Alabama Supreme Court Justice Files Suit Challenging JIC and the Judicial Canons

Liberty Counsel

Liberty Counsel has filed a federal lawsuit on behalf of Hon. Tom Parker, Associate Justice of the Alabama Supreme Court, challenging the constitutionality of several speech restrictive Alabama Canons of Judicial Ethics and the automatic disqualification provision of Section 159 of the Alabama Constitution. These provisions are being used by the Southern Poverty Law Center (SPLC) and its allies on the Alabama Judicial Inquiry Commission (JIC) in an attempt to intimidate, silence, and punish Justice Parker for his originalist judicial philosophy and protected speech.

The SPLC filed a complaint with the JIC, claiming that Justice Parker’s comments on the American Family Radio talk show regarding the U.S. Supreme Court’s same-sex marriage decision violated Canon 3(A)(6) of the Alabama Canons of Judicial Ethics. Canon 3(A)(6) purports to prohibit Alabama judges from making “any public comment about a pending or impending proceeding in any court,” even if such proceeding is not pending before the judge making the comments, and even if the judge’s comments do not have a reasonable likelihood of affecting the outcome or impairing the fairness of that proceeding. The JIC has agreed to “investigate” the SPLC’s politically motived and animus driven complaint. Under Section 159 of the Alabama Constitution, the JIC can now automatically disqualify Justice Parker from service on the Alabama Supreme Court by merely filing charges against him with the Court of the Judiciary, regardless of the meritless and absurd nature of such charges.

That Canon 3(A)(6) violates the First Amendment is beyond doubt. It is based on an old model law drafted by the American Bar Association (ABA) in the 1920s which has since concluded that its model was constitutionally “overbroad and unenforceable.” But even though the ABA has long since revised its constitutionally defective model statute to prohibit only specific comments about pending cases that are likely to affect the outcome or impair the fairness of those cases, Alabama has never narrowed Canon 3(A)(6).

“The Judicial Canon which prohibits any judges from speaking on any case pending anywhere in the country is a clear violation of the First Amendment. This Canon is so broad it would prohibit a judge who teaches in a law school from commenting on any case pending in any court in America. That such a broad prohibition on speech is unconstitutional is an understatement. Combining this unconstitutional provision with Alabama’s automatic removal provision of judges charged by the JIC compound the constitutional violation,” said Mat Staver, Founder and Chairman of Liberty Counsel, which represents Justice Parker.

“Justice Parker has a constitutional right to speak out on the case so long as he is not presently presiding over it. We know have seen a disturbing pattern of the JIC doing the bidding of the Southern Poverty Law Center and filing politically motivated charges against Alabama Supreme Court Justices in order to remove them from the bench. It is time to put a stop to this free speech violation and the automatic removal provision,” said Staver.

Justice Parker’s lawsuit also challenges the automatic removal provision. Under that provision, any judge charged by the JIC is automatically removed from the bench even before having the opportunity to defend. Alabama is the only state that violates the due process rights of judges by automatically removing them following a charge by the JIC. Past history has revealed, in the case of Chief Justice Roy Moore, that the JIC does the bidding of the SPLC, even appointing a former Legal Director of the SPLC to prosecute a complaint filed by the SPLC against Chief Justice Moore.

Liberty Counsel is an international nonprofit, litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family since 1989, by providing pro bonoassistance and representation on these and related topics.