PRESENT: Hassell, C.J., Keenan, Koontz, Lemons, and Agee, JJ.,
and Carrico and Stephenson, S.JJ.
JUDICIAL INQUIRY AND REVIEW
COMMISSION OF VIRGINIA
v. Record No. 071014 OPINION BY
JUSTICE BARBARA MILANO KEENAN
November 2, 2007
JAMES MICHAEL SHULL, JUDGE OF
THE THIRTIETH JUDICIAL DISTRICT
The Judicial Inquiry and Review Commission (the Commission)
filed the present complaint against James Michael Shull, Judge
of the Thirtieth 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
alleged that its charges against Judge Shull for allegedly
violating the Canons of Judicial Conduct (the Canons) are well
founded in fact, and that the violations are of sufficient
gravity to require that this Court censure or remove him from
office.
I. FACTS AND PROCEEDINGS
On December 20, 2006, the Commission issued an order
pursuant to Code § 17.1-911(A) and (C), suspending Judge Shull
from the exercise of his judicial powers. The suspension
initially arose from two incidents that occurred at a custody
and visitation hearing over which Judge Shull presided in the
1
Wise County Juvenile and Domestic Relations District Court (the
juvenile and domestic relations court).
After receiving the order of suspension, Judge Shull
requested that the Commission conduct a hearing allowed by Code
§ 17.1-911(B) to review whether “justice would be served” by
continuing his suspension from office pending resolution of the
charges.1 See id. Judge Shull asserted that due process
required that the Commission present evidence supporting its
decision to suspend him, and maintained that the Commission
should bear the burden of proving that “justice would be served”
by continuing his suspension. Judge Shull further asserted that
he should be permitted at the hearing to cross-examine any
witnesses who had provided evidence supporting the Commission’s
decision temporarily suspending him from office.2
On January 9, 2007, the Commission conducted the requested
hearing (the suspension hearing), at which the Commission
entered into evidence a two-page written summary stating the
Commission’s factual basis for temporarily suspending Judge
Shull (the statement of facts). In the statement of facts, the
1
Code § 17.1-911(B) states that “[t]he Commission shall
give the judge reasonable notice of such suspension as
prescribed by the rules of the Commission and, if requested by
the judge or his attorney, shall schedule a hearing during the
first fifteen days of the suspension in order to determine
whether justice would be served for the suspension to continue
until the completion of the investigation or formal hearing.”
2
The Commission did not issue formal charges against Judge
Shull at the time it suspended him.
2
Commission alleged that in December 2006, Tammy L. H. Giza
(Giza) obtained a temporary protective order against her
husband, Joseph A. K. Giza (Keith Giza), based on her allegation
that he had assaulted her. The Commission alleged that on
December 12, 2006, in a hearing in the juvenile and domestic
relations court, Judge Elizabeth S. Wills granted Giza’s request
for a continuance, extended the protective order for a three-day
period until December 15, 2006, and directed Giza to notify the
juvenile and domestic relations court when she retained counsel.
The Commission further alleged that during a hearing in the
juvenile and domestic relations court on December 15, 2006, in
which Judge Shull presided, Giza sought to extend the protective
order against her husband and to secure custody of her two
children (the Giza custody hearing). Judge Shull denied Giza’s
request for a continuance to obtain counsel.
According to the Commission, during the Giza custody
hearing, Giza claimed that Keith Giza had inflicted a wound on
her thigh. Keith Giza disputed the nature and existence of the
wound. The Commission alleged that when Giza told Judge Shull
she could not exhibit the wound without lowering her pants,
Judge Shull indicated that he would not extend the protective
order without first viewing the wound. The Commission alleged
that Judge Shull twice directed Giza to lower her pants in the
courtroom so that he could inspect the wound. The Commission
3
further alleged that during a recess in the Giza custody
hearing, Judge Shull initiated an ex parte telephone call to a
hospital where Giza stated she had been treated for the wound.
At the suspension hearing, Judge Shull presented two
witnesses who testified about the events that took place at the
Giza custody hearing. Those witnesses were Daniel W. Fast, who
represented Keith Giza at the Giza custody hearing, and Amy
Johnson, a probation officer who also was present at the Giza
custody hearing.
Fast and Johnson both testified that Giza offered to show
her wounds to Judge Shull before he first directed her to do so.
Fast also stated that before viewing the wound on the second
occasion, Judge Shull “told [Giza] he wanted to see the stitch
wounds,” left his seat on the bench, and directed Giza to lower
her pants. At the conclusion of the suspension hearing, the
Commission determined that justice would be served by continuing
Judge Shull’s suspension.
On February 9, 2007, the Commission issued three formal
charges against Judge Shull for alleged violations of Canons 1,
2, 2(A), 3(B)(2), 3(B)(3), 3(B)(4), and 3(B)(7). The Commission
alleged that Judge Shull initiated an improper ex parte
telephone call during a recess in the Giza custody hearing and
treated Giza in an undignified, discourteous, and uncivil manner
when he twice directed her to lower her pants in the courtroom.
4
In addition, the Commission alleged that during a different
hearing involving visitation over which Judge Shull presided,
when the two parents could not agree upon which parent would
receive the preferred share of a divided holiday visitation
period, Judge Shull directed that the issue would be determined
by the toss of a coin, and twice tossed a coin in the courtroom
while court was in session to resolve the dispute.
Judge Shull responded to the charges by asserting that he
had not violated the Canons. While Judge Shull admitted that he
had determined a contested legal matter by twice flipping a coin
during a courtroom proceeding, he argued that his action was
intended to encourage the litigants to resolve the custody
issues by themselves and to “demonstrate . . . that his award of
custody . . . would be as random as a coin toss.” Judge Shull
also maintained that neither parent had objected to resolving
the custody dispute by a coin toss.
Judge Shull admitted in his response to the Commission that
during the Giza custody hearing, Giza twice lowered her pants in
the courtroom to allow him to inspect her thigh wound, but
asserted that Giza volunteered to lower her pants and that he
merely permitted her to do so. According to Judge Shull, he
directed the bailiff to close “privacy curtains” before allowing
Giza to lower her pants, and the only people present in the
courtroom who could see Giza exposed were officially involved in
5
the Giza proceedings. Judge Shull admitted that he could have
“handled” the Giza custody hearing “in a more sensitive manner,”
but maintained that his conduct was not a violation of the
Canons.
Judge Shull admitted that he initiated an ex parte
telephone call to the hospital where Giza alleged she was
treated, but asserted that before he placed the call, he
informed everyone in the courtroom that he planned to do so.
Judge Shull maintained that “it is not uncommon” for judges in
the juvenile and domestic relations court to place telephone
calls to ascertain the truth when resolving a factual dispute.
On April 10 and 11, 2007, the Commission conducted an
evidentiary hearing (the April hearing) on the charges. At the
April hearing, Judge Shull conceded that he had tossed a coin to
decide a visitation issue, and that this action was “wrong.”
Judge Shull also admitted that the ex parte telephone call he
made during the Giza custody hearing was a violation of Canon
3(B)(7). Judge Shull further stipulated at the April hearing
that he “admitted to violations” of “Canons 2 and 3.”
Most of the essential facts concerning the Giza custody
hearing were undisputed at the April hearing. Judge Shull
testified that he denied Giza’s request for a continuance to
obtain counsel because she had failed to keep an earlier
appointment with an attorney she wished to retain, and Judge
6
Shull was concerned about continuing the case further given the
nature of the proceedings.
Judge Shull admitted that Giza twice lowered her pants in
the courtroom during the Giza custody hearing, and that he
“initiated” both incidents. Judge Shull also conceded that at
the time Giza lowered her pants, he was aware that Giza had a
history of mental illness.
Judge Shull testified that during the Giza custody hearing,
he learned that Giza had been committed to the Southwestern
Virginia Mental Health Institute at Marion (the Marion mental
health facility) in March 2006. Judge Shull stated that before
he conducted his viewings of Giza’s thigh wound, he had reviewed
a March 2006 police report stating that Giza had admitted
engaging in self-mutilation “to get attention.” Judge Shull
further conceded that “there had been some statements to the
effect that maybe [Giza] was a person of diminished capacity,”
but maintained that he observed “no apparent diminished
capacity” at the time of the Giza custody hearing.
Several other witnesses at the April hearing testified
regarding additional information provided to Judge Shull at the
Giza custody hearing concerning Giza’s mental condition.
According to Giza, Daniel Fast informed Judge Shull at the “very
first part of the hearing” that Giza had been committed to a
mental health facility. Teresa Castle, the clerk present in the
7
courtroom at the Giza custody hearing, testified that Fast
argued “right off the bat” that Giza had engaged in self-
mutilation on an earlier occasion.
Edward Gardner, the bailiff in the courtroom during the
Giza custody hearing, stated that before Judge Shull viewed the
wound on Giza’s thigh, Giza admitted that she had previously cut
herself and that she had later sought “help.” Nicky Fleenor, a
court-appointed Special Advocate for Wise County, testified that
Giza informed Judge Shull of Giza’s commitment to a mental
health facility in March 2006. Finally, Keith Giza testified
that the police report introduced into evidence and considered
by Judge Shull indicated that Giza was committed to the Marion
mental health facility as a result of her self-mutilation.
It was undisputed that Giza initially offered to show her
wound by raising the leg of her pants but was unable to expose
her wound in this manner. According to Judge Shull, Giza began
to unbutton her pants although he did not direct her to do so.
Keith Giza testified that when Giza could not raise the leg of
her pants enough to reveal her wound, she nonetheless offered to
show her injury. Castle testified that when Giza could not
raise her pants leg sufficiently to reveal the wound, Giza said
that she would have to “pull [her] britches down” to show the
wound.
8
Castle and two other witnesses, Edward Gardner and Jewell
Morgan, the guardian ad litem for the Giza children, all
testified that after it became apparent that Giza could not
reveal the wound by raising her pants leg, Judge Shull told Giza
she would have to show the wound. Castle testified that, in
response, Giza asked, “[Y]ou want me to pull my britches down in
here?” Gardner testified that Giza said, “[M]ust I pull my
pants down here in the courtroom?”
According to Castle, Judge Shull replied that if Giza
wanted the protective order to remain in place, she would have
to show her wound. Judge Shull testified that he believed it
was necessary to view the wound because he was “faced with a
prospect of sending the children either to a cutter or a
stabber.”
The testimony differed concerning the amount of time that
Giza’s pants remained lowered during the first viewing. The
witnesses reported variously that the incident lasted for
periods of time between a few seconds and five minutes. The
testimony also was conflicting concerning how far Giza lowered
her pants and how much of her anatomy was exposed at the time of
the first viewing. Judge Shull and Keith Giza testified that
Giza held the left side of her pants next to her body and pulled
the right side down to expose her wound, but that she never
lowered her pants. Judge Shull further stated that he did not
9
observe any of Giza’s anatomy other than the part of her thigh
where her wound was located, and that he did not see Giza’s
undergarments.
Several other witnesses, however, testified that Giza
lowered her pants to her knees after Judge Shull directed her to
show her wound. These witnesses included Fleenor, Castle,
Gardner, and Morgan. Giza further stated that she was rendered
“in shock” over Judge Shull’s request that she lower her pants,
and that she “didn’t think that a court could order anybody to
remove clothing.”
Fleenor testified that she observed Giza’s “back side” and
her buttocks. Morgan stated that she saw Giza’s “[c]heeks.”
Gardner testified that he was standing behind Giza when she
lowered her pants, and that he saw Giza’s “rear end part” and
her buttocks. Castle testified that she did not see Giza from
the rear, but saw the “front of her and up to her thigh.” When
Giza lowered her pants in the courtroom, Fleenor, Gardner, and
Morgan each observed that Giza was wearing black or dark-colored
“thong” or “g-string” underwear.
It was undisputed at the April hearing that Judge Shull
“initiated” a second viewing of Giza’s wound during the Giza
custody hearing. Judge Shull testified that he stated to those
present in the courtroom that it might be possible for him to
determine if Giza had received stitches, because his “father had
10
been a surgeon.” According to the witnesses who testified at
the April hearing, Judge Shull left his seat on the bench, sat
in the witness’ chair, and directed Giza to stand about an
“arm’s length” from him and lower her pants a second time.
Giza stated that the second viewing lasted “a little bit
longer” than the first. Other witnesses reported that the
second viewing lasted for periods of time between a few seconds
and “less than a minute.”
Judge Shull testified that during the second viewing, Giza
held “one side of her pant leg up at the hem and let[] it . . .
drop, just to her knee,” and that he did not see Giza’s
undergarments. Keith Giza testified that the second time Judge
Shull asked to see Giza’s wound, Giza “pulled down the right
side of her pants to the wound and kept everything else
guarded.” However, according to Fleenor, Giza lowered her pants
to her knees during the second viewing. Giza testified that
when she lowered her pants, her buttocks were exposed to
everyone who was behind her in the courtroom. Gardner testified
that when Giza lowered her pants a second time, he “turned again
and looked at the curtain” because he “didn’t want to see
again.” Morgan testified that she turned her back to Giza and
Judge Shull during the second viewing because “[i]t [was] kind
of embarrassing.”
11
Judge Shull further stated that after the second viewing,
he concluded that Giza, in fact, had received stitches. Judge
Shull testified that at the hearing he “felt less in control
than [usual],” and admitted that he “probably . . . lost
sensitivity to the overall situation” and “handled it poorly”
and “indecorous[ly],” and “wrong.” Castle testified that during
the proceeding, Giza “looked upset.” Fleenor, Morgan, Castle,
and Keith Giza testified that Giza cried at the end of the Giza
custody hearing.
Gardner testified that when he encountered Judge Shull
outside the courtroom after the Giza custody hearing, Gardner
asked Judge Shull, “[D]id you see what that lady had on[?]”
According to Gardner, Judge Shull replied, “[Y]eah, a black lacy
thong . . . it looked good, didn’t it[?]” Judge Shull denied
that he made any comments to Gardner concerning Giza’s
undergarments. Judge Shull testified that he only said to
Gardner, “[T]hat was a rough case, wasn’t it?” Judge Shull
further testified that Gardner replied, “I think she came
prepared to do what she did.”
At the April hearing, Judge Shull admitted that he had
appeared before the Commission in 2004 (the 2004 hearing). The
Commission placed in evidence a letter the Commission sent to
Judge Shull in 2004 explaining certain concerns the Commission
had regarding Judge Shull’s alleged conduct, and a transcript
12
from the 2004 hearing. The letter made several allegations
involving Judge Shull’s courtroom conduct, including that he had
repeatedly referred to a 14-year-old boy as a “mama’s boy,” a
“wuss” and a “pussy,” and stated that he understood why other
boys would pick on the boy. The letter also alleged that Judge
Shull had told a female litigant who likely had been abused by
her boyfriend that the litigant “should marry the boyfriend and
that would put an end to the abuse.”
In the 2004 hearing, Judge Shull admitted making some of
the alleged statements but denied that he had told the 14-year
old boy that he was a “pussy.” When asked, however, whether he
had told the female litigant that she should marry the person
whom she said had inflicted the bruises on her, Judge Shull
stated, “Probably . . . I probably did say something to the
effect, well, if you married this guy, it would remove an
impediment [regarding custody of your children].” At the
conclusion of the 2004 hearing, Judge Shull stated, “Well, I
apologize for forcing you-all to bring me up here, and I
acknowledge fully that it is my fault. . . . I hope that you
will never see me again in this context.” Following these
statements, the Commission voted to dismiss the proceedings
against Judge Shull.
After the April hearing, the Commission determined that the
February 2007 charges were “well-founded and of sufficient
13
gravity to constitute the basis for retirement, censure or
removal.” The Commission observed that the facts were
undisputed that Judge Shull had twice tossed a coin in the
courtroom to decide an issue before him and had initiated an ex
parte telephone call. The Commission further noted that Judge
Shull had admitted that these actions violated the Canons.
Additionally, the Commission found by clear and convincing
evidence that Judge Shull twice directed Giza to lower her pants
in the courtroom, and that he made a statement to the bailiff
that demonstrated that Judge Shull had seen Giza’s underwear.
As a result, the Commission decided to file the present formal
complaint in this Court pursuant to Article VI, § 10 of the
Constitution of Virginia and Code § 17.1-902.
II. CANONS OF JUDICIAL CONDUCT
The relevant portions of the Canons at issue in this case
are:
Canon 1
A Judge Shall 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 construed and applied to further that
objective.
. . . .
14
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.(2) A judge shall be faithful to the law and
maintain professional competence in it. . . .
B.(3) A judge shall require order, decorum, and
civility in proceedings before the judge.
B.(4) A judge shall be patient, dignified and
courteous to litigants, jurors, witnesses, lawyers and
others with whom the judge deals in an official
capacity. . . .
. . . .
B.(7) . . . A judge shall not initiate, permit, or
consider ex parte communications, or consider other
communications made to the judge outside the presence of
the parties concerning a pending or impending proceeding
. . . .
III. ANALYSIS
We first state the Constitutional and statutory authority
on which our consideration of these charges is based. When the
Commission files a formal complaint in this Court against a
15
judge, we are charged with the duty to conduct a hearing in open
court to determine whether the judge has “engaged in misconduct
while in office, or . . . has persistently failed to perform the
duties of [the] office, or . . . has engaged in conduct
prejudicial to the proper administration of justice.” Va.
Const. art. VI, § 10. We make this determination by considering
the evidence and making factual determinations de novo.
Judicial Inquiry & Review Comm’n v. Peatross, 269 Va. 428, 443,
611 S.E.2d 392, 400 (2005); Judicial Inquiry & Review Comm’n v.
Lewis, 264 Va. 401, 405, 568 S.E.2d 687, 689 (2002).
We do not accord any particular weight to the Commission’s
findings or to their credibility determinations. Instead, we
give the Commission’s findings only such weight as we consider
appropriate in the individual case before us. Peatross, 269 Va.
at 444, 611 S.E.2d at 400. We employ this approach because the
Commission’s function is limited to determining whether “the
charges [are] well-founded, and sufficient to constitute the
basis for retirement, censure, or removal of a judge,” thereby
resulting in a complaint being filed in this Court. Code
§ 17.1-902; see also Va. Const. art. VI, § 10; Peatross, 269 Va.
at 444, 611 S.E.2d at 400.
Because this type of case invokes the original jurisdiction
of this Court, see Va. Const. art. VI, § 1, we conduct an
independent review of the record created by the Commission to
16
determine whether there is clear and convincing evidence of a
violation of the Canons as charged in the Commission’s
complaint. Peatross, 269 Va. at 444, 611 S.E.2d 400; see Lewis,
264 Va. at 405, 568 S.E.2d at 689. If we find clear and
convincing evidence in the record before us, we are required to
censure the judge or to remove the judge from office. Va.
Const. art. VI, § 10; Peatross, 269 Va. at 444, 611 S.E.2d at
400. Those are the only sanctions that we may impose. Va.
Const. art. VI, § 10; Peatross, 269 Va. at 444, 611 S.E.2d at
400.
The term “clear and convincing evidence” is defined as
“that degree of proof which will produce in the mind of the
trier of facts a firm belief as to the allegations sought to be
established. Such measure of proof is intermediate, more than a
mere preponderance but less than is required for proof beyond a
reasonable doubt; it does not mean clear and unequivocal.”
Peatross, 269 Va. at 444, 611 S.E.2d at 400 (quoting Middleton
v. Johnston, 221 Va. 797, 803, 273 S.E.2d 800, 803 (1981)
(emphasis in original)); see also Lewis, 264 Va. at 405, 568
S.E.2d at 689. The Commission bears the burden of proving its
charges by clear and convincing evidence. Peatross, 269 Va. at
444, 611 S.E.2d at 400; Lewis, 264 Va. at 405, 568 S.E.2d at
689.
A. Suspension Hearing
17
As a preliminary matter, Judge Shull raises certain due
process arguments concerning the manner in which the Commission
conducted the suspension hearing. Judge Shull asserts that the
Commission violated his due process rights by effectively
shifting the burden of proof and requiring him to present
evidence at the suspension hearing, and by refusing his request
to cross-examine adverse witnesses whose accounts appeared in
the Commission’s statement of fact.
We do not reach the merits of these arguments. Our
jurisdiction over the formal charges filed in this Court is
purely original in nature. See Va. Const. art. VI, § 1;
Peatross, 269 Va. at 444, 611 S.E.2d at 400. The Commission,
not this Court, is vested with the statutory authority to
determine whether a judge should be suspended with pay until
resolution of a pending investigation. See Code § 17.1-911.
Moreover, neither the Constitution nor the Code has given this
Court authority to review the Commission’s suspension hearing
procedures or the Commission’s decision to suspend a judge with
pay until final resolution of pending charges. In the absence
of constitutional or statutory authority to do so, we are not at
liberty to presume such authority. See Board of Supervisors of
Fairfax County v. Board of Zoning Appeals of Fairfax County, 271
Va. 336, 344, 626 S.E.2d 374, 379 (2006); America Online, Inc.
v. Anonymous Publicly Traded Co., 261 Va. 350, 358, 542 S.E.2d
18
377, 381 (2001); Humphreys v. Commonwealth, 186 Va. 765, 772-73,
43 S.E.2d 890, 894 (1947); Shelton v. Sydnor, 126 Va. 625, 629,
102 S.E. 83, 85 (1920).
We disagree with Judge Shull that our decision in Judicial
Inquiry & Review Comm’n v. Elliott, 272 Va. 97, 630 S.E.2d 485
(2006), requires a different result here. In Elliott, we
determined that the Commission and a judge charged with
misconduct had reached a supervision agreement under the
Commission’s Rule 15(A)(4) that, if honored by the judge, would
foreclose the Commission from filing charges against the judge
in this Court. Id. at 121-22, 630 S.E.2d at 497-98. Upon
consideration of the record, we further held that because the
judge had not violated the agreement, the Commission was
foreclosed from bringing a complaint to this Court. Id. at 123,
630 S.E.2d at 498-99. Thus, in Elliott, our determination
centered on the question whether the substantive charges filed
by the Commission in this Court had already been resolved by the
parties’ prior agreement.
Judge Shull, however, does not ask us to determine whether
the substantive charges filed against him in this Court have
already been resolved by proceedings before the Commission.
Instead, Judge Shull asks, in the form of a due process
challenge, that we address matters over which we have not been
given constitutional or statutory authority. In the absence of
19
such authority, Judge Shull’s due process challenge effectively
requests an advisory opinion concerning matters not subject to
our review. See Riverside Hospital, Inc. v. Johnson, 272 Va.
518, 526 n.2, 636 S.E.2d 416, 420 n.2 (2006); Commonwealth v.
Harley, 256 Va. 216, 219-20, 504 S.E.2d 852, 854 (1998).
B. Formal Charges
Judge Shull has admitted many of the facts alleged in the
formal charges. He concedes that his actions tossing a coin in
the courtroom to resolve a visitation dispute were a violation
of the Canons. He also concedes that he violated Canon 3(B)(7)
by placing an ex parte telephone call to a hospital during the
Giza custody hearing in an attempt to resolve a disputed factual
matter.
Judge Shull further has admitted many of the alleged facts
concerning the Giza custody hearing, in which Giza was
unrepresented by counsel. Judge Shull admitted at the April
hearing that before he conducted the two viewings of Giza’s
thigh, he knew that Giza had been committed to the Marion mental
health facility several months earlier as a result of her self-
mutilation. Judge Shull also admitted at the April hearing he
“initiated” both incidents in which Giza lowered her pants in
the courtroom. Finally, Judge Shull conceded at the April
hearing that his conduct at the Giza custody hearing violated
Canons 2 and 3.
20
The main factual disputes before us concern the sequence of
events that culminated in Giza twice lowering her pants in front
of Judge Shull. As stated above, Judge Shull testified that,
without any direction from him, Giza began to unbutton her pants
after it became apparent that she could not reveal her wound by
lifting her pants leg. In addition, Keith Giza stated that Giza
offered to show her wound before Judge Shull directed her to do
so. However, other witnesses, including Castle, Morgan, and
Gardner, testified that Giza lowered her pants only after Judge
Shull told her she was required to show her wound even though
she could do not so by raising her pants leg. Additionally,
Castle testified that Giza asked Judge Shull whether she was
required to pull her pants down in the courtroom, and that Judge
Shull replied that she would have to show the wound if she
wanted the protective order to remain in effect.
Several witnesses, including Fleenor, Castle, Gardner, and
Morgan, testified that Giza lowered her pants to her knees after
Judge Shull first directed her to show her wound. These
witnesses also gave graphic testimony concerning the parts of
Giza’s anatomy that were clearly visible when Giza lowered her
pants. Judge Shull and Keith Giza disputed these facts, and
maintained that Giza never lowered her pants but merely dropped
one side of her open trousers, exposing the wound above her
knee.
21
Judge Shull does not dispute that he initiated the second
viewing and thought that he could use knowledge gleaned from his
father’s work as a surgeon to determine at closer range whether
Giza had received stitches. Judge Shull also does not dispute
that he moved from the bench to the witness’ chair to conduct
this closer examination of Giza’s wound. However, both Judge
Shull and Keith Giza contradicted Fleenor’s testimony that Giza
lowered her pants to her knees after Judge Shull directed her to
display her wound again.
Upon our review of these conflicts in the evidence, we find
that the version of courtroom events described by Fleenor,
Castle, Gardner, and Morgan is persuasive and is more credible
than the contrary testimony given by Judge Shull and Keith Giza.
The record lacks any plausible explanation why those four
witnesses, who had no discernable interest in the outcome of the
controversy, would not have been accurate in their description
of the courtroom events. Moreover, the degree to which their
testimony varied from that of Judge Shull and Keith Giza on
these disputed factual issues was substantial and, therefore,
cannot be explained as merely differing recollections of the
same events.
Accordingly, we find as a matter of fact that Giza lowered
her pants in the courtroom because Judge Shull directed her to
display her wound after she was unable to expose it by lifting
22
her pants leg. We also find as a matter of fact that Giza
lowered her pants to her knees on both occasions after being
directed by Judge Shull to display her wound, and that, as a
result, her buttocks were exposed.
Based on the testimony of Fleenor, Castle, Gardner, and
Morgan, and the admissions of Judge Shull, we conclude the
Commission has met its burden of proving by clear and convincing
evidence that Judge Shull committed the three violations of the
Canons charged in the Notice of the Commission dated February 9,
2007. In sum, the three proved violations were: 1) that Judge
Shull twice tossed a coin in the courtroom to resolve a
visitation dispute; 2) that Judge Shull made an improper ex
parte telephone call during a recess in the Giza custody hearing
to obtain information on a disputed factual matter; and 3) that
Judge Shull twice required Giza to lower her pants in the
courtroom during the same custody hearing.3
Judge Shull violated the Canons by his conduct because his
actions failed to uphold the integrity and independence of the
judiciary, and tended to impair public confidence in the
integrity and impartiality of the judiciary. See Canons of
Judicial Conduct 1 & 2. Judge Shull also violated the Canons by
3
We conclude that it is unnecessary for us to consider the
disputed testimony that Judge Shull made certain statements
after the Giza custody hearing indicating that he had seen
Giza’s underwear.
23
failing to maintain and exhibit professional competence in the
law, by failing to require decorum and civility in the
courtroom, and by failing to be patient, dignified, and
courteous to a litigant. See Canons of Judicial Conduct
3(B)(2), (3) & (4). Finally, Judge Shull’s action initiating an
improper ex parte telephone call also violated the Canons
because that action precluded the parties from participating in
a disputed matter material to their proceeding. See Canons of
Judicial Conduct 3(B)(7).
We further conclude that Judge Shull’s violations of the
Canons were grave and substantial. A judge’s act of tossing a
coin in a courtroom to decide a legal issue pending before the
court suggests that courts do not decide cases on their merits
but instead subject litigants to games of chance in serious
matters without regard to the evidence or applicable law. Such
conduct may have a profoundly negative impact, not only on the
parties’ ability to accept the “rule of law” imposed in their
particular case, but also on the public’s confidence in and
respect for the judiciary. In order for our justice system to
maintain the confidence and respect of the public, judicial
decisions must be based on the evidence and pertinent law. The
contrary actions of Judge Shull, reduced to their essence, were
actions that denigrated the litigants whose case he decided and
subjected our justice system to ridicule.
24
Judge Shull’s actions during the Giza custody hearing were
even more egregious. Knowing that Giza had been committed to a
mental health facility because she previously had mutilated
herself, and in the absence of Giza being afforded the advice of
counsel, Judge Shull directed Giza to display her wound when it
was apparent that she could not do so without lowering her pants
in the courtroom. The “privacy” room divider employed to reduce
the size of the courtroom did not prevent anyone involved in the
Giza custody hearing from observing Giza’s exposed body.
Judge Shull also required Giza to display her wound a
second time, fully aware that Giza would again be lowering her
pants in the courtroom, with an obvious lack of concern for
Giza’s personal dignity or the dignity of the judicial
proceedings. Judge Shull’s initiation of an improper ex parte
telephone call during the Giza custody hearing further eroded
the integrity of the proceedings by removing the parties, one of
whom was not represented by counsel, from participation in a
significantly disputed aspect of the case.
We hold that Judge Shull’s actions in the two cases, as
established by clear and convincing evidence, constitute
“misconduct while in office” and “conduct prejudicial to the
proper administration of justice.” See Va. Const. art. VI,
§ 10. Thus, we are required either to censure Judge Shull or to
25
remove him from office. Id.; see Peatross, 269 Va. at 444, 611
S.E.2d at 400.
C. Disposition
Initially, we note that the record before us contains many
letters from attorneys, court personnel, and local citizens, who
have written in support of Judge Shull’s professional reputation
and service to his community. We have reviewed those
submissions as part of our consideration of the proper
disposition of this case.
Addressing the issue of disposition, Judge Shull correctly
observes that since the Commission was enacted in 1971, only one
judge has been removed from office. In that case, Judicial
Inquiry & Review Commission v. Maurice, Record No. 770472 (Sept.
1, 1977), this Court found that a judge misappropriated certain
confiscated items, including firearms and alcohol, and consumed
confiscated beer with others in the judge’s office. Judge Shull
argues that “[i]n light of this authority, it is abundantly
clear that Judge Shull’s conduct does not rise to the level of a
removable offense.”
We disagree that the matter can so easily be resolved.
While the conduct of Judge Maurice was completely deplorable,
and likely involved criminal activity, his conduct did not
affect any litigants or the administration of justice in a
courtroom of this Commonwealth.
26
In contrast, the essence of Judge Shull’s judicial
misconduct has been his disregard for the dignity of litigants
appearing before him and for the dignity of the judicial
process. Judge Shull’s actions involved two separate cases. In
tossing a coin to resolve a matter before him, he denigrated
both the litigants and our justice system. By directing Giza to
lower her pants twice in the courtroom, Judge Shull ignored the
dignity of a litigant who was not represented by counsel and who
had a clear history of mental instability. Such actions on the
part of a judge necessarily impair public confidence in the
integrity of our justice system. Unless our citizens can trust
that judges will fairly resolve the disputes brought before our
courts, and treat all litigants with dignity, our courts will
lose the public’s respect and confidence upon which our legal
system depends.
Although Judge Shull’s improper ex parte communication
during the Giza custody hearing, standing alone, would not merit
additional discussion, we must consider it in the larger context
of the courtroom proceedings. In that context, the ex parte
communication serves to illustrate again Judge Shull’s lack of
concern for litigants appearing before him.
We also must observe that, in May 2004, Judge Shull
appeared before the Commission in an informal proceeding in
which several allegations were considered, including that he did
27
not treat some litigants in his courtroom with respect. We are
particularly concerned with Judge Shull’s admission at the 2004
hearing that he “probably” advised a female litigant, who
alleged that her boyfriend had inflicted bruises on her, that
“if you married this guy, it would remove an impediment
[regarding custody of your children].” We also are concerned
about Judge Shull’s statement at the 2004 hearing that in a case
involving a 14-year old boy, he “may have said the evidence does
show that you are a bit of a mama’s boy, and this is part of the
problem here.”
At the time the Commission dismissed these allegations, the
Commission’s chairman stated, “You haven’t been a full-time
judge for very long, and the Commission is hopeful that this is
the initial learning process that is going to help you sort
everything out.” By its action, the Commission plainly gave
Judge Shull the opportunity to change his future conduct and to
treat litigants with due respect.
We are forced to observe that Judge Shull did not heed the
Commission’s advice but has continued to demean litigants
appearing before him. The misconduct before us in the present
charges indicates that Judge Shull’s courtroom conduct has
become far worse than it was when he first appeared before the
Commission in 2004. Therefore, to ensure that all citizens will
be able to have full confidence they will be treated fairly and
28
accorded their rightful dignity in all future legal proceedings
in the Thirtieth Judicial District, this Court will order that
James Michael Shull be removed immediately from the office of
Judge of the Thirtieth Judicial District, pursuant to Article
VI, § 10, of the Constitution of Virginia.
Removal ordered.
29