Earls’ First Amendment lawsuit reassigned from Biggs to Osteen | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    State Supreme Court Justice Anita Earls' First Amendment lawsuit against a state judicial standards group will proceed in front of a federal judge appointed by former President George W. Bush, not one appointed by former President Barack Obama.

    Court records tied to Earls' suit indicated Tuesday that the case had been reassigned from US District Judge Loretta Biggs to US District Judge William Osteen. The reassignment notice offered no reason for the change.

    Osteen, 63, has served as a federal judge in the Middle District of North Carolina since Bush'a appointment in 2007. He served as chief judge from November 2012 to November 2017.

    Biggs, 69, has served in the Middle District since Obama's appointment 2014. She was originally assigned Earls' case.

    Earls filed suit on Aug. 29 against North Carolina's Judicial Standards Commission. She alleges the group wants to "chill her right to speak on matters of public concern."


    The commission notified Earls on Aug. 15 that she is the subject of an investigation based on an interview published online in June.

    "The Commission's continuing efforts to investigate and potentially discipline me are a blatant attempt to chill my First Amendment rights to freedom of speech," Earls said in a court filing. "The actions of the Commission discourage both me and other judges and candidates from making statements critical of the judicial system. In my view, the statements made by me in the Interview are core political speech protected by the First Amendment, appropriate for judges, consistent with prior statements made publicly by other North Carolina judges, and intended to contribute to the improvement of our legal system."

    Earls is seeking an injunction, along with a declaration that the commission's investigation and possible punishment of her violates her constitutional right to free speech.

    "Justice Earls has been subjected to a series of months-long intrusive investigations, initiated by one or more anonymous informers, concerning her comments regarding operation of the North Carolina judicial system," according to the complaint filed Tuesday in US District Court. "Those comments, including those concerning diversity in the North Carolina judicial system, are fully protected by the First Amendment of the United States Constitution as core political speech."

    "The North Carolina Code of Judicial Conduct ("Code") which provides ethical guidance to judges in this State expressly permits judges to speak concerning the legal system and the administration of justice," Earls' lawsuit argued. "This case concerns an ongoing campaign on the part of the North Carolina Judicial Standards Commission (the "Commission"), which administers the Code, to stifle the First Amendment free-speech rights of Justice Earls and expose her to punishment that ranges from a letter of caution that becomes part of a permanent file available to any entity conducting a background check to removal from the bench."


    Appeals Court Judge Chris Dillon chairs the Judicial Standards Commission. Judge Jeffery Carpenter co-chairs the group. Dillon and Carpenter are Republicans. Earls is a Democrat.

    Earls' suit names the commission and 14 individual members as defendants.

    The lawsuit says the commission has initiated two investigations of Earls this year related to her public comments "on the subject of the legal system and the administration of justice."

    Earls cited a notice letter the commission sent her on Aug. 15. "[T]he Commission indicated its intent to investigate and potentially punish Justice Earls for an interview in a legal news publication in which she discussed the North Carolina Supreme Court's recent record on issues relating to diversity," according to the complaint.

    The publication Law360 published a June 20 interview titled "North Carolina Justice Anita Earls Opens Up About Diversity." She was responding to a May 17 article in the North Carolina Bar Association's publication. That article focused on the race and sex of lawyers arguing cases as the state's highest court.

    "The interview was prompted by a published study of the race and gender of advocates who argue before the Court," Earls' lawyers wrote. "In that interview, Justice Earls discussed matters such as the decision by the North Carolina Supreme Court to disband the Commission on Fairness and Equity, the Court's lack of judicial clerks from racial minority groups, the implicit bias associated with the interrupting of female advocates (and even herself as an African-American female justice) during oral argument, and the discontinuance of racial equity and implicit bias training in the North Carolina courts."

    "The Commission has indicated that it believes that Justice Earls' comments on these issues of legitimate public concern potentially violate a provision of the Code which requires judges to conduct themselves 'in a manner that promotes public confidence in the integrity and impartiality of the judiciary,'" according to the complaint.

    "It is Justice Earls' position that public confidence in the judiciary is compromised when the court system does not reflect the population it serves and is not promoted, as one court striking down a sanction levied against a judge who criticized the court system put it, 'by casting a cloak of secrecy around the operations of the courts,'" Earls' complaint continued.

    The First Amendment "prohibits the Commission, as an arm of the State, from stifling or even chilling free speech, especially core political speech from an elected Justice of the North Carolina Supreme Court," the complaint added. "The First Amendment allows Justice Earls to use her right to free speech to bring to light imperfections and unfairness in the judicial system. At the same time, the First Amendment prohibits the Commission from investigating and punishing her for doing so."

    Earls argues that the investigation into her comments "bespeaks a callous disregard for the principles of the First Amendment." She accuses the commission of "threatening judges who speak out about what they view as imperfections or defects in the judicial system and who do so in a measured and nuanced manner. Nothing could be more inimical to the First Amendment."


    The justice labels the August notice part of a "continuing effort to thwart" her free-speech rights. Her complaint cites an earlier investigation in March. It related to comments Earls made about rule changes and a proposed legislative change linked to the state's courts.