Parker v. Judicial Inquiry Commission of the State of Alabama et al

Filing 64

MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: 1) Dfts' 51 & 53 Motions to Dismiss are DENIED as to all of Justice Parker's claims, except those brought pursuant to the Due Process Clause; 2) Dfts' 51 & 53 Motions t o Dismiss are GRANTED in part, only as to Justice Parker's due process claims; and 3) Justice Parker's due process claims are DISMISSED with prejudice; further ORDERED that Dfts shall file an answer to the Complaint on or before 9/14/2017. Signed by Chief Judge William Keith Watkins on 8/31/2017. (Attachments: # 1 Civil Appeals Checklist) (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
HON. TOM PARKER, Associate
Justice, Supreme Court of Alabama,

)
)
)
Plaintiff,
)
)
v.
)
)
JUDICIAL INQUIRY COMMISSION )
OF THE STATE OF ALABAMA, et al., )
)
Defendants.
)

CASE NO. 2:16-CV-442-WKW
[WO]

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION & BACKGROUND
On March 3, 2015, prior to the United States Supreme Court’s decision in
Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the Alabama Supreme Court held that
the Alabama Sanctity of Marriage Amendment and the Alabama Marriage
Protection Act, which defined marriage as the union of one man and one woman,
did not run afoul of the federal Constitution. Ex parte State v. King, No. 1140460,
––– So. 3d ––––, 2015 WL 892752 (Ala. 2015). Later that year, on June 26, 2015,
the U.S. Supreme Court decided Obergefell. 1

1

In Obergefell, 135 S. Ct. at 2599, the U.S. Supreme Court held that marriage laws in
Michigan, Kentucky, Ohio, and Tennessee, which were similar to the Alabama law, were
unconstitutional.

On October 6, 2015, Justice Parker, who was a candidate for reelection to the
Alabama Supreme Court 2, appeared on a radio talk show during which he was asked,
among other things, about his personal views on federalism, the U.S. Supreme Court,
and the Obergefell decision. Specifically, Justice Parker expressed his opinion that
Wisconsin’s response over 150 years ago to the U.S. Supreme Court’s pro-slavery
decisions, e.g., Dred Scott v. Sandford, 60 U.S. 393 (1857), provides precedent for
states to ignore federal rulings they believe are in conflict with the U.S.
Constitution.3 His comments are contextualized and laid out in detail below.

2

Justice Parker was a candidate for reelection to the Alabama Supreme Court at the time
this lawsuit was filed. He has also expressed interest in running for the position of Chief Justice
in the future (See Doc. # 59-1, at 2), which is relevant to the mootness question discussed later
because the challenged judicial canons could affect speech interests during his future candidacy.
3

The Dred Scott case infamously held that a slave was an “article of property,” not a rightsbearing citizen, and thus could not sue for his freedom. 60 U.S. at 408. Relatedly, the Wisconsin
Supreme Court famously refused to enforce a U.S. Supreme Court decision holding that the
Fugitive Slave Act (which required northern states to return runaway slaves to their masters) was
constitutional. The explanation provided on the Wisconsin Court System website is most helpful:
What has become known as the Booth case is actually a series of decisions from
the Wisconsin Supreme Court beginning in 1854 and one from the U.S. Supreme
Court, Ableman v. Booth, 62 U.S. 514 (1859), leading to a final published decision
by the Wisconsin Supreme Court in Ableman v. Booth, 11 Wis. 501 (1859). These
decisions reflect Wisconsin’s attempted nullification of the federal fugitive slave
law, the expansion of the state’s rights movement and Wisconsin’s defiance of
federal judicial authority. The Wisconsin Supreme Court in Booth unanimously
declared the Fugitive Slave Act (which required northern states to return runaway
slaves to their masters) unconstitutional. The U.S. Supreme Court overturned that
decision but the Wisconsin Supreme Court refused to file the U.S. Court’s mandate
upholding the fugitive slave law. That mandate has never been filed.
In Re: Booth, Famous Cases of the Supreme Court, Wisconsin Court System,
https://www.wicourts.gov/courts/supreme/docs/famouscases01.pdf. The same document
can also be found in the record. (Doc. # 26-1.)
2

When asked about Wisconsin, Justice Parker said:
The Wisconsin situation in fact involved a double defiance of the
Supreme Court. First they defied the Dred Scott decision, and then their
decision in defiance was taken up to the U.S. Supreme Court, which
reversed it, sent its mandate back to the Wisconsin Supreme Court,
which refused to accept that mandate, so the reversal was never acted
on.
I think it was a model of what we need to see in this [country]. Now,
in the federalist papers, they said the states should be a restriction on
the powers of the federal government to prevent it from overreaching.
. . . [I]t’s time for the state Supreme Courts to rise up and do their
responsibility for this entire system we have nationally, otherwise it’s
just going to continue to get worse and worse.
(Doc. # 1-1, at 11). Having raised Wisconsin as an example, the radio host began to
get more specific. He asked, “What is the lay of the land right now in Alabama with
regard to the subject of same sex marriage?” (Doc. # 1-1, at 12.) Justice Parker, in
response, laid out the history of King and Obergefell, and noted that, because
“nobody appealed [King] to the U.S. Supreme Court,” the Alabama Supreme Court
must now determine whether King remains enforceable in Alabama. (Doc. # 1-1, at
12.) He explained that, in his view, the Obergefell mandate extends only “to the one
court of appeals that was the source of the original cases taken to the U.S. Supreme
Court” because Article III of the U.S. Constitution “says that the [Court’s]
jurisdiction is over cases or controvers[ies], and the practice from the very beginning
was that a decision by the U.S. Supreme Court only affected the parties before that
court.” (Doc. # 1-1, at 13.)
3

Justice Parker made it clear he does not agree with the reasoning of
Obergefell. Far from it, he believes the decision runs “contrary to the constitution”
and is out of step with popular opinion. (Doc. # 1-1, at 15.) Unpopular judicial
decrees, he thinks, are due largely to the fact that federal judges are appointed for
life rather than being elected by the people they represent. (Doc. #1-1, at 14–15.)
Lifetime appointments make judges unaccountable to the people, while elections
help to “keep judges in line.” (Doc. # 1-1, at 15.)
The subject of judicial accountability prompted a broader dialogue about
federalism, especially as it relates to Obergefell. Justice Parker explained to the
audience that the Tenth Amendment “says that the state retains rights not delegated
to the federal government” and “[t]here is nothing in the constitution that delegates
any rights over marriage to the federal government.” (Doc. # 1-1, at 16.) He argued
that the Obergefell decision was an example of the federal government “intruding
into the state prerogative” in violation of the Tenth Amendment, and he voiced his
belief that “states should be a check on the federal government.” (Doc. # 1-1, at 16,
17.) Asked what would happen if a state Supreme Court refused to “accept the
jurisdiction of the [U.S.] Supreme Court,” Justice Parker said:
I doubt that it would be a blanket defiance of all jurisdiction of the U.S.
Supreme Court, but in regard to the Obergefell decision, where it’s clear
that they jumped outside of all the precedents in order to impose their
will on this country, that yes, resisting that decision could maybe state
a revival of what we need in this country to return to our original
founding principles.
4

(Doc. # 1-1, at 9.).
In summary, Justice Parker—a candidate for political office, nearing election
season, and speaking in a public forum—expressed his personal views on a number
of highly contentious legal and political issues that his constituents, and the country
at large, are currently debating
The Southern Poverty Law Center (“SPLC”) took offense. On October 12,
2015, the SPLC filed a complaint with the JIC—the body charged with investigating
violations of Judicial Canons and the primary defendant in this lawsuit. The
complaint alleged that Justice Parker’s comments “assault the authority and integrity
of the federal judiciary” and “publicly endorse . . . [defiance of] Obergefell.” SPLC
further complained that Justice Parker “offers ridicule and suggests defiance,” which
in turn “foments the false impression in the public’s mind that the federal judiciary
has tyrannically taken for itself unconstitutional power . . . .” Thus, said the SPLC,
Justice Parker’s expression of criticism of the federal courts in general, and the U.S.
Supreme Court in particular, is worthy of state-sanctioned disciplinary action
because it violated a host of Judicial Canons promulgated by the state of Alabama.
Specifically, the complaint alleges that Justice Parker’s comments were in
violation of Canon 1, which requires a judge to observe “high standards of conduct
so that the integrity . . . of the judiciary may be preserved”; Canon 2(A), which
requires a judge to “conduct himself at all times in a manner that promotes public
5

confidence in the integrity . . . of the judiciary”; and Canon 3(A)(6), which requires
a judge to “abstain from public comment about a pending or impending proceeding
in any court.” 4 (Doc. # 1-1.)
On November 5, 2015, the JIC notified Justice Parker that it intended to
investigate all three purported violations, and informed him of his right to respond.
(Doc. # 1-3.) Justice Parker responded on January 4, 2016. (Doc. # 26-1.) Since
then, the JIC has kept its investigation open but has not filed a formal complaint with
the Court of the Judiciary (“COJ”), which is the body responsible for trying ethics
complaints after formal charges are filed. COJ decisions are appealable to the
Alabama Supreme Court. Ala. Const., art. VI, § 157(b). Justice Parker filed this
lawsuit in federal court on June 15, 2016. (Doc. # 1.)
On July 14, 2016, Defendants moved for dismissal on the ground that Younger
v. Harris, 401 U.S. 37 (1971), required the court to abstain from hearing the case.
(Doc. # 12.) Earlier in this case, the court recognized “the First Amendment issues”
implicated by SPLC’s attempt to use a state agency to suppress speech (Doc. # 39,
at 8–9), but it nevertheless held that the JIC investigation constituted an “ongoing”
state proceeding under Younger, which precluded federal court intervention (Doc. #

4

The other statutory provision challenged by Justice Parker is Section 159 of the Alabama
Constitution, which disqualifies him from acting as a judge while there is a pending JIC complaint.
Ala. Const., art. VI, § 159.
6

39, at 19). Thus, on that ground Defendants’ first pair of Motions to Dismiss (Docs.
# 12, 13) were granted.
Justice Parker appealed, only to have JIC drop the investigation while the
appeal was pending.

With Younger no longer an issue, the Eleventh Circuit

remanded the case “to consider the issue of mootness, in addition to any other
arguments concerning jurisdiction and the merits of the complaint.” (Doc. # 49, at
2.) This court then ordered the parties to file briefs “setting forth their position on
whether this case should be dismissed as moot or otherwise for lack of jurisdiction.”
(Doc. # 50.) In response, JIC filed a new Motion to Dismiss (Doc. # 51), asserting
that Justice Parker’s claims are moot and that, in any event, he cannot state a claim
for relief. The Attorney General renewed his original Motion to Dismiss (Doc. # 53
(incorporating arguments contained in Doc. # 13)), concurring with JIC’s mootness
argument and adding two arguments of his own: (1) that Justice Parker lacks
standing to sue the Attorney General, and (2) that the Attorney General enjoys
Eleventh Amendment sovereign immunity.

For the reasons set forth below,

Defendants’ Motions to Dismiss are due to be granted in part and denied in part.
II. JURISDICTION AND VENUE
The court exercises subject-matter jurisdiction pursuant to 28 U.S.C. § 1331.
The parties do not contest personal jurisdiction or venue.

7

III. STANDARD OF REVIEW
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Even though the court assumes the facts alleged in a
complaint are true, it does not accept “legal conclusions” or “[t]hreadbare recitals of
the elements of a cause of action.” Id. A plaintiff’s claim is “plausible” only if it
includes “factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. “When there are wellpleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Id. at 679.
IV. DISCUSSION
Justice Parker’s claims challenge the constitutionality of several Alabama
Canons of Judicial Ethics (“Judicial Canons”), as well as Section 159 of the Alabama
Constitution, both facially and as-applied. He argues that the Judicial Canons violate
the First Amendment right to freedom of speech by restricting the ability of judges
to speak out on certain issues, and that Section 159 violates the Fourteenth
Amendment right to due process by suspending judges who have JIC complaints
pending against them.

8

The issues are fourfold: (1) whether Justice Parker has standing to sue JIC and
the Attorney General; (2) whether the Attorney General may escape this litigation
by asserting sovereign immunity; (3) whether Justice Parker has stated a claim for
relief under the Due Process Clause; and (4) whether Justice Parker’s claims under
the First Amendment and Due Process Clause are moot. Each question will be
answered in turn.
A.

Standing
1.

Justice Parker has standing to bring a preenforcement challenge
under the First Amendment and Due Process Clause.

Standing ordinarily requires that a plaintiff show (1) an “injury in fact,” (2) a
sufficient “causal connection between the injury and the conduct complained of,”
and (3) a “likel[ihood]” that the injury “will be redressed by a favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). Here, because Justice
Parker seeks to challenge the law before it has been enforced against him, the issue
is whether he can satisfy the injury-in-fact requirement. “[I]t is not necessary that
[a plaintiff] first expose himself to actual arrest or prosecution to be entitled to
challenge a statute that he claims deters the exercise of his constitutional rights.”
Steffel v. Thompson, 415 U.S. 452, 459 (1974). The Supreme Court has said that “a
[preenforcement] plaintiff satisfies the injury-in-fact requirement where he alleges
‘an intention to engage in a course of conduct arguably affected with a constitutional
interest, but proscribed by a statute, and there exists a credible threat of prosecution
9

thereunder.’” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342 (2014)
(quoting Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)). And, in the First
Amendment context, litigants may even challenge a statute based on “a judicial
prediction or assumption that the statute’s very existence may cause others not
before the court to refrain from constitutionally protected speech or expression.”
Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 392–93 (1988) (quoting Sec’y of
State of Maryland v. J.H. Munson Co., 467 U.S. 947, 956–57 (1984)).
Justice Parker has alleged that he intends to engage in political speech that is
arguably proscribed by the Judicial Canons at issue and might result in his automatic
suspension under § 159.5 (See, e.g., Doc. #1, at 19 (alleging that the Judicial Canons
“force[ ] him to engage in self-censorship of his desired speech as a . . . sitting
judge”).) Thus, the only question is whether there exists a credible threat of
prosecution. Defendants argue that Justice Parker has failed to establish a credible
threat of prosecution because the existence of the canons alone cannot create an
“objectively reasonable” fear of such a threat. (Doc. # 51, at 16 (quoting Pittman v.
Cole, 267 F.3d 1269, 1284 (11th Cir. 2001).) In Pittman, the Eleventh Circuit held
that a JIC advisory opinion “created an objectively reasonable chill on the First
Amendment rights of the Alabama judicial candidates who [were] plaintiffs in [that]

5

This is important because it cuts directly against Defendants’ argument that Justice
Parker’s speech interest ended when he was elected. To the contrary, he has just as strong an
interest in speech in his current role as an Associate Justice of the Alabama Supreme Court.
10

case.” 267 F.3d at 1284. From this, Defendants conclude that “Justice Parker must
point to some other action taken by [JIC]—such as the issuance of a prospective
advisory opinion about his conduct or some other ‘threat’ of investigation—to
constitute that credible threat.” (Doc. # 51, at 17.)
Defendants not only misrepresent the standard for determining whether a
credible threat exists; they also gloss over the fact that Justice Parker has already
once been subjected to investigation based on the alleged violation of the Judicial
Canons he now challenges.

This is enough to demonstrate that his fear of

prosecution is “not imaginary or wholly speculative.” See Babbitt, 442 U.S. at 302.
Just as the Supreme Court held in Babbit, Steffel, and American Booksellers, “the
‘pre-enforcement nature’ of the suit [is] not ‘troub[ling]’ because the plaintiff[ ] ha[s]
‘alleged an actual and well-founded fear that the law will be enforced against
[him].’” Susan B. Anthony List, 134 S. Ct. at 2343 (quoting Am. Booksellers, 484
U.S. at 393).

Justice Parker has standing to bring this preenforcement First

Amendment challenge because JIC already has proven the threat of prosecution
credible and, at any moment, may start another investigation against him.
2.

Justice Parker has standing to sue the Alabama Attorney General.

The Alabama Attorney General argues separately that Justice Parker lacks
standing to sue him because the “enforcement of judicial canons” is not “fairly
trace[able]” to any action he undertook, and thus Justice Parker cannot establish the
11

causation or redressability necessary to demonstrate Article III standing. (See Doc.
# 13, at 2–3 (quoting Lujan, 504 U.S. at 560).) He contends further that “the fact
that the Attorney General does not and will not enforce the challenged judicial-ethics
provisions against Justice Parker” requires dismissal. (Doc. # 53, at 1.)
The Attorney General confuses the issues. It does not matter, for example,
that he did not “play[ ] any role at all in Justice Parker’s [previous] ethics
investigation” (Doc. # 13, at 4), or that he is not the but-for cause of Justice Parker’s
injuries (Doc. # 53, at 1), or even that he promises he “will not enforce the challenged
judicial-ethics provisions against Justice Parker” (Doc. # 53, at 1). What matters is
whether the Attorney General “has the power” to enforce the challenged provision
against the plaintiff. See Socialist Workers Party v. Leahy, 145 F.3d 1240, 1246
(11th Cir. 1998) (finding a “credible threat of prosecution” and standing to sue the
Florida Secretary of State, even after she “disavow[ed] . . . authority to enforce [the
law at issue],” because she “ha[d] the power” to enforce the law). Indeed, “[u]nder
United States Supreme Court precedent, when a plaintiff challenges the
constitutionality of a rule of law, it is the state official designated to enforce that rule
who is the proper defendant, even when that party has made no attempt to enforce
the rule.” ACLU v. The Florida Bar, 999 F.3d 1486, 1490 (11th Cir. 1993) (citing
Diamond v. Charles, 476 U.S. 54, 64 (1986), which held that “[t]he conflict between

12

state officials empowered to enforce a law and private parties subject to prosecution
under that law is a classic ‘case’ or ‘controversy’”).
In Alabama, the Attorney General is “the chief law officer of the state,” on
whom “are conferred various authorities and duties in connection with instituting
and prosecuting, in the name of the state, suits and other proceedings at law and in
equity for the preservation and protection of the rights and interests of the state.”
State ex rel. Carmichael v. Jones, 41 So. 2d 280, 284 (Ala. 1949); see also Ala. Code
§ 36-15-21 (“All litigation concerning the interest of the state, or any department of
the state, shall be under the direction and control of the Attorney General.”).
Moreover, if the broad provisions of the Alabama Supreme Court and Alabama Code
were not enough, Rule 15 of the Alabama Rules of Procedure of the Judicial Inquiry
Commission expressly confers upon the Attorney General a “duty,” subject to few
exceptions, “to prosecute charges filed by [JIC] with the Court of the Judiciary.” It
is impossible to reconcile this enforcement power with the Attorney General’s
argument that “there is no connection between the enforcement of the judicial canons
or the automatic-disqualification provision and the Attorney General.” (Doc. # 13,
at 6–7.) The connection is undeniable. Accordingly, Justice Parker has standing to
sue the Alabama Attorney General.

13

B.

Sovereign Immunity
The Eleventh Amendment prevents nonconsenting states and state actors from

being sued by private individuals in federal court. See McLendon v. Ga. Dep’t of
Cmty. Health, 261 F.3d 1252, 1256 (11th Cir. 2001). Ex parte Young, 209 U.S. 123
(1908), created an exception to this general rule, allowing private parties to sue state
officers in their official capacities for “prospective equitable relief to end continuing
violations of federal law.” Lane v. Cent. Alabama Cmty. Coll., 772 F.3d 1349, 1351
(11th Cir. 2014) (citations and alterations omitted). The Attorney General accepts
these well-established principles but argues they do not apply here because there is
“no connection” between the enforcement of the judicial canons and his job as
Attorney General. (Doc. # 13, at 6–7 (“But Ex parte Young requires that the state
official ‘have some connection with the enforcement of the [allegedly
unconstitutional] act.’”).) This argument fails with respect to sovereign immunity
for the same reasons it fails with respect to standing.
Contrary to the Attorney General’s suggestion, he is not merely an “official
who happens to serve the State.” (Doc. # 13, at 7.) He is “the chief law officer of
the state,” charged with “instituting and prosecuting . . . suits and other proceedings
at law and in equity for the preservation and protection of the rights and interests of
the state.” Jones, 41 So. 2d at 284. He is responsible for the “direction and control”
of “all litigation concerning the interest of the state, or any department of the state,”
14

Ala. Code § 36-15-21, and he is expressly charged with the duty of prosecuting
“charges filed by [JIC] with the Court of the Judiciary,” Ala. R. P. Jud. Inq. Comm’n
15. Thus, the Attorney General is sufficiently connected with the enforcement of
the Judicial Canons, such that he cannot be excepted from the Ex parte Young
doctrine.
C.

Claim for Relief Under the Due Process Clause
Defendants next argue that Justice Parker does not state a claim for a facial or

as-applied due process challenge. (Doc. # 26, at 18–22; Doc. # 51, at 20–21.) Before
explaining whether Justice Parker has stated a claim, it is important to clarify that
“the line between facial and as-applied challenges is a fluid one, and many
constitutional challenges may occupy an intermediate position on the spectrum
between purely as-applied relief and complete facial invalidation.” Amer. Fed’n of
State, Cty., & Mun. Emps. Council v. Scott, 717 F.3d 851, 865 (11th Cir. 2013). It
is also important to note further that “[t]he distinction . . . goes to the breadth of the
remedy employed by the Court, not what must be pleaded in a complaint.” Citizens
United v. FEC, 558 U.S. 310, 331 (2010) (emphasis added). Accordingly, the
appropriateness of facial or as-applied relief is a question for another day, and to the
extent Defendants argue one or the other (but not both) should be dismissed, the

15

court defers the issue for a later determination. This section addresses whether
Justice Parker has stated any due process claim upon which relief can be granted. 6
“A § 1983 action alleging a procedural due process clause violation requires
proof of three elements: a deprivation of a constitutionally-protected liberty or
property interest; state action; and constitutionally inadequate process.” Doe v. The
Florida Bar, 630 F.3d 1336, 1342 (11th Cir. 2011). Justice Parker’s due process
claim challenges Section 159 of the Alabama Constitution, which automatically
suspends, “without loss of salary,” judges against whom there is a pending JIC
complaint. Thus, the property deprivation giving rise to Justice Parker’s purported
claim is the loss of his office as a justice of the Alabama Supreme Court. (See Doc.
# 1, at 26.) There is no real dispute over the second element: JIC is clearly an arm
of the state. The issues are (1) whether Justice Parker’s alleged injury constitutes
the deprivation of a constitutionally protected property interest sufficient to trigger
the Due Process Clause, and (2) whether the process called for under Section 159 is
constitutionally adequate.

6

Defendants’ most recent brief challenges Justice Parker’s facial First Amendment
challenge as “inadequately pled, unripe, and [not presenting] a live controversy in the absence of
a meaningful ‘as-applied’ challenge.” (Doc. # 51, at 12–15.) For reasons articulated in Part IV.A.,
Justice Parker has standing to bring a pre-enforcement challenge, and thus there is a “meaningful
‘as-applied’ challenge” present. As with the Due Process claim, the court declines to parse the
complaint for facial and as-applied allegations in order to determine whether dismissal is
appropriate for one and not the other. Stating one is sufficient to survive this stage of the litigation.
See Citizens United, 558 U.S. at 331.
16

In Board of Regents v. Roth, 408 U.S. 564, 577 (1972), the Supreme Court
explained that to have a property interest in a benefit, a person “must . . . have a
legitimate claim of entitlement to it.” See Doe, 630 F.3d at 1342. Protectable
property interests, however, “are not created by the [federal] Constitution.” Roth,
408 U.S. at 577. Rather, they are created “by existing rules or understandings that
stem from an independent source such as state law—rules or understandings that
secure certain benefits and support claims of entitlement to those benefits.” Id. The
Court in a companion case held further that “[t]he hallmark of property . . . is an
individual entitlement grounded in state law, which cannot be removed except ‘for
cause.’” Logan v. Zimmerman Brush Co., 405 U.S. 422, 430 (1982).
Defendants rely on one case to argue that Justice Parker has no property
interest in his position as an Associate Justice of the Alabama Supreme Court. In
Butler v. Ala. Judicial Inquiry Comm’n, 245 F.3d 1257, 1265 (11th Cir. 2001), the
Eleventh Circuit applied Younger abstention and declined to hear a suit where, like
here, an Alabama Supreme Court justice sued JIC for its enforcement of allegedly
unconstitutional judicial canons. On the question of whether an injunction should
issue preventing the enforcement of the challenged canons and the suspension of
Justice Harold See from office, the court held that the Justice had failed to make a
showing of irreparable injury, in part because the loss of his judicial office under

17

Section 159 did not constitute the loss of a cognizable property interest. The court’s
explanation is instructive:
The post of Justice of the Supreme Court of Alabama is not merely a
job to which some person might have a right as personal property.
Under the law, it is a state office provided by the people of Alabama,
provided not for the benefit of the officeholder, but as a public necessity
and a means of public service for those persons fortunate enough to be
entrusted temporarily with it. Most important, the duties of that office
are defined by Alabama law. Justice See, having been charged by a
majority of the JIC with an ethics violation during campaigning, has
been temporarily disqualified from working at his elected position
pending the outcome of the investigation. A temporary disqualification
seems to be demanded by the words of the state constitution, a
constitution which Alabama judges—including Justice See, as an
officer of the court—have sworn to uphold. And even though Justice
See might be currently unable to serve through work, the people of
Alabama who elected Justice See have collectively spoken through
their constitution, which seems to require disqualification in this
situation. In the light of the state’s law, his legal duty now as a state
judge might well be not to work, but to step back and to wait while the
state’s processes act on his case. Based on these legal facts, we do not
think that Justice See nor the citizens of Alabama are suffering
irreparable injury sufficient to justify immediate intervention by the
federal courts.
Butler, 245 F.3d at 1265. Butler’s rationale is applicable, even though the context
is slightly different here. If Justice See had no cognizable property interest in his
post, then neither does Justice Parker. And if Justice Parker has no cognizable
property interest in his post, then he cannot state a claim for a denial of due process
based on its loss. The only other deprivation Justice Parker pleads is the loss of a
liberty interest in his reputation (Doc. # 1, at 27), which cannot alone support a due
process claim. See Smith ex rel. Smith v. Siegelman, 322 F.3d 1290, 1296 (11th Cir.
18

2003) (“To establish a liberty interest sufficient to implicate the [Due Process
Clause], the individual must be not only stigmatized but also stigmatized in
connection with a denial of a right or status previously recognized under state law.”)
(quoting Cannon v. City of W. Palm Beach, 250 F.3d 1299, 1302–03 (11th Cir.
2001)). Because the Eleventh Circuit has held that an Alabama Supreme Court
justice does not have a property interest in his judicial office, Justice Parker has
failed to demonstrate the loss of a constitutionally protected property interest. Thus,
his due process challenge cannot succeed.7
D.

Mootness
1.

Justice Parker’s as-applied First Amendment challenge is not moot.

Defendants’ final argument is that Justice Parker’s as-applied First
Amendment and Due Process claims are moot. Because he has already failed to
state a due process claim, the court analyzes his First Amendment claim only.
“Simply stated, a case is moot when the issues presented are no longer ‘live’
or the parties lack a legally cognizable interest in the outcome.”

Powell v.

McCormack, 395 U.S. 486, 496 (1969). Because Article III of the Constitution
extends the judicial power only to “cases” and “controversies,” it follows that federal
courts lack jurisdiction to review disputes that have become “moot.” See id. at 496

7

Given this conclusion, the court does not reach the question whether the JIC’s presuspension process under Section 159 comports with the procedural requirements of the Due
Process Clause.
19

n.7; see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180
(2000) (“The Constitution’s case-or-controversy limitation on federal authority, Art.
III, § 2, underpins both our standing and our mootness jurisprudence . . . .”).
Defendants argue that Justice Parker’s as-applied First Amendment challenge
is moot because the ethics investigation has been dropped, no official complaint was
filed, his election is over, and he faces no continuing threat of prosecution. (Doc. #
51, at 8–9.) However, as Justice Parker points out, his status as a justice of the
Alabama Supreme Court subjects him to the continuing application of the Judicial
Canons. As explained in Part IV.A., that fact alone is sufficient to confer on him the
standing necessary to bring this pre-enforcement lawsuit. That the investigation and
election are over matters not a bit, because Justice Parker’s standing depends on
neither. His First Amendment claim is ripe for review.
2.

Even if Justice Parker’s as-applied First Amendment challenge were
moot, the court still could hear the case.

The Supreme Court over the years has loosened the mootness doctrine
considerably. At least two exceptions have emerged from the cases. First, in Roe v.
Wade, 410 U.S. 113, 125 (1973), the Court famously recognized that controversies,
though moot, can be entertained by courts when they are “capable of repetition, yet
evading review.”

Similarly, “[i]t is well-settled that ‘a defendant’s voluntary

cessation of a challenged practice does not deprive a federal court of its power to
determine the legality of the practice.’” Friends of the Earth, 528 U.S. at 189
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(quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)). In
fact, a defendant’s voluntary conduct moots a case only when “subsequent events
[make] it absolutely clear that the allegedly wrongful behavior could not reasonably
be expected to recur.” Id. (quoting United States v. Concentrated Phosphate Export
Ass’n, 393 U.S. 199, 203 (1968)). And, in such voluntary cessation cases, the “heavy
burden of persua[ding] the court that the challenged conduct cannot reasonably be
expected to start up again lies with the party asserting mootness.” Id. (quotation
marks and citations omitted). Federal courts may decide moot cases where at least
one of these exceptions applies.
Both mootness exceptions would apply here. First, it is alleged that JIC is
willing to initiate investigations that chill protected speech of judges, thus, making
such investigations “capable of repetition.” See Roe, 410 U.S. at 125. And if claims
challenging such investigations were mooted whenever JIC decided the
investigation was not worth a lawsuit, the claims also would continue to “evad[e]
review.” Id. Thus, there is here “a reasonable expectation that the same complaining
party would be subjected to the same action again,” and the ability of JIC to escape
litigation by ceasing its investigation would ensure that “the challenged action
[would be] in its duration too short to be fully litigated prior to its cessation.” Lewis
v. Cont’l Bank Corp., 494 U.S. 472, 481 (1990).

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Second, the mootness question has arisen in this case only because JIC
voluntarily decided to halt the investigation—i.e., because of Defendants’ voluntary
cessation of the challenged practice. The fact that the cessation occurred during the
pendency of this lawsuit gives the court no strong assurances that the JIC would
hesitate to enforce the challenged provisions in the future. Defendants argue that the
state is entitled to a presumption requiring the court to assume its challenged conduct
will not recur. See Troiano v. Supervisor of Elections in Palm Beach Cty., Fla., 382
F.3d 1276, 1283 (11th Cir. 2004). However, it is not at all clear the presumption
would apply in this context. The discussion in Troiano assumes a specific kind of
case: one in which the state’s subsequent repeal of a law moots a challenge thereto.
This is the sort of “voluntary cessation” that would entitle the state to a favorable
presumption. The court in Troiano explains that the Supreme Court has “rejected
an assertion of mootness in [challenges to ceased governmental conduct] only when
there is a substantial likelihood that the offending policy will be reinstated if the suit
is terminated.” Id. at 1283–84. Here, the challenged policy would not have to be
reinstated—it was never repealed. Thus, it is not “absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.” Friends of the Earth,
528 U.S. at 189. Moreover, whether it is “absolutely clear” that Defendant’s
reopening of the investigation of Justice Parker could “not be reasonably expected
to recur,” Friends of the Earth, 528 U.S. at 189, is a question of fact as to whether
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Defendant’s voluntary cessation of the investigation moots the case. Defendants
have not met their “heavy burden of persua[ding] the court that” they will not
continue to enforce the Judicial Canons in a way that will chill speech in the future.
V. CONCLUSION
Accordingly, it is ORDERED as follows:
1.

Defendants’ Motions to Dismiss (Docs. # 51, 53) are DENIED as to all

of Justice Parker’s claims, except those brought pursuant to the Due Process Clause;
2.

Defendants’ Motions to Dismiss (Docs. # 51, 53) are GRANTED in

part, only as to Justice Parker’s due process claims; and
3.

Justice Parker’s due process claims are DISMISSED with prejudice.

It is further ORDERED that Defendants shall file an answer to the Complaint
on or before September 14, 2017.
DONE this 31st day of August, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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