Virginia Supreme Court to hear arguments on disciplining two judges accused of violating judicial rules against political activity

Or, as the American Civil Liberties Union and the Rutherford Institute contend, were they engaged in protected free speech, a right put at risk for all judges if the Virginia Supreme Court punishes them, as recommended by the Virginia Judicial Inquiry and Review Commission?

The Supreme Court will hear arguments today on a JIRC complaint that asks the justices to censure former Virginia Court of Appeals Judge Rudolph Bumgardner III and former Circuit Judge Humes J. Franklin Jr. for opposing a voter referendum question on moving the county courts.

Though retired, both are subject to recall to hear cases. The two-page Dec. 13 order from JIRC found “by clear and convincing evidence” that the complaints against them were “well-founded and of sufficient gravity to constitute the basis for retirement, censure, or removal.”

Last year, Bumgardner and Franklin worked with the Augusta Citizens Coalition in opposing a ballot question about moving the county courts from the city of Staunton into Augusta County.

They spoke to civic groups, made financial contributions and wrote opinion pieces opposing the move, which they said was too costly and not in the best interest of the public or the judiciary.

A complaint the judges were involved in political activity was made to JIRC — which investigates allegations against judges — by a member of the county Board of Supervisors. Voters in November shot down the proposal to move the courts.

A transcript of the JIRC proceedings indicates the agency’s counsel, Katherine B. Burnett, was concerned the judges’ actions damaged public trust and confidence in an independent, impartial judiciary.

The ACLU of Virginia and Rutherford Institute disagree in a brief filed in the case. “The JIRC cannot plausibly maintain that voters in Augusta County would have been better off sheltered from hearing the views of judges Bumgardner and Franklin,” wrote the organizations.

“The JIRC’s vague and abstract recitations of the need to preserve the integrity and independence of the judiciary are not enough” to curb speech rights, they wrote. “No matter how a state chooses to select its judges, it is not free to violate the First Amendment,” they added.

Twenty-three former presidents of the Virginia Bar Association also filed a brief siding with the judges: “The VBA Past Presidents submit this amicus brief not only to support these outstanding jurists but also to address their grave concern that the First Amendment rights of Virginia jurists who wish to speak to issues of importance to the bar and to the public must be fully protected.”

Lawyers for the judges are asking the justices to dismiss the complaint, arguing in court papers that terms such as “political” and “political organization” have been misinterpreted and misapplied by JIRC and should be limited to mean only partisan political activity involving candidates and political parties.

“This interpretation is consistent with the language and structure of the (judicial) Canons, which are concerned with restraining core partisan activity while encouraging judges to address matters concerning the law and the judicial system,” wrote the judges’ lawyers, who include two former Virginia attorneys general, Richard Cullen and William G. Broaddus.

They argue that neither of the judges “had anything to gain or lose from the outcome of the referendum. Neither believed his actions were ‘political’ because the issue did not involve a partisan candidate or political party.”

The ACLU and the Rutherford Institute agree and argue, “The First Amendment interests at stake include the right of judges to express their views on important issues of public concern, and the right of the public to receive those views.”

The organizations are urging the Supreme Court to accept Bumgarder and Franklin’s argument that the terms “political” and “political organization” should be limited only to partisan activity involving candidates and political parties, thus avoiding any First Amendment problem with the Virginia judicial canons.

Lawyers for the judges also complain that Burnett, the JIRC counsel, tainted the proceedings by acting simultaneously as the investigator, adviser/counselor and prosecutor — conduct prohibited by the Virginia Rules of Professional Conduct, they allege.

Burnett did not respond to a request for comment this week.

According to papers filed by the judges’ lawyers, Burnett responded to concerns about her multiple roles by “repeatedly indicat(ing) that this was how Commission proceedings were always handled.”

The judges’ lawyers conceded that Burnett did not participate in the deliberations of the commission, but cited what they called prejudicial closing remarks she made to the commission which include: “I submit that the public knows of the judges’ acts of misconduct.”

She added, “I think that the damage to the public’s trust and confidence in an independent and impartial judiciary requires that the Supreme Court in a public decision fully disclosing the facts and reasons for its decision needs to be made.

“In fact, I think that what the judges, through their counsel, have done is essentially set this up so that, really, there is no other choice, that it has to go to the Supreme Court for them to make these decisions,” said Burnett, according to a transcript.