Judge’s Right to Speak on Issues of Public Concern, Judicial Inquiry and Review Commission of Virginia v. Rudolph Bumgardner, III, Senior Judge and Humes J. Franklin, Jr., Retired Judge of the Twenty- Fifth Judicial Circuit (Amicus Curiae). 
The Judicial Inquiry and Review Commission of Virginia (“JIRC”) accuse two judges of violating canons of ethics including that a judge must refrain from political activity inappropriate to the judicial office. In October 2016 Augusta County Supervisor Tracy Pyles complained that the judges violated the canons by speaking out publicly against the November referendum which asked county voters to move the county courthouse from Staunton to Verona and authorize $45 million for a new judicial complex. Both judges actively opposed the referendum and were members of the August Citizens Coalition, an organization that wanted the courthouse to remain in Staunton. Judges have First Amendment rights as well. There may be certain restrictions placed on what they say, but those restrictions are not absolute. It is important to let the government know that they cannot squash all speech simply because someone is a judge. 
Therefore, on April 17, 2017, represented by Rodney Smolla, Dean and Professor of Law at Widener University (Delaware Law School) and Rutherford Institute joining, we filed an amicus brief on the First Amendment right of Judge Rudolph Bumgardner, III and Judge Humes J. Franklin, Jr. to speak on issues of public concern such as this that are not partisan. We argued that there the Virginia Supreme Court should apply strict scrutiny to the actions of the JIRC (and hold that the JIRC’s actions violate the Constitution unless the JIRC meets its burden of establishing that its censure is narrowly tailored to the effectuation of compelling governmental interests). Alternatively, we believe at a minimum, the First Amendment requires application of either the government employee test (a test involving the standards governing restrictions on participation by government employees in partisan political campaigns) or legal system participant test (a two-part test of determining whether the speech is of a citizen on a matter of public concern or speech of a government employee and, if speech of a citizen on a matter of public concern, whether the speech still must be restricted because it outweighs the expressive interest of the speaker).

On July 20, 2017, the Court concluded that there was no clear and convincing evidence that Judge Bumgardner and Judge Franklin engaged in either “misconduct” or “conduct prejudicial to the proper administration of justice.” The Court reasoned that “[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” and concluded that “the involvement of local judges in a public debate over the possible relocation of a courthouse is not ‘inappropriate to the judicial office.’” The Complaint was dismissed. 



Leslie Mehta, ACLU of Virginia; John W. Whitehead, Douglas R. McKusick, The Rutherford Institute; Rodney Smolla

Date filed

April 17, 2017


Supreme Court of Virginia