Judicial standards group moves to dismiss Earls’ federal First Amendment suit | Eastern North Carolina Now

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

    The North Carolina Judicial Standards Commission is asking a federal court to dismiss state Supreme Court Justice Anita Earls' First Amendment lawsuit against the group. Paperwork filed Friday also asks the court to reject Earls' request for a preliminary injunction.

    Earls' Aug. 29 lawsuit argued that a commission investigation into her published comments threatened to "chill" the justice's speech about matters of public concern.

    "The Complaint accuses the Commission of 'target[ing]' Plaintiff in an attempt to silence Plaintiff's political speech," according to a brief supporting the dismissal motion filed Friday in US District Court. "Far from singling out Plaintiff for investigation, however, the Commission regularly considers whether certain speech by judges is consistent with the Code, both through confidential advisory opinions and confidential investigations. The Commission has offered consistent guidance on this topic to judges for years, advising that judges have broad rights in commenting on issues of the day, but that no judge should make unsupported accusations that a colleague is making decisions based on prejudices or biases, rather than the law and facts."

    The judicial standards group acknowledged that it notified Earls on Aug. 15 of a "confidential formal investigation" of statements attributed to her in a published article. The statements "may be read to accuse her colleagues of 'acting out of racial, gender, and/or political bias in some of their decision-making.'"

    "Plaintiff did not respond to the notice. Instead, Plaintiff waived confidentiality and filed this federal lawsuit, asking the Court to terminate the Commission's ongoing proceeding," according to the commission's lawyers. "This lawsuit should be dismissed."

    The judicial standards commission cited a 1971 US Supreme Court precedent, Younger v. Harris, that said "federal courts should not enjoin ongoing state judicial proceedings. The Court held subsequently that the doctrine extends to state ethics proceedings even when those proceedings are alleged to infringe on the plaintiff's First Amendment right to criticize the state judiciary."


    The commission "is tasked only with investigating whether a violation of the Judicial Code might have occurred and, if there is a violation, recommending to the Supreme Court of North Carolina whether the court should issue any public reprimand or discipline," according to a separate brief filed in opposition to Earls' request for an injunction. "The Commission is in the process of carrying out that legislative responsibility now through a confidential proceeding designed to protect, not threaten, a judge's First Amendment rights."

    Earls could raise her constitutional concerns during the commission hearing, and the Younger precedent "bars federal courts from interfering with the Commission's ongoing work."

    Even if the federal court accepts Earls' claims, "A confidential investigation is not the sort of material adverse action to Plaintiff's speech to implicate the First Amendment and, even if it were, the investigation is narrowly tailored to serve the state's compelling interest in protecting public confidence in the integrity of the judiciary," commission lawyers argued.

    "Enjoining the investigation is not necessary to prevent irreparable harm to Plaintiff, but would gravely harm the public interest by preventing the Commission from effectively carrying out its important statutory mission," according to the brief.

    Another document filed by Brittany Pinkham, the commission's executive director, offered more information about a group that usually operates with little public scrutiny.

    The 14-member Judicial Standards Commission is chaired by state Appeals Court Judge Chris Dillon. Dillon, a Republican, was initially appointed to the chair's post by then-Supreme Court Chief Justice Cheri Beasley, a Democrat. Current Chief Justice Paul Newby, a Republican, reappointed Dillon.

    The commission now has six Democrats, five Republicans, and three unaffiliated members. They conduct business in two seven-member panels.


    The commission offered 283 "confidential, written informal advisory opinions" to judges in 2022. Those opinions offer a "safe harbor" to judges. "The Commission will not recommend to the Supreme Court that a judge be sanctioned based on conduct consistent with an advisory opinion," Pinkham declared to the federal court.

    That same year the commission had 560 complaints pending against judges across North Carolina. Just 28 reached the formal investigation stage, Pinkham said. An "overwhelming majority" of formal investigations ended with the complaint's dismissal.

    "In 2022, the Commission did not make any recommendations for discipline to the Supreme Court," Pinkham indicated to the federal court.

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

    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 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.

    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.

    District Judge William Osteen admonished both Earls and the Judicial Standards Commission in September for "inflammatory" language in their court filings.