- A 2-1 decision from the 4th US Circuit Court of Appeals denied state Supreme Court Justice Anita Earls' request for an injunction against the North Carolina Judicial Standards Commission.
- The commission is investigating published comments from Earls about North Carolina's judicial system, including Supreme Court operations.
- Earls sought the 4th Circuit's help after US District Judge William Osteen twice denied requests for injunctions at the trial-court level.
The 4th US Circuit Court of Appeals has rejected state Supreme Court Justice Anita Earls’ request for an injunction against North Carolina’s Judicial Standards Commission. The commission is investigating published comments from Earls dealing with court operations.
In a 2-1 order issued Friday, a 4th Circuit panel decided not to block the commission from moving forward with the investigation. Judges Paul Niemeyer and Allison Jones Rushing supported the order. Judge Robert King dissented.
President George H.W. Bush appointed Niemeyer to the Appeals Court. Rushing is a Donald Trump appointee, while Bill Clinton appointed King.
Earls sought the 4th Circuit’s help after US District Judge William Osteen rejected her request for an injunction at the trial court level. Osteen issued two orders — nine days apart — denying Earls’ request.
Earls contends the commission has violated her First Amendment rights. She says a confidential investigation into a complaint about published interview comments has chilled her speech about matters of public concern.
The state justice asked the federal Appeals Court “to pause the Commission’s proceedings so that the Court may consider the important constitutional questions raised here before the Commission proceeds with charges leading to potential discipline for Justice Earls’ speech,” according to a court filing at the Richmond, Virginia-based 4th Circuit.
Earls disputed Osteen’s decision that a legal precedent called “Younger” calls for the federal courts to stay out of the commission’s investigation. “[I]t would deprive Earls of any opportunity for federal court review of her First Amendment claims during the interstitial period between when she received Notice that she was being investigated but before she is charged,” Earls’ lawyers wrote. “It would limit her access to federal court review to the unlikely event of a U.S. Supreme Court certiorari grant after her colleagues on the North Carolina Supreme Court have decided to discipline her for her speech.”
“That abdication of federal jurisdiction is not dictated or warranted under Younger,” the document continued.
The 4th Circuit court filing also took aim at Osteen’s concerns about one statement from Earls’ interview. She described some colleagues as the “conservative bloc” that places its ideology ahead of the “institution.”
“In the end, the district court’s conclusion that the Commission can investigate and potentially recommend punishment based on whether Appellant’s statement constitutes ‘fair political speech,’ impermissibly seeks to create categories within the constitutionally significant definition of core political speech and then delegate the policing of the boundary between ‘fair’ and ‘unfair’ political speech to a governmental body,” Earls’ lawyers wrote. “Appellant’s statement concerning her colleagues’ allegiance to ideology – whether characterized as indecorous, derogatory (presumably only to non-conservatives) or even injudicious – remains core political speech not subject to regulation by the Commission.”
Osteen’s Nov. 30 order denied Earls’ request to block the commission investigation while she appealed to the 4th Circuit.
“[A]fter careful consideration of the applicable factors, both for an injunction, and a stay, this court concludes the motion should be denied,” Osteen wrote. “Even if this court concludes that an alleged First Amendment violation establishes irreparable harm and the Plaintiff’s interest outweighs the Defendants’ interest in an injunction pending appeal, Plaintiff has not established a sufficient likelihood of success on the merits to support entry of a stay.”
“Additionally, for the reasons explained in the order denying the motion for a preliminary injunction, it appears likely that Younger applies and, if so, abstention is required,” Osteen added, citing the “Younger principle” cautioning federal courts against stepping into state judicial proceedings. “Even if Younger does not apply, this court finds Plaintiff has not established a likelihood of success on the merits.”
Osteen issued a 54-page order explaining his initial 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.”