*1 925 P.2d 1113

In the Matter of R. John

Attorney Law. at Plaintiff-Respondent, BAR,

IDAHO STATE

. TOPP, R.

John Defendant-Petitioner.

No. 21760. Idaho,

Supreme Court of

Boise, April Term.

Aug. 1996.

Rehearing Denied 1996. Oct. *2 immediately

decision after the close rendered argument, Judge Michaud denied the County’s request. He also made a written transcript available to the of the decision public within minutes of the decision. part-time county attorney Topp, who was a (but in the confirmation who was not involved present during proceed- proceeding) was ing and was interviewed members Although media. the exact content of local dispute, suggest- his remarks is in he at least ed to the media that Michaud’s deci- by political sion was motivated concerns. Topp, George Sandpoint; John R. A. Topp’s in a news- statements were included WA, (argued), Spokane, Critchlow for defen- broadcast, paper article and a radio news and dant-petitioner. are the entire focus of this case. Oths, Boise, plaintiff-re- Michael J. for spondent. II. TROUT, Justice. PROCEDURAL HISTORY appeal is an This from a decision rendered 8.2(a) provides part: I.R.P.C. relevant

by Hearing Committee of the Professional lawyer “A shall make a statement Conduct Board of Bar. the Idaho State lawyer knows to be false or with reckless Hearing Committee has recommended as- disregard falsity concerning as to its truth or sessing public reprimand against appel- qualifications judge____” of a lant, John R. for his violation of (ISB) complaint Bar The Idaho State filed a 8.2(a). 22, 1994, against claiming Topp on March violation of this rule. filed a motion to

I. summary judgment August dismiss or for on 30,1994, contending that Rule is viola BACKGROUND rights tive of his under the First Amendment point October, 1993, prior At some to Bon- under United States Constitution and County ner request filed a in district court Const, 1, § Idaho art. 9.1 “judicial proposed confirmation” of a $4.1 hearing Topp’s A on motion was held on expenditure. money million This was intend- 11, During hearing, 1994. this October county ed to be used to close three landfills parties agreed that the case could be decided and to construct a new transfer station facts, eliminating stipulated on the need for garbage County haul out of state. The 14, evidentiary hearing. an On November hoped judicial for a declaration that this was motion, the Committee denied “ordinary necessary” expense, and there- that he determined had violated Rule by allowing it to raise the funds without pub- and recommended that he assessed a be approval. voter reprimand. lic 4, 1993, Judge On October Michaud heard judicial argument oral on the confirmation III. request. proceeding This was conducted at a “political frenzy” time when there was a and STANDARD OF REVIEW great public regarding property debate tax cases, County, attorney including discipline issues Bonner an effort In alleged to recall certain elected officials. In an oral burden is on the ISB to establish the area, argument appeal rights 1. has made no have that the tution in this or that those been provides expansive Idaho Constitution more violated. rights provided by than those the federal consti- of fact purposes, as assertions convincing misconduct evidence. constitutional clear and Jenkins, privy to implies that he is speaker 120 Idaho 382- if the E.g., Matter of (1991). “private, also See that he has 816 P.2d 338-40 facts and undisclosed 522(f). convincing” evi- “Clear knowledge substantiate^] I.B.C.R. which first-hand greater degree proof refers to “a dence state- Id. When such made.” assertions Jenkins, 120 preponderance.” than a mere made, given is not the audience *3 383, (citing Moly- P.2d at 339 Idaho at 816 an upon which to form sufficient information Co., 619, Falls Canal 54 Idaho neux v. Twin therefore, the ex- independent judgment; (1934)). although we appeal, On 35 P.2d 651 damaging as an pression opinion of is as findings great weight of give 571-72, P.2d at Id. at 790 assertion of fact. Board, independent an review we will make omitted). (citations 352-53 whether the find- of the record to determine 383-84, P.2d supported. Id. at 816 ings are case, dispute as some In this there is at 339-40. the media. exactly was said to what merely opinion his that he offered contends IV. ques newspaper reporter’s response in to a Judge possible it was tion as to whether TOPP’S REMARKS WERE WHETHER politically could have been Michaud’s decision PRO- OF “OPINION” STATEMENTS testimony in the record There is motivated. AMEND- BY THE FIRST TECTED by the response was altered THE MENT AND OUTSIDE SCOPE that he appear newspaper to make 8.2(a) OF politically was “charged” that the decision impugning the Statements when, fact, only agreed in he motivated they punished unless judge “may not be of a However, Topp not possible. does it was false; being proved capable true are of report fact that the radio news dispute the by the opinion protected of statements com of his actual contained a fair statement they ‘imply a false Amendment unless First ments. Standing Comm. on of fact.’” assertion 1430, 1438 Yagman, 55 F.3d Discipline v. report states: transcript of the radio Cir.1995) (9th v. Lorain (citing Milkovich Topp is critical of “County attorney John 2695, Co., 1, 19, 497 110 S.Ct. Journal U.S. Judge ruling. District [Judge Michaud’s] Time, (1990); v. 111 1 Lewis L.Ed.2d recently granted a similar Craig Kosonen (9th Cir.1983); Inc., Re 555 710 F.2d Topp says County ... petition Shoshone (1977)). (Second) § of Torts 566- statement 2-cases, no difference between there’s to the me that his comments Topp contends directly quoting ... except Judge Kosonen merely of which dia were ramifi- political ... worried about “wasn’t protection. afforded constitutional must be clearly implies This statement cations.’” about Judge Michaud was worried a state determining In whether that was and that political ramifications of fact or of constitution an assertion ment is -from —that decision differed reason his important con opinion, ally “[t]he protected This statement by Judge Kosonen. reached particular ... is not whether sideration privy to some facts Topp was insinuates that another, category or fits into one statement the motivation cases and about about the two provided particular article whether the but rendering his decision. in of Kosonen the reader upon which information sufficient revealed, facts were Because these judgment for independent make an could draw its own was unable to Topp’s audience Rankin, Idaho v. 117 himself.” Wiemer motiva- Judge Michaud’s as to conclusions (1990) (quoting Her 572, 790 P.2d 353 Therefore, assuming the news- tions. even Titus, Fact Versus Statement bert W. said, conclude paper misstated what Spurious Dispute Opinion Statement —A radio news included that the comments 1203, 1216 Comment, 15 Vand.L.Rev. in Fair pure “opin- beyond the realm report went (1962)). Thus, appear statements which even treated, ion.” nonetheless be opinion will to be

y. compelling state interests served Rule 8.2(a), impose the rule be read to should THE ERRED WHETHER COMMITTEE attorneys. objective malice standard on Id. IN THAT CONCLUDING TOPP court, According to that in consider- at 867. VIOLATED I.R.P.C. ing disregard” prong of Rule “reckless applied is “what the rea- the standard A. Framework attorney, light in of all his sonable considered that, Topp contends even if his statements functions, professional would do in the same constitutionally protected are not deemed or similar circumstances.” Id. The Sandlin “opinions,” they to First are still entitled analysis Standing was further refined protection they Amendment since were clear- Discipline Yagman, v. 55 F.3d Committee ly political in nature. He asserts that (9th Cir.1995), where the court identi- attorney order to sanction an under Rule requirement fied additional that the disci- *4 8.2(a), question the statement in must be plinary body attorney’s establish that the by tested under the standard articulated the statements were false. Id. at 1438. This Supreme United States Court in New York formulation strikes a reasonable balance be- Sullivan, v. 376 Times U.S. 84 S.Ct. right speech tween the of free and the State’s (1964). Thus, 11 according L.Ed.2d 686 to legitimate preserving in interest the prove the ISB must that the statement judicial system. speaker’s of its The interest was false and that it was made actual with by requirement is accommodated the that the ie., (subjective) malice, particular that the prove and that State the statement was false person uttering the remark did so with reck- speaker the lacked a reasonable basis for the disregard falsity. less for its For the rea- statement. The State’s interest is accommo- below, agree sons set forth we do not that prove dated the fact that it need not appropriate this is the constitutional stan- subjective malice. apply type to in dard this of case. Application B. Topp ISB contends that should The conclude that has We the ISB estab protect be sanctioned in integ order to the lished, case, purposes Topp’s of this that rity judicial system. the In First Judge statements as to Michaud’s motiva involving important Amendment cases coun parties stipulated tions were false.2 The that interests, tervailing the federal courts have Judge testify Michaud would that his deci against speak balanced these interests the judicial proceeding sion in the confirmation attempt er’s interests in an to accommodate politically Although was not motivated. Nevada, both. See Gentile v. State Bar of Topp parties makes much of the fact that the 501 U.S. 111 S.Ct. 115 L.Ed.2d stipulate did not to the truth of this testimo (1991) (balancing 888 in the State’s interest ny, requirement we are aware of no that assuring against speech fair trials free inter parties stipulate must truth of evi attorneys). est of The Ninth Circuit has may dence in the record before a court con approach involving taken this in cases Rule stipulated sider that evidence. The testimo 8.2(a), and we believe it is warranted here. controverted, ny Judge is Michaud not and Sandlin, In United States Dist. Court v. parties’ stipulate the failure to as to the truth (9th Cir.1993), involving ap- F.3d 861 a case of that evidence is irrelevant. plication of a rule identical to I.R.P.C. recognized competing regard the court interests With to the second element that, light analysis, identified above. It held in of the of the there is no contention that though sufficiency allegations 2. Even the ISB concedes that actual falsi- standard as to the in a case, ty is an essential element of its it to complaint: allegations specific failed "must be allege complaint Topp's in its that enough alleged to inform the defendant of the However, agree were false. do not with allegations complaint misconduct.” The Topp’s assertion that this is a fatal defect. It is clearly filed in this case are sufficient to inform pleadings disciplinary true that the content of in that, media, Topp due to his statements to the he comport cases must with I.R.C.P. 10. I.B.C.R. 8.2(a). alleged is to have violated I.R.P.C. However, 522(h). 511(a) I.B.C.R. sets its own Topp knowledge analysis of what constitutes an had actual that his state- Thus, question implies complex. ment was false. is wheth- fact can be and what a “objectively making in Topp However, er was reckless” any analysis underlying is the com- the media. statement to The bases monly reality it is often im- understood support by Topp as for his com- asserted in possible per- to discern what-is another (1) political there are as follows: was a subjective son’s motivations mind and what frenzy County regard in Bonner with to person’s exist within that mind. could (2) issues; property tax immediate re- Judge know in mind not what was Michaud’s support could lend lease of the decision to Any- Judge or what in Kosonen’s mind. was prior was to inference that the case decided body reviewing Topp’s comments un- would argument Judge and that Michaud was con- Topp’s comments derstand that. dealt with disseminating that to cerned with decision subject could not matter that he know—the (3) public quickly; and another district judge making internal motivation of a a deci- judge had in a similar case reached differ- from consequences sion. flow this: Two ent conclude a reasonable decision. We decency; other a first matter of social facts, considering attorney, in these would principle law. Since of constitutional question. statement have made the Judge could not was Michaud’s know what necessarily im- Because statement mind, indecency a matter of social was plied Michaud based his decision impugn speculation. judge’s character improper con- completely irrelevant *5 However, or listener with common a reader siderations, impugned integrity. his that sense would understand comments Therefore, hold that the ISB established opinion. of That under- were statements public a and that a violation of standing of the nature of the comments as reprimand appropriate is the sanction protection opinion Mr. cloaks that violation. afforded Amendment. the First

VI. speech It is defend that has a easier to speech purpose social than to defend CONCLUSION except degrade point seems to no have However, person. is not another hearing The committee’s recommendation draws. line the Amendment The noble First public reprimand is be assessed protection purposes constitutional of for the adopted. speech forth times been set numerous have great Attempting new eloquence. with McDEVTTT, C.J., and JOHNSON nothing to the flourish would add wisdom JJ., SILAK, concur. speech in our protection inherent SCHROEDER, Justice, dissenting. speech The at issue constitutional structure. protec- that circle of in this falls within case agree very I much to with the would like tion. in this ease. Some conclusion of the Court purpose; not. public speech has a some does purpose in the com-

There no discernable is Topp. Mr. were made Howev-

er, determining if standard for that is not the place.

disciplinary take action should correctly capsulizes the issue Court im-

its in Section IV: “Statements comment judge ‘may integrity of a not be

pugning the capable being

punished they are unless false;

proved true un- protected by First Amendment ’ ” assertion of fact.” they “imply

less false