By Mitch Kokai, Carolina Journal

State Supreme Court Justice Anita Earls accused conservative colleagues of placing their ideology above the institution, she might have engaged in constitutionally protected political speech.

Or she might have accused colleagues of violating their duty. If Earls intimated that conservative justices refused to set aside political beliefs when addressing particular cases, she essentially said they failed to do their job.

It’s the second option US District Judge William Osteen had in mind on Nov. 21. That’s when he refused to grant Earls an injunction against the North Carolina Judicial Standards Commission.

Our state’s political discourse would improve if neither Osteen nor any other judge had to make that call.

The commission is investigating whether Earls’ comments in a published interview ran afoul of the state Code of Judicial Conduct. Accusing colleagues of ignoring their duties could violate the code by hurting public confidence in the judiciary.

Earls filed a federal lawsuit against the commission. She argued that its confidential investigation had chilled her free speech.

Overseeing Earls’ case, Osteen’s immediate task involved a decision about shutting down the investigation with an injunction. He answered no.

A federal precedent called the “Younger doctrine” advised against Osteen stepping into a state court proceeding. “In the alternative, this court finds the motion should be denied because the Commission likely satisfies strict scrutiny.”

“Strict scrutiny” refers to the thorough review a government action faces when a plaintiff alleges violation of a fundamental constitutional right.

Osteen focused on Earls’ statements that “[t]he new members of our court very much see themselves as a conservative bloc. They talk about themselves as ‘the conservatives.’ Their allegiance is to the ideology, not to the institution.”

“It appears to this court, particularly when considering the larger context of other statements made in the Interview and the Interview’s topics, that Plaintiff’s statements at issue could be reasonably interpreted as an accusation that Plaintiff’s ‘conservative bloc’ colleagues unethically prioritize their conservative political principles in some decisions, either administrative, judicial, or both,” Osteen wrote.

The judge rejected Earls’ argument that the Code of Judicial Conduct offered a vague prescription for acceptable versus unacceptable speech.

“These Canons were adopted by the North Carolina Supreme Court and do not appear, at least on their face, difficult for a trained lawyer or jurist to interpret, particularly in light of the fact that the North Carolina Supreme Court has published opinions explaining the application of the Canons in disciplinary proceedings,” Osteen wrote.

“A justice’s speech carries certain weight due to the authority of, and respect commanded by, the office of North Carolina Supreme Court Justice,” he wrote. “Public criticism by a justice of other justices is different from the same statement by media outlets or citizens in general. While public criticism of other judges by a judge may in some circumstances be fair political speech, an allegation that certain judges may elevate political or other personal ideology over the institution of the North Carolina Supreme Court may diminish the authority and integrity of that Court as a whole.”

The commission’s confidential investigation did not strike Osteen as unacceptable.

“A judge subjects herself to the Code and its Canons upon taking office, and the disciplinary process for handling alleged violations of the Code is done confidentially in a way that does not affect the judge’s public image or daily responsibilities in the early stages of an investigation or if a complaint is dismissed,” the judge wrote. “Only if the investigation eventually requires action by the North Carolina Supreme Court does the public learn of a judge’s alleged violation of the Code. The process’s confidentiality until that point, and the confidentiality of the Commission’s investigative records even after that point, is narrowly tailored.”

“The State’s compelling interest would not be served by an impaired system which would permit a judge to say anything on any subject whatsoever without fear of disciplinary reprimand by a body designated to maintain a code of ethics for judges in the State, as would be the case if any judge investigated for speech were able to enjoin the Commission’s confidential investigative process as Plaintiff seeks to do here,” Osteen explained.

Osteen’s order addressed the commission’s current role. That doesn’t mean state laws governing judicial conduct couldn’t — and shouldn’t — change.

Earls and her colleagues should feel free to speak on matters of public concern. That’s especially true in a state that elects judges and justices. The Earls case ought to prompt a new look at rules governing when and how judges can comment about matters of public concern.

If controversial comments disqualify a judge, millions of voters casting ballots in North Carolina can make that decision.

Mitch Kokai is senior political analyst for the John Locke Foundation.