An unusual new Virginia ethics policy that tells judges not to vote in political primaries drew a formal complaint yesterday from three judges and an American Civil Liberties Union attorney, who said the rule violates judges' rights as citizens.
The Virginia Judicial Ethics Advisory Committee issued an opinion Nov. 15 saying judges should not vote in primaries because " 'reasonable' people could easily perceive that a judge who votes in a party primary is unable to act with impartiality."
The opinion affects 377 sitting judges and about 375 substitute judges in Virginia. Although it is officially an advisory opinion, a judge who violates it could be subjected to an ethics investigation, and local judges said they feel bound to obey it.
Yesterday the ACLU of Virginia formally asked the nine-member ethics committee to reconsider, in a three-page letter sent on behalf of three judges.
The new policy "interferes with judges' rights to participate in a representative democracy," said Victor M. Glasberg, the ACLU lawyer who is representing two Northern Virginia substitute judges, James C. Clark and Lisa B. Kemler, and Richmond Circuit Judge James Wilkinson.
"In how many cases does it matter whether somebody is a Democrat or a Republican?" Glasberg said. "You might as well tell someone not to go to church, because religion comes up in court cases, too."
According to the ethics committee opinion, the panel was especially concerned about "firehouse primaries" that require participants to promise they will support only that party's candidate in the general election. But the committee voted 8 to 1 to extend the ban to all political primaries lest citizens be confused.
"In Virginia, you ought to stay out of politics. Certainly don't go and vote for anything where you have to sign a loyalty oath," said Donald H. Kent, general counsel to the Judicial Inquiry and Review Commission, which handles ethics complaints.
Virginia is the only state to tell judges not to vote in primaries, said Cynthia Gray, director of the Center for Judicial Conduct Organizations. Washington state, where judges are elected in nonpartisan elections, considered the issue and concluded that primary voting was acceptable, she said.
Judges in Virginia, 10 other states and the District of Columbia are appointed and never face election of any kind, according to the American Judicature Society.
In Maryland, appointed circuit court judges run for reelection and the voters also decide whether to retain appointed appeals court judges. Baltimore City District Judge Charlotte Cooksey, who heads the state's ethics panel, said through a spokeswoman that the question of whether judges should vote in primaries has not come up.
D.C. Superior Court judges and federal judges around the country, who are also appointed, face no such restrictions.
"Judges in the District can and do vote in the primaries, and no one has ever suggested otherwise," said Superior Court Judge Frederick H. Weisberg.
Kent played down the impact of the ethics opinion, saying it was purely advisory. "It doesn't make [voting] a crime. It doesn't even make it a violation of the [written] canons of judicial conduct."
But local judges said they would heed the ruling.
F. Bruce Bach, chief judge of Fairfax County Circuit Court, said that although he has voted in primaries, he won't in the future. "It's certainly not important enough to me to run a risk of being in violation of the canons of ethics," Bach said.
The ethics committee's chairman, Norfolk Circuit Judge Charles E. Poston, said he would ask the committee to consider the ACLU's request. "I expected there to be some discussion" about the opinion, he said.