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Judicial Inquiry and Review Commission v. Bumgardner

Supreme Court of Virginia

July 20, 2017


          PRESENT: Lemons, C.J., Goodwyn, McClanahan, Powell, Kelsey, and McCullough, JJ., and Lacy, S.J.



         The Judicial Inquiry and Review Commission (the "Commission") filed the present complaint against Rudolph Bumgardner, III, Senior Judge of the Court of Appeals ("Judge Bumgardner"), and Humes J. Franklin, Jr., Retired Judge of the Twenty-Fifth Judicial Circuit ("Judge Franklin"), pursuant to the original jurisdiction of this Court set forth in Article VI, Section 10 of the Constitution of Virginia and Code § 17.1-902. The Commission asserted that its charges against Judge Bumgardner and Judge Franklin for allegedly violating the Canons of Judicial Conduct (the "Canons"), as set out in Part 6, Section III of the Rules of the Supreme Court of Virginia, are well founded in fact, and that the violations are "of sufficient gravity to constitute the basis for censure or removal" by this Court. We conclude that there is not clear and convincing evidence that Judge Bumgardner and Judge Franklin engaged in either "misconduct" or "conduct prejudicial to the proper administration of justice." Va. Const. art. VI, § 10. Therefore, we will dismiss the complaint.

         I. Facts and Proceedings

         On November 9, 2016, the Commission issued Notices establishing formal charges against Judge Bumgardner and Judge Franklin, alleging that they had engaged in misconduct and conduct prejudicial to the proper administration of justice while serving respectively as a senior judge and as a retired judge subject to recall. Both judges were charged with violations of Canons 1, 2A, 2B, 4D(1), and 5A(1).

         A. The Notice

         The Commission alleged that both judges were founding members and leaders of the Augusta Citizens Coalition (the "Coalition"), a referendum committee registered with the Virginia Department of Elections, the purpose of which was to defeat a public referendum on the question whether to move the Augusta County courthouse out of the City of Staunton and into the County. The public referendum was scheduled for November 8, 2016, and was on the general election ballot. According to the Commission, both judges contributed money to the Coalition. The Coalition also paid McGuireWoods Consulting $35, 000 for public relations work on this matter. The Commission alleged that both judges participated in town hall meetings and worked a booth at the county fair and advocated for one side of this issue. Both judges also attended a Rotary Club meeting in October 2016, where Judge Bumgardner spoke out publicly against relocating the courthouse. Judge Franklin publicly endorsed one side of this issue in an interview in a local newspaper, The News Virginian. The Commission further alleged that both judges also publicly advocated a position on this issue in a joint opinion piece that appeared in the local newspaper on October 30, 2016, and again on November 1, 2016. Judge Bumgardner also worked at a tent set up outside the entrance to the courthouse, speaking to the public and participating in courthouse tours. According to the Commission, Judge Bumgardner also sent invitations to various people who had worked to defeat the referendum, to attend a celebratory cocktail party at his house after the election. On November 8, 2016, he cancelled the party after his attorney spoke to Commission Counsel.

         The referendum was defeated by a vote of 23, 969 to 11, 784.

          B. The Judges' Answers

         Judge Bumgardner and Judge Franklin filed answers to the Notices. They admitted the factual allegations, with a few exceptions. Both judges denied being "founding members" and "leaders" of the Coalition, but instead asserted they were part of a group of nine citizens opposed to moving the courthouse that registered with the state using that name. They disputed having any official or unofficial capacity in the Coalition's leadership. Judge Bumgardner also denied attending any town hall meetings, although he admitted setting up signs and speaking to people outside one of the town hall meetings. Both judges asserted that they believed the Canons clearly authorized their conduct, as they considered the location of the courthouse to be a matter concerning the law, the legal system, and the administration of justice. The judges did not consider their actions to be political activity as this was a limited issue referendum and did not involve a partisan candidate or political party. They believed that they each had unique insight on this issue based on their knowledge of how the local legal system operated since they had both previously served as Chief Judge of that court, and could assist the public by educating them on the matter. They also both argued that they had nothing personally to gain from the location of the courthouse, and they did not believe that the Augusta Citizens Coalition was a "political organization" since it did not involve a candidate for public office or a political party.

         C. The Commission Hearing

         The Commission conducted an evidentiary hearing on December 13, 2016, which was held jointly at the judges' request. At the hearing, Commission counsel called a member of the Augusta County Board of Supervisors, Carolyn Bragg ("Bragg"), to testify. Bragg testified that Judges Bumgardner and Franklin never came to a Board meeting to discuss the issue of the courthouse location, although she saw them at town hall meetings and working a booth at the county fair and outside the courthouse. Bragg admitted that the Board was in favor of moving the courthouse and had voted 7-1 in support of that move, which was why they sought the public referendum. Bragg was asked if she considered the relocation of the courthouse to be a "political issue, " and she responded "no." Later, however, she testified that within Augusta County this had become a "political issue, " even though the Board had not approached it as such. Bragg also testified that after observing the judges' conduct during the referendum campaign, she would not feel comfortable appearing before either judge as a litigant.

         Commission counsel introduced certain exhibits regarding the Coalition that showed the judges had contributed money to the Coalition and that they had been copied on all of the planning emails from McGuireWoods Consulting to the nine members of the Coalition. The exhibits also demonstrated that the Coalition was registered with the Virginia Department of Elections ("VDE") as a "referendum committee, " and with the IRS as a "political organization" for tax-exempt status under 26 U.S.C. § 527. The VDE definition of a "political committee" was also introduced as an exhibit, which included referendum committees, as well as political action committees, political party committees, and inaugural committees.

         Commission counsel rested, and the judges moved to strike the evidence and terminate the proceedings. The judges argued that their actions did not violate the Canons since all of their efforts were related to the location of the courthouse, and the efficiency of the local court system and the administration of justice. Commission counsel argued that these two judges formed a political organization, made contributions to this organization, and were involved in running a political campaign to defeat the referendum, which actions violated the Canons. However, during her argument, counsel conceded that their actions did not violate Canon 4D(1), [1] but contended that, instead, their actions violated Canons 1, 2, and 5. The Commission denied the motion to strike.

         The judges called Joanie Eiland to testify, who was one of people who started the Coalition. She testified that, as a local business owner, she was concerned about the potential economic impact the courthouse relocation might have on Staunton and Augusta. She asked the judges "to join the conversation" in order to help educate the public about the courthouse relocation. Eiland testified that the Coalition did not endorse any political candidates nor did it require loyalty oaths, and that its purpose was educational in nature. Eiland was asked about one of the emails sent from McGuireWoods Consulting to Coalition members, which asked them to keep confidential "any outreach and intel provided on this issue to/from GOP leaders, tea party leaders, public officials, etc." A Commission member asked why the email only referenced the "GOP" and the "tea party, " and not Democrats, to which Eiland responded, "I can't comment on what was intended by that reference."

         Judge Bumgardner testified that the reason he decided to become engaged in the referendum was because back in 2002, he had been the chairman of a courthouse study committee. This committee, which also included Judge Franklin, had examined the needs of the Augusta County courthouse and considered issues surrounding relocation. The committee followed the Virginia Courthouse Facilities Guidelines and recommended against relocating and building a new facility. Judge Bumgardner explained that he was concerned the public was not being educated on the issues surrounding the relocation, including the findings of the 2002 study.

          He testified that the only reason the Coalition was officially created was so that they would be allowed to speak on the referendum. He stated that when he donated money, he considered it similar to giving money to Legal Aid, in support of the legal system. He believed that the County benefitted by having its courts in Staunton because both courts could share services, and that was the reason he wrote the op-ed for the newspaper. Judge Bumgardner testified that although he donated money to the Coalition, he never raised money for it. He stated that he believed everything he did was permitted by the Canons, and that he did not believe he did anything "political" with regard to the referendum. On cross-examination, Judge Bumgardner testified that he believed the Coalition was an organization "dedicated to the improvement of administration of justice."

         Judge Franklin testified that he became involved with the 2016 referendum because he was concerned that information from the 2002 courthouse study was not being shared with the public, and because he believed that the current location of the courthouse made the local legal system operate more efficiently. He was invited by Eiland to speak to some businessmen about how the courts functioned and about the referendum. He began attending meetings of that informal group, which became the Coalition. He testified that the Coalition was not an active supporter of any particular candidate. He admitted attending public information meetings on the referendum at a local high school. Judge Franklin admitted that he contributed money to the Coalition but denied soliciting funds from anyone else. He testified that he never intended to become involved in a political organization. He believed he had a right to speak on what he considered to be a matter involving the administration of justice.

         Judge Bumgardner and Judge Franklin admitted they wrote editorials regarding how the local court systems functioned, and how the relocation of the courthouse would affect the court systems. Another citizens group opposed to the relocation of the courthouse, Commonsense Courthouse Solutions, highlighted one of these editorials on its website under the heading "Endorsements." However, both judges testified that they had no knowledge this was to happen and did not consent to it.

         During closing arguments, Commission counsel argued that the Coalition was a political organization, and the judges violated Canons 1, 2, and 5 by their involvement with the Coalition and the courthouse referendum. She argued that the judges had made their involvement a public issue; consequently, the Commission had no choice other than to refer this matter to the Supreme Court for a public decision. The judges' counsel responded that a matter should only go to the Supreme Court if it was of sufficient gravity, not because it had been made public. The judges' counsel reiterated that the Coalition was not a political organization and that the judges were permitted to speak publicly on this matter as it clearly fell within the exception to Canon 5.

         At the conclusion of the hearing, the Commission dismissed the charge against the judges of violating Canon 4D(1), but found that the charges that the judges had violated Canons 1, 2A, 2B, and 5A(1) were "well-founded and of sufficient gravity to constitute the basis for retirement, censure, or removal." The Commission concluded that a formal complaint should be filed in the Supreme Court of Virginia, with a recommendation of censure.

         On January 27, 2017, the Commission filed its formal complaint in this Court. The judges then filed a demurrer, motion to dismiss, and answer. The Commission filed an ...

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