State Supreme Court Justice Anita Earls is asking a federal judge to issue an injunction against the North Carolina Judicial Standards Commission as she pursues an appeal in her First Amendment lawsuit.
Without an injunction, the commission could decide next week whether to move forward with a formal investigation of Earls’ comments about Supreme Court operations.
US District Judge William Osteen decided on Nov. 21 not to grant an injunction against the commission’s investigation. Earls argued in court filings Monday that Osteen should grant an injunction until the 4th US Circuit Court of Appeals can consider the case.
“The Court should issue an injunction pending appeal to preserve the Fourth Circuit’s ability to review the weighty constitutional issues in dispute,” Earls’ lawyers wrote. “This case is about a disciplinary proceeding concerning core political speech, there are substantial reasons to contend that proceeding is unconstitutional as applied to Plaintiff, and, absent an injunction, Defendant immediately intends to determine whether to proceed to a formal hearing against Plaintiff by December 8, 2023.”
“If that formal hearing goes forward and the Fourth Circuit ultimately agrees that the proceeding as applied to Plaintiff is unconstitutional, then there will be no way to undo the harm Plaintiff has suffered from a disciplinary proceeding that violated her First Amendment rights,” Earls’ lawyers added. “An injunction pending appeal, by contrast, would preserve both parties’ rights while the Fourth Circuit considers these issues.”
Earls’ court filings included a series of emails between her lead attorney, Press Millen, and Patricia Flood, the Judicial Standards Commission’s commission counsel. “Staff is responsible for completing the investigation in time for the panel to be prepared to address the matter as scheduled at the December 8 meeting,” Flood informed Millen on Nov. 17.
A Nov. 22 email from Flood addressed Osteen’s initial decision not to grant an injunction.
“In light of the court’s order from yesterday afternoon, please let me know if Justice Earls would like to schedule an interview,” Flood wrote. “Staff remains available on the mornings of November 27, 28, and 29. If those dates do not work, we could make it work to schedule an interview early in the week of December 4. And regardless of whether Justice Earls chooses to be interviewed, she is still welcome to submit a written response and any relevant materials by December 1.”
Earls argues that the commission’s investigation into her comments has unconstitutionally chilled her speech about matters of public interest.
Osteen issued a 54-page order explaining his decision to reject her initial request for an injunction.
“Plaintiff alleges that the Defendant North Carolina Judicial Standards Commission’s investigation into comments Plaintiff made about her North Carolina Supreme Court colleagues unconstitutionally infringes upon her First Amendment rights,” Osteen wrote. “Plaintiff asserts that her speech has been chilled in several instances when she declined opportunities to speak on topics of diversity and equity since the Commission’s investigation commenced.”
“Defendants, the North Carolina Judicial Standards Commission and its members, argue that the Younger doctrine applies, and this court should abstain from interfering with the investigation,” Osteen wrote, referencing a precedent that suggests federal courts should steer clear of state court proceedings in most instances. “Defendants argue in the alternative that the investigation is narrowly tailored to serve the compelling state interest of maintaining public confidence in the integrity and impartiality of the judiciary.”
“This court finds, for purposes of this motion only at present, that Younger abstention applies at least to preclude entry of the preliminary injunction,” Osteen concluded. “In the alternative, this court finds the motion should be denied because the Commission likely satisfies strict scrutiny.”
‘Strict scrutiny” is a legal term referring to the review a government action faces when a plaintiff alleges an unconstitutional violation of a fundamental right.
Following up on questions he asked during a Nov. 2 hearing in Greensboro, Osteen focused on Earls’ quoted statements in a published interview that “[t]he new members of our court very much see themselves as a conservative bloc. They talk about themselves as ‘the conservatives.’ Their allegiance is to the ideology, not to the institution.”
“It appears to this court, particularly when considering the larger context of other statements made in the Interview and the Interview’s topics, that Plaintiff’s statements at issue could be reasonably interpreted as an accusation that Plaintiff’s ‘conservative bloc’ colleagues unethically prioritize their conservative political principles in some decisions, either administrative, judicial, or both,” Osteen wrote.
If the Judicial Standards Commission’s investigation leads to any recommended action against Earls, the full state Supreme Court would address that recommendation. “[A]ny disciplinary measure implemented against Plaintiff by the North Carolina Supreme Court is subject to direct review by the Supreme Court of the United States,” Osteen wrote. “This ensures that Plaintiff’s First Amendment challenges to the investigation and to Canon 2A can be addressed without the involvement of this court.”
Even without the “Younger abstention,” Osteen “would deny Plaintiff’s motion for a preliminary injunction on the merits.”
The judge rejected Earls’ argument that Canon 2A of the North Carolina Code of Judicial Conduct offers a vague prescription of acceptable and unacceptable behavior.
“These Canons were adopted by the North Carolina Supreme Court and do not appear, at least on their face, difficult for a trained lawyer or jurist to interpret, particularly in light of the fact that the North Carolina Supreme Court has published opinions explaining the application of the Canons in disciplinary proceedings,” Osteen wrote.
It’s not clear to Osteen that all of Earls’ published comments would be protected political speech.
“A justice’s speech carries certain weight due to the authority of, and respect commanded by, the office of North Carolina Supreme Court Justice,” he wrote. “Public criticism by a justice of other justices is different from the same statement by media outlets or citizens in general. While public criticism of other judges by a judge may in some circumstances be fair political speech, an allegation that certain judges may elevate political or other personal ideology over the institution of the North Carolina Supreme Court may diminish the authority and integrity of that Court as a whole.”
The Judicial Standards Commission’s confidential investigation does not strike Osteen as an unacceptable response to Earls’ comments.
“It appears to this court that the Commission’s process of confidentially investigating complaints, either dismissing complaints, conducting confidential investigations, or bringing formal charges, conducting a hearing at which an accused judge has the right to present evidence, and then either dismissing the complaint, issuing a private letter of caution, or recommending that the North Carolina Supreme Court evaluate the matter and issue an appropriate consequence, is narrowly tailored to serve the State’s interest in maintaining the integrity and the appearance of integrity of the judiciary,” Osteen wrote.
“A judge subjects herself to the Code and its Canons upon taking office, and the disciplinary process for handling alleged violations of the Code is done confidentially in a way that does not affect the judge’s public image or daily responsibilities in the early stages of an investigation or if a complaint is dismissed,” he added. “Only if the investigation eventually requires action by the North Carolina Supreme Court does the public learn of a judge’s alleged violation of the Code. The process’s confidentiality until that point, and the confidentiality of the Commission’s investigative records even after that point, is narrowly tailored.”
“The State’s compelling interest would not be served by an impaired system which would permit a judge to say anything on any subject whatsoever without fear of disciplinary reprimand by a body designated to maintain a code of ethics for judges in the State, as would be the case if any judge investigated for speech were able to enjoin the Commission’s confidential investigative process as Plaintiff seeks to do here,” Osteen explained.
The possibility of a commission ruling against Earls is “too speculative” at this point in the process, Osteen added.
“Plaintiff’s argument that her speech is chilled assumes the Commission and the North Carolina Supreme Court are likely to take an adverse, and unconstitutional, action against Plaintiff,” he wrote. “While the potential for an adverse outcome can be enough to support a First Amendment claim, Plaintiff has not shown a likelihood that any potential discipline would be material or unconstitutional. A plausible claim is not sufficient for this court to order the issuance of an injunction.”
There’s no deadline for Osteen to respond to Earls’ request or for the 4th Circuit to take action on Earls’ appeal.
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