Butler v. Alabama Judicial Inquiry Com'n

Decision Date28 July 2000
Docket NumberNo. Civ.A. 00-D-976-N.,Civ.A. 00-D-976-N.
Citation111 F.Supp.2d 1224
PartiesRobert BUTLER, et al., Plaintiffs, v. The ALABAMA JUDICIAL INQUIRY COMMISSION, et al., Defendants.
CourtU.S. District Court — Middle District of Alabama

James C. Barton, Jr., Johnston, Barton, Proctor & Powell, LLP, Birmingham, AL, Robert Marc Givhan, Johnston, Barton, Proctor & Powell, LLP, Birmingham, AL, for defendants.

William Joseph Baxley, Baxley, Dillard, Dauphin & McKnight, Birmingham, AL, Terry L. Butts, Cervera, Ralph & Butts, Troy, AL, Larry B. Childs, Walston, Wells, Anderson & Bains, LLP, Birmingham, AL, for plaintiffs.

MEMORANDUM OPINION AND ORDER

DE MENT, District Judge.

Before the court is Plaintiffs' Motion For Temporary Restraining Order ("Mot."), filed July 24, 2000, together with a brief in support thereof ("Pl.s' Br."). Defendants filed a Memorandum Of Law In Opposition To Plaintiffs' Motion ("Def.s' Mem.") on July 25, 2000. For the following reasons, the court finds that Plaintiffs' Motion For Temporary Restraining Order is due to be granted in accordance with the terms and conditions set forth herein.

I. JURISDICTION

The court exercises subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1343(3) (civil rights jurisdiction). The Parties do not contest personal jurisdiction or venue.

II. BACKGROUND

Plaintiffs are Justice Harold F. See, Jr. ("Justice See"), an Associate Justice of the Supreme Court of Alabama (Compl.¶ 1); Judge W. Thomas Gaither ("Judge Gaither"), who "previously has served as a District Judge and Circuit Judge in the Third Judicial Circuit of Alabama," and who "is a potential future candidate for a judgeship" (Id. ¶¶ 1, 6); and Robert Butler ("Butler"), "a registered voter in the State of Alabama" who "participates as a voter in judicial elections in Alabama." (Id. ¶¶ 1, 7.) Defendants are the Alabama Judicial Inquiry Commission ("JIC"), JIC's Commissioner, Randall L. Cole, and the following seven members of the JIC: Norman E. Waldrop, Jr.; James M. White; P. Ben McLauchlin, Jr.; Lee E. Portis; David Scott; Greg Sullivan; and J. Mark White. (Id. ¶ 2.)

The Alabama Constitution of 1901, as amended, established the JIC and the Court of the Judiciary to enforce the Alabama Canons of Judicial Ethics. See ALA. CONST. of 1901, amend. 581, §§ 6.17 & 6.18. The Alabama Canons of Judicial Ethics, which were first adopted by the Supreme Court of Alabama in 1976, govern the character and conduct of judges in the State of Alabama and have the force and effect of law. See Alabama Canons of Judicial Ethics Preamble (effective February 1, 1976) ("The Supreme Court of Alabama ... adopts the ... Canons, as a code for judges and a declaration of that which the people of the State of Alabama have a right to expect of them.").

The JIC operates similar to a grand jury. Some of the constitutional duties of the JIC are as follows:

The [JIC] shall be convened permanently with authority to conduct investigations and receive or initiate complaints concerning any judge of a court of the judicial system of this state. The commission shall file a complaint with the Court of the Judiciary in the event that a majority of the members of the commission decide that a reasonable basis exists, ... to charge a judge with violation of any Canon of Judicial Ethics....

See ALA. CONST. of 1901, amend. 581, § 6.17(b).

The Court of the Judiciary, in turn, convenes to hear complaints filed by the JIC. The Court of the Judiciary 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 violation of a Canon of Judicial Ethics...." Id., § 6.18(a).

A judge against whom the JIC has filed a complaint is prohibited by Amendment No. 328, § 6.19, to the Alabama Constitution of 1901 from serving as a judge until final resolution of the complaint by the Court of the Judiciary. See ALA. CONST. of 1901, amend. 328, § 6.19 (providing that "[a] judge shall be disqualified from acting as a judge" during the pendency of a complaint filed by the JIC); (Compl.¶ 17.)

This action arises from a complaint filed by the JIC against Justice See. Justice See currently serves as an Associate Justice on the Supreme Court of Alabama. His term as an Associate Justice expires in January 2003. (Compl.¶ 6.)

In the primary election held on June 6, 2000, Justice See sought the nomination of the Republican party for the highest position on the Supreme Court of Alabama, i.e., the office of Chief Justice. (Id.) Justice See was defeated by Judge Roy Moore ("Judge Moore") in the Republican primary election. Since his defeat, Justice See has continued to serve on the Supreme Court of Alabama in his incumbent position as an Associate Justice. However Justice See will have to run for re-election in 2002, assuming he desires to remain an Associate Justice. (Id.)

Prior to the June 6, 2000 primary election, Justice See actively campaigned. As part of his campaign, Justice See "ran a series of political advertisements on television and radio and in printed materials." (Id. ¶ 7.) As contended in the Complaint, Justice See's advertisements "briefly questioned the record" of Judge Moore. (Id.) According to Justice See, his criticisms of Judge Moore "were true and accurate." (Id.)

However, as alleged in the Complaint, in May 2000, the JIC received a complaint that Justice See's "advertisements pertaining to [Judge Moore's] record of sentencing in drug cases might be in violation of Canon 7B[(2) ] of the Canons of Judicial Ethics." (Id. ¶ 11.) That Canon provides as follows:

(2) 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.

Alabama Canons of Judicial Ethics Canon 7B(2) (effective Jan. 1, 1998); (Compl.¶ 12.)

Thereafter, on July 21, 2000, the JIC filed a three-count complaint with the Court of the Judiciary against Justice See. (Compl.¶ 15, Ex. A.) In general terms, the JIC's complaint alleges that, through his campaign advertisements, Justice See violated Canons 2A and 7B(2). Specifically, Count 1 charges 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)." (Compl., Ex. A, ¶¶ 13-15.) Count 2 alleges 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). (Compl., Ex. A, ¶¶ 16-18.) Count 3 avers 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. (Compl., Ex. A, ¶ 19.) As set forth in Count 3, Justice See allegedly 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)." (Id.) As a result of the filing of the JIC's complaint, Justice See is disqualified "from acting as a judge" (Compl.¶ 17), pursuant to § 6.19 of Amendment No. 328 to the Alabama Constitution of 1901.

On July 24, 2000, Plaintiffs commenced this action by filing the instant Complaint in the United States District Court for the Middle District of Alabama. Plaintiffs claim that Canons 2A and 7B(2), as well as § 6.19 of Amendment No. 328 to the Alabama Constitution of 1901, violate their rights protected under the First Amendment to the United States Constitution, as applicable to the states through the Fourteenth Amendment. In their Complaint, Plaintiffs assert generally that

[a] person does not surrender his constitutional right to freedom of speech when he becomes a candidate for judicial office. The statements made in Justice See's campaign advertisements are core political speech that enjoy the highest protection of the free speech clause of the First Amendment and the due process clause of the Fourteenth Amendment to the United States Constitution.

(Id. ¶ 18.) More specifically, Plaintiffs assert that Canon 7B(2) "on its face is an overbroad and vague prior restraint that chills the free exercise of the right of truthful speech and deprives the citizens of Alabama of the right of full, fair and factual discussion of the qualifications of candidates for judicial office." (Id. ¶ 20.) Further, Plaintiffs contend that Canon 7B(2) "chills the right of free speech of Justice See and Gaither and abridges the right of the citizens of Alabama, including Justice See, Gaither and Butler to receive information about other candidates for judicial office." (Id. ¶ 22.)

In their Complaint, Plaintiffs bring the following five counts against Defendants. In Counts 1 and 2, Plaintiffs set forth facial challenges to Canon 7B(2). Namely, in Count 1, Plaintiffs assert that Canon 7B(2) violates the First and Fourteenth amendments because it is "vague," "overbroad," "chills judicial candidates' free speech," and "deprives the voting public of useful information necessary to an informed choice in a judicial election." (Id. ¶ 27.) In Count 2, Plaintiffs aver that Canon 7B(2) is "overbroad" and, thus, violates the First and Fourteenth...

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