Virginia Supreme Court dismisses complaint alleging improper political activity by judges

The commission asked the justices to censure former Virginia Court of Appeals Judge Rudolph Bumgardner III and former Circuit Judge Humes J. Franklin Jr. for campaigning against an Augusta County voter referendum question on moving the county courthouse from Staunton into the county last year.

In a 16-page ruling Thursday, the justices concluded that there was not clear and convincing evidence showing that the two judges — both retired but subject to recall to hear cases — had violated the specific judicial canons as charged.

“Their actions did not amount to judicial misconduct that was prejudicial to the proper administration of justice warranting censure or removal from office,” wrote Chief Justice Donald W. Lemons.

The judges were supported by the American Civil Liberties Union and the Rutherford Institute and almost two dozen former presidents of the Virginia Bar Association who argued the two were exercising free speech rights. The court heard 40 minutes of argument on the question last month, but none of the justices asked any questions of the lawyers on each side.

A member of the county Board of Supervisors complained to JIRC that the judges were violating a judicial canon, or rule, against political activity. The proposed courthouse move was rejected by voters last November.

Last December, JIRC found that “by clear and convincing evidence” the complaints against them were “well-founded and of sufficient gravity to constitute the basis for retirement, censure, or removal.”

The rule against political involvement is aimed at preventing damage to the public trust and confidence in an independent, impartial judiciary. The commission recommended that the Supreme Court censure the judges.

Lawyers for the judges wanted the justices to dismiss the complaint. They argued, among other things, that JIRC misinterpreted and misapplied the terms “political” and “political organization,” which should be limited to mean only partisan political activity involving candidates and political parties.

Thursday’s opinion held that it was unnecessary to address the judges’ First Amendment arguments.