Osteen chides Earls, Judicial Standards Commission for ‘inflammatory’ court filings

Image from nccourts.gov

Listen to this story (10 minutes)

  • Federal Judge William Osteen criticized state Supreme Court Justice Anita Earls and the state Judicial Standards Commission on Friday for "inflammatory" language in recent court filings.
  • Osteen granted the commission's request for a 14-day extension to reply to Earls' motion for a preliminary injunction. Osteen rejected Earls' request for a status conference.
  • Earls' lawsuit accuses the commission of launching an investigation that "chills" her speech about matters of public concern.

US District Judge William Osteen has criticized both state Supreme Court Justice Anita Earls and the state Judicial Standards Commission for recent court filings in Earls’ First Amendment lawsuit. Osteen labeled language in the court filings “inflammatory.”

Osteen issued an order Friday granting the commission’s request for a two-week extension to respond to Earls’ motion for a preliminary injunction. The response is due on Oct. 6. Osteen also rejected Earls’ request for a status conference in the case.

Earls accuses the commission of using an investigation to “chill” her speech about matters of public interest. She seeks a preliminary injunction blocking the commission from moving forward with its investigation until her suit is resolved.

Despite his rulings favoring the commission, Osteen’s order chided both parties in the dispute.

“[T]his court has some concern over the preliminary allegations and arguments by the parties at this early stage of the process,” he wrote. “This case is important to Plaintiff and Defendants and should not be marked by irrelevant or unnecessary rhetoric.”

Osteen noted that the commission offered to give Earls advisory opinions about the type of speech permitted under the state’s Code of Judicial Conduct.

“[T]his court does not find Defendants’ offer to provide advisory opinions while simultaneously standing in position of adversary in this case … compelling,” the judge wrote. “Plaintiff is challenging the purported position of Defendants in the allegations of her complaint. The offer by Defendants, even if made in good faith, is not persuasive to this court and is arguably unnecessarily inflammatory even if not intended that way.”

“However, Plaintiff’s response to that offer is not compelling or appropriate either,” Osteen added. “Plaintiff’s characterization of the offer as ‘nothing more than an invitation to participate in an unconstitutional prior restraint of speech in which the speaker must apply to governmental authority,’ is an unnecessary and inflammatory attack on the motives of the Commission and its members. This type of rhetoric before the motion for a preliminary injunction is responded to and before the issues are joined by the filing of an answer does not start this case on an appropriate course to a fair and just resolution.”

“This court will remind all counsel and parties that they are members of the Bar and officers of the court,” the judge warned. “A lawyer has a ‘special responsibility for the quality of justice,’ and should ‘demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials.’”

Earls filed suit on Aug. 29 against the Judicial Standards Commission.

The commission’s attorney filed a motion Wednesday seeking a two-week extension to Oct. 6. Earls filed a document the same day lodging her objection.

“Plaintiff has described the manner in which a series of Commission investigations into her has chilled her First Amendment rights by, among other things, causing her to turn down an invitation to write an article for a national publication, to avoid discussion of the issues of the racial and gender composition of state courts in response to a request to contribute an essay to the Yale Law Review forum, and to refrain from speaking publicly at a meeting of the Equal Access to Justice Commission concerning a proposal to extend a court rule that broadens the pool of advocates available to indigent litigants,” Earls’ lawyers wrote.

“She also described that the effects of the Commission’s investigations have interrupted her ability to perform her job as a Justice of the North Carolina Supreme Court and even to consider whether statements she makes in judicial opinions might subject her to discipline,” Earls’ court filing continued.

Lawyers for the two parties started discussion about the case on Sept. 7, according to Earls’ lawyers. “Plaintiff’s counsel indicated that Plaintiff’s consent to any extension would need to be conditioned on assurances that the Commission would take no further steps on its investigation of Plaintiff pending the Court’s determination of the preliminary injunction motion.”

The commission agreed to delay any action in its investigation until Nov. 1 “at the earliest.” That timeline raised concerns for Earls.

“To be clear, the investigative action apparently contemplated by Defendants is a request for an investigatory interview with Plaintiff,” Earls’ lawyers wrote. “Her decision to participate or not participate in a voluntary investigative interview has potentially significant implications for the outcome of any formal charges against her, as cooperation with the Commission (or corresponding failure to cooperate) is frequently cited as a reason justifying the level of sanction when a violation of the Code of Judicial Conduct is found to have occurred.”

When the commission would not agree to delay its investigation “until the Court rules on the pending preliminary injunction motion,” Earls’ lawyers explained that they would object to the proposed Oct. 6 extension.

“Plaintiff’s proposal concerning an extension was intended to accomplish three things: (1) provide the Commission’s counsel with sufficient time to respond to the preliminary injunction; (2) provide the Court with sufficient time to decide the motion without facing an artificial deadline arbitrarily chosen by the Commission; and (3) minimize the chilling of Plaintiff’s free-speech rights,” Earls’ lawyers wrote.

The commission’s proposal addresses the first item but creates an “artificial” Nov. 1 deadline for an injunction.

“More importantly, the Commission’s proposal ignores the continued chilling of Plaintiff’s free-speech rights,” Earls’ lawyers wrote. “Every day that goes by without an injunction imposes additional, irreparable harm on Plaintiff since the ‘[l]oss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’”

Earls rejected the suggestion that she seek an advisory opinion from the commission. Her lawyers labeled that idea “nothing more than an invitation to participate in an unconstitutional prior restraint of speech in which the speaker must apply to governmental authority before engaging in the proposed communication.”

“The chilling of Plaintiff’s speech is an ongoing harm,” according to Earls’ court filing. “Between the date of this filing and November 1, Plaintiff has committed to seven different public or quasi-public professional speaking engagements, including audiences such as the Greensboro Bar Association, and a women judges panel at Duke University Law School. Each time she speaks publicly, she risks further investigation by the Judicial Standards Commission. She must self-censor beyond what is reasonably expected of a judge in order to protect her right to serve in the office to which she was elected.”

The commission notified Earls on Aug. 15 that she is the subject of an investigation based on an interview published online in June. Earls is seeking an injunction, along with a declaration that the commission’s investigation and possible punishment of her violates her constitutional right to free speech.

Appeals Court Judge Chris Dillon chairs the Judicial Standards Commission. Judge Jeffery Carpenter co-chairs the group. Dillon and Carpenter are Republicans. Earls is a Democrat.

Earls’ suit names the commission and 14 individual members as defendants.

The lawsuit says the commission has initiated two investigations of Earls this year related to her 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.