Stretton v. DISCIPLINARY BD. OF S. CT OF PA.
| Decision Date | 24 April 1991 |
| Docket Number | Civ. A. No. 91-1800. |
| Citation | 763 F. Supp. 128 |
| Parties | Samuel C. STRETTON v. DISCIPLINARY BOARD OF the SUPREME COURT OF PENNSYLVANIA; Robert H. Davis, Jr.; and Pennsylvania Judicial Inquiry and Review Board. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Samuel E. Klein, Stefan Presser, Katherine Hatton, Kohn, Savett, Klein & Graf, P.C., Philadelphia, Pa., for plaintiff.
David M. Donaldson, Administrative Office of Pa. Courts, Philadelphia, Pa., for defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This is a civil rights action, filed pursuant to 42 U.S.C. § 1983, in which plaintiff has moved for a permanent injunction prohibiting enforcement of two provisions of Canon 7 of the Pennsylvania Code of Judicial Conduct. Plaintiff Samuel C. Stretton is a trial lawyer who seeks election to the Court of Common Pleas of Chester County, Pennsylvania. Plaintiff contends that the challenged provisions of Canon 7 violate the First Amendment of the United States Constitution by prohibiting the plaintiff from speaking out on disputed issues and raising funds necessary to disseminate his views effectively.1 The Court has considered the testimony that has been presented in this case as well as the respective submissions of the parties, and is now prepared to issue its findings and conclusions.
1. Plaintiff, Samuel C. Stretton, a licensed Pennsylvania attorney, is a judicial candidate in the May, 1991, primary election for a judicial vacancy on the Court of Common Pleas of Chester County, Pennsylvania. (Plaintiff's testimony).
2. As set forth in his Complaint at paragraph 23 and in Plaintiffs' Exhibit 4 and as amplified by his testimony at trial, plaintiff seeks to discuss various issues of judicial administration and public concern with respect to the Court of Common Pleas of Chester County, Pennsylvania.
3. The Democratic Party registers only one of every three to four registered voters in Chester County, and has elected only one of its members to the Chester County Common Pleas bench in the past thirty years. (R80-81).
4. Defendant Disciplinary Board of the Supreme Court of Pennsylvania (hereafter, "Disciplinary Board") is responsible for enforcing the Pennsylvania Rules of Professional Conduct which governs the practice of attorneys.
5. Defendant Robert H. Davis, Jr. is the (acting) Chief Disciplinary Counsel of the Office of Disciplinary Counsel of the Disciplinary Board. (R24).
6. Defendant Judicial Inquiry and Review Board (hereinafter, "JIRB") is responsible for enforcing the Pennsylvania Code of Judicial Conduct. (R122-24).
7. When enforcing either the Pennsylvania Rules of Professional Conduct or the Code of Judicial Conduct, defendants act under color of state law.
8. The Commonwealth of Pennsylvania has chosen to select its judges by popular election. (Pennsylvania Constitution, Article V).
9. Plaintiff seeks to enjoin enforcement, under the First Amendment to the Constitution of the United States, of Canon 7B(1)(c) and 7B(2) of the Pennsylvania Code of Judicial Conduct to the extent that they restrict him from "announcing his views on disputed legal or political issues" and personally soliciting campaign funds.
10. In the absence of such injunctive relief, plaintiff has testified that he will be unable to participate meaningfully in the judicial election in question, and the public will be deprived of the means by which to evaluate the ability of competing candidates.
11. Rule 8.2 of the Pennsylvania Rules of Professional Conduct ("Pa.R.P. C.") provides, in pertinent part, "A lawyer who is a candidate for judicial office shall comply with the applicable provisions of Canon 7 of the Code of Judicial Conduct." See Pa.R.P.C. 8.2(c) (emphasis added).
12. Compliance with Pa.R.P.C. 8.2(c) is mandatory. Thus, for attorneys who are judicial candidates, compliance with Canon 7 of the Code of Judicial Conduct ("C.J.C.") also is mandatory. (R25).
13. In pertinent part, and with emphasis added to indicate the provisions here disputed, C.J.C. Canon 7 provides as follows:
14. In the course of seeking judicial office, plaintiff Stretton desires to announce his views on certain disputed legal or political issues, and to take a personal role in soliciting campaign funds in order to disseminate those views effectively. He intends to comply with all pertinent disclosure requirements and will forego personally accepting any campaign contributions. See Canon 7B(2). (R114).
15. Plaintiff served for two and one half years as disciplinary counsel for the Supreme Court of Pennsylvania. (R80). He has represented numerous clients before the Disciplinary Board and JIRB (R85), and writes regularly in various legal publications on the topic of professional ethics. (R82). The Court finds that plaintiff is knowledgeable regarding both the Pa.Rules of Professional Conduct and the Code of Judicial Conduct. (R85 — Stretton; R158 — Keuch). Moreover, the Court finds credible plaintiff's testimony to the effect that he was "shocked" when informed at the hearing on his motion of defendants' position that plaintiff's proposed speech does not violate Canon 7B(1)(c).
16. The speech which plaintiff Stretton wishes to engage in does involve his views on disputed legal or political issues (R34-35 — Davis), but does not, under defendants' current stated interpretation, violate Canon 7B(1)(c). (R33 — Davis).
17. Among other issues, plaintiff would like to criticize the fact that all of the Chester County Common Pleas judges are from the Republican Party and that this departs from a bipartisan tradition that prevailed in the county until the late 1950's.
18. Additionally, plaintiff desires to announce his views on the following issues, all of which may be characterized for purposes of C.J.C. Canon 7 as being disputed legal or political issues:
Exhibit P-4. Additionally, plaintiff wishes to give his views on the importance of the right to privacy as a basic constitutional right. (R94).
19. Any prohibitions on plaintiff's speech are particularly problematic regarding the topics of crime and sentencing as to which his well-known history as a criminal defense attorney leaves him vulnerable to the misperception, perhaps widely held and certainly subject to unfair and misleading exploitation, that he is more sympathetic to criminals than to their victims. The Code's prohibition against speaking and offering views on disputed legal and political issues has forced Stretton into offering only self-platitudes to which everyone closes his ears. (R112 — Stretton).
20. Defendants have conceded that Stretton engaged in self-censorship and refrained from engaging in perfectly lawful and proper speech because of his interpretations of Canon 7. (R158 — Keuch).
21. As a judicial candidate, plaintiff has agreed not to make any pledges or promises to conduct himself other than faithfully and impartially, or to resolve disputes that may come before him as a judge in any particular way. (R83). Plaintiff does wish, however, to announce his views on disputed political or legal issues.
22. Plaintiff's speech pertaining to disputed legal or political issues already has been chilled. For example, plaintiff recently was interviewed about a Supreme Court decision which held that the admission of a coerced confession may be harmless error. After providing his opinion about the possible impact of this decision, plaintiff requested that it be deleted from the resulting newspaper article because of his fear of violating Canon 7. (R83). Similarly, plaintiff was afraid to comment on the issues raised in this action when asked to do so by members of the media. (R87).
23. Plaintiff's speech is no less chilled because the defendants have stated at the time of the hearing that they will not seek to discipline him for violating Canon 7 based on the proposed speech outlined above and in plaintiff's complaint. (R87). This is so for four principal reasons. First, plaintiff has not agreed to limit his announcements of his views on...
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