1

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 
2

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. 
3

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 
4

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. 
5

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 
6

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 
7

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 
8

courtroom at the Giza custody hearing, testified that Fast 

argued “right off the bat” that Giza had engaged in selfmutilation 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. 
9

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 
10

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 
11

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.” 
12

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 
13

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 
14

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. 

. . . . 
15

 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 
16

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 
17

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
18

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 
19

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 
20

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 selfmutilation. 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. 
21

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. 
22

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 
23

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. 
24

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. 
25

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 
26

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. 
27

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 
28

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 
29

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.