Earls v. N.C. Judicial Standards Comm'n

• Docket Number: 1:23-cv-734
• Decision Date: 22 November 2023
• Parties: ANITA S. EARLS, Plaintiff, v. NORTH CAROLINA JUDICIAL STANDARDS COMMISSION, et al., Defendants.
• Court: U.S. District Court — Middle District of North Carolina

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ANITA S. EARLS, Plaintiff, v. NORTH CAROLINA JUDICIAL STANDARDS COMMISSION, et al., Defendants.

No. 1:23-cv-734

United States District Court, M.D. North Carolina

November 22, 2023

AMENDED MEMORANDUM OPINION AND ORDER ^[*]

OSTEEN, JR., District Judge.

Before this court is a Motion for Preliminary Injunction, (Doc. 3) filed by Plaintiff, Justice Anita S. Earls. Plaintiff alleges that the Defendant North Carolina Judicial Standards Commission's investigation into comments Plaintiff made about her North Carolina Supreme Court colleagues unconstitutionally infringes upon her First Amendment rights. Plaintiff asserts that her speech has been chilled in several instances when she declined opportunities to speak on topics of diversity and equity since the Commission's investigation commenced.

Defendants the North Carolina Judicial Standards Commission and its members, argue that the Younger doctrine applies and this court should abstain from interfering with the investigation. Defendants argue in the alternative that the investigation is narrowly tailored to serve the compelling state interest of maintaining public confidence in the integrity and impartiality of the judiciary.

This court finds, for purposes of this motion only at present, that Younger abstention applies at least to preclude entry of the preliminary injunction. In the alternative, this court finds the motion should be denied because the Commission likely satisfies strict scrutiny.

I. FACTUAL BACKGROUND

Justice Anita S. Earls (“Plaintiff”) was elected to serve as an Associate Justice of the North Carolina Supreme Court in 2018. (Mem. of L. in Supp. of Mot. for Prelim. Inj. (“Pl.'s Br.”) (Doc. 4) at 2.)^[1] She will seek reelection in 2026. (Id.) The North Carolina Judicial Standards Commission (“the Commission”) is a non-partisan arm of the State of North Carolina tasked with investigating and resolving inquiries concerning the conduct of judges and justices in North Carolina. N.C. Gen. Stat. § 7A-374.1. These inquiries are based on potential violations of the North Carolina Code of Judicial Conduct (“the Code”). N.C. Gen. Stat. § 7A-376(a). The Commission also routinely issues advisory opinions explaining the Code and how judges can conform to it. See N.C. Gen. Stat. § 7A-377(c); see also Rules of the N.C. Jud. Standards Comm'n, Rule 8. Most of these advisory opinions are issued confidentially to the judge who requested them, but some are published and available for review by any judge. See Rules of the N.C. Jud. Standards Comm'n, Rule 6(a), Rule 8(a)(3).

The Commission consists of:

(1) Two Court of Appeals judges, each appointed by the Chief Justice of the Supreme Court;

(2) Two superior court judges, each appointed by the Chief Justice of the Supreme Court;

(3) Two district court judges, each appointed by the Chief Justice of the Supreme Court;

(4) Four judges appointed by the North Carolina General Assembly (one district court and one superior court judge recommended by the President Pro Tempore of the Senate, and one district court and one superior court judge recommended by the Speaker of the House of Representatives); and

(5) Four citizens “who are not judges, active or retired, two appointed by the Governor, and two appointed by the General Assembly . . ., one upon recommendation of the President Pro Tempore of the Senate and one upon recommendation of the Speaker of the House of Representatives.”

N.C. Gen. Stat. § 7A-375; 2023 N.C. Sess. Laws 2023-134 16.20. (a).

The Commission is not authorized to take action for violations of the Code beyond issuing a confidential letter of caution to a judge found by the Commission to be in violation of the Code. N.C. Gen. Stat. § 7A-377(a3). However, the Commission can recommend that the North Carolina Supreme Court issue more serious public action, ranging from reprimands and censures to suspension or removal from the bench. §§ 7A-377(a5); 7A-376(a). Commission investigations are entirely confidential, unless that confidentiality is waived by the judge who is subject to investigation. § 7A-377(a1). Unless confidentiality is waived, the fact that a judge was investigated by the Commission, and subsequently found to be in violation of the Code, would only be made public if the North Carolina Supreme Court determined that a public form of discipline was appropriate. §§ 7A-377(a5), (a6). Plaintiff waived her right to confidentiality in pursuit of filing this action.

A. Plaintiff's Statements at Issue

Plaintiff addressed potential implicit bias and a lack of diversity in the North Carolina appellate courts in a Law360 interview published this past June (“the Interview”). (See Ex. B, (“Interview”) (Doc. 1-2).) In the Interview, Plaintiff made a variety of comments about the North Carolina Supreme Court's administrative operations relating to diversity. (See id. at 2-3.) She noted the lack of any Black law clerks to the Supreme Court justices, and the current Chief Justice's decisions to do away with implicit bias training for judges and dissolve a committee previously established to examine equity and diversity issues in the North Carolina courts. (See id.) In the same Interview, Plaintiff also stated her opinion that litigants predominantly select white male advocates to argue before the Supreme Court on their behalf because the Supreme Court itself is predominantly white and male, and that she often feels treated differently on account of her race, gender, or political party. (Id. at 3, 5.) These and other comments similarly related to the courts' operations do not appear to be the subject of the Commission's investigation.^[2] (See Ex. A, (“Aug. Letter”) (Doc. 1-1) at 2 (“The Commission voted to reopen this investigation based on an interview you since gave to the media in which you appear to allege that your Supreme Court colleagues are acting out of racial, gender, and/or political bias in some of their decision-making.”).)

Alongside these comments and criticisms, Plaintiff's Interview contains certain statements that may reasonably be understood as criticisms directed toward her colleagues on the bench and their political affiliations. Specifically, Plaintiff stated that “[t]he new members of our court very much see themselves as a conservative bloc. They talk about themselves as ‘the conservatives.' Their allegiance is to the ideology, not to the institution.” (Interview (Doc. 1-2) at 3 (emphasis added).) Neither Plaintiff nor the Commission has offered any explanation of the meaning behind Plaintiff's statements by affidavit or pleading. The parties offered thoughts during oral argument, but at this stage of the proceedings the intended meaning is not certain. It appears to this court, particularly when considering the larger context of other statements made in the Interview and the Interview's topics, that Plaintiff's statements at issue could be reasonably interpreted as an accusation that Plaintiff's “conservative bloc” colleagues unethically prioritize their conservative political principles in some decisions, either administrative, judicial, or both.^[3]

B. Commission Investigation

In August 2023, the Commission issued Plaintiff a letter informing her that she is subject to an investigation for her potential violation of Canons 2A and 3A(1) on the basis of the statements she made in the Interview. (Aug. Letter (Doc. 1-1) at 2.) The Commission informed Plaintiff of its belief that her comments in the Interview “appear to allege that your Supreme Court colleagues are acting out of racial, gender, and/or political bias in their decision-making.” (Id. at 2.) The Commission further informed Plaintiff that “a judge should not publicly suggest that another judge before whom litigants are appearing is making decisions based on some improper basis, unless the criticizing judge knows this to be the case.” (Id.) According to the Commission, Plaintiff's statements may have violated the Code because “publicly alleging that another judge makes decisions based on a motivation not allowed under the Canons without some quantum of definitive proof runs contrary to a judge's duty to promote public confidence in the impartiality of the judiciary.” (Id. at 3 (emphasis added).) The Commission's letter informed Plaintiff that at any time during the investigation, she is “entitled to a reasonable opportunity to present any relevant information regarding this matter,” including “any documents, statements, or other information.” (Id.)

A Commission investigation can be opened in one of two ways: “[any] citizen of the State may file a written complaint . . . concerning the qualifications or conduct of any justice or judge . . . and thereupon the Commission shall make such investigation as it deems necessary. The Commission may also make an investigation on its own motion.”^[4] N.C. Gen. Stat. § 7A-377(a). If the Commission determines during its investigation that “a letter of caution is appropriate, it shall issue to the judge a [confidential] letter of caution in lieu of any further proceeding in the matter.”^[5] N.C. Gen. Stat. § 7A-377(a3). On the other hand, the Commission may determine during its investigation that a judge's conduct warrants “disciplinary proceedings,” in which case “the notice and statement of charges filed by the Commission, along with the answer and all other pleadings, remain confidential. Disciplinary hearings ordered by the Commission are confidential, and recommendations of the Commission to the Supreme Court, along with the record filed in support of such recommendations are confidential.” N.C. Gen. Stat. § 7A-377(a5).

Once a disciplinary hearing has been conducted, “[a]t least five members of the Commission must concur in any recommendation to issue a public reprimand,...