Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 1 of 41 PageID #: 119 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE Electronically filed JUDGE OLU A. STEVENS ) ) PLAINTIFF ) ) v. ) CIVIL ACTION NO. 3:16‐CV‐199‐GNS ) COMMONWEALTH OF KENTUCKY ) JUDICIAL CONDUCT COMMISSION, ET AL. ) ) DEFENDANTS ) MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS Overview. In his complaint, Judge Olu A. Stevens seeks to enjoin legitimate proceedings before the Defendant Kentucky Judicial Conduct Commission to halt Formal Charges of misconduct against him. But Kentucky Constitution § 121 gives the power to discipline judges solely to the Commission. See also SCR 4.000.1 Under the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971), federal courts refrain from interfering in pending state proceedings, like that before the Commission, particularly those directly concerned with the state’s ability to perform its judicial functions, and even more when the federal plaintiff, like Judge Stevens, is duplicating his constitutional challenge in the collateral state proceedings. 1 The Chief Justice of the Kentucky Supreme Court explained the sole authority of the Commission under SCR 4.000 and Kentucky Constitution § 121 in In Re: Motion to Disqualify the Honorable Olu A. Stevens, Opinion and Order of Chief Justice John Minton, Dec. 18, 2015, attached as Exhibit 1, at 10. Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 2 of 41 PageID #: 120 Even without abstention, Judge Stevens fails to state a First Amendment claim. He never mentions the actual words that led the Commission to issue Formal Charges. The undisputed facts underlying the Formal Charges, including frequent postings on social media slamming litigants in cases before him, demonstrate that the proceedings against him are justified, and the First Amendment provides no safe harbor from this Commission inquiry. STATEMENT OF THE CASE The Judicial Canons. The Kentucky Code of Judicial Conduct (“Code”) appears in Kentucky Supreme Court Rule (“SCR”) 4.300. The Kentucky Supreme Court intends the Code of Judicial Conduct “to establish standards for the ethical conduct of judges.” SCR 4.300, pmbl. Kentucky’s highest Court observes: Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American and Kentucky concepts of justice and the rule of law. Intrinsic to all sections of this code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal systems. The judge is an arbitrator of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law. SCR 4.300, pmbl. (emphasis added). “The requirement that judges act fairly and impartially is manifest throughout the Kentucky Code of Judicial Conduct. Equally plain is the principle that judges, by the nature of their positions, are subject to greater public scrutiny and restrictions on their conduct.”2 (Ex. 1, at 7.) The Commentary to Canon 2A of the Code explains: 2 When determining jurisdictional facts for purposes of the Younger abstention, the Court may weigh evidence beyond the Complaint’s allegations. See Gentek Bldg. Prods., Inc. v. Sherwin‐Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). Additionally, public records and (continued…) 2 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 3 of 41 PageID #: 121 Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge therefore must accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. SCR 4.300, commentary to Canon 2A (emphasis added). Judges are required to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2A. The Code compels judges to be “patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity.” Canon 3B(4). By Code and by statute, a judge must disqualify himself in cases where his “impartiality might reasonably be questioned,” including situations where the judge “has a personal bias or prejudice concerning a party or a party’s lawyer.” Canon 3E(1)(a); KRS 26A.015(a) and (e); (Ex. 1, at 7). A judge cannot comment on matters pending before any court. Canon 3B(9) specifically states: “A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness . . . .” As Chief Justice Minton has emphasized, “[p]erhaps most importantly, Canon 1 of the Code of Judicial Conduct, charges judges with the responsibility to ‘actively participate in establishing, maintaining and enforcing high standards of conduct’ and to ‘personally observe those standards so that the integrity and independence (…continued) items central to the claims, including the Chief Justice’s Opinion and Order, the Formal Charges against Judge Stevens, and other public filings discussed below, are deemed to be part of the Complaint by implication and may be examined in deciding a Rule 12(b)(6) motion. Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). 3 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 4 of 41 PageID #: 122 of the judiciary will be preserved.’” (Ex. 1, at 8.) Thus, “[t]he Code of Judicial Conduct places very specific and necessary restrictions on the behavior of judges . . . .” (Id.) The Commission has the sole authority to investigate complaints that a judge has violated the Code of Judicial Conduct. The Judicial Conduct Commission. Section 121 of the Kentucky Constitution “gives power to suspend or remove a judge to a commission whose actions are subject to judicial review by the Supreme Court.” (Ex. 1, at 10.) The Commission “is the only entity authorized under the Kentucky Constitution to undertake temporary or permanent disciplinary action against a sitting Kentucky judge.” (Id. (emphasis added).)3 The Commission consists of a Court of Appeals member and alternate (Defendants Hon. Janet Stumbo and Hon. Jeff Taylor), a Circuit Court member and alternate (Defendants Hon. Eddy Coleman and Hon. Jeffrey M. Walson), a District Court member and alternate (Defendants Hon. David Bowles and Hon. Karen Thomas), a Kentucky Bar Association member and alternate (Defendants Stephen D. Wolnitzek and Kent Westberry) and two Citizen Members (Joyce King Jennings and Diane E. Logsdon). See SCR 4.040–4.075, 4.100; KRS 34.310. SCR 4.020 sets forth the jurisdiction of the Commission, which includes the power to suspend or remove a judge after notice and hearing under procedures consistent with due process. The Commission respects the procedural rights of a judge. SCR 4.210 provides, 3 The Commission may impose a variety of disciplinary sanctions, including admonishment, reprimand, suspension, and removal. Here, the Commission merely has initiated a formal inquiry into Judge Stevens’ actions. The Commission has reached no conclusions about whether a Code violation in fact occurred or the appropriate level of discipline, if any. 4 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 5 of 41 PageID #: 123 for example, that a judge “shall” have “the right and reasonable opportunity to defend against the charges by the introduction of evidence, to be represented by counsel, and to examine and cross‐examine witnesses” and “the right to the issuance of subpoenas for attendance of witnesses to testify or produce books, papers, and other evidentiary matter” in support of the judge’s defense. The Commission conducts an evidentiary hearing, SCR 4.240, and in the event of an adverse ruling, a judge has the right to appeal to the Kentucky Supreme Court, SCR 4.290. Complaints Against Judge Stevens. The Commission received complaints that Judge Stevens had violated several Canons of the Code of Judicial Conduct, including the complaint that Chief Justice Minton referred to the Commission in his December 18, 2015 Opinion and Order (Ex. 1). Judge Stevens’ federal court Complaint speaks of the number of “black judges” elected, the number of “black people” in the jail population, and the “history of racism” in Kentucky’s criminal justice system. (E.g., Compl., DN 1, ¶¶ 7–9). The issue here, however, has nothing to do with the racial issues to which his Complaint is devoted. The Formal Charges against Judge Stevens concern complaints about the abuse of judicial power and misconduct that calls into question his ability to serve as a fair and impartial judge, as required for a “highly visible symbol of government under the rule of law.” SCR 4.300, pmbl. Conduct Underlying Count One. Judge Stevens alleges two “Claims for Relief” asserting “Violation of First Amendment Rights.” Paragraphs 6 through 43, the First Claim for Relief, relate to his conduct toward counsel appearing before the Court. In November 2014, Judge Stevens dismissed a jury panel in Jefferson Circuit Court Case No. 13‐CR‐2070, styled Commonwealth v. Doss, deciding that it did not represent a fair cross‐section of the 5 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 6 of 41 PageID #: 124 community, even though it was drawn randomly under the law with no indication of any systematic exclusion of a class of persons. The Attorney General thereafter filed a motion for certification of law with the Kentucky Supreme Court, on behalf of Commonwealth’s Attorney Thomas B. Wine, asking the Court to determine whether a judge has the authority to dismiss a jury panel when there is no evidence of systematic exclusion of a class of persons. (See Mot. for Certif., attached as Exhibit 5.) The Commonwealth’s Attorney has a constitutional right to seek certification. Ky. Const. § 115; CR 76.37(10). On its face, the motion clearly does not seek “all white” jury panels; rather it asks the Court for clarification on jury selection issues. (Ex. 5.) And the Supreme Court granted the motion demonstrating that it merited consideration. (Sept. 24, 2015 Order, attached as Exhibit 6.) In the months that followed, Judge Stevens made numerous public statements that were extremely critical of the Commonwealth’s Attorney, Thomas Wine, for exercising his right to seek certification of law from a case over which Judge Stevens presided. Mr. Wine was a Circuit Court Judge in Jefferson County from 1992 until 2006 and a Court of Appeals Judge from 2006 until 2012. (Nov. 16, 2015 Wine Aff., attached as Exhibit 8, ¶ 1.) He has been a member of the Racial Fairness Commission since its inception in 2000. (Id.) He is also a member of the Jail Policy Review Committee in Jefferson County. (Id.) In his role as Commonwealth’s Attorney, he is the prosecuting attorney for nearly every felony prosecuted in Jefferson Circuit Court and his office employs numerous Assistant Commonwealth’s Attorneys who serve as his agents in Jefferson Circuit Court in felony cases, including those before Judge Stevens. (Id. ¶ 2.) 6 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 7 of 41 PageID #: 125 Disqualification Motions. Judge Stevens nevertheless posted comments on social media asking people to speak out against the motion for certification of law pending before the Kentucky Supreme Court and repeatedly accused the Commonwealth’s Attorney of demanding “all white” jury panels. In response, the Commonwealth’s Attorney filed his first affidavit on November 16, 2015, seeking Judge Stevens’ disqualification and designation of a special judge in two criminal cases scheduled to go to trial before Judge Stevens. (See Ex. 8.) Under KRS 26A.020(1), a party who believes a judge will not afford a fair and impartial trial may file with the circuit court clerk an affidavit stating the factual basis for that belief. The circuit clerk in turn certifies the party’s affidavit to the Chief Justice of the Kentucky Supreme Court for immediate review and a decision on whether to appoint a different judge for the case. Id. The Commonwealth’s Attorney contended that Judge Stevens could not afford the people of the Commonwealth a fair trial listing a number of accusations and comments on social media that Judge Stevens had made. (Ex. 8, ¶ 5.) The Chief Justice entered Orders on November 17 disqualifying Judge Stevens in these cases. (Disqualification Orders, attached as Exhibit 9.) On November 18, as the accusations continued, the Commonwealth’s Attorney filed another affidavit, this time seeking disqualification of Judge Stevens in all criminal cases pending in his Division 6 and appointment of a special judge to preside in those cases. (See Nov. 18, 2015 Wine Aff., attached as Exhibit 10.) The Mediation. In an effort to resolve the controversy between the Commonwealth’s Attorney and Judge Stevens and to safeguard the dignity of the courts, the Chief Justice deferred ruling on disqualification and ordered the parties to mediate the dispute. (Ex. 1, at 1–2.) As a result, Judge Stevens agreed to cease using social media to 7 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 8 of 41 PageID #: 126 influence public support for his personal grievances. (Id. at 2.) But he soon breached his agreement by continuing his campaign on social media raising charges of “racism” against the Commonwealth’s Attorney, who has many pending criminal cases in Jefferson Circuit Court. (Id. at 6–7.) The Chief Justice Refers Conduct to Commission. The Commonwealth’s Attorney filed a supplemental affidavit again seeking to disqualify Judge Stevens. (See Dec. 14, 2015 Wine Aff., attached as Exhibit 11.) The Chief Justice declined to remove Judge Stevens from all pending criminal cases because he had no authority to do so, but complained of Judge Stevens’ conduct to the Commission. (Ex. 1, at 11–13.) First, Judge Stevens had described the certification of law on his Facebook page as an attempt to “impanel all‐white juries” and accused the Commonwealth’s Attorney of calling him a “racist.” (Id. at 4.) Judge Stevens proclaimed “if people would stand up and call [the Commonwealth’s Attorney] out, he would go right back in the corner.” (Id.) He accused the Commonwealth’s Attorney of “deceiving the people.” (Id.) In later Facebook posts, Judge Stevens repeated accusations that the Commonwealth’s Attorney was seeking to “seat all‐white jury panels” and “complaining to the Kentucky Supreme Court about [his] entitlement to the all‐white jury panel the trial judge set aside.” (Id.) Judge Stevens proclaimed the Commonwealth’s Attorney’s purpose was “readily apparent” and in “poor form at the very least” or, “[a]t most, something much more sinister.” (Id.) He posted, “[h]istory will unfavorably judge a prosecutor who loses a jury trial in which a black man is acquitted and then appeals the matter claiming his entitlement to an all‐white jury panel. No matter the outcome, he will live in infamy.” (Id. at 4–5.) 8 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 9 of 41 PageID #: 127 Given this history, the Chief Justice referred the complaint to the Commission as showing that “[i]n the minutes, hours, and days since the mediation occurred, Judge Stevens has repeatedly demonstrated that he does not intend to comply with the letter or spirit of the agreement. His failure to remove offending posts from his Facebook page and his continued public comments . . . give a clear indication that he intends to continue violating the Code of Judicial Conduct, despite assurances to the contrary given privately to the Chief Justice and during the course of the mediation.” (Id. at 6–7.) “The Code of Judicial Conduct requires a judge ‘who receives information indicating a substantial likelihood that another judge has committed a violation of [the] Code’ to ‘take appropriate action.’” (Ex. 1, at 12.) Chief Justice Minton found that “the Commonwealth’s Attorney’s motion sufficiently details facts indicating a substantial likelihood that Judge Stevens has committed violation of the Code of Judicial Conduct.” (Ex. 1, at 12–13.) The Chief Justice referred the “Commonwealth’s Attorney’s affidavits [Exs. 10 and 11] . . . to the Judicial Conduct Commission for immediate action under SCR 4.170.” (Ex. 1, at 13.) Formal Charges. After fully investigating the complaint, the Commission served Judge Stevens with an Amended Notice of Formal Proceedings and Charges (attached as Exhibit 3). The Commission charged him with misconduct, not because of any comments on public issues, but for mudslinging the reputation of lawyers who appear regularly before him in pending cases. He attacked the Commonwealth’s Attorney for seeking certification of law as authorized by the Kentucky Constitution. And Judge Stevens misled the public—while the motion was pending—by repeatedly posting comments on social media stating that the Commonwealth’s Attorney’s motion demanded “all white” jurors. 9 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 10 of 41 PageID #: 128 10.29.15 – “Going to the Kentucky Supreme Court to protect the right to impanel all‐ white juries is not where we need to be in 2015. Do not sit silently. Stand up. Speak up.” 10.29.15 – “. . . But whatever you believe the lack of representation is, it is clear that all‐white juries are not in the best interest of a community that is 20% black and where the jail population stands at 55% black . . . . And that is what Tom Wine is trying to do. . . . 10.29.15 – “. . . If you believe you have a right to seat all‐white jury panels in Louisville, Kentucky in 2015, tell the people. Wine shouldn’t deceive the people by focusing on me and calling me a racist.” (Ex. 3, at 2.) Judge Stevens alleges that he was not commenting on a pending case, but his own postings prove otherwise. 10.2015 – “. . . Tom Wine, the Jefferson Commonwealth Attorney and Louisville’s top prosecutor is going to the Kentucky Supreme Court to have my ruling overturned and protect his right to seat all‐white jury panels in Louisville, Kentucky. . . . If successful, his actions will have a negative impact on all citizens, particularly our black citizens.” 10.2015 – “. . . After his acquittal, the Jefferson Commonwealth’s Attorney Thomas B. Wine filed a motion with the Kentucky Supreme Court to determine I was incorrect in dismissing an all‐white jury panel.” (Id.) His obvious intent is to portray the Commonwealth’s Attorney and his office as “racist” casts serious doubt on his ability to be impartial in criminal cases. 11.2015 – “. . . Complaining he should have had an all‐white jury panel after losing a trial is poor form at the very least. At most it is something much more sinister.” 11.08.15 – “. . . The truth is the Jefferson Commonwealth’s Attorney does not have to pursue his right to impanel all‐white juries. He is doing so because he wants to.” 11.10.15 – “We have received a tremendous outpouring of support from all over the country. Thank you to Dr. Boyce Watkins, Ricky Smile, D. L. Hughley and other national figures who have spoken out in favor of the case and against the Jefferson Commonwealth’s Attorney’s action before the Kentucky Supreme Court. . . . There is 10 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 11 of 41 PageID #: 129 very little question about your intent when a black defendant is acquitted by a jury of eight whites and four blacks and you complain about the trial judge granting a defense motion to dismiss an all‐white jury panel.” 11.2015 – “. . . If asked, even the Jefferson Commonwealth’s Attorney may offer his “support” for diverse juries. Would that be good enough? Of course not. His actions say the exact opposite.” 11.2015 – “History will unfavorably judge a prosecutor who loses a jury trial in which a black man is acquitted and then appeals the matter claiming his [sic] entitled to an all‐white jury panel. No matter the outcome, he will live in infamy.” 11.17.15 – “. . . The Jefferson Commonwealth’s Attorney is for all white jury panels . . . .” (Id. at 3.) More Attacks on the Prosecutor. In November 2015, Judge Stevens gave a presentation to the Louisville Bar Association (“LBA”) in which he publicly maligned the Commonwealth’s Attorney.4 As the Amended Charge recites, (12:12) “After that acquittal the prosecutor went to the Supreme Court of Kentucky and claimed that he was deprived of his right to an all‐white jury panel.” (15:47) “Just because the Jefferson Commonwealth Attorney does. Does he want to go down in history? He will live in infamy and he will be the butt of every prosecutor’s jokes. You lose a trial and then you go to the Supreme Court of the Commonwealth of Kentucky to complain about what? The composition of the jury? How dare you! How dare you!” (32:21) “Even if you believe that Judge Stevens was wrong in sustaining a motion to set aside a jury panel, that does not deal with the action of the Jefferson Commonwealth’s Attorney . . . that does not deal with his actions in going to the highest court in this Commonwealth and seeking relief on the basis of the fact that this judge deprived me of my all‐white jury. . . . You don’t want to be the person who lost a jury trial and announce it for everybody and then say, oh by the way, he didn’t give me my white jury. Because if he’d had given me my white jury then I would’ve convicted him.” (Ex. 3, at 4.) 4 See LBA Presentation Video, attached as Exhibit 7. We obtained a DVD from the LBA and the LBA’s express permission to file it with the Court. 11 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 12 of 41 PageID #: 130 He continued to misrepresent the motion for certification of law: (38:40) “And when you go to the Supreme Court of the Commonwealth of Kentucky and you ask them to ensure your right to select all‐white juries you’re not acting on behalf of all the people. You’re not acting as a representative of the people.” (46:16) “I assure you that it begins here in Jefferson County with our representative. Our top prosecutor. The person who purports to represent all of the people. Who is in there saying I want an all‐white jury. And whatever it moves you to do, whatever visceral response you have to this idea that a black defendant would be acquitted in our community by a jury of eight whites and four blacks and then after that this is [sic] over the top prosecutor in our city would go to the Supreme Court of the Commonwealth of Kentucky and claim that he was deprived of his all‐white jury.” (48:06) “He’s on there talking about Judge Stevens implicitly is one of 200 judges, he’s the only one who’s ever done this. I wear it as a badge of honor. But does he wear it as a badge of honor that he is the only prosecutor in the history of the country to have ever gone anywhere claiming I lost because I didn’t have my all‐ white jury. He has a distinction that is far beyond mine. So I take my one in 200. I’m happy with it. I am proud of it. But is he proud of his? Because he is going to have to own it. He’s going to live in infamy.” (Id. at 4–5.) (15:12) “We don’t want to go down in history as being the folks that went to the United States Supreme Court to argue our right to an all‐white jury in 2015. We don’t want to go down in history that way.” (16:13) “People should be standing up saying we are not going to take this.” (31:40) “What I am urging all within the sound of my voice and anybody who may be watching this, is to stand up. Stand up. And say this is not what we want.” (38:02) “We should not stand by; we should not sit quietly while our community suffers this. We should not remain quiet. Not when someone is doing this to our community. We should stand. We should say it’s not right. We don’t want all‐white juries in our community.” (40:27) “And I’m urging you, if you hear my voice; I’m urging you to step up. And do something. Say something. Be heard. Don’t let this go by and then complain later about how they’re talking about us or who is being excluded.” (45:51) “We need to speak out. We need to let the Jefferson Commonwealth’s Attorney know this is not what we want for our community. We need to let him know respectfully. And I’ve told people that.” 12 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 13 of 41 PageID #: 131 (57:22) “We need to step up and we do not need anyone in our community saying that we should have an all‐white jury panel. Not in 2015. That’s a challenge to you.” (Id. at 6–7.) He repeated the same misrepresentations on Facebook when the case was pending before the Kentucky Supreme Court. 10.29.15 – “Going to the Kentucky Supreme Court to protect the right to impanel all‐ white juries is not where we need to be in 2015. Do not sit silently. Stand up. Speak up.” 11.03.15 – “If you have ever used Facebook to say ‘vote for me,’ but remain publicly silent or indifferent on this issue that threatens the inclusion of black people and other minorities on our jury panels, shame on you. Stand up for something other than yourself. Speak the truth.” 10.29.15 – “When a black man is acquitted and then the prosecutor asserts his right to an all‐white jury panel, those who remain silent have chosen comfort over principle.” (Id. at 6.) Bad‐Mouthing the Criminal Defense Bar. Judge Stevens’ ad hominem attacks were not limited to the Commonwealth’s Attorney. On Facebook postings he criticized the Louisville Metro Public Defender and criminal defense attorneys in general for not publicly supporting him in misrepresenting the Commonwealth’s Attorney’s actions. 11.2015 – “. . . Anybody can say they ‘support’ diverse juries. Especially members of the criminal defense bar. They certainly cannot afford to say they are against them. They would be hypocrites . . . err . . . they are hypocrites.” 11.16.15 – “. . . Why didn’t the Public Defender respond? He did. He just never notified me. You will have to ask him why he remains silent when he is the one who asked me to set aside the jury panel and so many of his clients will be affected by an adverse decision. We have obtained a copy of his response. It is little wonder the motion for certification was granted. The response did not address the issues presented.” 11.16.15 – “I will be posing some questions to him [public defender] as to why he said things he said in his response. And why he is quiet when his lawyers routinely ask for the relief I granted him in his case.” 13 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 14 of 41 PageID #: 132 (Ex. 3, at 8.) In an “Open letter to the Louisville Metro Public Defender and Louisville Criminal Defense Lawyers,” Judge Stevens wrote: Dear Counsel: Where are you? You asked me to dismiss the jury panel consisting of 40 white jurors and 1 black juror. Yet you are silent. You are the ones who regularly ask me to set aside jury panels for lack of racial diversity. Yet you are silent. The Jefferson Commonwealth’s Attorney is for all‐white jury panels. The people are for racially diverse jury panels. What are you for? Thank you for your consideration. Judge Olu Stevens. (Id.) He also faulted the defense bar’s response in his presentation to the LBA: (14:00) “Where is the public defender who asked for it to be done? Where is he? He’s silent. Where are the criminal defense lawyers who walk into court after jury selection has begun and request that this judge dismiss an entire jury panel for lack of diversity? Where are they with their impassioned arguments that they make before Judge Stephens [sic] in Jefferson Circuit Court? They’re nowhere to be found. Why are they not speaking up?” . . . (42:01) “There are individuals willing to speak up that did not. They’re silent. And Dr. King famously said there comes a time when silence is betrayal.” (Id. at 9.) Judge Stevens’ Admissions Here. In his federal action, Judge Stevens admits that he publicly complained about the Commonwealth’s Attorney’s pending motion for certification of law (Compl., DN 1, ¶ 12), which the Commonwealth had the legal right to file. He says any action by the highest court will have “no impact on the defendants’ case” (id. ¶ 16), but he cannot deny that the highest Court’s ruling could have an impact on his 14 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 15 of 41 PageID #: 133 criminal cases and other criminal cases throughout Kentucky. Indeed, his own allegations claim that “[t]he Commonwealth’s Attorney pursuit of a motion for certification of law will dramatically . . . and disparately impact black defendants with cases pending adjudication in the Commonwealth of Kentucky.” (id. ¶ 17 (emphasis added).) Judge Stevens alleges that his public commentary concerns “Commonwealth v. All Black Defendants” (id.), which admits that he is a judge commenting on criminal cases pending in Kentucky courts. He admits that his comments are “directed at [attorney Wine’s] actions in pursuing a Motion for Certification of Law.” (id. ¶¶ 20–22.) He relies on organizations that filed briefs opposing the motion for certification (id. ¶ 31), but those organizations can be advocates in the litigation; a judge must be impartial and refrain from commenting on pending cases. Again, the privilege to serve as a judge brings with it the obligation to be fair and neutral so everyone, no matter the race, can depend on the ideal of “blind justice.” Relevant Canons. The Commission concluded that Judge Stevens’ actions required a formal inquiry into potential violations of the following Canons of the Code of Judicial Conduct:  Canon 1 that requires judges to maintain high standards of conduct and uphold the integrity and independence of the judiciary.  Canon 2A that requires judges to respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.  Canon 2D that prohibits judges from lending the prestige of judicial office to advance private interests of the judge or others.  Canon 3B(4) that requires judges to be dignified and courteous to litigants, jurors, witnesses, lawyers and other with whom the judge deals in an official capacity.  Canon 3B(5) that prohibits judges form manifesting a bias or prejudice. 15 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 16 of 41 PageID #: 134  Canon 3B(9) that prohibits judges from making a public comment regarding a proceeding that is pending or impending in any court that might reasonably be expected to affect its outcome.  Canon 4A(1) that requires judges to conduct their extrajudicial activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge.  Canon 4A(2) that requires judges to conduct their extrajudicial activities so that they do not demean the judicial office. (Ex. 3, at 7, 9–10.) Conduct Underlying The Second Claim. Paragraphs 45 through 63, the Second Claim for Relief, refer to Judge Stevens strident criticism of a victim’s parents for statements they made about an armed burglary at gun point involving their three‐year‐old daughter. He alleges, “In February 2015, Judge Stevens presided over a sentencing in which he was asked to consider a victim impact statement . . . and made public statements referencing [a] portion of the statement.” (Compl., DN 1, ¶ 44.) Judge Stevens omits the details of what happened and what he said at the February 2015 sentencing hearing in Commonwealth v. Gregory Wallace, Case No. 13‐CR‐1686 and later on social media. (Sentencing Hr’g Video, attached as Exhibit 12.) The defendant and another man knew a three‐year‐old girl was inside a home watching Sponge Bob on TV when they gained entry to the home by threatening her father with drawn hand guns, which they used throughout commission of the felony burglary. (Id. at 9:38:00–9:41:50.) The defendant confessed. (Id.) The Commonwealth’s Attorney offered a plea of Robbery II and Burglary II, a ten‐year sentence to run consecutively on each felony offense. (Id.) Defense counsel sought probation. (Id.) The Assistant Commonwealth’s Attorney strongly opposed it because the defendant was indisputably guilty and the crime had affected the little girl in a “horrible way.” (Id.) 16 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 17 of 41 PageID #: 135 Prior to the hearing, the parents prepared victim impact statements describing the impact of the crime on themselves and on their three‐year‐old child (attached as Exhibits 13 and 14). Her mother wrote, “This incident has had the most impact on my daughter. She is in constant fear of black men.” (Ex. 13, at 3.) Her father wrote similarly: his daughter was “terrified of black males” and this crime would affect her “for the rest of her life;” “[i]f holding a little girl at gun point gets you probation, then our system is flawed.” (Ex. 14, at 2–3). At the hearing, Judge Stevens read portions of victim impact statements into the record and then lambasted the child’s parents for describing the effect of the crime on their three‐year‐old daughter: “I assume the victims in this case are white.” (9:35:15am) “I am offended by that, I am deeply offended by that. That they would be victimized by an individual and then express some kind of fear of all black men. I wonder if the perpetrator had been white; would they be in fear of white men? The answer would probably be no. I’m offended by that.” (9:36:00am) “This little girl has certainly been victimized and she can’t help the way that she feels. My exception is more with her parents and their accepting of that kind of mentality and that fostering of that—those kind of stereotypes.” (9:45:45am) (Not. of Formal Proceedings and Charges, attached as Exhibit 2, at 1.) Shortly after this exchange, Judge Stevens probated the defendant’s sentence. (Id. at 2.) Judge Stevens then made several comments on social media about the case, even though it was still pending. (Id.) The first Charge quotes his statements, Court brought it front and center this week. The case involved a burglary and the victims were a young couple and their three year‐old child. The written victim impact statement or behalf of the child read that as a result of the offense committed against her parents in her presence, the child is in ‘constant fear of black men.’ The statement, written by her mother, continues that the child clings to her parent when in the presence of any 17 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 18 of 41 PageID #: 136 black man. The incident, the mother concluded, ‘has even affected our relationship with our African‐American friends.’ I read this statement aloud in open court. For a reason. It was of little surprise to me that neither parent nor the child was present in court for the sentencing. After all, the defendant and the judge are amongst the individuals the three year old has fear of as a result of the crime. Do three year olds form such generalized, stereotyped and racist opinions of others? I think not. Perhaps the mother had attributed her own views to her child as a manner of sanitizing them. (Id. at 2–3.) He publicly faults the parents for not appearing in court when they may have been unable to attend due to work requirements or out of fear of their assailant. Judge Stevens’ widely publicized comments on the case continued: Let me be clear. The statement played absolutely no role in the sentencing decision and the commonwealth disavowed the statement. Needless to say, I was deeply offended, however, that this statement was put forth for the purpose of persuading me to impose a lengthy prison sentence. Had the perpetrator been white, I doubt it would have resulted in such gross generalizations. The race of a perpetrator of a crime is not a reason or an excuse to fear an entire race of people. We must stand against it in whatever form. As a judge I do my work without regard to race. It is incumbent on me to confront and dispose of language based on racism and stereotypes. We should all do our part to eradicate such nonsense. And let me be clear, silence does nothing to contribute. It simply sends a message that such views are acceptable and fear somehow excuses wrong.” (Facebook post quoted in April 10, 2015 article, “Judge slams victims for tot’s ‘black men’ fear,” Andrew Wolfson, Courier Journal) (Id. at 3.) Judge Stevens condemned the parents as “stereotyping” racists on social media, even while the case was still pending. He repeatedly alleges that he is entitled to offer his “opinions,” alleging that “divergence of opinion” is protected. But the Canons advance the state’s interest in an impartial, dignified, and courteous judiciary by preventing judges from manifesting bias and prejudice in their comments. Even assuming that one sentence in the victim impact statements suggested stereotyping, rather than the horrific impact of the 18 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 19 of 41 PageID #: 137 crime on a three‐year‐old, Judge Stevens’ expression of personal offense showed poor temperament and, to say the least, damaged the appearance of impartiality and integrity. A judge must be fair and impartial regardless of a litigant’s beliefs. If a judge was presiding over the prosecution of a serial murderer, it should make no difference to the judge whether Atticus Finch or Archie Bunker was the victim. This Conduct Is Not Protected. In his federal Complaint, Judge Stevens claims that he is entitled to “judicial immunity” (Compl., DN 1, ¶ 45), as if no state was allowed to enforce any Code of Judicial Conduct. Similarly, he maintains that “there is no requirement that [he] remain silent” (id. ¶ 47), as though no Canon required him as a judge to remain impartial from commenting on pending cases, and avoid even the appearance of impropriety. He quotes his three “supporters” (id. ¶¶ 48–50), but those individuals are not charged under Kentucky Constitution § 121 with ensuring compliance the Code of Judicial Conduct. He alleges that he is “qualified to offer [his] opinions” (id. ¶ 53), which are “highly educated, well founded” (id. ¶ 54), and that “disagreement” is no basis to sanction him (id. ¶¶ 60–62). The Commission’s inquiry, however, targets Judge Stevens’ inflammatory attacks on parties appearing before him in pending cases. It is undisputed that Judge Stevens may maintain and express “educated” and “well founded” opinions on jury composition. But those opinions are noticeably absent from the Formal Charges. The Commission is constitutionally obligated to enforce the ethical rules governing judicial conduct. When Judge Stevens assumed the duties of a judge, he agreed to “accept restrictions on [his] conduct that might be viewed as burdensome by the ordinary citizen.” SCR 4.300, commentary to Canon 2A. Judge Stevens implicated the Commission’s constitutional 19 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 20 of 41 PageID #: 138 enforcement duties by airing his personal disputes and personal offenses. The Commission issued Formal Charges against Judge Stevens to enforce the Canons as applied to those specific comments—not the opinions he now presents. Judge Stevens filed this federal action that, with all due respect, appears to be more of a media strategy than any filing related to the substance of the charges against him. With the Commission, he filed a “Motion to Dismiss and Affirmative Defenses” to the Formal Charges raising the same alleged “[v]iolation of Respondent’s rights under the First Amendment” that he alleges here. (Ans. to Charges, attached as Exhibit 4.) He then filed a motion for a restraining order (DN 5 and DN 6) in this Court but shortly thereafter agreed to a temporary suspension without pay (attached as Exhibit 15). This Court conducted a telephonic conference on April 19, 2016 and entered an Order stating that the request for restraining order was withdrawn (DN 12). STANDARD OF REVIEW Application of the Younger abstention doctrine implicates the propriety of exercising federal jurisdiction, similar to a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. In this jurisdictional setting, the Court may look beyond the pleadings and weigh additional evidence to dispel any conflict over its ability to adjudicate the dispute. See Gentek, 491 F.3d at 330. The Court “has wide discretion to allow affidavits, documents, and even a limited evidentiary hearing to resolve jurisdictional facts.” Id. Alternatively, to survive a Rule 12(b)(6) motion to dismiss, Judge Stevens’ Complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 20 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 21 of 41 PageID #: 139 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The factual allegations must “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. When considering a Rule 12(b)(6) motion, the Court may examine the Complaint and its exhibits, public records, and items appearing in the record of the case that are incorporated by reference into the Complaint and central to the claims.5 Bassett, 528 F.3d at 430. The Court must construe the Complaint in the light most favorable to the plaintiff and accept all well‐pleaded factual allegations as true. Iqbal, 556 U.S. at 678. But the Court need not accept as true legal conclusions or unwarranted factual inferences. Id. ARGUMENT This Court should dismiss Judge Stevens’ attempt to escape the potential consequences of complained judicial misconduct and his extrajudicial commentary on pending cases for two independent reasons.6 First, the Younger abstention doctrine 5 See 5B Charles Alan Wright & Arthur R. Miller et al., Federal Practice & Procedure § 1357 (3d ed. Apr. 2016 update) (“In determining whether to grant a Federal Rule 12(b)(6) motion, district courts primarily consider the allegation in the complaint. The court is not limited to the four corners of the complaint, however. Numerous cases . . . have allowed consideration of matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint whose authenticity is unquestioned; these items may be considered by the district judge without converting the motion into one for summary judgment. These matters are deemed to be a part of every complaint by implication.” (footnote omitted)). 6 In addition to Younger abstention and the deficiencies in Judge Stevens’ First Amendment claims, the Commission itself must be dismissed from this action based on sovereign immunity. As an arm of the state, the Commission is entitled to sovereign immunity in federal court, which “‘bars all suits, whether for injunctive, declaratory or monetary relief, against the state and its departments, by citizens of another state, foreigners or its own citizens.’” McCormick v. Miami Univ., 693 F.3d 654, 661 (6th Cir. 2012) (quoting Thiokol (continued…) 21 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 22 of 41 PageID #: 140 requires this Court to decline jurisdiction. The Commission has commenced Formal Charges and proceedings against Judges Stevens to vindicate the state’s important interest in ensuring the impartiality and integrity of its judiciary. Judge Stevens may adequately present his First Amendment defense in those proceedings, and in fact, he raised that defense in his Answer to the Commission’s Formal Charges. (Ex. 4, at 1). Second, Judge Stevens fails to state a First Amendment claim upon which relief can be granted. The Formal Charges against him do not involve any substantive opinions on the important topic of jury composition. The Commission charged Judge Stevens with judicial misconduct for his inflammatory campaign against the Commonwealth’s Attorney, the criminal defense bar, and burglary victims. A review of the Formal Charges shows that the statements at issue implicate no matter of legitimate public concern. The First Amendment does not protect the airing of a judge’s personal disputes, offenses, and slights. His desire to continue this abusive commentary is vastly outweighed by the state’s profound interest in safeguarding the public’s trust in the courts. I. THE YOUNGER ABSTENTION DOCTRINE REQUIRES THIS COURT TO DECLINE JURISDICTION. Younger v. Harris, 401 U.S. 37 (1971), and its progeny preclude this Court from intervening in the proceedings against Judge Stevens before the Commission. In Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423 (1982), a lawyer filed suit contending that New Jersey Bar disciplinary proceedings against him violated his First (…continued) Corp. v. Dep’t of Treasury, 987 F.2d 376, 381 (6th Cir. 1993)); accord Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100–02 (1984). 22 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 23 of 41 PageID #: 141 Amendment rights. The lawyer, Lennox Hinds, was a member of the New Jersey Bar and executive director of the National Conference of Black Lawyers at the time of his challenged conduct. Id. at 427. His client was tried for murder. Id. at 427–28. While Mr. Hinds was not counsel of record for her in the criminal trial, he did represent her in a civil action to challenge the conditions of her confinement in jail. Id. At the start of the criminal trial, Mr. Hinds participated in a press conference, “making statements critical of the trial and of the judge’s judicial temperament and racial insensitivity. In particular, Hinds referred to the criminal trial as ‘a travesty,’ a ‘legalized lynching,’ and ‘a Kangaroo court.’” Id. at 428. The Ethics Committee investigated a complaint about Mr. Hinds’ statements and found probable cause to believe that he violated the Code of Professional Responsibility, which provided “‘[a] lawyer shall not . . . [e]ngage in conduct that is prejudicial to the administration of justice’” and prohibited “extrajudicial statements by lawyers associated with the prosecution or defense of a criminal matter.” Id. The Committee then served formal charges on him. Id. Mr. Hinds and three organizations—analogous to those in Judge Stevens’ Complaint—supported his position in federal court contending, as does Judge Stevens, that the disciplinary proceedings violated their First Amendment rights. Id. at 429. The District Court dismissed the complaint based on Younger concluding that “‘[t]he principles of comity and federalism dictate that the federal court abstain so that the state is afforded the opportunity to interpret its rules in the face of a constitutional challenge.’” Id. A divided panel of the Third Circuit reversed, but the United State Supreme Court reversed the Third Circuit, holding that the District Court correctly abstained under Younger. Id. at 429, 437. 23 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 24 of 41 PageID #: 142 The Supreme Court noted that Younger and its progeny “espouse a strong federal policy against federal‐court interference with pending state judicial proceedings absent extraordinary circumstances . . . . Minimal respect for the state processes, of course, precludes any presumption that the state courts will not safeguard federal constitutional rights.” Id. at 431. The Court found that bar disciplinary proceedings—like proceeding before the Judicial Conduct Commission—are judicial in nature. Id. at 433–34. And like Kentucky, New Jersey “has an extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses.” Id. at 434. “The judiciary as well as the public is dependent upon professionally ethical conduct of attorneys and thus has a significant interest in assuring and maintaining high standards of conduct of attorneys engaged in practice.” Id. Mr. Hinds argued that he could not raise his constitutional challenge in the disciplinary proceedings. Id. at 435. As this Court should find, the Supreme Court disagreed. “Abstention is based upon the theory that ‘[t]he accused should first set up and rely upon his defense in the state courts, . . . unless it plainly appears that this course would not afford adequate protection.’” Id. at 435 (quoting Younger, 401 U.S. at 45). The Court concluded that Mr. Hinds had “abundant opportunity” to present his constitutional challenge in the state proceedings. Id. at 436. Here, Judge Stevens raised the First Amendment challenge in his Answer to the Formal Charges. (Ex. 4, at 1.) The Supreme Court reaffirmed the need for abstention in disciplinary proceedings in Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584 (2013). There, while the Court declined to invoke Younger abstention specifically in the context of parallel state utility rate proceedings, id. at 588, it made clear that a federal court should abstain under Younger in 24 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 25 of 41 PageID #: 143 three circumstances, which clearly require abstention from interfering with proceedings before the Kentucky Judicial Conduct Commission: First, Younger precluded federal intrusion into ongoing state criminal prosecutions. Second, certain “civil enforcement proceedings” warranted abstention. Finally, federal courts refrained from interfering with pending “civil proceedings involving certain orders . . . uniquely in furtherance of the state courts’ ability to perform their judicial functions.” Id. at 591 (citation omitted). Elaborating on the kind of cases in which abstention is necessary, the Court repeatedly pointed to Middlesex for support: Such enforcement actions are characteristically initiated to sanction the federal plaintiff, i.e., the party challenging the state action, for some wrongful act. See, e.g., Middlesex, 457 U.S., at 433–34 (state initiated disciplinary proceedings against lawyer for violation of state ethics rules). In cases of this genre, a state actor is routinely a party to the state proceedings and often initiates the action. . . . Investigations are commonly involved, often culminating in the filing of a formal complaint or charges. Id. at 592 (listing numerous state proceedings that would prompt federal abstention).7 The Sixth Circuit applied Middlesex in Feiger v. Thomas, 74 F.3d 740 (6th Cir. 1996). There, a Michigan lawyer tried to enjoin the Michigan Attorney Grievance Committee from prosecuting a disciplinary complaint against him based on disparaging remarks he made about prosecutors and judges. Like Judge Stevens, Feiger sued in federal court claiming violations of the First Amendment. Relying on Younger and Middlesex, the Sixth Circuit held that disciplinary proceedings, like those here, are ongoing state judicial proceeding that implicate important state interests and Feiger, like Judge Stevens, has an adequate 7 See also Falco v. Justices of the Matrimonial Parts of the Supreme Court of Suffolk Cnty., 805 F.3d 425, 427 (2d Cir. 2015) (abstention proper when pending state proceeding is “‘uniquely in furtherance of the state courts’ ability to perform their judicial functions’” (quoting Sprint, 134 S. Ct. at 591)). 25 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 26 of 41 PageID #: 144 opportunity to raise constitutional challenges. Id. at 744–46. Again, Judge Stevens has raised his First Amendment challenge by motion to dismiss in the Formal Charges. (Ex. 4, at 1). The Sixth Circuit declined jurisdiction under Younger. Id. at 750–51. Likewise, the Court should so decline and dismiss Judge Stevens’ Complaint. A. The Commission’s Actions constitute ongoing state judicial proceedings. The first requirement for abstention is that the underlying case involves an “ongoing state judicial proceeding.” Middlesex, 457 U.S. at 432. The disciplinary proceeding against the lawyer in Middlesex was an ongoing state proceeding. Id. at 433. And in Feiger, because the Michigan Grievance Commission was enforcing its Rules of Professional Conduct, “it is performing an adjudicative, as opposed to a legislative, function. It therefore, satisfies the first requirement for Younger abstention.” 74 F.3d at 744. Without doubt, the Commission’s disciplinary proceeding to hold Judge Stevens accountable to the Code of Judicial Conduct is an ongoing state proceeding, no different from Middlesex. See SCR 4.000–4.310. And, like the Grievance Commission in Feiger, the Commission is performing an adjudicative—as opposed to legislative—function and, this Court must abstain under Younger. B. The Commission’s actions involve important state interests. To abstain from a case under Younger, a court must find that the state has an important interest in regulating the subject matter of the claim. Middlesex, 457 U.S. at 434. Federal courts have held that regulating lawyers’ conduct is a fundamentally important state interest. Feiger, 74 F.3d at 745 (citing Middlesex, 457 U.S. at 434). Likewise, the Commission’s role in regulating the conduct of judges and judicial candidates is an equally important state interest. Federal courts should refrain from interfering in civil proceedings 26 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 27 of 41 PageID #: 145 involving orders that are “‘uniquely in furtherance of the state court’s ability to perform its judicial functions.’” Sprint, 134 S. Ct. at 591 (quoting New Orleans Pub. Serv., Inc. v. Counsel of City of New Orleans, 491 U.S. 350, 368 (1989)). It is hard to imagine what could be more unique to the performance of judicial functions than the enforcement of the Code of Judicial Conduct. C. The Commission’s proceedings provide an adequate opportunity to raise constitutional challenges. The Supreme Court has held that “abstention is appropriate unless state law clearly bars the interposition of the constitutional claims.” Moore v. Sims, 442 U.S. 415, 425–26 (1979). In Middlesex, the Supreme Court held that Mr. Hinds had an adequate opportunity to raise his challenge in the disciplinary action. 457 U.S. at 436. Likewise, the Sixth Circuit in Feiger found that the Michigan Grievance Commission’s actions adequately allowed for respondents to raise constitutional challenges under rules substantially the same as those governing proceedings before the Commission. 74 F.3d at 744–46. The burden on this point rests on Judge Stevens. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 (1987) (quoting Moore, 442 U.S. at 432). He can hardly meet this burden when he is raising the constitutional claims in the state proceeding. A more convincing case for abstention is difficult to imagine. II. JUDGE STEVENS FAILS TO STATE A CLAIM UNDER THE FIRST AMENDMENT. The First Amendment offers no shelter to insulate Judge Stevens from potential sanction. In demanding federal intervention in a pending state disciplinary proceeding, Judge Stevens never recites the actual words that brought him before the Commission and that he now asks this Court to declare worthy of constitutional protection. Judge Stevens’ attacks on the Commonwealth’s Attorney, criminal defense bar, and burglary victims are 27 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 28 of 41 PageID #: 146 thoroughly documented. Nevertheless, the Commission’s Formal Charges and this brief contain the only statements of those remarks in the record. Rather than owning his actual words, Judge Stevens wants this Court to bless his demeaning public commentary in the abstract. Judge Stevens’ private interest in launching public attacks cannot overcome the state’s interest in preserving the integrity and impartiality of its judiciary. It is true that judges do not shed the protections of the First Amendment by donning the robes of office.8 In re Kendall, 712 F.3d 814, 824 (3d Cir. 2013).9 But no one is compelled to serve as a judge; the individual offers himself for service. Miss. Comm’n on Judicial Performance v. Osborne, 11 So. 3d 107, 114 (Miss. 2009).10 “A calling to public service is not without sacrifice, including the acceptance of limitations on constitutionally granted privileges.” Id.; see Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); In re Mathesius, 910 A.2d 594, 611 (N.J. 2006). The standard of strict scrutiny is applied to a judge’s speech in the context of a campaign for judicial election—where speech informs the public of a candidate’s 8 The freedom of speech enshrined in the First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment. Gitlow v. New York, 268 U.S. 652, 666 (1925). 9 In Kendall, a judge charged his criminal‐contempt conviction for criticizing a higher court in an opinion. 712 F.3d at 822. That case did not consider the more routine circumstance of judicial disciplinary proceedings. Id. at 826–28. 10 Limited federal authority exists on the First Amendment rights of sitting judges subject to potential disciplinary action. Given the application of Younger abstention, defining the contours of the freedom of speech as applied to sitting judges has been largely left to state supreme courts. 28 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 29 of 41 PageID #: 147 qualifications for office.11 Republican Party of Minn. v. White, 536 U.S. 765, 774–75 (2002); Carey v. Wolnitzek, 614 F.3d 189, 198–99 (6th Cir. 2010). Under strict scrutiny, the Commission would be required to show that, as applied to potentially discipline Judge Stevens, the Canons are narrowly tailored to further a compelling state interest. White, 536 U.S. at 774–75. On the other hand, courts traditionally analyze a restriction on the speech of a sitting judge not in the midst of a campaign under the general framework applied to all public employees. Osborne, 11 So. 3d at 113; In re Conduct of Schenck, 870 P.2d 185, 204 (Or. 1994); see also White, 536 U.S. at 796 (Kennedy, J., concurring) (noting that application of the public‐employee framework to restrictions on the speech of sitting judges was not at issue). Plaintiff concedes applicability of this public‐employee framework first articulated in Pickering v. Board of Education, 391 U.S. 563 (1968). (Pl.’s Mot. for TRO, DN 5, at 4; Pl.’s Mem. in Supp. of Mot. for TRO, DN 6, at 2.) Pickering and its progeny define a limited First Amendment protection for a government employee to speak as a citizen on matters of public concern. Garcetti, 547 U.S. at 417. The first question, of course, is whether the speech was in fact made “‘as a citizen,’ while addressing ‘a matter of public concern.’” Savage v. Gee, 665 F.3d 732, 738 (6th Cir. 2012) (quoting Connick v. Myers, 461 U.S. 138, 146–47 (1983)). If the answer is “no,” the speech is unprotected. Garcetti, 547 U.S. at 419. If the answer is “yes,” the possibility of First Amendment protection arises. Id. The First Amendment shields the speech only if the employee’s “interest in speaking outweighs the government’s interest ‘as an employer, in 11 In seeking the temporary restraining order, Judge Stevens cited J.C.J.D. v. R.J.C.R., 803 S.W.2d 953 (Ky. 1991), and Winter v. Wolnitzek, 56 F. Supp. 3d 884 (E.D. Ky. 2014). Both cases focus on the campaign speech of judges and implicate different interests than those raised by the speech of a sitting judge. 29 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 30 of 41 PageID #: 148 promoting the efficiency of the public services it performs through its employees.’” Savage, 665 F.3d at 738 (quoting Pickering, 391 U.S. at 568). Here, neither strict scrutiny nor the public‐employee framework provide safe harbor for Judge Stevens to abuse lawyers, litigants, and victims through his commentary in the courtroom, at bar association events, and on social media. A. Judge Stevens did not speak as a citizen on a matter of public concern. Judge Stevens’ speech addressed his personal disapproval of a three‐year‐old victim’s reaction to a burglary and his personal dispute with the Commonwealth’s Attorney—not matters of public concern. A judge’s feelings and private disagreements are not transformed into matters of public concern simply because he utters them aloud, announces them to the press, or publishes them on social media. See Osborne, 11 So. 3d at 113–14 (no protection where a judge attacked a Caucasian mayor before a predominantly African‐American political organization); Miss. Comm’n on Judicial Performance v. Boland, 975 So. 2d 882, 892 (Miss. 2008) (no protection where a judge demeaned fellow judges and attacked the African American residents of her county at a judicial conference); In re Davis, 82 S.W.3d 140, 149–50 (Tex. Spec. Ct. Rev. 2002) (no protection where a judge publicized personal attacks on the district attorney and a young prosecutor); see also In re Kelly, 238 So. 2d 565, 568–69 (Fla. 1970) (no protection where a judge criticized fellow judges in ex parte court filing and newspaper). Thoughtful discourse on the racial composition of juries is not the subject matter of this lawsuit. The disciplinary charges against Judge Stevens detail an extensive series of ad hominem attacks directed toward individuals involved in pending cases before his court and the Kentucky Supreme Court. 30 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 31 of 41 PageID #: 149 Much like the present case, Davis involved a conflict between a judge and the local district attorney, as well as one of his prosecutors. 82 S.W.3d at 142. The judge had declined to revoke a defendant’s probation in a case handled by a young prosecutor, Laura Cass. Id. at 143. At her supervisor’s direction, Ms. Cass reported an outstanding warrant for that same defendant arising from another matter in an attempt to cause his arrest. Id. The judge concluded that Ms. Cass was trying to undermine his decision to continue the defendant’s probation. Id. After having the outstanding warrant dismissed, the judge reprimanded Ms. Cass in open court and wrote a letter to the district attorney calling Ms. Cass “sneaky” and “surreptitious” and accusing her of “gross misconduct.” Id. at 143– 44. The judge also forwarded this letter and transcripts from the pending case to various media outlets. Id. at 144. “The sensational story of the fight between the judge and the district attorney ran on the evening news.” Id. Following some unfavorable publicity, the judge asserted that the media conveyed a false impression of “this poor little prosecutor.” Id. at 145. In a second letter to the district attorney, the judge “presumed biblical authority for his decision‐making” and complained that Ms. Cass was “treacherous” with the “compassion of an Auschwitz camp guard.” Id. The Davis court approved discipline based on this judge’s public comments, reasoning that he had threatened the impartiality of the courts: Davis’s public attacks on the district attorney’s office in general and one prosecutor in particular (while she was still appearing before his court), created doubt that he could be fair in dealing with the State, despite his proclamations (then and now) that this dispute would never influence his judgment. Judge Davis continues to overlook the harm created by even the appearance of bias or prejudice. 31 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 32 of 41 PageID #: 150 Id. at 148. In response to the judge’s claim to First Amendment protection, the court explained that judicial officers are repeatedly cautioned “about confusing offenses to . . . personal sensibilities with obstruction to the administration of justice.” Id. at 149. The judge’s speech took on the dimension of a “personal vendetta.” Id. Such public statements promote the “private interest in retaliation” and not any matter of legitimate public concern. Id. at 149–50. The parallels between Davis and the apparent misconduct of Judge Stevens are striking.12 Here, the Commonwealth’s Attorney exercised his constitutional right to request clarification of a disputed legal issue from the Kentucky Supreme Court. (See Ex. 5.) Rather than simply state an opinion on the substantive legal and social issues, Judge Stevens used social media to publicly impute a racist motive to the Commonwealth’s Attorney during the pendency of the certification motion. Judge Stevens repeatedly asserted that the Commonwealth’s Attorney attempts to “impanel all‐white juries.” (Ex. 3.) He claimed that the Commonwealth’s Attorney called him a “racist” and encouraged public outcry to drive the prosecutor “right back in the corner.” (Id. at 2.) He accused the Commonwealth’s Attorney of trying to “deceive the people.” (Id.) Judge Stevens later characterized the actions of the Commonwealth’s Attorney in seeking certification as “poor form at the very least” or, “[a]t most, something much sinister.” (Id. at 3.) The attacks became extremely personal with Judge Stevens proclaiming, “History will unfavorably judge a prosecutor who loses a jury trial in which a 12 The following quotations include only a fraction of the incendiary public comments made by Judge Stevens. The remainder may be found in the factual background above and the Commission’s Formal Charges. (See Ex. 2 and 3.) 32 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 33 of 41 PageID #: 151 black man is acquitted and then appeals the matter claiming [he is] entitled to an all‐white jury panel. No matter the outcome, he will live in infamy.” (Id.) Judge Stevens did not appreciate the Commonwealth’s Attorney’s appeal of an adverse decision. He claimed that the Commonwealth’s Attorney requested certification only “because he wants to” and because he wants “the Kentucky Supreme Court to determine I was incorrect.” (Id. at 2–3). Judge Stevens’ thoughts on the prosecutor’s certification request are summed up in his declaration: “How dare you! How dare you!” (Id. at 4.) The Commonwealth’s Attorney, however, was not Judge Stevens’ only target. He also openly criticized public defenders and the criminal defense bar for not supporting him. (Id. at 8–9.) And, beyond his dispute with the Commonwealth’s Attorney, Judge Stevens repeatedly voiced personal offense to victim impact statements in which a three‐year‐old child was described as being afraid of black men after a home burglary. (See Ex. 2.) He accused the victims of fostering racial stereotypes in their child. (Id. at 1.) After probating the burglary defendant, Judge Stevens continued to attack the victims’ statements on social media. (Id. at 2–3.) Judge Stevens’ commentary does not relate to a matter of public concern. Like the Davis judge, the focus of his comments are personal disputes with litigants in pending cases and what he perceives as offenses and slights. His speech at the heart of this disciplinary proceeding is not protected by the First Amendment. Through his extrajudicial attacks on the Commonwealth’s Attorney, Judge Stevens called into question his ability to impartially adjudicate matters involving the most frequent litigant in his court—the Commonwealth of Kentucky. By disparaging this prosecutor, the criminal defense bar, and victims of a 33 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 34 of 41 PageID #: 152 crime—all during the pendency of cases—Judge Stevens raises serious questions about judicial integrity among the general public. Before withdrawing his motion for temporary restraining order, Judge Stevens relied on the distinguishable case of Scott v. Flowers, 910 F.2d 201 (5th Cir. 1990). He considers Scott the “seminal” case supporting his right to launch a campaign of insults against the Commonwealth’s Attorney. But the Scott decision involved a justice of the peace that sent an open letter to the press critiquing a higher court and the district attorney’s office for being too lenient in traffic appeals. Id. at 203–04. Scott did not raise the same impartiality and integrity concerns as presented here. Id. at 213. The justice of the peace in Scott never cast the subjects of his criticism as racists or claimed they would live in infamy for disagreeing with his orders. He offered an opinion to improve the justice system. Id. He did not repeatedly pursue ad hominem attacks against a regular litigant as Judge Stevens has done. In addition, Judge Stevens’ comments receive no First Amendment protection to the extent that he addressed litigants as part of his official duties. “[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti, 547 U.S. at 421 (no protection for a deputy district attorney’s speech in memorandum regarding disputed warrant affidavit); see Savage, 665 F.3d at 739 (no protection for a librarian’s speech as a committee member commenting on a book recommendation); Evans‐Marshall v. Bd. of Educ., 624 F.3d 332, 340–42 (6th Cir. 2010) (no protection for the in‐class curricular speech of primary and secondary school teachers). “Restricting speech that owes its existence to a public 34 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 35 of 41 PageID #: 153 employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.” Garcetti, 547 U.S. at 421–22. Judge Stevens expressed disdain for the burglary victims’ descriptions of their three‐year‐old child’s reaction to the crime during a sentencing hearing and in open court—unquestionably part of his official duties. (Ex. 2, at 1.) He declared that the statements deeply offended him at least three times before demeaning the victims’ parenting by asserting that they had fostered racial stereotypes. (Id.) That Judge Stevens’ duties as a judge require him to speak and write does not mean that the state is prohibited from evaluating his performance—particularly when it appears to conflict with basic judicial ethics. See Garcetti, 547 U.S. at 422. The prospect of First Amendment protection does not invest him with a right to perform his job however he sees fit. Id. His in‐court attack on the victims’ statements, at the very least, gave the appearance of bias against the state and a lack of impartiality. This abuse held the potential to damage not only the victim’s faith in the judiciary but the faith of the general public as well. The specific comments at issue in the disciplinary proceeding, which Judge Stevens has chosen not to discuss, were not made as a citizen addressing a matter of public concern. Instead, Judge Stevens used the courtroom, bar association events, and social media to air personal offenses and personal disputes. It is clear from a review of the Formal Charges that the substantive and important topic of jury composition is not at issue here. This case is about the personal attacks Judge Stevens launched against lawyers, litigants, and others in pending cases. That speech on which the disciplinary charges rely is not protected by the First Amendment. 35 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 36 of 41 PageID #: 154 B. Kentucky’s compelling interest in preserving the integrity and impartiality of the judiciary outweighs Judge Stevens’ interest in personal disputes, and as applied, the Canons are narrowly tailored to advance the state’s interest. The state’s compelling interest in ensuring the integrity and impartially of the judiciary outweighs Judge Stevens’ interest in publicizing his personal disputes. As applied to discipline Judge Stevens for his abusive remarks, the Canons are narrowly tailored to further the state’s compelling interest. “The judicial system depends on its reputation for impartiality; it is public acceptance, rather than the sword or the purse, that leads decisions to be obeyed and averts vigilantism and civil strife.” Bauer v. Shepard, 620 F.3d 704, 712 (7th Cir. 2010). Thus, “[s]tates are entitled to ensure not only that judges behave in office with probity and dignity, but also that their conduct make it possible for them to serve impartially.” Id. The state’s “interest in protecting both the fact and the appearance of the impartiality and integrity of its judiciary” is not simply compelling; it is “profound.” Schenck, 870 P.2d at 204; accord Carey, 614 F.3d at 201. Judge Stevens’ countervailing interest in publicly chastising the lawyers, litigants, and victims appearing before his court in pending cases is nonexistent. “[J]udges do not have a right to use rude, demeaning, and condescending speech toward litigants.” In re Disciplinary Proceeding Against Eiler, 236 P.3d 873, 879 n.5 (Wash. 2010). The Canons’ restrictions on such abusive behavior “are certainly narrowly tailored to achieve the compelling interest of preserving respect for, and the integrity of, the judicial system.” Id. Judge Stevens used his office to scrutinize the parenting skills of burglary victims while conducting a sentencing hearing. (Ex. 2, at 1.) He then continued the already unwarranted commentary on the victims’ statements via social media—despite the possibility of the case coming back before him. (Ex. 2, at 2–3.) 36 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 37 of 41 PageID #: 155 After the Commonwealth’s Attorney sought a certification of law, Judge Stevens took great “offense” to the idea that his decision could be questioned and reviewed by a higher court. His subsequent comments maligned the Commonwealth’s Attorney, accusing him of racism, deception, and a desire to impanel “all white” juries. (See Ex. 3.) Finally, Judge Stevens criticized members of the criminal defense bar for not injecting themselves into the public turmoil he created. (See id.) This sort of bullying is unacceptable. The state’s interest in correcting, at minimum, the perceived lack of integrity and impartiality arising from Judge Stevens’ public statements—especially toward the most frequent litigant in his court—vastly outweighs the private interest in continuing the abuse. Judge Stevens now tries to cloak himself in the protections of the First Amendment by revising his public comments after the fact. He attempts to insert dignity and maturity into his statement without any reference to what he actually said. Judge Stevens seeks to draw this Court away from the issues at hand. His filings contain lengthy discussions on the local history of racism and racism in the criminal justice system. But the disciplinary charges do not concern his opinions on such issues. It is undisputed that he may have opinions on those topics and express them. The Canons do prohibit—and the First Amendment does not protect—Judge Stevens’ personal attacks on lawyers, litigants, and victims in pending cases. In fact, Chief Justice Minton summarized the speech quite well, Rather than provide leadership on an important issue worthy of wide discussion, deliberation, and action, Judge Stevens has detracted from the conversation by choosing instead to malign the Commonwealth’s Attorney and mischaracterize his motives in pursuing his constitutional right to seek clarification on an issue of law before the Supreme Court on behalf of the Commonwealth. (Ex. 1, at 8.) The state’s interest in preserving the integrity and impartiality of its judiciary by far outweighs Judge Stevens’ interest “detract[ing] from the conversation” through his 37 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 38 of 41 PageID #: 156 abusive public commentary. (Id.) This conclusion is sufficient to rule in favor of the Commission under the public‐employee framework. Nevertheless, the potential application of the Canons to discipline Judge Stevens is also narrowly tailored to advance the state’s compelling interest. In Schenck, for example, the judge was disciplined after writing a letter to the editor and a guest editorial for the local newspaper. 807 P.2d at 200. The judge’s comments criticized the performance of the district attorney in a pending criminal matter where she had moved to disqualify the judge. Id. He publicly accused the district attorney of a “lack of competence, experience, professional demeanor, and personal maturity, citing specific instances in identifiable cases in [his] court.” Id. The judge even suggested that “alternatives” should be “investigate[d] . . . to ensure the county has a vigorous, competent prosecutor.” Id. The Schenck court reasoned that “[t]hose statements . . . , regardless of the Judge’s belief in their truth or whether they are in fact true, do not preserve or promote public confidence in the integrity and impartiality of the judiciary.” Id. The First Amendment is not offended by applying the Canons “to restrict a judge’s right to ‘report’ to the public on the specific and general competence and professional/personal maturity and demeanor of the district attorney, which report reasonably calls into question at least the Judge’s impartiality towards the district attorney and, derivatively, the public interest that she represents.” Id. at 204–05. Such limitations on a judge’s speech are “narrowly drawn” to further “the governmental interest in maintaining the fact and the appearance of an impartial judiciary, and [are] justified by the profound nature of that interest.” Id. at 205. Therefore, even assuming arguendo that Judge Stevens’ public attacks on the Commonwealth’s Attorney, criminal defense bar, and burglary victim were true, he may 38 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 39 of 41 PageID #: 157 still be disciplined for his public comments on pending cases without violating the First Amendment. The appearance of impartiality and integrity suffers in any instance where a judge publicizes his disputes with individuals involved in pending cases through unnecessary and extrajudicial comments. While the certification motion was pending and the burglary defendant was on probation, Judge Stevens “creat[ed] a social‐media firestorm calculated to aggrandize himself by exploiting the deep‐seated and widespread distrust of the criminal‐justice system by minority communities.” (Ex. 1, at 3.) The numerous media reports cited throughout Judge Stevens’ filings only show the great extent of his misconduct. The potential disciplining of Judge Stevens for his extrajudicial campaign to influence the outcome of pending cases survives even strict scrutiny as it is narrowly drawn to further the compelling interest in impartiality and integrity. Given that strict scrutiny is not a barrier to discipline, there can be no doubt that the less exacting public‐employee framework likewise allows the Commission to act. Judge Stevens’ failure to state claim under the First Amendment requires dismissal of the Complaint. CONCLUSION This Court should dismiss the Complaint for two plain reasons. Younger abstention prevents this Court from interfering in ongoing state proceedings where the state is seeking to preserve the integrity of its judicial system and the judge can raise his constitutional claims in that proceeding. And even if this Court considers the substance of the Complaint, it should find that it fails to state a claim as a matter of law. A judge is “a highly visible symbol of government under the rule of law” and his conduct is subject to 39 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 40 of 41 PageID #: 158 regulation to safeguard the integrity of the judiciary and avoid even the appearance of impropriety. See SCR 4.300, pmbl. Respectfully submitted, /s/ Virginia Hamilton Snell ____________ Virginia Hamilton Snell vsnell@wyattfirm.com Sean G. Williamson swilliamson@wyattfirm.com WYATT, TARRANT & COMBS, LLP 500 West Jefferson Street, Suite 2800 Louisville, KY 40202‐2898 502.589.5235 Counsel for Defendants 40 Case 3:16-cv-00199-GNS Document 14-1 Filed 05/10/16 Page 41 of 41 PageID #: 159 CERTIFICATE OF SERVICE I hereby certify that, on this the 10th day of May, 2016, I electronically filed the foregoing with the clerk of the court by using the CM/ECF system, which will send a notice of electronic filing to the following: Larry O. Wilder 530 East Court Avenue Jeffersonville, IN 47130 J. Bart McMahon jbartmc@mac.com 119 South Seventh Street Fourth Floor Louisville, KY 40202 Counsel for Plaintiff 61492574.14 /s/ Virginia Hamilton Snell___________ Virginia Hamilton Snell Counsel for Defendants 41