Pittman v. Cole

Decision Date17 October 2000
Docket NumberNo. Civ.A. 00-0865-CB-L.,Civ.A. 00-0865-CB-L.
Citation117 F.Supp.2d 1285
PartiesCraig PITTMAN, et al., Plaintiffs, v. Randall L. COLE, et al., Defendants.
CourtU.S. District Court — Southern District of Alabama

Joseph M. Druhan, Jr., Mobile, AL, James Bopp, Jr., Terra Haute, IN, for plaintiffs.

Robert E. Lusk, Jr., J. Anthony McLain, Montgomery, AL, A. Danner Frazer, Jr., Mobile, AL, for defendants.


BUTLER, Chief Judge.

This case is before this Court upon Plaintiffs' motion for a preliminary injunction under RULE 65 of the FEDERAL RULES OF CIVIL PROCEDURE to prevent Defendants, Alabama Judicial Inquiry Commission ("JIC") and Alabama State Bar-Office of General Counsel ("ASB"), from enforcing allegedly unconstitutional "enforcement policies" contained in their respective Advisory Opinions in violation of the FIRST AMENDMENT of the UNITED STATES CONSTITUTION ("U.S. CONST.").1 Specifically, this matter comes before this Court on Plaintiffs' Verified Complaint (Doc. 1) and Motion For A Preliminary Injunction (Doc. 3) in addition to Plaintiffs' Motion To Consolidate Hearing On Plaintiffs' Motion For Preliminary Injunction With Trial On The Merits Of Plaintiffs' Verified Complaint (Doc. 5); Defendants' Motion To Dismiss (Doc. 13)2 and Objection To Plaintiffs' Motion To Consolidate (Doc. 16);3 and, Defendants' Objection To Consolidation (Doc. 19)4 and Motion To Dismiss.5 (Doc. 20).6

This Court, cognizant of the importance of this matter and after careful consideration of all the issues, finds and it is hereby ORDERED that the Defendants' Motions to Dismiss are now MOOT as Plaintiffs' Motion For A Preliminary Injunction is due to be GRANTED for the foregoing reasons as follows.

A. Procedural History

On September 26, 2000, Plaintiffs filed a complaint and preliminary injunction motion as well as a motion to consolidate. (Docs. 1, 2, and 5). The JIC and ASB Defendants objected, filing their respective motions to dismiss, oppositions to the preliminary injunction, and objections to consolidation. (Docs. 13, 15, 16, 18-20). On October 10, 2000, this Court held a hearing on the Plaintiffs' requested preliminary injunction and at that time, granted the oral motion made in open court by the Defendants to dismiss Defendants O'Rear, Boyd, Donaldson, and Lazenby, individual members of the Alabama State Bar, from this action (Doc. 32).7

B. Factual History

This action arises out of the Plaintiffs' 2000 candidacy for various judicial seats on the Alabama Court of Civil Appeals and the Alabama Court of Criminal Appeals, as well as from the Christian Coalition of Alabama's ("CCA") desire to publish voter guides regarding judges and judicial candidates.8 Plaintiffs filed this action under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the FIRST and FOURTEENTH AMENDMENTS, contending that the Defendants violated their rights of free speech, as findings included in two Advisory Opinions issued by the Defendants allegedly establish an unconstitutional "as-applied" interpretation of the ALABAMA CANONS OF JUDICIAL ETHICS ("CANONS") resulting in an "enforcement policy"9 which allegedly precludes judges and judicial candidates from responding to, and the CCA from receiving and publishing responses to, the original CCA thirty (30) question survey questionnaire.

The Plaintiffs include: Craig Pittman, Greg Shaw, and Alice Martin, Alabama residents and candidates for statewide judicial offices in Alabama's upcoming November 7, 2000, election;10 the CCA, a non-profit, non-partisan, education and lobbying organization that publishes voter guides to educate its members and other citizens about candidates for public office;11 and, Judge John Crawley,12 Alabama resident and judge on the Court of Civil Appeals, who is currently campaigning for re-election and is presently a member of the JIC.

The Defendants include: Randall L. Cole, Norman E. Waldrop, Jr., James M. White, P. Ben McLauchlin, Lee E. Portis, David Scott, Greg Sullivan, and Mark White, sued in their official capacity as individual members of the Alabama JIC, which was created by ALABAMA CONSTITUTIONAL AMENDMENT No. 581 § 6.17 and pursuant to § 6.17(b) has the "authority to conduct investigations and receive or initiate complaints concerning any judge of a court of the judicial system of .... [Alabama];" and, J. Anthony McLain, sued in his official capacity as ASB General Counsel, who may initiate proceedings regarding disciplinary procedures administered by the Alabama Disciplinary Commission pursuant to ALABAMA RULES OF DISCIPLINARY PROCEDURE, RULE 1(a)(1) and 3.13


"The law is not a series of calculating machines where definitions and answers come tumbling out when the right levers are pushed."14

A. Background
1. Arguments

Plaintiffs allege that this action for declarative and injunctive relief arises under the FIRST and FOURTEENTH AMENDMENTS as the case concerns the constitutionality of "enforcement policies" contained in the JIC and ASB Advisory Opinions which allegedly accomplish an unconstitutional "as-applied" interpretation of the CANONS in violation of the FIRST AMENDMENT, because the "policies" infringe upon the CCA's and judicial candidates' rights to free and protected speech. (Compl.¶¶ 1-2). Specifically, the Plaintiffs contend that the JIC and ASB's "enforcement policy" chills judicial candidates' free speech by interpreting CANONS 2A, 3A(1), 3A(6), 7B(1)(a), and 7(B)(c), to prohibit candidates from expressing their views on legal and political issues and from responding to the CCA questionnaire that seeks to ascertain the candidates' views on certain issues. Id. ¶ 2. Plaintiffs also argue that the "enforcement policy" prohibits the CCA from receiving the judicial candidates' responses, which in turn prohibits the CCA and its members from receiving and publishing such political speech. Id.

In contrast, the JIC Defendants argue that the CCA questionnaire15 is intended "to give its members and the public an idea of how a judge might rule on certain hot button issues[,]" as "[i]f it does not accomplish that purpose, then it has no value."16 (Doc. 18 at 5). The JIC Defendants argue that it is apparent the CCA wants to know in advance how judges will rule on certain issues, but "the Canons require that judges maintain not only independence of thought with respect to all issues, but also the apparent independence of thought." Id. The JIC Defendants note:

[v]irtually ever case cited by Plaintiffs in their injunction memorandum recognizes the compelling state interest in ensuring the independence of the judiciary as well as the appearance of independence. The cases recognize a competing interest in a candidate's right to express his views, and the cases reflect tension and disagreement as to how those competing interests must be balanced.


Further, the ASB Defendants argue that the CCA questionnaire calls for a "`promise of conduct in office' or an announcement of the candidate's conclusions of law on issues that the candidate would be called upon to decide as a judge." (Doc. 15 at 11). The ASB Defendants note that "[i]t is only those questions ... that the Alabama Rules of Professional Conduct would prohibit the candidate from answering[,]" and that "[n]othing in the opinion prohibits judicial candidates or even suggests that the candidates should not respond to the questionnaire." Id. The ASB Defendants contend the opinion "merely advises that most of the questions call for responses that are prohibited under the Canons ... and, consequently, the Rules...." Id. The ASB Defendants add that "[o]bviously, the CCA understood that the questions could be considered improper for judicial candidates," because the questionnaire provides a `decline' option if the candidate believes to respond would be violative of the CANONS. Id. As such, the ASB argues that the Plaintiffs' claim that the informal Advisory Opinion "chills" the ability to answer to, as well as receive and publish, questionnaires in the CCA voter guide, "is based on a mischaracterization of the facts." Id.


Pursuant to the ALABAMA CONSTITUTION of 1901, as amended, the JIC and the Court of the Judiciary were established to enforce the CANONS.18 which govern the character and conduct of judges and judicial candidates in the State of Alabama and have the force and effect of law. See ALA. CONST. OF 1901, AMEND. 581, §§ 6.17 and 6.18. The Supreme Court of Alabama adopted the CANONS in 1976, as a code for judges and judicial candidates, and a declaration of that which the people of Alabama have a right to expect of them. See CANONS PREAMBLE (effective February 1, 1976). Additionally, pursuant to the ALA. CONST. AMEND. 581, "[t]he Supreme Court shall adopt rules governing the procedures of the [JIC] commission."19 See ALA. CONST. AMEND. No. 581 § 6.17(c).

The Alabama code of legal ethics, as cast in the CANONS, declares20 the following. CANON 2A, entitled, "A Judge Should Avoid Impropriety And The Appearance Of Impropriety In All His Activities," expounds that "[a] judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Additionally, the accompanying commentary provides that "[p]ublic confidence in the judiciary is eroded by irresponsible or improper conduct by judges[,]" so that:

[a] judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny. He must ... accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

See CANON 2A (Commentary).

Moreover, CANON 3, entitled, "A Judge Should Perform The Duties Of His Office Impartially And Diligently," states that:

[t]he judicial activities of a judge take precedence over his other...

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4 cases
  • National Feder. of Republican Assemblies v. U.S., CIV.A. 00-0759-RV-C.
    • United States
    • U.S. District Court — Southern District of Alabama
    • May 31, 2001
    ...for standing, as the chilling effect on his First Amendment freedoms is "objectively reasonable." See Pittman v. Cole, 117 F.Supp.2d 1285, 1304, n. 44 (S.D.Ala.2000) (finding that "a chill of First Amendment rights resulting in self-censorship is in itself the exact type of injury that give......
  • Pittman v. Cole, No. 00-15927
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • October 3, 2001
    ...court granted a preliminary injunction against enforcement of the policies and the related canons of ethics. See Pittman v. Cole, 117 F. Supp. 2d 1285, 1316-17 (S. D. Ala. 2000). However, the court declined to address whether there was a "substantial likelihood of success on the merits," an......
  • Pinkerton v. Bardia, Civil Action Number 2:20-cv-01838-AKK
    • United States
    • U.S. District Court — Northern District of Alabama
    • December 11, 2020
  • Christian Coalition of Alabama v. Cole
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • January 8, 2004
    ...the state courts provided the more appropriate forum to resolve the First Amendment challenge to the Canons. See Pittman v. Cole, 117 F.Supp.2d 1285, 1314 (S.D.Ala.2000). On appeal, we vacated and remanded with instructions that the district court certify any state law questions which are o......
2 books & journal articles
  • Judicial campaign speech restrictions: some litigation nuts and bolts.
    • United States
    • Albany Law Review Vol. 68 No. 3, June 2005
    • June 22, 2005
    ...on Judicial Conduct, 299 F. Supp. 2d 176 (S.D.N.Y. 2003) (Rooker-Feldman doctrine bars challenge to "commit" clause). Pittman v. Cole, 117 F. Supp. 2d 1285 (S.D. Ala. 2000) (enjoining ban on answering voter guide questions but invoking Pullman abstention on merits), vacated and remanded, 26......
  • Constitutional Civil Rights - John Sanchez
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 53-4, June 2002
    • Invalid date
    ...(11th Cir. 2001). 159. . Id. at 1273. 160. . Id. at 1273, 1277-91. 161. . Id. at 1273-75. 162. . Id. at 1273 (quoting Pittman v. Cole, 117 F. Supp. 2d 1285,1311 (S.D. Ala. 2000)). 163. . Id. at 1277-85. 164. Id. at 1277. 165. . Id. 166. . Id. at 1278-79. 167. . Id. at 1279. 168. . Id. at 12......

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