VIRGINIA: IN THE SUPREME COURT OF VIRGINIA MARK H. LEVINE, DELEGATE Applicant, v. Case No. RAYMOND F. MORROGH and BENJAMIN KATZ, Commission Counsel JUDICIAL INQUIRY AND REVIEW COMMISSION Respondents. SERVE: — Raymond F. Morrogh, Counsel Benjamin Katz, Counsel Virginia Judicial Inquiry and Review Commission 100 N 9% St #661 Richmond, VA 23219 COMES NOW the Applicant, Mark H. Levine (“Levine”), Member of the Virginia House of Delegates, by counsel, and hereby files this Verified Emergency Application for a Writ of Mandamus directing Raymond F. Morrogh (“Morrogh”) and Benjamin Katz (“Katz”), Commission Counsel to the Judicial Inquiry and Review Commission (“JIRC”), to transmit, as required by Va. Code § 17.1-918(B), material requested in correspondence dated November 22, 2021. The 2022 session of the Virginia General Assembly begins on January 12, 2022, and the work of the General Assembly will be hampered by the failure of the judicial branch, via the JIRC, through its ministers, to comply with the law. Levine prays that the Supreme Court take up this matter on an emergency basis so as not to deprive the GeneralAssembly of necessary information for the 2022 session. In support of said Application, Levine states as follows: PARTIES 1. Atal times herein, Levine was, and is, an adult citizen of the Commonwealth of Virginia, serving as a Member of the Virginia House of Delegates, representing the forty-fifth district, and a Member of the House Committee for Courts of Justice, 2. The JIRC was created by the General Assembly of Virginia pursuant to Article VI, Section 10 of the Constitution of Virginia, and is vested with the power to investigate charges which would be the basis for retirement, censure, or removal ofa judge. The JIRC is part of the judiciary branch of Virginia government. Va. Code § 17.1-901. 8. At all times herein, Morrogh was, and is, an adult citizen of the Commonwealth of Virginia, serving as the Commission Counsel to the JIRC and is responsible for transmitting material to members of the General Assembly pursuant to Va. Code § 17.1-918(B). 4. Atall times herein, Katz was, and is, an adult citizen of the Commonwealth of Virginia, serving as the Commission Counsel to the JIRC and is responsible for transmitting material to members of the General Assembly pursuant to Va. Code § 17.1918). STATEMENT OF FACTS 5. Levine is a member of the Virginia House of Delegates, representing the forty-fifth district, which encompasses certain areas within the City of 2Alexandria, Arlington County, and Fairfax County. Levine is a Member of the House Committee for Courts of Justice. 6. In his capacity as Delegate, on November 22, 2021, Levine sent correspondence to Katz, on official House of Delegate letterhead, requesting the SIRC “transmit all evidence that it has in its possession with reference to any alleged misconduct of Fairfax District Court Judges Michael Cantrell and Mitchell I. Mutnick, whose elections are to be considered at the next session of the General Assembly.” See Attachment 1. 7. Inmaking his request, Levine specifically and directly quoted Va. Code § 17.1-918@), the statute authorizing members of the General Assembly to request such information. 8. On November 23, 2021, Morrogh responded to Levine's letter to Katz stating: ‘Your specific request exceeds the scope of that statutory provision, as it has been consistently construed and accepted by the General. Assembly of of. Virginia, In accordance with the established precedent concerning the appropriate construction for this provision, the Judicial Inquiry and Review Commission has no information to report pursuant to Virginia Code § 17.1- ra with respect to the judges enumerated in your letter of November 22, Attachment 2. Other than this one-paragraph letter, no documents or other information was provided to Levine, 9. Levine is unaware of the existence of any judicial or other written precedent that interprets Va. Code § 17.1-918(B) by limiting its ecope or that otherwise establishes a consistent construction “by the General Assembly ofVirginia.”! Further, Levine is unaware of any Virginia Attorney General Opinion that mentions the statute or addresses its scope, and Levine is unaware of any opinion of the Virginia Judicial Ethies Advisory Committee that mentions the statute or addresses its scope. 10. On December 10, 2021, Judges Michael Cantrell and Mitchell I. Mutnick were questioned by Levine and other Delegates and Senators before a joint session of the House Courts of Justice Committee and the Senate Committee on the Judiciary. During Levine's questioning, Judge Cantrell admitted to the joint session that a complaint had been filed with the JIRC against him, alleging hie misconduct with respect to a charge of driving under the influence (“DUI”) for which he was later acquitted. 11. Despite Cantrell’s admission, the JIRC provided no information to the Levine on the complaint against Judge Cantrell relating to his DUI, either in his capacity as a requesting Delegate or in his capacity as a Member of the House Committee for Courts of Justice. 12. The failure of the Counsel to the Commission to meet their ministerial duty and provide evidence specifically requested, using the specific language of the + Levine's counsel has discovered only one case that even mentions the statute, Judicial Inquiry & Review Comm'n of Va. v. Elliott, 272 Va. 97 (2006), but the passing “See also” reference to § 17.1-918 therein makes no attempt to interpret or construe the statute and does not appear in any way to limit or instruct an interpretation inconsistent with the plain mening of the language used in the statute. If anything, the brief reference to the statute in the context of Elliot suggests the statutory language can not be limited by the JIRC in its rules to “well founded” charges. It ia well-settled law that an agency cannot adopt a rule “inconsistent with the authority of the statutes that govern it.” Hlliot at 99. See also the dissent in Elliot at 126, which itself mentions § 17.1918 in suggesting that reports to the General Assembly must be broader in scope than “well- founded” charges and must also include remedial action the JIRC requires for judges unfit to serve bocause of disability, 4statute, requires that the Supreme Court issue a writ of mandamus to the Counsel for the JIRC, compelling them to transmit the required and requested information to Delegate Levine, to the House Committee for Courts of Justice, and the Senate Committee on the Judiciary. 13. ‘The 2022 session of the General Assembly begins on January 12, 2022, and the work of the General Assembly will be hampered by the failure of the judicial branch, via the JIRC, through its ministers, to comply with the law. 14, Pursuant to Va. Code § 8.01-644, prior to filing this application for a writ of mandamus, the respondents were served with notice of the intended application and a copy of a petition a reasonable time before the application was made. LEGAL AUTHORITY AND ARGUMENT 1. Pursuant to Article VI, § 1 of the Virginia Constitution, the Supreme Court has original jurisdiction in cases of mandamus. 2. It ie well settled that a mandamus is proper remedy to compel public officers to perform their ministerial duties. Riehmond-Greyhound Lines v. Davia, 200 Va. 147, 162 (1958). 3. No language of Va. Code § 17.1-918 provides discretionary authority to any counsel or agent of the JIRC to segregate or otherwise determine which allegations against a judge are to be transmitted to the various committees of the General Assembly or to any member eo requesting same pursuant to the statute. 4. Va. Code § 17.1-918() clearly defines what is to be transmitted upon request:‘The Commission shall also transmit any evidence that it has in its possession with reference to the alleged misconduct of any judge whose election is to be considered at the next session of the General Assembly to (i) the House Committee for Courta of Justice and the Senate Committee on the Judiciary and (i) any member of the General Assembly, upon request. Such evidence shall include the nature of the complaint, the current status of the complaint, the duration of any suspension and the evidence supporting the probable cause finding therefor, a description of any remedial course of action, and a statement concluding whether any such remedial course was successfully undertaken, Id. The statute does not limit which complaints are to be transmitted. It does not apply only to complaints that are deemed meritorious by the JIRC. It is not limited only to complaints that can be dealt with by the JIRC under its jurisdiction. Any evidence with respect to any alleged misconduct is required to be transmitted. 5, Morrogh and Katz have exercised discretion where no discretion is permitted, The act of transmission under Va. Code § 17.1-918 is a ministerial act and must be compelled. WHEREFORE, Levine prays this Court enter a Writ of Mandamus ordering Morrogh and Katz to transmit all evidence of any alleged misconduct that was received by the JIRC with respect to Judges Cantrell and Mutnick to Levine and to the House Committeo for Courts of Justice and the Senate Committee on the Judiciary. Further, Levine prays that the Supreme Court take up this matter on an emergency basis so as not to deprive the General Assembly of necessary information for the 2022 session. Respectfully submitted, MARK H. LEVINE By CounselWESTLAKE LEGAL GI “Ydsolet ‘Thhshes K Hokie, Ei 46176 Westlake Drive, Suite £20 Potomac Falls, Viveinia 20168 ‘Telephone: 703-406-76 165 Facsimile: 708-444-0488 ‘Email: [email protected] YERISICATION |, Mark H. Levine, hereby verify that Lam the Applicant named herein and competent to testify inthis matter. Having read the Verified Emergency Application for Writ of Mandanaus, LCOMMONWEALTH OF VIRGINIA nar, une stm estan ao ramunoNe Virginia Judicial Inquiry and Review Commission P.O. Box 367 Richmond, VA 23218-0367 Attn: Benjamin H. Katz, Esq. Sent by U.S. Mail and by email to [email protected] November 22, 2021 Dear Mr. Katz, Pursuant to Virginia Code Section 17.1-918(B), I respectfully request the Judicial Inquiry and Review Commission (“the JIRC”) transmit all evidence that it has in its possession with reference to any alleged misconduct of Fairfax District Court Judges Michael! Cantrell and Mitchell I. Mutnick, whose elections are to be considered at the next session of the General Assembly. Such evidence shall include the nature of the complaint, the current status of the complaint, the duration of any suspension and the evidence supporting the probable cause finding therefor, 8 Sacition of any remedial course of ation, and a statement concluding whether any such remedial course was undertaken. Please do not limit the evidence to the specific examples described above. As the statute requires “any evidence that {the JIRC] has in its possession with reference to the alleged misconduct of any judge [up for election]” (emphasis added), I read the statute broadly to require everything in the JIRC has in its possession which relates in any way to any alleged misconduct of these two judges. Thani you for your consideration. Yh le Ze Mark H. Levine DISTR (571) 234848! * RICHMOND: (804) 68-1048 * EMAIL: coo.eCOMMONWEALTH OF VIRGINIA Judicial Inquiry and Review Commission P.O, Box 867 Richmond, Virgins 23216-0967 (604) 16.4638 November 23, 2024 The Hon. Mark H. Levine Member of the House of Delegates of Virginia 301 King Street Alexandria, Virginia 23214 Dear Delegate Levine: The Commission has received your request for information, made pursuant to Virginia Code § 17.1-918(B)(i), with respect to two judges whose reelection may be considered in the upcoming session of the General Assembly. Your specific request exceeds the scope of that statutory provision, as it has been consistently construed and accepted by the General Assembly of Virginia. In accordance with the established Precedent concerning the appropriate construction of this provision, the Judicial inquiry and Review Commission has no information to report pursuant to Virginia Code § 17.1- 918 (B) with respect to the judges enumerated in your letter of November 22, 2021. Very truly yours, i (eh jond F. Mot Commission Counsel a