James M. Scott, Jr. v. Robert C. Flowers

SCOTT, Jr., M. James

Plaintiff-Appellant, FLOWERS, al., et

Robert C.

Defendants-Appellees.

No. 89-2491. Appeals,

United States Court

Fifth Circuit.

Aug. Austin, Tex., Sanders, for defen-

Robin dants-appellees. GARWOOD, KING,

Before SMITH, Judges. Circuit SMITH, Judge: E. Circuit JERRY decide whether an are asked to Today we constitutionally repri- judge elected public state- making truthful manded of the the administration ments critical he is a system of county judicial (1) statements Concluding that such part. legitimate public con- address matters (2) state’s interest cern and impartiality of efficiency and promoting not, the circum- under does its courts case, outweigh plain- stances countervailing first amendment tiff’s views, judgment reverse to air his remand for further court and of the district proceedings.

I.

A. Scott, Jr., M. plaintiff James In justice four-year to a term was elected County, Texas. Bend peace Fort states, peace many justices As in judi- rung of the occupy the lowest Texas jurisdic- Their courts have hierarchy. cial prosecu- only petty criminal tion to hear violations), actions for (such traffic tions detainer, civil other entry and forcible controversy the amount in cases which $2,500. Tex. Const. does not exceed See 19; Ann. V, Code Art. Tex.Gov’t § counties, Fort Texas 27.031. In most § them, justice among courts Bend record, parties аppealing courts of to a trial judgments are entitled from their higher court. de novo in office, taking Scott became Soon after perceived to be an he about what concerned county the administration injustice in great ma- Apparently, the system. appealed their who jority of defendants justice or Griffiths, ACLU, convictions Bruce Houston traffic offense V. County Houston, Tex., the Fort Bend plaintiff-appellant. municipal courts to (the Conduct “Com- office Commission Judicial term in during Scott’s Court-at-law mission”).3 charges against having succeeded sharply re- fines or the them dismissed 1983, the ex- November Commission’s In believed, un- practice, Scott This duced.1 director, Flow- defendant Robert C. ecutive to vio- “in the know” those fairly allowed he had ers, by letter that advised Scott repeatedly and traffic laws late the re- subject complaints of several been sophisticated less penalizing impunity while respond- by the Commission.4 Scott ceived of- committed same individuals who writing complaints both ed to fenses. by Flowers to having been invited person, informally before the Commission. appear took his con- September and the citi- government the local cerns to 19, 1984, is- the Commission March On county “open letter” to writing an zenry by reprimand of Scott. public sued a formal letter, the attacked In the Scott officials. in- acknowledging that Scott’s After first county the and attorney’s office district personal integ- good and his were tentions dismissing many traffic so issue, court-at-law then the rity not at Commission was county upon the called appeals and being ticket in cer- “insensitive” him chided remedy the suggestions to to offer ad- officials and oral communications” tain “written change county refused to If the court- problem. litigants in his to both the dressed concluded, public the at large. practice, public Scott at Such this and to the room it, stated, the and was “insensitivity,” made aware the least should be Commission really busy then.”2 proper performance “would be with the court-at-law inconsistent peace and justice of the duties Scott’s local the The was circulated letter upon public discredit only to “cast served arti- newspaper prompted press several concluded The Commission judiciary.” the the attention also attracted cles. It advising warning, a reprimand with the the Culver, judges of one of the Thomas temperate restrained and to be “more Scott angry let- court-at-law, an wrote Scott who in the and oral communications in written raising con- his criticizing him for not ter future.” Eventually, both privately. cerns (cid:127) to cite failed Although the Commission letter and Culver’s articles newspaper alleged insensitivi- examples of any Scott’s Texas files of the way into the found their driving it is the record. If ope a bad allegations [sic] never been has these The truth appeals County prosecute policy to not of the litigation. in this contested and the Peace Justice of the Courts from the states, entirety, as follows: in its 2. The letter Courts, everyone should be Municipal then County Dear Officials: it; County at Law Court aware of made Justice that I have been nine months In the Attorney’s Office Court and District Bend Four Fort Peace of Precinct of busy really be then. practice in our County, I have learned your sugges- offer me and Please contact Court, District and the County Court Law opinions. tions Office, adversely af- Attorney's I believe that Respectfully, county. Almost all justice our fects Scott, Jr. M. James are dismissed appealed court to this cases totally of the Peace Justice not dis- that are few cases and the Four Precinct very low 'plea bargained’ down missed County Bend Fort fine amounts. through the end made 123 decisions Of the by empowered the Texas is Commission 3. The completely 17 were August, all but of dismissed; judges for "will- discipline state Constitution i.e., dis- 86% were than more Conduct, or Judicial Code of violation ful guilty Justice being found after missed clearly is persistent conduct willful County. Of Fort Bend Municipal Courts of or performance of his proper with the inconsistent decided, only ‘to- all had most cases the few judiciary public discredit casts or duties average fine The less. $10.00 ken’ fines justice.” See Tex. the administration or on County at Law Court appealed to the per case V, l-a(6)A. § Art. Const. only $4.05. now, represented people only a few Until oрen complaints concerned of those 4. Some appeal real- attorneys an was ‘knew’ local letter; matters unrelated dealt others people those few This allows ly a dismissal. litigation. at issue devel- repeatedly and never the law to violate Commission, individually and in their specific in both quite litigants,5 ty to capacities. alleged He that his official it found to public comments identifying letter, reporters open and his comments to criti- Commission objectionable. The be it, protected speech were in connection with statement both for his cized Scott constitutionally for which he could not county court-at-law open letter discipline. complaint subject real- really if the busy” “would be sought declaratory judgment por- ticket was appeal of a traffic ized that an reprimand tions of the violated his first and for his com- to a dismissal tantamount rights, injunction ordering amendment reporter, in connection with ment to a expunge those offend- the Commission to letter, county system is not that “the record, ing portions attorneys’ justice.”6 interested pursuant but did fees U.S.C. § request any monetary damages. B. completed dis- parties filed this 42 After U.S.C. In March summary covery, sides moved for members of the both against action § channels, however, does, through legitimate pursuit, of a an al- reprimand refer to 5. The against you. grievance peace leged officers Scott made to certain threat Additionally, con- it was the Commission’s pursuing grievance him who were by you public clusion that certain statements Although legitimate through Scott channels. proper perform- were the inconsistent with threat, making he concedes that such a denies justice peace your ance of duties as a of the of the first the ambit such threats are outside judiciary. public upon the and cast discredit protections and thus does not as- amendment's Certainly, judges may public statements make reprimand portion is a that of the sert that explain official duties or in the course of their rights. violation of his constitutional procedures public the information the However, judges states, must also conduct court. еntirety, as fol- reprimand in its The times, that at all in a manner themselves lows: integrity public promotes the confidence in Conduct Judicial State Commission on judiciary. Exemplify- impartiality and ing of the Scott, Jr., Reprimand Jus- James M. Public improper Com- which the an statement Coun- of Fort Bend tice of the Peace Precinct public to destructive of mission considers be ty, Texas. judiciary statement in the is the confidence aware, regularly you scheduled are As by reporter, published you in a to attributed 1984, 9, meeting the State Commis- on March acknowledged by you during your paper, and reviewed several on Judicial Conduct sion complaints Commission, appearance the to the ef- before against you filed been had that, county system court is 'It seems the fect you have by individuals with whom various justice.’ statement in Another not interested your capaci- dealings in official [sic] had with to as destructive the Commission considered public Peace, 4, Fort ty Precinct as Justice of the pe- judiciary is the confidence the County. previously ad- been Bend You had Sep- your open letter of nultimate sentence in vised, writing, complaints, had and of the 1983, county officials concern- to tember ing county responses You thereto. submitted written appeals. After im- court at law by to the Commission had also been invited on, County policy pinging the '... informally regularly appear scheduled at the prosecute appeals the sentence some- to ...’ meeting, appear. did so and public maliciously concludes that what your apparent intentions have is It that County and the made aware should be law, scrupulously faithful to the been to be really busy be then.’ ‘would at'Law integrity ques- your personal was not and your conduct The Commission condemns However, apparent also that tioned. it hopes this action described above you have when have been there instances you to be more restrained will cause your very to the effects insensitive been communica- temperate in written oral on the liti- written and oral communications future. tions in the your the Commission’s gants court. It was authority con- Accordingly, pursuant insensitivity yоur in written 1-a, (8) V, conclusion Subsection Article Section tained in communications, com- related to the Constitution, and oral it is of the Texas Commission, has cast plaints filed with the out- heretofore that the conduct ORDERED judiciary adminis- upon repri- and the subject public discredit of a lined is made insensitivity com- justice. on Judicial tration of Your Commission the State mand appears a common thread be munication Conduct. against you day complaints and can of March 1984. this 19th each of the Issued Flowers, Depart- Director in which Executive exemplified Robert C. incident State Acting Safety interpreted cer- and On Behalf Officers ment of Public with Full Conduct on Judicial Commission your representations as a serious tain of Authority to Act so their them for retaliation threat of open letter and motion, not written he had support of its judgment. no relief. that he was entitled therefore affidavits identical introduced Commission7 unnecessary “to members, found it The court thus each (a majority) of its from nine con- Plaintiff’s the issue of whether open had reach letter stating while Scott’s is in fact constitu- writing the letter affiant’s duct in factor” a “substantial been activity.” protected tionally reprimand, in favor to vote decision controlling means the “by no had been uncontrovert- were The affidavits factor.” II. itself, listed and, reprimand ed, unlike this the merits of addressing Before “insensitivity” examples of Scott’s specific of fed examine the basis appeal, we must ex- litigants in his courtroom if motion8 jurisdiction, on our own eral incidents, with the along plained those F.2d Cozby, 813 necessary. Mosley v. letter, reprimand. prompted the open had Cir.1987). (5th Although none of argued that the summa- The Commission it, to we directed our attention parties has established that ry judgment record proscribing rule are aware of course if he reprimanded even have been of state district court review federal or shared open letter not written implications for and of its judgments,9 that, reporters and therefore his views Kadish, 748 F.2d light v. case of Thomas Healthy in Mt. analysis set forth under the denied, Cir.1984), 473 U.S. (5th cert. Doyle, Bd. Educ. Dist. City School (1985). 87 L.Ed.2d 50 L.Ed.2d There, deprive extended that rule if to no relief even (1977),he was entitlеd over jurisdiction courts district federal protected in fact were comments aggrieved of individuals who the claims Healthy responded that Mt. speech. Scott agencies con acts of state judicial he, unlike inapplicable because was deliberately by state courts and who trolled case, to be did not seek plaintiff in that court of state bypass available channels of his position because

placed a better review. More conduct. constitutionally protected in this case Accordingly, we must decide judg summary over, that the he contended reprimand of the Commission’s whether that his amply demonstrated ment record act, the Com- judicial whether Scott was matters of statements addressed courts, the state agent is the of mission make them his and that concern intentionally re- finally, whether Scott by the outweighed Commission’s was review of seeking court state frained maintaining integri asserted interest begin our We decision. the Commission’s judicial system. state’s ty of the questions with a review of these discussion Thomas and facts and rationale of C. predecessor, Feldman. Feldman, who was de- applicant an summary granted court The district the District of Columbia admission to nied of the Commission. judgment favor graduat- had not ground that he bar on Healthy, apparently citing Without Mt. petitioned school an accredited it, ed from law court relying upon concluded Appeals of Court if the District of Columbia reprimanded even would have been can be necessary distinguish of such determinations "[r]eview stead Except 7. where defendants, them, only Supreme] Court." Dis [the of whom in ... all obtained the individual Feldman, Appeals v. members the Com- Court or former of Columbia are members trict 1311, 1303, mission, collectively simply 462, 476, 75 are referred 103 S.Ct. 460 U.S. (1983) (following Fidelity v. "the Commission.” Rooker 206 L.Ed.2d 150, 416, 149, 413, Co., 68 44 S.Ct. 263 U.S. Trust juris- Although parties raised none (1923), “Rooker- called the and hence L.Ed. 362 issue, they that we filed letter briefs dictional requested doctrine”). Supreme Howell v. Accord Feldman following argument. oral 308, Cir.1989), Tex., (5th F.2d 311 885 Court of — 3213, denied, U.S.-, 110 cert. highest judgments of a state’s 9. Final review; (1990). subject in- L.Ed.2d district court to federal (the “Board”), Examiners requirement in his Board of Law of that for a waiver denied, application, Feld- petition which had denied his was not a case. When court, in federal district brought man suit agency, court but rather an administrative (1) declaratory judgment that seeking and, accordingly, Patsy that under v. fifth application violated the of his denial Regents, Board 102 S.Ct. federal antitrust laws amendment and the (1982),11 73 L.Ed.2d he was not ordering (2) injunction the defen- required to exhaust state remedies before him to the bar. The court dants to admit bringing a constitutional claim in federal claim for lack of sub- dismissed Feldman’s court. jurisdiction, reasoning that the ject matter Although we those found contentions by the District of Colum- denial of a waiver “substantial,” Thomas, 748 F.2d at was, effect, judi- Appeals bia Court nevertheless concluded that Rooker- highest tri- determination a state’s cial precluded Feldman doctrine federal dis- Appeals The United States Court bunal. claims, trict court review of Thomas’s re- for the District of Columbia Circuit First, two reasons: the Board was essen- ground on the and remanded versed tially agent Supreme of the Texas at issue were not proceedings the waiver Court, promulgated the rules administrative, in na- judicial, but rather governing ap- the Board’s activities and Gardner, 661 F.2d ture. Feldman v. pointed the Board’s nine members. And (D.C.Cir.1981). 1315-19 second, pursue Thomas had failed avail- review, concluded On Court channels of state court review: able proceedings were in fact that the waiver supreme Texas court has purpose their was to “investi judicial, since [T]he declare, provided itself for a method of gate, and enforce ‘liabilities past facts and denial of fitness. they present review of Board’s [stood] ” already exist.’ supposed rejected applicant’s bypass under laws A deliberate Appeals (ulti- procedures District Columbia of those that envisioned Feldman, 479, 103 at 1313 mately) final state-court a reviewable Line (quoting Prentis v. Atlantic Coast itself under Feldman not sub- judgment, 67, 69, Co., review, ject to federal district-court (1908)). Accordingly, the Court L.Ed. 150 not, seem, it entitle the should claims dism and ordered Feldman’s reversed applicant to a review of his constitutional issed.10 court that by claims a federal district him if he unavailable to would have been Thomas, applied the In we Rooker-Feld- court pursued his claim to final state from doctrine to a case that differed man Feldman, petition- ‘a judgment. Under only important respect— one Feldman raise his constitutional er’s failure to Feldman, did not seek state unlike Thomas not mean that in state court does claims appli- of his review of the denial bar court District Court should a United States instead, cation; proceeded directly to he claims,’ jurisdiction over brought court and a section federal district n. at 1315 at 483 n. 16 denied alleging 16] claim that he had been [103 ..., failing raise his claims ‘by religious of his race admission because ‍​‌​​​‌​‌​‌​‌​​​​‌‌‌​‌​‌​‌​​‌​‌​​​​​‌‌​​​​​‌‌​‌​​‍may plaintiff forfeit Texas state court a contended that the beliefs. Thomas was, however, challenges allege the state court’s proceed those allowed to 10. Feldman facial those claims that attacked the Review of with those of his validity action was unconstitutional. District of Columbia’s bar admis- only be had in this Court.’’ decisions explained, "United Howell, the Court sions rules. As S.Ct. at 1317. See U.S. at jur- subject-matter distriсt courts ... have States isdiction over rules, F.2d at 311-12. challenges general to state bar nonjudi- by promulgated state courts Patsy of state adminis- that "exhaustion holds require proceedings, do not review of which cial a final state-court required as a not be trative remedies should judgment particular in a case. pursuant bringing prerequisite to an action however, jurisdiction, They over do not have 516, 102 S.Ct. at 2568. 457 U.S. at 1983.” § particular challenges to state-court decisions proceedings arising judicial even if cases out majority members are Commission’s review of the state right to obtain Court, court,’ by Supreme and three of chosen any federal id. decision by nominated the court the commissioners at 282. Id. by independent must be confirmed mind, background in With body.12 questions the three proceed to answer now Moreover, licensing of law- whereas the in our discussion. We have posed earlier yers regulation and the of the state bar concluding difficulty in Com little regarded func- traditionally have been reprimand of Scott was mission’s court, highest disci- of the state’s tions Feldman, explainеd act. As the Court Texas) (at pline judges least in it judicial when “investi proceeding is prov- exclusively predominantly or even declare[s], liabilities gate[s], and enforce[s] ince of that court. The Texas Constitution under laws past facts and present ... on the removal of provides five methods for 460 U.S. at already to exist.” supposed only three of which involve the judges, Here, the Commis 103 S.Ct. at 1313. gives the at all and none of which courts lodged complaints investigated sion power remove Supreme Texas Court the Scott, declared him violation judge on its initiative.13 or sanction a own Conduct, then-existing Code of Judicial sum, In the structure and functions both issuing a by its determination and enforced largely indepen- the Commission make it public reprimand. courts; accordingly, the state it dent of actions, Despite judicial nature of its agent. viewed as their cannot be however, regard- the Commission cannot be Thomas, Scott, Finally, unlike did not system. agent of the state court ed as the pro- channels of state court review bypass Thomas, Board in the Commis- Unlike the by Supreme the Tеxas Court. As vided constitutionally established and is sion is concedes, appeal no from the Commission independence a measure of endowed with until one reprimands was available the Board’s nine the courts. Whereas year after had filed the instant law- directly by the appointed all are members addition, suit in federal district court. Court, the Texas Commission’s appeals allowing statute such ex- the 1987 are chosen in three differ- eleven members does, provides apply plicitly ways: appointed by are the Texas ent five date. reprimands issued before its effective (three Supreme Court of those with Ann. 33.034. Tex. Gov’t Code § Senate), of the Texas advice and consent Thus, other than a Bar of Scott had no vehicle appointed by are the State two challenge rights suit and consent of the civil Texas with the advice Senate, (who allegedly unconstitutional and four must be non-law- Commission’s Although he could have elect- governor reprimand. yers) appointed bring in either state or Tex. ed to such an action and consent of the senate. the advice court, V, l-a(2). Thus, of the federal fo- a federal his choice Art. not even Const. § Article Those five methods are as follows: Coalition v. Judicial In 12. In First Amendment Bd., XV, judges by A.2d 722 quiry (1983), provides & Review 501 Pa. the for removal § Pennsylvania’s XV, that Judi- the court held provides Article for removal of § senate. (a Inquiry Review Board constitutional- cial ly and judges by supreme upon the court the district body, five of whose established nine-member presentment lawyers practicing of ten sworn by supreme appointed the state members sought. judge Arti- whose removal is before appointed and four of whose members are court XV, judges by provides for removal of § cle by governor, are virtu- and whose functions governor upon a resolution of two-thirds Commission) ally was identical to those of the V, legislature. Article each house court, agency, independent rather than a and l-a(8) empowers the Commission to recom- § manda- could not be issued a writ of therefore composed of to a review tribunal mend removal majority a of that board’s mem- mus. Because appеals. judges final- the state courts of And by supreme appointed the state bers are V, ly, provides removal of Article for the § (without of the state the advice and consent by justices peace county judges and senate), independent less of the state court is judges. district system the Commission in the instant than is case. constitutionally protected con- exercise of suggest a deliber- any way not rum does occupied than he would have had he review. duct state court ate circumvention difficulty nothing. The with the done jurisdiction conclude that we We thus claims, District Court is rule enunciated first amendment to consider Scott’s require that it would reinstatement their mer- proceed evaluate now and we perhaps a and cases where dramatic its. inevitably incident is abrasive III. for the deci- responsible minds of those rehire, play does indeed a sion to district first revisit the We must in that decision—even if the same part that Mt. threshold determination court’s reached had would have been decision obtaining precludes Healthy The constitu- the incident not occurred. rights if his constitutional any relief even sufficiently principle at is tional stake plaintiff Healthy, were violated. Mt. employee placed is if such an vindicated fired who had been a schoolteacher Doyle, position than if he had not in no worse a policy criticizing school shortly after A or in the conduct. borderline engaged station, sued to a radio telephone call local have the marginal candidate should reinstatement the school board employment decision resolved discharge claiming his was that pay, back constitutionally protected him because The amendment. of the first in violation ought candidate But that same conduct. telephone Doyle’s court held that district able, by engaging in such con- not to be that, speech and because protected call was from as- duct, prevent employer his part” in the played it had “substantial record and sessing performance him, to terminate school board’s decision to rehire on reaching a decision not sought. he to the relief Doyle was еntitled record, simply that because basis of unpub in an affirmed The Sixth Circuit employer protected conduct makes opinion. per curiam lished of its certain of the correctness more accepted review, On decision. Doyle’s finding that court’s the district 285-86, at 575-76. protected speech but telephone call was stated, Healthy is the rule of Mt. Simply Doyle entitled to its conclusion discharged employee who that a pay simply because reinstatement back engaging disciplined or otherwise factor” a “substantial speech been is not en- constitutionally protected conduct him. to terminate in the decision board’s employer if can any relief titled to Instead, the board the Court reasoned taken the same that it would have prove prove opportunity to given the should be action absent conduct. if discharged Doyle even that it would have telephone not, call.14 As in had not made has he The Commission case, explained, make deed, facts of this the court cannot on the Healthy.15 showing required Mt. solely the focuses causation which A rule of reprimand paragraph of the pertinent played a The protected conduct on whether open letter and solely otherwise, in a deci- deals part, ‘substantial’ in connec reporter comments to rehire, employ- with his place an not to could sion Although the Corn- that letter. tion with a result of the position as ee in a better discharge. retaliatory involving anger cases not Doyle sis in Apparently, also aroused the had 14. Jones, Communications, (1) arguing Inc. v. by cafeteria with See North Miss. school board of the they Cir.1989). spaghetti (5th argument, This over amount 1064 workers 874 F.2d him, (2) referring to students however, point. served Mt. completely beside the is disciplinary as measures had taken whom he because Healthy inapplicable this case not to bitches,” (3) making an obscene "sons gesture 281-82, discharge, retaliatory but not involve it does at 429 U.S. two students. female put seeks will not the relief because rather S.Ct. at 97 573-74. position would have than he a better him in protected allegedly con- occupied but for thе correctly points out that The Commission 15. duct. Healthy analy- applied recently the Mt. we have 210 Bedford, New 155 reprimanded Mayor Scott for v. might have mission McAuliffe 517, (1892)(Holmes, 216, 29 N.E. 517 reasons, not written the let- Mass. had he

other J.)). ter, any por- not then have based it could reprimand upon that letter. of the

tion however, recently, More only to have that seeks And since Scott approach in one rejected has favor of the al- part reprimand dealing with of the employees not recognizing public do expunged from protected conduct legedly protection they when shed constitutional record, put into a better he will not be workplace16 enter the but nevertheless bal would have oc- position than he otherwise employees’ rights against the ancing ‍​‌​​​‌​‌​‌​‌​​​​‌‌‌​‌​‌​‌​​‌​‌​​​​​‌‌​​​​​‌‌​‌​​‍those granted. thus cupied if that relief is We State, in employer, “interest as court erred its that the district conclude efficiency public of the ser promoting the the facts of application Healthy of ML performs through employees.” it vices proceed to evaluate this case and now 563, of Educ., 391 Pickering v. Board U.S. claim. merits 1731, 1734, 568, 811 88 20 L.Ed.2d S.Ct. (1968). Pickering, the Court enunciated

IV. two-step inquiry to used evaluat be A. ing claims of first amendment violations First, public employees. the court17 must employees, capacity Public their “content, form, determine, light such, unique position in first occupy a question, speech see The context” jurisprudence. amendment 364, 877 F.2d 369 City Kilgore, the state Moore v. always recognized that Court has — (5th Cir.), denied, U.S.-, 110 may speech of its cert. employer restrict 562, (1989), state as S.Ct. 107 L.Ed.2d 557 whether employees ways which the legitimate public a “matter of may speech not restrict of its addresses sovereign 571, Indeed, at 88 many years Pickering, concern.” 391 U.S. the Court for citizens. not, inquiry employ at 1736.18 If it does position public to the adhered ends, employee expression can expressing their could be fired for “[w]hen ees relating any views, they fairly considered as notwithstanding the fact that be is, social, political, or other concern .right to so—that matter of had a constitutional do government community, to the officials policeman] may have a constitu that “[a managing wide latitude in politics, enjoy talk he has no should right tional offices, insight policeman.” their without intrusive to be a constitutional 378, McPherson, judiciary in the name of the First 483 U.S. See Rankin Connick, 146, 2891, 2902, 461 U.S. 395, 97 L.Ed.2d 315 Amendment.” at 107 S.Ct. (1987) (Scalia, J., dissenting) (quoting 103 1690. S.Ct. at (raised private complaints Regents, in a conver- Keyishian teacher’s 16. See v. Board of 605-06, 675, 589, 684-85, principal) regarding 17 L.Ed.2d 629 al- 87 S.Ct. sation with school (1967) (‘‘[T]he theory public employment legedly racially discriminatory policies, school Dist., altogether may subject- be denied v. Western Line Consol. School Givhan conditions, regardless 410, 415-16, 693, 696-97, any unrea- of how ed to sonable, 99 S.Ct. 58 439 uniformly rejected.”). (1979); has been firefighter's public L.Ed.2d and in a alleged inadequacy of fire attack on the inquiry protected into the status of 17. "The Moore, manpower, department's level of law, speech fact.” Connick v. is one of 370-71; disagree- in a teacher’s F.2d at but not Myers, 461 U.S. 148 n. list, Kirkland, reading prescribed ment with (1983); Kirk L.Ed.2d 708 see also n. F.2d 800. Dist., Indep. School 890 F.2d v. Northside land employees Public do not address matters — denied, Cir.1989), (5th cert. concern, however, when their stаtements -, (1990). 110 L.Ed.2d 641 only em- the conditions of their deal own Thus, attorney ployment. an assistant district Although developed a the courts have not questionnaire elicit in order who circulates public con- precise cern,” of "matters of definition employees on office the views of her fellow they such in a teach- have found matters policies to is not entitled morale transfer public board's alloca- and er’s criticism of the school Connick, athletics, protection. 461 first amendment and of funds between academics tion 148-49, 1736; Pickering, at 103 S.Ct. at 1690-91. U.S. at at S.Ct. quite case thus make it employ- The facts of this that the determines If the court Pickering, in which the public similar to a matter of addresses speech ee’s say determining a teach- employ- had this to concern, it then must balance funding er’s criticism of the school board’s rights first amendment ee’s public in- concern: countervailing decisions raised issues employer’s governmental perform- promoting the efficient terest system question whether a school [T]he assessing In its normal functions. ance of requires is a matter of additional funds interest, governmental strength of the legitimate public concern on which the factors as such court should consider administration, judgment of the school discipline impairs statement “whether the cannot, Board, in a including the School coworkers, harmony among superiors ‍​‌​​​‌​‌​‌​‌​​​​‌‌‌​‌​‌​‌​​‌​‌​​​​​‌‌​​​​​‌‌​‌​​‍or pop- society questions such to that leaves working impact on close a detrimental has vote, ular be taken as conclusive. On personal loyalty relationships for open is question, such a free debate necessary, impedes or and confidence decision-making by the vital to informed speaker’s duties performance of the are, class, Teachers as a electorate. operation of the regular with the interferes likely to community of a most members Rankin, at 483 U.S. enterprise.” opinions as to informed and definite 391 U.S. at (citing Pickering, at 2899 operation to the how funds allotted 1735-37). 570-73, 88 S.Ct. at According- spent. the schools should be they be able ly, it is essential B. questions speak freely out on such with- concluding difficulty in have no We out fеar of retaliation. letter, open and the comments

that Scott’s 571-72, 1736-37. 88 S.Ct. at it, address mat in connection with he made sum, airing conclude that legitimate public concern.19 Scott ters of the Fort views on the administration court-at-law and his criticisms of the raised County justice system, Scott was Bend in a manner attorney’s office the district employee matters speaking not as an about the attention of to attract calculated interest, rather as merely private power body with the ultimate public—the regarding a matter “an informed citizen voting county policy by the re change Moore, 877 F.2d at great public concern.” public of office. The sponsible officials out proceed to determine wheth- 371. We now views, as in Scott’s was interested indeed case, er, of this under the circumstances given his letter by the attention evidenced outweighed by the is speak Scott’s Moore, 877 F.2d at media. by the local See promoting interest state’s asserted given public (citing attention media judicial efficiency impartiality of it evidence that ad employee’s speech as system. concern). public a matter of dressed nothing Moreover, criticisms Scott’s C. employ- conditions of do with his own noting that the state’s begin by We Instead, they the admin- dealt with ment. criticisms suppressing system by interest county justice of the istration typical public than in the officials, much weaker about which county a matter not, situation,20 as Scott was employee county, Scott, judge from that as an elected term, public of that the traditional sense opinions. likely to have well-informed citizen, course, Commission, brief, private Indeed, were a if Scott does not 20. Of in its suppressing justification for would have «o not ad- argue statements did that Scott's system. county justice It his criticisms of legitimate public concern. In- issues of dress stead, speech long critical been settled that has argument upon Healthy Mt. it rests its presents suppressed unless not be courts Pickering prong of the bal- upon the second operation. danger” present to their a "clear See, test, asserting preserv- ancing interest in that its Georgia, e.g., Wood system ing integrity state’s (1962) (overruling contempt 8 L.Ed.2d 569 rights. outweighs amendment Scott’s first racist, criticized, as who conviction of sheriff investigate jury "an grand judge’s order that 212 non-judicial offices. for most campaigns in teacher Picker-

employee. Unlike the mayoralty the can and in A candidate for attorney Con- district ing, the assistant Moore, his determination firefighter in Scott often should announce nick, the and par- employer. program, to reach governmental some a hired a to effect was not official, question city chosen Instead, an some of he was elected ticular result on justice pre- of his a directly by the the interests of policy, voters or to advance and, ordinary circum- cinct, expected at least his particular group. It is that stances, only by them. removable may predetermined in office be decisions the Not so by campaign commitment. unexpected that such, it was As cannot, He judicial office. candidate independent exercise only would Scott of proper exercise consistent with brought him before in the cases judgment to decide powers, himself judicial bind willing speak out would be in order to achieve particular cases defects serious perceived he what result. programmatic given county. justice in his of administration however, note, that We were careful repri Thus, justify the the state cannot one, a narrow holding in our Morial discipline of Scott, could mand resign-to-run turning on the that fact employee, on the government ordinary statute, judicial cam- and on restrictions preserve necessary to it was ground that fairly limited intru- paign promises, were discipline.21 harmony or office coworker political speech of elected sions into the correctly points As the Commission is, resign-to-run “Louisiana’s judges. That out, recognized that the state we plaintiffs not burden the requirement does judges elected speech of restrict of his choice right to for the candidate vote speech of may not restrict the ways that it pri- his regarding or to make statements v. Morial Judi other elected officials. outside a opinions public issues vate on 295, La., 305 565 F.2d ciary Comm’n context; penalize does it campaign nor denied, (en banc), 435 (5th Cir.1977) cert. are any particular idea. These belief 1887, L.Ed.2d 395 56 values.” Id. at core first amendment requiring (1978), upheld a statute state added). (emphasis resign the bench before judges candidacy for an elective declaring their upheld in the statute Mori Unlike -explained that the non-judicial office and infringe al, does reprimand of Scott judges in speech of may regulate the state on make statements ... upon the “to impartiality of the preserve the order to campaign context” public issues outside judicial branch: upon “core first amend touches and thus Accordingly, the Commis ment values.”22 different in judicial office is Because the carry very difficult burden sion must offices, other key respects from concededly order to demonstrate judges with the differ- may regulate its protecting the effi legitimate interest example the contours mind. For ences in judicial of the state ciency impartiality inappropriate make office outweighs Scott’s first amendment system pledges of con- particularized kind of rights.23 very stuff of duct office personal relationship requires Negro confidence inexplicable pattern bloc inane Florida, loyalty. voting’’): Pennekamp v. (1946) (overruling con- 90 L.Ed. 1295 pub- newspaper who tempt editor conviction Connick, U.S. at 103 S.Ct. also 22. See attacking judge editorials and cartoons lished (“the frequently reaffirmed Court has gamblers). on soft ‘highest occupies speech issues hierarchy rung ues,’ of First Amendment val- Moreover, although probably had some (quot- special protection” entitled attorneys and the the district with contact Co., ing 886, 913, Hardware court-at-law, NAACP Claiborne did not work with judges he basis, L.Ed.2d 1215 relationship day-to-day and his on a them (1982))). working not the sort of close them was

213 in order that remand also We has the Commission that conclude We award of attor may consider an the court in its Neither carry that burden. failed to Any 1988. to section neys’ pursuant fees the Com- was argument nor at oral brief however, by award, paid must be such how explain precisely to able mission against assessed cannot be state and impedе public criticisms Scott’s capacity, as individual in their defendants impar- and efficient promoting an goals of by and won sought relief injunctive that unpersuaded are and we judiciary, tial the defendants obtained from Scott can be effect. such a detrimental have they would , capacity as commiss only in their official are Instead, those interests that we believe ioners.25 secrecy of casting a cloak by ill served and RE- is REVERSED judgment The courts, and operations around proceedings consist- further MANDED for alleged unfair- light an bringing to that ent herewith. in fact system, Scott judicial in the ness dissenting: GARWOOD, Judge, Circuit that Commis- very goals furthered promote. majority’s sion wishes dissent from respectfully I governed is not holding this case that that the Commis- Accordingly, we hold Cir.1984), Kadish, 748 F.2d 276 (5th Thomas v. constitutionally reprimand could not sion denied, rt. 105 473 U.S. ce critical statements making public for (1985).26 majori The 87 L.Ed.2d attor- district and the the court-at-law of distinguishes Thomas grounds. on two ty that office, so we remand ney’s opinion, neither is substantial. my the Commission direct district First, majority contends that repri- paragraph third expunge the Thomas, Exаmin- of Law Texas Board statements, mand, dealing with those agent of Board) essentially an (the was ers appropri- Court, here the entry of an while the Texas record Scott’s (the on Judicial Conduct Texas Commission declaratory judgment.24 ate against "out of abun- brought the individuals Rankin, S.Ct..at See 23. availability of to ensure the justifying dance of caution" ("The [its ... bears burden State stated, However, have as we attorneys’ grounds.’’) fees. legitimate on action] attorneys’ undeniably fees authorizes Hutto holding is limited emphasize our We 24. sued in their are against where officials the state us, is whether question before the narrow Thus, against individuals capacity. suit official publicly com- reprimanded for judge can be cases, abusive, some can be basis without justice as it menting upon the administration plaintiffs and, subject appropriate, could where through pass his court. to cases relates Fed.R. under to sanctions and their counsel judges’ placed regularly upon are Restrictions are such defendants especially where Civ.P. public concern issues of expression of views on separate in their individu- counsel forced hire e.g., system, legal ‍​‌​​​‌​‌​‌​‌​​​​‌‌‌​‌​‌​‌​​‌​‌​​​​​‌‌​​​​​‌‌​‌​​‍nucle- involve the not that do individuals, to subjected, capacity al deficit, budget environ- proliferation, the ar litigation. vexatious opinion as no quality, intimate and we mental upon the visited was No such inconvenience proscriptions. such permissible extent to the defendants, And we do however. instant plaintiffs’ counsel unduly chastise wish course, is, no eleventh amendment There 25. case, matter prosecuted this this who against attorneys’ fees award to the obstacle Heretofore, such and skill. professionalism Finney, 437 Hutto v. pursuant §to pre- capacities, against 2574-79, defendants both suits 693-700, caution,” have sumably out of “an abundance very regard, (1978). we In this L.Ed.2d caution future we But not been uncommon. of the commission- question the inclusion much attorneys that defendants litigants their capacity. individual in their defendants ers as Here, individually ais unless there sued only equitable damages, should monetary no liability against them in good-faith can ex- relief, basis sought. commissioners was The reprimand capacity. subject language from the punge the capacity. acting their official only while par- argument, asked 26.Following oral them Hence, for suit no there is basis issue, appel- their brief and in to brief that ties individuals. suit barred this lees have contended argu- oral matter at questioned When of Thomas. under the doctrine ment, attorney suit stated that the Commis- majority concedes that majority, is The Commission), according to the acting courts” in a of the state in this instance was “largely independent sion agent.” as their reprimand “cannot be viewed its of Scott capacity, and that however, ignores majority respect, this, this judicial act.” Given a “was relationship of the Commission intimate Commission, me it seems to of the nature specifically Supreme Court Texas to the in here substance the Commission The judiciary general. in Texas to the At court. Prentis v. functioned as a See V, by Article provided for is Commission Co., 211 29 Line lantic Coast Constitution, Article 1-a, V the Texas of § 67, 69, (1908)(assuming, L.Ed. 150 53 of the Texas Constitution being the article Corporation Commis arguendo, State The judicial department.” “the to devoted if its action had been could be a court sion dealing is of the Commission only business nature, it in in which event “would judicial no other judiciary; it has the State’s with part interference on protected from be Further, relationship to function. States”); Or courts of the New of United extremely is close. Supreme Court Texas Service, Inc. v. Council leans Public of l-a(ll) provides that Su- “[t]he Section — -, Orleans, 109 City New provide for the preme shall rule 2519-20, (1989) 105 L.Ed.2d 298 and sec- procedure before Commission” (discussing and District Colum- Prentis any public cen- l-a(9) provides that tion Feldman, 460 U.S. Appeals v. bia Court of retirement, is sure, or decision removal (1983)). 206 L.Ed.2d by the Texas subject to ultimate review Co. v. also North S.S. Indus- See Commission’selev- Of the Supreme Court. Pacific Commission, 23 F.2d trial Accident members, appointed by judges five en (State (D.Cal.1918) Accident Court, Industrial two are Supreme the Texas court). Di- by the Board of lawyers appointed is Commission V, Texas. Art. the State Bar of rectors of majority ground on which the The other is, itself, l-a(2). of Texas The State Bar § distinguish is that here relies to Thomas by the Texas large measure controlled in statutory or express no constitu- there was Supreme Court.27 review of the Commis- provision tional for Moreover, questionable it is whether in Thomas reprimand,28 while sion’s properly be understood can Thomas expressly relevant State rule allowed Bar proposition that the Board’s resting on the specified state by suit in a district review inwas sub- complained of decision there majority takes the view court. The Supreme of the Texas stance the decision (in a suit had no vehicle other than Scott evidently not that Court’s It Court. court) under U.S.C. federal or state decision, law the under Texas because challenge the ac- to Commission’s § judi- had the to “obtain plaintiff there incorrect, inasmuch Texas tion. This by filing specified suit in a cial review implied right provided law Scott Thomas, F.2d court.” district [state] (with district courts appeal to the Texas complained of decision If the at 280. courts) appellate to in the review state been that of had substance Thomas federal) (or any constitutional raise state Court, obviously it would Supreme Texas See, challenge question. to the action subject review in the state have been Hancock, 150 Tex. e.g., City Amarillo v. court. district id., 81.024(a) (“The Ann., 81.011, supreme provides: § See also Code § 27. Texas Gov’t governing promulgate the state the rules shall "(a) public corporation The state bar is bar....”). agency judicial and an administrative government. department of against Scott been a "(b) 28. Had the action formal chapter is in aid of the This suspension, public department's powers constitution to or for remov- censure order under law, retirement, al, regulate practice subject and not to the would have been review, powers. of those stages exclusion express provision various Texas, "(c) Supreme Court of on behalf The ultimately culminating in the Texas judicial department, ad- shall exercise V, l-a(6), (8), (9). § Art. Court. Tex. Const. the state bar under ministrative control over chapter.” this he not have (1951).29 Accordingly, by the Commission 239 S.W.2d Thomas, eligible subject for or to had legally Scott, plaintiff like the been just utilize, or had it reprimand not been entered him, not tо chose available to language. complained of state district included the suit in the law-based challenge complained of action court, Commission’s not under section The Thus, majori- nothing more complained of substance action. amounted distinguishing opinion that what ground expression of its ty’s second than Further, any it tended “improper” because Thomas is insubstantial. did was even if a Han- that, event, appear confidence it would “destructive out, or were to majority points not available cock action were As the judiciary.” nature, neverthe- in independent, as collateral elected be viewed was an Scott case was the instant officer, employee in of less Commission and was decision of its acting as a court and review any other state offi- or of Commission directly in the United States had cial, could be agency, or court. Supreme Court. question of wheth- not reach the I would Scott’s sec- Accordingly, I conclude that rights would First Amendment er under the ratio- barred tion 1983 suit was tak- violated had the Commission been have Thomаs. nale of materially and ad- some action which en conditions of em- versely altered Scott’s merits, I will majority As the reaches Scott, individual- placed which or ployment also. It respect briefly comment that position justice as of ly or in his former case comes as this must understood that be legal disability, or under some peace, us, challenge the Commis- does not Scott legal capacity to lose him either caused portion is a All he wants reprimand. sion’s had, have or to he otherwise rights would reprimand deleted. of the reasons that subject to sort of adverse legally some case, this decided the district court When otherwise consequence of he would or other longer any judicial, no held Scott Clearly, if stated legally free. been have whatever, any he at nor has public, office individual, por- challenged private undisputed that then.30 since It time reprimand would of the Commission’s tion nor reprimand the Commission’s neither pure expres- of been that character have any le- challenged portion thereof First Amendment opinion which of sion Scott, either individ- gal effect whatever claims. libel and slander protects position justice of ually in his as or — Co., Milkovich v. Lorain Journal See any of any way restrict It did not peace. 2695, 2706, -, -, 110 S.Ct. powers, or rights or personal or official his (1990).31 not claim does Scott L.Ed.2d disability any whatev- legal him under put made respect in this the Commission of em- not affect his conditions er. It did any misstatement of any way implied not order or did The Commission ployment. opinion with its merely quarrels He anything. doing fact. or refrain from to do Scott “improp- undisputed conduct eligible other action make him It did not candidate, he has done so availability under such a whether of review admits the 29. Scott Hancock, brief in this then is unclear. his initial since as he states in Court: circumstances, has no stand- Scott Under challenge brought could "He [Scott] declaratory injunctive ing relief to seek or court, U.S.C. § under 42 either in state appellate respect as an to his future conduct court’s inherent or under the Texas ... Edwards, judge, 721 F.2d Brown v. see constitutionality of admin- to review (5th Cir.1984), any event this 1446-47 аctions, City v. Amarillo istrative Hancock of present posture seek such does not suit in its Hancock, 231], Tex. [City v. Amarillo of damages. seeks no relief. Scott (Tex.1951)....” (Emphasis S.W.2d 788 added.) Milkovich, recognized "that a the Court 31.In pub- relating opinion to matters of statement sometime before out of office Scott went 30. provably contain a us, however, lic concern which does not April has advised 1986. receive full consti- factual connotation will false independent candidate for to be an he intends protection,” "statements as also tutional will appeals in the 1990 judge of a Texas court ‘reasonably interpreted as stat- [be] that cannot time that Scott so As of the general election. — Court, ing individual.” Id. yet qualified actual facts’ about an had not he informed to be “destructive it tended because er” America, Even a judiciary.” in the public confidence STATES UNITED statement official factually false libelous Plaintiff-Appellee, not invade actor does by governmental v. legal conse- has no liberty interest where ECKFORD, L. Charles made connection and is not quences Defendant-Appellant. change (or adverse similar termination No. 89-4862. employment. of) governmental in conditions Davis, 424 Paul Appeals, States Court United (1976). 1161-64, L.Ed.2d 405 Whether Fifth Circuit. v. Davis the rule of Paul Aug. 1990. need claims Amendment carry over to First Rehearing En Banc Denied Rehearing and noted, for, there is here resolved not be Sept. expression nothing in substance constitution- would be opinion, which itself nongovern- part of on the

ally protected actors.

mental having Scott as not one views

Whether “depri- suffered a legally “injured” or

been one or whether under section vation” forbid- First the Amendment

reads merely from stat- actors ding governmental factually false no opinion, with

ing their

connotations, of concerning impropriety governmental other way in which some may previously have exercised official important rights, is not Amendment

First approach or One present context. here, under ‍​‌​​​‌​‌​‌​‌​​​​‌‌‌​‌​‌​‌​​‌​‌​​​​​‌‌​​​​​‌‌​‌​​‍for other is called claim section 1983 present

either fail.32

should respectfully I dissent.

Accordingly, thing. To the (footnote Actually, con- at-, Bart held no such omit- at 2706 U.S. ted). implied ac- trary, clearly that such trivial Bart birthday party failing hold a tion as section under itself be actionable not of passage 8 of aware of the footnote 32. I am exercise of for the if taken in retaliation even - Illinois, Party Republican v. Rutan of Rather, Bart, rights. at 625. First Amendment -, -n. n. complaint was sufficient be- Bart held that (1990), the Court where observed: L.Ed.2d 52 campaign alleged of harass- “an it entire cause Amendment, “Moreover, as the court First though detail trivial ment noted, employees already protects state question below gross. It is substantial been 'even only patronage dismissals but campaign reached thresh- fact whether failing to as trivial as I actionability 1983.” Id. an act of retaliation section under old public employee birthday party mistake take hold a would be a serious it believe apparently off- punish literally Supreme her exercis- Court's ... when intended birthday parties rights.’” in footnote ing speech hand dicta about her free Rutan, body opinion in quoting In the passage, Court was Rutan. case before in- that the Circuit stressed decision Seventh the Court from the below Illinois, imposed penalties for the "significant ... Party F.2d Republican volved v. in Rutan 943, rights guaranteed the First (7th Cir.1989), where Seventh exercise 954 n. 4 — -, 110 S.Ct. at characterizing Amendment.” decision Circuit in turn Cir.1982). Nothing is involved here. (7th of that kind Telford, F.2d 622 Bart

Case Details

Case Name: James M. Scott, Jr. v. Robert C. Flowers

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 20, 1990

Citation: 910 F.2d 201

Docket Number: 89-2491

Court Abbreviation: 5th Cir.