Judicial standards group still opposes Earls’ injunction, interview could take place Monday

N.C. Supreme Court Associate Justice Anita Earls listens to oral arguments. Carolina Journal photo by Maya Reagan.

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  • The North Carolina Judicial Standards Commission continues to oppose a federal injunction that would block its investigation into published comments from state Supreme Court Justice Anita Earls.
  • US District Judge William Osteen rejected Earls' initial request for an injunction. Earls asked Osteen a second time to issue an injunction while she appeals her case to the 4th US Circuit Court of Appeals.
  • A series of emails between lawyers for Earls and the commission suggests the justice might grant commission staff an interview as early as Monday.

The North Carolina Judicial Standards Commission continues to oppose an injunction blocking its investigation into published comments from state Supreme Court Justice Anita Earls. Meanwhile, a court filing Thursday suggests Earls might consent to an interview with commission staff next Monday.

Earls is appealing to the 4th US Circuit Court of Appeals. She hopes that court will reverse US District Judge William Osteen’s Nov. 21 decision not to grant her a preliminary injunction against the commission’s investigation. Osteen revised his original order one day later.

The state justice asked Osteen again this week for an injunction. It would last until the 4th Circuit issues its ruling on her appeal. Osteen set a noon deadline Thursday for the judicial standards group to respond.

“Plaintiff’s motion asks the Court to revisit its November 22, 2023, order, in which the Court determined that Plaintiff has not demonstrated a need for the Court to preliminarily enjoin the Judicial Standards Commission’s (Commission) ongoing proceeding,” commission lawyers wrote in their latest filing. “Yet nothing has changed in the intervening days that would warrant a reconsideration of that recent decision.”

“The Commission is continuing with its proceeding exactly as the Court would expect; first by asking to speak with Plaintiff (for about an hour or less), and then by deciding what, if any, action should come next,” the commission’s lawyers explained. “As the Court has already concluded, Plaintiff has not shown that these actions would violate Plaintiff’s constitutional rights and therefore are not likely to cause irreparable harm. The Court’s well-reasoned conclusions are not altered by Plaintiff’s election to challenge them on appeal. Therefore, the Commission asks the Court to deny Plaintiff’s motion.”

Court filings also include an ongoing email exchange between Press Millen, Earls’ lead attorney, and commission counsel Patricia Flood.

“We continue to be of the view that the investigation – and any interview requirement – violates Justice Earls’ First Amendment rights and chills her speech,” Millen wrote on Tuesday. “For that reason, we think that the court(s) should be given the opportunity to rule.”

“In the event that the Commission is not willing to allow that time for a ruling on her motion for a stay, by the district court or the Fourth Circuit, Justice Earls will fully cooperate with the Commission’s investigation, including submitting to an interview, provided it is understood that this is in no way a waiver of her assertion of her right to be free from the unconstitutional suppression of her speech and no waiver of her argument that the investigation itself has a chilling effect on the exercise of her fundamental rights as a citizen, as an elected official, and as a candidate for public office,” Millen added.

A response from Flood offered a list of possible days for an interview in advance of the commission’s Dec. 8 meeting.

“How do you all look for Monday at 1:00 pm?” Millen responded.

In his formal response to the commission’s latest filing, Millen questioned the Dec. 8 date for the commission to address the Eatls investigation.

“The Commission’s December 8, 2023 deadline to determine whether to institute a formal Statement of Charges against Plaintiff is entirely arbitrary,” he wrote. “There is no reason – nor does the Commission suggest that one exists – for why the Commission must proceed against Plaintiff now.”

“There is nothing extraordinary about seeking to preserve the status quo until a legal process to determine the parties’ rights is completed,” Millen added. “By insisting on proceeding at this time, however, the Commission will deprive Plaintiff of an effective opportunity to have the issue of her constitutional rights adjudicated by the Court of Appeals before the status quo changes irreparably. Those rights have been recognized as important by the Court. The application of the law to the largely sui generis facts of this case is also far from straightforward.”

“The Commission mischaracterizes the impact of its decision to force Plaintiff to either refuse to be interviewed, and face being judged uncooperative because she seeks to protect her constitutional rights; or agree to an interview, and thereby effectively waive her assertion of constitutional rights,” the document continued. “Plaintiff and her counsel will spend numerous hours preparing for the interview and preparing a written submission that is also required. There is no reason why the Commission cannot wait some months to proceed against Plaintiff, after these important constitutional issues have been considered by the Court of Appeals.”

Osteen faces no deadline to respond to Earls’ latest request. The 4th Circuit has taken no action yet on Earls’ appeal.

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.”