend

due process rights. Judge Taylor argues that “[a] close

reading of the subject Judicial Canons reveals that they are a

mix of clear standards and vague aspirational statements.”

According to Judge Taylor, Canon 1’s requirement that a judge

“shall personally observe [high standards of conduct] so that

the integrity and independence of the judiciary will be

preserved” does not describe a meaningful standard of conduct

for purposes of a disciplinary case. Judge Taylor argues that

Canon 2’s requirement that a judge act “at all times in a

manner that promotes public confidence” likewise sets forth no

particular standards or guidelines. Lastly, Judge Taylor

contends that Canon 3’s requirement to “be faithful to the

law” is “far more aspirational than measurable.” Therefore,

Judge Taylor maintains that the subject Canons are

33
unconstitutionally vague and insufficiently definite to

satisfy due process rights in a disciplinary matter.

The Commission asserts that Judge Taylor cites no

authority holding that the Canons violate due process because

they are impermissibly vague. According to the Commission,

courts in other jurisdictions have rejected due process

challenges to codes of judicial conduct, and thus it urges

this court to likewise reject Judge Taylor’s vagueness due

process argument.

We hold that the Canons are sufficiently definite and

certain to withstand Judge Taylor’s due process challenge.

“The procedural due process requirements of the Constitution

of Virginia compel the Commission, and this Court, to

recognize the balance that must be struck between protecting

the integrity of the judiciary and the rights of individual

judges.” Judicial Inquiry & Review Comm’n v. Elliott, 272 Va.

97, 114, 630 S.E.2d 485, 493 (2006).

Courts in other jurisdictions that have considered

whether canons of judicial conduct violate “due process”

because they are impermissibly vague have rejected such

claims. See In re Assad, 185 P.3d 1044, 1052 (Nev. 2008)

(Canon 2A not vague); In re McGuire, 685 N.W.2d 748, 762 (N.D.

2004) (“courts in other jurisdictions appear to have routinely

rejected vagueness challenges to codes of judicial conduct”);

34
In re Hill, 8 S.W.3d 578, 582-83 (Mo. 2000) (rejecting

“vagueness” challenge to Canons 2A and 2B, holding that

“[n]either absolute certainty nor impossible standards of

specificity are required,” and that “[t]his is especially true

in judicial discipline.”); Comm’n on Judicial Performance v.

Spencer, 725 So.2d 171, 176 (Miss. 1998) (rejecting

“vagueness” challenge to Canons 1, 2A, 2B, and 3B, holding

that “the Canons are sufficient to put [persons] of common

intelligence on notice of what type of conduct is

prohibited.”); In re Young, 522 N.E.2d 386, 387-88 (Ind. 1988)

(rejecting “vagueness” challenge to Canons 1 and 2, holding

that “a greater degree of flexibility and breadth is permitted

with respect to judicial disciplinary rules and statutes than

is allowed in criminal statutes.”).

“The test for determining whether the Canons are vague is

whether they convey to a judge a sufficiently definite warning

of the proscribed conduct when measured by common

understanding and practice.” In re Hill, 8 S.W.3d at 582. As

relevant to the issues in this case, all three Canons which

the Commission alleges Judge Taylor violated require a judge

to comply with the law so that there will be public confidence

in the integrity and impartiality of the judiciary.

The Canons for the Commonwealth of Virginia contain a

Preamble, which provides in relevant part that

35
 [t]he Canons of Judicial Conduct are

intended to establish standards for ethical

conduct of judges. They consist of broad

statements called Canons, specific rules set

forth in Sections under each Canon and

Commentary. The text of the Canons and the

Sections is authoritative. Each Commentary, by

explanation and example, is advisory and

provides guidance with respect to the purpose

and meaning of the Canons and Sections. The

Commentary is not intended as a statement of

additional rules.

Va. Sup. Ct. R., Part 6, § III, Preamble.

The Commentary to Canon 1 includes the following

language: “Although judges should be independent, they must

comply with the law . . . . [V]iolation of this Canon

diminishes public confidence in the judiciary and thereby does

injury to the system of government under law.” Canon 2A

requires a judge to comply with the law in a manner that

promotes public confidence in the integrity and impartiality

of the judiciary. Canon 3B(2) requires a judge to be faithful

to the law.

36
 The Commission has alleged that Judge Taylor’s thwarting

of K.M.’s appeal was a violation of law which diminished

public confidence in the judiciary, an allegation that we have

concluded has been established by clear and convincing

evidence. The relevant Canons clearly prohibit a judge’s

failure to follow the law in such a manner as to fail to

promote public confidence in the integrity and impartiality of

the judiciary. There can be no “vagueness” in the application

of the relevant Canons to the conduct in question.

C. The Commission’s Consideration of “Prior Contacts”

Judge Taylor cites Code § 17.1-913 to support her

argument that it was improper for the Commission to admit and

consider evidence of Judge Taylor’s prior contacts with the

Commission. Specifically, she notes that the statute provides

that all prior contacts “not filed with the Supreme Court in

connection with a formal complaint filed with that tribunal,

shall be kept in the confidential files of the Commission.”

Code § 17.1-913(A).

Judge Taylor contends that Rule 16 of the Rules of the

Judicial Inquiry and Review Commission applies and requires

that the records of a proceeding concluded “without an adverse

finding by the Commission against a judge . . . be maintained

in the Commission’s confidential files.” 15 VAC § 10-10-10.

37
Judge Taylor asserts that neither Code § 17.1-913 nor

Commission Rule 16 allow for the removal of the

confidentiality of records of complaints that were not deemed

“well founded,” and the 2002 and 2006 prior contacts were not

determined to be well founded.

Additionally, Judge Taylor argues that unlike Shull, in

which Judge Shull’s demeanor was discussed in a prior informal

proceeding and that proceeding was later considered by this

Court for purposes of disposition, the “prior contacts” Judge

Taylor had with the Commission were not “directly relevant” to

the issues now before the Court. Rather, Judge Taylor states

they are irrelevant and more prejudicial than probative of any

issue in dispute. The prior contacts, Judge Taylor contends,

are irrelevant because the 2002 contact related to an in

camera interview and the 2006 contact related to a complaint

about starting court late, and both were resolved in her

favor. Judge Taylor asks this Court to disregard the prior

contacts evidence when determining whether she committed any

violation during the 2007 events at issue.

The Commission relies on Shull to support its argument

that consideration of Judge Taylor’s prior contacts with the

Commission was appropriate. 274 Va. at 676-77, 651 S.E.2d at

659. According to the Commission, this Court expressly

referred to and relied upon evidence of prior contacts in its

38
decision to remove Judge Shull from office. The Commission

maintains that with regards to the issue of disposition, this

Court should be presented with evidence regarding a judge’s

past contacts with the Commission. The Commission cites Rule

13(B) of the Rules of the Judicial Inquiry and Review

Commission, which provides that any “material [and] relevant”

evidence may be admitted. 15 VAC § 10-10-10.

Additionally, the Commission contends that evidence

surrounding Judge Taylor’s 2002 informal contact with the

Commission was relevant to show whether she was amenable to

discipline by the Commission or whether the matter needed to

be referred to this Court. The Commission maintains that Code

§ 17.1-913, regarding confidentiality of the record sent by

the Commission to this Court in support of a complaint, and

Commission Rule 16, regarding preservation of files at the

Commission, are not relevant to the admissibility of evidence

of prior contacts at the evidentiary hearing.

We hold that the evidence regarding Judge Taylor’s prior

contacts with the Commission was properly admitted by the

Commission and is now properly before us for review. At the

outset of the Commission hearing, counsel for the Commission

stated that “the exhibits are all in the red binder there on

the witness desk. . . . But the sides are in agreement that

there’s no objection to the admission of any of the exhibits.”

39
Counsel for Judge Taylor acknowledged the agreement as to the

exhibits contained in the binder. The binder, which is part

of the record before this Court, contains the Commission’s

exhibits described as “[c]orrespondence related to judge’s

2001-02 informal contact with JIRC,” “[r]edacted annotated

agenda from JIRC meeting 4-19-02,” “[t]ranscript of judge’s

informal meeting with JIRC dated 5-21-02,” and

“[c]orrespondence related to judge’s 2006 informal contact

with JIRC.” Judge Taylor’s agreement to the Commission’s

admission of the exhibits is fatal to her argument that the

Commission erred in admitting those same exhibits. Rule 5:25.

D. Recusal of Commission Chairman

Judge Taylor argues that the Commission’s chairman, Judge

Willis of the Chesapeake Juvenile and Domestic Relations

District Court, should have recused himself due to his status

as complainant in a prior contact with the Commission.

According to Judge Taylor, Canon 3E requires disqualification

of the judge from any proceeding in which his or her

“impartiality might reasonably be questioned,” including

instances in which the judge has “personal knowledge of

disputed evidentiary facts concerning the proceeding,” is a

“party to the proceeding,” or is likely “to be a material

witness.” Judge Taylor contends that the proceedings before

40
the Commission were tainted by Judge Willis’ involvement and

therefore seeks dismissal of the complaint.

The Commission maintains that it can be reasonably

inferred that Judge Taylor was aware of Judge Willis’

involvement in a prior informal contact since 2006 and

therefore knew of the purported grounds for Judge Willis’

recusal at the outset of the Commission’s evidentiary hearing

in 2009, but failed to timely object to his participation.

Judge Willis’ role in Judge Taylor’s 2006 prior contact with

the Commission is reflected by an email dated January 26, 2006

from Judge Willis to Judge Deborah M. Paxson, who at the time

was the chief judge of the Virginia Beach Juvenile and

Domestic Relations District Court, regarding an issue of

delays in that court which adversely affected proceedings in

the Chesapeake Juvenile and Domestic Relations District Court.

The email did not name any judge responsible for the delays

and expressly stated: “I do not want any information about

who the judge was . . .” However, Judge Willis requested in

his email that Judge Paxson notify the judges of the juvenile

and domestic relations court of its contents. The Commission

argues that it may be inferred that Judge Paxson did notify

the judges, including Judge Taylor, of Judge Willis’ complaint

in 2006.

41
 We agree with the Commission’s waiver argument, and hold

that Judge Taylor did not timely object to Judge Willis’

participation in the present proceedings. “A motion for

disqualification [of a judge] must be made when the movant

learns the grounds upon which the motion is based; thereafter,

the motion comes too late.” Mason v. Commonwealth, 219 Va.

1091, 1098, 254 S.E.2d 116, 120 (1979). We therefore will not

consider this issue. Rule 5:25.

IV. CONCLUSION

In considering the record before us, we note letters from

attorneys who have appeared before Judge Taylor. These

letters offer testaments to Judge Taylor’s professionalism as

an attorney and as a judge of the juvenile and domestic

relations court. We have reviewed those submissions as part

of our consideration of the proper disposition of this case.

Addressing the issue of disposition, Judge Taylor asks us

to compare the facts in four published opinions by this Court

addressing complaints brought by the Commission, and conclude

that the record in this case supports a dismissal of this

Complaint. In addition, Judge Taylor argues that her “prior

contacts” with the Commission should not be construed as a

lack of amenability to informal discipline on her part, but

rather, a lack of courtesy on the part of the Commission.

42
 The Commission also directs us to a comparison of prior

disciplinary complaints brought by the Commission and

specifically, to the case of Judicial Inquiry & Review

Commission v. Lewis. In addition, the Commission asks us to

consider Judge Taylor’s prior experience with the Commission

as an indication of her lack of amenability to informal

discipline.

We agree with the Commission that this case is very

comparable to Lewis, in which we censured a district court

judge. Id. at 407, 568 S.E.2d at 690. As in Lewis, Judge

Taylor violated the Canons by improper conduct in a single

case. Id. at 405-07, 568 S.E.2d at 689-90. In both cases,

the judges involved violated Canons 1, 2A, and 3B(2). In

Lewis, the judge enforced a contempt order that he knew had

been stayed by the circuit court. Id. at 403-04, 568 S.E.2d

at 688. Here, Judge Taylor thwarted any review of her secure

detention order by the circuit court through appeal of her

denial of bond and appeal of her order denying appeal.

In Lewis, the direct harm caused by the judge’s ethical

violation was a father’s incarceration for several hours in

disregard of a circuit court’s stay order. Id. at 404, 568

S.E.2d at 688. In this case, Judge Taylor’s ethical violation

blocked appellate review of her rulings and forced K.M. to

remain in secure detention for nine days before his writ of

43
mandamus was reviewed by the circuit court and he was released

to the custody of his parents.

Judge Lewis was censured with no evidence of prior

disciplinary contacts with the Commission. In this case, we

do not believe it is necessary to consider Judge Taylor’s

disputed prior disciplinary record to conclude that censure as

sought by the Commission is the appropriate remedy.

In Lewis, we stated that “[p]ublic confidence in the

judiciary and the administration of our legal system depends

upon faithful adherence to the law . . . . Courts cannot

reasonably expect citizens to comply with their orders if the

courts themselves do not yield to the orders of higher

courts.” Id. at 406, 568 S.E.2d at 690. Although Judge

Taylor was not faced with an order from the circuit court

reviewing her decision and compelling K.M.’s release, she did

impermissibly shield her ruling from any review. Judge

Taylor’s actions, which prevented K.M.’s attorney from seeking

his release from secured detention by means authorized by law,

impair public confidence in the judiciary and the

administration of our legal system. Unless citizens can trust

that judges will follow the law, our courts will lose the

public’s respect and confidence upon which our legal system

depends.

44
 Accordingly, we order that Judge Taylor be, and hereby

is, censured for engaging in “conduct prejudicial to the

proper administration of justice.” Va. Const. art. VI, § 10;

Code § 17.1-906.

Censure ordered.

JUSTICE KOONTZ, with whom JUSTICE GOODWYN joins, dissenting.

I respectfully dissent. In my view, upon a de novo

review, the evidence in this case falls short of clear and

convincing evidence that Judge Ramona D. Taylor, a judge of

the City of Virginia Beach Juvenile and Domestic Relations

District Court, violated the Canons of Judicial Conduct. I

therefore do not agree that censure of Judge Taylor by this

Court is warranted under Article VI, Section 10 of the

Constitution of Virginia.

Many of the historical and procedural facts which

ultimately led to the charges against Judge Taylor by the

Judicial Inquiry and Review Commission (“the Commission”) are

not in dispute. On May 2, 2007, Judge Taylor conducted an

adjudicatory hearing on a misdemeanor assault charge against a

fifteen year old juvenile (“K.M.”). K.M. was represented by

counsel at that hearing. Upon K.M.’s plea of “no contest” and

the evidence presented, Judge Taylor found K.M. guilty of that

charge. K.M. had previously been before Judge Taylor on

45
February 5, 2007 regarding a child in need of services

petition (“CHINS petition”) filed by his parents. With regard

to the CHINS petition, Judge Taylor had ordered, among other

things, that K.M. be on good behavior and to refrain from

illegal substance abuse. At the conclusion of the

adjudicatory hearing on the assault charge, Judge Taylor, as

authorized by Code § 16.1-273, ordered that a “social

history,” which she described as a “full background

investigation,” be prepared and set the matter for final

disposition on May 24, 2007.

Finding that K.M. posed “a substantial risk of harm to

the community based upon the egregious nature of the assault,”

Judge Taylor remanded him to secure custody pending the

dispositional hearing scheduled for May 24, 2007. K.M.’s

counsel requested Judge Taylor either to enter a final

disposition or to release K.M. on bond pending the hearing

scheduled for May 24, 2007. In an order entered on May 3,

2007, and subsequently amended nunc pro tunc on May 8, 2007,

Judge Taylor denied K.M.’s request for bond pending the May

24, 2007 hearing. In Judge Taylor’s order, she stated her

reasons for denying the request for bond in the following way:

Section 19.2-120 of the Virginia Code addresses the
factors a judge should consider in determining the
bond of a person “held in custody pending trial or
hearing.” The defendant in this case is being held
post-trial and pre-disposition pursuant to § 16.1-

46
 248.1(G) of the Virginia Code. The right to appeal
a pre-trial bond determination provided in section
19.2-120(E) of the Virginia Code does not apply to a
juvenile held post-adjudication/pre-disposition.

The order further states that “[t]his order is an

interlocutory, nonappealable order.”

Given the fact that K.M. had assaulted a younger boy to

the extent that the victim required medical attention and the

fact that Judge Taylor was aware K.M. had not responded

favorably to the conditions previously imposed upon him as a

result of the CHINS petition, the Commission concedes that

Judge Taylor acted within her authority in finding K.M. guilty

of the assault charge and in finding that he posed a risk of

harm to the community. Additionally, the Commission does not

contest that Judge Taylor was authorized by statute to deny

K.M.’s request for the immediate disposition of the assault

charge without having the benefit of a social history to guide

that disposition. Moreover, the Commission also concedes that

Judge Taylor did not act improperly in denying K.M. a bond.

Rather, the Commission’s claim of misconduct is based on the

allegation that Judge Taylor intentionally “thwarted” K.M.’s

attempt to appeal the order denying his request for bond to

the circuit court.

As to that allegation, the undisputed material facts and

the reasonable inferences that may be drawn from those facts

47
do not establish, in my view, that Judge Taylor intentionally

thwarted K.M.’s attempt to appeal the order denying his

request for bond pending the scheduled dispositional hearing

on May 24, 2007. It is undisputed that a number of Judge

Taylor’s colleagues on the City of Virginia Beach Juvenile and

Domestic Relations District Court shared her view that an

order such as the order at issue in K.M.’s case was

interlocutory and nonappealable. Code § 16.1-248.1(G)

provides, in pertinent part, that: “The court is authorized

to detain a juvenile . . . at any time after a delinquency

petition has been filed, both prior to adjudication and after

adjudication pending final disposition subject to the time

limitations set forth in [Code] § 16.1-277.1.” (Emphasis

added.) The latter Code section establishes a time limitation

of thirty days for the completion of the dispositional hearing

in a case involving a juvenile held in secure detention.

However, with reference to the issue of bond, Code § 19.2-119

defines, for purposes of Code § 19.2-120, a “Person” to mean

“any accused, or any juvenile taken into custody pursuant to

§ 16.1-246.” The provisions for bail contained in Code

§ 19.2-120(A) reference “[a] person who is held in custody

pending trial or hearing for an offense.”

These statutory provisions were the basis upon which

Judge Taylor and her colleagues concluded that a juvenile held

48
in secure detention following an adjudicatory hearing and

prior to a final dispositional hearing was not entitled to

rely upon the appeal provisions of Code § 19.2-120. In a

prior opinion, however, this Court has made it clear that

mistakes of law alone do not warrant discipline. Judicial

Inquiry & Review Comm’n v. Peatross, 269 Va. 428, 447-48, 611

S.E.2d 392, 402-03 (2005). These statutory provisions are not

so readily apparent in their application to the circumstances

of K.M.’s case as to be totally inconsistent with Judge

Taylor’s assertion that she “sincerely believed” that her

order denying bail was interlocutory and nonappealable.

As suggested by the majority, the issue at the heart of

this case is whether Judge Taylor’s actions rose to a level

beyond a mistake of law. The focus of that issue rests

principally upon Judge Taylor’s response to the deputy clerk’s

inquiry regarding whether K.M.’s notice of appeal of the

denial of bond should be accepted and processed. By

stipulation, Judge Taylor and the Commission agree that the

deputy clerk went to Judge Taylor and advised her that K.M.’s

counsel was at the clerk’s office to file a notice of appeal.

“Judge Taylor confirmed that the order by its express terms

was not appealable, but did not state to the deputy clerk that

the notice of appeal should not be accepted.” The deputy

clerk did not accept the notice of appeal. As a result,

49
counsel for K.M. successfully obtained a writ of mandamus from

the circuit court and K.M. was released on bond from

detention.

Beyond question, the deputy clerk’s refusal to accept and

process K.M.’s appeal resulted from Judge Taylor’s response to

the deputy clerk’s inquiry. In my view, it is equally clear

that Judge Taylor’s response was based upon a sincere belief

that her order concerning bail was interlocutory and

nonappealable. Several undisputed facts readily support that

conclusion. At the time of her ruling, Judge Taylor orally

explained to K.M.’s counsel her rationale for believing that

her bond ruling was interlocutory and nonappealable and she

wrote that rationale in her order.

The majority reasons that the issue is “whether Judge

Taylor thwarted K.M.’s right to have her ruling reviewed and,

if she did thwart the appeal of her ruling, whether that is a

violation of the Canons.” Unlike the majority, I am of

opinion that the Commission has not shown by clear and

convincing evidence that Judge Taylor’s actions were knowingly

improper, and that this difference in the interpretation of

the evidence presented is especially relevant to the

determination of whether she “has engaged in conduct

prejudicial to the proper administration of justice” as

contemplated by Article VI, Section 10 of the Constitution of

50
Virginia. In this case, the Commission argues that, if this

Court determines Judge Taylor’s action were “mere legal

error,” she “arrogated to herself the power to rule that her

own decision was immune from appellate review.” This argument

is unpersuasive because the evidence establishes that, while

legally in error, Judge Taylor was merely following the law as

she and her colleagues understood it to be.

In Peatross, this Court declined to censure a jurist for

legal errors. 269 Va. at 449-50, 611 S.E.2d at 403-04. This

Court stated that certain errors and omissions committed by

Judge Peatross were errors of law, “not violations of the

Canons.” Id. at 447, 611 S.E.2d at 402. This Court cited

with approval cases from Illinois and California that stated

that mere legal error should not be the subject of discipline.

Id.; see Oberholzer v. Comm’n on Judicial Performance, 975

P.2d 663, 680 (Cal. 1999); Harrod v. Illinois Courts Comm’n,

372 N.E.2d 53, 65 (Ill. 1977); see also In re Inquiry

Concerning a Judge, No. 207 (Tucker), 501 S.E.2d 67, 71 (N.C.

1998). We stated that not punishing a judge for legal errors

is important in order to maintain the independence of the

judiciary. See Peatross, 269 Va. at 447, 611 S.E.2d at 402

(citing Harrod, 372 N.E.2d at 65) (stating that in order to

maintain an independent judiciary, errors of law should not be

the subject of discipline)).

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 In my view Peatross is controlling in this case because

there is insufficient evidence to establish that the legal

error committed by Judge Taylor was accompanied by bias, abuse

of authority, or intentional disregard of the law. It is

noteworthy in that regard that the orders and actions of Judge

Taylor occurred in May 2007, and the present proceedings were

conducted before the Commission in March 2009. To the extent

that the majority finds degrees of conflict in Judge Taylor’s

testimony as expressed in its opinion, such is readily

understandable with the lapse of time involved. Moreover,

these conflicts do not establish a violation of the Canons

under the clear and convincing standard required to establish

such a violation.

Judge Taylor’s actions do not rise to the level of

judicial misconduct, particularly in light of this Court’s

precedents. Unlike the circumstances in Judicial Inquiry &

Review Comm’n v. Lewis, 264 Va. 401, 406, 568 S.E.2d 687, 690

(2002), Judge Taylor did not defy a superior court’s order.

Unlike the circumstances in Judicial Inquiry & Review Comm’n

v. Shull, 274 Va. 657, 676-77, 651 S.E.2d 648, 659-60 (2007),

Judge Taylor did not demean litigants and bring discredit to

the judiciary. In the absence of clear and convincing

evidence that Judge Taylor acted intentionally to thwart the

appeal, rather than merely erred in failing to direct the

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deputy clerk to perform the ministerial duty of accepting and

processing the notice of appeal of her order, I cannot agree

with the majority that her actions violated the Canons of

Judicial Conduct.

The censure of a judge for misconduct has obvious and

drastic consequences for the judge both professionally and

personally. Judges make errors of law, but such errors do not

constitute misconduct unless, for example, the judge

purposefully deprives a litigant of rights that the judge

knows a litigant is entitled to by law. Without such a high

standard, the independence of the judiciary will be constantly

in question.

For these reasons, I would dismiss the complaint filed in

this case by the Commission against Judge Taylor.

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