910 F.2d 201 (5th Cir. 1990), 89-2491, Scott v. Flowers

Docket Nº:89-2491.
Citation:910 F.2d 201
Party Name:James M. SCOTT, Jr., Plaintiff-Appellant, v. Robert C. FLOWERS, et al., Defendants-Appellees.
Case Date:August 20, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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910 F.2d 201 (5th Cir. 1990)

James M. SCOTT, Jr., Plaintiff-Appellant,


Robert C. FLOWERS, et al., Defendants-Appellees.

No. 89-2491.

United States Court of Appeals, Fifth Circuit

August 20, 1990

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[Copyrighted Material Omitted]

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Bruce V. Griffiths, Houston ACLU, Houston, Tex., for plaintiff-appellant.

Robin Sanders, Austin, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, GARWOOD, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Today we are asked to decide whether an elected judge may constitutionally be reprimanded for making truthful public statements critical of the administration of the county judicial system of which he is a part. Concluding (1) that such statements address matters of legitimate public concern and (2) that the state's interest in promoting the efficiency and impartiality of its courts does not, under the circumstances of this case, outweigh the plaintiff's countervailing first amendment right to air his views, we reverse the judgment of the district court and remand for further proceedings.



In 1982, plaintiff James M. Scott, Jr., was elected to a four-year term as justice of the peace in Fort Bend County, Texas. As in many states, justices of the peace in Texas occupy the lowest rung of the judicial hierarchy. Their courts have jurisdiction to hear only petty criminal prosecutions (such as traffic violations), actions for forcible entry and detainer, and other civil cases in which the amount in controversy does not exceed $2,500. See Tex. Const. Art. V, Sec. 19; Tex.Gov't Code Ann. Sec. 27.031. In most Texas counties, Fort Bend among them, justice courts are not courts of record, and parties appealing from their judgments are entitled to a trial de novo in a higher court.

Soon after taking office, Scott became concerned about what he perceived to be an injustice in the administration of the county court system. Apparently, the great majority of defendants who appealed their traffic offense convictions from justice or municipal courts to the Fort Bend County

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Court-at-law during Scott's term in office succeeded in having the charges against them dismissed or the fines sharply reduced. 1 This practice, Scott believed, unfairly allowed those "in the know" to violate the traffic laws repeatedly and with impunity while penalizing less sophisticated individuals who committed the same offenses.

In September 1983, Scott took his concerns to the local government and the citizenry by writing an "open letter" to county officials. In the letter, Scott attacked the district attorney's office and the county court-at-law for dismissing so many traffic ticket appeals and called upon the county officials to offer suggestions to remedy the problem. If the county refused to change this practice, Scott concluded, the public at least should be made aware of it, and the court-at-law "would be really busy then." 2

The letter was circulated to the local press and prompted several newspaper articles. It also attracted the attention of Thomas Culver, one of the judges of the court-at-law, who wrote Scott an angry letter criticizing him for not raising his concerns privately. Eventually, both the newspaper articles and Culver's letter found their way into the files of the Texas Commission on Judicial Conduct (the "Commission"). 3

In November 1983, the Commission's executive director, defendant Robert C. Flowers, advised Scott by letter that he had been the subject of several complaints received by the Commission. 4 Scott responded to the complaints both in writing and in person, having been invited by Flowers to appear informally before the Commission.

On March 19, 1984, the Commission issued a formal public reprimand of Scott. After first acknowledging that Scott's intentions were good and his personal integrity was not at issue, the Commission then chided him for being "insensitive" in certain "written and oral communications" addressed both to the litigants in his courtroom and to the public at large. Such "insensitivity," the Commission stated, was inconsistent with the proper performance of Scott's duties as justice of the peace and served only to "cast public discredit upon the judiciary." The Commission concluded the reprimand with a warning, advising Scott to be "more restrained and temperate in written and oral communications in the future."

Although the Commission failed to cite any examples of Scott's alleged insensitivity

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to litigants, 5 it was quite specific in identifying the public comments it found to be objectionable. The Commission criticized Scott both for his statement in the open letter that the county court-at-law "would be really busy" if the public realized that an appeal of a traffic ticket was tantamount to a dismissal and for his comment to a reporter, in connection with the letter, that "the county court system is not interested in justice." 6


In March 1986, Scott filed this 42 U.S.C. Sec. 1983 action against the members of the Commission, both individually and in their official capacities. He alleged that his open letter, and his comments to reporters in connection with it, were protected speech for which he could not constitutionally be subject to discipline. Scott's complaint sought a declaratory judgment that portions of the reprimand violated his first amendment rights, an injunction ordering the Commission to expunge those offending portions from his record, and attorneys' fees pursuant to 42 U.S.C. Sec. 1988, but did not request any monetary damages.

After the parties had completed discovery, both sides moved for summary

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judgment. In support of its motion, the Commission 7 introduced identical affidavits from nine (a majority) of its members, each stating that while Scott's open letter had been a "substantial factor" in the affiant's decision to vote in favor of reprimand, it had been "by no means the controlling factor." The affidavits were uncontroverted, and, unlike the reprimand itself, listed specific examples of Scott's "insensitivity" to the litigants in his courtroom and explained that those incidents, along with the open letter, had prompted the reprimand.

The Commission argued that the summary judgment record established that Scott would have been reprimanded even if he had not written the open letter or shared his views with reporters and therefore that, under the analysis set forth in Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), he was entitled to no relief even if his public comments were in fact protected speech. Scott responded that Mt. Healthy was inapplicable because he, unlike the plaintiff in that case, did not seek to be placed in a better position because of his constitutionally protected conduct. Moreover, he contended that the summary judgment record amply demonstrated that his statements addressed matters of public concern and that his right to make them was not outweighed by the Commission's asserted interest in maintaining the integrity of the state's judicial system.


The district court granted summary judgment in favor of the Commission. Without citing Mt. Healthy, but apparently relying upon it, the court concluded that Scott would have been reprimanded even if he had not written the open letter and therefore that he was entitled to no relief. The court thus found it unnecessary "to reach the issue of whether Plaintiff's conduct in writing the letter is in fact constitutionally protected activity."


Before addressing the merits of this appeal, we must examine the basis of federal jurisdiction, on our own motion 8 if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.1987). Although none of the parties has directed our attention to it, we of course are aware of the rule proscribing federal district court review of state court judgments, 9 and of its implications for this case in light of Thomas v. Kadish, 748 F.2d 276 (5th Cir.1984), cert. denied, 473 U.S. 907, 105 S.Ct. 3531, 87 L.Ed.2d 655 (1985). There, we extended that rule to deprive the federal district courts of jurisdiction over the claims of individuals who are aggrieved by the judicial acts of state agencies controlled by state courts and who deliberately bypass available channels of state court review.

Accordingly, we must decide in this case whether the Commission's reprimand of Scott was a judicial act, whether the Commission is the agent of the state courts, and finally, whether Scott intentionally refrained from seeking state court review of the Commission's decision. We begin our discussion of these questions with a review of the facts and rationale of Thomas and its predecessor, Feldman.

In Feldman, an applicant who was denied admission to the District of Columbia bar on the ground that he had not graduated from an accredited law school petitioned the District of Columbia Court of Appeals

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for a waiver of that requirement in his case. When his petition was denied, Feldman brought suit in federal district court, seeking (1) a declaratory judgment that the denial of his application violated the fifth amendment and the federal antitrust laws and (2) an injunction ordering the defendants to admit him to the bar. The court dismissed Feldman's claim for lack of subject matter jurisdiction, reasoning that the denial of a waiver by the District of Columbia Court of Appeals was, in effect, a judicial determination by a state's highest tribunal. The United States Court of Appeals for the District of Columbia Circuit reversed and remanded on the ground that the waiver proceedings at issue were not judicial, but rather administrative, in nature...

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