united states district court for the … · tom parker, associate justice of ... justice parker’s...

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA

HON. TOM PARKER, Associate Justice of the Supreme Court of Alabama,

Plaintiff,

v.

JUDICIAL INQUIRY COMMISSION OF THE STATE OF ALABAMA, et al.

Defendants.

: : : : : : : : : :

CIVIL ACTION

CASE NO. 2:16-CV-442-WKW

PLAINTIFF JUSTICE TOM PARKER’S RESPONSE IN OPPOSITION TO DEFENDANT JUDICIAL INQUIRY COMMISSION’S BRIEF ON

MOOTNESS AND JURISDICTION AND ATTORNEY GENERAL MARSHALL’S RENEWED MOTION TO DISMISS

Case 2:16-cv-00442-WKW-SRW Document 56 Filed 03/11/17 of 39

ii

TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

FACTUAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

A. Associate Justice Of The Alabama Supreme Court, Tom Parker. . . . . . . . . . . 2

B. The JIC’s Ethical Investigation Into Justice Parker’sConstitutionally Protected Speech. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

C. The Continuing And Credible Threat Of A JIC ComplaintAgainst Justice Parker For His Speech. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

1. The challenged Canons represent a threat to Justice Parker’sspeech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

2. Justice Parker’s duties as a sitting judge magnify the threatto his speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

I. JUSTICE PARKER’S FIRST AMENDMENT FACIAL CHALLENGEIS JUSTICIABLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

A. Facial Challenges Under The First Amendment Are Justiciable . . . . . . . . . . .10

B. Justice Parker Has Plainly Alleged A First Amendment FacialChallenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

II. JUSTICE PARKER’S FIRST AMENDMENT AS-APPLIED CHALLENGEIS JUSTICIABLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

A. Pre-Enforcement As-Applied Challenges Under The First AmendmentAre Justiciable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

B. Justice Parker’s Pre-Enforcement As-Applied Challenge RemainsJusticiable Despite The Dismissal Of The JIC’s InvestigationAnd The Conclusion Of The Election. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

1. Justice Parker’s claims extend beyond any election campaign . . . . . . 17


iii

2. The presumption that government will not continue to engage in unconstitutional behavior is inapplicable to Justice Parker’s claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

a. The JIC remains free to resume application

of the challenged canons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

b. The First Amendment forbids application of the presumption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

III. JUSTICE PARKER’S DUE PROCESS CHALLENGE IS JUSTICIABLE . . . . . . . 25

A. Facial Challenges Are Permissible Under The Due Process Clause . . . . . . . . 25

B. Justice Parker Has Alleged A Facial Challenge Under The Due Process Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26

1. The conclusion of the election and investigation do not

moot Justice Parker’s due process challenge . . . . . . . . . . . . . . . . . . . . .26

2. Justice Parker faces a credible threat of and like prosecution . . . . . . .27 IV. THE ISSUES INVOLVED IN JUSTICE PARKER’S COMPLAINT ARE

NOT PROPER SUBJECTS OF A CERTIFIED QUESTION . . . . . . . . . . . . . . . . . . .28 V. DEFENDANTS’ OTHER ARGUMENTS ARE NOT PROPER SUBJECTS

UNDER THIS COURT’S REQUESTED BRIEFING ON JURISDICTION AND MOOTNESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30

VI. AT MINIMUM, JUSTICE PARKER SHOULD BE GRANTED LEAVE

TO AMEND PRIOR TO THIS COURT DISMISSING HIS CLAIMS . . . . . . . . . . . 31 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33


iv

TABLE OF AUTHORITIES

CASES ACLU v. The Florida Bar, 999 F.2d 1486 (11th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 27 Am. Library Ass’n v. Reno, 33 F.3d 78 (D.C. Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Bischoff v. Osceola Cnty., 222 F.3d 874 (11th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Bonner v. City of Pritchard, 661 F.2d 1206 (11th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 Burger King Corp. v. Weaver, 169 F.3d 1310 (11th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Butler v. Ala. Jud. Inquiry Comm’n, 802 So.2d 207 (Ala. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . 30 City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988) . . . . . . . . . . . . . . . . . . . .12, 24 Coral Springs Street Sys., Inc. v. City of Sunrise, 371 F.3d 1320 (11th Cir. 2004) . . . . . . . . . . . .23 Doe v. Florida Bar, 630 F.3d 1336 (11th Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25 Dombrowski v. Pfister, 380 U.S. 479 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Edenfield v. Fane, 507 U.S. 761 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 Eide v. Sarasota Cnty., 908 F.2d 716 (11th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25 Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167 (2d Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . .12 Gonzales v. Carhart, 550 U.S. 124 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 Harrell v. The Florida Bar, 608 F.3d 1241 (11th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Int’l Soc’y for Krishna Consciousness of Atl. v. Eaves, 601 F.2d 809 (5th Cir. 1979) . . . . . . 16, 17 Jacobs v. The Florida Bar, 50 F.3d 901 (11th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Kramer v. Price, 712 F.2d 174 (5th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 Leverett v. City of Pinellas Park, 775 F.2d 1536 (11th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . .11


v

Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229 (2010) . . . . . . . . . . . . . . . . . . .15 Pittman v. Cole, 267 F.3d 1269 (11th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim Renne v. Geary, 501 U.S. 312 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14 Shipner v. Eastern Air Lines, Inc., 868 F.2d 401 (11th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . 32, 33 Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Solomon v. City of Gainesville, 763 F.2d 1212 (11th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . .11 Spain v. Brown & Williamson Tobacco Corp., 230 F.3d 1300 (11th Cir. 2000) . . . . . . . . . . . . 29 Steffel v. Thompson, 415 U.S. 452 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Trinity Lutheran Church of Columbia, Inc. v. Paulet (Case No. 15-577) . . . . . . . . . . . . . . . . . . . 19 Troiano v. Supervisors of Elections in Palm Beach Cnty., 382 F.3d 1276 (11th Cir. 2004) . . . . 23 United States v. Edge Broad. Co., 509 U.S. 418 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15 United States v. Frandsen, 212 F.3d 1231 (11th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25 United States v. W.T. Grant Co., 345 U.S. 629 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 Virginia v. Va. Booksellers Ass’n, Inc., 484 U.S. 383 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) . . . . . . . . . . . . . . . . . . . . . . . .17 White’s Place, Inc. v. Glover, 222 F.3d 1327 (11th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Zubik v. Burwell, 136 S. Ct. 1557 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20 STATUTES Art. VI, § 159, Ala. Const. 1901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim Ala. R. App. P. 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28 Fed. R. Civ. P. 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 OTHER Lisa Milord, The Development of the ABA Judicial Code (1992) . . . . . . . . . . . . . . . . . . . . . .7, 20


1

Pursuant to this Court’s February 9, 2017 Order, upon remand from the Eleventh Circuit

Court of Appeals, Plaintiff Honorable Tom Parker, Associate Justice of the Supreme Court of

Alabama (“Justice Parker”), by and through the undersigned counsel, hereby files this Response

in Opposition to Defendant Judicial Inquiry Commission’s (“JIC”) Brief on Mootness and

Jurisdiction (dkt. 51, “JIC Brief”) and Attorney General Marshall’s Renewed Motion to Dismiss.

(Dkt. 53, “AG Brief”).

INTRODUCTION

On October 6, 2015, Justice Parker participated in a radio interview in which he was asked

to provide his views on wide-ranging issues, including his thoughts on matters of paramount

constitutional importance. That interview resulted in an ethical complaint being lodged against

him by the Southern Poverty Law Center, a yearlong investigation by the JIC based on nothing

more than Justice Parker’s constitutionally protected speech, and a course of litigation that has

been considered by both this Court and the Eleventh Circuit. Now, a year and a half after Justice

Parker filed his federal Complaint, and without this Court or any court ever considering the merits

of any of his constitutional challenges, Defendants seek the highly disfavored relief of complete

dismissal of this lawsuit. Having no answer to the significant constitutional concerns raised by

Justice Parker, Defendants’ sole refuge for the extraordinary and rarely granted remedy is a fatally

flawed and unquestionably impermissible rewriting of Justice Parker’s Complaint. Defendants’

redrafting of Justice Parker’s Complaint seeks to convince this Court that Justice Parker’s

allegations were only relevant to the November 2016 election and the JIC’s year-long investigation

into Justice Parker’s speech. Yet, Defendants cannot escape the fact that it is Justice Parker’s well

pleaded Complaint that controls, not their fanciful rewrite.


2

The only relevant inquiry before this Court is whether Justice Parker has sufficiently

pleaded a justiciable controversy. Defendants ignore the proper standards applicable to the well-

pleaded allegations of Justice Parker’s Complaint, omit or ignore critical allegations concerning

matters of significant constitutional infirmity, and fail to overcome long-established precedent

concerning the justiciability of Justice Parker’s claims. Indeed, Justice Parker’s allegations raise

issues pertaining to bedrock constitutional freedoms and challenge inter alia an ethical Canon that

is one of a kind in this country and that no other state has retained after the American Bar

Association abandoned support for its provisions as unconstitutional. The issues raised here

involve cherished First Amendment liberties and due process, and those issues are properly before

this Court. Defendants’ efforts to evade review of their unconstitutional laws and actions must fail.

FACTUAL BACKGROUND

A. Associate Justice Of The Alabama Supreme Court, Tom Parker.

Justice Parker is an elected Associate Justice of the Alabama Supreme Court. (Verified

Compl., “VC” ¶ 9). Justice Parker was first elected to the office of Associate Justice in November

2004, and officially took office in January 2005, for a six-year term. (Id. ¶ 18). He was reelected

for another six-year term in November 2010, with approximately 59% of the vote of Alabama

citizens. (Id.). At the time Justice Parker filed his Complaint, he was a candidate for Associate

Justice of the Supreme Court of Alabama in election in November 2016. (Id.). Justice Parker was

reelected again in 2016 for another six-year term. Since first taking office in January 2005, Justice

Parker has continuously served in that position without any suspension. (Id. ¶ 19). At the time of

the filing of his Complaint, Justice Parker was the subject of a preliminary investigation by the

JIC. (Id. ¶ 9).


3

B. The JIC’s Ethics Investigation Of Justice Parker’s Constitutionally Protected Speech.

The JIC is a state commission comprised of nine members, including its chairman

(Bedsole) and eight other members (Scott, Thrasher, Malone, Dowd, Judge Cole, Judge Pittman,

Judge Chaney, and Judge Kimberley) who have authority to conduct ethics investigations of judges

and file complaints against judges in the Court of the Judiciary (“COJ”). (Id. ¶¶ 10-12). The JIC’s

preliminary investigation of Justice Parker was based exclusively upon public comments he made

on a radio program. (Id. ¶¶ 58-60).

On October 6, 2015, Justice Parker participated in a radio interview with Mr. Bryan Fischer

of the American Family Association on the “Focal Point” radio show. (Id. ¶ 42). During the

interview, Justice Parker announced that he had qualified to run for reelection to a third term as an

Associate Justice of the Supreme Court of Alabama. (Id. ¶ 43). He also discussed his reelection

bid. (Id.) During the interview, Justice Parker discussed political processes, structures and forms

of government, how the courts operate and should operate, judicial and constitutional theory, and

issues of public significance. (Id. ¶ 44). He also cited American political, historical, and legal icons

such as Supreme Court Justices Oliver Wendell Holmes, John Roberts, and Antonin Scalia and

former Presidents Thomas Jefferson and Andrew Jackson, and referred to The Federalist Papers,

the U.S. Constitution, and opinions of the United States Supreme Court. (Id. ¶ 45). The only

discussion regarding a proceeding before the Supreme Court of Alabama was entirely and purely

descriptive. (Id. ¶ 47). Justice Parker did not predict, promise, pledge, or commit to a certain course

of action on the merits of any case pending before the Supreme Court of Alabama. (Id. ¶ 49).

Nevertheless, because of its disagreement with his judicial philosophy and views on

marriage, on October 12, 2015, the Southern Poverty Law Center (“SPLC”) lodged an ethics

complaint against Justice Parker with the JIC, attaching an unverified purported transcript of his


4

October 6, 2015 “Focal Point” radio interview. (Id. ¶¶ 52-53). In its complaint against Justice

Parker, the SPLC alleged that he violated Alabama Canons of Judicial Ethics during the Focal

Point radio interview by (1) “publicly comment[ing] on proceedings pending before the Alabama

Supreme Court” and (2) “undermin[ing] the integrity of the federal judiciary by suggesting that

the Alabama Supreme Court should defy and refuse to give effect to the United States Supreme

Court’s decision in Obergefell v. Hodges, … 135 S. Ct. 2584 (2015).” (Id. ¶ 54). Specifically, in

its complaint, the SPLC argued that Justice Parker’s speech on the “authority and integrity” of the

federal judiciary somehow constituted an ethical violation. (Dkt. 1-1, VC Ex. 1 at 4). The SPLC

argued that it was an ethical violation for Justice Parker to “ridicule” the rationale and conclusions

of a federal court. (Id. at 5). On October 13, 2015, the SPLC issued a press release announcing the

filing of its ethics complaint against Justice Parker. As a result, multiple local and national news

sources published stories detailing the SPLC’s vitriolic allegations against Justice Parker and

repeating verbatim many of them. (VC ¶¶ 56-57).

On November 5, 2015, pursuant to JIC Rule 6C, the JIC sent Justice Parker a letter

informing him that the JIC had “decided to investigate” the SPLC’s allegations of ethical violations

against Justice Parker—namely, (1) that in his radio interview on October 6, 2015 he “violated

Canon 3A(6) by publicly commenting on Ex parte State v. King, No. 1140460, then pending before

the Alabama Supreme Court,” and (2) that in that same radio interview he “violated Canons 1 and

2A by making comments … that undermine the integrity of and public confidence in the integrity

of the federal judiciary and the United States Supreme Court’s interpretation of the Constitution

in Obergefell v. Hodge [sic], e.g., suggesting that the Alabama Supreme Court should defy and

refuse to give effect to the Supreme Court’s decision in Obergefell.” (Id. ¶ 58). In subsequent


5

letters sent every six weeks thereafter pursuant to JIC Rule 6D, the JIC stated its intention to

continue its “preliminary investigation” against Justice Parker.1 (Id. ¶¶ 59-60).

On October 12, 2016, the JIC informed Justice Parker that it was dismissing the complaint

filed against him by the SPLC. A copy of the JIC’s letter dismissing the complaint against Justice

Parker is attached hereto as Exhibit A and incorporated herein. Despite completely dismissing the

charges against Justice Parker as unmerited, the JIC’s investigation into Justice Parker’s

constitutionally protected speech lasted for an entire year. (Ex. A).

C. The Continuing And Credible Threat Of A JIC Complaint Against Justice Parker For His Speech.

1. The challenged Canons represent a threat to Justice Parker’s speech.

The JIC’s year-long investigation into Justice Parker’s constitutionally protected speech

demonstrates the ongoing threat to his cherished constitutional liberties. Indeed, the undeniable

prospect of future ethics complaints lodged against Justice Parker for his political speech based

upon the same Canons at issue in the previous investigation causes an intolerable chill on Justice

Parker’s speech. As long as the JIC remains free to investigate Justice Parker for alleged violations

of the Canons based on nothing more than constitutionally protected speech about matters of

significant importance to citizens and the judiciary, the challenged Canons hang like the Sword of

Damocles over Justice Parker’s cherished freedoms. Such an undeniable threat violates his free

speech rights not only as a potential judicial candidate but also a sitting judge, and significantly

chills his First Amendment-protected speech about issues and matters of public importance. (VC

¶ 66). The JIC’s previous investigation into Justice Parker, and the indisputable threat of renewed

1 These letters were dated December 17, 2015; January 28, 2016; March 10, 2016; April 21, 2016; and June 2, 2016. (VC ¶ 60). JIC sent additional letters on July 14, 2016, August 25, 2016, and October 6, 2016, after the filing of this lawsuit.


6

investigations into protected activity, chills his speech and forces him to engage in self-censorship

of his speech as sitting judge. (Id. ¶¶ 67-68).

The allegations of Justice Parker’s Complaint demonstrate the continuing threat and chill

to his speech. Justice Parker faces a threat of sanctions for his speech, not merely as a judicial

candidate, but also as a sitting judge. (Id. ¶¶ 2, 4). As Justice Parker’s Complaint demonstrates,

the Canons challenged in this matter represent an ongoing threat to any judge in Alabama. (Id.

¶ 3). As the allegations plainly reveal, Justice Parker desires to engage in more discussion of public

issues and matters of public importance, including issues related to the Court. (Id. ¶ 68). His desire

to engage in such protected speech continues beyond the election campaign, and the threat to his

speech as a sitting judge is significantly chilled by the prospect of the JIC maintaining its position

that certain protected speech can constitute a violation of the challenged Canons. (Id.).

Indeed, Justice Parker is challenging inter alia the constitutionality of Canon 3A(6). (Id.

¶¶ 84-107). This provision, which is the only one of its kind still maintained in any state in the

country, imposes substantial threats to Justice Parker’s speech. Canon 3A(6) states that “[a] judge

should abstain from public comment about a pending or impending proceeding in any court, and

should require similar abstention on the part of court personnel subject to his direction.” Canon

3A(6), Ala. Canons Jud. Ethics (emphasis added). Alabama is thus the only state in the nation

that purports to ban judicial comments on any lawsuit pending in any court, no matter how

far away, and irrespective of whether the comments are likely to adversely impact that

litigation. Id. This breathtakingly broad provision would sanction even judges who comment on

pending lawsuits as part of a legal education course they might be teaching, or as part of a speech

to a group of concerned citizens. Id.


7

This provision was based on the previous model Canon by the American Bar Association.

Yet, the American Bar Association has since removed this provision from its model rules because

it believed it was grossly violative of the First Amendment. The reporter for the 1990 revision

explained the reason for the modification of the public-comment Canon:

In Section 3B(9), the first sentence of former Section 3A(6) was modified to prohibit only comment, whether public or private, that might affect the outcome or fairness of a trial or hearing. The language of the 1972 Code’s provision prohibiting any public comment about a pending or impending proceeding was believed by the Committee to be overbroad and unenforceable. For example, judges in their extra-judicial teaching and writing often refer to pending or impending cases in other jurisdictions without diminishing the fairness of those cases or the appearance of judicial impartiality.

Lisa L. Milord, The Development of the ABA Judicial Code 21 (1992) (emphasis added).

The American Bar Association’s 1990 revision to the public-comment rule significantly

narrowed its scope to prevent it from being “overbroad and unenforceable.” Despite the fact that

the American Bar Association revised this unconstitutional provision and the fact that every other

state in the country has also abandoned its excessive reach, Alabama maintains this provision

in its ethical Canons for judges. The JIC’s construction of this Canon during its investigation of

Justice Parker also demonstrates how intolerable it can be to the cherished speech of judges, like

Justice Parker. The existence of this Canon alone demonstrates the continuing threat to Justice

Parker’s speech.

2. Justice Parker’s duties as a sitting judge magnify the threat to his speech.

The significant chill the challenged Canons impose on Justice Parker is magnified given

his constant public appearances and discussions with citizen groups and the media. (See

Declaration of Honorable Tom Parker, Associate Justice of the Supreme Court of Alabama,

“Parker Decl.,” attached hereto as Exhibit B). Indeed, since the beginning of his elected office as


8

Associate Justice, Justice Parker has actively and consistently participated in numerous discussions

with concerned citizens, citizen groups, and local and national media. He continues to participate

in such public discussions and wishes to be able to avail himself of his First Amendment right to

speak on matters of public concern when called upon to do so. (Parker Decl. ¶ 3). Justice Parker is

frequently invited to speak at meetings of citizens and citizen groups, and he accepts such

invitations when he is able to do so. (Id. ¶ 4). He believes elected officials, including those on the

Supreme Court of Alabama, have an obligation to engage in discussions with the citizens and

organizations concerned about the work of their government. (Id.). Throughout the period in which

he has served as Associate Justice, Justice Parker has generally participated in one or more public

meetings with various citizens and citizen groups per week. (Id. ¶ 5). Such events typically involve

speeches, question and answer sessions, and/or various other formulas for discussion in which he

is asked to speak about matters of public concern. (Id.). Justice Parker is also frequently invited to

speak to various members of the local and national media concerning matters of public importance.

(Id. ¶ 8). Throughout his elected office, Justice Parker has also discussed topics of public

importance to various members of the press several times per month. (Id.).

Justice Parker would like to be able to engage in discussion of the important matters that

arise during his appearances and interviews, without fear that he will be punished for offending

the sensibilities of the SPLC, or for innocuously commenting on cases pending in other courts. (Id.

¶ 14). However, because of the recent investigation by the JIC into his protected speech and

complaints raised by various groups opposed to his position on certain matters, Justice Parker has

been chilled in his expression and forced to self-censor. (Id.). While he would like to be able to

discuss important issues openly with citizen groups understandably concerned about the impact of

such matters and interested in his positions concerning such fundamental rights, Justice Parker


9

cannot engage in such free discussion without fear of reprisal from some group(s) that may not

agree with his discussion or position on such matters. (Id.). As long as the unconstitutional judicial

Canons he is challenging in this lawsuit remain on the books, Justice Parker is forced to curtail his

speech or to remain silent altogether in order to avoid another JIC investigation. (Id.).

As a result of any ethics charge filed by the JIC in the COJ, Justice Parker would be

automatically penalized for his speech and immediately disqualified from acting as a judge

pursuant to Section 159 of the Alabama Constitution. “A judge shall be disqualified from acting

as a judge, without loss of salary, while there is pending . . . a complaint against him filed by the

[JIC] with the [COJ].” Art. VI, § 159, Ala. Const. 1901. (VC ¶¶ 3, 71). Thus, the filing of a

complaint with the JIC, regardless of its substance or merit (or lack thereof), coupled with the

JIC’s demonstrated willingness to investigate constitutionally protected activity, could serve to

immediately and automatically disqualify Justice Parker from judicial office for an indefinite

period. (Id. ¶¶ 1, 28). This automatic and immediate disqualification from his judicial office would

cause Justice Parker significant personal and professional loss, and punish protected First

Amendment speech. (Id. ¶¶ 66-70, 72-77).

ARGUMENT

I. JUSTICE PARKER’S FIRST AMENDMENT FACIAL CHALLENGE IS JUSTICIABLE.

Despite the JIC’s contentions to the contrary, the allegations in Justice Parker’s Complaint

are certainly justiciable, as significant First Amendment precedent demonstrates. Facial challenges

are plainly justiciable under the First Amendment, particularly when significant speech is

threatened or chilled by the mere existence of a law. Justice Parker has alleged such a First

Amendment challenge here.


10

A. Facial Challenges Under The First Amendment Are Justiciable.

When significant First Amendment interests are threatened by the terms of a law or

ordinance, plaintiffs are not required to wait application or enforcement to challenge it. It is now

axiomatic that “[t]he Constitution can hardly be thought to deny to one subjected to the restraints

of such an ordinance the right to attack its constitutionality, because he has not yielded to its

demands.” Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1969). Indeed, Justice Parker

need not “first expose himself to actual arrest or prosecution to be entitled to challenge the statute

he claims deters the exercise of his constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 459

(1974). “Because of the sensitive nature of constitutionally protected expression, we have not

required that all of those subject to overbroad regulations risk prosecution to test their rights. For

free expression—of transcendent value to all society, and not merely those exercising their

rights—might be the loser.” Dombrowski v. Pfister, 380 U.S. 479, 486 (1965).

As the Eleventh Circuit has made abundantly clear, “plaintiffs can challenge the

constitutionality of a statute that has not been unconstitutionally applied to them.” Bischoff v.

Osceola Cnty., 222 F.3d 874, 883 (11th Cir. 2000). Because of the transcendent value of free

expression, the Supreme Court has relaxed justiciability requirements to ensure that constitutional

rights receive adequate protection from government regulation. See, e.g., White’s Place, Inc. v.

Glover, 222 F.3d 1327, 1329 (11th Cir. 2000) (“We will not force a plaintiff to choose between

intentionally violating a law to gain access to judicial review and foregoing what he or she believes

to be constitutionally protected activity.”); Pittman v. Cole, 267 F.3d 1269, 1283 (11th Cir. 2001)

(same). The value of the freedoms protected by the First Amendment form the basis for why

standing requirements are relaxed in the First Amendment context. See, e.g., Pittman, 267 F.3d at

1283 (“the injury requirement is most loosely applied … where First Amendment rights are


11

involved”) (emphasis added); Leverett v. City of Pinellas Park, 775 F.2d 1536 (11th Cir. 1985)

(under relaxed standing requirements in First Amendment context, plaintiffs have standing to

mount facial challenges despite not being subject to an ongoing prosecution); Solomon v. City of

Gainesville, 763 F.2d 1212 (11th Cir. 1985) (standing requirements in First Amendment context

are relaxed). Justice Parker’s facial challenge under the First Amendment is justiciable, and he

unquestionably has standing to pursue his claims before this Court.

B. Justice Parker Has Plainly Alleged A First Amendment Facial Challenge.

The JIC’s contention that Justice Parker’s facial challenge is not adequately pleaded and

moot is based, in large part, on the staggering proposition that Justice Parker’s Complaint “simply

cannot be characterized as a facial challenge.” (JIC Brief at 14). To support this remarkable notion,

the JIC essentially re-wrote Justice Parker’s Complaint, to strip it of the express and unmistakable

references it makes to Justice Parker’s facial, pre-enforcement challenge. But it is Justice Parker’s

Complaint that controls, not the JIC’s re-written complaint. Justice Parker’s Complaint makes

abundant references to the fact that he is challenging certain Alabama Judicial Canons of Ethics

on their face. Moreover, the numerous allegations implicating the problems with the text of certain

Canons reflects a clear challenge to the face of the Canons.

Even a cursory reading of Justice Parker’s Complaint would demonstrate that his

allegations include challenges to the face of the judicial Canons. (See, e.g., VC at ¶ 1) (challenging

Canons “facially and as-applied”) (emphasis added); (id. ¶ 2) (challenging Canons “on their face”).

Justice Parker’s allegations regarding Canon 3A(6) plainly challenge it on its face. (See id. ¶ 98)

(alleging that Canon 3A(6) is “overbroad on its face”); (id. ¶ 99) (same); (id. ¶ 100) (same); (id.

¶ 101) (same). Justice Parker’s allegations concerning Canons 1 and 2A also challenge them


12

facially. (See id. ¶ 118). The JIC’s contention that Justice Parker’s challenge is not a facial

challenge willfully ignores and impermissibly re-writes the allegations of his Complaint.

While the JIC contends that much of the above allegations are mere “boilerplate” (JIC Brief

at 9 n.5), a litany of additional allegations evidence that Justice Parker’s challenge of the Canons

in suit is facial. Justice Parker’s Complaint references the problems with the actual text of the

Canons he is challenging. (See, e.g., VC at ¶ 4) (noting that pre-enforcement challenge to the terms

of the Canons is only effective vehicle to protect his constitutional rights); (id. ¶ 93) (noting that

text of the Canon makes it unconstitutionally content-based); (id. ¶ 95) (noting that the text of the

Canon makes it not narrowly tailored); (id. ¶ 97) (describing the constitutional flaws of the text of

the Canon); (id. ¶ 102) (noting that the text of the Canon unconstitutionally gives unbridled

discretion to government officials); (id. ¶ 103) (noting that the text of the Canon fails to provide

constitutionally sufficient safeguards); (id. ¶ 104) (noting that the text of the Canon makes it an

unconstitutional prior restraint); (id. ¶ 119) (describing the constitutional deficiencies of the

challenged Canon); (id. ¶ 120) (same); (id. ¶ 121) (same); (id. ¶ 122) (same); (id. ¶ 124) (same).

The numerous allegations concerning the constitutional deficiencies of the text of the

Canons Justice Parker is challenging demonstrate the facial nature of the attack he is mounting

against the unconstitutional Canons. After all, “[f]acial attacks, by their nature, are not dependent

on the facts surrounding any particular [law].” City of Lakewood v. Plain Dealer Publ’g Co., 486

U.S. 750, 770 n.11 (1988). “A facial challenge to a statute considers only the text of the statute

itself, not its application to the particular circumstances of an individual.” Field Day, LLC v. Cnty.

of Suffolk, 463 F.3d 167, 176 (2d Cir. 2011). Justice Parker’s abundant allegations concerning the

problems with the text of the challenged Canons clearly indicate that he is bringing a facial

challenge under the First Amendment. His facial challenge under the First Amendment is


13

independent of and clearly survives the JIC’s abandoned investigation and the election, and is

therefore justiciable and should be considered on its merits by this Court

Nevertheless, were this Court to determine that these abundant allegations were insufficient

to refute the JIC’s absurd contention that Justice Parker has not mounted a facial challenge, which

it should not, numerous other allegations of Justice Parker’s Complaint make the continuing threat

to his speech plainly evident. While the JIC contends that Justice Parker has not and cannot allege

a facial challenge to the text of the challenged Canons, that notion is based on the JIC’s erroneous

misreading and redrafting of Justice Parker’s Complaint. (JIC Brief at 11). The JIC contends that

any facial challenge is inadequately plead because Justice Parker cannot allege “any meaningful

need to engage in speech post-election.” (Id.). In addition to being repugnant to the freedom of all

individuals – including elected officials and sitting judges – to engage in protected speech and

offensive to the very notion of a free society, the astounding proposition ignores the abundant

allegations of Justice Parker’s Complaint. (See, e.g., VC ¶ 3) (noting that the Canons are a constant

threat to all judges, including Justice Parker); (id. ¶ 4) (discussing Justice Parker’s speech as a

sitting judge and also the threat to all future Alabama judges); (id. ¶ 9) (discussing Justice Parker

as a sitting judge, not just a candidate for office); (id. ¶ 66) (alleging that the Canons being

challenge are a threat to Justice Parker’s future speech, not merely election speech); (id. ¶ 67)

(referencing Justice Parker’s speech as a sitting judge, not just candidate); (id. ¶ 68) (noting that

Justice Parker wishes to engage in future speech as a sitting judge); (id. ¶ 70) (discussing Justice

Parker’s speech as a sitting judge); (id. ¶ 94) (discussing Canons as applying to “judge’s speech,”

not merely a candidate’s speech); (id. ¶ 97) (same); (id. ¶ 98) (discussing speech of Justice Parker

as a sitting judge).


14

Moreover, even if the seeds of doubt sowed by the JIC were plausible – and on the

overwhelming evidence presented above they are clearly not – Justice Parker’s Declaration makes

it abundantly clear that the threat to his speech is ongoing. (See Parker Decl. ¶¶ 3-13) (discussing

Justice Parker’s speech at frequent appearances with citizen groups and media outlets); (see also

id. ¶¶ 15-16) (discussing the potential threat to Justice Parker’s speech in any candidacy for the

Chief Justice position). The JIC’s notion that Justice Parker’s Complaint fails to demonstrate the

need to engage in any speech “during his remaining tenure on the bench” (JIC Brief at 11) is

offensive and demonstrably incorrect. Justice Parker has plainly alleged a justiciable facial

challenge, and it should be decided by this Court.

The JIC’s reliance on Renne v. Geary is misplaced. (JIC Brief at 10). First, as demonstrated

below, Justice Parker’s as-applied challenges are not moot, so Renne is inapposite. See infra

Sections II and III. Second, Justice Parker’s Complaint suffers from none of the defects focused

on by the Supreme Court in Renne. See Renne v. Geary, 501 U.S. 312, 321-23 (1991). Unlike

Renne, Justice Parker’s Complaint was not moot prior to the complaint being filed. Id. at 321.

While the complaint in Renne failed to allege that “any action was taken to enforce” the challenged

provision, id., Justice Parker’s Complaint plainly alleges (and demonstrates) that action was taken

to enforce the challenged Canons. (VC ¶¶ 38-65). Also, in Renne, the record contained “no

evidence of a credible threat that [the challenged law] will be enforced.” Renne, 501 U.S. at 322.

Here, however, there is abundant evidence that the JIC’s interpretation of the challenged Canons

constitutes a threat to Justice Parker’s speech. (VC ¶¶ 38-65). Thus, despite the JIC’s reliance to

the contrary, Renne actually compels this Court to engage in a review of Justice Parker’s

Complaint.


15

II. JUSTICE PARKER’S FIRST AMENDMENT AS-APPLIED CHALLENGE IS JUSTICIABLE.

Pre-enforcement as-applied challenges under the First Amendment have been recognized

by the Supreme Court and the Eleventh Circuit. Such claims are plainly justiciable in

circumstances such as those at issue here. Justice Parker’s pre-enforcement as-applied challenge

remains justiciable in the instant matter because his right to speech extends beyond his judicial

campaign, his allegations demonstrate his continued desire to engage in such speech, and the

various presumptions portending to moot certain claims are inapplicable here.

A. Pre-Enforcement As-Applied Challenges Under The First Amendment Are Justiciable.

Despite the JIC’s contention that no as-applied challenge can be maintained now that it has

dismissed its investigation into the ethical complaints against Justice Parker and the 2016 election

has concluded (JIC Brief at 4-5), pre-enforcement as-applied challenges have been recognized by

the Supreme Court in numerous instances. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 167 (2007)

(“pre-enforcement, as-applied challenges to the Act can be maintained”); Holder v. Humanitarian

Law Project, 561 U.S. 1, 16 (2010) (noting that pre-enforcement as-applied challenges were

certainly justiciable in the First Amendment context); Milavetz, Gallop & Milavetz, P.A. v. United

States, 559 U.S. 229, 233-34 (2010) (considering a pre-enforcement as-applied challenge);

Edenfield v. Fane, 507 U.S. 761 (1993) (considering a licensed accountant’s challenge to a broad

rule prohibiting certain advertising practices to be an as-applied challenge despite the fact that

punishment was never imposed); id. at 780-81 (O’Connor, J., dissenting) (recognizing that the

majority treated the accountant’s challenge as an as-applied challenge despite the fact that the state

never imposed the penalty upon him under the statute); United States v. Edge Broad. Co., 509 U.S.


16

418 (1993) (discussing Edenfield’s treatment of the accountant’s challenge as a pre-enforcement

as-applied challenge).

Numerous circuit court decisions, including some binding on this Court, have also

recognized the justiciability of pre-enforcement as-applied challenges. See, e.g., Harrell v. The

Florida Bar, 608 F.3d 1241 (11th Cir. 2010) (allowing an as-applied challenge to go forward

against a regulation prohibiting certain actions of licensed professionals); Jacobs v. The Florida

Bar, 50 F.3d 901, 906 (11th Cir. 1995) (“When, as here, plaintiffs seek to vindicate their own

rights, the challenge is as-applied.”); id. at 906 & n.18 (noting that a person who challenges a law

prohibiting him from engaging in some activity he wishes to engage in but cannot because of the

prohibition “ha[s] stated a cause of action for an as-applied challenge to the rules”); Am. Library

Ass’n v. Reno, 33 F.3d 78 (D.C. Cir. 1994) (holding that, regardless of the fact that “the Act has

never been enforced,” the prohibition “nonetheless impose[d] present-day burdens on several of

the appellees” and permitted them to bring an as-applied challenge against the prohibition); Int’l

Soc’y for Krishna Consciousness of Atl. v. Eaves, 601 F.2d 809, 819-20 (5th Cir. 1979)

(recognizing that as-applied challenges may be brought under the First Amendment, even when

such challenges arise prior to enforcement of the allegedly unconstitutional law).2

Eaves is instructive (and binding) on the justiciability of Justice Parker’s claims here.

Indeed, there, the court noted that it “can be most certain that a constitutional challenge grows out

of a genuine dispute . . . if we know that the allegedly unconstitutional statute interferes with the

way the plaintiff would normally conduct his affairs.” Eaves, 601 F.2d at 819. The court held that

when an individual alleges that a statute infringes on speech, which he would ordinarily engage in

2 The Fifth Circuit decision in Eaves is binding precedent on this Court. See Bonner v. City of Pritchard, 661 F.2d 1206 (11th Cir. 1981).


17

but for the potential enforcement of allegedly unconstitutional laws, an appellant’s interest in

bringing such “anticipatory challenges” (i.e., pre-enforcement) is “jurisdictionally impeccable.”

Id. at 820 (emphasis added). Indeed, to hold otherwise would be “insist[ing] that a person must

break the law in order to test its constitutionality [and] risk punishing him for conduct which he

may have honestly thought was constitutionally protected. Not only is this prima facie unfair, but

it discourages people from engaging in protected activity and enforcing constitutional rights.” Id.

at 821. As detailed in the next section, Justice Parker's allegations fall within this category of

anticipatory as-applied challenges and are likewise jurisdictionally impeccable.

B. Justice Parker’s Pre-Enforcement As-Applied Challenge Remains Justiciable Despite The Dismissal Of The JIC’s Investigation And The Conclusion Of The Election.

Justice Parker’s allegations of infringement on his constitutional rights are legion. The

Canons Justice Parker challenges threaten his speech as a sitting justice, not merely a candidate

for judicial office. The end of the election and the dismissal of the JIC’s investigation of his speech

do not diminish the threat. The presumptions the JIC references to bolster its mischaracterization

of Justice Parker’s Complaint provide no refuge for its contentions of mootness.

1. Justice Parker’s claims extend beyond any election campaign.

The JIC insists that, because its investigation has been dismissed and because the election

campaign is over, there can be no remaining as-applied challenge. (JIC Brief at 4-5). However,

Justice Parker’s rights to speak and exercise his constitutional rights “depend on the outcome of

no elections.” West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). Justice

Parker’s right to speak survives the conclusion of the JIC’s investigation and the election, but the

Canons he is challenging are still on the books and still represent an unconstitutional and

intolerable threat to the exercise of his cherished liberties.


18

Once again, even a cursory reading of Justice Parker’s Complaint reveals a plainly alleged

pre-enforcement as-applied challenges. While the JIC’s investigation into Justice Parker was

certainly initiated during the election campaign and arose out of allegedly unethical conduct in that

campaign, the threat to Justice Parker’s protected speech is no less diminished post-investigation

and post-election. Indeed, Justice Parker has alleged that he wishes to continue to engage in

protected speech that is threatened by the challenged Canons. (See, e.g., VC ¶ 3) (noting that

the Canons are a constant threat to all judges, including Justice Parker); (id. ¶ 4) (discussing Justice

Parker’s speech as a sitting judge and also the threat to all future Alabama judges); (id. ¶ 9)

(discussing Justice Parker as a sitting judge, not just a candidate for office); (id. ¶ 66) (alleging

that the challenged Canons are a threat to Justice Parker’s future speech, not merely election

speech); (id. ¶ 67) (referencing Justice Parker’s speech as a sitting judge, not just candidate); (id.

¶ 68) (noting that Justice Parker wishes to engage in future speech as a sitting judge); (id. ¶ 70)

(discussing Justice Parker’s speech as a sitting judge); (id. ¶ 94) (discussing Canons as applying

to “judge’s speech,” not merely a candidate’s speech); (id. ¶ 97) (same); (id. ¶ 98) (discussing

speech of Justice Parker as a sitting judge).

While the JIC contends that the speech at issue in this matter “relate[d] solely to [Justice

Parker’s] allegedly pressing need to engage in certain political speech during his campaign,” (JIC

Brief at 5), such contention again impermissibly attempts to rewrite Justice Parker’s Complaint.

Justice Parker’s allegations concerning the topics about which he was speaking that gave rise to

the JIC’s ethical investigation are not merely campaign issues and extend beyond any elections.

(See VC ¶ 44) (“Justice Parker discussed political processes, structures, and forms of government,

how the courts operate and should operate, judicial and constitutional theory, and vital issues of

public significant.”); (id. ¶ 45) (“Justice Parker mentioned American political, historical, and legal


19

icons such as Supreme Court Justices Oliver Wendell Holmes, John Roberts, and Antonin Scalia

and former Presidents Thomas Jefferson and Andrew Jackson, and he also referred to The

Federalist Papers, the U.S. Constitution, and opinions of the U.S. Supreme Court.”). These topics

are matters upon which judges in Alabama speak with great frequency, if not daily. Indeed, as

Justice Parker’s sworn testimony demonstrates, he engages in such speech constantly with citizen

groups and the media. (Parker Decl. ¶¶ 3-13) (discussing Justice Parker’s meetings and speech

with citizen groups and interviews with the media). As his testimony reveals, Justice Parker is

frequently asked questions concerning issues of significant public importance, and he would like

to be able to speak freely on these topics without fear of investigation by the JIC. (Id. ¶ 14) (noting

that Justice Parker wishes to speak to citizen groups and the media but is forced to self-censor

because of the JIC’s previous interpretation of the challenged Canons). If such topics can be

considered the basis upon which an ethical investigation can be launched, then the threat to Justice

Parker’s speech begins anew every morning he is subject to such unconstitutional Canons.

The JIC contends that the Alabama Supreme Court’s decision in API II “add[s] even more

mootness here,” (JIC Brief at 5), but that contention is also devoid of merit. As Justice Parker’s

allegations make clear, the speech giving rise to the JIC’s investigation involved opinions of the

United States Supreme Court. (VC ¶ 45). While the API II case might have been concluded, Justice

Parker is frequently asked his opinions on issues presently the subject of litigation before the

federal judiciary. (Parker Decl. ¶¶ 11-13). Recently, issues surrounding the enactment by various

governments of so-called Blaine Amendments have arisen in Justice Parker’s discussions with

citizens and the press. (Id. ¶ 11). These Blaine Amendments prohibit direct government aid to

educational institutions and other organizations that are affiliated with religious organizations.

(Id.). The United States Supreme Court is currently considering Trinity Lutheran Church of


20

Columbia, Inc. v. Paulet (Case No. 15-577), which deals precisely with the issues involved in the

Blaine Amendments. (Id.). Justice Parker has been asked questions concerning the issue involved

in Blaine Amendments generally and this case, and would like to be able to discuss the significant

First Amendment issues at stake in these discussions, including criticizing the Eight Circuit Court

of Appeals decision in the Trinity Lutheran case. (Id.). But Alabama is the only state in the

Union that has retained a Canon indiscriminately prohibiting judges from commenting upon

any judicial proceeding pending anywhere, irrespective of whether such comments are likely

to adversely affect that proceeding. See Canon 3A(6), Ala. Canons Jud. Ethics. Even though the

American Bar Association has changed its model Canons to abandon this obviously

constitutionally defunct prohibition,3 Alabama retains it and it interferes with Justice Parker’s

speech, and the speech of all other judges, every day it is allowed to remain in effect.

Additionally, issues relating to abortion and pro-life matters frequently arise in Justice

Parker’s discussions. (Parker Decl. ¶ 13). This topic constantly comes up in the news, in town hall

meetings, in public discourse, and in the meetings Justice Parker participates in with Alabama

citizens. (Id.). The issue was recently considered by the United States Supreme Court in Zubik v.

Burwell, 136 S. Ct. 1557 (2016), which involved a challenge to regulations mandating provision

of coverage for abortion and abortion-inducing drugs by non-profit organizations and charities,

including the Little Sisters of the Poor and others. (Id.). That decision remanded the matter to the

various circuit courts to consider additional issues, where it remains pending. (Id.). Not only do

these cases concern the fundamental right to life, but also the religious freedoms guaranteed by the

First Amendment. (Id.). Justice Parker has been asked questions concerning this issue generally,

3 See Lisa L. Milord, The Development of the ABA Judicial Code 21 (1992) (discussing the ABA’s conclusion that such a provision was unconstitutionally overbroad and unenforceable).


21

and would like to be able to discuss the significant First Amendment and constitutional issues

presented in these matters. (Id.). Nevertheless, he is forced to curtail and self-censor his

constitutionally-protected speech to avoid ethical complaints, investigations, and possible

punishment. (VC ¶¶ 38-65).

Moreover, Justice Parker’s allegations concerning the threat imposed by the challenged

Canons reference speech in general, not merely electioneering speech. (See id. ¶¶ 99-104)

(discussing the constitutional deficiencies of Canon 3A(6) as it relates to speech in general); (id.

¶¶109-110) (discussing speech by a judge in general); (id. ¶¶ 112-115) (discussing speech in

general); (id. ¶¶ 119-125) (discussing the constitutional deficiencies of Canon 1 and 2A as they

relate to speech in general). These allegations plainly dispel the notion that the threat to Justice

Parker’s speech was eliminated the day the investigation closed or his campaign ended. The speech

Justice Parker has alleged he wishes to engage in is still under severe threat by the challenged

Canons. Thus, despite the JIC’s contention that “there is just nothing left for this or any Court to

adjudicate,” (JIC Brief at 5), Justice Parker’s speech is still threatened by the challenged Canons.

His as-applied claims are therefore justiciable.

Finally, while the JIC claims that “there is no reasonable likelihood that Justice Parker will

be in this, or any materially similar situation again, such that this same alleged violation could

recur as-applied to him,” (JIC Brief at 5), its own admissions eviscerate that claim. As the JIC

rightly notes, Justice Parker is eligible to run for the open Chief Justice position in 2018. (Id. at 7

n.4).4 Justice Parker is eligible to run for Chief Justice in 2018, is being urged to run for the Chief

Justice position, and is seriously considering that opportunity to further serve the citizens of

4 In an apparent attempt to suggest the threats to Justice Parker’s speech are speculative of events far off in the future, the JIC incorrectly states that he is eligible to run for Chief Justice in 2019. But, the election for Chief Justice is in 2018.


22

Alabama. (Parker Decl. ¶ 15). This is not some hypothetical, far off event as the JIC contends with

its erroneous assertion that the election is two years away in 2019. On the contrary, fundraising for

this race is permitted and expected to begin in as little as three months from the date of this filing.

(Id. ¶ 15). Were he to run for Chief Justice, Justice Parker would be forced to consider the

implications of his speech during that election, and to self-censor constitutionally permissible

speech. (Id. ¶ 16). While the challenged Canons remain operative, the threat to his speech is in no

way diminished and remains intolerable under the first Amendment. (Id.). Justice Parker’s as-

applied challenges alleged in his Complaint are thus justiciable and should be considered on their

merits.

2. The presumption that government will not continue to engage in unconstitutional behavior is inapplicable to Justice Parker’s claims.

Even if the JIC could demonstrate that Justice Parker’s pre-enforcement as-applied

challenge was moot—which it cannot—its contention that Justice Parker cannot overcome the

presumption that government actors will not continue to engage in unconstitutional behavior (JIC

Brief at 6) is without merit and flies in the face of substantial precedent. This presumption is

inapplicable in the current context, and the First Amendment forbids application of such a

presumption when speech is at issue. Thus, even if this Court were to find that Justice Parker’s

pre-enforcement as-applied challenge was moot—which it should not—the exception to the

mootness doctrine is plainly applicable here.

a. The JIC remains free to resume application of the challenged Canons.

The JIC wrongly contends that Justice Parker’s claims are moot because the JIC, which is

a government actor, benefits from a presumption that it will not repeat the alleged wrong. (JIC

Brief at 6). While it is generally true that courts presume government actors will not return to


23

allegedly unconstitutional activity when they voluntarily cease it, that is only true where the

challenged law or policy was repealed or amended. See, e.g., Coral Springs Street Sys., Inc. v.

City of Sunrise, 371 F.3d 1320, 1328-29 (11th Cir. 2004) (noting that the Supreme Court and other

courts have held that repeal of the challenged ordinance moots the suit); Troiano v. Supervisors

of Elections in Palm Beach Cnty., 382 F.3d 1276 (11th Cir. 2004) (same). Yet here, the Canons

Justice Parker is challenging are still in full force and effect, and the government body tasked

with enforcing those Canons—the JIC—has not voluntarily ceased anything with respect to those

Canons.

Given that the JIC continues to maintain and affirm the constitutionality of the challenged

Canons, this case is more akin to ACLU v. The Florida Bar, 999 F.2d 1486 (11th Cir. 1993). There,

the Eleventh Circuit noted that, because the judicial ethics commission maintained that the

challenged provisions were constitutional, “we have no reason to think that it would not be

enforced in the future.” ACLU, 999 F.2d at 1494. Indeed,

it would be an anomalous result if the Bar and the JQC were permitted to (1) maintain that [the challenged Canon] is constitutional and enforceable and yet, if Schack or another judicial candidate in Schack’s position were to seek pre-enforcement review, to (2) again come into court saying ‘[the challenged Canon] does not apply to that proposed speech.’

Id. at 1495.

The Eleventh Circuit has thus recognized that when a government body maintains the

constitutionality of the challenged laws, it is free to resume application of them at any time

regardless of the fact that it may have voluntarily ceased an enforcement action in a previous

matter. Id. That conclusion is bolstered by the Supreme Court’s holding that “a case or

controversy remains after a defendant voluntarily ceases allegedly improper behavior but is

free to resume it any time.” Id. (citing United States v. W.T. Grant Co., 345 U.S. 629 (1953))


24

(emphasis added). The fact that it was a government defendant did not reduce the threat to speech

when the government maintains that its law was constitutional. Id.

The same result is compelled here. Justice Parker is challenging Canons 1, 2A, and 3A(6)

as violations of the First Amendment. (VC ¶¶ 84-128). The JIC maintains that there is no

constitutional deficiency with these Canons. (JIC Brief at 4). While the JIC may have dismissed

its investigation into Justice Parker, it remains free to consider future ethical complaints applying

the same Canons to the future speech of Justice Parker as a sitting Justice, and to any other judge

engaging in protected speech arguably covered by the challenged Canons. Justice Parker’s pre-

enforcement as-applied challenge to the unconstitutional Canons is therefore plainly justiciable.

b. The First Amendment forbids application of the presumption.

Even if the JIC could somehow maintain the constitutionality of the challenged Canons

and still argue that there is no likelihood of future enforcement—a conclusion that is negated as a

matter of law—the First Amendment would preclude application of such an argument here. Indeed,

“[t]he very existence of this censorial power, regardless of how or whether it is exercised, is

unacceptable.” Eaves, 601 F.2d at 822-23 (emphasis added). The presumption that officials will

act in good faith to apply government regulations in a constitutional manner is not acceptable in

cases involving the First Amendment. It is simply irrelevant whether the JIC ever applies the

unconstitutional Canons against Justice Parker, because they vest unfettered discretion in the hands

of the JIC officials tasked with enforcing them. (VC ¶¶ 102-03, 118-124) (alleging the

unconstitutional vesting of unbridled discretion in the hands of the JIC).

Under these circumstances, a constitutional violation occurs the moment the JIC is given

such discretion. See, e.g., City of Lakewood v. Plaint Dealer Publ’g Co., 486 U.S. 750, 757 (1988)

(“[T]he mere existence of the licensor’s unfettered discretion . . . intimidates parties into censoring


25

their own speech, even if the discretion and power are never actually abused.”) (emphasis

added); see also Kramer v. Price, 712 F.2d 174, 177 (5th Cir. 1983) (same). The allegations of

Justice Parker’s Complaint plainly demonstrate the need for his pre-enforcement as-applied

challenge, and that challenge remains justiciable.

III. JUSTICE PARKER’S DUE PROCESS CHALLENGE IS JUSTICIABLE.

The JIC astoundingly argues that Justice Parker’s due process challenge is “self-evidently

moot.” (JIC Brief at 14). Yet this claim, too, falls far short of the mark. As is true of the JIC’s

contentions regarding Justice Parker’s First Amendment challenges, the JIC’s sole premise for its

mootness assertion here is that it concluded its investigation of Justice Parker. (Id.). As such, it

asserts that Justice Parker’s claims “revert back to little more than a pre-enforcement challenge.”

(Id.). This assertion is devoid of merit because facial challenges are permissible in the due process

context, and Justice Parker has alleged such a facial challenge.

A. Facial Challenges Are Permissible Under The Due Process Clause.

The Eleventh Circuit has upheld the permissibility of facial attacks based upon the due

process clause, numerous times. See, e.g., Doe v. Florida Bar, 630 F.3d 1336, 1341-42 (11th Cir.

2011) (noting that facial challenges are permissible on due process grounds); Eide v. Sarasota

Cnty., 908 F.2d 716, 723-24 (11th Cir. 1990) (due process challenges may be brought on the face

of the statute). In addition to the application of Section 159 to Justice Parker’s situation, his claims

also raise a challenge to the facial validity of that constitutional provision, which “seeks to

invalidate [the constitutional provision] itself.” Doe, 630 F.3d at 1342 (quoting United States v.

Frandsen, 212 F.3d 1231, 1235 (11th Cir. 2000)). For such challenges, the allegation is that the

text of the provision itself represents a due process violation. Eide, 908 F.2d at 723. Such

challenges are indisputably permissible.


26

B. Justice Parker Has Alleged A Facial Challenge Under The Due Process Clause.

The allegations of Justice Parker’s Complaint eviscerate any claim of mootness. The

dismissal of the JIC’s investigation and the conclusion of the election do not moot his due process

challenge. Justice Parker faces a credible threat of prosecution.

1. The conclusion of the election and investigation do not moot Justice Parker’s due process challenge.

The JIC contends that the conclusion of the election and investigation render Justice

Parker’s challenge too abstract to be justiciable. (JIC Brief at 15). This claim is also incorrect.

Justice Parker has alleged that the terms of the challenged constitutional provision threaten his

cherished liberties. (See, e.g., VC ¶ 138) (“Section 159 of the Alabama Constitution threatens to

impair and burden the constitutionally protected property and liberty interest that Justice Parker

has in his office as associate justice by depriving him indefinitely of his judicial office.”); (id.

¶ 140) (noting that Section 159 automatically triggers the due process deprivation); (id. ¶ 146)

(noting that the mere existence of Section 159 threatens Justice Parker’s cherished liberties); (id.

¶ 147) (same).

The dismissal of the JIC investigation and the conclusion of the election do nothing to

diminish the justiciability of this facial attack. (JIC Brief at 15). The allegations referenced above

are not solely based on the investigation into Justice Parker or on anything exclusively requiring

an ongoing election. Indeed, it is the very existence of the automatic suspension provision that

constitutes the due process violation. (VC ¶ 146). Justice Parker’s facial challenge to the due

process violations inherent in the plain text of Section 159 is therefore justiciable beyond the

investigation and election.


27

2. Justice Parker faces a credible threat of prosecution.

The JIC also erroneously contends that Justice Parker’s due process claims are moot

because he faces no credible threat of prosecution. (JIC Brief at 15). The contention ignores the

allegations of Justice Parker’s Complaint, which demonstrate that Justice Parker currently faces a

credible threat of prosecution under the challenged Canons. As the Eleventh Circuit said in ACLU

v. The Florida Bar, “[t]he only way the case would be moot . . . was if the defendant can

demonstrate that there is no reasonable expectation that the wrong will be repeated.” ACLU v. The

Florida Bar, 999 F.2d 1486, 1495 (11th Cir. 1993) (quoting United States v. W.T. Grant Co., 345

U.S. 629, 733 (1953)). But, there (as here), the “wrong in this case is the continued assertion by

the Bar and the JQC that [the challenged Canon] is constitutional.” Id. Given that assertion and the

fact that the Canon was still in force and effect, “a reasonable expectation exists that this wrong

will be repeated.” Id.

The same is true here. Justice Parker was investigated for over a year due to nothing more

than engaging in protected speech. (VC ¶ 58). The speech he engaged in involved general

discussions of political processes, judicial and constitutional theory, historical figures and cases,

and interpretation of the Constitution. (Id. ¶¶ 45-46). If such speech can be the subject of a JIC

investigation under the challenged Canons, then routine speech by sitting judges across Alabama,

including Justice Parker, is under constant threat. Because the JIC still maintains the validity of

the challenged Canons, this Court can “have no reason to think that it would not be enforced in the

future against [Justice Parker].” ACLU, 999 F.2d at 1194. Because there is no reason to believe

otherwise, Justice Parker’s facial challenge to Section 159 is also justiciable.


28

IV. THE ISSUES INVOLVED IN JUSTICE PARKER’S COMPLAINT ARE NOT PROPER SUBJECTS OF A CERTIFIED QUESTION.

The JIC threatens that, should this Court permit Justice Parker’s claims to go forward, it

will likely seek certification of the questions presented with respect to the challenged Canons. (JIC

Brief at 18). Leaving aside the fact that this assertion has nothing to do with this Court’s requested

briefing on jurisdiction and mootness, any such argument would be meritless based on the plain

text of the certification rule and substantial precedent. This Court should ignore this proposition

for purposes of the current decision on jurisdiction and reject it should such an issue be presented

at a proper time.

The plain language of the rule permitting certification to the Supreme Court of Alabama

dismantles the JIC’s claim that certification is proper here. That rule permits certification only

when questions presented in the federal litigation involve interpretations of state law. See Ala. R.

App. P. 18(a) (“When it shall appear to a court of the United States that there are involved in any

proceeding before it questions or propositions of law of this State . . . such federal court may certify

such questions or propositions of law of this State to the Supreme Court of Alabama for

instructions concerning such questions or propositions of state law.”) (emphasis added). Here,

Justice Parker’s claims concern matters of federal law, not state law. (VC ¶¶ 85-152). Justice

Parker is most certainly not asking this Court to determine whether his past or intended future

speech violates Alabama’s judicial Canons. If that were the question, the JIC’s certification

musings might hold some water. Instead, Justice Parker is asking this Court to determine whether

the Alabama judicial Canons that interfere with his speech violate the United States Constitution.

This has nothing to do with Alabama state law, and everything to do with federal law.

Because Justice Parker’s claims arise solely under the First and Fourteenth Amendments

to the United States Constitution, this Court is obligated to hear those claims under its own


29

jurisdictional grant of authority. See, e.g., Spain v. Brown & Williamson Tobacco Corp., 230 F.3d

1300, 1312 n.16 (11th Cir. 2000) (“While state and federal courts have concurrent jurisdiction to

decide federal law issues . . . federal courts have the responsibility for deciding those issues when

they arise in federal court.”). The result advocated by the JIC would mean that no state law could

ever be challenged in federal court. Such is certainly not the law. On the contrary, the Eleventh

Circuit has plainly foreclosed the certification move contemplated by the JIC to defeat jurisdiction

here: “[A] federal court may not certify federal law issues to a state supreme court.” Spain,

230 F.3d at 1312 n.16 (emphasis added).

Abundant precedent further demonstrates the fallacy of the JIC’s premature argument. As

the Supreme Court has recognized, certification is only an appropriate vehicle when a matter

involves “novel or unsettled questions of state law.” Arizonans for Official English v. Arizona,

520 U.S. 43, 77 (1997) (emphasis added); Virginia v. Va. Booksellers Ass’n, Inc., 484 U.S. 383,

395 (1988) (certification only appropriate for interpretation of state law) Pittman v. Cole, 267 F.3d

1269, 1291 (11th Cir. 2001) (“we think it preferable to have the district court certify the relevant

state law questions to the Alabama Supreme Court.”) (emphasis added). As Justice Parker’s

Complaint makes plain, this matter involves not the interpretation of the challenged Canons as a

matter of state law, but whether the challenged Canons and constitutional provision are a violation

of federal law. (VC ¶¶ 85-152). This involves consideration and application of the First and

Fourteenth Amendments, not a novel interpretation of state law.

The JIC’s reliance on Pittman v. Cole is misplaced. (JIC Brief at 18). There, the Eleventh

Circuit explicitly stated that certifying questions of federal constitutional law is impermissible.

Pittman, 267 F.3d at 1291. There, as here, the issues involved the interpretation and application of

the First Amendment, making certified questions inappropriate. “When the district court


30

formulates its questions to certify to the Alabama Supreme Court, it should not ask that Court

to apply the First Amendment, or any other federal law.” Id. (emphasis added). Indeed, “any

federal constitutional issues . . . are to be decided by the federal courts, the courts in which the

litigation was first filed.” Id.; Contra Butler v. Alabama Judicial Inquiry Comm’n, 802 So.2d 207

(Ala. 2001) (answering questions certified by the Eleventh Circuit Court of Appeals in Butler v.

Alabama Judicial Inquiry Comm’n, 245 F.3d 1257 (11th Cir. 2001) as to the state law questions

concerning jurisdiction of the Court of the Judiciary). Justice Parker’s claims are solely federal

issues, arising under federal law. (VC ¶¶ 5-6) (noting that this litigation arises under the federal

constitution and that this Court’s jurisdiction is based on 28 U.S.C. § 1331 federal question

jurisdiction). Thus, Justice Parker’s federal constitutional questions are inappropriate matters for

state certification.

V. DEFENDANTS’ OTHER ARGUMENTS ARE NOT PROPER SUBJECTS UNDER THIS COURT’S REQUESTED BRIEFING ON JURISDICTION AND MOOTNESS.

This Court’s briefing order requested briefing solely on the issues of mootness and

jurisdiction. (Dkt. 50). Mootness and justiciability are both matters of this Court’s jurisdiction.

Pittman v. Cole, 267 F.3d 1269, 1276 (11th Cir. 2001). This Court’s requested briefing involved

a limited inquiry into the jurisdictional questions remaining after the Eleventh Circuit remanded

this matter. Yet, Defendants devote much attention to matters unrelated to this Court’s limited

inquiry. The Attorney General focuses no attention on the issues of mootness or jurisdiction

requested by this Court. (AG Brief at 1-2). Indeed, it presents no argument whatsoever concerning

whether Justice Parker’s claims are somehow moot or otherwise jurisdictionally barred. (Id.). In

fact, the Attorney General merely renews his previous motion to dismiss based upon issues not

called for in this Court’s briefing order. For that reason alone, the Attorney General’s arguments


31

should be rejected.5 The JIC, too, presents matters related to broader dismissal involving the merits

of Justice Parker’s claims. (JIC Brief at 2, 16-17) (presenting arguments related to dismissal under

Fed. R. Civ. P. 12(b)(6) and preliminary injunctive relief under Fed. R. Civ. P. 65). As is true with

the Attorney General’s renewed motion, this Court should not countenance those arguments.

Justice Parker’s claims are not moot, and this Court has jurisdiction to consider this issues

presented here.

VI. AT MINIMUM, JUSTICE PARKER SHOULD BE GRANTED LEAVE TO AMEND PRIOR TO THIS COURT DISMISSING HIS CLAIMS.

Even were this Court to reject the abundant precedent compelling a finding of justiciability

in this matter—which it should not—the proper course of action would be to permit Justice Parker

to amend his Complaint prior to dismissing it altogether. The JIC contends that Justice Parker’s

Complaint is moot and should be dismissed because it seeks relief related to the JIC’s previous

investigation and a concluded election. (See, e.g., JIC Brief at 4) (noting that Justice Parker

Complaint “still” seeks to enjoin the JIC investigation). The JIC’s claim, however, reflects a

limited understanding of the factual circumstances surrounding this case. Justice Parker’s

Complaint sought such relief because of the time at which it was filed. While interim events might

have rendered some of that particular relief currently unnecessary, the countless other allegations

and prayers for relief included in Justice Parker’s Complaint, and the facial and pre-enforcement

as-applied attacks mounted in this litigation, still represent a live controversy. Thus, while certain

allegations in the Complaint may not reflect current circumstances, the overall gravamen of Justice

Parker’s Complaint remains.

5 Were this Court to entertain such arguments, which it should not for purposes of the requested briefing, the Attorney General’s arguments are also without merit. (See Dkt. 35, Justice Parker’s Brief in Opposition to Attorney General’s Motion to Dismiss).


32

Notwithstanding the posture of some of Justice Parker’s allegations, the JIC’s contention

counsels in favor of – at minimum – leave to amend, not dismissal. This is particularly true given

the axiomatic principle that leave to amend should be granted freely when justice requires. See

Fed. R. Civ. P. 15(a)(2).

While a district court is given discretion in granting amendment, amendment should be

permitted unless it was (1) the result of undue delay or bad faith, (2) it would impose undue

prejudice on the opposing party, or (3) would be futile. See Burger King Corp. v. Weaver, 169

F.3d 1310, 1319 (11th Cir. 1999). Where, as here, none of these considerations is applicable, “Rule

15(a) severely restricts the district court’s freedom, directing that leave to amend shall be freely

given when justice so requires.” Shipner v. Eastern Air Lines, Inc., 868 F.2d 401, 407 (11th Cir.

1989). Indeed, unless one of these factors is applicable, the district court must permit leave to

amend. Id. (“This policy of Rule 15(a) in liberally permitting amendments to facilitate

determination of claims on the merits circumscribes the exercise of the district court’s discretion;

thus, unless a substantial reason exists to deny leave to amend, the discretion of the district

court is not broad enough to permit denial.”) (emphasis added). As such, should this Court

determine that Justice Parker’s claims are not justiciable—which is should not—the appropriate

course of action is to permit him leave to amend his Complaint prior to dismissing this action.

If the JIC’s contention that Justice Parker’s Complaint does not clearly relate to speech

and events beyond the 2016 election were correct – and it is not – Justice Parker has demonstrated

throughout this brief and in the accompanying Declaration that he can and does allege in good

faith that the Canons he is challenging continue to interfere with his speech as a sitting judge,

outside of any election. Rule 15 and substantial precedent require that Justice Parker be given a


33

chance to flesh out those allegations in an amended complaint, if the current allegations are found

insufficient. Shipner, 868 F.2d at 407.

CONCLUSION

This Court has unquestionable jurisdiction under 28 U.S.C. § 1331 to decide the federal

questions presented by Justice Parker’s Complaint. Justice Parker has raised justiciable facial

challenges to the judicial Canons and laws that remain on the books in Alabama and curtail and

chill his post-election, post-investigation speech as a sitting judge. Justice Parker has also raised

justiciable pre-enforcement as-applied challenges under the First and Fourteenth Amendments.

Accordingly, this case is not moot or otherwise jurisdictionally barred, and this Court should

review the claims presented.

Dated: March 10, 2017 Respectfully Submitted, Phillip L. Jauregui Judicial Action Group 7013 Lake Run Drive Birmingham, AL 35242 (202) 216-9309 (tel) [email protected]

/s/ Horatio G. Mihet________________ Mathew D. Staver (FL Bar 0701092)†

Horatio G. Mihet (FL Bar 0026581)† Liberty Counsel P.O. Box 540774 Orlando, FL 32854 (407) 875-1776 (tel) (407) 875-0770 (fax) [email protected] [email protected] †Admitted pro hac vice Attorneys for Plaintiff Hon. Tom Parker, Associate Justice of the Supreme Court of Alabama


CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was filed with this Court via

the CM/ECF system, which will serve copies on all counsel of record.

DATED: March 10, 2017 /s/Horatio G. Mihet Horatio G. Mihet Attorney for Plaintiff Hon. Tom Parker


united states district court for the … · tom parker, associate justice of ... justice parker’s...

Documents