Kemler v. Poston
| Decision Date | 11 August 2000 |
| Docket Number | No. Civ.A. 3:00CV146.,Civ.A. 3:00CV146. |
| Citation | 108 F.Supp.2d 529 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Lisa B. KEMLER, et al., Plaintiffs, v. Charles E. POSTON, et al., Defendants. |
Victor M. Glasberg, Kelly M. Baldrate, Victor M. Glasberg & Associates, Alexandria VA, Rebecca K. Glenberg, ACLU of Virginia, Richmond, VA, for plaintiffs.
Peter R. Messitt, Office of the Attorney General, Richmond, VA, for defendants.
Plaintiffs Lisa B. Kemler and James C. Clark, substitute judges in the state of Virginia, are suing for declaratory and injunctive relief. They claim that an advisory opinion issued by the Judicial Ethics Advisory Committee ("JEAC"), which is susceptible of enforcement by the Judicial Inquiry and Review Commission ("JIRC") and the Supreme Court of Virginia, violates their rights under the First and Fourteenth Amendments to the Constitution of the United States. The advisory opinion takes the view that, to avoid the appearance of impropriety, Virginia judges must refrain from voting in primary elections. The Defendants are committee members of JEAC and JIRC.
Defendants have moved to dismiss the action, arguing that: (1) the Complaint fails to set forth a case or controversy sufficient to support the exercise of jurisdiction by this Court; and (2), even if the Court has jurisdiction, it should abstain from hearing the case. For the reasons set forth below, Defendants' Motion to Dismiss is GRANTED.
To ensure that only persons of the highest ethical standards be maintained as judges within her judiciary, the Commonwealth of Virginia provides for the regulation of judicial ethics by certain rules and procedures. To this end, the Supreme Court of Virginia promulgated the Canons of Judicial Conduct. The canons, together with the rules promulgated thereunder, are, by the terms of their preamble, "intended to govern conduct of [Virginia] judges and to be binding upon them."
Canon 2 states that: "[a] judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities." The advisory commentary on Canon 2 provides:
Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.
The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Canons. Actual improprieties under this standard include violations of law, court rules or other specific provisions of these Canons. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity and impartiality is impaired.
Canon 5 instructs that: "A Judge Shall Refrain From Political Activity Inappropriate to the Judicial Office." Canon 5.A., captioned "Political Conduct In General," prohibits judges from holding office in political organizations, making speeches for such organizations, or endorsing or opposing candidates and fund raising for, or making contributions to, political organizations or candidates. Canon 5.A.(1)(a)-(c). Canon 5.A(2) requires a judge to resign from office upon becoming a candidate in a primary or general election, excepting a candidate for a constitutional convention. Finally, Canon 5.A(3) prohibits judges from engaging in "any other political activity except in behalf of measures to improve the law, the legal system, or the administration of justice."
The JEAC, a committee established by order of the Supreme Court of Virginia dated January 5, 1999 ("January 5 Order"), is composed of nine members, five of whom are active or retired judges, two of whom are attorneys, and two who are lay-persons. See id. The JEAC's purpose is "to render advisory opinions concerning the compliance of proposed future conduct with the Canons of Judicial Conduct."1 Thus, the JEAC renders informal ethical opinions to guide judges who present questions "not of general substantial interest and continuing to concern to the judiciary or the public." Any judge whose conduct is subject to the Canons of Judicial Conduct may request an advisory opinion about the propriety of his or her conduct or proposed conduct. Id.
According to the January 5 Order, opinions issued by the JEAC are advisory. Thus, they are not binding on the two State entities that are charged with investigating and regulating judicial conduct, the JIRC and the Supreme Court of Virginia, although compliance with an advisory opinion may be considered evidence of good faith if the JIRC or the Supreme Court were to conclude that an advisory opinion incorrectly approved of conduct later determined to be a violation of the Canons. Also, the January 5 Order makes clear that the JEAC "may not issue an opinion that interprets any constitutional provision, statute, rule or regulation that does not relate to judicial ethics."
The JIRC, an entity established by Article VI § 10 of Virginia Constitution, is "vested with the power to investigate charges which would form the basis for retirement, censure or removal of a judge." Article XI, § 10, Virginia Constitution. JIRC investigates complaints of ethical violations by judges, and may order and conduct hearings. See Va.Code § 2.1-37.4. The Code of Virginia sets forth a procedure for conducting hearings, vesting in the JIRC the power to petition for an order compelling testimony and the production of documents, and for ordering depositions. If the counsel to the JIRC determines that a complaint alleges a violation of the Canons of Judicial Conduct or forms the basis for retirement, censure, or removal of a judge, counsel is directed to present the complaint to the JIRC as an inquiry. See Rule 3(A)(4), Rules of the JIRC. If the JIRC decides the inquiry lacks merit, it shall dismiss it. See Rule 3(A)(6). If the JIRC decides that the charge, if well-founded, would be the basis for retirement, censure, or removal of a judge, the JIRC may order a formal hearing on the charge. See Rule 3(B)(2).
After the JIRC investigates a charge, it may remove the charge from its docket, file a complaint against the judge in the Supreme Court of Virginia if it finds the charge to be well-founded and of sufficient gravity to constitute the basis for retirement, censure, or removal, or, if the JIRC finds that the charge is not of such sufficient gravity, it may advise the judge of its findings and remove the charge from its docket but consider the charge with any other future charges against the judge. The JIRC also has the discretion to meet with a judge to discuss the allegations informally, and to discuss possible solutions. See Rule 4.
If the JIRC finds that a complaint of judicial misconduct involving a violation of the Canons is well-founded and of sufficient seriousness to be a basis for retirement, censure or removal, the JIRC presents a complaint against the judge to the Supreme Court of Virginia. "Upon the filing of a complaint, the Supreme Court shall conduct a hearing in open court and," if the Supreme Court finds "that the judge has engaged in misconduct while in office or that he has persistently failed to perform the duties of his office, or that he has engaged in conduct prejudicial to the proper administration of justice, it shall censure him or shall remove him from office." Virginia Const. of 1971, art. VI, § 10.
If the decision of the Supreme Court of Virginia is thought by the judge to offend the Constitution of the United States, the judge may appeal to the Supreme Court of the United States. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); see also Edmonds v. Clarkson, 996 F.Supp. 541 (E.D.Va.1998).
JEAC Formal Opinion No. 99-6 And The Plaintiffs' Action
On November 15, 1999, JEAC issued Formal Opinion No. 99-6 ("Opinion No. 99-6") which responds to the question: "Is it proper for a judge to vote in a primary election?" Opinion No. 99-6 answered that query in the negative. The opinion begins with a quotation from Alexis de Tocqueville who, upon his return to France from a visit to America, remarked: "If I were asked where I place the American aristocracy, I should reply without hesitation ... that it occupies the judicial bench and bar." Setting forth, then, from the point of departure that the public respect which American judges rightly enjoy is of utmost importance to the American judicial system, the opinion traces that respect, in part, to the "apolitical nature of Virginia's judiciary." Form. Op. No. 99-6. Because, in its view, voting in a primary could potentially be perceived by "reasonable people" as a partisan activity likely to interfere with the judge's impartiality, the JEAC concluded that, when judges vote in primaries, they violate Canon 2, which seeks to promote public confidence in the impartiality of the judiciary, and Canon 5, which requires that "a judge shall refrain from political activity inappropriate to the judicial office."
Desirous of participating in forthcoming primary elections without fear of violating the Canons, Plaintiffs Lisa B. Kemler and James C. Clark, substitute judges serving terms in the General District Court of the 18th Judicial Circuit of Virginia,...
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