As Lawyer Gregory Fieger found out when he bitterly and publicly complained about an overturned verdict, lawyers can’t get away with publicly calling judges – - – “jackass judges.” After all, Lawyers Can’t Say Unkind Things About Judges. To his credit, GOP Presidential Rick Santorum didn’t refer to the judges on the 9th U.S. Circuit Court of Appeals as Rocky Mountain Canaries when he recently complained about their decision overturning California’s voter initiative ban on same-sex marriage as ‘judicial tyranny’ in Prop. 8 ruling.
Santorum, a former U.S. Senator from Pennsylvania, is also a lawyer licensed to practice in that state. But by criticizing the Ninth Circuit’s ruling by saying “Judicial Tyranny Is a Serious Issue in the US,” does he open himself up to possible lawyer discipline in Pennsylvania by alluding to judges as tyrants?
Probably not. First, he’s too high-profile since he’s running for President and state jurisdictions won’t dare inject themselves into a political fray. Second, there’s no upside given the grief already heaped on judges by non-lawyer but self-professed sinner, self-proclaimed non-lobbyist but constant historian Newt Gingrich’s assault on ‘activist judges’.
Still the question is more than merely academic. As I’ve blogged before, a tension exists between a lawyer’s First Amendment constitutionlly-protected opinions and the same lawyer’s obligations to protect the integrity of the judicial system. Indeed, the comment to the relevant rule of professional conduct in Pennsylvania advises, “To maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.”
But rather than test the elasticity of those competing interests, lawyers mostly muzzle themselves instead of pushing the limits of “how far can you go?”
Ethical Rule 8.2 , which adopted what’s known as The New York Times Co. v. Sullivan standard, prohibits lawyers from making “a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge . . . .”
It’s supposed to be a subjective standard, i.e., based on the speaker’s subjective belief not on what can be objectively shown to be true or false. But this isn’t always the case. In Idaho State Bar v. Topp, the Idaho Supreme Court stepped on a lawyer’s right of free speech by tipping the scales in favor of “the State’s legitimate interest in preserving the integrity of its judicial system” by surprisingly holding that Idaho’s version of 8.2 shouldn’t be read as requiring a showing of “actual (subjective) malice” but“should be read to impose an objective malice standard on attorneys.” Topp got in trouble for – by comparison – innocuously telling the press a judge “wasn’t worried about the political ramifications” of his decision.
Good thing, then, that Santorum isn’t subject to Michigan’s jurisdiction where Fieger got in hot water. That state’s professional conduct rules for lawyers on “courtesy and civility” go even further. Rule 3.5(c) of the Michigan Rules of Professional Conduct provides that a lawyer shall not “engage in undignified or discourteous conduct toward the tribunal.” And Michigan’s Rule 6.5(a) states that “a lawyer shall treat with courtesy and respect all persons involved in the legal process.” Although Fieger’s appeal of the Michigan Court’s bench slap to the 6th Circuit went nowhere, in its decision in No. 07-2213. – Fieger v. Michigan Supreme Court, the Court did take note that “No other jurisdiction places such potentially sweeping restrictions on attorney speech.“
The 6th Circuit held that Fieger and his co-plaintiff Richard Steinberg lacked standing because they had “failed to demonstrate actual present harm or a significant possibility of future harm based on a single, stipulated reprimand” and that they had “not articulated, with any degree of specificity, their intended speech and conduct” nor “sufficiently established a threat of future sanction under the narrow construction of the challenged provisions applied by the Michigan Supreme Court.”
But back to Rick Santorum, who holds himself up as the most socially conservative guy in the field. He didn’t make Newt’s Religious Freedom Defense From Overreaching Judges argument when he talked about judicial tyranny with NBC’s David Gregory on “Meet the Press.” But he did say he disagreed with the 9th Circuit’s squelching of Proposition 8 as unconstitutional. ” I think judicial tyranny is a serious issue in this — in this race and in this country, and we need judges who respect the people’s voice. Let the people decide with respect to what the Constitution, you know, what the Constitution says if, in fact, they’re going to go through a constitutional amendment process, which is what they did. The judges should respect that.”______________________________________________________________
[1] Count me as a huge fan of Professor Tarkington’s brilliant analyses of lawyer free speech rights. I last blogged about this most excellent professor in discussing the irony of “Judge invokes 1st Amendment and defendant’s due process rights to fight ethics complaint.”
Photo Credit: “Donkey” by Issy Whitcomb,snoboard1010,via Creative Commons-licensed content requiring attribution and share alike distribution at Flickr; “Rick Santorum” by Gage Skidmore at Wikipedia via Creative Commons Attribution-Share Alike 3.0 Unported license; “Speak No Evil,” by Theron LaBounty, notanyron, via Creative Commons-licensed content requiring attribution and share alike distribution at Flickr;”Unhappy Mule,” by Cindy Seigel, cindy47452, via Creative Commons-licensed content requiring attribution and share alike distribution at Flickr; “No Tolerance” by Jimmy Changa, Icky Pic, via Creative Commons-licensed content requiring attribution and share alike distribution at Flickr.
I almost forgot what I was going to say after watching Sofia Vergara’s Pepsi ad at the bottom of your blog post, Mo! WOW.
In my long observation and experience, most Republicans become exercised about “judicial tyranny” only when it enforces policies they (sometimes quite correctly) oppose, and are much less concerned with “judicial restraint” when it interferes with gutting statutes or policies they oppose.
This is likewise true of Democrats, who undeniably have in recent history been much more inclined to achieve through litigation what they are unable to achieve through legislation.
To my mind, this sort of intellectual dishonesty, inconsistency, and hypocrisy is a much greater threat to respect for the judiciary, or our system of laws, than even the most vituperatively vehement criticism of a judge or the judiciary by an attorney.
Moreover, the notion that attorneys, who are in the best position to effectively criticize the judiciary or our system of laws, are second-class citizens who must constantly choose between exercising their First Amendment rights and their liberty and property interest in practicing law only confirms that we are all victims of a system of judicial tyranny completely at odds with the Constitution.
Incompetent and dishonest judges and prosecutors are free to commit what amounts to fraud and theft by abusing their powers to subvert the law and the truth in the service of their careers or those who control the appointment process through legalized bribery disguised as “free” speech.
Lifetime appointments and overbroad immunity doctrines protect them from any consequences for their often virtually criminal conduct. They can with utter impunity wipe their behinds with statutes or the Constitution, and commit the theft of rights or verdicts supported by the truth and the law, but which they find personally offensive.
Their subversion of the truth and the law brings the judiciary and the rule of law into far greater disrepute than do lawyers who courageously being it to light.
Yet, they are enabled by an unethical “ethics” system they control to intimidate attorneys most familiar with their misconduct into silence, and to crush any attorneys courageous enough to speak out against their larceny.
The remedy for any attorney so deprived of his liberty and property? None.
He or she may sue for redress in the very courts which have deprived him of his Constitutional rights, with no hope of overcoming the unconstitutional abstention and immunity doctrines which are the keystone of judicial tyranny.
Or, he may, out of devotion to the truth and the law above all else, forsake his career, and keep his honor, if not his bank account, intact.
Since the material or psychic rewards in this or any other society for being honorable are slim to none, that is not an option many attorneys, who are as a class rather gutless, are likely to choose.
Hence may our august judiciary (consisting largely of political insiders who are appointed not because of their devotion to the truth and the law above all else, but because they can be relied upon to pose no serious threat to those they have long known, and blown, in order to secure appointment) may rest easy in the certain knowledge that they are free to go as far as they wish in subverting the law and the truth in the service of their petty agenda.
Mark
Thanks for your always cogent commentary. In fact, your remarks reminded me of an excellent essay written several years ago,“Judicial Immunity v. Judicial Accountability: Do we know the difference?,” by Arizona/Wisconsin lawyer Dianne Post who made a strong case for judicial accountability.
Dianne noted that “In September 2005, the American Bar Association (ABA) did a survey and found that more than half of Americans felt that judges were “arrogant, out-of-control, and unaccountable.” Rather than responding to the academic findings or people’s experience, the judicial sector has launched a campaign decrying the attacks on the courts as an attack on judicial independence. It is not. It is a cry for judicial accountability.”
While Dianne’s comments emanated from concerns about gender bias against women by the courts, I still remember Philadelphia Municipal Judge Teresa Carr Deni’s ‘priceless’ derogation of a prostitute sexually assaulted by a man who had hired her but then allegedly let his friends rape her. Judge Deni considered the case “theft of services” not sexual assault. Instead of leaving well enough alone, the judge then defended herself to the press, saying of the 20-year old victim, “She consented and she didn’t get paid. I thought it was a robbery.”
Most surprising to me, though, was that the Philadelphia Bar Association Chancellor incredibly, extraordinarily and aberrationally criticized Judge Deni for her decision in the case opining how it was “based on a pre-existing bias as to when sex can be consented to, and as to when that consent can be withdrawn, and reflects, in my opinion, a clear disregard of the legal definition of rape and the rule of law in this case.” See http://www.philadelphiabar.org/page/NewsItem?appNum=4&newsItemID=1000699
Also see Philly Judge Criticized for Rape Decision – ABC News, http://abcnews.go.com/TheLaw/story?id=3801167&page=1#.TzrzI1H8J8Y
In her essay, Dianne also cited examples of bias and prejudice in calling for greater judicial accountability. She decried judicial misconduct generally, writing:
“To compound the problem, the U.S. Supreme Court jurisprudence has made it clear that there is no remedy when fundamental rights are violated by judges. In Stump v. Sparkman , a mother asked the court to order her 15-year-old somewhat retarded daughter sterilized. Without any notice or guardian ad litem for the child, the judge held an ex parte hearing and granted the request. The daughter then sued a few years later. The Supreme Court said that the judge was absolutely immune no matter if the act was malicious or in excess of authority including in civil rights cases. The court said the only way a judge could be liable was if s/he was in clear absence of all jurisdiction. The factors to determine jurisdiction were whether the function was one usually done by a judge and whether s/he was acting as a judge at the time. Since custody of children is a function usually done by a judge, the petitioners have no remedy no matter how malicious the judge might be. In Mireles v. Waco, 502 U.S. 9 (1991) a public defender sued a judge who ordered the police to seize him and bring him to court forcibly. The Supreme Court again held that mistake or excess of authority does not strip a judge of immunity. Immunity is not overcome even if the judge is acting in bad faith or with malice or even if s/he is corrupt. The only way to avoid immunity is if the acts were not judicial or in the complete absence of all jurisdiction. So long as the action is cloaked in a judicial robe, gross violations of human rights are without remedy.
“Judicial independence is important, that we can all agree. But judicial independence is not the problem. Judicial accountability is. Without accountability judges simply become tyrants cloaked in a robe.
“Lawyers, as both officers of the court and independently having vowed to uphold the Constitution, need to do more. While it is true that lawyers who complain about judicial behavior often face retaliation, we must take on the challenge of upholding the rule of law in court. If not lawyers, then who?”
- Quoted passages from Dianne Post’s essay are published with express permission of the author.