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On The Front Lines

Rutherford Institute & ACLU Urge Virginia Supreme Court to Protect the First Amendment Rights of Judges to Speak About Matters of Public Concern

RICHMOND, Va. —The Rutherford Institute and the American Civil Liberties Union have asked the Virginia Supreme Court to protect the First Amendment rights of judges to educate the public about apolitical matters relating to the administration of justice. In an amicus brief filed with the court, Rutherford Institute and ACLU attorneys argued that Judges Rudolph Bumgardner III and Humes J. Franklin, Jr., did not violate an ethics rule forbidding judges from engaging in certain “political activity” when they spoke publicly about the problems that would result if the Augusta County Courthouse was moved to Verona, Virginia.

Attorney Rodney A. Smolla of Delaware assisted The Rutherford Institute and the ACLU in arguing that the judges’ activities constituted core political speech protected by the First Amendment. 

“We are witnessing a transformation of the courts into pallid, legalistic bureaucracies governed by a new breed of judges who are careful to refrain from saying, doing or writing anything that might compromise their future ambitions,” said John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Given the turbulence of our age, what we really need are constitutionalist judges who are not afraid to speak out about the importance issues of the day. For instance, Justice William O. Douglas, who served on the U.S. Supreme Court for 36 years, believed that the ‘Constitution is not neutral. It was designed to take the government off the backs of the people.’”

In June 2016, it was determined that the voters of Augusta County, Virginia, should decide at the November general election whether it should move its courthouse, at an estimated cost of $45 million, from Staunton to Verona. Judge Bumgardner, who was a Circuit Court Judge in Augusta County for 25 years before serving on the Virginia Court of Appeals, and Judge Franklin, who was a Circuit Court Judge in Augusta County from 1997 until 2012, each had substantial experience with the benefits of the courthouse being located in Staunton and wanted to make sure the public made an informed decision on the question of whether the courthouse should be moved. The judges were asked by the Augusta Citizens Coalition, an ad hoc group of community members who were opposed to moving the County courthouse, to provide voters with their unique perspective and knowledge on the issue. The judges attended public forums, including a town hall meeting and a county fair, where information was disseminated and competing views on the move of the courthouse were discussed. The judges also wrote an opinion piece that was published by local media outlets pointing out that no facility study of the proposed move had been completed, that having the county and City of Staunton courts in the same facility was more efficient for the public and attorneys, and moving the courthouse would increase the cost of legal proceedings and services. However, the judges did not urge voters to vote one way or another on the move, but stressed that the citizens have the power to make that decision. Just before county constituents voted to move the courthouse, a county supervisor filed an ethics complaint against the judges alleging that they violated a state rule requiring judges to refrain from “political activity inappropriate to the judicial office,” except on “measures to improve the law, the legal system, or the administration of justice.”