801 S.E.2d 406
Va.2017Background
- The Judicial Inquiry and Review Commission charged Senior Judge Rudolph Bumgardner III and Retired Judge Humes J. Franklin Jr. with violating Canons 1, 2A, 2B, 4D(1), and 5A(1) for publicly opposing a county referendum to relocate the Augusta County courthouse. The Commission recommended censure.
- The judges participated in a citizens group called the Augusta Citizens Coalition (a registered referendum committee/§527 political organization), donated money, spoke publicly (op-eds, Rotary, fair booth, courthouse tours), and assisted with public education about courthouse relocation. They denied being leaders or soliciting funds.
- The Commission presented evidence that the Coalition was registered with the Virginia Dept. of Elections as a referendum committee and with the IRS as a §527 political organization; witnesses testified the judges’ participation made some county officials uncomfortable appearing before them.
- The judges argued their conduct fell within Canon 5’s exception for activities "in behalf of measures to improve the law, the legal system, or the administration of justice," asserting courthouse location implicates court administration and facilities statutes (e.g., judges’ authority re court facilities).
- The Commission conceded Canon 4D(1) did not apply, but nevertheless concluded charges under Canons 1, 2, and 5 were well-founded and of sufficient gravity; the Supreme Court of Virginia conducted de novo review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether participation in and contributions to the Coalition violated Canon 5A(1) (prohibition on political activity) | Coalition was a political organization: registered referendum committee and §527 entity; judges acted as members, spoke publicly, contributed funds — violating Canon 5 | Judges argued the Coalition’s activity concerned administration of justice and courthouse facilities, fitting Canon 5’s exception for measures to improve the legal system; not "political organization" for Canon 5 purposes | Coalition not a disqualifying "political organization" under Canon 5 given judges’ statutory responsibilities over court facilities; Canon 5 charge dismissed |
| Whether judges’ conduct violated Canons 1 and 2 (integrity, appearance of impropriety) | Commission argued public advocacy undermined impartiality and public confidence; created appearance problems for litigants and officials | Judges contended Commission failed to articulate or prove how facts satisfied Canons 1 and 2; conduct was lawful and within judicial role | Commission failed to brief or argue how facts established violations by clear and convincing evidence; charges under Canons 1 and 2 waived/dismissed |
| Whether Commission’s evidentiary showing met clear-and-convincing standard to warrant censure/removal | Commission relied on registration, donations, public advocacy, and witness testimony to meet standard | Judges urged that evidence, statutory context, and Canon exceptions precluded misconduct finding | Court (de novo) found no clear-and-convincing evidence of misconduct or conduct prejudicial to administration of justice and dismissed complaint |
| Whether demurrer/motion to dismiss was proper to avoid hearing | Commission sought proceeding; judges moved to dismiss earlier | Judges asserted procedural defenses by demurrer/motion to dismiss | Court held demurrer/motion to dismiss improper to avoid merits hearing; demurrer overruled, but ultimate disposition made on merits after review |
Key Cases Cited
- Judicial Inquiry & Review Comm’n v. Waymack, 284 Va. 527 (establishes clear-and-convincing standard and de novo review in JIR Commission appeals)
- Judicial Inquiry & Review Comm’n v. Peatross, 269 Va. 428 (discusses remedies—censure or removal—if violations shown)
- Judicial Inquiry & Review Comm’n v. Shull, 274 Va. 657 (requires Court to conduct an open hearing on Commission complaints)
- Hampton Rds. Bankshares, Inc. v. Harvard, 291 Va. 42 (principle of deciding cases on narrowest grounds; avoiding unnecessary constitutional rulings)
- Alexandria Redevelopment & Hous. Auth. v. Walker, 290 Va. 150 (same doctrine of judicial restraint cited)
- Commonwealth v. Swann, 290 Va. 194 (referenced for principle of avoiding unnecessary constitutional adjudication)