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Court: Judges can advocate on courthouse issues

Peter Vieth//July 21, 2017

Court: Judges can advocate on courthouse issues

Peter Vieth//July 21, 2017//

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augusta1_mainTwo judges who vigorously advocated against a courthouse relocation referendum did not commit judicial misconduct, the Supreme Court of Virginia has ruled.

The unanimous court dismissed judicial ethics charges against Senior Court of Appeals Judge Rudolph Bumgardner III and retired Circuit Judge Humes J. Franklin Jr., both Staunton area residents who supported preservation of the historic Augusta County courthouse.

The justices crafted a safe harbor for judges who speak out on courthouse issues, but declined to provide a wider refuge for judges to advocate on referenda, even when unconnected to parties or candidates.

With a narrow decision interpreting state judicial canons, the court steered clear of any ruling on First Amendment rights of judges to speak on public issues.

The July 20 opinion is JIRC v. Bumgardner (VLW 017-6-054).

Courthouse conflict

The Augusta County Board of Supervisors ran into a tsunami of citizen opposition when it proposed to abandon court facilities at the 116-year-old courthouse in downtown Staunton. The board asked citizens to approve building a new courthouse in the crossroads community of Verona, just north of Staunton. Voters rejected the idea in a 2-1 vote in 2016.

Bumgardner and Franklin were enthusiastic opponents of the courthouse move.

The judges contributed money, wrote editorials and spoke openly to voters. They joined and supported the Augusta Citizens Coalition, a group opposed to the courthouse relocation. Bumgardner addressed a civic club meeting. Franklin gave an interview to the Staunton newspaper.

Bumgardner invited fellow referendum opponents to a celebratory cocktail party at his house on election day, but canceled after his attorney spoke to a lawyer for the Judicial Inquiry and Review Commission, according to the record recited by the Supreme Court.

JIRC charges

When JIRC counsel brought charges of misconduct, the judges said they believed their conduct was allowed under the Virginia Canons of Judicial Conduct, fitting squarely within the exception allowing public comment on matters “concerning the law, the legal system, and the administration of justice.”

The judges did not consider their actions as political activity because the election concerned a limited-issue referendum and did not involve a partisan candidate or political party, the court said in reviewing the record.

At the hearing before the seven-member JIRC panel, a county supervisor said she would not be comfortable appearing before either judge as a litigant, noting the judges’ advocacy was counter to the position of the county board.

Bumgardner testified that when he donated money, he considered it similar to giving money to legal aid, in support of the legal system.

Franklin told the commissioners he never intended to become involved with a political organization. “He believed he had a right to speak on what he considered a matter involving the administration of justice,” wrote Justice Donald W. Lemons, summarizing the evidence.

The judicial ethics commission filed a formal complaint with the court, alleging violations of Canons 1, 2 and 5.

Narrow ruling

The central question, the court said, was whether the Augusta Citizens Coalition was a “political organization” within the meaning of Canon 5, which bars judges from involvement with political organizations.

The two judges urged an American Bar Association definition of “political organization” limited to groups supporting election of candidates for political office.

The judicial commission sought to apply Canon 5 “to guarantee the broadest possible application,” the court said. The commission noted the Coalition was organized as a “political organization” under Virginia election laws and IRS tax laws.

But neither the judicial canons nor the Code of Virginia expressly define “political organization,” the court said.

The court rejected a sweeping view of the term, but also rejected the judges’ suggestion to adopt the ABA definition, “as that term is too narrow.”

“[W]e cannot adopt a definition of ‘political organization’ that would categorically exempt all referendum committees,” Lemons wrote for the court. “The location and condition of court facilities, however, are issues inextricably intertwined with the administration of justice,” the court said.

The court pointed to the statute giving judges “the extraordinary power” to force local governments to keep courthouses in good repair. “If judges may initiate lawsuits against localities, and force localities to make improvements to court facilities, it would seem reasonable that a judge could speak about the impact a courthouse relocation would have on the administration of justice in that locality,” Lemons wrote.

Canon 5 prohibits political activity “inappropriate to the judicial office.” The language presupposes some political activity that is not inappropriate, the court reasoned.

The ruling, based on “principles of constitutional and statutory construction that are well established under Virginia law, as well as application of our appellate rules,” removed the need to address arguments relating to First Amendment free speech principles, the court said.

The judges had been supported in their defense of the JIRC charges by a group of 23 former presidents of the Virginia Bar Association and two collaborating civil liberties organizations. The two friend-of-the-court briefs had emphasized the free speech rights of judges under the U.S. and Virginia constitutions.

Judges pleased

Franklin said he welcomed the outcome.

“Needless to say, I’m pleased and happy with it. I felt all along we had it right because it was involved with the administration of justice,” the judge said.

“Obviously, I am pleased with the result,” Bumgardner added. He declined further comment.

Their lawyer, Richmond’s Robert W. Loftin, issued a written statement:

“In unanimously dismissing the Commission’s complaint against Judge Bumgardner and Judge Franklin, the Supreme Court of Virginia provided clear guidance to all judges in the Commonwealth about how a judge may participate in public matters regarding the administration of justice. This is the right result, and ensures that the public may benefit from the knowledge and experience of Virginia’s judges on issues concerning the administration of justice.”

Commission counsel Katherine B. Burnett did not immediately respond to a request for comment.

Procedural issues

The judicial ethics commission allowed two charges to fail for procedural default, the court said.

The commission’s lawyer focused on the alleged violation of Canon 5, involving political activities. In advocating before the Supreme Court, commission counsel largely omitted any argument on alleged violations of Canons 1 and 2, which exhort judges to observe “high standards of conduct” and to avoid impropriety and the appearance of impropriety.

“By failing to set forth any argument regarding how the facts of this case support a violation of Canons 1 and 2, the Commission has failed to meet its burden of proof and has waived these charges,” Lemons wrote.

The judges’ defense also was flawed in one respect, the high court said.

The judges’ demurrer and motion to dismiss were not well taken. The state constitution mandates a hearing in open court upon filing of a JIRC complaint, with no procedural shortcuts, the court said.

“[A] demurrer and motion to dismiss to avoid a hearing on the merits are improper pleadings in proceedings upon a complaint filed by the Judicial Inquiry and Review Commission,” Lemons wrote.

Justice William C. Mims did not participate in the high court’s decision. Senior Justice Elizabeth B. Lacy was the seventh justice on the court’s opinion.

VLW 017-6-054

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