UNITED STATES DISTRICT COURT FOR THE …lc.org/080516 MemoParkerOppositiontoMotiontoDismiss.pdf · Justice Parker was first elected to the office of Associate Justice in November

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

HON. TOM PARKER, Associate Justice of

the Supreme Court of Alabama,

Plaintiff,

v.

JUDICIAL INQUIRY COMMISSION OF

THE STATE OF ALABAMA, et al.

Defendants.

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CIVIL ACTION

CASE NO. 2:16-CV-442-WKW

PLAINTIFF JUSTICE PARKER’S RESPONSE IN OPPOSITION

TO THE JIC DEFENDANTS’ MOTION TO DISMISS

Case 2:16-cv-00442-WKW-SRW Document 34 Filed 08/05/16 Page 1 of 51

ii

TABLE OF CONTENTS

TABLE OF CONTENTS...............................................................................................................i

TABLE OF AUTHORITES........................................................................................................iv

FACTUAL BACKGROUND............................................................................. ..........................1

A. Associate Justice Of The Alabama Supreme Court, Tom Parker.................................1

B. The JIC Preliminary Investigation Of Justice Parker For His Speech........................1

C. The Continuing And Credible Threat Of A JIC Complaint Against Justice Parker

For His Speech. ..................................................................................................................4

ARGUMENT..................................................................................................................................5

I. ABSTENTION IS UNWARRANTED AND UNNECESSARY IN THIS MATTER..5

A. Abstention is the Exception, Not the Rule...........................................................5

B. Preliminary Investigations Do Not Amount To State Judicial Proceedings....6

C. The First Amendment Issues In This Matter Compel This Court’s

Jurisdiction...........................................................................................................12

D. The JIC Can Provide No Relief to Justice Parker On His Significant First

Amendment Injury. ............................................................................................14

E. Injunctive Relief Of Section 159 Would Not Interfere With Any Ongoing

State Judicial Proceedings...................................................................................19

II. SOVEREIGN IMMUNITY PROVIDES NO REFUGE TO THE JIC......................20

III. JUSTICE PARKER’S WELL-PLEADED ALLEGATIONS PLAINLY

ESTABLISH A CLAIM UPON WHICH RELIEF CAN BE GRANTED.................22

A. Justice Parker’s Well-Pleaded Allegations Plainly Establish A Violation Of

The First Amendment. ........................................................................................23

1. Justice Parker’s Well-Pleaded Allegations Establish That His Speech

Is Protected...............................................................................................24

2. Justice Parker’s Well-Pleaded Allegations Establish That The

Challenged Canons Are Content-Based................................................27


iii


Challenged Canons Are Unconstitutionally Overbroad......................29


Challenged Canons Represent A Presumptively Unconstitutional

Prior Restraint.........................................................................................31


Challenged Canons Are Unconstitutionally Vague..............................32

B. Justice Parker’s Well-Pleaded Allegations Plainly Establish A Violation Of

The Fourteenth Amendment...............................................................................34

1. Justice Parker’s well-pleaded allegations establish a property and

liberty interest in his position as Associate Justice...............................35

2. Justice Parker’s well-pleaded allegation establish state action...........39

3. Justice Parker’s well-pleaded allegations establish that Section 159

provides inadequate due process protections........................................40

CONCLUSION............................................................................................................................42


iv

TABLE OF AUTHORITIES

CASES

31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003) .......................................................19

Abrahamson v. Neitzel, 120 F. Supp. 3d 905 (W.D. Wis. 2015)...................................................38

Ankenbrandt v. Richards, 504 U.S. 689 (1992) ..............................................................................7

Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666 (1998) ..................................................28

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................................................................22, 23

Bagget v. Bullitt, 377 U.S. 360 (1964) ..........................................................................................13

Bantham Books, Inc. v. Sullivan, 372 U.S. 58 (1963) ...................................................................31

Bd. of Airport Comm’rs of City of L.A. v. Jews for Jesus, Inc., 482 U.S. 569 (1987)...................29

Bd. of Regents of State Colleges v. Roth, 408 U.S. 564 (1972) ..............................................35, 36

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................22, 23

Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) ........................................................37

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ..............................................................................33

Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729 (2011) ..........................................................28

Brown v. Hartlage, 456 U.S. 45 (1982) ..................................................................................25, 26

Buckley v. Valeo, 424 U.S. 1 (1976) .............................................................................................26

Butler v. Alabama Judicial Inquiry Comm’n, 245 F.3d 1257 (11th Cir. 2001)...............................5

Butler v. Alabama Judicial Inquiry Comm’n, 802 So.2d 207 (Ala. 2001)....................................26

Carey v. Brown, 447 U.S. 455 (1980) ...........................................................................................26

Carroll v. President & Comm’r Princess Anne, et al., 393 U.S. 175 (1968)...............................32

Catron v. City of St. Petersburg, 658 F.3d 1260 (11th Cir. 2011).................................................34

City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789 (1984) .....................................18, 29


v

City of Houston v. Hill, 482 U.S. 451 (1987) .................................................................................5

City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988) ...........................................15

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) ........................................................34

Cohen v. Virginia, 18 U.S. 264 (1821) ...........................................................................................5

Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976)..........................5

Conley v. Gibson, 355 U.S. 41 (1957) ..........................................................................................23

Connally v. Gen. Const. Co., 269 U.S. 385 (1926) .......................................................................32

Connick v. Myers, 461 U.S. 138 (1983) ........................................................................................26

Crowe v. Lucas, 595 F.2d 985 (5th Cir. 1979) .............................................................................37

Cypress Ins. Co. v. Clark, 144 F.3d 1435 (11th Cir. 1998) ..........................................................36

Dixon v. Alabama State Bd. of Educ., 294 F.2d 150 (5th Cir. 1961) ............................................39

Dombrowski v. Pfister, 380 U.S. 479 (1965) ....................................................................13, 16, 18

Ex Parte Young, 209 U.S. 123 (1908) ....................................................................................21, 22

Flinn v. Gordon, 775 F.2d 1551 (11th Cir. 1985) .........................................................................37

For Your Eyes Alone, Inc. v. City of Columbus, 281 F.3d 1209 (11th Cir. 2002) ....................7, 13

Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123 (1992) ................................................15, 31

Freedman v. Maryland, 380 U.S. 51 (1965). ................................................................................31

Gasper v. La. Stadium & Exposition Dist., 577 F.3d 897 (5th Cir. 1978).....................................23

Google, Inc. v. Hood, 822 F.3d 212 (5th Cir. 2016) .......................................................................8

Gordon v. Leatherman, 450 F.2d 562 (5th Cir. 1971) ..................................................................37

Goss v. Lopez, 419 U.S. 565 (1975). ................................................................................34, 36, 39

Grayden v. Rhodes, 345 F.3d 1225 (11th Cir. 2003) ................................................................7, 35

Grayned v. City of Rockford, 408 U.S. 104 (1972). ................................................................32, 33


vi

Guillemard-Ginorio v. Contreas-Gomez, 585 F.3d 508 (1st Cir. 2009).........................................8

Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984) .................................................................6

Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982).......................29, 30

Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 (1997) .....................................................................21

In re: Gillard, 271 N.W.2d 785 (Minn. 1978) ..............................................................................38

In re: Hanson, 532 P.2d 303 (Alaska 1975) .................................................................................38

In re: Nowell, 237 S.E.2d 246 (N.C. 1977) ..................................................................................38

Johnson v. U.S.D.A., 734 F.2d 774 (11th Cir. 1984) ....................................................................40

Joseph A. ex rel. Wolfe v. Ingram, 275 F.3d 1253 (10th Cir. 2002) .............................................19

La. Debating & Literary Ass’n v. City of New Orleans, 42 F.3d 1482 (5th Cir. 1995).............8, 13

Lanzetta v. New Jersey, 306 U.S. 451 (1939) ...............................................................................32

Lovell v. City of Griffin, 303 U.S. 444 (1938) ..............................................................................31

Major League Baseball v. Butterworth, 181 F. Supp. 2d 1316 (N.D. Fla. 2001)...........................9

Mathews v. Eldridge, 424 U.S. 319 (1976) ...................................................................................34

McCarley v. Sanders, 309 F. Supp. 8 (M.D. Ala. 1970) ...............................................................40

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) ..........................................................24

Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982).................passim

Moaghan v. Deakins, 798 F.2d 632 (3d Cir. 1986) ........................................................................8

Moore v. Judicial Inquiry Commission, et al., No. 2:16-cv-00388-WHA-GMB,

Dkt. 46 (M.D. Ala. Aug. 4, 2016) ........................................................ ..................................11, 17

M.R. v. Board of School Comm’rs of Mobile County, 2012 WL 3778283, at *1

(S.D. Ala. Aug. 30, 2012) .............................................................................................................20

Mosley v. Nev. Comm’n on Judicial Discipline, 22 P.3d 655 (Nev. 2001)...................................38

Mulholland v. Marion Cnty. Election Bd., 746 F.3d 811 (7th Cir. 2014) .......................................8


vii

NAACP v. Button, 371 U.S. 415 (1963) ........................................................................................32

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) ..........................................................26

New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350 (1989)...............19

Obergefell v. Hodges, 135 S.Ct. 2584 (2015) .................................................................................3

Paul v. Davis, 424 U.S. 693 (1976) ..............................................................................................36

Perry Educator’s Ass’n v. Perry Local Educators Ass’n, 460 U.S. 37 (1983)..............................28

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ............................................................................27

Reagan v. Time, Inc., 468 U.S. 641 (1984) ...................................................................................28

Republican Party of Minnesota v. White, 536 U.S. 765 (2002) ....................................................25

Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991).........28

Smith ex rel. Smith v. Siegelman, 322 F.3d 1290 (11th Cir. 2003) ...............................................36

Sosa v. Coleman, 646 F.2d 991 (5th Cir. 1981) ............................................................................23

Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584 (2013) .......................................................passim

Stallworth v. City of Evergreen, 680 So.2d 229 (Ala. 1996) ........................................................36

Steffel v. Thompson, 415 U.S. 454 (1974) ................................................................................7, 16

Summit Med. Assoc., P.C. v. Pryor, 180 F.3d 1326 (11th Cir. 1999) .....................................21, 22

Telco Commc’ns, Inc. v. Carbaugh, 885 F.2d 1225 (4th Cir. 1989) ........................................8, 13

Thornhill v. Alabama, 310 U.S. 68, (1940) ..................................................................................18

Town of Upton v. Whisler, 824 P.2d 545 (Wyo. 1992) .................................................................38

United States v. Playboy Entm’t Grp., 529 U.S. 803 (2000) ........................................................28

United States v. Stevens, 130 S. Ct. 1577 (2010) ..........................................................................29

United States v. Wallington, 889 F.2d 573 (5th Cir. 1989) ..........................................................30

Va. Office for Protection and Advocacy v. Stewart, 563 U.S. 247 (2011) ...................................21


viii

Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008)................................29

Watchtower Bible & Tract Soc’y of N.Y. v. Vill. of Stratton, 536 U.S. 150 (2002).......................31

Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002) ......................................................................24

Wexler v. Lepore, 385 F.3d 1336 (11th Cir. 2004) .................................................................19, 20

Wisconsin v. Constantineau, 400 U.S. 433 (1971) ...................................................................5, 40

Wood v. Georgia, 370 U.S. 375 (1962) ........................................................................................26

Zwickler v. Koota, 389 U.S. 241 (1967)........................................................................................12

STATUTES

Fed. R. Civ. P. 8(a)(2) .............................................................................................................22, 23

Fed. R. Civ. P. 12.....................................................................................................................22, 23

OTHER

5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990).......23

James J. Alfini et al., Judicial Conduct & Ethics, § 13.10, at 13-25 (4th ed. 2010)......................38


1

Plaintiff, the Hon. Tom Parker, Associate Justice of the Supreme Court of Alabama

(“Justice Parker”), by and through the undersigned counsel, hereby files the following Response

in Opposition to the Judicial Inquiry Commission of Alabama’s (“JIC”) Motion to Dismiss (dkt.

12) and its accompanying memorandum (“MTD”) filed temporarily under seal. For the reasons

set forth herein, the JIC’s Motion should be denied.

FACTUAL BACKGROUND

A. Associate Justice Of The Alabama Supreme Court, Tom Parker.

Justice Parker is an elected Associate Justice of the Alabama Supreme Court. Verified

Compl. (“VC” ¶ 9). Justice Parker was first elected to the office of Associate Justice in

November 2004, and officially took office in January 2005, for a six-year term. (Id. ¶ 18). He

was reelected for another six-year term in November 2010, with approximately 59% of the vote

of Alabama citizens. (Id.). He is presently a candidate in this year’s judicial election in

November 2016. (Id.). Since first taking office in January 2005, Justice Parker has continuously

served in that position without any suspension. (Id. ¶ 19). Justice Parker is currently the subject

of an ongoing preliminary investigation by the JIC. (Id. ¶ 9).

B. The JIC Preliminary Investigation Of Justice Parker For His Speech.

The JIC is a state commission comprised of nine members, including its chairman

(Bedsole) and eight other members (Scott, Thrasher, Malone, Dowd, Judge Cole, Judge Pittman,

Judge Chaney, and Judge Kimberley) who have authority to conduct ethical investigations of

judges and file ethical complaints against judges in the Court of the Judiciary (“COJ”). (Id. ¶¶

10-12). The JIC has been investigating Justice Parker since November 2015 based exclusively

upon public comments he made on a radio program. (Id. ¶¶ 58-60).


2

On October 6, 2015, Justice Parker participated in a radio interview with Mr. Bryan

Fischer of the American Family Association on the “Focal Point” radio show. (Id. ¶ 42). During

the interview, Justice Parker announced that he had qualified to run for reelection to a third term

as an Associate Justice of the Alabama Supreme Court. (Id. ¶ 43). He also discussed his

reelection bid. (Id.) During the interview, Justice Parker discussed political processes, structures

and forms of government, how the courts operate and should operate, judicial and constitutional

theory, and issues of public significance. (Id. ¶ 44). He also cited American political, historical,

and legal icons such as Supreme Court Justices Oliver Wendell Holmes, John Roberts, and

Antonin Scalia and former Presidents Thomas Jefferson and Andrew Jackson, and referred to

The Federalist Papers, the U.S. Constitution, and opinions of the United States Supreme Court.

(Id. ¶ 45). The only discussion regarding a proceeding before the Alabama Supreme Court was

entirely and purely descriptive. (Id. ¶ 47). Justice Parker did not predict, promise, pledge or

commit to a certain course of action on the merits of any case pending before the Alabama

Supreme Court. (Id. ¶ 49).

Notwithstanding, because of its disagreement with his judicial philosophy and views on

marriage, on October 12, 2015, the Southern Poverty Law Center (“SPLC”) lodged an ethics

complaint against Justice Parker with the JIC, attaching an unverified purported transcript of his

October 6, 2015 “Focal Point” radio interview. (Id. ¶¶ 52-53).1 In its complaint against Justice

Parker, the SPLC alleged that he violated Alabama Canons of Judicial Ethics during the Focal

Point radio interview by (1) “publicly comment[ing] on proceedings pending before the Alabama

Supreme Court” and (2) “undermin[ing] the integrity of the federal judiciary by suggesting that

1 Attached to the SPLC Complaint filed in the JIC is a purported transcript of the radio interview

that Justice Parker conducted with Bryan Fischer on October 5, 2016. The transcript is not

authenticated and lacks any evidence of accuracy or reliability.


3

the Alabama Supreme Court should defy and refuse to give effect to the United States Supreme

Court’s decision in Obergefell v. Hodges, … 135 S.Ct. 2584 (2015).” (Id. ¶ 54). On October 13,

2015, the SPLC issued a press release announcing the filing of its ethics complaint against

Justice Parker. As a result, multiple local and national news sources published stories detailing

the SPLC’s vitriolic allegations against Justice Parker and repeating verbatim many of them. (Id.

¶¶ 56-57).

On November 5, 2015, pursuant to JIC Rule 6C, the JIC sent Justice Parker a letter

informing him that the JIC had “decided to investigate” two allegations of ethical violations

against Justice Parker—namely, (1) that in his radio interview on October 6, 2015 he “violated

Canon 3A(6) by publicly commenting on Ex parte State v. King, No. 1140460, then pending

before the Alabama Supreme Court,” and (2) that in that same radio interview he “violated

Canons 1 and 2A by making comments … that undermine the integrity of and public confidence

in the integrity of the federal judiciary and the United States Supreme Court’s interpretation of

the Constitution in Obergefell v. Hodge [sic], e.g., suggesting that the Alabama Supreme Court

should defy and refuse to give effect to the Supreme Court’s decision in Obergefell.” (Id. ¶ 58)

(emphasis added). In subsequent letters sent every six weeks thereafter pursuant to JIC Rule 6D,

the JIC has stated its intention to continue its “preliminary investigation” against Justice Parker

and has not modified any of the allegations being investigated.2 (Id. ¶¶ 59-60) (emphasis added).

To date, the JIC has not discontinued its investigation against Justice Parker arising from

the politically-motivated complaint filed by the SPLC. (Id. ¶¶ 64, 78). Justice Parker remains a

2 These letters were dated December 17, 2015; January 28, 2016; March 10, 2016; April 21,

2016; and June 2, 2016. (VC ¶ 60). JIC sent an additional letter on July 14, 2016, after the filing

of this lawsuit.


4

candidate for reelection to the office of Associate Justice of the Alabama Supreme Court. (Id.

¶ 65). The election is scheduled to occur on November 8, 2016. (Id.).

C. The Continuing And Credible Threat Of A JIC Complaint Against Justice

Parker For His Speech.

The pendency of any JIC investigation, or any future ethics complaints lodged against

Justice Parker for his political speech based upon the same Canons at issue in the current

investigation, violates his free speech rights as a judicial candidate and sitting judge and

significantly chills his First Amendment-protected speech about issues and matters of public

importance. (Id. ¶ 66). The JIC’s ongoing investigation against Justice Parker chills his speech

and forces him to engage in self-censorship of his speech as a judicial candidate and sitting

judge. (Id. ¶¶ 67-68).

As a result of any ethics charge filed by the JIC in the COJ, Justice Parker would be

automatically penalized for his speech and immediately disqualified from acting as a judge

pursuant to Section 159 of the Alabama Constitution. “A judge shall be disqualified from acting

as a judge, without loss of salary, while there is pending . . . a complaint against him filed by the

[JIC] with the [COJ].” Art. VI, § 159, Ala. Const. 1901. (Id. ¶¶ 3, 71). Thus, the filing of a JIC

Complaint, regardless of its substance or merit (or lack thereof), would serve to immediately and

automatically disqualify Justice Parker from judicial office for an indefinite period. (Id. ¶¶ 1, 28).

This automatic and immediate disqualification from his judicial office would cause Justice

Parker significant personal and professional loss, and punish protected First Amendment speech.

(Id. ¶¶ 66-70, 72-77). A JIC Complaint against Justice Parker in the COJ could be filed any day

between now and the November election without providing Justice Parker notice and a

meaningful opportunity to be heard. (Id. ¶ 79).


5

ARGUMENT

I. ABSTENTION IS UNWARRANTED AND UNNECESSARY IN THIS MATTER.

A. Abstention is the Exception, Not the Rule.

Abstention in this matter is inappropriate and unnecessary. As the Supreme Court has

noted, “[i]n the main, federal courts are obligated to decide cases within the scope of federal

jurisdiction. Abstention is not in order simply because a pending state-court proceeding involves

the same subject matter.” Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584 (2013). Indeed,

“[a]bstention is, of course, the exception and not the rule.” City of Houston v. Hill, 482 U.S.

451, 467 (1987) (emphasis added). “Circumstances fitting within the Younger doctrine, we have

stressed, are exceptional.” Sprint Commc’ns, 124 S. Ct. at 588. “Federal courts, it was early and

famously said, have ‘no more right to decline the exercise of jurisdiction which is given, than to

usurp that which is not given.’” Id. at 590 (quoting Cohen v. Virginia, 18 U.S. 264 (1821)).

“Jurisdiction existing, this Court has cautioned, a federal court’s ‘obligation’ to hear and decide a

case is ‘virtually unflagging.’” Id. at 591 (quoting Colorado River Water Conservation Dist. v.

United States, 424 U.S. 800, 817 (1976)) (emphasis added).

The thrust of the JIC’s entire premise for abstention is based on its misplaced reliance on

Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982). However, as in

Sprint Communications, the JIC is attempting to “attribute to this Court’s decision in Middlesex

extraordinary breadth.” Sprint Commc’ns, 134 S. Ct. at 593. The JIC’s analysis suffers from a

fatal flaw, as it completely misunderstands the analysis the Supreme Court has adopted post-

Middlesex and post-Butler. (MTD at 7-8). In fact, the entire analysis of the JIC misses the mark

because it begins in medias res. Subsequent to the discussion provided in Butler v. Alabama

Judicial Inquiry Comm’n, 245 F.3d 1257 (11th Cir. 2001), which is relied upon by the JIC (MTD


6

at 7-8), the Supreme Court clarified its position on the Middlesex factors. See Sprint Commc’ns,

134 S. Ct. at 592-93. That is, in Sprint Communications the Supreme Court made abundantly

clear that the three Middlesex factors were simply additional considerations for a federal court to

engage in after determining that a proceeding was – at minimum – quasi-criminal. Id.

Indeed, as the Court noted, “[d]ivorced from their quasi-criminal context, the three Middlesex

conditions would extend Younger to virtually all parallel state and federal proceedings, at least

where a party could identify a plausibly important state interest.” Id. at 593. Contrary to the JIC’s

contentions, the Middlesex factors have a critical prerequisite—a quasi-criminal proceeding.

Fatally for the JIC, such a proceeding is clearly missing here. “The three Middlesex factors

recited above were not dispositive; they were, instead, additional factors appropriately

considered by the federal court before invoking Younger.” Id. (emphasis original). However,

extending Younger to the “extraordinary breadth” that the JIC seeks here produces a “result that

is irreconcilable with our dominant instruction that, even in the presence of parallel state

proceedings, abstention from the exercise of federal jurisdiction is the ‘exception, not the rule.’”

Id. (quoting Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 236 (1984)). This Court should

retain jurisdiction and decide the important constitutional questions at issue here.

B. Preliminary Investigations Do Not Amount To State Judicial Proceedings.

The JIC makes no effort whatsoever to show that its preliminary investigation process

contains the prerequisite quasi-criminal component. Having waived the argument, the JIC’s

motion to dismiss should be denied on this ground alone. Even if the JIC had met its burden of

showing that quasi-criminal proceedings are afoot, abstention would still be improper because

such preliminary proceedings are insufficient to warrant abstention. Contrary to the JIC’s


7

contentions (MTD at 8 and n.7), preliminary investigative processes prior to the filing of actual

proceedings do not qualify as “state judicial proceedings”3 sufficient to invoke Younger.4

“In the absence of a pending prosecution, the principles that provided the rationale for

abstention—equity, comity, and federalism—‘have little force.’” For Your Eyes Alone, Inc. v.

City of Columbus, 281 F.3d 1209, 1217 (11th Cir. 2002) (quoting Steffel v. Thompson, 415 U.S.

454, 462 (1974)). Indeed, preliminary investigations without the commencement of formal

judicial proceedings fail to constitute state judicial proceedings sufficient to invoke Younger

abstention. See, e.g., Sprint Commc’ns, 134 S. Ct. at 592 (holding that state administrative

proceeding initiated by a private actor without the commencement of formal proceedings does

not trigger abstention under Younger); Steffel. 415 U.S. at 472 (holding that Younger does not

prevent federal courts from issuing equitable relief “when a state prosecution has been

threatened, but is not pending”); Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992 (holding that

Younger abstention was clearly erroneous “absent any pending proceeding in state tribunals”).

The JIC’s preliminary investigation of Justice Parker, without the filing of a formal complaint or

3 The JIC attempts to greatly expand the reach of the Supreme Court’s abstention doctrine by continuously referring merely to “state proceeding.” (E.g., MTD at 8 n.7). But, this effort is

plainly in error. What Younger abstention requires is a state judicial proceeding. See, e.g.,

Sprint Commc’ns, 134 S. Ct. at 590 (discussing abstention is the context of an “ongoing state

judicial proceeding”) (emphasis added); Middlesex, 457 U.S. at 435 (abstention only merited

when there is a “pending state judicial proceeding”) (emphasis added).

4 The JIC erroneously states that Justice Parker has conceded that the private complaint and the

JIC preliminary investigation constitute state judicial proceedings. (MTD at 8). Justice Parker, as

he was required to do for purposes of his §1983 claim, alleged in his Verified Complaint that the

JIC investigation constitutes “state action.” See, e.g., Grayden v. Rhodes, 345 F.3d 1225, 1232

(11th Cir. 2003) (noting that to state a claim under 42 U.S.C. § 1983 a plaintiff must allege inter

alia state action). “State action” is merely an allegation that the depravation of constitutional

rights took place at the hands of state officials. “State action” is not the same as “state judicial

proceedings.” The JIC erroneously conflates the involvement of state officials with the ongoing

state judicial proceedings required to invoke Younger. As Justice Parker demonstrates herein,

preliminary state investigations prior to the commencement of actual proceedings do not

constitute “state judicial proceedings.”


8

the initiation of actual proceedings in the COJ simply fails to provide a sufficient basis for this

Court to abstain.

Indeed, numerous circuit courts that have considered this issue have reached a similar

conclusion. See, e.g., Google, Inc. v. Hood, 822 F.3d 212, 223-24 (5th Cir. 2016) (holding that

issuance of state investigative subpoena prior to actual charges or formal proceedings is clearly

insufficient to invoke Younger abstention); Mulholland v. Marion Cnty. Election Bd., 746 F.3d

811, 817 (7th Cir. 2014) (“The possibility that a state proceeding may lead to a future

prosecution of the federal plaintiff is not enough to trigger Younger abstention; a federal court

need not decline to hear a constitutional challenge within its jurisdiction merely because a

state investigation has begun”) (emphasis added); Guillemard-Ginorio v. Contreas-Gomez, 585

F.3d 508, 519 (1st Cir. 2009) (“We are persuaded that the agency’s investigation of the plaintiff

was at too preliminary a stage to constitute a ‘proceeding’ triggering Younger abstention.”); La.

Debating & Literary Ass’n v. City of New Orleans, 42 F.3d 1482, 1490-91 (5th Cir. 1995)

(holding that Younger abstention was inappropriate because the commission has merely received

a complaint from a third party and informed the subject of the complaint of its intent to

investigate, which was insufficient to constitute an ongoing proceeding); Telco Commc’ns, Inc.

v. Carbaugh, 885 F.2d 1225, 1229 (4th Cir. 1989) (“We decline to hold that Younger abstention

is required whenever a state bureaucracy has initiated contact with a putative federal plaintiff.”);

id. (rejecting the contention “that abstention is required whenever enforcement is threatened”);

Moaghan v. Deakins, 798 F.2d 632, 637 (3d Cir. 1986), aff’d in part, vacated in part on other

grounds 484 U.S. 193 (1988) (“Younger abstention is appropriate only when there is a pending

proceeding in which a state court will have the authority to adjudicate the merits of a plaintiff’s

federal claims.”) (emphasis original); id. (holding that there was no ongoing state judicial


9

proceeding when the state had filed no charge, either criminal or civil against the federal

plaintiff); see also Major League Baseball v. Butterworth, 181 F. Supp. 2d 1316, 1321 n.2 (N.D.

Fla. 2001), aff’d sub nom. Major League Baseball v. Crist, 331 F.3d 1177 (11th Cir. 2003)

(holding that state investigative demands by an attorney general are not sufficient to invoke

Younger abstention “[u]nless and until someone files a proceeding in court.”).

Here, the JIC Rules make it abundantly clear that the filing of a complaint with the JIC by

a private party does not automatically constitute a JIC proceeding. (VC ¶ 24). In fact, the JIC

Rules state that once such a private complaint has been filed, the JIC is required to “advise the

judge of those aspects of the complaint that it then considers worthy of investigation.” (Id.)

(emphasis added). Moreover, Rule 10 of the JIC Rules contemplates a specific difference

between an official complaint being filed by the JIC with the COJ (which triggers judicial

proceedings), and a mere investigation by the JIC of a complaint it receives from a private party.

(Id. ¶ 25) (“At any time during the pendency of a charge or investigation but more than 10 days

before the trial, the judge being charged or investigated may demand, and the whole

commission must conduct, a hearing before the whole commission to discuss the charge or

suspected conduct and to attempt to resolve the charge or investigation on terms to be

presented by joint motion to the [COJ]”) (emphasis added). Given that the rules specifically

contemplate a preliminary investigation dealing with suspected conduct and a separate and

distinct actual charge, the JIC’s preliminary investigation here is simply insufficient to

constitute an ongoing “state judicial proceeding.” This is plainly insufficient to invoke Younger.

Indeed, as the Supreme Court has cautioned, “federal courts ordinarily should entertain and

resolve on the merits an action within the scope of a jurisdictional grant and should not refuse to

decide a case in deference to the States.” Sprint Commc’ns, 134 S. Ct. at 588 (quoting New


10

Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 368 (1989)). This

Court should retain jurisdiction and determine the significant and cherished constitutional

liberties at issue for Justice Parker.

The JIC attempts to equate the instant matter to that involved in the Supreme Court’s

decision in Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982). Such

reliance is misplaced. In Middlesex, unlike here, the committee had completed its preliminary

investigation, filed a formal complaint instituting proceedings, and held a hearing on those

proceedings. Middlesex, 457 U.S. at 433-35.5 Such is not the case here. The JIC has merely

instituted an investigation, not a judicial proceeding. (VC ¶¶58, 59, 64) (noting that the JIC has

merely informed Justice Parker of its preliminary investigation, continued such investigation,

and that no official complaint has been filed with the COJ).

The JIC’s reliance on Butler is also misplaced. (MTD 11-12). Butler is completely

inapposite to the claims raised here because the JIC had actually filed a formal complaint against

Justice See. See Butler, 245 F.3d at 1261 (“A majority of the JIC agreed that a reasonable basis

existed to charge Justice See with violating the judicial code. The JIC filed a 3-count complaint

against Justice See in the Court of the Judiciary.”) (emphasis added). Indeed, despite relying

on it to bolster its abstention claims, the JIC actually admits that there is a procedural difference

between Butler and Justice Parker’s claims here. (MTD at 12) (“Justice Harold See of the

Alabama Supreme Court had been charged in a JIC complaint.”) (emphasis added). Here, the

JIC has not charged Justice Parker with anything, has not filed a formal complaint with the JIC,

and has only instituted a preliminary investigation into whether a private, third-party complaint

5 It is worth noting that four Justices questioned whether the proceedings in an ethics committee

are more appropriately viewed as prosecutorial rather than judicial in nature. See Middlesex, 457

U.S. at 439 (Marshall, J., concurring) (“it is unclear whether proceedings before the Ethics

Committee are more accurately viewed as prosecutorial rather than judicial in nature”).


11

has any merit. (VC ¶¶ 58, 59, 64). The JIC’s reliance on Butler provides no support for its claim

that abstention is required here.

Finally, Judge Albritton’s recent decision to abstain in Moore v. Judicial Inquiry

Commission, et al., No. 2:16-cv-00388-WHA-GMB, Dkt. 46 (M.D. Ala. Aug. 4, 2016) (“Moore

v. JIC”), does not change this analysis or merit the same result. Importantly, in Moore, Judge

Albritton recognized the critical distinction between the two cases: “On Friday, May 6, 2016, the

JIC filed a Complaint against the Plaintiff, Chief Justice Moore, in the COJ.” Id. at *4.

Moreover, in Moore, Judge Albritton based his decision to abstain largely on his conclusion that

“[t]he temporary disqualification having been accomplished, and enforced, there is an ongoing

state proceeding.” Id. at *10. It was this actual, not merely potential, disqualification that merited

abstention in the Court’s mind. See id. at 10-11 (“An injunction against the enforcement of

Article VI, § 159, therefore, would unduly interfere with the ongoing proceedings of

disqualification under and enforcement of § 159 by terminating that enforcement.”). Here, no

complaint has been filed against Justice Parker and thus there are no ongoing proceedings against

him. (VC ¶¶ 58, 59, 64). In addition, no enforcement of any provision against him has been

commenced. (VC ¶¶ 64). Therefore, the Court’s decision in Moore is readily distinguishable

from Justice Parker’s challenge to the canons and Section 159. Abstention is inappropriate here.

As this discussion demonstrates, the procedural posture of this case makes it clearly

distinguishable from that in Middlesex, Butler, and Moore. Preliminary investigations do not

constitute ongoing judicial proceedings sufficient to invoke Younger. Abstention is therefore

inappropriate and unwarranted, and this Court should retain jurisdiction and proceed to the

merits.


12

C. The First Amendment Issues In This Matter Compel This Court’s

Jurisdiction.

Another critical distinction between this case and Chief Justice Moore’s case before

Judge Albritton is that, while Chief Justice Moore brought only a substantive due process claim

to the automatic disqualification provision, this case involves significant First Amendment rights

and Justice Parker raises First Amendment challenges to state laws. Even if the JIC’s preliminary

investigation of Justice Parker represented an ongoing state judicial proceeding—which it does

not—the Supreme Court has made it abundantly clear that it is especially hesitant to abstain

when significant First Amendment issues are at stake. City of Houston, 482 U.S. at 467 (“[W]e

have been particularly reluctant to abstain in cases involving challenges based on the First

Amendment. We have held that abstention is inappropriate for cases where statutes are

justifiably attacked on their face as abridging free expression.”) (emphasis added). The

premise behind the Supreme Court’s position is simple: delaying federal adjudication of

fundamental First Amendment liberties itself can constitute a chill of those rights. Indeed, “[i]n

such cases to force the plaintiff who has commenced a federal action to suffer the delay of state-

court proceedings might itself effect the impermissible chilling of the very constitutional right he

seeks to protect.” Id. at 467-68 (quoting Zwickler v. Koota, 389 U.S. 241, 252 (1967)). When, as

here, important speech concerns are squarely at issue, and the plaintiff suffers irreparable injury

by virtue of an unconstitutional statute, abstention is inappropriate and unwarranted.

Dombrowski v. Pfister, 380 U.S. 479, 486 (1965) (holding that Younger abstention was

inappropriate because cherished constitutional liberties were at stake, and concluding that if a

federal court were to abstain in such circumstance, “free expression—of transcendent value to all

society, and not merely to those exercising their rights—might be the loser.”).


13

In light of these clear admonitions, countless courts have refused to abstain in matters

where free speech hangs in the balance. See, e.g., Dombrowski, 380 U.S. at 492 (“We conclude

that on the allegations of the complaint, if true, abstention and the denial of injunctive relief may

well result in the denial of any effective safeguards against the loss of protected freedoms of

expression, and cannot be justified.”); Bagget v. Bullitt, 377 U.S. 360 (1964) (rejecting

abstention when critical First Amendment issues are at stake in state proceeding); Porter v.

Jones, 319 F.3d 483, 486-87 (9th Cir. 2003) (abstention is inappropriate in First Amendment

cases because “the delay that results from abstention will itself chill the exercise of rights that the

plaintiffs seek to protect by suit”); For Your Eyes Alone, 281 F.3d at 1219 (refusing to abstain

based on “concern over the costs of abstention in a suit where the plaintiff brings a facial or as-

applied challenge to a state statute on First Amendment free speech grounds. Uncertainty as to

the constitutionality of the statute at issue, or as to the conduct of agents implementing the

statute, can in itself chill future speech.”); La. Debating & Literary Ass’n, 42 F.3d at 1482

(holding that a district court need not abstain from challenge brought under the First

Amendment); Telco Commc’ns, 885 F.2d at 1225 (holding that district court erred in abstaining

in a case involving the chilling of important First Amendment concerns).

Here, it cannot be gainsaid that Justice Parker has alleged a violation of his First

Amendment liberties. (VC ¶ 66) (“The pendency of any JIC investigation, or any future ethics

complaints lodged against Justice Parker for his political speech based upon the same Canons at

issue in the current investigation, violates his free speech rights as a judicial candidate and sitting

judge and significantly chills his First Amendment-protected speech about issues and matters of

public importance.”); (id. ¶ 67) (“The JIC’s ongoing investigation against Justice Parker forces

him to engage in self-censorship of his desired speech as a judicial candidate and sitting judge.”);


14

(id. ¶ 68) (“Justice Parker desires to engage in more discussion of public issues and matters of

public importance, including issues related to the courts, in the lead-up to the November election.

However, this speech may be affected and prohibited by the Defendants’ interpretation and

application of the Judicial Canons as applied to him and he faces at least a minimal probability

that they will be enforced against him by the Defendants if he engages in similar speech.”); (id.

¶ 69) (“Indeed, Justice Parker is threatened with sanction and faces a credible threat of sanction

based upon the Defendants’ refusal to dismiss the allegations lodged against him related to his

speech and Defendants’ ongoing commitment to investigate him for his speech while he is

running for reelection to judicial office.”); (see also id. ¶¶ 85-107) (alleging that the JIC’s

investigation into Justice Parker and the judicial canons at issue here are violations of the First

Amendment).

Given the unquestionable threat to the loss of Justice Parker’s liberties by virtue of the

challenged canons, abstention is inappropriate. Indeed, abstention by this Court would work

additional and irreparable injury to Justice Parker and constitute a significant and continuing

chilling of his cherished First Amendment freedoms. The First Amendment issues in this matter

compel this Court’s jurisdiction.

D. The JIC Can Provide No Relief to Justice Parker On His Significant First

Amendment Injury.

The JIC’s only answer to Justice Parker’s significant First Amendment injury allegations

is to suggest that alternative dispute resolution and an advisory opinion could provide him all the

remedy he requires. (MTD at 9). The JIC is plainly in error, and its suggestions actually prove

the First Amendment injuries that Justice Parker is alleging as well as the need for this Court’s

intervention. Justice Parker has no adequate opportunity to have his First Amendment claims

decided in the current forum.


15

First, requiring Justice Parker to seek an advisory opinion prior to engaging in

constitutionally protected speech itself represents a constitutional violation. Indeed, the JIC’s

effort to force Justice Parker to seek an opinion concerning his speech would represent a classic

prior restraint on his speech, as he has alleged in his Verified Complaint. (VC ¶ 104). See

Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 130 (1992); Bantham Books, Inc. v.

Sullivan, 372 U.S. 58, 70 (1963). The JIC’s contention that Justice Parker can solve his First

Amendment injuries by resorting to an unconstitutional system of prior restraints before

engaging in his protected speech provides him no redress at all.

Second, the JIC’s suggestion that Justice Parker can adequately resolve his First

Amendment injuries in the current forum by resorting to alternative dispute resolution is plainly

absurd. (MTD at 9). While alternative dispute resolution procedures could theoretically aid all

federal plaintiffs in their challenges to unconstitutional state laws or their application, resort to

alternative dispute resolution is never a prerequisite to having one’s cherished constitutional

liberties adjudicated by a court of competent jurisdiction. Under the JIC’s theory, however, a

federal plaintiff would never be able to bring a challenge to state statutes infringing on his

constitutional rights because alternative dispute resolution mechanisms are always available.

Such is not the law. In fact, forcing Justice Parker to forego adjudication of his First Amendment

liberties in favor of some other less formal or quasi-judicial procedure reflects a complete

misunderstanding of First Amendment jurisprudence. See, e.g., City of Lakewood v. Plain Dealer

Publ’g Co., 486 U.S. 750 (1988) (“a facial challenge lies whenever a licensing law gives a

government official or agency substantial power to discriminate based on the content or

viewpoint of speech by suppressing disfavored speech or disliked speakers.”). Here, suggesting

that Justice Parker can obtain all he needs to remedy his alleged constitutional violations through


16

alternative dispute resolution ignores the fact that, particularly in the First Amendment context,

speakers are not required to wait to have their claims adjudicated. Dombrowski v. Pfister, 380

U.S. 479 (1965) (holding that, in the First Amendment context, plaintiffs are not required to wait

until prosecution or application of an allegedly unconstitutional statute to bring suit). The same is

true here, where forcing Justice Parker to wait until Section 159 has been applied against him to

bring suit institutes its own chill and imposes the very damage he seeks to protect himself from

in this forum.

Moreover, even if the alternative dispute resolution procedures cited by the JIC could

theoretically give relief to some plaintiffs in some proceedings, the simple fact is that no such

relief can be obtained by Justice Parker here. Indeed, the JIC has no authority whatsoever to

decide questions of constitutional law or to invalidate any canon at issue here. The JIC is bound

to follow the law as written, and therefore it can provide no redress whatsoever concerning

Justice Parker’s facial challenge to invalidate a canon as unconstitutional. Alternative dispute

resolution would be utterly worthless to Justice Parker’s challenge.

This situation is akin to that presented in Steffel. See, e.g., Steffel, 415 U.S. at 462. There,

no actual proceedings had been commenced, so there was no forum in which the plaintiff could

raise his constitutional claims and have them adjudicated on the merits. Id. In that situation,

abstention was found inappropriate. Id. (“while a pending state prosecution provides the federal

plaintiff with a concrete opportunity to vindicate his constitutional rights, a refusal on the part of

the federal courts to intervene when no state proceeding is pending may place the hapless

plaintiff between the Scylla of intentionally flouting state law and the Charybdis of forgoing

what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in


17

a criminal proceeding.”). The JIC’s remarkable position attempts to place Justice Parker squarely

in this mythological conundrum. This Court should not facilitate it.

Moreover, the JIC’s only refuge for contending that Justice Parker has an adequate forum

for adjudicating his constitutional claims is found in a heavily redacted (indeed, butchered)

version of secret authority holding no precedential value whatsoever. For the reasons outlined in

Justice Parker’s Opposition to the JIC’s Motion to Seal (dkt. 29), the JIC’s reliance is misplaced.

Such secret authority cannot serve as the basis for abstention because it has no precedential value

whatsoever, and therefore cannot establish any precedent for the JIC’s purported authority to

decide constitutional questions. Yet, even if the Court were to consider the JIC’s “secret

precedent,” which it should not, that “secret precedent” only purports to address the ability of the

COJ – not the JIC – to entertain and adjudicate constitutional questions and challenges. The

JIC’s “secret precedent” says nothing about the JIC’s ability to safeguard First Amendment

rights. On the contrary, in the large portions of the “secret precedent” which the JIC conveniently

redacted, the JIC was rebuked for breaking its own rules and for misunderstanding the First

Amendment.

The distinction between the COJ and the JIC is critical. As the JIC has not filed charges

against Justice Parker, he cannot appeal to the COJ for the vindication of his First Amendment

rights, even if the JIC’s “secret precedent” were correct and controlling. 6 The JIC cannot

6 Here, again, the factual circumstance surrounding Justice Parker’s challenge is readily

distinguishable from the decision of Judge Albritton in Moore. Judge Albritton decided to

abstain because he believed that the COJ – where the JIC case against Chief Justice Moore was

pending – could provide potential redress of constitutional questions. Moore v. JIC, Dkt. 46 at

*14. There has been no finding, nor could there be, that the JIC can provide any redress to

Justice Parker’s alleged constitutional violations. Indeed, the JIC is merely an investigatory and

accusatory body with no constitutional authority to decide matters of constitutional law. Given

that there are no COJ or other proceedings and that the JIC is merely in its preliminary


18

seriously maintain that Justice Parker must wait for the JIC to formally prosecute him someday,

before he can challenge the unconstitutional cannons and laws that are impermissibly chilling his

free speech today. Such a concept is anathema to the First Amendment. Dombrowski, 380 U.S.at

486 (“Because of the sensitive nature of constitutionally protected expression, we have not

required that all of those subject to overbroad regulations risk prosecution to test their rights . . .

If the rule were otherwise, the contours of regulations would have to be hammered out case by

case—and tested only by those hardy enough to risk criminal prosecution to determine the proper

scope of regulation.”); City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 797 (1984)

(allowing a facial challenge despite the fact that no enforcement proceeding was pending);

Thornhill v. Alabama, 310 U.S. 68, (1940) ( permitting a pre-enforcement challenge because “[i]t

is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its

very existence that constitutes the danger to freedom of discussion.”).

The JIC contends that Justice Parker can obtain redress of his injuries by resorting to a

Rule 19 petition to the Alabama Supreme Court. (MTD at 11-12 and n.9). But, the JIC’s own

argument, coupled with a plain text reading of Rule 19, reveals that Justice Parker can obtain no

such redress. Indeed, Rule 19 states that “[a]ny judge who is the subject of investigation by the

commission and who claims to be aggrieved by any violation of these Rules may petition the

Supreme Court directly for relief.” However, such petitions only permit a judge to seek redress

for a JIC violation of its own rules. Rule 19 says nothing and provides no redress for a judge who

seeks to invalidate a state statute or canon as unconstitutional. No such petition is available for

Justice Parker in this instance. His only source of redress is this Court.

investigation (VC ¶¶ 58, 59, 64), Moore provides no guidance on whether abstention is

appropriate here.


19

E. Injunctive Relief Of Section 159 Would Not Interfere With Any Ongoing

State Judicial Proceedings.

Even if the JIC could establish an ongoing state court proceeding, which it cannot,

abstention would still be inappropriate because injunctive relief in this matter would not interfere

with any such (nonexistent) state judicial proceedings. Under Younger, whether abstention is

appropriate depends on whether the district court is being asked to interfere with an ongoing

state court proceeding. The mere pendency of a state proceeding is not sufficient to invoke

Younger abstention if the relief sought in federal court would not interfere with that proceeding.

“[A]n essential part of the first Middlesex factor [ongoing state proceeding] in Younger

abstention analysis is whether the federal proceeding will interfere with an ongoing state court

proceeding. If there is no interference, then abstention is not required.” 31 Foster Children v.

Bush, 329 F.3d 1255, 1276 (11th Cir. 2003). See also, New Orleans Public Service, Inc. v.

Council of City of New Orleans, 491 U.S. 350, 359 (1989) (“NOPSI”) (stating that abstention is

proper to avoid “undue interference with state proceedings”).

“In order to decide whether the federal proceeding would interfere with the state

proceeding, [this court must] look to the relief requested and the effect it would have on the state

proceedings.” Bush, 329 F.3d at 1276. In this case, however, enjoining Article VI, § 159, of the

Alabama Constitution would not terminate any COJ proceedings, because none are pending.

Unlike Bush, where the relief sought would have required “‘federal court oversight of state court

operations,’” 329 F. 3d at 1278 (quoting Joseph A. ex rel. Wolfe v. Ingram, 275 F.3d 1253, 1271

(10th Cir. 2002)), the enjoining of § 159 here would not require the Court to engage in

continuous monitoring or review of state proceedings. See Wexler v. Lepore, 385 F.3d 1336,

1340 (11th Cir. 2004) (holding that abstention was not appropriate “unless the requested federal


20

relief would result in meticulous and burdensome federal oversight of state court or court-like

functions”).

The requirement that Alabama provide a judge with due process before imposing a

suspension from office neither interferes with the current JIC preliminary investigation nor

requires this Court to supervise any future proceeding. An analogous case from the Southern

District of Alabama reached the same conclusion. M.R. v. Board of School Comm’rs of Mobile

County, 2012 WL 3778283, at *1 (S.D. Ala. Aug. 30, 2012). In M.R., public-school students

sued the Board of School Commissioners of Mobile County for imposing long-term suspensions

“without proper notice or a hearing for minor infractions.” Id. at * 1. The court concluded that

requiring a due-process hearing before imposing a long-term suspension would not create the

ongoing entanglement with state proceedings that the abstention doctrine was intended to

preclude:

If plaintiffs prevail on their federal constitutional claims, then the Board will be

subject to a federal injunction requiring it to provide written notice and a hearing

to students before imposing long-term suspensions. Neither this Court nor any

other would be intruding on those proceedings in individual cases, stripping state

courts of their authority to decide them, or telling state courts what to do.

....

And nothing about the relief sought here would constitute the kind of invasive,

disruptive federal court oversight or entanglement in state-court proceedings that

constitutes undue interference

Id. at *6 n.9 (emphasis added). Because enjoining §159 would not “usurp the state courts’ ability

to ‘perform their judicial functions,’” Wexler, 385 F.3d at 1341 (quoting NOPSI, 491 U.S. at

368), abstention is unwarranted. The JIC’s motion should be denied.

II. SOVEREIGN IMMUNITY PROVIDES NO REFUGE TO THE JIC.

The JIC claims that sovereign immunity is an additional reason for this Court to dismiss

Justice Parker’s claims. (MTD at 16 n.11). This contention is wholly devoid of merit. Ex Parte


21

Young provided an important exception to Eleventh Amendment immunity, which is squarely

applicable here. See Ex Parte Young, 209 U.S. 123, 160 (1908). There, the Court excepted suits

involving equitable relief against state officers enforcing unconstitutional laws. Id.; see also

Summit Med. Assoc., P.C. v. Pryor, 180 F.3d 1326, 1335 (11th Cir. 1999) (“there is a long and

well-recognized exception to this rule for suits against state officers seeking prospective

equitable relief to end continuing violations of federal law.”). Indeed, “[t]he Eleventh

Amendment generally does not bar the exercise of the judicial power of the United States where

a plaintiff seeks to compel a state officer to comply with federal law.” Summit, 180 F.3d at

1336.

Moreover, the Supreme Court has stated that “[i]n determining whether the doctrine of Ex

parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a

‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal

law and seeks relief properly characterized as prospective.” Va. Office for Protection and

Advocacy v. Stewart, 563 U.S. 247, 255 (2011). The Eleventh Circuit has described the relevant

inquiry as follows: “the Eleventh Amendment bars suits against state officials in federal court

seeking retrospective or compensatory relief, but does not generally prohibit suits seeking only

prospective injunctive or declaratory relief.” Summit, 180 F.3d at 1337.

In Summit, as does the JIC here (MTD at 16 n.11), the government argued that it had

certain sovereign interests particularly at issue that warranted exception to Ex Parte Young. Id.

at 1338. The Eleventh Circuit rejected that argument stating that there are no special sovereignty

interests meriting an exception under Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 (1997).

Summit, 180 F.3d at 1340. Indeed, the Eleventh Circuit stated that the narrow exception in

Idaho was only permitted because it had a retrospective effect on the state’s property or treasury


22

interest. Id. “[T]he remedy of declaratory judgment is not the ‘functional equivalent’ of a form

of relief barred by the Eleventh Amendment. A declaratory judgment will establish only the

constitutionality of these statutes.” Id. (emphasis original). As is true here, prospective relief

will not implicate or affect the state’s ability to regulate its sovereign interest in other

constitutional ways, but merely ensure unconstitutional statutes are not enforced. Id.

Importantly, here, as well, Ex Parte Young’s “requirement does not mean that the

enforcement of the allegedly unconstitutional state statute actually must be in progress against

the particular plaintiff initiating suit.” Id. at 1338. “Thus where there is a threat of future

enforcement that may be remedied by prospective relief, [Ex Parte Young] has been satisfied.”

Id. Justice Parker clearly alleged violations of his constitutional liberties by virtue of the

challenged canons and imminent enforcement of unconstitutional statutes. (VC ¶¶ 3, 4, 58-64,

66-83). These allegations are sufficient to demonstrate that Justice Parker seeks only

prospective relief against unconstitutional statutes. Sovereign immunity does not exempt the JIC

from this suit.

III. JUSTICE PARKER’S WELL-PLEADED ALLEGATIONS PLAINLY

ESTABLISH A CLAIM UPON WHICH RELIEF CAN BE GRANTED.

“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and

plain statement of the claim showing the pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S.

662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). “[A] complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual allegations,” but a plaintiff must meet his

“obligation to show the grounds of his entitlement to relief.” Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007). The Supreme Court does “not require heightened fact pleading of

specifics, but only enough facts to state a claim to relief that is plausible on its face” and enough

facts to “nudge[] [plaintiffs’] claims across the line from conceivable to plausible.” Id. at 570;


23

see also Ashcroft, 556 U.S. at 679 (“a complaint that states a plausible claim to relief survives a

motion to dismiss”). A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a

complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim,

or the applicability of defenses. See 5A Charles A. Wright & Arthur R. Miller, Federal Practice

and Procedure § 1356 (1990). The pleading standard “simply call[s] for enough facts to raise a

reasonable expectation that discovery will reveal evidence of [unlawful actions].” Bell Atlantic,

550 U.S. at 556.

Indeed, “[t]he granting of a motion to dismiss is disfavored and rare.” Sosa v. Coleman,

646 F.2d 991, 993 (5th Cir. 1981) (emphasis added); Gasper v. La. Stadium & Exposition Dist.,

577 F.3d 897, 900 (5th Cir. 1978) (noting that motions to dismiss are highly disfavored and

“rarely granted”); id. (“dismissal of a claim on the basis of barebone pleadings is a precarious

disposition with a high mortality rate”). As the Supreme Court noted,

In appraising the sufficiency of the complaint, we follow, of course, the

accepted rule that a complaint should not be dismissed for failure to state a claim

unless it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.

Conley v. Gibson, 355 U.S. 41, 45 (1957). The JIC cannot overcome this extraordinarily high

burden, and its Motion should be denied.

A. Justice Parker’s Well-Pleaded Allegations Plainly Establish A Violation Of

The First Amendment.

The JIC completely ignores Justice Parker’s First Amendment claims not only in its

abstention analysis, but, critically, also in its request for dismissal under Rule 12(b)(6). (MTD at

17-25). That is, the JIC asks for dismissal of Justice Parker’s entire Complaint on failure to state

a claim grounds, but skips over the 90% of Justice Parker’s Complaint devoted to First


24

Amendment claims, and focuses only on the subset of that Complaint dealing with Due Process.

(Id.).

This is primarily a First Amendment case. While the JIC is content to ignore that fact and

is apparently oblivious to the critical difference that makes for both abstention and Rule 12(b)(6)

purposes, this Court should not likewise cast aside Justice Parker’s First Amendment challenge.

Although, by omitting it from its brief, the JIC has waived any argument that Justice Parker has

failed to state claims for First Amendment violations, Justice Parker demonstrates herein that he

has, in fact, stated such claims. The JIC should not construe this discussion as an invitation to

bring in its Reply arguments it has waived by not bringing them in its initial brief. Allowing the

JIC to circumvent the briefing requirements in that fashion would deprive Justice Parker of any

meaningful opportunity to address and respond to the JIC’s arguments.

Justice Parker’s allegations establish that his First Amendment rights are being infringed.

Justice Parker has clearly alleged that the speech at issue is protected by the First Amendment.

His allegations establish that the canons he is challenging represent content-based restrictions on

his core political speech, that they are unconstitutionally overbroad, represent unconstitutional

prior restraints, and are vague. All of these allegations plainly establish that he is entitled to

relief.

1. Justice Parker’s Well-Pleaded Allegations Establish That His Speech

Is Protected.

Justice Parker’s speech at issue in the JIC investigation represents core political speech

deserving of the highest constitutional protection. “A candidate’s speech during an election

campaign ‘occupies the core of the protection afforded by the First Amendment.’” Weaver v.

Bonner, 309 F.3d 1312, 1319 (11th Cir. 2002) (quoting McIntyre v. Ohio Elections Comm’n, 514

U.S. 334, 346 (1995)). The Supreme Court has consistently recognized the critical importance of


25

protecting political speech, and has firmly maintained that “[t]he political candidate does not lose

the protection of the First Amendment when he declares himself for public office”:

At the core of the First Amendment are certain basic conceptions

about the manner in which political discussion in a representative

democracy should proceed. . . Whatever differences may exist

about interpretations of the First Amendment, there is

practically universal agreement that a major purpose of that

Amendment was to protect the free discussion of governmental

affairs. This of course includes discussions of candidates,

structures and forms of government, the manner in which

government is operated or should be operated, and all such matters

relating to political processes. The free exchange of ideas

provides special vitality to the process traditionally at the heart

of American constitutional democracy—the political campaign.

[I]f it be conceded that the First Amendment was fashioned to

assure the unfettered interchange of ideas for the bringing about of

political and social changes desired by the people, then it can

hardly be doubted that the constitutional guarantee has its fullest

and most urgent application precisely to the conduct of

campaigns for political office. The political candidate does not

lose the protection of the First Amendment when he declares

himself for public office. Quite to the contrary: The candidate,

no less than any other person, has a First Amendment right to

engage in the discussion of public issues and vigorously and

tirelessly to advocate his own election and the election of other

candidates. Indeed, it is of particular importance that

candidates have the unfettered opportunity to make their views

known so that the electorate may intelligently evaluate the

candidates’ personal qualities and their positions on vital

public issues before choosing among them on election day. Mr.

Justice Brandeis’ observation that in our country public discussion

is a political duty, applies with special force to candidates for

public office.

Brown v. Hartlage, 456 U.S. 45, 52-53 (1982) (internal citations and quotations omitted)

(emphasis added); see also Republican Party of Minnesota v. White, 536 U.S. 765, 781 (2002)

(“‘[D]ebate on the qualifications of candidates’ is ‘at the core of our electoral process and of the

First Amendment freedoms,’ not at the edges.”) (citing Eu v. San Francisco Cnty. Democratic

Central Comm., 489 U.S. 214, 222-23 (1989)). Indeed, “[t]he role that elected officials play in

our society makes it all the more imperative that they be allowed freely to express themselves on


26

matters of current public importance,” Wood v. Georgia, 370 U.S. 375, 395 (1962), for “the

identities of those who are elected will inevitably shape the course that we follow as a nation.”

Buckley v. Valeo, 424 U.S. 1, 14-15 (1976). Similarly, “the Court has frequently reaffirmed that

speech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values,’

and is entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145 (1983) (citing NAACP

v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982)); Carey v. Brown, 447 U.S. 455, 467

(1980).7

Justice Parker’s core political speech as a candidate for judicial office is “of particular

importance” and vital to the process “at the heart of the American constitutional democracy—the

political campaign.” See Brown, 456 U.S. at 52-53. Justice Parker has clearly alleged that the

speech at issue in the JIC preliminary investigation is core political speech. (VC ¶ 2) (“The free

speech rights of Justice Parker, a declared candidate for reelection to the Alabama Supreme

Court, have already been harmed and significantly chilled by the ongoing investigation against

him by the JIC. That harm is continuing and, in fact, increasing as the election approaches and

forces him to engage in self-censorship. Justice Parker is facing a credible threat of sanction

resulting from the JIC’s ongoing investigation of him due to his protected speech, and no

7 Quoting the U.S. Supreme Court at length in a prior case against the JIC, the Alabama Supreme

Court has similarly recognized that political speech of judicial candidates is entitled to the

highest constitutional protection:

The people of Alabama have chosen to select their judges in

partisan, contested elections. So long as this is the case, it is

essential that judicial candidates have ‘the unfettered opportunity

to make their views known,’ so that voters may intelligently

evaluate the candidates’ positions on issues of vital public

importance. Thus, the political speech of judicial candidates in

this state must be guaranteed the fullest application of the First

Amendment’s protections.

Butler v. Alabama Judicial Inquiry Comm’n, 802 So.2d 207, 214-15 (Ala. 2001) (citation

omitted) (emphasis added).


27

person—including a sitting judge and candidate for judicial office—should be forced to choose

between speech and sanction.”) At the outset of the interview that is at the heart of the JIC

investigation, Justice Parker announced that he had qualified to run for reelection to the Alabama

Supreme Court. (VC ¶ 43). During the interview, Justice Parker discussed, inter alia, political,

judicial and constitutional theory, structures of government and its different branches, key public

issues such as the role of the judiciary, constitutional interpretation, and marriage, and important

American legal history. (Id. ¶ 44). During the interview, he cited American political, historical,

and legal icons such as Supreme Court Justices Oliver Wendell Holmes, John Roberts, and

Antonin Scalia and former Presidents Thomas Jefferson and Andrew Jackson. (Id. ¶ 45). He also

referred to The Federalist Papers, the U.S. Constitution, and opinions of the United States

Supreme Court. (Id.). The function of government—including a state judicial-conduct

commission—is not to “select which issues” a sitting judge and judicial candidate may “discuss[]

or debate[] in the midst of a political campaign.” See Brown, 456 U.S. at 60. Justice Parker has

clearly alleged that his First Amendment rights are at issue.


Challenged Canons Are Content-Based.

Content-based restrictions on speech are presumptively unconstitutional. See, e.g., R.A.V.

v. City of St. Paul, 505 U.S. 377, 382 (1992) (“Content based regulations are presumptively

invalid.”). As such, a content-based restriction can only be upheld if the government “can

demonstrate that it passes strict scrutiny—that is, unless it is justified by a compelling

government interest and is narrowly drawn to serve that interest.” Brown v. Entm’t Merchants

Ass’n, 131 S. Ct. 2729, 2738 (2011); see also Ark. Educ. Television Comm’n v. Forbes, 523 U.S.

666, 677 (1998) (“If the government excludes a speaker who falls within the class to which the

designated public forum is made generally available, its action is subject to strict scrutiny.”);


28

Perry Educator’s Ass’n v. Perry Local Educators Ass’n, 460 U.S. 37, 46 (1983)(noting that in a

designated public forum, “a content-based prohibition must be narrowly drawn to effectuate a

compelling state interest”).

“It is rare that a regulation restricting speech because of its content will ever be

permissible.” United States v. Playboy Entm’t Grp., 529 U.S. 803, 818 (2000) (emphasis added).

Indeed, the notion that a content-based restriction on speech is presumptively unconstitutional is

“so engrained in our First Amendment jurisprudence that last Term we found it so ‘obvious’ as

to not require explanation.” Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd.,

502 U.S. 105, 115-16 (1991). “Regulations that permit the Government to discriminate on

the basis of the content of the message cannot be tolerated under First Amendment.” Id. at

116 (quoting Reagan v. Time, Inc., 468 U.S. 641, 648-49 (1984)) (emphasis added).

Justice Parker’s well-pleaded allegations plainly establish that the canons he is

challenging are content-based. (VC ¶ 2) (“The ethics allegations purportedly based upon certain

content based, overbroad and vague Alabama Canons of Judicial Ethics are thus on a collision

course with the First Amendment.”); (id. ¶ 42) (“On October 6, 2015, Justice Parker participated

in a radio interview with Mr. Bryan Fischer of the American Family Association on the “Focal

Point” radio show. That interview is the sole focus of the JIC investigation of Justice Parker.”);

(id. ¶ 44) (“During the interview, Justice Parker discussed political processes, structures and

forms of government, how the courts operate and should operate, judicial and constitutional

theory, and vital issues of public significance.”); (id. ¶ 58) (“On November 5, 2015, pursuant to

JIC Rule 6C, the JIC sent Justice Parker a letter informing him that the JIC had “decided to

investigate” two allegations of ethics violations against Justice Parker—namely, (1) that in his

radio interview on October 6, 2015 he “violated Canon 3A(6) by publicly commenting on [API],


29

then pending before the Alabama Supreme Court,” and (2) that in that same radio interview he

“violated Canons 1 and 2A by making comments … that undermine the integrity of and public

confidence in the integrity of the federal judiciary and the United States Supreme Court’s

interpretation of the Constitution in Obergefell v. Hodge [sic], e.g., suggesting that the Alabama

Supreme Court should defy and refuse to give effect to the Supreme Court’s decision in

Obergefell.”); (id. ¶ 93) (“Canon 3A(6) is a content based restriction on speech.”); (id. ¶ 97)

(“Canon 3A(6) is an unconstitutional content based restriction because the content of a judge’s

speech must be examined in order to determine if it is prohibited.”). These allegations are more

than sufficient to “nudge [Justice Parker’s] claims across the line from conceivable to plausible,”

and therefore survive dismissal. Bell Atl., 550 U.S. at 570.


Challenged Canons Are Unconstitutionally Overbroad.

If a regulation of speech, such as the challenged canons here, has the potential to

“significantly compromise recognized First Amendment protections of parties not before the

Court,” then Plaintiff may challenge it on overbreadth concerns. City Council of L.A. v.

Taxpayers for Vincent, 466 U.S. 789, 801 (1984); Bd. of Airport Comm’rs of City of L.A. v. Jews

for Jesus, Inc., 482 U.S. 569 (1987). “In a facial challenge to the overbreadth and vagueness of a

law, a court’s first task is to determine whether the enactment reaches a substantial amount of

constitutionally protected conduct.” Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455

U.S. 489, 494 (1982). “In the First Amendment context . . . a law may be invalidated as

overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to

the statute’s plainly legitimate sweep.’” United States v. Stevens, 130 S. Ct. 1577, 1587 (2010)

(quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008)).

This reflects the indisputable truth that “the First Amendment needs breathing space and that


30

statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly

drawn.” Broadrick v. Oklahoma, 413 U.S. 601, 611 (1973). “[A] sweeping statute . . . has the

potential to repeatedly chill the expressive activity by many individuals.” City Council of

L.A., 466 U.S. at 800-01 (1984) (emphasis added); see also United States v. Wallington, 889 F.2d

573, 576 (5th Cir. 1989) (“The constitutional defect of an overbroad restraint on speech lies in

the risk that the wide sweep of the restraint may chill protected expression.”).

Here, Justice Parker’s well-pleaded allegations show that the challenged canons are

unconstitutionally overbroad. Indeed, his well-pleaded allegations show that the challenged

canons infringe upon constitutionally protected speech. (VC ¶ 67) (“The JIC’s ongoing

investigation against Justice Parker forces him to engage in self-censorship of his desired speech

as a judicial candidate and sitting judge.”); (id. ¶ 68) (“Justice Parker desires to engage in more

discussion of public issues and matters of public importance, including issues related to the

courts, in the lead-up to the November election. However, this speech may be affected and

prohibited by the Defendants’ interpretation and application of the Judicial Canons as applied to

him and he faces at least a minimal probability that they will be enforced against him by the

Defendants if he engages in similar speech”); (id. ¶ 69) (“Indeed, Justice Parker is threatened

with sanction and faces a credible threat of sanction based upon the Defendants’ refusal to

dismiss the allegations lodged against him related to his speech and Defendants’ ongoing

commitment to investigate him for his speech while he is running for reelection to judicial

office.”); (id. ¶ 98) (“Canon 3A(6) is overbroad on its face and as applied because it prohibits

constitutionally-protected speech and expressive activities of Justice Parker and third parties not

before the Court.”); (id. ¶ 99) (“Canon 3A(6) is overbroad on its face and as applied because it

causes Justice Parker and third parties not before the Court to refrain from constitutionally


31

protected speech.”); (id. ¶ 100) (“Canon 3A(6) is overbroad on its face and as applied because it

sweeps within its ambit a substantial amount of constitutionally protected speech.”); (id. ¶ 101)

(“Canon 3A(6) is overbroad on its face and as applied because it prohibits speech that neither

affects nor would reasonably be expected to affect the outcome or impair the fairness of any

judicial proceeding or interfere with a fair trial or hearing.”). These allegations make it

abundantly clear that Justice Parker has alleged that the challenged canons “reach[] a substantial

amount of constitutionally protected conduct,” and are therefore unconstitutionally overbroad.

Hoffman Estates, 455 U.S. at 494.


Challenged Canons Represent A Presumptively Unconstitutional

Prior Restraint.

It is axiomatic that requiring government permission prior to engaging in constitutionally

protected expression is a highly suspect and disfavored prior restraint on expression. See Forsyth

Cnty. v. Nationalist Movement, 505 U.S. 123, 130 (1992). “Any system of prior restraints of

expression comes to this Court bearing a heavy presumption against its constitutional

validity.” Bantham Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (citing cases) (emphasis

added). “Because a censor’s business is to censor, there inheres the danger that he may well be

less responsive than a court . . . to the constitutionally protected interests in free expression.”

Freedman v. Maryland, 380 U.S. 51, 57-58 (1965).

It is offensive—not only to the values protected by the First Amendment, but to

the very notion of a free society—that in the context of everyday public discourse

a citizen must first inform the government of her desire to speak to her neighbors

and then obtain a permit to do so. [A] law requiring a permit to engage in such

speech constitutes a dramatic departure from our national heritage and

constitutional tradition.

Watchtower Bible & Tract Soc’y of N.Y. v. Vill. of Stratton, 536 U.S. 150, 165-66 (2002)

(emphasis added); see also Lovell v. City of Griffin, 303 U.S. 444, 451-52 (1938) (“[w]hile this


32

freedom from previous restraint . . . upon publication cannot be regarded as exhausting the

guaranty of liberty, the prevention of that restraint was a leading purpose in the adoption of the

[First Amendment].”); Carroll v. President & Comm’r Princess Anne, et al., 393 U.S. 175, 181

(1968) (“Prior restraint upon speech suppresses the precise freedom which the First

Amendment sought to protect from abridgment.” (emphasis added)).

Here, “Canon 3A(6) creates an impermissible prior restraint on constitutionally protected

speech because it restricts judicial speech in advance, but provides no criteria to guide decision-

makers in determining what speech is permissible.” (VC ¶ 104). The JIC’s investigation and

Canon 3A(6) plainly impose an unconstitutional prior restraint on Justice Parker, and he has

sufficiently alleged such a constitutional violation in his Verified Complaint.


Challenged Canons Are Unconstitutionally Vague.

A law is unconstitutionally vague if it “either forbids or requires the doing of some act in

terms so vague that [persons] of common intelligence must necessarily guess at its meaning and

differ as to its application.” Connally v. Gen. Const. Co., 269 U.S. 385, 391 (1926). “[I]f

arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards

for those who apply them.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Indeed,

“precision of regulation” is the touchstone of the First Amendment. NAACP v. Button, 371 U.S.

415, 435 (1963). The reason for the vagueness doctrine is that it guarantees that “all be informed

as to what the state commands or forbids.” Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). “A

vague law impermissibly delegates basic policy matter to policeman, judges, and juries for

resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and

discriminatory applications.” Grayned, 408 U.S. at 108. This danger is why a law must provide


33

“adequate warning of what activities it proscribes” and “set out explicit standards for those who

apply it.” Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973) (citing Grayned, 408 U.S. at 108).

Here, Justice Parker has sufficiently alleged that the challenged canons are vague and fail

to adequately apprise judges of what they require and forbid, and also that they fail to adequately

apprise those tasked with enforcing them of their proper application,. (VC ¶ 66) (“The pendency

of any JIC investigation, or any future ethics complaints lodged against Justice Parker for his

political speech based upon the same Canons at issue in the current investigation, violates his

free speech rights as a judicial candidate and sitting judge and significantly chills his First

Amendment-protected speech about issues and matters of public importance.”); (id. ¶ 67) (“The

JIC’s ongoing investigation against Justice Parker forces him to engage in self-censorship of his

desired speech as a judicial candidate and sitting judge.”); (id. ¶ 68) (“Justice Parker desires to

engage in more discussion of public issues and matters of public importance, including issues

related to the courts, in the lead-up to the November election. However, this speech may be

affected and prohibited by the Defendants’ interpretation and application of the Judicial Canons

as applied to him and he faces at least a minimal probability that they will be enforced against

him by the Defendants if he engages in similar speech.”); (id. ¶ 102) (“Canon 3A(6) is also

unconstitutional because it vests unbridled discretion in government officials and entities tasked

with enforcing Canon 3A(6), to determine what speech is (or is not) restricted by Canon 3A(6)

and what expressive activity is (or is not) prohibited.”); (id. ¶ 104) (“Canon 3A(6) . . . provides

no criteria to guide decision-makers in determining what speech is permissible.”).

Justice Parker’s allegations concerning Canons 1 and 2A also sufficiently demonstrate

vagueness. (VC ¶ 118) (“Canons 1 and 2A, both on their face and as applied, are impermissibly

vague.”); (id. ¶ 119) (“Canons 1 and 2A are unconstitutionally vague because they do not


34

adequately advise, notify, or inform judges subject to prosecution under these Canons of their

requirements as they relate to judges’ speech.”); (id. ¶ 120) (“Canons 1 and 2A are

unconstitutionally vague because they lack the clarity required of restrictions on protected speech

and they fail to give fair notice as to what speech is prohibited.”); (id. ¶ 121) (“Canons 1 and 2A

are unconstitutionally vague because they lack any standards or criteria for imposing judicial

speech restrictions.”); (id. ¶ 122) (“Canons 1 and 2A are unconstitutionally vague because they

do not provide minimal standards or criteria to guide those charged with enforcing them and thus

allow unbridled discretion to determine what speech is, and is not, permissible.”).

Justice Parker has plainly alleged a vagueness challenge sufficient to survive a motion to

dismiss. The JIC’s Motion should be denied.

B. Justice Parker’s Well-Pleaded Allegations Plainly Establish A Violation Of

The Fourteenth Amendment.

“The Fourteenth Amendment forbids the State to deprive any person of life, liberty, or

property without due process of law.” Goss v. Lopez, 419 U.S. 565, 572 (1975). “The Due

Process Clause requires ‘that a deprivation of life, liberty, or property be preceded by notice and

opportunity for hearing appropriate to the nature of the case.’” Catron v. City of St. Petersburg,

658 F.3d 1260, 1266 (11th Cir. 2011) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532

(1985)). “The government must provide the required notice and opportunity for a hearing ‘at a

meaningful time and in a meaningful manner,’” Catron, 658 F.3d at 1266 (citing Mathews v.

Eldridge, 424 U.S. 319 (1976)), unless certain “‘extraordinary circumstances’” are present that

permit the “provision of notice and a hearing [to] be postponed until after the deprivation has

occurred.” Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003) (citing Fuentes v. Shevin,


35

407 U.S. 67, 80 (1972)).8 A procedural due process claim brought pursuant to Section 1983

requires a plaintiff to prove three elements: “(1) a deprivation of a constitutionally-protected

liberty or property interest; (2) state action; and (3) constitutionally-inadequate process.”

Grayden, 345 F.3d at 1232.

1. Justice Parker’s well-pleaded allegations establish a property and

liberty interest in his position as Associate Justice.

Contrary to the JIC’s contention (MTD at 17-18), Justice Parker possesses a sufficient

liberty and property interest in his position as Associate Justice to entitle him to the robust

protection of the Fourteenth Amendment. Significant precedent makes this abundantly clear, and

Justice Parker’s allegations establish his claims must survive dismissal.

“The requirements of procedural due process apply only to deprivation of interests

encompassed by the Fourteenth Amendment’s protection of liberty and property.” Bd. of Regents

of State Colleges v. Roth, 408 U.S. 564, 569 (1972). “Protected interests in property are normally

‘not created by the Constitution. Rather, they are created and their dimensions are defined’ by an

independent source such as state statutes or rules entitling the citizen to certain benefits.” Goss,

419 U.S. at 572-73 (citation omitted). Thus, “[t]o have a property interest in a benefit [or job], a

person clearly must have more than abstract need or desire for it. He must have more than a

unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Roth,

408 U.S. at 577 (1972); see also Goss, 419 U.S. at 573 (“[A] state employee who under state

law, or rules promulgated by state officials, has a legitimate claim of entitlement to continued

8 No such “extraordinary” or “exigent” circumstances existed here to justify departure from the

pre-deprivation notice and hearing. Such circumstances are marked by three characteristics not

present here: “(1) the seizure of property is necessary to secure an important governmental or

general public interest; (2) there is a special need for prompt action; and (3) the person initiating

the seizure is a government official responsible for determining, under the standards of a

narrowly drawn statute, that the seizure was necessary and justified in the particular instance.”

Grayden, 345 F.3d at 1236 (citing Fuentes, 407 U.S. at 91).


36

employment absent sufficient cause for discharge may demand the procedural protections of due

process.”).9

“The Due Process Clause also forbids arbitrary deprivations of liberty. ‘Where a person’s

good name, reputation, honor, or integrity is at stake because of what the government is doing to

him,’ the minimal requirements of the Clause must be satisfied.” Goss, 419 U.S. at 574 (quoting

Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)); see also Roth, 408 U.S. at 573. Yet

reputational injury alone is not a cognizable interest protected under the Fourteenth Amendment.

Paul v. Davis, 424 U.S. 693, 701 (1976). But “when reputational damage is sustained in

connection with a termination of [government] employment, it may give rise to a procedural due

process claim for deprivation of liberty which is actionable under section 1983.” Cotton v.

Jackson, 216 F.3d 1328, 1330 (11th Cir. 2000). Thus, “[t]o establish a liberty interest sufficient

to implicate the Fourteenth Amendment safeguards, the individual must be not only stigmatized

but also stigmatized in connection with a denial of a right or status previously recognized under

state law.” Smith ex rel. Smith v. Siegelman, 322 F.3d 1290, 1296 (11th Cir. 2003) (citation

omitted); see also Cypress Ins. Co. v. Clark, 144 F.3d 1435, 1436-37 (11th Cir. 1998) (“This

rule, labeled the ‘stigma-plus’ standard, requires a plaintiff to show the [government’s] conduct

9 The Alabama Supreme Court has recognized that the concept of property protected under the

Fourteenth Amendment includes government employees who have a legitimate claim to

continued employment. See Stallworth v. City of Evergreen, 680 So.2d 229, 233 (Ala. 1996)

(“The Fourteenth Amendment to the United States Constitution forbids a State or any

subdivision thereof from taking a person’s property without providing that person with due

process of law. Building on earlier cases that had greatly expanded the meaning of the term

‘property’ for Fourteenth Amendment purposes, the United States Supreme Court held in Board

of Regents v. Roth . . . that a governmental employee’s contractual or statutory right to continued

employment was a property interest falling within the scope of the Fourteenth Amendment’s

protection. Therefore, ‘a state employee who under state law, or rules promulgated by state

officials, has a legitimate claim of entitlement to continued employment absent sufficient cause

for dismissal may demand the procedural protections of due process.’”) (internal citations

omitted).


37

deprived the plaintiff of a previously recognized property or liberty interest in addition to

damaging the plaintiff’s reputation.”).

An elected official “who is entitled to hold office under state law has a property interest

in his office which can be taken from him only by procedures meeting the requirements of due

process.” Crowe v. Lucas, 595 F.2d 985, 993 (5th Cir. 1979); Gordon v. Leatherman, 450 F.2d

562, 565 (5th Cir. 1971) (concluding it is “correct” that “plaintiff, as an elected official, has a

property right in his office which cannot be taken away except by due process of law”) (internal

quotation omitted).10 In Flinn v. Gordon, without specifying whether the interest was one of

property or liberty, the Eleventh Circuit held that a state legislator “certainly had a constitutional

right to run for office and to hold office once elected.” Flinn v. Gordon, 775 F.2d 1551, 1554

(11th Cir. 1985) (emphasis added).

The United States District Court for the Western District of Wisconsin has recently held

that a state supreme court justice (the Wisconsin Chief Justice) possessed a property interest in

her position that was cognizable under the Fourteenth Amendment:

The chief justice is a position of constitutional dignity in

Wisconsin. There is no one with unfettered discretion to remove a

justice from the position of chief. The entitlement to serve as chief

justice is defined in the state constitution, which also articulates the

powers attendant on the position. The chief justice also draws a

higher salary than the other justices. These characteristics carry the

position of chief justice well above the de minimis threshold

required for a benefit to rise to the level of a cognizable interest.

The position of chief justice confers secure, state-created powers

and benefits to the one who holds that position. Under Roth, the

position of chief justice entails a property interest to which due

process protections apply.

10 Decisions of the Fifth Circuit decided prior to September 30, 1981 are binding precedent for

the Eleventh Circuit, and thus binding precedent on this Court. Bonner v. City of Prichard, 661

F.2d 1206, 1209 (11th Cir. 1981) (en banc).


38

Abrahamson v. Neitzel, 120 F. Supp. 3d 905, 922-23 (W.D. Wis. 2015) (internal citation

omitted). Thus, because the position of state supreme court justice was constitutionally

established and defined, and no one person possessed unfettered discretion to remove the

occupant of that position, the federal district court held that the justice had a protectable interest

that the Due Process Clause shielded from arbitrary deprivation.

Many other courts have similarly recognized that judges hold a property or liberty

interest in their judicial office that warrant due process protections. See, e.g., In re: Hanson, 532

P.2d 303, 305 (Alaska 1975) (“The Commission’s procedures are required to meet constitutional

due process standards since a judge’s interest in continuing in public office is an individual

interest of sufficient importance to warrant constitutional protection against deprivation.”); In re:

Nowell, 237 S.E.2d 246, 251 (N.C. 1977) (subjecting judicial conduct proceeding to due process

scrutiny because a judge has a protectable interest in continuing in public office); In re: Gillard,

271 N.W.2d 785, 812 (Minn. 1978) (stating “[i]t is clear” that due process rights attach to

judicial conduct proceedings); Town of Upton v. Whisler, 824 P.2d 545, 548 (Wyo. 1992)

(concluding that federal constitutional due process rights attached because judge appointed for a

specific term had a property right in the office); Mosley v. Nev. Comm’n on Judicial Discipline,

22 P.3d 655, 659 (Nev. 2001) (holding that state court judges “have a protected interest in their

judicial offices under the Fourteenth Amendment”); see also James J. Alfini et al., Judicial

Conduct & Ethics, § 13.10, at 13-25 (4th ed. 2010) (“The majority of courts have taken the

position that judges do possess a property or liberty interest in the judicial office.”). The

foregoing cases demonstrate that the property and liberty interests in a judge’s office extend

beyond remuneration to encompass the exercise of the functions of the office itself.


39

Based upon the foregoing legal authority, Justice Parker has a constitutionally protected

property interest in remaining Associate Justice. His well-pleaded allegations establish such an

interest. (VC ¶ 18) (“Justice Parker was first elected to the office of Associate Justice in

November 2004, and officially took office in January 2005, for a six-year term. He was reelected

for another six-year term in November 2010, with approximately 59% of the vote of Alabama

citizens. He is presently a candidate in this year’s judicial election in November 2016.”); (id.

¶ 19) (“Since first taking office in January 2005, Justice Parker has continuously served in that

position without any suspension.”); (id. ¶ 131) (“Justice Parker possesses a constitutionally-

protected property interest in the office of associate justice of the Alabama Supreme Court.”);

(id. ¶ 132) (“Justice Parker possess a constitutionally-protected liberty interest in his reputation,

good name, honor, and integrity as it relates to remaining in the office of associate justice of the

Alabama Supreme Court.”); (id. ¶ 133) (“Justice Parker, and the citizens who elected him, had an

objective expectation that he would continue to function in his elected position as associate

justice for his full term.”). As in Roth, 408 U.S. at 577 (1972) and Goss, 419 U.S. at 573, Justice

Parker’s legitimate entitlement to his elected office establishes a property interest.

2. Justice Parker’s well-pleaded allegation establish state action.

“Any governmental body is required to act fairly,” Gordon, 450 F.2d at 567, and

“[w]henever a governmental body acts so as to injure an individual, the Constitution requires that

the act be consonant with due process of law.” Dixon v. Alabama State Bd. of Educ., 294 F.2d

150, 155 (5th Cir. 1961). Accordingly, the JIC investigation against Justice Parker satisfies the

state action requirement because it is the ongoing investigation that chills his (and others’)

speech and forces him (and others) to engage in self-censorship. The threat of a possible JIC

Complaint against him in the COJ also satisfies the state action requirement because any such


40

complaint would trigger Section 159 of the Alabama Constitution and thus penalize Justice

Parker for engaging in his First Amendment-protected speech and deprive Justice Parker of his

constitutionally-protected property and liberty interests in his office. Justice Parker’s well-

pleaded allegation demonstrate that state action is involved. (See, e.g., VC ¶¶ 10-14).

3. Justice Parker’s well-pleaded allegations establish that Section 159

provides inadequate due process protections.

The JIC’s claims that Justice Parker is receiving sufficient process are without any basis

in fact or law. (MTD at 21-24). First, as demonstrated previously, the JIC process cannot meet

the minimal requirements of due process because the JIC has no ability to resolve or address any

of Justice Parker’s constitutional deprivations.11 Indeed, if the JIC cannot provide any redress to

Justice Parker’s injuries, then no process that the JIC could give Justice Parker would suffice. Its

position is plainly in error.

Moreover, “due process assures notice and a meaningful opportunity to be heard before a

right or an interest is forfeited.” Johnson v. U.S.D.A., 734 F.2d 774, 782 (11th Cir. 1984)

(emphasis added); see also McCarley v. Sanders, 309 F. Supp. 8, 11 (M.D. Ala. 1970) (“[I]t is

now well established that … a person may not be discharged or expelled from a public office

upon a ground involving criminal guilt, infamy, disgrace, or other grave injury to the individual

until after such notice and hearing as is requisite to due process of law.”). “Procedure … marks

much of the difference between rule of law and rule by fiat.” Constantineau, 400 U.S. at 436.

Indeed, the “right to be heard before being condemned to suffer grievous loss of any kind, even

though it may not involve the stigma and hardships of a criminal conviction, is a principle basic

to our society.” Id. (quoting Joint Anti–Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168

(1951) (Frankfurter, J., concurring)).

11 See supra Section I.D.


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Here, Justice Parker’s allegations demonstrate that the process under the JIC rule is

insufficient to provide due process. Indeed, as alleged in his Verified Complaint, the mere filing

of a complaint with the COJ would trigger automatic and immediate removal of Justice Parker

from office. As Justice Parker clearly alleges:

the filing of an ethics complaint by the JIC would trigger operation of a state

constitutional provision that itself violates the United States Constitution. In its

entirety, Section 159 requires that “[a] judge shall be disqualified from acting as a

judge, without loss of salary, while there is pending (1) an indictment or an

information charging him in the United States with a crime punishable as a felony

under a state or federal law, or (2) a complaint against him filed by the [JIC] with

the [COJ].” Art. VI, § 159, Ala. Const. 1901. This mandatory provision disrupts

the orderly functioning of the Alabama judiciary, deprives an individual judge of

property and liberty interests in judicial office, and irreversibly stains and

stigmatizes the name and reputation of any judge against whom the JIC files. The

automatic disqualification provision also cripples the judge’s staff, wreaks havoc

on cases pending on the judge’s docket, and undermines overall judicial

administration throughout the state. Even though the JIC takes a judge’s office

away from him or her indefinitely on the mere act of filing a complaint in the

COJ, the JIC is not required to provide the judge notice or a meaningful

opportunity to be heard before the judge is suspended from office as a result of

the filing of a JIC complaint. Because the suspension is automatic, the JIC can

wield its significant power over Alabama’s elected judges—including a Justice of

the Alabama Supreme Court—based upon trivialities, viewpoint-based objections,

differences in legal interpretation, political motivations or, even worse, to protect

itself from investigation of violations of its own rules. Rule 19, Ala. R. P. Jud.

Inq. Comm’n. Yet no procedures, let alone appropriate ones, exist to curb this

potential for, and actual, abuse of power by the JIC and thus to protect the due

process rights of Alabama judges subject to investigation by the JIC, from trial

judges to justices of the highest state court, including judges (like Justice Parker)

who are currently up for reelection. This blanket automatic disqualification

provision is a Sword of Damocles hanging over every Alabama judge’s head who

is under investigation by the JIC.

(VC ¶ 3).

This allegation alone demonstrates that Justice Parker faces imminent and immediate

deprivation of his due process by virtue of the constitutionally inadequate procedure alleged in

his complaint. The JIC’s Motion should be denied.


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CONCLUSION

For all the foregoing reasons, Justice Parker requests this Court find abstention to be

unwarranted and inappropriate, retain jurisdiction of this matter, and deny the JIC’s Motion to

Dismiss.

Dated: August 5, 2016 Respectfully Submitted,

Phillip L. Jauregui

Judicial Action Group

7013 Lake Run Drive

Birmingham, AL 35242

(202) 216-9309 (tel)

[email protected]

/s/ Horatio G. Mihet________________

Mathew D. Staver (FL Bar 0701092)†

Horatio G. Mihet (FL Bar 0026581)†

Liberty Counsel P.O. Box 540774

Orlando, FL 32854

(407) 875-1776 (tel)

(407) 875-0770 (fax)

[email protected]

[email protected] †Admitted pro hac vice

Attorneys for Plaintiff Hon. Tom Parker,

Associate Justice of the Supreme Court of

Alabama


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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was filed with this Court via

the CM/ECF system, which will serve copies on all counsel of record.

DATED: August 5, 2016 /s/Horatio G. Mihet

Horatio G. Mihet

Attorney for Plaintiff Hon. Tom Parker


Documents

UNITED STATES DISTRICT COURT FOR THE …lc.org/080516 MemoParkerOppositiontoMotiontoDismiss.pdf · Justice Parker was first elected to the office of Associate Justice in November