Present: Carrico, C.J., Lacy, Hassell, Koontz, Kinser, and
Lemons, JJ., and Compton, S.J.
JUDICIAL INQUIRY AND REVIEW
COMMISSION OF VIRGINIA
v. Record No. 020696 OPINION BY JUSTICE CYNTHIA D. KINSER
SEPTEMBER 13, 2002
WOODROW LEWIS, JR., JUDGE
OF THE SECOND JUDICIAL DISTRICT
This case arises from a complaint filed by the
Judicial Inquiry and Review Commission of Virginia against
Woodrow Lewis, Jr., judge of the Second Judicial District.
In the complaint, the Commission alleges that there are
well-founded grounds of sufficient gravity to warrant the
censure of Judge Lewis in that Judge Lewis enforced an
order that he knew had been stayed by the Circuit Court of
the City of Virginia Beach.
The Judicial Inquiry and Review Commission was created
to investigate charges that, if true, would warrant the
retirement, removal, or censure of a judge. Va. Const.
art. VI, § 10; Code § 17.1-902. 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. Id. If this Court “finds that
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, it shall censure [the
judge] or shall remove [the judge] from office.” Va.
Const. art. VI, § 10.
The Commission conducted a hearing on February 12,
2002, at which Judge Lewis was present and represented by
counsel. The following recited facts were undisputed at
the hearing. ∗ Judge Lewis, sitting as judge of the City of
Virginia Beach Juvenile and Domestic Relations District
Court, entered an order on October 3, 2001, requiring
Albert Valery to surrender custody of his two children to
their mother no later than 3:00 p.m. on that date. Judge
Lewis denied the request of the children’s guardian ad
litem for a stay of his order pending an appeal to the
Circuit Court of the City of Virginia Beach.
Mr. Valery did not surrender custody of his children
at 3:00 p.m. as ordered. Instead, Mr. Valery brought the
children to a circuit court hearing at 4:00 p.m. that day.
At the conclusion of that hearing, the circuit court stayed
Judge Lewis’ order pending a hearing scheduled for the
afternoon of October 5.
On October 4, at the request of the children’s mother,
∗
Likewise, at the hearing before this Court, counsel
for Judge Lewis agreed that the factual findings of the
Commission are undisputed.
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a deputy clerk of the juvenile court issued a criminal show
cause summons against Mr. Valery, based upon his failure to
comply with Judge Lewis’ October 3rd order. The show cause
hearing was scheduled for the morning of October 5.
At the show cause hearing, Mr. Valery’s counsel
presented Judge Lewis with a certified copy of the circuit
court’s stay order. Judge Lewis proceeded with the show
cause hearing, found Mr. Valery in willful contempt of the
October 3rd order, sentenced him to ten days in jail, and
ordered that he be held without bond. Judge Lewis entered
a contempt order styled “Certificate of Conviction,” which
stated that Mr. Valery could purge the contempt and be
released from jail upon his surrender of the children to
their mother. Judge Lewis’ order made no mention of the
circuit court’s stay order. Mr. Valery was taken into
custody and remained there until the circuit court
dismissed the show cause summons later that afternoon.
Based upon these factual findings, the Commission
concluded that Judge Lewis had violated Canons 1, 2, 2A,
and 3B(2) of the Canons of Judicial Conduct for the State
of Virginia and subsequently filed its formal complaint
with this Court. The portions of the Canons referenced in
the complaint provide:
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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.
Canon 2
A Judge Shall Avoid Impropriety
and the Appearance of Impropriety
in All 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. A
judge shall not be swayed by partisan interests,
public clamor or fear of criticism.
In conducting the hearing on the formal complaint
filed by the Commission, this Court considers the evidence
and makes factual determinations de novo. Commission v.
Hoback, Record No. 911562 (Jan. 10, 1992). The Commission
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must prove its charges in this Court by clear and
convincing evidence. Id. The term “clear and convincing
evidence” has been defined as
that measure or degree of proof which will produce in
the mind of the trier of facts a firm belief or
conviction as to the allegations sought to be
established. It is intermediate, being more than a
mere preponderance, but not to the extent of such
certainty as is required beyond a reasonable doubt as
in criminal cases. It does not mean clear and
unequivocal.
Fred C. Walker Agency, Inc. v. Lucas, 215 Va. 535, 540-41,
211 S.E.2d 88, 92 (1975) (quoting Cross v. Ledford, 120
N.E.2d 118, 123 (Ohio 1954)).
It is undisputed that the circuit court did not stay
Judge Lewis’ order until after the 3:00 p.m. deadline had
passed without Mr. Valery’s compliance with that order.
Nevertheless, the issue we confront is not whether Judge
Lewis had the authority to hold Mr. Valery in contempt for
his failure to comply with an order that was ultimately
stayed or whether a finding of contempt was appropriate
given the circumstances of this case. Instead, our concern
is focused on Judge Lewis’ inclusion of the purge clause in
his “Certificate of Conviction,” providing for Mr. Valery’s
release from confinement if he surrendered the children as
Judge Lewis had previously ordered.
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Judge Lewis has conceded that, prior to entering the
contempt order, he had been provided with a certified copy
of the circuit court’s stay order. He testified at the
hearing before the Commission that including the purge
clause in the contempt order was “[his] idea.” Judge Lewis
further testified that “when there has been a subsequent
Order by a higher court, . . . normally nothing that is
done by the higher court usually deprives the lower court
of the obligation or the opportunity to enforce its own
Orders.” Although Judge Lewis stated that this was his
first experience on the bench with a stay of one of his
orders, he made no attempt to explain the inclusion of the
purge clause as a mere mistake of law on his part.
Instead, he testified that when a party obtains a stay of
an order, “the fact that they’re asking the Court to not
compel their performance does not mean that they’re not
free to perform.”
From Judge Lewis’ own testimony, we find clear and
convincing evidence that, in providing for the purge of
contempt and Mr. Valery’s release from confinement upon his
surrender of the children to their mother, Judge Lewis
deliberately, and with knowledge of the circuit court’s
stay, attempted to enforce his October 3rd order. Although
Judge Lewis acknowledged that Mr. Valery was free to
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surrender or not to surrender the children once the circuit
court stayed his order, the effect of the purge clause was
to coerce Mr. Valery to perform the very action that had
been stayed by the circuit court. Thus, Judge Lewis’
inclusion of the purge clause in his contempt order can
only be construed as directly contrary to, and in disregard
of, the circuit court’s stay order, and as a violation of
the Canons previously cited.
Public confidence in the judiciary and the
administration of our legal system depends upon faithful
adherence to the law, an essential part of which is
embodied in the judgments and rulings of higher courts.
Courts cannot reasonably expect citizens to comply with
their orders if the courts themselves do not yield to the
orders of higher courts. Thus, we find clear and
convincing evidence that Judge Lewis engaged in the conduct
set forth in the formal complaint filed by the Commission,
and that such conduct was prejudicial to the proper
administration of justice, thereby warranting censure.
Accordingly, we order that Judge Lewis be, and he
hereby is, censured for engaging in “conduct prejudicial to
the proper administration of justice.” Va. Const. art. VI,
§ 10; Code § 17.1-906.
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