Dismissing a complaint filed by the Judicial Inquiry and Review Commission, the Virginia Supreme Court held that 2 judges did not violate the code of judicial conduct by opposing a referendum to move the courthouse.  Judicial Inquiry and Review Commission v. Bumgardner and Franklin (Virginia Supreme Court July 20, 2017).

The Augusta Citizens Coalition was established to defeat a public referendum on whether to move the Augusta County courthouse out of the City of Staunton.  The coalition was a referendum committee registered with the Virginia Department of Elections.

Both judges were member of the coalition and contributed money to it.  They spoke publicly on behalf of the Coalition and against the relocation of the courthouse in various settings, for example, town hall meetings, the Rotary Club, the county fair, and a tent outside the courthouse.  The judges wrote a joint opinion piece that appeared in the local newspaper regarding how the local court system functioned and how the relocation of the courthouse would affect the court.

The referendum was defeated.  According to news reports, the complaint against the judges was filed with the Commission by the county supervisor; the county board of supervisors had supported moving the courthouse.  After a hearing, the Commission found that the judges had violated Canon 5A(1) and recommended a censure.

The Court stated that the central question was whether the Coalition was a “political organization” within the meaning of Canon 5A(1), which prohibits a judge from acting as a leader or holding any office in a political organization, making speeches for a political organization, or soliciting funds for or making a contribution to a political organization.  The Virginia code of judicial conduct does not define the term “political organization.”

The judges asked the Court to adopt the definition in the 2007 ABA Model Code of Judicial Conduct:  “A political party or other group sponsored by or affiliated with a political party or candidate, the principal purpose of which is to further the election or appointment of candidates for political office.”  In contrast, contending Canon 5 should be applied broadly, the Commission relied on a dictionary definition of “political” as “of or relating to government, a government, or the conduct of government affairs.”  The Commission argued that the coalition was clearly a political organization because it was organized and recognized as such under Virginia’s election laws and the federal tax laws.

The Court rejected both suggestions.

It concluded that the ABA definition was too narrow because it would exempt all referendum committees, noting that “many issue referenda are not specifically tied to a political party or the election of a candidate for public office, and yet involve issues where a judge’s public advocacy and membership in a referendum committee would be inappropriate.”

However, it concluded that the definition recommended by the Commission was too broad.  The Court acknowledged that “an issue referendum regarding the relocation of a courthouse is certainly of or relating to government, a government, or the conduct of government affairs,” but emphasized that “[t]he location and condition of court facilities . . . are issues inextricably intertwined with the administration of justice.”

The Court noted that the General Assembly has given judges the “extraordinary power” to issue a writ of mandamus to force local governments to cause the court facilities “to be made secure, or put in good repair, or rendered otherwise safe . . . .”  It concluded, “[i]f 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.”

Noting the canons are rules of reason, the Court explained:

The text of Canon 5, that “a judge shall refrain from political activity inappropriate to the judicial office,” presupposes that that there might be some things that constitute “political activity” but are nonetheless not “inappropriate to the judicial office.”  Considering judges’ responsibilities over court facilities … , the involvement of local judges in a public debate over the possible relocation of a courthouse is not “inappropriate to the judicial office.”

Curiously, the Court did not rely on the provision in the Virginia code of judicial conduct that states, “[a] judge shall not engage in any other political activity except in behalf of measures to improve the law, the legal system, or the administration of justice” (Canon 5A(3)), in other words, that allows a judge to engage in political activity “in behalf of measures to improve the law, the legal system, or the administration of justice.”  (That provision was deleted from the ABA model code in 2007, but Virginia has not adopted the 2007 revisions.)

That exception to the rule against judges’ engaging in political activity has been interpreted to allow judges to advocate on issues related to courthouse facilities.  For example, the Washington judicial ethics committee advised that a judge may, on her own time and without using any public resources, speak in favor of and urge others to support a ballot measure regarding additional taxes that would, in part, fund the replacement of an obsolete juvenile court facility and fund court operations as long as she confined her comments to the impact on court funding and did not address any other governmental services.  Washington Advisory Opinion 2010-2. See also Arkansas Advisory Opinion 1994-1 (a judge may take a public stand in favor of or opposed to a bond election on whether to increase the sales tax to pay for a new courthouse and jail and be a member of a committee formed to promote passage of the sales tax); New York Advisory Opinion 2014-135 (a judge may publicly support the passage of a bond to up-grade the local court facility by appearing at city council meetings and being interviewed by newspapers and on cable television); New York Advisory Opinion 2007-109 (a judge may publicly advocate for passage of a bond to fund a new court facility by writing an op-ed and speaking at public informational forums); Oklahoma Advisory Opinion 2002-4 (a judge may be involved in a campaign organized by the county commissioners for a county-wide sales tax to finance a new county jail); South Carolina Advisory Opinion 17-2008 (a judge may advocate for a new judicial center and the sales tax needed to fund its construction); Texas Advisory Opinion 163 (1993) (a judge may actively support and campaign for voter approval of a bond issue to build a criminal justice center by speaking at civic clubs, writing letters, and preparing material in support); Washington Advisory Opinion 2000-3 (a judge may publicly support a bond levy that would fund seismic retrofitting of a courthouse); Washington Advisory Opinion 1993-32 (a judicial officer may be a member of a committee supporting the bond issue for the construction of a new juvenile court facility).