108 F. Supp.2d 529 (2000) | Cited 0 times | E.D. Virginia | August 11, 2000


Plaintiffs Lisa B. Kemler and James C. Clark, substitute judgesin the state of Virginia, are suing for declaratory andinjunctive relief. They claim that an advisory opinion issued bythe Judicial Ethics Advisory Committee ("JEAC"), which issusceptible of enforcement by the Judicial Inquiry and ReviewCommission ("JIRC") and the Supreme Court of Virginia, violatestheir rights under the First and Fourteenth Amendments to theConstitution of the United States. The advisory opinion takes theview that, to avoid the appearance of impropriety, Virginiajudges must refrain from voting in primary elections. TheDefendants 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 sufficientto support the exercise of jurisdiction by this Court; and (2),even if the Court has jurisdiction, it should abstain fromhearing the case. For the reasons set forth below, Defendants'Motion to Dismiss is GRANTED.


The Canons of Judicial Conduct: Interpretation, Investigation,And Enforcement

To ensure that only persons of the highest ethical standards bemaintained as judges within her judiciary, the Commonwealth ofVirginia provides for the regulation of judicial ethics bycertain rules and procedures. To this end, the Supreme Court ofVirginia promulgated the Canons of Judicial Conduct. The canons,together with the rules promulgated thereunder, are, by the termsof 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 theappearance of impropriety in all of the judge's activities." Theadvisory 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 PoliticalActivity Inappropriate to the Judicial Office." Canon 5.A.,captioned "Political Conduct In General," prohibits judges fromholding office in political organizations, making speeches forsuch organizations, or endorsing or opposing candidates and fundraising for, or making contributions to, political organizationsor candidates. Canon 5.A. (1)(a)-(c). Canon 5.A(2) requires ajudge to resign from office upon becoming a candidate in aprimary or general election, excepting acandidate for a constitutional convention. Finally, Canon 5.A(3)prohibits judges from engaging in "any other political activityexcept 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 Courtof Virginia dated January 5, 1999 ("January 5 Order"), iscomposed of nine members, five of whom are active or retiredjudges, two of whom are attorneys, and two who are laypersons.See id. The JEAC's purpose is "to render advisory opinionsconcerning the compliance of proposed future conduct with theCanons of Judicial Conduct."1 Thus, the JEAC renders informalethical opinions to guide judges who present questions "not ofgeneral substantial interest and continuing to concern to thejudiciary or the public." Any judge whose conduct is subject tothe Canons of Judicial Conduct may request an advisory opinionabout the propriety of his or her conduct or proposed conduct.Id.

According to the January 5 Order, opinions issued by the JEACare advisory. Thus, they are not binding on the two Stateentities that are charged with investigating and regulatingjudicial conduct, the JIRC and the Supreme Court of Virginia,although compliance with an advisory opinion may be consideredevidence of good faith if the JIRC or the Supreme Court were toconclude that an advisory opinion incorrectly approved of conductlater determined to be a violation of the Canons. Also, theJanuary 5 Order makes clear that the JEAC "may not issue anopinion 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 ofVirginia Constitution, is "vested with the power to investigatecharges which would form the basis for retirement, censure orremoval of a judge." Article XI, § 10, Virginia Constitution.JIRC investigates complaints of ethical violations by judges, andmay order and conduct hearings. See Va. Code § 2.1-37.4. TheCode of Virginia sets forth a procedure for conducting hearings,vesting in the JIRC the power to petition for an order compellingtestimony and the production of documents, and for orderingdepositions. If the counsel to the JIRC determines that acomplaint alleges a violation of the Canons of Judicial Conductor forms the basis for retirement, censure, or removal of ajudge, counsel is directed to present the complaint to the JIRCas an inquiry. See Rule 3(A)(4), Rules of the JIRC. If the JIRCdecides 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 ajudge, the JIRC may order a formal hearing on the charge. SeeRule 3(B)(2).

After the JIRC investigates a charge, it may remove the chargefrom its docket, file a complaint against the judge in theSupreme Court of Virginia if it finds the charge to bewell-founded and of sufficient gravity to constitute the basisfor retirement, censure, or removal, or, if the JIRC finds thatthe charge is not of such sufficient gravity, it may advise thejudge of its findings and remove the charge from its docket butconsider the charge with any other future charges against thejudge. The JIRC also has the discretion to meet with a judge todiscuss the allegations informally, and to discuss possiblesolutions. See Rule 4.

If the JIRC finds that a complaint of judicial misconductinvolving a violation of the Canons is well-founded and ofsufficient seriousness to be a basis for retirement, censure orremoval, the JIRC presents a complaint against the judge to theSupreme Court of Virginia. "Upon the filing of a complaint, theSupreme Court shall conduct a hearing in open court and," if theSupreme Court finds "that the judge has engaged in misconductwhile in office,or that he has persistently failed to perform the duties of hisoffice, or that he has engaged in conduct prejudicial to theproper administration of justice, it shall censure him or shallremove him from office." Virginia Const. of 1971, art. VI, § 10.

If the decision of the Supreme Court of Virginia is thought bythe judge to offend the Constitution of the United States, thejudge may appeal to the Supreme Court of the United States. SeeRooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District ofColumbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); seealso Edmonds v. Clarkson, 996 F. Supp. 541 (E.D. Va.J998)

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 itproper for a judge to vote in a primary election?" Opinion No.99-6 answered that query in the negative. The opinion begins witha quotation from Alexis de Tocqueville who, upon his return toFrance from a visit to America, remarked: "If I were asked whereI place the American aristocracy, I should reply withouthesitation . . . that it occupies the judicial bench and bar."Setting forth, then, from the point of departure that the publicrespect which American judges rightly enjoy is of utmostimportance to the American judicial system, the opinion tracesthat respect, in part, to the apolitical nature of Virginia'sjudiciary." Form. Op. No. 99-6. Because, in its view, voting in aprimary could potentially be perceived by "reasonable people" asa partisan activity likely to interfere with the judge'simpartiality, the JEAC concluded that, when judges vote inprimaries, they violate Canon 2, which seeks to promote publicconfidence in the impartiality of the judiciary, and Canon 5,which requires that "a judge shall refrain from politicalactivity inappropriate to the judicial office."

Desirous of participating in forthcoming primary electionswithout fear of violating the Canons, Plaintiffs Lisa B. Kemlerand James C. Clark, substitute judges serving terms in theGeneral District Court of the 18th Judicial Circuit of Virginia,requested reconsideration of the opinion pursuant to thereconsideration protocol included in the January 5 Order. ByOpinion No. 00-1, dated February 1, 2000, JEAC affirmed OpinionNo. 99-6 without discussion.

Plaintiffs contend that, given the publication of Opinion No.99-6, for a judge to vote in a primary election would amount to awillful and knowing act specifically identified as unethical bythe agency of the Supreme Court of Virginia charged withrendering opinions on such issues. That putatively unethical actwould subject the actor to investigation and possible adverseaction by the JIRC, including the filing of a complaint with theSupreme Court of Virginia, which, in turn, could lead to serioussanction or impeachment. Plaintiffs also assert that, in anyevent, they risk public approbation and damage to theirprofessional and public reputations if they exercise theirconstitutional right to vote in Virginia's primary elections.

Concerned not to violate the standard respecting voting inprimary elections, Plaintiffs have refrained from voting inprimary elections or caucuses pending adjudication of thisaction. The Complaint seeks declaratory and injunctive relief,and claims that Opinion No. 99-6, issued by the JEAC andenforceable by the JIRC and the Supreme Court of Virginia, chillstheir right to participate in the electoral process, and therebyviolates the First and Fourteenth Amendments to the Constitutionof the United States.


Defendants motion to dismiss challenges the justiciability ofthe dispute presented in the Complaint, and, alternatively,requests the Court to abstain from adjudicating the dispute underthe doctrine announced in Burford v. Sun Oil Co., 319 U.S. 31563 S.Ct. 1098, 87 L.Ed. 1424 (1943)

I. Issues of Justiciability

Justiciability implicates not only the standing of litigants toassert particular claims, but also the appropriate timing ofjudicial intervention in the dispute presented by the claim. SeeRegional Rail Reorganization Act Cases, 419 U.S. 102, 136-48(1974). These two concepts also are analyzed often under therubrics of standing and ripeness, respectively.

A. Standing

The minimum requirements for individual standing wereexplicated by the Supreme Court of the United States in ValleyForge Christian College v. Americans United for Separation ofChurch & State, Inc., 454 U.S. 464 (1982), wherein the Court madequite clear that:

[A]t an irreducible minimum, Art. III requires the party who invokes the court's authority to [1] "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," . . . and that [2] the injury "fairly can be traced to the challenged action" and [3] "is likely to be redressed by a favorable decision. . . ."

Id. (citations omitted) (emphasis added); see also NaturalResources Defense Counsel, Inc., v. Watkins, 954 F.2d 974, 978(4th Cir. 1992). The requirement that a plaintiff suffer "actualinjury redressable by the court . . . tends to assure that thelegal questions presented to the court will be resolved, not inthe rarified atmosphere of a debating society, but in a concretefactual context conducive to a realistic appreciation of theconsequences of judicial action." Valley Forge, 454 U.S. at 472(internal citations omitted). The Plaintiffs' claims must bemeasured against these standing requirements.

1. Injury-In-Fact

The first element of standing requires that a plaintiff havesuffered an "injury in fact" — that is, an invasion of alegally protected interest which is (a) concrete andparticularized, see Allen v. Wright, 468 U.S. 737 (1984); Warthv. Seldin, 422 U.S. 490, 508 (1975); Sierra Club v. Morton,405 U.S. 727, 740-741, n. 16, (1972); and (b) "actual or imminent,not `conjectural' or `hypothetical,'" Whitmore v. Arkansas,495 U.S. 149, 155 (1990) (quoting Los Angeles v. Lyons, 461 U.S. 95,102 (1983)). Thus, the complainant must allege an injury tohimself that is "distinct and palpable," Warth v. Seldin,422 U.S. 490, 501, as opposed to merely "[a]bstract," O'Shea v.Littleton, 414 U.S. 488, 494 (1974). The litigant must clearlyand specifically set forth facts sufficient to satisfy theseArticle III standing requirements, and a federal court ispowerless to create its own jurisdiction by embellishingotherwise deficient allegations of standing. See Whitmore, 495U.S. at 155.

In O'Shea v. Littleton, supra, the Supreme Court held thatthere was no case or controversy where residents of an Illinoistown sought injunctive relief against a magistrate and a circuitcourt judge whom the plaintiffs claimed were engaged in a patternand practice of illegal bondsetting, sentencing, and jury-feepractices in criminal cases. The Court summarized the claim to be"that if respondents proceed to violate an unchallenged law andif they are charged, held to answer, and tried in any proceedingsbefore petitioners, they will be subjected to the discriminatorypractices that petitioners are alleged to have followed." Id. at497. Thereupon, because it considered the plaintiff's claim tohave drifted "into the area of speculation and conjecture," theCourtheld that there was no cognizable injury-in-fact and henceno case or controversy upon which jurisdiction could stand.

The same principles have been applied to foreclose the exerciseof federal jurisdiction in the face of injury apprehended uponfuture contingencies. For example, there was no standing wherethe plaintiff feared that, in a future encounter with police, theofficers might administer an allegedly illegal "chokehol[d]," LosAngeles v. Lyons, 461 U.S. at 105; where the prospective futurecandidacy of a former Congressman was involved, Golden v.Zwickler, 394 U.S. 103, 109 (1969); and where it was apprehendedthat the police might use deadly force against a person fleeingfrom an as yet unaffected arrest, Ashcroft v. Mattis,431 U.S. 171, 172, n. 2 (1977). Similarly, in Diamond v. Charles,476 U.S. 54 (1986), the Supreme Court rejected a physician's attempt todefend a state law restricting abortions, because his complaintthat fewer abortions would lead to more paying patients was"`unadorned speculation'" insufficient to invoke the federaljudicial power. Id. at 66 (quoting Simon v. Eastern KentuckyWelfare Rights Organization, 426 U.S. at 44)

In the decision urged as most applicable by the Defendants,Renne v. Geary, 501 U.S. 312 (1991), the Supreme Court considereda First Amendment claim asserted by voters, party centralcommittees and committee members challenging a Californiaconstitutional provision which prohibited political parties fromendorsing candidates for nonpartisan office. The Court held thatthe claim was nonjusticiable after concluding that the plaintiffs"desire to endorse, support, and oppose candidates [publicly andin print]," coupled with the voters "desire to read [such]endorsements," was opposed by "no factual record of an actual orimminent application of [the challenged California statute]sufficient to present the constitutional issues in `clean-cut andconcrete form.'" Id. at 321-22. Nor did the record discloseevidence of a credible threat that [the statute] will beenforced. . . . " Id. at 322. In short, the plaintiffs had"failed to demonstrate a live dispute involving the actual orthreatened application of [the statute] to bar speech." Id. at320.

Individually and collectively, those decisions teach thatallegations of possible future injury only rarely will satisfythe standing requirements of Article III. Babbitt v. FarmWorkers, 442 U.S. 289, 298 (1979) (quoting Pennsylvania v. WestVirginia, 262 U.S. 553, 593 (1923)). Standing requirements,however, often have been relaxed where, as here, they arise inthe context of First Amendment claims because of the uniquenature of the amendment, the importance of the rights it secures,and the special body of jurisprudence interpreting it. Therationale for relaxing the standing requirements in the FirstAmendment context has been stated by the Supreme Court asfollows:

Within the context of the First Amendment, the Court has enunciated other concerns that justify a lessening of prudential limitations on standing. Even where a First Amendment challenge could be brought by one actually engaged in protected activity, there is a possibility that, rather than risk punishment for his conduct in challenging the statute, he will refrain from engaging further in the protected activity. Society as a whole then would be the loser. Thus, when there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society's interest in having the statute challenged.

Secretary of State of Maryland v. Joseph H. Munson Co., Inc.,467 U.S. 947, 956 (1984). Thus, over the years the Supreme Courthas held that constitutional violations may arise from thedeterrent, or "chilling," effect of governmental regulationswhich fall short of a direct prohibition against the exercise ofFirst Amendment rights, but which nonetheless impinge on thoserights in an indirect fashion. See Laird v. Tatum, 408 U.S. 1, 11(1972)

For instance, in Lamont v. Postmaster General, 381 U.S. 301(1965), the Court found standing where private individuals wererequired to make special written requests to the Post Office fordelivery of mail containing "communist political propaganda."Similarly, in Baird v. State Bar of Arizona, 401 U.S. 1 (1971),the Court recognized the standing of an applicant to a State barwho was denied admission for her refusal to answer a questionabout the organizations to which she belonged. And, in Baggett v.Bullitt, 377 U.S. 360 (1964), the Court considered a requirementthat prospective employees of a government agency take aparticular oath of "indefinite language," holding that the FirstAmendment may not be inhibited in that way. Equally clear,however, is that:

[i]n none of these cases . . . did the chilling effect arise merely from the individual's knowledge that a governmental agency was engaged in certain activities or from the individual's concomitant fear that, armed with the fruit of those activities, the agency might in the future take some other and additional action detrimental to that individual. Rather, in each of these cases, the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging.

Laird v. Tatum, 408 U.S. 1, 11 (1972) (emphasis added). In Laird,the Court emphasized that these important limitations on standingremain operative even in the context of a First Amendment claim.In Laird, the complainants alleged a chill on the exercise oftheir constitutional rights by the Department of the Army'sgathering of intelligence information related to thecomplainants' participation in civil demonstrations. The Courtheld that the complainants' fear that the Army might someday usethis lawfully-gathered information to round up participants incivil demonstrations did not constitute an injury, and reaffirmedthe rule that "[a]llegations of a subjective `chill' are not anadequate substitute for a claim of specific present objectiveharm or a threat of specific future harm. . . ." Id. at 13-14(quoting United Public Workers of America (C.I.O.) v. Mitchell,330 U.S. 75, 89 (1947)). Thus, the decisions which have relaxedthe standing requirement for claims implicating the FirstAmendment have "in no way eroded the `established principle thatto entitle a private individual to invoke the judicial power todetermine the validity of executive or legislative action he mustshow that he has sustained, or is immediately in danger ofsustaining, a direct injury as a result of the action. . . ." 13 (quoting Ex parte Levitt, 302 U.S. 633, 634 (1937)

A more recent decision, Meese v. Keene, 481 U.S. 465 (1987),teaches that, where indirect interference with First Amendmentrights is alleged, the plaintiff must put forward proof of a"distinct and palpable" injury. In Keene, a United States citizenwho wished to exhibit three specific Canadian films challengedthe constitutionality of the Foreign Agents Registration Act,under which those three films had been classified as "politicalpropaganda" and thus were made subject to the Act's registration,filing, and disclosure requirements. Plaintiff, an attorney andmember of the California State Senate, alleged that the statutoryclassification deterred him fromexhibiting the films out of a fear that his professional reputationwould suffer adversely were it known that he was engaged in thedissemination of "political propaganda." The Court noted that"[i]f Keene had merely alleged that the appellation deterred himby exercising a chilling effect on the exercise of his FirstAmendment rights, he would not have standing to seek itsinvalidation." Id. at 473.

Keene, however, further had alleged that "his personal,political, and professional reputation would suffer and hisability to obtain re-election and to practice his professionwould be impaired." To support this claim of imminent injury,Keene offered uncontradicted affidavits, one of which describedthe results of a Gallup opinion poll purporting to show that acandidate's screening of three films dubbed "politicalpropaganda" would cause 49.1% of the poll's respondents to beless inclined to vote for him. Another affidavit, from anexperienced political analyst, opined that the screening would"substantially harm his chance for reelection and would adverselyeffect his reputation in the community." Id. at 474. Thus, Keenereaffirms the rule that standing, even in the First Amendmentarena, requires "a claim of specific present objective harm or athreat of specific future harm." Laird, 408 U.S. at 14.

In the present case, Plaintiffs have not established that theyface an actual or imminent injury. Rather, the Complaint allegesthat the Plaintiffs are desirous of taking certain action —i.e., voting in the primary election — but wish not to riskwhat they anticipate might be the consequences of that action.Plaintiffs describe their injury as the "compellednon-participation in the processes of democratic government," andclaim to find themselves "between the Scylla of intentionallyflouting [a stated ethical rule] and the Charybdis of forgoingwhat [they] believe to be constitutionally protected activity inorder to avoid becoming enmeshed in [presumptively unethicalbehavior]." Plaintiffs' Mem. in Opp. at 6 (citing Steffel v.Thompson, 415 U.S. 452, 462 (1974)

Steffel and its progeny are not helpful to the Plaintiffs onthe claims which they assert. In Steffel, a plaintiff appealedthe denial of declaratory relief in an action brought under theFirst and Fourteenth Amendments, in which the Complaint allegedthat the police had twice threatened to arrest the plaintiff fordistributing anti-Vietnam War handbills on the sidewalk of aGeorgia shopping center. Recognizing that its decisions inYounger v. Harris, 401 U.S. 37 (1971), and Samuels v. Mackell,401 U.S. 66 (1971), made clear that "unless bad-faith enforcementor other special circumstances are demonstrated, principles ofequity, comity, and federalism preclude issuance of a federalinjunction restraining enforcement of the criminal statute and,in all but unusual circumstances, a declaratory judgment upon theconstitutionality of the statute." Steffel, 415 U.S. at 454.Steffel then answered the question left open by Samuels, that is,absent a showing of bad-faith enforcement or other specialcircumstance, is federal declaratory relief precluded underprinciples of equity, comity, and federalism where a stateprosecution is threatened but not yet pending? In Steffel, theSupreme Court held that declaratory relief was not precluded insuch circumstances.

It was significant to the Court's finding of an actualcontroversy that the plaintiff had been "twice warned to stophandbilling," 415 U.S. at 459, and threatened with prosecution bythe police; indeed, the parties there stipulated that, ifplaintiff had thrice violated the police order to stop, a warrantwould have issued, and it was conceded by counsel for the policeofficers that arrests would have followed. See 415 U.S. at 455-56& n.4. Thus, remarked the Court, "petitionerhas alleged threats of prosecution that cannot be characterizedas `imaginary or speculative,'" and his "concern with arrest hasnot been `chimerical.'" Id. at 459. "In these circumstances,"the Court held, "it is not necessary that petitioner first exposehimself to actual arrest or prosecution to be entitled to challengea statute that he claims deters the exercise of his constitutionalrights." Id.

Plaintiffs' circumstance is readily distinguished fromSteffel's. Most obviously, Plaintiffs are not challenging acriminal statute, as was Steffel. In fact, Plaintiffs here havenot adequately established that the state administrativestructure which they seek to enjoin compels them to do, or torefrain from doing, anything. They acknowledge that JEAC issuesonly "advisory. opinions concerning the compliance of proposedfuture conduct with the Canons of Judicial Conduct"; and theyadmit that JEAC opinions are not binding on the JIRC, the judges,or the Supreme Court of Virginia. Because JEAC is withoutauthority to initiate disciplinary action based upon the opinionsit issues, Opinion No. 99-6, standing alone, poses no actual orthreatened injury to Plaintiffs.

Plaintiffs similarly have failed to show that the JIRC hasthreatened imminent enforcement of Opinion No. 99-6. In fact,they overlook the multitude of contingencies upon which theirtheory of injury depends. The Defendants argue that the Courtcannot be sure, for instance, that Plaintiffs' vote in a primarywould even be detected by a person (1) with knowledge of OpinionNo. 99-6, who is (2) in a position to levy a charge againstKemler for her act of voting in a primary. That is true, butjudges, of all people, should not take actions they think areinappropriate merely on the premise that the act will goundetected. Therefore, it will be assumed that thosecontingencies are met.

Even so, it remains uncertain whether (3) JIRC counsel wouldpresent the charge to the JIRC as an inquiry, see Rule 3(A)(4)of the JIRC, at which point the JIRC could (4) dismiss the chargeas lacking merit, see Rule 3(A)(6), or (5) proceed with aformal hearing, see Rule 3(B)(2). In this context, the recordis unclear as to whether the JIRC is (6) empowered to "nullify"the advice contained in an advisory ethical opinion on FirstAmendment grounds, and whether the JIRC would ultimately (7)refer a complaint to the Supreme Court of Virginia. If acomplaint is so referred, then it is equally unsettled (8) whatconclusion might be reached in a proceeding before that Court,much less (9) what potential disciplinary action might flowtherefrom.

Plaintiffs seek to sidestep these manifold contingencies,arguing, essentially, that some injury would attach automaticallyupon voting in a primary by virtue of a Virginia judge's ethicalobligation as construed by Opinion No. 99-6. This argument turns,perhaps too narrowly, on a finding that judge's are somehow"different," "[a]lone among regulated professionals," and thattheir obligation to avoid "even the appearance of impropriety"exempts them from the burden of the "ordinary citizen" to sufferconcrete injury in the manner required by Article III's "case orcontroversy" clause before they are entitled to redress in thefederal courts. Put another way, the fact that judges occupypositions which require them to avoid the appearance ofimpropriety (an obligation shared by members of the bar at large)does not change the standing precepts established by the SupremeCourt.

Plaintiffs' showing of injury is also deficient in light ofKeene, supra, wherein the plaintiff alleged more than asubjective chill of his First Amendment rights. Keeneestablished, by affidavits which were uncontradicted, that realinjury to his professional reputation and chances for reelectionwould flow from his screening of films branded "politicalpropaganda." Here, Plaintiffs offer only the public statement ofChief Judge F. Bruce Bach of the Fairfax County Circuit Court tothe effectthat he will no longer vote in primaries because "[i]t's certainlynot important enough to me to run a risk of being in violationof the canons of ethics." Chief Judge Bach's statement refers tothe subjective chill, but not the concrete injury to be sufferedthereby. Thus, because Plaintiffs, rather than establishing aconcrete, imminent injury, have "merely alleged that [OpinionNo. 99-6] deterred [them] by exercising a chilling effect on[their] First Amendment rights," they do "not have standing toseek its invalidation." Keene, 481 U.S. at 473. Accordingly,Plaintiffs' burden to show injury-in-fact has not been met.

2. Injury Traceable to Defendant's Action

The requirement that an injury be traceable to the Defendant'sactions is equally problematic for Plaintiffs. The difficulty inshowing causation derives in part from the bipartiteadministrative structure in which Plaintiffs identify the namedDefendants. For instance, assuming the Plaintiffs were able toshow some impending, concrete injury satisfying the requisites ofArticle III (which they have not), would that injury be traceableto (1) the JEAC's issuance of what is clearly an non-bindingadvisory opinion?, or (2) the JIRC's actual enforcement of ahypothetical violation of the advice rendered by that advisoryopinion, or (3) some combination of these two actions.

None of the parties have addressed the Article III causationissue, but the Defendant-committee members of the JEACpresumably would argue that, because , their opinion isnon-binding, they cannot be held accountable for action taken bythe JIRC. Defendant-committee members of the JIRC, meanwhile,could be expected to argue that they merely "investigate chargeswhich would form the basis for retirement, censure, or removal ofa judge," but are unauthorized to take actual disciplinary actionagainst a judge who has been so charged. Rather, the most severeaction authorized to be taken by the JIRC is the referral of acomplaint to the Supreme Court of Virginia. Again, the causationanalysis is complicated by Plaintiffs' weak showing ofinjury-in-fact, and foreshadows the ripeness problems addressedinfra.

3. Injury Redressable

If the many contingencies set forth above were met so thatPlaintiffs were in fact disciplined by the Supreme Court ofVirginia for their participation in a primary election, thenPlaintiffs' injury would be redressable by a finding that theirFirst Amendment rights were violated by such discipline. Theconclusion that the Plaintiffs would be disciplined, however, isattenuated to the point of speculation by those variouscontingencies.

More importantly, in the proceedings before the JIRC or theSupreme Court of Virginia, the Plaintiffs could present theirFirst Amendment claims as defenses. And, if the JIRC andVirginia's highest court both were to reject those defenses, theconstitutional issues would be reviewable by the Supreme Court ofthe United States. See Rooker v. Fidelity Trust Co., 263 U.S. 413(1923); District of Columbia Court of Appeals v. Feldman,460 U.S. 462 (1983)

In sum, the record here involves the exercise of nogovernmental restriction of speech that is "regulatory,preemptive, or compulsory in nature," Laird v. Tatam, 408 U.S. at11, and the prospect of actual enforcement of Opinion No. 99-6 isso attenuated by intervening contingencies that theinjury-in-fact requirement necessary to support standing is notsatisfied.

B. Ripeness

Defendants argue that Plaintiffs seek resolution of an abstractdispute before any Virginia agency or court has had theopportunity to consider the issuesraised in the Complaint and, indeed, before any Virginia agencyhas taken any action adverse to Plaintiffs or to any other judge.Thus, they contend that the issue is not ripe for adjudication.

For a case or controversy to be ripe for judicial review, itmust involve "an administrative decision [that] has beenformalized and its effects felt in a concrete way by thechallenging parties." Charter Fed. Say. Bank v. Office of ThriftSupervision, 976 F.2d 203, 208 (4th Cir. 1992) (citing PacificGas & Elec. v. State Energy Resources Conservation & DevelopmentComm'n, 461 U.S. 190, 200 (1983)). This description and othersattempt to articulate the holding of the seminal case on thispoint, Abbott Laboratories v. Gardner, 387 U.S. 136 (1967),overruled on other grounds by Califano v. Sanders, 430 U.S. 99(1977). Abbott requires that two questions be asked: (1) are theissues fit for judicial review; and (2) will hardship fall to theparties upon withholding court consideration of the issues? 149. Each question is examined in turn.

1. Fitness

The Fourth Circuit has clarified the first facet of the Abbotttest: "A case is fit for judicial decision where the issues to beconsidered are purely legal ones and where the agency rule oraction giving rise to the controversy is final and not dependentupon future uncertainties or intervening agency rulings." CharterFederal, 976 F.2d at 208 (citing Abbott, 387 U.S. at 149). Thus,a claim is unripe when critical elements are contingent orunknown. See Marusic liquors, Inc. v. Daley, 55 F.3d 258, 261(7th Cir. 1995)

The question of an issue's fitness for judicial decision inturn has two parts: (1) "the agency's interest in crystallizingits policy before that policy is subject to review"; and (2) "thecourt's interest in avoiding unnecessary adjudication and indeciding issues in a concrete setting." Regional ManagementCorp., Inc. v. Legal Serv's Corp., 186 F.3d 457, 465 (4th Cir.1999) (citing City of Houston v. Department of Housing and UrbanDev., 24 F.3d 1421, 1430-31 (D.C. Cir. 1994) (internal quotationmarks omitted). A court must balance these two interests againstthe hardship to the plaintiff from withholding courtconsideration at a given time. See id.

Examples of the ripeness doctrine from Fourth Circuit case lawhelp to elucidate the Abbott analysis. For instance, in CharterFed. Say. Bank v. Office of Thrift Supervision, 976 F.2d 203 (4thCir. 1992), a financial institution sought a ruling from the FDICas to the enforceability of a contract before the FDIC had eventhreatened any action against the institution. The Fourth Circuitfound that "several contingencies separate[d] Charter from athreat of final agency action in this case," and, therefore, heldthat "the tentative nature of the FDIC's involvement rendersCharter's claims not ripe as to the FDIC." Id. at 209. Similarly,in Appalachian Energy Group v. Environmental Protection Agency,33 F.3d 319 (4th Cir. 1994), the Fourth Circuit found thatjudicial review was not proper for a challenge to an internal EPAmemorandum discussing a proposed new permitting system.

In Arch Mineral Corporation v. Babbit, 104 F.3d 660 (4th Cir.1997), the Fourth Circuit adopted a formulation used in the FirstCircuit which is helpful in this context:

[A controversy is] sufficiently particularized . . . [and] final . . . [if it is] at least a firm (and perhaps binding) adoption of a position by the agency with regard to a course of conduct on the part of a member of the regulated industry which does not require further administrative action other than the possible imposition of sanctions.

Id. at 668 (quoting Northeast Airlines, Inc. v. CAB,345 F.2d 662, 664 (1st Cir. 1965)). In Northeast Airlines, the CivilAeronautics Board had taken final action when it issued an ordersetting forth its "interpretation of the [Federal Aviation] Actas applied to the specific facts alleged by Northeast in itspetition." Id. at 664. OSM's presumption of ownership andcontrol, coupled with the fact that Arch had no further evidencewith which to rebut the presumption, constituted a "firm (andperhaps binding) adoption of a position by the agency." Further,if the presumption could not be challenged by new evidence fromArch, the only step left was the imposition of the sanction.

In Roosevelt Campobello International Park v. United StatesEPA, 684 F.2d 1034 (1st Cir. 1982), also cited with approval bythe Fourth Circuit in Arch Mineral, the First Circuit restatedthe rule of Northeast in the converse, holding that an agencyaction was not final "if it makes no change in the status quoitself, but requires "further administrative action other thanthe possible. imposition of sanctions' before rights, obligationsor duties arise." Id. at 1040.

Defendants argue that the unripeness of Plaintiff's action isrevealed by the fact that the act of voting in primaries raisesdistinct and varying ethical concerns depending on thecircumstances surrounding the particular vote. Thus, one judgemay "quietly vote in a primary and argue that no politicalstatement is made by that action," while another judge'sparticipation in a primary may be attended by fanfare, publicstatements, and media attention. Yet another judge might continueto publicly demonstrate his support for a particular party at thestate and national levels. Defendants assert that, for this Courtto rule on the issues raised by the Complaint would be "to renderan advisory opinion, to theorize in a fact-less vacuum, as to theconstitutionality of the Opinion." Def. Mem. at 10. A secondwrinkle of fact argued by Defendants concerns the pledge whichparticipants in recent primaries have been asked to sign, statingtheir obligation to abstain from participating in the primariesof other parties. Other primaries, they contend, requiredifferent pledges, and this variable fact should be ascertainedbefore a court rules on the claims set forth in the Complaint.

Both arguments offer a superficial appeal but each is illusorybecause the challenged JEAC opinion prohibits all primary votingwithout regard to circumstances of the appearances attendant upona particular judge's voting conduct. Hence, the ripenessdetermination cannot be based on that approach.

A third observation supporting the conclusion that Plaintiff'sclaims are not ripe concerns the procedural flexibility of theJIRC investigatory process. Because the JIRC undertakes an"incremental process," — in which it may terminate theinquiry at any stage of review, or may engage in more informaldiscussions to resolve a complaint, or may find it is withoutjurisdiction — to adjudicate the issue now wouldnecessitate speculation about whether there would ever be anyissue to decide. In other words, the case is not "sufficientlyparticularized" and requires "further administrative action otherthan the possible imposition of sanctions," Arch Mineral, 104F.3d at 668. Linking this observation to the rule in RegionalManagement Corp., 186 F.3d at 465, the "agency" can be said tohave a significant "interest in crystallizing its policy beforethat policy is subject to review. . . ."

Nor is "the agency rule or action giving rise to thecontroversy . . . final and not dependent upon futureuncertainties or intervening agency rulings." Charter Federal,976 F.2d at 208 (citing Abbott, 387 U.S. at 149). As discussed,discipline of the Plaintiffs by the Supreme Court of Virginia isdependent upon numerous contingencies.

Finally, it is required that this Court acknowledge its own"interest in avoiding unnecessary adjudication and in decidingissues in a concrete setting." Regional Management Corp., Inc. v.Legal Serv's Corp.,186 F.3d 457, 465 (4th Cir. 1999). Further development of the matter at the JIRC and the Supreme Court of Virginia serves thisend.

When these principles are applied to the facts here, it seemsrather clear that the issues are not yet fit for judicial review.No concrete effect can be felt by the Plaintiffs unless the JIRCand the Supreme Court of Virginia enforce JEAC Opinion No. 99-6.Thus, although the question here is a purely legal one, theopinion can have no effect without future rulings by the JIRC andthe Supreme Court of Virginia. There is no reason to believe thatthe JIRC or the Supreme Court of Virginia would apply Opinion No.99-6 to restrict the rights of, or to impose sanctions on, theCommonwealth's judges without first assessing all First Amendmentimplications of such a course of action. And, those entities nodoubt will consider Opinion No. 99-6 in perspective of the factthat judges in no other state or in the federal system aresubject to strictures of the type which the JEAC thinks areapplicable to Virginia's judges. Certainly, the JIRC and theSupreme Court of Virginia ought to be afforded the opportunity tocrystallize their policy in this important matter, which isperhaps unique among all state interests.

2. Hardship

"[T]he purpose of the `hardship to the parties' analysis is toascertain if the harm that deferring review will cause thepetitioner[] outweighs the benefits it will bring the agency andthe court." West Virginia Highlands Conservancy, Inc. v. Babbit,161 F.3d 797, 801 (4th Cir. 1998) (quoting Eagle-Picher Indus.,Inc. v. EPA, 759 F.2d 905, 918 (D.C. Cir. 1985)). For "deferralto be outweighed, postponing review must impose a hardship on the[plaintiff] that is immediate, direct, and significant." Id. at800 (quoting State Farm Mut. Auto. Ins. Co. v. Dole,802 F.2d 474, 480 (D.C. Cir. 1986). "Whether [the plaintiff's] charges aresufficiently serious under the `hardship to the parties'criterion to warrant immediate review depends upon [the] totalityof the circumstances." Id. at 801 (quoting Atlantic Richfield Co.v. DOE, 769 F.2d 771, 783 (D.C. Cir. 1984) (quotations omitted;second alteration in original)). Also important in the context ofthis action is that, although the threat of criminal penaltymilitates in favor of a finding of hardship, see Navegar, Inc. v.United States, 103 F.3d 994, 999-1002 (D.C. Cir. 1997), threat ofcivil enforcement is considered a hardship that generally doesnot call for judicial intervention. See Lee v. Oregon,107 F.3d 1382, 1391-92 (9th Cir.), cert. denied, 522 U.S. 927 (1997).

Plaintiffs assert that their reluctance to vote in primaryelections for fear of adverse consequences stemming from thepotential enforcement of Opinion No. 99-6 constitutes a hardship,and, further, that they will continue to suffer this hardship solong as this Court defers adjudication of the claims raised intheir complaint. More particularly, Plaintiffs characterize theirhardship as the "compelled non-participation in the processes ofdemocratic government." Pl.'s Opp'n at 6. In support of theirallegation of hardship, Plaintiffs aver that they themselves haverefrained from voting in primaries, and that Chief Judge F. BruceBach of the Fairfax County Circuit Court has publicly stated thathe will refrain from voting in future primaries.

The right to vote is among the most important benefits ofcitizenship. And, contrary to the defendants' assertion, theright to vote is neither less precious, nor less entitled toprotection, because it is cast in a primary election, rather thana general election. In fact, at least in Virginia, the primaryelection often is the election which determines who actually willserve as representatives of the electorate in both the state andfederal governments. Thus, a restriction on voting in a primaryelection presents a deprivation just as great as does arestriction on voting in a general election.

Nothing in Opinion No. 99-6 actually prohibits a judge fromvoting in a primary election. Rather, the effect of Opinion 99-6is to define as unethical conduct the exercise of the right. And,unethical conduct by a judge exposes the judge to several seriousconsequences, including loss of professional and personal respectand reputation, censure, removal from office or denial ofreappointment. Plaintiffs are exposed to these sanctions if, asOpinion No. 99-6 articulates, voting in a primary is unethicalconduct and if Plaintiffs vote in a primary. However, thoseconsequences can be imposed only if, after an investigation inwhich the judges may be heard, the JIRC refers charges and theSupreme Court of Virginia, after affording the judges a hearing,finds that Opinion No. 99-6 is correct.

Whatever hardship may result from deferring judicial review isspeculative. Moreover, the significance of that hardship islessened considerably by the fact that the Plaintiffs faceneither criminal nor civil penalty by virtue of the possibleenforcement of Opinion No. 99-6. In fact, they faceadministrative scrutiny before the JIRC and possible professionalsanction by the Supreme Court of Virginia only if the manycontingencies discussed in Part I.A.1, supra, come to pass.Accordingly, this Court is currently without a "clean-cut andconcrete" record on which to analyze Plaintiffs' claims. In sum,the claims are not ripe because they pass neither the fitness norhardship prongs of the ripeness analysis.2


For the foregoing reasons, Plaintiffs' action isnon-justiciable, and therefore Defendants' Motion to Dismiss isGRANTED and this action is dismissed without prejudice.

The Clerk is directed to send a copy of this Memorandum Opinionto all counsel of record.

It is so ORDERED.

1. January 5 Order, introductory paragraphs.

2. This Court having no jurisdiction to hear the action, it isunnecessary to address Defendants' argument that the Courtabstain.

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