In 2 recent judicial discipline cases, courts rejected the judges’ attempts to argue that their conduct was protected by the First Amendment.
Although a West Virginia judge conceded that his traffic offenses violated the code of judicial conduct, he argued that his statements to the police officer and others challenging the stop were constitutionally-protected and could not be sanctioned. However, the Supreme Court of Appeals concluded that the judge had “stepped out of the shoes of an accused contesting a stop and into the shoes of a judge upon identifying himself as ‘Judge Williams’ and repeatedly invoking his office . . . .” In the Matter of Williams (West Virginia Supreme Court of Appeals May 4, 2023).
One Sunday, Moorefield Police Department Officer Deavonta Johnson stopped the judge’s vehicle after observing him with a cellphone phone in his hand on the steering wheel while driving. (West Virginia law prohibits operating a motor vehicle while texting or using a cell phone unless the driver uses hands-free equipment.) Officer Johnson approached the vehicle, but before he said anything, the judge asked, “[w]hat’s the problem?” Officer Johnson said, “How you doing, sir, . . . the reason I’m stopping you is . . . ,” but the judge interrupted him and said “I’m Judge Williams, and, I don’t . . . why are you stopping me?” The judge repeatedly attempted to explain that he had just picked the phone up from between the door and the seat and was only holding it, not using it. The judge also stated several times that the police are often on their cell phones and not on official business, angrily asking Officer Johnson, “you’re never on yours?” The judge was visibly agitated from the beginning of the conversation and became more agitated as it continued, and Officer Johnson asked why the judge was screaming at him. The judge told Officer Johnson several more times to give him a ticket and motioned for Officer Johnson to return to his vehicle.
The judge called Officer Johnson’s supervisor, Lieutenant Melody Burrows, at the scene, and she called Officer Johnson and told him not to write a ticket in order to diffuse the situation. When Officer Johnson returned to the judge’s car and told him that his license had expired, the judge did not answer, grabbed the license, and said “next time I see you . . .” as he drove off.
The judge called Lieutenant Burrows again after driving away and later that evening also called the police chief, the mayor, the former police chief, and the chief judge. He told Lieutenant Burrows, for example, that “he’s never been treated so badly as a Circuit Judge and that he couldn’t believe that my boy would – wouldn’t take his word for it and why he would lie. He’s the Circuit Judge.” Lieutenant Burrows stated that the judge expressed that he was tired of Moorefield police officers “acting like thugs, harassing hardworking people,” and that their cases were sloppy. Lieutenant Burrows also stated that the judge said that “he heard our [Moorefield Police] cases all the time and that if we treated people . . . like we treated him today that it makes him question our cases that he comes across.”
The Court emphasized that this is not “a police state–one is permitted to question why he is being pulled over and to contest a ticket if he believes he has done nothing wrong.” Noting that “judges do not lose all First Amendment protections when taking the robe,” the Court stated:
Protected speech not addressed by the Code of Judicial Conduct, no matter how obnoxious or offensive, is addressed through the ballot box, not disciplinary proceedings. . . . Had Respondent’s conduct been limited to loudly contesting whether Officer Johnson read the cell phone statute correctly, we might agree with his position . . . and would defer to the voters in Respondent’s district to judge his conduct.
However, it added, “inconvenient to Respondent’s argument, . . . the Code of Judicial Conduct has rules aimed at activities and speech both on and off the bench, and the Code of Judicial Conduct works weekends too.” The Court concluded that the judge’s “conduct was not an invocation of his rights as an accused to challenge a ticket he thought he did not deserve, but an invocation of and abuse of the prestige of his office” and that he had “improperly invoked his office, employed coercive tactics in contacting various public officials that evening, and suggested he might change his rulings in cases in retaliation for the traffic stop.”
The Court suspended the judge for 6 months without pay, fined him $5,000, and publicly censured him.
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A Texas judge challenged a private warning she had received for placing a rainbow flag in her courtroom, beneath the county seal behind the bench and next to the U.S. and Texas flags. She had been given the pride flag by a local LGBTQ organization to commemorate her investiture as its first openly gay member to take the bench. The Commission alleged that the “display unambiguously conveyed to the public a perceived partiality on behalf of the partisan interests of the LGBTQ community.” The judge argued that it was “a form of welcoming communication protected by the First Amendment.”
Rejecting the judge’s free speech argument, a Special Court of Review found that she “misapprehends the nature of the forum from which she speaks” and that her display “was government speech subject to government regulation without restriction by the First Amendment.” In re Speedlin-González, Opinion (Texas Special Court of Review January 30, 2023). It explained:
Perhaps from her perspective, the display of the pride flag commemorating her ground-breaking investiture was a personal expression of identity and community, but a judicial bench is an indisputably non-public forum from which only the government may speak and a courtroom participant or observer quite understandably views speech therefrom from a different perspective. Upon entering the courtroom of County Court at Law No. 13, one encounters a typical setting: counsel tables, a jury box, a witness seat, court reporter and clerk’s stations all separated from the gallery by a bar, and a judge’s bench separated and raised above them all. Displayed at and behind the bench are the symbols of government: the American flag, the Texas flag, the seal of Bexar County, and … the pride flag.
The judge (an elected official/employee of the state) presides over misdemeanor domestic violence cases which, much like felony cases, begin with a charge brought, “In the name and by authority of the State of Texas.” . . . When the judge enters the courtroom she performs judicial functions, i.e., impaneling juries, trying cases, pronouncing judgment, and imposing sentences.
The court concluded:
“It is axiomatic that a courtroom is not the judge’s living room for her to decorate as she pleases. It is the taxpayer’s forum for dispensing justice to all citizens – defendants and victims alike.”. . .
A Texas courtroom should remain “terrain neutre” to maximize the perception of equality of all litigants and spectators. Whether one agrees or disagrees with the content of Respondent’s intended message, it is inappropriate for a Texas courtroom.
However, the court dismissed the warning, stating that the Commission had not proven a willful violation of the code because, after receiving a tentative sanction from the Commission, the judge had removed the flag and her explanation that she had intended “to encourage commemoration and community” was credible.