Parker v. Judicial Inquiry Comm'n of State

295 F.Supp.3d 1292

Hon. Tom PARKER, Associate Justice, Supreme Court of Alabama, Plaintiff,

v.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.

CASE NO. 2:16–CV–442–WKW

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

Signed March 2, 2018

Horatio G. Mihet, Mathew Staver, Liberty Counsel, Orlando, FL, Phillip Leo Jauregui, Judicial Action Group, Birmingham, AL, for Plaintiff.

Logan Matthews, Robert Ashby Pate, Samuel Holley Franklin, Lightfoot Franklin & White LLC, Birmingham, AL, James William Davis, Laura Elizabeth Howell, State of Alabama Office of the Attorney General, William G. Parker, Jr., Office of the Governor Alabama State Capitol, Montgomery, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

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 , ––– U.S. ––––, 135 S.Ct. 2584, 192 L.Ed.2d 609 (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 , 234 So.3d 458, 465–66, 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 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, 93 S.Ct. 705, 35 L.Ed.2d 147 (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 date: 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.

II. JURISDICTION AND VENUE

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

III. DISCUSSION

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 Jus...