American Civil Liberties Union v. The Florida Bar

• Decision Date: 02 September 1993
• Docket Number: No. 91-4138,91-4138
• Citation: 999 F.2d 1486
• Parties: AMERICAN CIVIL LIBERTIES UNION and Larry Schack, Plaintiffs-Appellants, v. THE FLORIDA BAR and The Florida Judicial Qualifications Commission, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1486

999 F.2d 1486

AMERICAN CIVIL LIBERTIES UNION and Larry Schack, Plaintiffs-Appellants, v. THE FLORIDA BAR and The Florida Judicial Qualifications Commission, Defendants-Appellees.

No. 91-4138.

United States Court of Appeals Eleventh Circuit.

Sept. 2, 1993.

James K. Green, W. Palm Beach, FL, Mike Masinter, Law Center, Fort Lauderdale, FL, Jerry G. Traynham, Tallahassee, FL, for plaintiffs-appellants.

George L. Waas, Florida Dept. of Legal Affairs, Barry Richard, Tallahassee, FL, for defendants-appellees.

Appeal from the United States District Court for the Northern District of Florida.

Before KRAVITCH, Circuit Judge, GODBOLD and OAKES ^*, Senior Circuit Judges.

KRAVITCH, Circuit Judge:

Larry Schack ("Schack") and the American Civil Liberties Union ("ACLU") appeal the decision of the district court dismissing their case against the Florida Bar ("Bar") and the Judicial Qualifications Commission ("JQC") on the ground that the claim is moot. In addition, on appeal, both the Bar and the JQC argue that this court does not have jurisdiction to hear the case as no case or controversy exists between the parties. We disagree with both the district court's ruling and defendants' justiciability arguments. Accordingly, we reverse and remand.

I.

At the time this suit was filed, Larry Schack was a Florida lawyer seeking election to the Florida Circuit Court. Today, Larry Schack is a sitting state circuit judge and expects to run for re-election in 1996. ¹ Schack, along with the ACLU, is challenging a provision of the Florida Code of Judicial Conduct that requires candidates for judicial office to "maintain the dignity appropriate to judicial office." Florida Code of Judicial Conduct, Canon 7(B)(1)(a) (1992).

The JQC is charged with enforcing the Code of Judicial Conduct by investigating and recommending to the Supreme Court of Florida any judge who should be removed from office or otherwise sanctioned for a breach of the Code's mandates. See Fla. Const. art. V, § 12. The Bar organizes, licenses and disciplines all persons admitted to practice law in Florida. The Bar was established by the Supreme Court of Florida pursuant to the Court's state constitutional powers and is empowered to enforce the Rules Regulating the Florida Bar. See Fla. Const. art. V, § 15. As a member of the Florida Bar seeking judicial election at the time this suit was filed, Schack was subject to Rule 4-8.2(b) which provides, "A lawyer who is a candidate for judicial office shall comply with the applicable provisions of Florida's Code of Judicial Conduct." Sup.Ct.Fla., Rules Regulating the Florida Bar, Rule 4-8.2(b) (1992).

As a candidate for judicial office, Schack wanted to speak publicly about truthful information regarding his opponent, the incumbent circuit judge. This information included that the opponent had been convicted of leaving the scene of an accident, that he had been the subject of three FBI investigations, and that he had appointed, in his former capacity as state attorney, a chief investigator who was later convicted of assisting a drug smuggler. Schack was concerned, however, that his proposed speech might violate Canon 7(B)(1)(a), as it had been interpreted and enforced by the JQC and the Supreme Court of Florida. He was aware that other candidates for judicial office had run afoul of the JQC by engaging in conduct that, in the opinion of the JQC and the Supreme Court of Florida, did not "maintain the dignity appropriate to judicial office." See In re Inquiry Concerning a Judge, Re: Kay, 508 So.2d 329 (Fla.1987) (sitting state judge publicly reprimanded for funding and mailing sample ballots that closely resembled official ballots, giving the appearance that Republican and Democratic Parties endorsed candidates in non-partisan race); ² In re Inquiry Concerning a Judge, Re: Pratt, 508 So.2d 8 (Fla.1987) (same).

In order to avoid any action by the JQC, Schack sought an advisory opinion from the Committee on Standards of Conduct Governing Judges ("Committee on Standards") as to whether his proposed speech would violate Canon 7(B)(1)(a). The Committee on Standards was established by the Supreme Court of Florida pursuant to the Court's constitutional powers, see Fla. Const. art. V, §§ 2(b) & 15, for the sole purpose of rendering "written advisory opinions to inquiring judges concerning the propriety of contemplated judicial or non-judicial conduct." Petition of Comm. on Standards of Conduct for Judges, 327 So.2d 5 (Fla.1976). ³

At approximately the same time that Schack was inquiring of the propriety of his proposed campaign conduct, another candidate for judicial office, Charles Horn, had filed suit against the Bar and the JQC to enjoin the operation and enforcement of Canon 7(B)(1)(c). This provision of the Code of Judicial Conduct provides in part:

A candidate, including an incumbent judge, for a judicial office ... should not ... announce his views on disputed legal or political issues....

Finding that Horn had established the prerequisites for preliminary injunctive relief, the district court in that case enjoined the operation of Canon 7(B)(1)(c) as against Horn, holding that the canon violated Horn's rights under the First and Fourteenth Amendments to the U.S. Constitution. See American Civil Liberties Union, Inc. v. The Florida Bar, 744 F.Supp. 1094 (N.D.Fla.1990). ⁴

After the Committee on Standards informed Schack that his proposed campaign speech would violate Canon 7(B)(1)(a), and after the district court in the Horn case had enjoined the Bar and the JQC from enforcing Canon 7(B)(1)(c), Schack asked the JQC whether it would enforce Canon 7(B)(1)(a) against him. The JQC refused to render an advisory opinion. ⁵ Thus, with two weeks remaining until the election, Schack was faced with the choice of risking possible disciplinary action by the Bar and the JQC, or self-censoring his proposed campaign speech, despite his belief that this speech was protected under the First Amendment. Instead, Schack, along with the ACLU, sued the Bar and the JQC, seeking a declaratory judgment that Canon 7(B)(1)(a) is unconstitutional on its face and as applied to Schack, and asking that the Bar and the JQC be enjoined from enforcing it.

II.

In response to Schack's and the ACLU's complaint and motion for declaratory and injunctive relief, the Bar argued that its reading of Canon 7(B)(1)(a) would not prohibit Schack from making his proposed campaign speech and stated that it had no intention to enforce Canon 7(B)(1)(a) (through Rule 4-8.2(b) of the Rules Regulating the Florida Bar) against Schack. Thus, the Bar argued, no preliminary injunction was necessary. The Bar did admit, however, that because the Committee on Standards had issued an adverse advisory opinion, a declaratory judgment would be appropriate. ⁶ On that issue, the Bar maintained that Canon 7(B)(1)(a) is constitutional. In its answer, the JQC also asserted that Canon 7(B)(1)(a) could not be used to prevent Schack from following through on his proposed campaign speech. ⁷

After hearing argument, the district court denied the motion for a preliminary injunction, noting that neither the Bar nor the JQC had any intention of enforcing Canon 7(B)(1)(a) against Schack. The court also asked that Schack and the ACLU brief the court as to whether any case or controversy remained to be decided. ⁸ While the motions on case or controversy were pending, Schack was elected Circuit Judge for Martin County, Florida. Without formally ruling on whether a case or controversy existed between the parties, the district court then asked the parties to address the issue of whether Schack's election had rendered the controversy moot. In its final order, the district court concluded that the case had become moot and did not involve the type of harm that was capable of repetition yet evading review.

On appeal, the Bar and the JQC, in addition to arguing that the district court's decision on mootness grounds should be upheld, continue to assert that this court does not have jurisdiction over the appeal as no case or controversy exists between them and appellants as required by Article III of the United States Constitution. Therefore, we will address first whether an actual dispute exists between the parties before turning our attention to whether or not appellants' claim is moot.

III.

Questions concerning the justiciability of a case traditionally take a number of forms: Does this party have standing? Is the cause of action ripe? Is it moot? Is there a real dispute between the parties constituting a case or controversy? Although each of these inquiries has spawned its own jurisprudence, the questions often are interconnected, particularly when, as here, the nature of the controversy is an anticipatory challenge through an action for a declaratory judgment.

The case or controversy requirement must be met throughout the entirety of the proceedings. In this case, there are three critical points at which the case or controversy requirement is called into question: (1) Before Schack and the ACLU filed suit, had they suffered an injury as a result of defendants' actions? (2) After the suit was filed, and after the Bar and the JQC acquiesced in Schack's position, was there still a concrete dispute between the parties? (3) If so, was that real and substantive controversy mooted by the election of Schack to the circuit court bench? Although questions (2) and (3) both appear to ask whether the controversy is moot, they demand different analyses. To answer question (2), we must determine whether the defendants' in-court statements ameliorated plaintiffs' injury. Question (3), on the other hand, involves an intervening event, beyond the control of both parties, and the effects that event has on the nature of the case or controversy. Thus, despite the fact that the election is long over, we must analyze question (2) from a point in time before the election to determine whether Schack and the...