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Parker v. Judicial Inquiry Commission of State of Alabama

United States District Court, M.D. Alabama, Northern Division

March 2, 2018

HON. TOM PARKER, Associate Justice, Supreme Court of Alabama, Plaintiff,
JUDICIAL INQUIRY COMMISSION OF THE STATE OF ALABAMA, BILLY C. BEDSOLE, in his official capacity as Chairman of the Judicial Inquiry Commission of the State of Alabama, RANDALL L. COLE, CRAIG S. PITTMAN, DAVID THRASHER, RALPH D. MALONE, KIM J. CHANEY, DAVID A. KIMBERLY, and MAIBETH J. PORTER, in their official capacities as members of the Judicial Inquiry Commission of the State of Alabama, and STEVEN T. MARSHALL, in his official capacity as Attorney General of the State of Alabama, Defendants.


          W. Keith Watkins Chief United States District Judge.

         Before the court are the Renewed Motion for Preliminary Injunction by Plaintiff Justice Tom Parker (Docs. # 82 & 83) and the Motion for Partial Summary Judgment by Defendant Judicial Inquiry Commission (“JIC” or “Commission”) and its individual members (Doc. # 92). Defendant Attorney General Steve Marshall joins and adopts the Commission's opposition to the preliminary injunction motion. (Doc. # 93.) Justice Parker's motion will be granted in part and denied in part, and the JIC's motion will be denied.

         I. BACKGROUND

         As more fully recounted in the court's previous Order (Doc. # 64) on Defendants' motions to dismiss, Justice Tom Parker was investigated by the Judicial Inquiry Commission for comments he gave on a radio talk show on October 6, 2015, as part of his reelection campaign for the Alabama Supreme Court. The topic of discussion was the relationship between federal and state courts, especially as it pertained to the U.S. Supreme Court's decision in Obergefell v. Hodges, 135 S.Ct. 2584 (2015). That decision, which struck down as unconstitutional state laws that excluded homosexual relationships from recognition of marriage, was issued on June 26, 2015.

         During the same period the U.S. Supreme Court was grappling with questions of marriage, so, too, was the Alabama Supreme Court, on which Justice Parker served. See Ex parte State ex rel. Ala. Policy Inst., 200 So.3d 495 (Ala. 2015) (“API”). Indeed, three months before Obergefell came down, the Alabama Supreme Court issued a writ of mandamus enjoining Alabama probate judges from issuing marriage licenses to homosexual couples.[1] Id. at 552. Once Obergefell changed the landscape, the Alabama Supreme Court invited the API parties to submit briefing addressing the effect of the U.S. Supreme Court's decision on the court's injunction. See Moore v. Ala. Judicial Inquiry Comm'n, - So.3d -, 2017 WL 1403696, at *3 (Ala. Apr. 19, 2017) (outlining complex procedural history of API). Nine months later, on March 4, 2016, the Alabama Supreme Court issued its final order in the API case, dismissing all pending motions and petitions. API, 200 So.3d at 561.

         It was during this additional briefing period-after Obergefell but before the Alabama Supreme Court's final order in API-that Justice Parker took to the airwaves. As Justice Parker explained on the radio, “[W]e're [i.e., the Alabama Supreme Court] faced with the question [of] what is the continued effectiveness of that March decision from the Alabama Supreme Court” in the wake of Obergefell. (Doc. # 1-1, at 13.) He continued: “[W]e have right now, before the Alabama Supreme Court, a further petition by those probate judges who were before the court earlier asking that their religious liberty rights be defended. Let's see if our court will rise up and do that.” (Doc. # 1-1, at 13.)

         Justice Parker then argued that unpopular judicial decrees like Obergefell were a result of unelected judges not being accountable to the people, and explained that the answer to this problem was judicial elections, which “keep judges in line.” (Doc. # 1-1, at 15.) This prompted a broader dialogue about federalism, the role of the Tenth Amendment in modern jurisprudence, and the ability of states to serve as “a check on the federal government.” (Doc. # 1-1, at 17.) According to Justice Parker, one check could be a state's refusal to accept the legitimacy of Obergefell, in the same way that Wisconsin refused to accept the U.S. Supreme Court's decision in Dred Scott v. Sandford back in 1857. (Doc. # 1-1, at 11.) Thus, “resisting [the Obergefell] decision could maybe sta[rt] a revival of what we need in this country to return to our original founding principles.”[2](Doc. # 1-1, at 17.)

         On October 12, 2015, the Southern Poverty Law Center filed a complaint with the JIC about Justice Parker's comments. (Doc. # 1-1, 1-2.) The JIC notified Justice Parker that it was opening a judicial conduct investigation based on the complaint, and had decided to investigate the following allegations:

1. In your October 6, 2015 interview on Mr. Bryan Fischer's Focal Point radio show, you violated Canon 3A(6)[3] by publicly commenting on [API], No. 1140460, then pending before the Alabama Supreme Court.
2. You violated Canons 1[4] and 2A[5] by making comments on the Focal Point radio show that undermine the integrity of and public confidence in the integrity of the federal judiciary and the United States Supreme Court's interpretation of the Constitution in Obergefell v. Hodge[s], e.g., suggesting that the Alabama Supreme Court should defy and refuse to give effect to the Supreme Court's decision in Obergefell.

(Doc. # 1-3, at 2.)

         The Commission's investigation was still ongoing when Justice Parker filed this suit on June 15, 2016, challenging Alabama Canons of Judicial Ethics 1, 2A, and 3A(6) as unconstitutional. (Doc. # 1.) After this court granted Defendants' motion to dismiss on Younger abstention grounds and the case was on appeal, the JIC dropped its investigation, and the Eleventh Circuit kicked the case back to this court for a determination of whether dropping the investigation made the whole thing moot. It did not. (Doc. # 64, at 19-23.) The case was (and is) not moot because Justice Parker is still subject to the canons of judicial ethics he challenges, and the capable-of-repetition-yet-evading-review exception applies because “it is alleged that JIC is willing to initiate investigations that chill protected speech of judges”-hence capable of repetition-and the JIC voluntarily ceased its investigation-hence evading review. See Roe v. Wade, 410 U.S. 113, 125 (1973). (Doc. # 64, at 20-23.)

         This sets the stage for Justice Parker's present motion: that the court prevent the whole escapade from happening again by issuing a preliminary injunction enjoining Defendants “from enforcing or applying Canon 3A(6) of the Alabama Canons of Judicial Ethics to Justice Parker's protected speech and conduct under the First Amendment.” (Doc. # 82, at 1.) Such an injunction is required, Justice Parker contends, because he is currently campaigning for the position of Chief Justice of the Alabama Supreme Court (election Dated: November 6, 2018), and he “would like to be able to engage in the discussion of the important matters” related to his candidacy. (Doc. # 83-1, at 3.) “However, because of the recent investigation by the JIC into [his] protected speech and complaints raised by various groups opposed to [his] position on certain matters, [he] ha[s] been chilled, and continue[s] to be chilled in [his] expression, and [he] [is] forced to self-censor.” (Doc. # 83-1, at 3.) He does not seek injunctive relief under any other Canon.


         Jurisdiction is proper under 28 U.S.C. § 1331. The parties do not contest personal jurisdiction or venue.


         A. Preliminary Injunction

         The sole judicial ethics canon from which Justice Parker seeks immediate equitable relief is Canon 3A(6):

A judge should abstain from public comment about a pending or impending proceeding in any court, and should require similar abstention on the part of court personnel subject to his direction and control. This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court.

         Ala. Canon of Judicial Ethics 3A(6).

         For Justice Parker to prevail, he bears the burden of demonstrating that (1) he has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered until the injunction issues; (3) the threatened harm to him outweighs any damage the injunction might cause the JIC and the Alabama Attorney General; and (4) the injunction would not be adverse to the public interest. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc). Because a preliminary injunction is an “extraordinary and drastic remedy, ” it should not be granted unless “the movant clearly establishes the burden of persuasion as to each of the four prerequisites.” ACLU of Fla., Inc. v. Miami-Dade Cty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009) (quoting All Care Nursing Serv., Inc. v. Bethesda Mem'l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)). The decision to grant or deny a preliminary injunction is within the sound discretion of the district court. Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir. 2002).

         1. Likelihood of Success on the Merits

         a.Whose Speech? Which Scrutiny?

         The parties agree that Justice Parker's challenge to Canon 3A(6) is a First Amendment free speech claim, as incorporated and made applicable to the states by the Fourteenth Amendment. This is where agreement ends. While Justice Parker sees Canon 3A(6) as an overbroad, content-based restriction on his political speech that should be struck down under strict scrutiny, the Commission contends that any speech curtailed by Canon 3A(6) is not protected speech to begin with. This is because any speech by Justice Parker about a pending or impending case is in fact government speech, and the “Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.” (Doc. # 92, at 17 (quoting Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2000) (citations and emphasis omitted)).) Moreover, says the Commission, even if Justice Parker's speech were his own, it would still be proscribable because it falls within the “well-defined and narrowly limited class[] of speech, the prevention and punishment of which ha[s] never been thought to raise any Constitutional problem.” (Doc. # 92, at 20 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942)).) While the Commission admits that “it may seem odd to equate a judge's speech about a pending or impending case with other traditional categories of unprotected speech, ” it is nevertheless “self-evident” that the same factors would apply to make the comparison work. (Doc. # 92, at 21.)

         Suffice it to say, this is not one of those “proposition[s] too self-evident to have been questioned.” McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 413 (1819). Though it is true the Supreme Court once described certain categories of speech as outside the protection of the First Amendment-“the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting' words, ” Chaplinsky, 315 U.S. at 571-72-the Court has been careful to eschew the substitution of that description as an underlying test. See United States v. Stevens, 559 U.S. 460, 470- 72 (2010). Instead, the Supreme Court has since explained its past categorization of unprotected speech as consistent with its normal free speech doctrine, [6] and expressly disclaimed any “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.” Id. at 472. That seems reason enough not to proclaim Justice Parker's campaign speech generally (i.e., speech related to issues of interest to voters but unrelated to a specific pending case or party to a case) as falling outside the orbit of First Amendment protection. As Alexander Pope might have put it, only foolish district courts rush in where the Supreme Court itself fears to tread. See Williams-Yulee v. Florida Bar, 135 S.Ct. 1656, 1667 (2015) (“[T]he First Amendment fully applies to [a judicial candidate's] speech.”).

         The Commission's government-speech argument fares no better. Its argument here is not simply that Alabama may regulate the political speech of its judicial officers-that argument comes later-but that Justice Parker's speech about any pending or impending proceeding is itself “quintessential government speech.” (Doc. # 92, at 18.) It is for this reason the Commission relies on the Supreme Court's decision in Pleasant Grove City v. Summum, 555 U.S. 460, 481 (2009), which held that a city's decision to display certain monuments in a park, and not to display others, was permissible since it was discriminating only among its own speech choices. In reaching the conclusion that the monuments constituted government speech, the Supreme Court explained that, while “[t]here may be situations in which it is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech, ” “this case does not present such a situation”: “Permanent monuments displayed on public property typically represent government speech.” Id. at 470. Here, the inverse is true: While there may be instances in which a sitting Justice on a state's highest court could be seen as speaking on behalf of the government or the judiciary, election speeches and radio interviews made during a political campaign typically represent private political speech.

         This conclusion is buttressed by the Supreme Court's two forays into the world of judicial ethics canons challenged on free speech grounds: Republican Party of Minnesota v. White, 536 U.S. 765 (2002), and Williams-Yulee v. Florida Bar, 135 S.Ct. 1656 (2015). In White, the Court struck down a prohibition on a “candidate for a judicial office, including an incumbent judge, ” from “announc[ing] his or her views on disputed legal or political issues, ” 536 U.S. at 768 (“issues” in the broadest sense: political, legal, social, historical-issues that may be on the minds of voters). In Williams-Yulee, the Court upheld a limitation on “[a] candidate, including an incumbent judge, for a judicial office” from “personally solicit[ing] campaign funds, ” 135 S.Ct. at 1663 (a discrete campaign issue, not likely to be an issue in cases unrelated to campaigns). Although the challengers in both cases were non-incumbent candidates, the Court's discussion in neither case turned on this fact-and it would be strange if it had, as if the line between government and private speech could be based solely on whether a candidate was already a judge. The discussion in both cases keyed on the state's interest in preserving the integrity of state judicial systems in the eyes of the citizenry.

         So if the speech curtailed by Canon 3A(6) is neither government speech nor an unprotected category, what is it, what are the interests involved, and which level of scrutiny applies? Here White and Williams-Yulee are also helpful, but their other lessons require a bit more explication. In White, Justice Scalia, writing for a 5-4 majority, explained that Minnesota's announce clause prohibited “a judicial candidate from stating his views on any specific nonfanciful [i.e., real] legal question within the province of the court [i.e., including cases not presently pending] for which he is running, except in the context of discussing past decisions.” 536 U.S. at 773. This restriction both prohibited speech on the basis of its content and burdened “a category of speech that is at the core of our First Amendment freedoms-speech about the qualifications of candidates for public office.” Id. at 774 (internal quotation marks and citation omitted). Strict scrutiny was therefore appropriate, meaning that Minnesota had the burden of showing that the restriction (1) was narrowly tailored-that it did not “unnecessarily circumscrib[e] protected expression”-and (2) served a compelling state interest. Id. at 775 (alteration in original) (quoting Brown v. Hartlage, 456 U.S. 45, 54 (1982)).

         Minnesota argued that its interests were preserving (1) the impartiality of the state judiciary, and (2) the appearance of the impartiality of the judiciary-the first to protect the due process rights of litigants, the second to instill public confidence in the judicial system. Id. The Supreme Court rejected the suggestion that the announce clause was narrowly tailored to serve these interests, and instead held that the restriction was both overbroad and underinclusive. If the restriction was aimed at preventing bias against parties, then “the clause [was] barely tailored to serve that interest at all, inasmuch as it d[id] not restrict speech for or against particular parties, but rather speech for or against particular issues.” Id. at 776. And if the canon was aimed at preventing a judge's preconception in favor of a particular legal view, then the restriction was woefully underinclusive (and the interest likely not compelling to begin with). Id. at 777-80. Thus, “even if the First Amendment allows greater regulation of judicial election campaigns than legislative election campaigns, the announce clause still fail[ed] strict scrutiny.” Id. at 783. The Court concluded:

[T]he notion that the special context of electioneering justifies an abridgement of the right to speak out on disputed issues sets our First Amendment jurisprudence on its head. “[D]ebate on the qualification of candidates” is “at the core of our electoral process and of the First Amendment freedoms, ” not at the edges. . . . “It is simply not the function of government to select which issues are worth discussing or debating in the course of a political campaign.” We ...

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