Non-Judge Judges, "Pussy Hat[s]," and Falling Trees

From In re Inquiry Concerning Hon. Sarah Eckhardt, decided last week by a Texas Special Court of Review (Chief Justice Brian Quinn, Justice Charles Kreger, and Justice W. Stacy Trotter, all of various Texas Courts of Appeals):

The sanctions in question consisted of a "public admonition." The Travis County Judge against whom the Commission assessed it relinquished that office months earlier. She now is a member of the Texas Senate. Her name is Sarah Eckhardt.

Of the two acts for which the Commission admonished her, one occurred approximately three years earlier on January 24, 2017. The other happened on September 27, 2019. Both garnered much public and media attention. Nevertheless, someone complained to the Commission on September 28, 2019, about both. The unnamed individual averred that "[j]udges take oaths of office to be non-partisan which is clearly not the case here." "[Eckhardt] does not take the oath of office seriously via public displays on and off the job," continued the complainant. "I do not trust her to have unbiased decisions and believe any conservative republican should be in fear when entering her courtroom." "She has lost the confidence of the public and is a partisan hack," concluded the individual.

Those allegations eventually resulted in the Commission's December 2020 admonition of Eckhardt "for engaging in willful conduct that cast public discredit upon the judiciary in violation of Article V, Section 1-a(6) of the Texas Constitution." The Commission took that action "pursuant to the … authority conferred it in Article V, § 1-a of the Texas Constitution in a continuing effort to protect the public and promote public confidence in the judicial system."

The January 2017 incident involved Eckhardt wearing "a pink knitted beanie with cat ears, referred to as a 'pussy hat,' while presiding over a meeting of the Travis County Commissioners Court." She and the Commission agreed that 1) the object was worn "as a political expression" protesting a statement uttered by the "the newly elected" United States President regarding the treatment of women {"You can do anything you want–-grab 'em by the pussy."}; 2) the "[a]genda item 3 [about to be considered] at that meeting was a proposed resolution in support of women's health and reproductive rights"; and, 3) "[a]genda Item 3 … was legislative in nature" as were "[t]he actions of the Travis County Commissioners Court in considering and acting on [it]."

As for the September 2019 incident, the record illustrated that Eckhardt accepted an invitation to sit on "a panel at the annual 'Texas Tribune Festival,' scheduled for September 27– 29, 2019." The other panelists were "a former mayor of Midland, Texas, the sitting Mayor of Santa Fe, New Mexico, and the former Deputy Mayor of New York City." Additionally, the panelists were assigned the topic of "'Civic Enragement: How progressive politics are turning citizens into warriors and cities into battlegrounds.'" The parties stipulated that the topic "did not include judicial matters." Upon the panel's convening at the festival, the moderator broached the subject of "actions at the state government level in Texas to override or preempt local government measures, such as regulation of ride sharing services and tree preservation ordinances." { The Commission described the inquiry as "asking [Eckhardt] to speculate on why Governor Abbott would involve himself in the City of Austin's tree ordinance."} Responding, Eckhardt quipped that "Texas Governor Greg Abbott 'hates trees because one fell on him.'" This utterance alluded to Governor Abbott's partial, yet permanent, paralysis caused when a falling tree struck him.

The Commission concluded that Eckhardt's wearing a "pussy hat" during a legislative forum as a political expression and alluding to the Governor's physical condition were instances of "willful conduct that cast public discredit upon the judiciary." Publicly admonishing her allegedly was necessary "to protect the public and promote public confidence in the judicial system."

The court concluded that it had jurisdiction over the dispute, even though Eckhardt wasn't a judge-judge:

That is, the post {of Travis County Judge} did not entail the performance of any traditional judicial functions. Her role solely consisted of acting as the presiding officer of the Travis County Commissioner's Court, which body governed the county. She entertained neither probate nor other judicial matters traditionally assigned constitutional county judges. {She did perform marriages.}

Nonetheless, it concluded that Eckhardt's speech was constitutionally protected:

[We] apply the two-step analysis espoused in Scott v. Flowers (5th Cir. 1990) (involving restrictions on the speech of governmental employees), and reiterated in In re Davis (Tex. Spec. Ct. Rev. 2002). {See In re Hecht (Tex. Spec. Ct. Rev. 2006) (McClure, J., concurring) (questioning "the continued viability of Scott inasmuch as a judge's ability to offer personal opinions or viewpoints has since been found to be protected speech").} In the first step, we decide whether the form and context of the purportedly protected speech implicated a matter of legitimate public concern, given the context of the activity. The second requires us to balance the individual's First Amendment rights against the government's interest in promoting the efficient performance of its functions….

That wearing politically symbolic garb is protected speech has been true for innumerable years. And, it remains true here. All concede that the cap Eckhardt wore represented a symbol responding to tasteless commentary about women uttered by a United States President. Moreover, she opted to wear it when the topic of women's rights came for discussion during a legislative session of the Travis County Commissioners Court. One cannot reasonably dispute that women's rights are a matter of public concern. Thus, Eckhardt's donning the cap in support of them and in protest of the President's utterance logically related to a matter of public concern.

As for Eckhardt's utterance about a tree falling on the governor, it was said during a public panel discussion. If one were to give meaning to the topic assigned the panel, he would see that the group was tasked with debating political activism and its impact on local communities. And, to reiterate, the moderator had broached the subject of "actions at the state government level in Texas to override or preempt local government measures, such as regulation of ride sharing services and tree preservation ordinances." At that point, Eckhardt expressed her view about the governor and his reason for intervening into a debate concerning tree preservation. The debate apparently encompassed ecological matters like trees, the enactment of local zoning ordinances, and the State's intervention in purportedly local matters. Those too are matters of public concern, and Eckhardt's words dealt with those topics and the debate surrounding them.

Her intended "joke" may be injudicious and callous; indeed, she admitted as much. Yet, "First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed." Jokes, parody, and satire often shine light on issues of public interest and concern. One need only recall the stand-up routines of George Carlin, the pratfalls of Chevy Chase, scenes from "Thank You for Smoking," or skits from Saturday Night Live as proof of that. They remain protected expressions, nonetheless….

Yet speech, even that within the borders of the First Amendment, may be regulated. That leads us to the second step of Scott. Again, it obligates us to balance the individual's First Amendment rights against the government's interest in promoting efficient performance of its functions. The interest in play here relates to the judicial branch of our government. Preserving public confidence in it is "'a state interest of the highest order.'" A means of furthering that interest involves restricting judges from casting public discredit upon it and its obligation to administer justice. As said by our United States Supreme Court, "[t]he importance of public confidence in the integrity of judges stems from the place of the judiciary in the government." "Unlike the executive or the legislature, the judiciary 'has no influence over either the sword or the purse; … neither force nor will but merely judgment.'" "The judiciary's authority therefore depends in large measure on the public's willingness to respect and follow its decisions."

Yet, what of an elected official performing duties akin to those of an executive and legislature and who holds the title of "judge" in name only—does he or she hold a place in the historical concept of the judiciary? Is he or she truly a "judge" for purposes of fostering the integrity of what we have come to know as and what the Williams-Yulee court understands to bethe "judiciary"?A judge, in the common sense, adjudicates disputes.He or she does not engage, as a matter of course, in legislative activities such as enactinglaws,regulations,ordinancesorpublicresolutionsvoicingpositionsontopicsofpublicinterest. He or she does not engage, as a matter of course, in executive activities such as supervising theexpansive operations of a city, county, or state. He or she does not solicit or heed public input, asa matter of course, to perform his or her duties or make decisions.He or she does not publiclyvoice preconceived answers to disputes on matters of public notoriety when seeking election orprior to performing his or her official duties.

Those, among other characteristics, distinguish members of the judiciary from members of the the legislative and executive branches of our government. Most importantly, our citizenry ceded the pulpit to those within the legislative and executive branches, not to those in the judicial branch.

Comparing the characteristics of the role assigned Eckhardt as Travis County Judge to those of first the judicial branch and then to the legislative and executive branches identifies the true nature of her position. As with a book, a title signifies one thing but not necessarily the true substance of what one finds upon deeper search. As previously mentioned, constitutional county judges have been tasked duties of a judicial nature. Texas law permitted Eckhardt to relinquish them, however, and she did. Her primary duties were likened to those of a county executive or legislator, not a "judge." The plane on which she travelled while performing her duties came intertwined with public debate and input. Those indicia of her job cannot be ignored and are overwhelming considerations when undertaking the balance required by the second prong of Scott.

Indeed, the record illustrated that her role as Travis County Judge implicated the performance of no judicial functions. She enjoyed the title "judge" but had none of its duties…. So, the attributes of a judge found critical in Williams-Yulee as justifying unique treatment of the judiciary are absent here….

Thanks to the Media Law Resource Center MediaLawDaily for the pointer.