Butler v. ALABAMA JUDICIAL INQUIRY COM'N

• Decision Date: 15 May 2001
• Citation: 802 So.2d 207
• Parties: Robert W. BUTLER et al. v. ALABAMA JUDICIAL INQUIRY COMMISSION et al.
• Court: Alabama Supreme Court

802 So.2d 207

Robert W. BUTLER et al. v. ALABAMA JUDICIAL INQUIRY COMMISSION et al.

1001119.

Supreme Court of Alabama.

May 15, 2001.

James C. Barton, Robert S. Vance, Jr., R. Marcus Givhan, and Charles A. Powell III of Johnston, Barton, Proctor & Powell, L.L.P., Birmingham, for the Alabama Judicial Inquiry Commission and its members.

William J. Baxley of Baxley, Dillard, Dauphin & McKnight, Birmingham; and Larry B. Childs and Randall D. Quarles of Walston, Wells, Anderson & Bains, L.L.P., Birmingham, for Robert Butler, W. Thomas Gaither, and Harold F. See.

Harold Hampton Boles, Michael L. Edwards, Matthew C. McDonald, Clifford Lee Reeves, Henry E. Simpson, N. Lee Cooper, Warren B. Lightfoot, Crawford S. McGivaren, James W. Gewin, W. Stancil Starnes, and M. Roland Nachman, for amici curiae certain practicing attorneys in the State of Alabama.

BROWN, Justice.

This case is before this Court on three certified questions from the United States Court of Appeals for the Eleventh Circuit.

In the primary election held in June 2000, Justice Harold F. See, Jr., an Associate Justice of the Supreme Court of Alabama, sought the nomination of the Republican party for the office of Chief Justice of the Supreme Court of Alabama. As part of his political campaign, Justice See made comments about the record of another candidate in the primary election, Judge Roy Moore. Thereafter, the Alabama Judicial Inquiry Commission ("JIC") received a complaint that Justice See's comments pertaining to Judge Moore's record of sentencing in drug cases violated Canon 7B.(2) and Canon 2A. of the Alabama Canons of Judicial Ethics.

The Alabama Canons of Judicial Ethics, which are promulgated and adopted by the Supreme Court of Alabama pursuant to its authority under the Alabama Constitution,¹ govern the character and conduct of judges in the State of Alabama and have the force and effect of law. The Alabama Constitution vests enforcement of the Alabama Canons of Judicial Ethics in the JIC. See Ala. Const. of 1901, Amendment No. 581, §§ 6.17 and 6.18. If the JIC determines that a reasonable basis exists for a finding of an ethics violation, the JIC may file a complaint with the Court of the Judiciary ("COJ"). See Ala. Const. of 1901, Amendment No. 581, § 6.17(b). The COJ convenes to hear complaints filed by the JIC and has the "authority, after notice and public hearing ... to remove from office, suspend without pay, or censure a judge, or apply such other sanction as may [be] prescribed by law, for a violation of a Canon of Judicial Ethics." See Ala. Const. of 1901, Amendment No. 581, § 6.18(a). Once the JIC has filed a complaint, a charged judge is prohibited by Ala. Const. of 1901, Amendment No. 328, § 6.19, from serving as a judge until final resolution of the complaint by the COJ. On July 21, 2000, upon finding that a reasonable basis existed to charge Justice See with an ethics violation, the JIC filed a three-count complaint against Justice See with the COJ. That complaint alleged that, through his campaign advertisements, Justice See had violated Canon 7B.(2) and Canon 2A. of the Alabama Canons of Judicial Ethics.

Count 1 of the JIC's complaint specifically alleged that, during his judicial campaign, Justice See distributed "false information" about Judge Moore "either knowing the information to be false or with reckless disregard of whether that information was false," in violation of Canon 7B.(2). Count 2 alleged that Justice See, "in the course of a judicial campaign," disseminated "information" about Judge Moore "knowing that the information would be deceiving or misleading to a reasonable person," in violation of Canon 7B.(2). Count 3 alleged that, "in the course of a judicial campaign," Justice See "failed to respect and comply with the law and to conduct himself in a manner that promotes public confidence in the integrity and impartiality of the judiciary," in violation of Canon 2A. More specifically, Count 3 alleged that Justice See violated Canon 2A. when he, "through his campaign spokesperson, criticized Moore's conduct in not explaining his sentences when an explanation by Moore would have been in violation of Canon 3A(6)."

Pursuant to Ala. Const. of 1901, Amendment No. 328, § 6.19, Justice See was immediately disqualified from judicial duty on the Supreme Court of Alabama, pending the COJ's resolution of the complaint filed by the JIC. On July 24, 2000 (three days after the JIC filed its complaint), Justice See responded by bringing an action against the JIC in the United States District Court for the Middle District of Alabama,² claiming that Canon 7B.(2) and Canon 2A., both facially and as applied, violated his rights protected under the First Amendment to the United States Constitution, as applicable to the states through the Fourteenth Amendment. Justice See also sought a temporary restraining order ("TRO") and a preliminary injunction to prevent enforcement of the Canons against him and to return him to active duty on the Supreme Court of Alabama. The JIC filed a motion to dismiss Justice See's action in the district court, contending that the federal court should abstain from enjoining the state-court proceeding against Justice See based on the dictates of 28 U.S.C. § 2283 ("the Anti-Injunction Act") and the Younger Abstention Doctrine.³

In orders entered on July 28, 2000, and on August 3, 2000, the district court denied the JIC's motion to dismiss and granted the TRO and the preliminary injunction sought by Justice See. Butler v. Alabama Judicial Inquiry Comm'n, 111 F.Supp.2d 1224 (M.D.Ala.2000); and Butler v. Alabama Judicial Inquiry Comm'n, 111 F.Supp.2d 1241 (M.D.Ala.2000). Upon finding that there was a substantial likelihood that Justice See would ultimately prevail on his claim that Canon 7B.(2) and Canon 2A. violated his rights protected under the First Amendment, the district court enjoined the JIC from enforcing the canons and from prosecuting the complaint against Justice See. Id. In addition, the district court prevented the JIC from interfering with Justice See's performance of his judicial duties on the Supreme Court of Alabama.

The JIC then appealed to the United States Court of Appeals for the Eleventh Circuit, arguing that the federal courts should abstain from interfering with the ongoing state proceedings against Justice See (i.e., those in the COJ), and that any federal proceedings on the merits of Justice See's federal constitutional claims should be terminated by application of Younger abstention principles. Stating that it could "properly intervene in a state judicial proceeding only when we are convinced that the state forum is inadequate and [that] we are, for now, uncertain about the adequacy of the state forum for Justice See's federal constitutional challenges," the court of appeals certified the following questions to this Court:

"A. IN A PROCEEDING BEFORE THE ALABAMA COURT OF THE JUDICIARY, CAN A DEFENDANT RAISE AND HAVE DECIDED A CONSTITUTIONAL CHALLENGE TO A JUDICIAL CANON, EITHER AT THE COURT OF THE JUDICIARY OR THROUGH DIRECT REVIEW TO THE SUPREME COURT OR BY OTHER MEANS?

"B. IF SO, HOW DO THE PROCEDURAL RULES GOVERNING THE COURT OF THE JUDICIARY PERMIT A REASONABLY SPEEDY DECISION ON FEDERAL CONSTITUTIONAL ISSUES?

"C. IN A PROCEEDING BEFORE THE ALABAMA COURT OF THE JUDICIARY, CAN THAT COURT OR A HIGHER COURT GRANT, IN THAT PROCEEDING, A STAY OF THE JUDGE'S DISQUALIFICATION PENDING THE OUTCOME OF THAT PROCEEDING OR THE OUTCOME OF THE FEDERAL CONSTITUTIONAL CHALLENGE POSED IN THAT PROCEEDING?"

Butler v. Alabama Judicial Inquiry Comm'n, 245 F.3d 1257, 1265-66 (11th Cir. 2001).⁴

In addition to certifying the three questions, the court of appeals invited this Court to address the question whether Canon 7B.(2) and Canon 2A. violate the First Amendment guarantee of free speech and to remedy federal constitutional defects, if any, we may find in the canons. In footnote 9 of its order, the court of appeals stated:

"We observe that because the Alabama Supreme Court adopted the judicial canons at issue here, the court may also be able to remedy federal constitutional defects, if any, that it may find in the judicial canons challenged by Justice See. Our certification to the Alabama Supreme Court does not preclude this activity. See Pogue v. Oglethorpe Power Corp., 82 F.3d 1012, 1017 (11th Cir. 1996) (certification `offer[s] the state court the opportunity to interpret or change existing law.')."

Butler v. Alabama Judicial Inquiry Commission, 245 F.3d at 1266 n. 9. Because of our answer to the question concerning the federal constitutional defects of Canon 7B.(2) and Canon 2A., we deem the certified questions A. and B. to be moot and we decline to answer certified question C. Our discussion of the constitutionality of the canons follows.

1. Constitutionality of Canon 7B.(2)

Canon 7B.(2) of the Alabama Canons of Judicial Ethics provides as follows:

"Campaign Communications. During the course of any campaign for nomination or election to judicial office, a candidate shall not, by any means, do any of the following:

"Post, publish, broadcast, transmit, circulate, or distribute false information concerning a judicial candidate or an opponent, either knowing the information to be false or with reckless disregard of whether the information is false; or post, publish, broadcast, transmit, circulate, or distribute true information about a judicial candidate or an opponent that would be deceiving or misleading to a reasonable person."

Justice See raises a First Amendment facial challenge to Canon 7B.(2), asserting that that Canon is overbroad and that, as a result, it chills First Amendment speech. After careful consideration of this issue, we conclude that Canon 7B.(2) is indeed facially unconstitutional because it violates the overbreadth doctrine.

"An overbreadth challenge is based on the statute's `possible direct and indirect burdens on speech.'" United States v. Acheson, 195...