Present: Lacy, Keenan, Koontz, Kinser, and Lemons, JJ., and
Compton1 and Russell, S.JJ.
JUDICIAL INQUIRY AND REVIEW
COMMISSION OF VIRGINIA
OPINION BY
v. Record No. 051990 JUSTICE LAWRENCE L. KOONTZ, JR.
June 8, 2006
ARCHIE ELLIOTT, JUDGE
OF THE THIRD JUDICIAL DISTRICT
Pursuant to Article VI, Section 10 of the Constitution of
Virginia and Code § 17.1-902, the Judicial Inquiry and Review
Commission of Virginia (Commission) filed a complaint under the
original jurisdiction of this Court against Archie Elliott, a
judge of the General District Court of the Third Judicial
District. In the complaint, the Commission alleges that there
are well founded grounds to support its determination that Judge
Elliott committed multiple violations of the Canons of Judicial
Conduct and that these violations are of sufficient gravity to
warrant the censure or removal from office of Judge Elliott.
PROCEEDINGS BEFORE THE COMMISSION
“The Judicial Inquiry and Review Commission was created to
investigate charges that, if true, would warrant the retirement,
removal, or censure of a judge.” Judicial Inquiry and Review
Commission v. Lewis, 264 Va. 401, 403, 568 S.E.2d 687, 688
1
Senior Justice Compton participated in the hearing and
decision of this case before his death on April 9, 2006.
(2002); see also Rules of the Judicial Inquiry and Review
Commission, 15 VAC § 10-10-10, Rule 2(L).2 “When the Commission
concludes, after investigation, that such a charge is well-
founded, it may file a formal complaint, resulting in a hearing
before this Court.” Lewis, 264 Va. at 403, 568 S.E.2d at 688;
JIRC Rule 15(A)(2). The rules of the Commission define the term
“well founded” as meaning “that the Commission has found based
upon clear and convincing evidence and supported by facts and
sound judgment that the misconduct [by the judge] has occurred.”
JIRC Rule 2(M); see also Judicial Inquiry and Review Commission
v. Peatross, 269 Va. 428, 433 n.1, 611 S.E.2d 392, 394 n.1
(2005). If this Court “finds that the judge has engaged in
misconduct while in office, or . . . has engaged in conduct
prejudicial to the proper administration of justice, it shall
censure [the judge] or shall remove [the judge] from office.”
Va. Const. art. VI, § 10.3
On August 26, 2004, the Commission entered an order
suspending Judge Elliott, with pay, from the exercise of
2
Hereinafter, we will refer to the rules of the Commission
as “JIRC Rule #.” Subsequent to the proceedings at issue here,
the Commission’s rules were amended effective February 14, 2006.
None of the amendments are germane to the issues presented and,
accordingly, we will refer to the current rules.
3
Code § 17.1-906 specifically establishes the jurisdiction
of this Court to include complaints filed against a judge of a
district court by the Commission.
2
judicial powers. Code § 17.1-911(A). The suspension was based
upon the Commission’s finding that there was “probable cause to
believe that the continued performance of judicial duties by
Judge Elliott constitutes both a substantial and immediate
threat to the public interest in the administration of justice.”
That order has not been terminated.
On October 18, 2004, the Commission issued formal notice
advising Judge Elliott that he was being charged by the
Commission with violating the Canons of Judicial Conduct based
on 12 specified incidents. JIRC Rule 3(B)(2); JIRC Rule 8(A).
On June 14 and 15, 2005, the Commission conducted an evidentiary
hearing at which Judge Elliott appeared and was represented by
counsel. JIRC Rule 13. At the conclusion of the hearing, the
Commission advised Judge Elliott and his counsel that the
Commission had decided unanimously that seven of the charged
incidents in the notice were well founded and of sufficient
gravity to warrant the filing of a formal complaint in this
Court. JIRC Rule 15(A)(2). The charges against Judge Elliott
that the Commission determined to be well founded are as
follows:
1. On June 14, 2004, upon being advised that he was
not elected as chief judge, Judge Elliott reacted
in such an extremely angry manner that his two
fellow judges reasonably believed that he might
commit a physical assault.
3
2. On June 16, 2004, Judge Elliott confronted a
fellow judge in a loud and angry manner and
verbally threatened him.
3. On July 6, 2004, Judge Elliott sent letters with
attachments to all of the district court judges
in Tidewater, with copies to the Chief Justice
and the Executive Secretary. The content and
tenor of the material so distributed were
calculated to embarrass and personally attack the
two other judges of his court.
4. On July 14, 2004, Judge Elliott inappropriately
directed a loud and angry outburst at a member of
his court staff.
5. Judge Elliott has had a longstanding practice of
telling defendants that he had a “DEA” light
above the bench in his courtroom that detected
whether they were using drugs. This tactic, that
involved an intentional falsehood, often resulted
in incriminating statements by defendants. Judge
Elliott routinely would determine the defendants’
sentences based upon whether the defendants were
willing to take a drug test or would admit drug
use without the necessity of a test.
6. In a letter to the Chief Justice dated August 26,
2004, Judge Elliott falsely stated that he did
not have a practice of reviewing defendants’
criminal records prior to adjudicating the issue
of guilt. Judge Elliott habitually considered
such records prior to announcing a decision on
the issue of guilt.
7. In the same letter to the Chief Justice, Judge
Elliott falsely stated that he had not prohibited
the Commonwealth’s Attorney’s office from
prosecuting cases in his courtroom. In February
of 2002, Judge Elliott informed the
Commonwealth’s Attorney that he did not want a
prosecutor in his courtroom for drunk driving
cases and that, if a prosecutor were present, the
conviction rate in such cases would be reduced.
4
However, the Commission further advised Judge Elliott that
no formal complaint would be filed in this Court, and Judge
Elliott would be permitted to resume the duties of his office
under a supervision agreement pending his required retirement,
if Judge Elliott abided by specific conditions set by the
Commission for entering into that agreement. JIRC Rule
15(A)(4). As will become apparent, whether the Commission and
Judge Elliott reached an agreement and, if so, whether that
agreement was breached were central to the positions
subsequently advanced by the parties on brief and in their oral
argument before this Court. Accordingly, we will recount in
some detail the actions of the Commission and Judge Elliott
during and following the conclusion of the June 14-15, 2005
hearing.
After the Commission had heard extensive evidence,
including considerable character evidence in favor of Judge
Elliott, the Commission met in executive session to deliberate.
After returning from the executive session, the Chairman of the
Commission announced the Commission’s findings, listing the
charges upon which it found “clear and convincing evidence to
forward to the Supreme Court for removal [or] censure.” The
Chairman then stated:
[H]owever, pursuant to the provisions of [JIRC] Rule
15A(4), the Commission will offer you the conditions
5
that may forego the forwarding of those charges to the
Supreme Court on the following specific terms:
1. That you submit a letter of retirement prior
to December 31 of 2005, or such earlier date as is
required to permit the General Assembly to select a
successor. The effective date of that letter of
retirement shall be not [later] than June 30, 2006.
2. That prior to any return to the bench, you
shall write letters of apology to Judge Whitlow, Judge
Morris and Renay Johnson. Those letters must be
approved by counsel for the Commission and delivered
prior to your return to the bench.
In addition, you will be required to write a
letter, likewise approved by counsel for the
Commission, to the Commonwealth Attorney Earle Mobley,
acknowledging that the Commonwealth’s Attorney, or his
assistants, are welcome to attend your court and to
prosecute DWI’s.
3. You shall discontinue the practice of offering
conditional sentences as was done with the DEA light
circumstances.
4. That you discontinue and you may not in the
future on any occasion review prior criminal history
or records in advance of hearing the evidence and
finding that the evidence was sufficient to support
conviction, and you shall take steps to ensure that
neither defendants nor counsel for the defendants have
any misunderstanding with respect to your review of
such records prior to hearing of the evidence on the
substantive charge.
5. You will submit to supervision by a judge
selected by the Commission on terms to be determined
by counsel for the Commission and in consultation with
the Chairman.
6. There is a set of form restrictions that have
been approved by the Commission that include the
necessity of not holding yourself out as being an
expert in ethics, not conducting ethic[s] seminars,
and some other details along those lines, we can
provide you a copy of that.
6
You may announce that you have been returned to
the bench, that the resolution of the matters before
the Commission [has] been such that you may return to
the bench, but you may not publicly or privately,
outside of your family and counsel, acknowledge or
represent that you have been vindicated or a similar
term by the Commission.
These terms will be reduced to writing
immediately. Acceptance by your signature to these
written terms must be received by the Commission
office, in the Commission office, which can be by fax
at least, followed up immediately by the hard copy,
not later than 12 o’clock noon on this coming Friday,
June 17th.
The Chairman then asked Judge Elliott and his counsel
whether they understood the terms of the offer for a JIRC Rule
15(A)(4) supervision agreement that he had just recited.
Although Judge Elliott’s counsel responded that he understood
the terms, Judge Elliott stated that he did not because “[i]t
was too much.”
Counsel for the Commission indicated that the Commission
could “have the conditions typed up by tomorrow.” However, a
Commission member insisted that the conditions be reviewed
“[b]ecause there was one thing that was mentioned about if he
accepted that offer, that once the offer has been accepted by
signature, that” certain of the conditions would immediately be
in force, including a condition that Judge Elliott would be
required to expend annual leave until he returned to the bench.
7
The Chairman then summarized the substance of the
Commission’s offer again. With specific relevance to subsequent
proceedings before the Commission and in this Court, the
Chairman reiterated to Judge Elliott that “you may announce,
after the hearing here, that the determination of the Commission
was such that you have been returned to the bench, or are
allowed to resume your role on the bench, but you shall not
represent to anyone that you have been vindicated by the
Commission.” The Chairman again stated that “we have to receive
your signed acceptance of these terms . . . not later than
12 o’clock Friday, June 17th [2005].”
On June 16, 2005, counsel for the Commission sent by
telefacsimile to Judge Elliott’s counsel a transcript of the
chairman’s oral recitation of the terms at the conclusion of the
June 14-15, 2005 hearing. In addition, counsel for the
Commission included a document styled “ACCEPTANCE OF
CONDITIONS,” which read as follows:
By my signature below, as well as the signature
of my attorney, I hereby accept the conditions
specified by the Judicial Inquiry and Review
Commission in the attached excerpt from the transcript
of the Commission proceeding on June 15, 2005. I
fully understand that, upon my acceptance of these
conditions, I will be required to take certain actions
including the signing of an agreement pursuant to
Commission Rule 15 A (4) which will set forth the
terms of a period of supervision in accordance with
the conditions established by the Commission. I also
understand that upon acceptance of the Commission’s
conditions, I will be required to take annual leave
8
until the Commission determines that I have satisfied
the Commission’s conditions for my return to the
bench.
The acceptance of conditions included signature lines for Judge
Elliott and his counsel, but no place for a countersignature by
a representative of the Commission.
In a cover letter to the telefacsimile, counsel for the
Commission stated “[s]o that you will have as much information
as possible to help make the decision [to accept the
Commission’s conditions], I also am including copies of a draft
. . . agreement that the judge eventually will be required to
sign in order to effectuate the period of supervision.”
(Emphasis added.) This document specified that the anticipated
period of supervision would commence upon the entry of an order
by the Commission and “continue until the effective date of the
judge’s retirement which is to be not later than June 30, 2006
[and he] must announce his retirement no later than December 31,
2005.” Among other conditions set out in this document was a
requirement that “Judge Elliott may not make any statements, and
may not authorize or knowingly allow anyone to make statements,
that reasonably may be construed as an assertion that he was
exonerated or vindicated by the Commission.” This document
included signature lines for Judge Elliott, his counsel, and
counsel for the Commission.
9
Later on June 16, 2005, counsel for the Commission sent a
further telefacsimile with an updated draft of the written
agreement. In a cover letter to this telefacsimile, counsel for
the Commission stated that “the only thing that the judge and
you need to sign by 5 p.m. tomorrow is the ‘acceptance of
conditions.’ ” He reiterated his view that the draft document
was intended “only to give [Judge Elliott’s counsel] the general
idea of what such . . . an agreement would look like.”
(Emphasis in original.) Counsel for the Commission further
indicated that he would “not sign the agreement on behalf of the
Commission until the Chairman and/or the other members have had
an opportunity to review the specific language.” (Emphasis in
original.)
On June 17, 2005, counsel for the Commission by a further
telefacsimile advised counsel for the judge that “if Judge
Elliott signs the ‘acceptance of conditions’ . . . he is not to
make any announcement about his status or his return to the
bench until he has received clearance from the Commission and
the suspension order has been lifted.” (Emphasis in original.)
Counsel for the Commission indicated that he was making this
further communication “[j]ust so there is no misunderstanding
. . . I am just trying to make sure that we all are on the same
page.” However, counsel did not indicate that he was making
this directive at the request of the Commission, and it would
10
appear from the context that he was asserting his own
recollection or interpretation of the Commission’s offer as
stated by the Chairman at the conclusion of the June 14-15, 2005
hearing.
On June 17, 2005, Judge Elliott and his counsel timely
signed the Acceptance of Conditions. Over the next several
weeks, Judge Elliott took steps to comply with those conditions.
He drafted the required letters and submitted the drafts to the
Commission. Upon finding the drafts to be insufficient, the
Commission suggested changes in the wording of those drafts.
Judge Elliott prepared and signed letters in accord with the
Commission’s proposed language and returned them to the
Commission.4
On July 12, 2005, counsel for the Commission advised Judge
Elliott’s counsel that:
At its meeting today, the Commission declined to
sign off on the [JIRC] Rule 15A (4) agreement or to
enter an order lifting Judge Elliott’s suspension.
Instead, the Commission asked me to invite both you
and the judge to appear at the Commission’s next
meeting on August 9, 2005, at 8:30 a.m. The purpose
of the appearance will be to discuss the Commission’s
concerns that you and/or Judge Elliott have not abided
by the Commission’s directives. No statements were to
be made regarding the judge’s return to the bench
4
From July 8, 2005 until at least July 27, 2005, the judge
was hospitalized and underwent surgery. The Commission was
advised of this situation, and the judge was not found to be
medically incapacitated from performing judicial
responsibilities as a result of the surgery.
11
until after the Commission has approved the agreement
and has rescinded the suspension order. No statements
were to be made by the judge or his representatives
that conveyed the idea that the Commission proceeding
was resolved in a manner favorable to him. The
Commission has received credible information that such
statements nevertheless have been made. Therefore,
the Commission has determined that, until at least
August 9, there will be no change in the status quo.
(Emphasis added.)
On August 9, 2005, the Commission held a hearing to
determine whether Judge Elliott had failed to comply with the
conditions set by the Commission before he would be permitted to
return to the bench under supervision pending his retirement.
At that hearing, the Chairman5 stated that the Commission had
“gotten a lot of information since [the evidentiary hearing]
indicating there have been several communications, by [Judge
Elliott and his counsel], with various people indicating that
[Judge Elliott] would be back [on the bench], and quite frankly,
we are concerned with the constraint that has had on [the
Commission] [e]ffecting a good transition.”
The former Chairman stated that “it was abundantly clear
that the results of the [evidentiary] hearing were not to be
communicated” to anyone. The former Chairman then asked whether
5
Between the June 14-15, 2005 and August 9, 2005 hearings,
the Commission, pursuant to Code § 17.1-901, had elected a new
Chairman. The former Chairman remained a member of the
Commission and participated in the August 9, 2005 hearing in
that capacity.
12
Judge Elliott or his counsel had communicated those results to
anyone. Judge Elliott’s counsel replied that they had not. The
former Chairman then asked, “Have you made any comment to any
person about whether you were pleased with the outcome or
whether or not Judge Elliott was going to be coming back.”
Judge Elliott’s counsel replied that he had “thanked [character
witnesses for Judge Elliott at the evidentiary hearing] for
their testimony, but I didn’t tell them the results of the
hearing.” Counsel conceded, however, that his “demeanor might
have indicated that [he] was pleased.”
Counsel for the Commission then questioned Judge Elliott,
focusing on whether he had told a particular lawyer and deputy
sheriff “that he was coming back” to the bench. Judge Elliott
testified that “three or four days after the [evidentiary]
hearing” the deputy sheriff, who had served as a bailiff in
Judge Elliott’s court for a long time, called him and asked “how
did things go.” Judge Elliott further testified that he
responded, “I can’t say specifically how things went . . . but
everything is going to be okay.” Judge Elliott further
testified that he saw the other individual, a local attorney,
“in church” and, in response to a similar inquiry regarding the
outcome of the hearing, told the attorney that “everything will
be all right, everything is fine.”
13
In response to repeated questioning by counsel for the
Commission, Judge Elliott denied saying anything more than that
“everything would be okay” or “everything would be all right.”
Although counsel for the Commission alluded to statements
allegedly made to “a member of the Commission” by the identified
lawyer and deputy sheriff, no affidavits of those individuals
were presented and no other witnesses were called to testify.
The Commission took no express action before the conclusion of
this hearing.
Thereafter, counsel conducted a series of discussions
regarding the provisions to be included in the written agreement
contemplated in the “Acceptance of Conditions.” Principally,
those discussions focused on the provision providing for the
date of the announcement of the judge’s retirement and the
effective date for that retirement. In a letter dated August
12, 2005 sent by telefacsimile and postal mail to Judge
Elliott’s counsel, the Commission’s counsel indicated that he
had “consulted with the Chairman [who had concluded] that we
could not alter the terms of the Commission’s proposal in a
material fashion without taking the matter back to the full
Commission.” Counsel for the Commission then indicated that he
had drafted “[a] revised proposed agreement” that permitted
Judge Elliott to return to the bench before submitting notice of
his retirement to the Chief Justice, but requiring him to do so
14
within one week thereafter. Counsel for the Commission stated
that he “believe[d] that the one-week window is a reasonable
compromise and is as far as the Commission is willing to go.”
The agreement provided, in pertinent part, that:
Judge Elliott will not return to the Portsmouth
General District Court before August 25, 2005. Before
his suspension order will be rescinded, Judge Elliott
must sign and deliver to his attorney, Mr. Marsh, an
irrevocable letter to the Chief Justice announcing
Judge Elliott’s retirement effective not later than
January 31, 2006, and Mr. Marsh must submit to the
Commission his written representation that he will
deliver Judge Elliott’s letter to the Chief Justice
not later than September 1, 2005.
(Emphasis in original.)
This document also included a provision that it
“incorporates by reference the attached ‘Acceptance of
Conditions’ signed by the judge and his counsel on June 17,
2005.” Counsel for the Commission further indicated that his
“best chance to persuade the full Commission to accept the
revised agreement . . . will be if I am able to present the
matter to the members . . . in a posture where you and the judge
already have signed the agreement.” Judge Elliott and his
counsel signed this agreement on August 15, 2005 and returned it
to the Commission.6
6
The record contains a letter dated August 17, 2005 from
counsel for Judge Elliott to counsel for the Commission stating
that he had in his possession a letter from the judge to the
Chief Justice stating that the judge would retire on April 30,
15
In a letter dated August 19, 2005, counsel for the
Commission advised Judge Elliott’s counsel that the matter would
be considered by the Commission again at its next meeting on
September 13, 2005. Following that meeting, counsel for the
Commission sent a letter by telefacsimile to counsel for Judge
Elliott advising him that the Commission had decided that a
formal complaint would be filed in this Court unless Judge
Elliott signed an agreement, which, in pertinent part, required
the judge to “submit to the Chief Justice a letter announcing
his retirement effective not later than December 31, 2005.”
Judge Elliott was advised that he was required to respond by
5 p.m. the following day. Judge Elliott did not sign the
agreement as drafted by the Commission.
By an order dated September 20, 2005, the Commission made
specific findings regarding Judge Elliott’s conduct that had
been the subject of the June 14-15, 2005 hearing. The
Commission further found that Judge Elliott had not abided by
the conditions set by the Commission for lifting the suspension
order and permitting Judge Elliott to resume his judicial duties
pending his retirement. Accordingly, the Commission directed
2006. Counsel for Judge Elliott maintains that his letter was
hand-delivered to the Commission on August 17, 2005. The
Commission maintains it has no record of the letter being
received or filed.
16
counsel for the Commission to file a formal complaint in this
Court. The complaint against Judge Elliott was filed in this
Court on September 26, 2005, and gave as the basis of the
complaint the seven charges found by the Commission at the
conclusion of the June 14-15, 2005 hearing to have been proven
by clear and convincing evidence and of sufficient gravity to
warrant Judge Elliott’s censure or removal from office.
DISCUSSION
The censure or removal of a judge from office for
violations of the Canons of Judicial Conduct or other
malfeasance is a matter of great significance to the judiciary
as well as the general public. Public confidence in the
judiciary and the administration of our legal system depends
upon faithful adherence to the law and to the rules governing
judicial conduct by those who are entrusted with the
responsibility of sitting in judgment of others. However, the
desire to instill public confidence in the courts by carefully
policing the conduct of judges must be balanced against the
rights of the judge who is called upon to answer charges of
misbehavior or malfeasance in the exercise of his official
duties.
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
17
of the judiciary and the rights of individual judges. To that
end, the Commission must employ adequate procedural safeguards
to prevent the arbitrary deprivation of the rights and property
interests of a judge who stands accused of official misconduct.
See In re Ruffalo, 390 U.S. 544, 551-52 (1968). This is so not
merely because the removal of the judge deprives him of vested
property rights, but also because the lesser penalty of censure
imperils the judge’s “good name, reputation, honor, or
integrity.” Wisconsin v. Constantineau, 400 U.S. 433, 437
(1971); see also Paul v. Davis, 424 U.S. 693, 730 (1976); Goss
v. Lopez, 419 U.S. 565, 574-75 (1975); In re Deming, 736 P.2d
639, 648 (Wash. 1987). Accordingly, public confidence in the
judiciary and the administration of our legal system can be
maintained only where the Commission in the exercise of its
authority to oversee the conduct of judges is held to the same
high standard of fair dealing every citizen has the right to
expect from the government.
The Commission’s authority derives from Article VI, Section
10 of the Constitution of Virginia, which provides that “[t]he
General Assembly shall create a Judicial Inquiry and Review
Commission consisting of members of the judiciary, the bar, and
the public and vested with the power to investigate charges
which would be the basis for retirement, censure, or removal of
a judge.” Pursuant to that mandate, the General Assembly has
18
enacted legislation creating and empowering the Commission.
Code §§ 17.1-900 to –919. Among the powers delegated to the
Commission by the General Assembly is “the authority to make
rules, not in conflict with the provisions of this chapter or of
general law, to govern investigations and hearings conducted by
it.” Code § 17.1-902.
When an administrative body is delegated rulemaking
authority by the General Assembly, it is given broad discretion
to determine the procedures it will employ in carrying out its
legislative mandate, so long as the rules it adopts are not
inconsistent with the authority of the statutes that govern it
or with principles of due process. See, e.g., Sargent Elec. Co.
v. Woodall, 228 Va. 419, 424, 323 S.E.2d 102, 105 (1984).
“Furthermore, it is an elementary principle of administrative
law that agencies must follow their properly promulgated rules.”
Virginia Committee for Fair Utility Rates v. Virginia Electric &
Power Co., 243 Va. 320, 328, 414 S.E.2d 834, 838 (1992). “ ‘For
once an agency exercises its discretion and creates the
procedural rules under which it desires to have its actions
judged, it denies itself the right to violate these rules. If
an agency in its proceedings violates its rules and prejudice
results, any action taken as a result of the proceedings cannot
stand.’ ” Id. (quoting Scott v. Heckler, 768 F.2d 172, 178-79
19
(7th Cir. 1985)). These principles are applicable to the
Commission.
In responding to the complaint brought by the Commission
against him in this Court, Judge Elliott contends that following
the June 14-15, 2005 hearing the Commission entered into an
agreement with him that foreclosed the filing of a formal
complaint against him in this Court. He further contends that
the Commission thereafter failed to abide by the terms of that
agreement and instead continued to modify the agreement
unilaterally. Contrary to the findings of the Commission
following the August 9, 2005 hearing, Judge Elliott maintains
that he has not violated any express terms of the agreement.
In response, the Commission maintains that there never was
an enforceable JIRC Rule 15(A)(4) supervision agreement between
the Commission and the judge, either following the June 14-15,
2005 hearing or at anytime thereafter. Rather, the Commission
characterizes the status of the case against Judge Elliott
following that hearing as still pending, and further contends
that the formation of a JIRC Rule 15(A)(4) supervision agreement
was dependant upon Judge Elliott first satisfying the conditions
laid down by the Commission at that hearing. The Commission
further maintains that, to the extent that there was an
agreement of any kind, whether characterized as a JIRC Rule
15(A)(4) supervision agreement or as an agreement to conditions
20
that could result in a JIRC Rule 15(A)(4) supervision agreement,
the judge’s subsequent remarks to the two individuals who had
testified at the evidentiary hearing on June 14-15, 2005
constituted a breach of that agreement. Thus, the Commission
asserts that it was permitted to bring a complaint to this Court
based upon the charges found by the Commission to have been
proven by clear and convincing evidence.
The parties agreed during oral argument before this Court
that the issues of whether there was an agreement between the
parties, however it is ultimately characterized, and whether
that agreement was breached are threshold questions to be
resolved before this Court can review the evidence and reach its
own findings and conclusions concerning the underlying
complaint.7 See Peatross, 269 Va. at 443, 611 S.E.2d at 400;
Lewis, 264 Va. at 405, 568 S.E.2d at 689. Accordingly, it is
7
During oral argument, counsel for the Commission contended
that this Court owed deference to the Commission’s
determinations that there was no JIRC Rule 15(A)(4) supervision
agreement and that Judge Elliott had breached the conditions
made by the Commission for reaching such an agreement. We
disagree. When a complaint is brought to this Court by the
Commission, “we do not give ‘due weight’ to the Commission’s
findings or their credibility determinations. Instead, we
accord the Commission’s findings only such weight, if any, as we
deem appropriate in each case.” Peatross, 269 Va. at 444, 611
S.E.2d at 400. This rule applies not only to the determination
of the evidence supporting the charges brought by the Commission
in its complaint, but also to whether the Commission followed
proper procedure in bringing that complaint to this Court.
21
necessary for this Court to consider the provisions and
application of JIRC Rule 15(A) in some detail.
JIRC Rule 15(A) delineates the manner in which the
Commission may dispose of charges against a judge once its
investigation has been concluded. Pursuant to this Rule, the
Commission may take any of the following actions:
1. Remove the charges from the Commission’s
docket.
2. If the Commission finds the charges against
the judge to be well founded and of sufficient gravity
to constitute the basis for retirement, censure or
removal, it shall file a complaint against the judge
in the Supreme Court of Virginia.
3. If the Commission finds the charges against
the judge to be well founded but not of sufficient
gravity to constitute the basis for retirement,
censure or removal, it may summon the judge before the
Commission or designated Commission members, and
advise the judge of its findings. The charges shall
then be removed from [the] Commission’s docket but
may, nevertheless, be considered with any other future
charges against the judge.
4. If the Commission finds the charges against
the judge to be well founded, the Commission may, with
the consent of the judge, place the judge on a period
of supervision under such terms and conditions as the
Commission shall determine. Violation of such terms
and conditions shall be grounds for a new charge of
failure to cooperate with the Commission.8
8
While Rule 15(A)(4) does not require the agreement to be
in writing, undoubtedly that practice is routinely followed to
avoid any dispute over the terms and conditions of the
agreement. Similarly, the Commission’s requirement that a judge
sign an “Acceptance of Conditions” prior to formalizing the
Commission’s terms for a period of supervision is not
inconsistent with this rule.
22
Finally, Rule 15(A)(5) requires the Commission to report to
the General Assembly any instance in which “the Commission finds
the charges against [a] judge to be well founded under [JIRC
Rule] 15A (2), (3), or (4).” See also Code § 17.1-918.
The structure of the rule is significant and entirely
consistent with the goal of confidentiality embodied in Code
§ 17.1-913, while permitting the Commission to exercise a broad
range of dispositional options in performing its legislative
mandate in a fair manner in a particular case. The first
option, 15(A)(1), permits the Commission to remove the charges
from the Commission’s docket. Such an action, indicating that
the Commission did not find the charges to be well founded,
would end the matter with no negative consequence to the judge.
The second option, 15(A)(2), applies when the charges are
determined to be well founded and serious enough to warrant
retirement, censure or removal of a judge, and permits the
Commission to file a complaint against the judge in this Court.
Similarly, the third option, 15(A)(3), permits the Commission to
remove from its docket charges that it determines are well
founded, but not by themselves serious enough to warrant
disciplinary action, with the possibility that, in the event of
future misconduct, consideration of the charges may be revived.
23
Such a disposition provides a warning to a judge and the
opportunity to avoid future misconduct.
The fourth option, 15(A)(4), permits the Commission, when
it finds the charges to be well founded and with the consent of
the judge, to place the judge on a period of supervision under
such terms and conditions as the Commission shall determine.
This option affords the judge the benefit of a period of
supervision to avoid future misconduct and also to avoid some of
the consequences of his past misconduct, including censure or
removal. Rule 15(A)(4) specifically provides that a violation
of the terms and conditions of the agreement “shall be grounds
for a new charge of failure to cooperate with the Commission”
(emphasis added); thus providing the basis for the Commission to
enforce the agreement.
The Commission’s authority to enter into an agreement with
a judge pursuant to Rule 15(A)(4) even though the Commission has
found the charges to be “well founded” under Rule 15(A)(2) is
not contested in this case. Nevertheless, we note that Rule
15(A)(2) provides that the Commission “shall” file a complaint
in this Court when the Commission finds the charges against a
judge to be well founded and of sufficient gravity to constitute
a basis for retirement, censure, or removal. This rule must be
interpreted and applied so as to be consistent with the
24
pertinent constitutional and statutory provisions pertaining to
the authority of the Commission.
Article VI, Section 10 of the Constitution of Virginia
provides that “[i]f the Commission finds the charges [against a
judge] to be well-founded, it may file a formal complaint before
the Supreme Court.” (Emphasis added.) Similarly, Code § 17.1-
902 provides that “[i]f the Commission finds the charges to be
well-founded, and sufficient to constitute the basis for
retirement, censure, or removal of a judge, it may file a formal
complaint before the Supreme Court.” (Emphasis added.) Guided
by these clear provisions, we are of opinion that the provisions
of Rule 15(A)(2) are necessarily permissive, rather than
mandatory. This interpretation of Rule 15(A)(2) brings it
within the constitutional and statutory provisions pertaining to
the Commission’s authority and removes any potential conflict in
the application of Rule 15(A)(2) and Rule 15(A)(4). Beyond
question, this interpretation affords the judge a considerable
benefit, and is entirely consistent with principles of fair
procedure. Accordingly, the Commission may enter into a Rule
15(A)(4) agreement when it has found that the charges are well
founded and of sufficient gravity to constitute a basis for
retirement, censure or removal, but determines that such an
agreement is appropriate under the circumstances of a particular
case.
25
We take particular care to emphasize that the proceedings
before the Commission are not criminal in nature, and that the
agreement contemplated by Rule 15(A)(4) does not, and need not,
readily lend itself to a definitive characterization. However,
for purposes of our analysis in this case, the agreement may be
likened to a form of immunity agreement offered by the
Commonwealth to a citizen who is a potential defendant in a
criminal investigation. When the Commonwealth offers a citizen
immunity from prosecution in exchange for his cooperation and
the citizen abides by the terms of the agreement, “due process
requires that the government provide him with the benefit of his
bargain.” Lampkins v. Commonwealth, 44 Va. App. 709, 722, 607
S.E.2d 722, 729 (2005). Once such an agreement is entered into,
the government bears the burden of establishing that the citizen
has breached the agreement and is subject to prosecution. Id.
In this context, we are of opinion that an agreement reached
between the Commission and a judge would be essentially
meaningless and futile unless the judge, upon compliance with
the terms and conditions of the agreement, is afforded the
benefit of his bargain. Clearly the most significant benefit
would be a bar against the filing of a complaint against the
judge in this Court pursuant to Rule 15(A)(2).
In order to determine whether there was an “agreement”
between the Commission and Judge Elliott in this case, we will
26
apply the basic law of contracts. See Hood v. Commonwealth, 269
Va. 176, 181, 608 S.E.2d 913, 915-16 (2005)(noting that
cooperation/immunity agreements are “generally governed by the
law of contracts”). The most basic principle of contract law is
that when one party makes an offer that is clear, definite, and
explicit, and leaves nothing open for negotiation, acceptance of
that offer by the other party will complete the contract. See
Chang v. First Colonial Sav. Bank, 242 Va. 388, 391, 410 S.E.2d
928, 930 (1991).
At the conclusion of the June 14-15, 2005 hearing, the
Commission, speaking through its Chairman, expressly stated
that, despite finding that the charges before it were well
founded and of sufficient gravity to warrant the filing of a
complaint in this Court, “pursuant to the provisions of [JIRC]
Rule 15(A)(4), the Commission will offer you the conditions that
may forego the forwarding of those charges to the Supreme
Court.” The Chairman then recited the clear, definite, and
explicit terms of that offer. The offer was conditioned upon
Judge Elliott’s providing the Commission with his “signed
acceptance of these terms . . . not later than 12 o’clock Friday
June 17th [2005].” Judge Elliott signed the “Acceptance of
Conditions” document provided to him by the Commission which
unambiguously served as his acceptance of “the conditions
27
specified by the Judicial Inquiry and Review Commission in . . .
the Commission proceeding on June 15, 2005.”
The Commission contends, however, that Judge Elliott’s
acceptance of the terms and conditions set forth by the Chairman
at the conclusion of the June 14-15, 2005 hearing did not result
in the formation of a JIRC Rule 15(A)(4) supervision agreement,
but only required the Commission to offer such an agreement at a
future date if Judge Elliott complied with those terms and
conditions. In support of this contention, the Commission notes
that it never rescinded the August 26, 2004 order suspending
Judge Elliott and, thus, there could not have been a JIRC Rule
15(A)(4) supervision agreement.
We are not inclined to place form over substance. The
Chairman’s offer at the conclusion of the June 14-15, 2005
hearing was unequivocal that Judge Elliott would be permitted to
return to the bench if he accepted the terms and conditions
outlined at the hearing. Judge Elliott accepted that offer and
began the process of complying with what he would reasonably
believe was an agreement with the Commission to avoid the filing
of formal charges in this Court. Indeed, the Commission
assisted the judge in that regard by providing draft letters of
apology it had required the judge to send under one of the terms
of the agreement.
28
The subsequent statements by counsel for the Commission in
communications with Judge Elliott’s counsel that the draft
written agreement the judge would “eventually” be required to
sign had not yet been approved by the Commission and that
counsel for the Commission would not “sign the agreement on
behalf of the Commission” until the Chairman or Commission
members had approved the document, reflect concerns of form
rather than substance. As we have noted, nothing in the
Commission’s rules requires that a JIRC Rule 15(A)(4)
supervision agreement be in writing. Moreover, nothing in the
Chairman’s recitation of the Commission’s offer to the judge at
the conclusion of the June 14-15, 2005 hearing reasonably could
have been understood to mean that the Commission was merely
establishing predicates for some future agreement that would
differ from the terms of the Commission’s offer.
While the Chairman did indicate that “these terms will be
reduced to writing immediately,” he also indicated that Judge
Elliott could inform others that he would be returning to the
bench immediately “after the hearing here,” suggesting that the
requirements for a written recitation of the terms and a written
acknowledgement of those terms were formalities or conditions
subsequent. When parties execute an agreement, either oral or
written, they will frequently contemplate that a future writing
will be executed as part of their obligations under the
29
agreement. Such contemplation, however, does not necessarily
render the agreement invalid or unenforceable, even if the
contemplated writing is not immediately executed. Cf. Golding
v. Floyd, 261 Va. 190, 193-194, 539 S.E.2d 735, 737 (2001);
Snyder-Falkinham v. Stockburger, 249 Va. 376, 385, 457 S.E.2d
36, 41 (1995); North America Mgrs., Inc. v. Reinach, 177 Va.
116, 121, 12 S.E.2d 806, 808 (1941); Manss-Owens Co. v. H.S.
Owens & Son, 129 Va. 183, 195, 105 S.E. 543, 547 (1921).
Moreover, the terms imposed by the Commission were “reduced to
writing” in the form of the hearing transcript excerpt sent to
Judge Elliott’s counsel along with the “Acceptance of
Conditions,” which referenced the transcript as the source of
the offer Judge Elliott was being asked to, and actually did,
accept. The substance of the agreement, regardless of its form,
was clear.
Nor are we persuaded that the Commission’s not having
entered an order rescinding Judge Elliott’s suspension supports
the conclusion that it did not intend to enter into a JIRC Rule
15(A)(4) supervision agreement with the judge. To the contrary,
the conditions as set forth by the Commission and accepted by
Judge Elliott required him “to take annual leave until the
Commission determines that [he has] satisfied the Commission’s
conditions for [his] return to the bench.” If the Commission
had intended for Judge Elliott to remain under suspension, it
30
would not, indeed could not, have required him to absent himself
from the bench by taking annual leave. Code § 17.1-911(A). The
fact that the Commission did not comply with its own decision to
lift the suspension and permit Judge Elliott to complete the
other conditions of the JIRC Rule 15(A)(4) supervision agreement
while taking annual leave does not vitiate the fact that the
Commission made such an offer and Judge Elliott accepted it.
For these reasons, we hold that the Commission made a
clear, definite, and explicit offer to Judge Elliott to permit
him to return to the bench under a JIRC Rule 15(A)(4)
supervision agreement and that upon his acceptance of that offer
the supervision agreement became effective and Judge Elliott was
entitled to the benefit of that agreement, unless he
subsequently violated its terms and conditions. Having
determined that there was a valid JIRC Rule 15(A)(4) agreement
between the parties which would otherwise foreclose the filing
of a complaint against Judge Elliott in this Court, we now
consider whether the record supports the Commission’s subsequent
finding that Judge Elliott breached that agreement.
The Commission asserts that Judge Elliott breached the
agreement by communicating to others the fact that he would be
returning to the bench. The Commission contends that the
Chairman’s statements that Judge Elliott “may announce that you
have been returned to the bench” and “you may announce, after
31
the hearing here, that the determination of the Commission was
such that you have been returned to the bench” are “isolated
statement[s].” In the Commission’s view, the full context of
the conditions set forth by the Commission at the conclusion of
the June 14-15, 2005 hearing was that the judge was to make no
statement of any kind concerning the outcome of the proceeding
until he had actually resumed his duties. The Commission
further contends that “even if the Chairman’s statements are
regarded as ambiguous, any ambiguity was removed by Commission’s
Counsel’s explicit written communication to the judge’s counsel
on June 17, 2005, before the judge signed the ‘acceptance of
conditions.’ ” (Emphasis in original.) We disagree.
First, the Chairman’s statements were neither isolated nor
ambiguous. To the contrary, the Chairman’s original recitation
of the condition and his reiteration of it at the conclusion of
the hearing made it abundantly clear that immediately following
the hearing Judge Elliott was free to advise others that he
would be returning to the bench. Nothing in the transcript of
the proceedings suggests that the Commission intended to put an
absolute “gag order” on the judge or his counsel. Moreover,
permitting Judge Elliott to reveal that he would be returning to
the bench, but not to assert that he had been fully vindicated,
is a condition entirely consistent with the Commission’s
32
decision to enter into a JIRC Rule 15(A)(4) supervision
agreement to permit the judge to return to his duties.
Nor are we persuaded that the statement made by counsel for
the Commission in the June 17, 2005 telefacsimile was sufficient
to alter the terms the Commission had established. The day
before that communication, counsel for the Commission had
provided the first draft of the Commission’s written agreement,
the second provision of which was an almost verbatim restatement
of the Chairman’s oral explanation of what the judge was
prohibited from saying. Indeed, even in the final draft of this
document, submitted to the judge after the August 9, 2005
hearing in which it was stated that the Commission was requiring
the judge to make no statements concerning the resolution of his
case, the condition remained only that the judge could not
assert that he had been “exonerated or vindicated” by the
Commission.
Reviewing the evidence received by the Commission at the
August 9, 2005 hearing, we conclude that Judge Elliott did not
breach the condition of the JIRC Rule 15(A)(4) supervision
agreement that he not claim exoneration or vindication by the
Commission. The evidence at best showed that in response to
unsolicited inquiries from interested parties, the judge
responded with innocuous pleasantries to the effect that he was
“okay” and that “everything would be all right.” Given the
33
context of these conversations, such communications were
insufficient to establish, expressly or by implication, that
Judge Elliott would be returning to the bench and/or that he was
exonerated or vindicated by the Commission.
For these reasons, we hold that the record fails to support
the Commission’s finding that Judge Elliott breached the JIRC
Rule 15(A)(4) agreement. In the absence of such a breach, the
Commission remains bound by its agreement and, consequently, was
foreclosed from revoking the agreement and filing a JIRC Rule
15(A)(2) complaint in this Court.
CONCLUSION
Accordingly, we hold that the complaint is not properly
before this Court and, therefore, must be dismissed without
prejudice. We emphasize that our holding pertains only to
whether the Commission’s filing of the complaint was in accord
with the procedures set out in its rules. We do not address and
express no opinion on whether the charges against Judge Elliott
enumerated in that complaint are supported by the record and, if
so, what sanction would be appropriate. Nonetheless, we
recognize that these charges, particularly those pertaining to
the improper consultation of defendants’ criminal records and
the use of the “DEA light” fiction, are of grave concern as they
touch upon matters at the very heart of public confidence in the
judiciary and the judicial system.
34
By dismissing the complaint without prejudice, we fully
expect that the Commission and Judge Elliott will abide by the
original terms of their agreement, modified as necessary to
account for the passage of time required to bring the matter
before this Court. Should the judge fail to do so, the
Commission will be empowered by JIRC Rule 15(A)(4) to bring “a
new charge of failure to cooperate with the Commission” in this
Court.9
Dismissed.
JUSTICE KEENAN, with whom JUSTICE LACY and SENIOR JUSTICE
COMPTON join, dissenting.
I respectfully dissent. I would hold that the Commission’s
own Rules, and the Constitution and statutes of Virginia,
precluded the Commission from entering into an agreement with
Judge Elliott. Under the Commission’s rules, having found that
the charges against Judge Elliott were of sufficient gravity and
were well-founded, the Commission did not have authority to
dispose of those charges by placing him under the Commission’s
supervision. Moreover, neither the Constitution of Virginia nor
the Code of Virginia authorizes the Commission to enter into
9
Because we have concluded that the complaint against Judge
Elliott is not properly before this Court, we will not consider
Judge Elliott’s arguments that his suspension violated his due
process rights and that the charges relating to his
communications with the other judges, his clerk staff, and
35
supervisory agreements following an investigation into the
conduct of a judge. Therefore, I would conclude that the
purported agreement the Commission reached with Judge Elliott
was a nullity, that the present complaint is properly before
this Court, and that we are required to decide whether Judge
Elliott must be censured or removed from office.
The majority’s analysis rests on its determination that
Judge Elliott had a due process right to retain the benefit of
his purported agreement with the Commission. The ability to
invoke a due process right, however, presupposes the existence
of an enforceable right. Here, Judge Elliott’s alleged right to
have his bargain with the Commission enforced incorrectly
assumes that the Commission had the authority to enter into a
bargain in the first place.
As the majority notes, Rule 15(A) of the Rules of the
Judicial Inquiry and Review Commission (Rule 15(A)) describes
the manner in which the Commission must proceed against a judge
once it has concluded its investigation into the judge’s alleged
misconduct. Under Rule 15(A)(2):
If the Commission finds the charges against the
judge to be well founded and of sufficient gravity to
constitute the basis for retirement, censure or
removal, it shall file a complaint against the judge
in the Supreme Court of Virginia.
others are an unconstitutional infringement on his right of
freedom of speech.
36
(Emphasis added).
A plain reading of this provision indicates that when, as
here, the Commission has found that the gravity of the charges
is sufficient to warrant retirement, censure, or removal of a
judge, the Commission “shall” file a complaint in this Court.
These provisions of Rule 15(A)(2) are mandatory, not
discretionary. I would hold that the majority’s contrary
construction is flawed because it effectively renders the use of
“shall” meaningless.
I would further hold that the Commission did not have
authority to enter into a supervision agreement under Rule
15(A)(4) because the Commission has not been granted such
authority by the Constitution or Code of Virginia. The
Constitution vests the Commission “with the power to investigate
charges which would be the basis for retirement, censure, or
removal of a judge.” Va. Const. art. VI, § 10. After the
Commission has conducted such an investigation, the Constitution
prescribes a single course of action that the Commission may
take once it has determined that the charges are well-founded:
“[The Commission] may file a formal complaint before the Supreme
Court.” Id. This constitutional directive is repeated in Code
§ 17.1-902:
The Commission is vested with the power, and it shall
be its duty, to investigate charges arising out of the
37
present or any prior term of office which would be the
basis for retirement, censure, or removal of a judge
under Article VI, Section 10 of the Constitution of
Virginia and the provisions of this chapter. . . . If
the Commission finds the charges to be well-founded,
and sufficient to constitute the basis for retirement,
censure, or removal of a judge, it may file a formal
complaint before the Supreme Court.
(Emphasis added.)
The above constitutional and statutory provisions do not
authorize the Commission to enter into supervisory agreements
when the charges are determined to be well-founded, irrespective
whether the charges are of such gravity to support censure,
retirement, or removal of a judge, or are of lesser gravity.10
While the Commission is given authority to promulgate
procedural rules, that authority is limited by statute to rules
relating to the procedure for investigations and hearings
conducted by the Commission. Code § 17.1-902 provides:
The Commission shall have the authority to make
rules, not in conflict with the provisions of this
chapter or of general law, to govern investigations
and hearings conducted by it.
(Emphasis added.) This statute does not provide the Commission
authority to promulgate rules that effectively expand its
statutory authority.
*
The single exception in which such authority is suggested
is where a judge is considered to be unfit to serve because of
disability. Code § 17.1-918 refers to “remedial” action taken
in reports to the General Assembly.
38
The Commission is not an occupational regulatory board.
Those boards, such as the Board of Dentistry, the Board of
Medicine, the Board of Nursing, the Board of Pharmacy, the Board
of Accountancy, and the State Bar Disciplinary Board, are given
specific authority to regulate the activities of the members of
their respective professions. By statute or Rule of this Court,
those entities are vested with specific authority not only to
investigate charges of misfeasance, but to dispose of those
charges by imposing license suspension, probation with or
without terms, reprimands, and in some cases financial
penalties. See, e.g., Code §§ 54.1-2706, -2915, -3007, -3316,
-4413; Va. Sup. Ct. R. part 6, § IV, para. 13(B)(5)(b). None of
those disposition options is given to the Commission in its
enabling legislation. Thus, the Commission lacks the authority
to act as an occupational regulatory board and enter into the
type of supervisory agreements described in Rule 15(A)(4).
The majority fails to discuss the fact that the General
Assembly did not choose to grant the Commission similar,
explicit supervisory authority. Instead, the majority relies on
the absence of the word “shall” in the Constitution and the
Code, and opines that because the Commission is permitted, but
is not required, to seek the censure or removal of a judge
before this Court, the Commission may take other actions of its
own choosing. This interpretation departs from established
39
principles of statutory construction because it creates
authority from the absence of authority.
The fact that the Commission has authority under the
Constitution and the Code to refrain from proceeding against a
judge when the charges are well-founded and of sufficient
gravity does not mean that the Commission is authorized to
dispose of those charges by entering into a supervisory
agreement with that judge. Such powers cannot derive from the
absence of authority. Yet that is precisely what the majority’s
analysis attempts to effectuate.
Extended to its logical conclusion, under the majority’s
analysis, there would be innumerable powers that the Commission
may have simply because those powers are not mentioned in either
the Constitution or the Code. Such powers would include the
imposition of public reprimands, fines, and other sanctions of
the Commission’s choosing. I cannot conclude that the General
Assembly intended such a result. Therefore, I would hold that
while the Commission was authorized by statute to refrain from
proceeding against Judge Elliott, the Commission was not
authorized to enter into a supervisory agreement with him.
Because the Commission lacked authority to enter into a
supervisory agreement, Judge Elliott cannot rely on the
Commission’s alleged breach of such an agreement. Accordingly,
I would conclude that this Court must examine the record to
40
determine whether the charges against Judge Elliott are
supported by clear and convincing evidence. See Judicial
Inquiry & Review Commission v. Peatross, 269 Va. 428, 444, 611
S.E.2d 392, 400 (2005); Judicial Inquiry & Review Commission v.
Lewis, 264 Va. 401, 405, 568 S.E.2d 687, 689 (2002).
Although the record before us contains evidence
concerning the seven separate charges made against Judge
Elliott, I confine my review to the fifth enumerated charge
involving Judge Elliott’s false statements to criminal
defendants about the existence of a “DEA light” in the
courtroom. I would conclude that this evidence, which is
uncontested in its substance, is overwhelming and mandates the
sanctioning of Judge Elliott.
The evidence established that Judge Elliott regularly told
persons accused of crimes that the “DEA” had installed a light
in his courtroom that would indicate whether a person was using
illegal drugs. There was, of course, no such light installed.
According to the evidence, Judge Elliott ordered certain
criminal defendants to “look up at the light,” and then informed
them that they had the option of submitting to a drug test in
order to have the opportunity to receive a more lenient
sentence. In cases in which a defendant elected to take a drug
test and passed it, Judge Elliott often suspended the
defendant’s jail sentence. In cases, however, in which a
41
defendant failed the offered drug test, he would receive the
full sentence originally imposed by Judge Elliott. In addition,
Judge Elliott allowed certain defendants who refused a drug test
to admit that they were currently using drugs in exchange for
receiving a partially suspended sentence.
The evidence also included testimony from several courtroom
clerks, each of whom testified that Judge Elliott referred to
the “DEA light” on a frequent basis. Two of these witnesses
testified that when they were assigned to Judge Elliott’s
courtroom, he mentioned the “DEA light” at least once per day.
During his testimony before the Commission, Judge Elliott
admitted that the allegations about his reference to a “DEA
light” were true but contended that he only made false
statements of this nature over a six-month period. Judge
Elliott also testified that at the time he made statements from
the bench concerning the “DEA light,” he “didn’t see nothing
wrong” with his actions. He later qualified that statement,
testifying, “I knew it wasn’t right, but I didn’t think it was
that wrong wrong [sic].” Judge Elliott then attempted to
justify his actions, stating, “I think all judges have some
things like that they might do every now and then.”
Based on this record, I would conclude that the evidence is
clear and convincing that Judge Elliott routinely lied from the
bench to criminal defendants over a substantial period of time.
42
His conduct deceived some of those defendants into making self-
incriminatory statements, thus depriving them of rights
guaranteed by the United States Constitution and the
Constitution of Virginia.
Such conduct on the part of a judge undermines the very
foundation of our judicial system. At a minimum, persons
appearing before a judge in this Commonwealth have a right to
expect that the judge will not lie to them or trick them into
surrendering their constitutional rights. In my view, this
Court must act to ensure that our citizens can trust a judge’s
representations on any matter related to the trial of a case in
our Commonwealth’s courts. Judge Elliott’s repeated dishonesty
and disregard of citizens’ constitutional rights cannot be
reconciled with our system of justice and with the need for
public confidence in our courts. Accordingly, I would hold that
Judge Elliott’s actions necessitate his removal from office.
Finally, I express my concern that the Court’s holding
today has far-reaching consequences beyond the present case.
That holding effectively provides the Commission unregulated
authority to determine the contents of future supervisory
agreements, because neither the Constitution nor the Code give
this Court appellate jurisdiction to review such agreements.
Because our jurisdiction in cases involving the Commission is
purely original rather than appellate, a fact the majority does
43
not contest, we are precluded from granting a judge an appeal to
review the Commission’s actions in negotiating, defining, and
monitoring the terms of a supervisory agreement. Thus, although
the majority opines that its interpretation today will afford
judges “a considerable benefit [and] is entirely consistent with
principles of fair procedure,” this Court may be powerless to
act if the majority’s assumption is proved incorrect.
44