WAYNESBORO — Nearly two dozen lawyers — along with two groups representing opposite ends of the political spectrum — have filed briefs in support of the two retired Augusta County judges who face a disciplinary hearing next month before the Virginia Supreme Court.
One of the two briefs filed was submitted by 23 former Virginia Bar Association presidents. The other was filed by jointly by the liberal American Civil Liberties Union of Virginia and the conservative Rutherford Institute, two organizations that rarely see eye to eye on political matters, though both are focused on civil rights and personal freedoms.
The two judges — retired 25th Judicial Circuit Judge Humes J. Franklin, Jr. and retired Virginia Appeals Court Judge Rudolph Bumgardner III — have a hearing before the Virginia Supreme Court on June 8. The Supreme Court will consider the Virginia Judicial Inquiry and Review Commission’s recommendation that the court censure the two judges for alleged violations of the judicial canons.
The commission recommendation came after a review of an October complaint by Augusta County Supervisor Tracy Pyles. Pyles said the two judges violated the canons by speaking publicly against an Augusta County referendum to move the county courthouse and seat from Staunton to Verona. The referendum was defeated by a two-to-one margin in the November election.
In making its ruling, the JIRC Commission said the two judges had clearly violated the judicial canons and said the violations were enough to warrant “retirement, censure or removal.” Since both judges are retired, censure is the only practical punitive action the court could hand down.
Both judges actively opposed the referendum and were members of the Augusta Citizens Coalition, an organization that wanted the courthouse to remain in Staunton.
The ACLU and Rutherford Institute brief filed April 17 was submitted by lawyer Rodney Smolla, the dean of Widener University Delaware Law School and a First Amendment scholar. Also signing off on the brief are Leslie Mehta of the ACLU of Virginia and John Whitehead and Douglas R. McKusick of the Rutherford Institute.
The brief says the comments of the two judges are “constitutionally protected,” and said the Supreme Court can interpret the Virginia Canons “in a manner that fully exculpates Judges Bumgardner and Franklin, avoiding First Amendment tensions entirely.”
The brief further argues that the citizens of Augusta County benefited from hearing the comments of the two judges. Because the Virginia Code only allowed the voters to authorize any move of the courthouse or county seat, “Augusta County was … a mini-marketplace of ideas, in which the expression by experienced jurists on the wisdom of moving or not moving the courthouse was particularly important to the citizenry.”
The brief also says the opinions of the two judges had no impact on any judicial decisions the two would make.
“Nothing in the application of the Virginia Canons to the entry of Judge Bumgardner and Judge Franklin into the debate over the location of the Augusta County courthouse would impugn their independence or integrity in the adjudication of cases.”
In further saying the speech of the two judges is protected, the brief argues that “the interests of the two judges to speak and the interests of Augusta County citizens to listen far outweighs any interests of the commonwealth. The JIRC’s vague and abstract recitations of the need to preserve the integrity and independence of the judiciary are not enough to turn the the color of the First Amendment litmus paper.”
The brief from 23 former Virginia Bar presidents was submitted by William Hurd, Virginia’s former solicitor general. One of the points made in the brief is that the judges’ behavior was perfectly appropriate.
“A judge’s stance on whether to move a courthouse does not undermine the public confidence in the integrity of the judicial system. On the contrary, it is in the interest of the public to allow the judges to speak to that issue,” Hurd writes.