- US District Judge William Osteen heard nearly three hours of arguments Thursday in state Supreme Court Justice Anita Earls' lawsuit against the North Carolina Judicial Standards Commission.
- Earls seeks a preliminary injunction that would block the commission from investigating comments Earls made about matters of public interest.
- Osteen questioned both the timing of the injunction request, along with the likelihood that some of Earls' comments could fall outside the category of protected political speech.
- The judge also questioned the judicial standards group's arguments that federal courts should steer clear of the state court proceeding.
A federal judge could decide soon whether to block North Carolina’s Judicial Standards Commission from investigating state Supreme Court Justice Anita Earls. US District Judge William Osteen heard nearly three hours of arguments Thursday on Earls’ motion for a preliminary injunction against the judicial standards group.
Osteen offered no timeline for his decision about the injunction when he left the courtroom shortly before 5 p.m.
Earls argues that the commission’s investigations into her conduct have chilled her speech about matters of public interest.
Her attorney, Pressly Millen, argued that the commission is looking into political speech that cannot be regulated for its content under the First Amendment to the Constitution.
Osteen took interest in one particular comment that might not enjoy protection. He noted that Earls had been quoted as saying of her newer Supreme Court colleagues: “They talk about themselves as the conservatives. Their allegiance is to their ideology, not the institution.”
If Earls meant that her colleagues placed political beliefs ahead of the standards a judge uses to determine a case, she essentially accused them of violating judicial standards, Osteen suggested. Such an accusation could run afoul of North Carolina’s Code of Judicial Conduct.
Osteen also questioned whether an injunction makes sense at this point in Earls’ lawsuit. The Judicial Standards Commission has launched an investigation of Earls with no final outcome. Most similar investigations lead to cases being dismissed without any impact on the judge or justice, court filings suggested.
Yet Osteen also raised questions for the commission’s lawyers. He mentioned concerns about the “forum” for addressing Earls’ complaints. If the judicial commission recommends any action against the justice, her colleagues would end up deciding whether to punish her through censure or a more severe punishment. That group includes the conservative justices she discussed in the targeted comment.
Osteen suggested the federal courts might offer a better avenue to resolve the dispute.
The commission’s lawyers urged Osteen to abstain from injecting the federal court into a state judicial proceeding. The commission also suggested that its investigation amounted to a “narrowly tailored” approach to the compelling state interest of ensuring state judges do nothing to question the judicial system’s integrity.
In its latest court filing Wednesday, the commission rejected Earls’ arguments about the investigation of comments she made in a published article. The commission oversees compliance with the state Code of Judicial Conduct.
“Most fundamentally, the Commission’s investigation does not implicate the First Amendment,” according to the court filing. “Even assuming the statements in the Article are fully protected speech, to violate the First Amendment, the government still must ‘abridge’ Plaintiff’s right to make them. And the Commission ‘violates no constitutional rights by investigating the circumstances’ of Plaintiff’s comments.”
“[T]o prevail on the merits of a First Amendment violation claim, a plaintiff must establish not only a threat of state action, but also that the state action is sufficiently adverse to chill the speech of a ‘person of ordinary firmness,’” the judicial group argued. “Numerous courts have recognized that neither an investigation nor an accompanying administrative proceeding is sufficient to meet that objective standard — even for private individuals. That conclusion is bolstered by Plaintiff’s position as an elected public official who willingly subjected herself to the Code by running for judicial office.”
Sixteen self-described civil rights organizations and 20 legal ethics professors filed court documents on Oct. 20 supporting Earls.
Meanwhile, Earls submitted multiple new court filings on the same day. One supported her request for a preliminary injunction. The other opposed the commission’s attempt to have Earls’ case dismissed.
“Since the Commission’s investigations into me, I have been constrained at all times to subject my public speech to internal scrutiny and self-censorship in a manner which I never previously did,” Earls said in her most recent court declaration.
She cited her recent decisions to edit the contents of a Yale Law Review article and to decline a request to write for Slate magazine. She also mentioned her decision not to answer an audience question about proposed court rules changes during a September speech for the Greensboro Bar Association.
“In short, I find myself constantly engaging in self-censorship,” Earls said. “This has occurred at a Democratic Party event, at the law school class I teach at the University of North Carolina, at a meeting with the Governor’s Pages who came to learn about our court, and even at church.”
The civil rights groups submitted their brief “in support of the rights of Justice Anita Earls and all jurists to speak publicly on matters concerning the efficacy of the judiciary and its capacity to render justice, including through calls for increased racial and gender diversity on the bench and for education of judges concerning the effects of implicit biases on judicial decision making.”
Led by the left-of-center Lawyers’ Committee for Civil Rights Under Law, the 16 groups listed in the brief include the NAACP, League of Women Voters, and Planned Parenthood.
The 20 legal ethics professors who submitted a separate brief include at least one representative of each of North Carolina’s law schools. The list also features professors at Georgetown, Northwestern, Cornell, and other out-of-state law schools.
“The North Carolina Code of Judicial Conduct provides no basis for the North Carolina Judicial Standards Commission to investigate, much less sanction, Plaintiff for comments she made to a reporter in June 2023,” the law professors wrote. “Relevant ethical rules and principles not only permit but encourage a judge to speak publicly, as Plaintiff did, about the administration of justice in North Carolina. The rules relied upon by the Commission in the Notice of its investigation refer to conduct by a judge that calls into question the judge’s own impartiality, something not implicated here.”
“The Commission’s investigation is likewise improper because it violates Plaintiff’s First Amendment rights,” the law professors added. “As an elected official, Plaintiff has the right, and indeed the obligation, to speak on matters of public concern, as she did here. The chilling effect imposed by this investigation on Plaintiff’s speech—and on the speech of other judges who seek to fulfill their ethical obligations through commentary that may be critical of the judiciary itself—cannot withstand the strict scrutiny mandated for a state’s restrictions on core political speech like that at issue here.”
The Judicial Standards Commission filed paperwork on Oct. 6 to dismiss Earls’ suit and to block her request for a preliminary injunction.
“The Complaint accuses the Commission of ‘target[ing]’ Plaintiff in an attempt to silence Plaintiff’s political speech,” according to a brief supporting the dismissal motion filed Friday in US District Court. “Far from singling out Plaintiff for investigation, however, the Commission regularly considers whether certain speech by judges is consistent with the Code, both through confidential advisory opinions and confidential investigations. The Commission has offered consistent guidance on this topic to judges for years, advising that judges have broad rights in commenting on issues of the day, but that no judge should make unsupported accusations that a colleague is making decisions based on prejudices or biases, rather than the law and facts.”
The judicial standards group acknowledged that it notified Earls on Aug. 15 of a “confidential formal investigation” of statements attributed to her in a published article. The statements “may be read to accuse her colleagues of ‘acting out of racial, gender, and/or political bias in some of their decision-making.’”
“Plaintiff did not respond to the notice. Instead, Plaintiff waived confidentiality and filed this federal lawsuit, asking the Court to terminate the Commission’s ongoing proceeding,” according to the commission’s lawyers. “This lawsuit should be dismissed.”
The 14-member Judicial Standards Commission is chaired by state Appeals Court Judge Chris Dillon. Dillon, a Republican, was initially appointed to the chair’s post by then-Supreme Court Chief Justice Cheri Beasley, a Democrat. Current Chief Justice Paul Newby, a Republican, reappointed Dillon.
The commission now has six Democrats, five Republicans, and three unaffiliated members. They conduct business in two seven-member panels.
The commission offered 283 “confidential, written informal advisory opinions” to judges in 2022. Those opinions offer a “safe harbor” to judges. “The Commission will not recommend to the Supreme Court that a judge be sanctioned based on conduct consistent with an advisory opinion,” executive director Brittany Pinkham declared to the federal court.
That same year the commission had 560 complaints pending against judges across North Carolina. Just 28 reached the formal investigation stage, Pinkham said. An “overwhelming majority” of formal investigations ended with the complaint’s dismissal.
“In 2022, the Commission did not make any recommendations for discipline to the Supreme Court,” Pinkham indicated to the federal court.
Earls’ lawsuit says the commission has initiated two investigations against her this year related to public comments “on the subject of the legal system and the administration of justice.”
The publication Law360 published a June 20 interview titled “North Carolina Justice Anita Earls Opens Up About Diversity.” She was responding to a May 17 article in the North Carolina Bar Association’s publication. That article focused on the race and sex of lawyers arguing cases as the state’s highest court.
“The Commission has indicated that it believes that Justice Earls’ comments on these issues of legitimate public concern potentially violate a provision of the Code which requires judges to conduct themselves ‘in a manner that promotes public confidence in the integrity and impartiality of the judiciary,’” according to the complaint.
The First Amendment “prohibits the Commission, as an arm of the State, from stifling or even chilling free speech, especially core political speech from an elected Justice of the North Carolina Supreme Court,” the complaint added. “The First Amendment allows Justice Earls to use her right to free speech to bring to light imperfections and unfairness in the judicial system. At the same time, the First Amendment prohibits the Commission from investigating and punishing her for doing so.”
Earls argues that the investigation into her comments “bespeaks a callous disregard for the principles of the First Amendment.” She accuses the commission of “threatening judges who speak out about what they view as imperfections or defects in the judicial system and who do so in a measured and nuanced manner. Nothing could be more inimical to the First Amendment.”
The justice labels the August notice part of a “continuing effort to thwart” her free-speech rights. Her complaint cites an earlier investigation in March. It related to comments Earls made about rule changes and a proposed legislative change linked to the state’s courts.
District Judge William Osteen admonished both Earls and the Judicial Standards Commission in September for “inflammatory” language in their court filings.