Court: District Court, M.D. Alabama; March 1, 2018; Federal District Court
The court is considering Justice Tom Parker's Renewed Motion for Preliminary Injunction and the Judicial Inquiry Commission's (JIC) Motion for Partial Summary Judgment. Attorney General Steve Marshall supports the JIC's opposition to the injunction. Justice Parker's motion will be partially granted, while the JIC's motion will be denied.
The background involves an investigation of Justice Parker by the JIC related to statements he made during a radio show on October 6, 2015, regarding the implications of the U.S. Supreme Court's Obergefell v. Hodges decision, which invalidated state laws prohibiting same-sex marriage. This discussion occurred amidst ongoing legal questions about marriage in Alabama, including a prior Alabama Supreme Court injunction against issuing marriage licenses to same-sex couples. After Obergefell, the Alabama Supreme Court sought further input on the impact of this ruling on its earlier decisions.
During the radio appearance, Justice Parker highlighted the challenges faced by the Alabama Supreme Court regarding the effectiveness of its prior decisions in light of Obergefell. He argued for the importance of judicial elections to ensure accountability and suggested that states could resist federal rulings like Obergefell as a means of upholding their rights and principles. He drew historical parallels, suggesting that such resistance could lead to a revival of foundational American values.
On October 12, 2015, the Southern Poverty Law Center filed a complaint with the Judicial Inquiry Commission (JIC) regarding Justice Parker's comments made during an interview on a radio show. The JIC informed Justice Parker of its investigation into two allegations: (1) he violated Canon 3A(6) by publicly commenting on a case pending before the Alabama Supreme Court, and (2) his statements undermined public confidence in the judiciary and challenged the Supreme Court's decision in Obergefell v. Hodges.
Justice Parker filed a suit on June 15, 2016, challenging the constitutionality of Alabama Canons of Judicial Ethics 1, 2A, and 3A(6) while the JIC's investigation was ongoing. The court dismissed the case based on Younger abstention, but the investigation was later dropped, prompting the Eleventh Circuit to return the case to determine if it became moot. The court ruled it was not moot because Justice Parker remained subject to the challenged canons, and the capable-of-repetition-yet-evading-review exception applied due to the JIC's propensity to initiate investigations that could chill judges' protected speech.
Justice Parker is now seeking a preliminary injunction to prevent enforcement of Canon 3A(6) against his protected speech, particularly as he campaigns for Chief Justice of the Alabama Supreme Court, aiming to engage in discussions relevant to his candidacy. He claims the JIC's prior investigation has caused him to self-censor. Jurisdiction is established under 28 U.S.C. § 1331, and both personal jurisdiction and venue are uncontested. Justice Parker specifically seeks relief concerning Canon 3A(6), which prohibits judges from commenting on pending court proceedings.
Justice Parker must demonstrate four key elements to succeed in his claim for a preliminary injunction: (1) a substantial likelihood of success on the merits, (2) imminent irreparable injury until the injunction is issued, (3) that the harm he faces outweighs any damage the injunction may cause to the Judicial Inquiry Commission (JIC) and the Alabama Attorney General, and (4) that the injunction aligns with the public interest. A preliminary injunction is considered an "extraordinary and drastic remedy" that requires the movant to meet each of these prerequisites clearly.
The crux of Parker's case challenges Canon 3A(6) as a violation of his First Amendment rights. Both parties agree that this is a free speech issue under the Fourteenth Amendment. However, they diverge in their interpretations: Justice Parker argues that the Canon represents an overbroad, content-based restriction on his political speech, warranting strict scrutiny. In contrast, the Commission claims that Parker's speech concerning pending cases is government speech, which is not protected under the Free Speech Clause. They assert that even if his speech were categorized as his own, it would still be permissible to restrict it as it falls within a traditionally unprotected class of speech. The Commission acknowledges the unusual comparison of a judge's speech about ongoing cases to other unprotected speech categories but maintains that the rationale remains valid.
While historical cases have identified specific categories of unprotected speech, the Supreme Court has cautioned against the arbitrary creation of new categories outside First Amendment protection. Therefore, it is argued that Parker's campaign speech, which relates to voter interests but does not involve specific pending cases, should still be considered protected under the First Amendment.
Only the Supreme Court should tread carefully where district courts might hastily enter. The First Amendment applies to a judicial candidate's speech, and the Commission’s argument that such speech is "quintessential government speech" fails. They reference the Supreme Court's ruling in Pleasant Grove City v. Summum, which deemed certain public monuments as government speech. However, election speeches and campaign-related communications from a sitting Justice are typically private political speech, contrary to the Commission’s position.
The Supreme Court’s rulings in Republican Party of Minnesota v. White and Williams-Yulee v. Florida Bar illustrate this distinction. In White, the Court invalidated a ban on judicial candidates announcing their views on various issues, emphasizing the importance of free expression in the electoral context. In Williams-Yulee, the Court upheld a restriction against judicial candidates personally soliciting campaign funds, focusing on a specific campaign-related issue. Both cases highlight the state's interest in maintaining public confidence in its judicial system, rather than differentiating based on a candidate's incumbency.
The speech restricted by Canon 3A(6) does not qualify as government speech and is not categorized as unprotected speech. This raises questions about the nature of the speech in question, the interests at stake, and the appropriate level of scrutiny to apply, further necessitating an exploration of insights from White and Williams-Yulee.
Justice Scalia, writing for a 5-4 majority in White, addressed the constitutionality of Minnesota's announce clause, which restricted judicial candidates from expressing their views on specific legal questions relevant to their court. This restriction was deemed a content-based prohibition on speech that is central to First Amendment freedoms, specifically regarding the qualifications of candidates for public office. The Court applied strict scrutiny, requiring Minnesota to demonstrate that the restriction was narrowly tailored and served a compelling state interest.
Minnesota argued that the clause aimed to preserve the impartiality of the judiciary and the public's confidence in it. However, the Court found the clause to be both overbroad and underinclusive. It noted that if the goal was to prevent bias against parties, the clause inadequately targeted issues rather than specific parties. Conversely, if it sought to eliminate a judge's preconceptions about legal views, it was ineffective and the state’s interest not compelling. The Court emphasized that, while the First Amendment allows for some regulation of judicial election campaigns, the announce clause failed to meet strict scrutiny standards.
The conclusion underscored that electioneering should not restrict candidates from discussing relevant issues, asserting that such debate is fundamental to the electoral process and First Amendment rights. The government should not determine which issues are worthy of discussion in political campaigns, reinforcing a commitment to open discourse during elections.
Following the White decision, courts invalidated various judicial ethics canons on grounds of being overbroad or underinclusive. Significant cases include Sanders County Republican Central Committee v. Bullock, which struck down Montana's prohibition on political party endorsements for judicial candidates; Carey v. Wolnitzek, which invalidated Kentucky's ban on judicial candidates soliciting campaign funds; and Siefert v. Alexander, which nullified Wisconsin's prohibition on judicial candidates being political party members. Other notable rulings include Jenevein v. Willing, where Texas's "appearance of impropriety" canon failed strict scrutiny, and Weaver v. Bonner, which overturned Georgia's restrictions on misleading public communications from judicial candidates. Pre-White, Butler v. Alabama Judicial Inquiry Commission also invalidated a canon limiting candidates from publicizing potentially misleading information about opponents.
In Williams-Yulee, the Supreme Court addressed Florida's canon that barred judicial candidates from personally soliciting funds while allowing campaign committees to raise money. Chief Justice Roberts, in a 5-4 ruling, reiterated that judges differ from political candidates and that states may regulate judicial campaigns to maintain public confidence in their fairness. The Court deemed Florida's compelling interest in safeguarding this confidence valid and held that the restriction was narrowly tailored. It clarified that candidates could discuss issues freely but could not request funds directly, and emphasized that while underinclusivity could raise concerns, it did not invalidate the restriction. Ultimately, judicial candidates maintain a First Amendment right to campaign speech, which can coexist with a state's interest in preserving judicial integrity without necessitating that candidates be treated like traditional political candidates.
The transition from the Supreme Court's decision in *White* to *Williams-Yulee* represents a significant shift in the application of First Amendment standards, though it does not signify a complete reversal. Tension exists between the two cases, particularly highlighted by Justice Scalia's dissent in *Williams-Yulee*, asserting that the state's tailoring of speech regulations was sufficiently narrow. Key rules emerging from this confluence include:
1. Strict scrutiny applies to speech restrictions.
2. There are rare instances where a speech restriction can survive strict scrutiny.
3. A distinction is drawn between "issues" speech, which relates to cases, and "money" speech, which pertains to ethical considerations in electioneering.
4. Preserving public confidence in judicial integrity is recognized as a compelling state interest.
5. States can regulate judicial elections differently from political elections.
6. Voters have an interest in hearing from judges and judicial candidates.
Regarding the constitutionality of Canon 3A(6), which restricts judges from commenting on pending cases, it is categorized as a content-based restriction. Such restrictions are presumptively unconstitutional unless narrowly tailored to serve compelling state interests. The burden to demonstrate that Canon 3A(6) meets strict scrutiny lies with the Defendants. The stated interest behind Canon 3A(6) is to maintain public confidence in the judiciary's integrity, acknowledged as a compelling state interest by the Supreme Court. The dispute centers on how well the regulation fits this interest.
The interpretation of Canon 3A(6) is crucial for assessing its scope and application. The canon broadly prohibits judges from making public comments on any pending or impending court proceedings, regardless of jurisdiction or the likelihood of the case affecting Alabama courts. This includes any comments unless made in the course of official duties or to inform the public about court procedures. The prohibition extends beyond issues that could determine the outcome of a case and includes political speech during campaigns.
Historically, the American Bar Association (ABA) revised the Model Code of Judicial Ethics to limit such prohibitions to comments that could influence trial fairness, acknowledging the previous language was overly broad and difficult to enforce. While the canon’s reach is extensive, it does not prevent judges from discussing general political or judicial issues unless those discussions relate directly to a specific pending case.
Justice Parker indicated that his desire to freely discuss certain topics is constrained by Canon 3A(6), but the canon does not prohibit him from discussing those topics in isolation from pending cases. The Florida canon allows judicial candidates to engage in discussions on various issues without restriction, as long as they do not solicit funds. The next step is to evaluate whether Canon 3A(6) is narrowly tailored to serve a compelling state interest, with its lack of geographic limits not necessarily undermining its validity.
Justice Scalia's dissent in Williams-Yulee critiques the applicability of a canon restricting judicial candidates from soliciting financial contributions, noting it remains relevant even when the contributor has no chance of appearing before the candidate. While the majority upheld the canon despite its broad nature, Alabama's Canon 3A(6) is deemed less precise than Florida's in-person solicitation ban. The compelling state interest cited in Williams-Yulee was judicial integrity, specifically aimed at preventing public distrust in judges who solicit favors. In contrast, Minnesota's broadly defined interest in "judicial integrity" lacked specificity, leading to an ambiguous rationale for restricting candidates' speech about disputed issues. The Supreme Court highlighted that philosophical generalities provide little clarity to voters without specific examples. Minnesota's rule allowed candidates to obscure their positions on significant public issues, effectively depriving voters of crucial information. Canon 3A(6) restricts discussion on ongoing or impending court proceedings but lacks clarity on other speech restrictions. While certain speech limitations may be justified to maintain judicial integrity and public confidence, it is questioned how these interests apply to discussions about proceedings in distant jurisdictions.
Preserving judicial integrity in Alabama raises questions about the regulation of speech related to pending cases. The document contrasts discussing a case before the Alabama Supreme Court with discussing one before the Supreme Court of Seychelles, questioning the state's justification for prohibiting speech that does not impact case outcomes or fairness. It highlights inconsistencies in Alabama's approach, particularly regarding speech about cases unlikely to come before a sitting judge versus speech about past cases, which is permitted. The state’s restriction on a judge responding to litigant allegations to avoid recusal is also examined, noting that such responses would violate Canon 3A(6) if they concern pending proceedings in other courts.
The Fifth Circuit’s ruling indicates that completely silencing such speech does not enhance public confidence in the judiciary or the right to a fair hearing. The excerpt critiques Alabama’s definition of "proceedings" and "issues," pointing out that while proceedings involve specific legal actions, issues are broader and should be protected under the First Amendment. Tension exists when an issue directly relates to a proceeding. The example of the death penalty illustrates the dilemma: candidates can express general opinions on controversial issues like abortion or the death penalty, but Alabama's restrictions hinder discourse on these topics simply because they arise in a legal context. This limitation suggests a failure to narrowly tailor speech restrictions, which undermines the electorate's interest in understanding candidates' views on significant issues.
The clause in question fails to adequately promote impartiality as it does not limit speech regarding specific parties, but rather pertains to issues, which is protected under the First Amendment. Previous case law indicates that a rule can be problematic if it excessively restricts important speech. Although the Alabama Judicial Ethics Canon is broad, the burden lies with the Defendants to justify its necessity, which they have not done. Alabama's Canon lacks geographic or procedural limitations present in other states, raising concerns about unnecessary restrictions on speech. The Defendants have not successfully demonstrated that less restrictive alternatives would be ineffective. Additionally, Justice Parker's argument regarding the overbreadth of the Canon is supported by the potential for unconstitutional applications that exceed the statute's legitimate aims. This overbreadth is problematic as it may chill protected speech, leading to a substantial likelihood of success in Parker's constitutional challenge to Canon 3A(6). Furthermore, irreparable injury is established, as harm to speech rights, even temporarily, is recognized as irreparable under Eleventh Circuit precedent.
Justice Parker's speech is not considered harmed by the Commission for several reasons: (1) the Judicial Inquiry Commission (JIC) has closed its investigation related to Parker's October 6, 2015 radio interview, with no new investigations anticipated; (2) the prior investigation pertained to comments made about a pending case, which may align with the permissible scope of the Canon; (3) Parker continues to engage in provocative discussions similar to the one that caused prior issues, indicating that his speech has not been practically chilled.
The Supreme Court's precedent states that the diminishment of First Amendment freedoms constitutes irreparable harm, requiring proof that such harm is both threatened and occurring. This standard differs from non-First Amendment contexts, where imminent punishment or investigation might need to be demonstrated. In First Amendment cases, the chilling effect on speech itself constitutes harm that cannot be remedied through monetary damages and must be prevented.
The critical question is whether Canon 3A(6) infringes upon speech. Parker's affidavit lacks clarity regarding what specific speech he believes is restricted by the Canon, though he expresses a desire to discuss matters of public concern. The topics he cites—political theory, judicial roles, constitutional interpretation, and legal history—do not clearly connect to the Canon's prohibitions. While some previous allegations against Parker may relate to constitutional speech, the JIC contends that they do not violate the Canon.
However, it is asserted that (1) Canon 3A(6) likely infringes upon First Amendment rights; (2) the Canon is overly broad and unlawfully restricts certain speech categories; and (3) this broad application threatens to chill First Amendment rights. Consequently, it provides regulators with vague grounds to challenge judicial candidates over speech that addresses public issues rather than strictly judicial proceedings, a concern that aligns with the heightened protections afforded to First Amendment rights.
Failure to safeguard First Amendment rights can deter individuals from exercising those rights. This concern has led the Supreme Court to allow deviations from traditional standing rules in cases involving First Amendment overbreadth, as seen in Broadrick v. Oklahoma. The interpretation and practical application of the Canon by the Commission are central to the dispute, necessitating discovery into the Commission's past actions. The potential for future enforcement of the Judicial Canons that might chill free speech is critical, and the court cannot accept the Commission's claims of future investigations being distant and speculative. The Justice has established a credible threat of irreparable harm due to the Commission's history of prosecution.
The case involves balancing two conflicting principles: the right of public office candidates to express their views and the obligation of judges to decide cases based on the law, free from external commitments. Voters also possess the right to access complete, unfettered information about candidates. The state lacks a legitimate interest in enforcing an unconstitutional ordinance, as there is no irreparable harm in preventing enforcement of laws that infringe on First Amendment rights. While it is essential to protect these rights, this does not mean that the balance of equities favors granting all relief sought by Justice Parker. A preliminary injunction aims to balance these equities rather than definitively resolve the parties' rights. Therefore, the court may tailor its relief to the specific circumstances of the case rather than granting complete relief.
A preliminary injunction must be specifically tailored to address legal violations. In *Cumulus Media, Inc. v. Clear Channel Commc'ns, Inc.*, it is emphasized that granting an injunction is not an all-or-nothing decision; courts have discretion to provide tailored relief that serves the interests of both parties and the public. Justice Parker's proposed injunction against Canon 3A(6) is criticized as being overbroad and underinclusive. It is overbroad because Parker has not demonstrated that the Canon is unconstitutional in all cases, only that it may infringe upon speech regarding pending issues. A broad injunction would allow judges and judicial candidates to comment publicly about ongoing cases, potentially undermining the integrity of Alabama's judicial system during election seasons. The proposal is underinclusive as it only protects Justice Parker, ignoring the potential infringement on the speech rights of his colleagues and other candidates. Courts recognize that overbreadth challenges acknowledge the risk of stifling protected speech of others, which should be considered in granting or denying injunctions. Furthermore, it is illogical to allow Parker to speak freely while his opponents are constrained by the same Canon. Courts typically aim to limit solutions to constitutional flaws without invalidating entire statutes. This approach was exemplified in *Ayotte v. Planned Parenthood of N. New England*, where courts were encouraged to issue targeted injunctions rather than wholesale invalidations of laws.
Justice Parker has sought a preliminary injunction regarding Canon 3A(6) during an election cycle, with implications for both him and his opponents. The court must weigh the potential harm to all parties involved, including the public and the state, in three scenarios: maintaining the current enforcement of Canon 3A(6), completely enjoining it, or finding a compromise. The court ultimately favors granting the injunction with modifications to address probable constitutional issues during the trial. Specifically, while Canon 3A(6) will still apply to judges commenting on Alabama proceedings, it will be enjoined against speech related to proceedings outside Alabama and where comments do not impact the outcome or fairness of Alabama cases.
Regarding bond requirements for the injunction, Rule 65(c) allows the court to determine the necessity of security, and since no bond is requested and no damages are anticipated, the court will not require one. Additionally, no evidentiary hearing will be held for Justice Parker's motion as no party has requested one, and the facts presented are largely undisputed and legal in nature. The Judicial Inquiry Commission (JIC) is also moving for partial summary judgment on the constitutionality of Canon 3A(6), asserting that summary judgment is appropriate when there is no genuine dispute over material facts.
Justice Parker is likely to succeed in his constitutional challenge to Canon 3A(6), warranting a preliminary injunction. Consequently, granting summary judgment to declare the Canon constitutional is inappropriate, as federal courts typically avoid making final judgments on the merits during preliminary injunction proceedings. Justice Parker has submitted a Rule 56(d) declaration indicating he requires further facts to oppose the motion effectively. The court has denied the Defendants' blanket objection to discovery, recognizing that some discovery related to the Judicial Inquiry Commission's (JIC) prior actions is appropriate. As a result, the JIC's motion for partial summary judgment is denied, emphasizing the need for factual development and a trial to reconcile state interests with those of candidates and the voting public.
The court orders that Justice Parker's Motion for a Preliminary Injunction is partially granted, while the JIC's Motion for Partial Summary Judgment and request for an immediate trial are denied. The Defendants are enjoined from enforcing Canon 3A(6) against public comments by judges regarding pending or impending cases in courts outside Alabama, or comments that do not reasonably affect the outcome of proceedings in Alabama. Justice Parker's views on the rule of law and the obligations of state court judges are noted, particularly his concurrence in a related Alabama Supreme Court case, where he criticized the adherence to certain judicial decisions. The Canon emphasizes the importance of judges abstaining from public commentary on pending cases while allowing for official statements regarding court procedures.
A judge is mandated to uphold the law and act in a manner that fosters public trust in the judiciary's integrity and impartiality, as outlined in Ala. Canon of Judicial Ethics 2A. Historical categorizations of speech have often been reassessed, as demonstrated by various Supreme Court cases that affirm protections for lewd, libelous, and profane speech. Notably, Justices Ginsburg and Breyer favored a more lenient standard for judicial elections in Williams-Yulee, contrasted by dissenting justices advocating for strict scrutiny. Following this, the Supreme Court in Reed v. Town of Gilbert declared that content-based laws targeting speech are presumptively unconstitutional unless narrowly tailored to serve compelling state interests.
The distinction between cases like White and Williams-Yulee, both addressing public confidence in the judiciary but focusing on different speech types, suggests that restrictions on judicial campaign speech should not exceed those in other campaigns. Canon 3A(6) applies to candidates, including sitting judges, and mandates adherence to Alabama’s Rules of Professional Conduct. Non-compliance with the Alabama Canons constitutes a disciplinary violation. Other jurisdictions, including federal courts, North Carolina, and Delaware, have similar restrictions prohibiting discussions of the merits of pending matters, a principle rooted in the 1972 Model Code that Alabama continues to follow.
Justice Parker's challenge to Canon 3A(6) indicates that it likely does not meet strict scrutiny standards due to its broad and overinclusive nature, negating the need to further investigate claims of unlawful prior restraint. The potential for the removal of a sitting judge from office during a campaign, pending a Judicial Inquiry Commission (JIC) proceeding, suggests a risk of irreparable harm, as outlined in the Alabama Constitution, which mandates disqualification without salary loss during such proceedings. Federal courts typically do not have the authority to narrow state laws unless the construction is clearly reasonable. However, when providing equitable relief, this limitation is less pertinent. The court may differentiate between improperly construing Canon 3A(6) and legitimately enjoining its enforcement under specific conditions. Equity jurisdiction allows flexibility in crafting remedies tailored to the case's needs, ensuring public interests are safeguarded. Canon 3A(6) applies solely to sitting judges; non-judge candidates are subject to Alabama's professional conduct rules, enforced by the Alabama State Bar, not involved in this case. Consequently, the injunction will primarily impact judicial candidates who are sitting judges. The Eleventh Circuit's precedent binds this case, and the JIC's request to expedite Justice Parker's Motion for a Preliminary Injunction to an immediate trial is denied, allowing for discovery prior to trial.
