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.

Comments

[Noscitur a sociis]

I can't think of any reason why Texas (or Travis County) would choose to label such an official a judge, but that choice having been made, this decision seems correct.

[F.D. Wolf]

I don't know if this is peculiar to Texas, but the "county judge" is actually the elected chief executive of a county. The county judge presides over the "commissioners' court" which consists of the judge plus four commissioners elected from different precincts. Essentially, this is equivalent of a mayor and city council. So, the "Judge" is the executive, and the "Court" is the legislature. I don't know why these terms are used, but I imagine it is rooted in historical functions which evolved over time.

[arclements]

The position of county judge is a constitutional one dating back to pre-statehood days. By default, county judges exercise both executive authority on behalf of the county, legislative authority as presiding officer of the Commissioners Court, and judicial authority with original jurisdiction in misdemeanor cases (and exclusive jurisdiction in jailable misdemeanors and those where the possible fine exceeds $500), probate and guardianship cases, juvenile cases, general civil cases where the amount in controversy is between $200 and $10,000, and appellate jurisdiction from the justice courts (J.P.) and municipal courts.

This limited jurisdiction stems in part from the fact that constitutional county judges do not have to be attorneys, but merely individuals "learned in the law."

However, matters become more interesting in counties with criminal district courts or one or more statutory county courts (termed "county courts-at-law", whose judges do have to be lawyers). In counties with the former, criminal jurisdiction is ceded to the statutory county court, and when there are county courts-at-law, the constitutional county judge may surrender the exercise of the remainder of their jurisdiction to the county courts-at-law. This becomes particularly relevant when considering whether a given county judge receives the state salary supplement for spending at least 40% of their time in the exercise of judicial duties. In small and medium counties, where the pay isn't necessarily all that great, this is significant; in a county like Travis (Austin), not so much.

On top of that, there are often special provisions affecting the jurisdiction of individual constitutional county courts because of a well-developed judiciary in said county; Travis County is one such, and the Travis County Judge's judicial functions (if exercised) are limited to probate matters. See Tex. Gov't Code § 26.327.

[ReaderY]

Chief Justice Robert’s citation of Bailey v. Drexel Furniture comes to mind. If calling something a penalty doesn’t make it a penalty for constitutional purposes if it has no functional indicia of a penalty, why should calling someone a judge make them a judge for constitutional purposes if the office has no functional indicia of being a judicial role?

Also, curious that the opinion would refer to not judging a book by its title, when “don’t judge a book by its cover” is the common cliche phrase that would seem the more obvious fit.

[RhymesWithRight]

The term comes from the Spanish colonial period in which the alcalde exercised executive, legislative, and judicial functions. In theory they still can (and sometimes do, especially in smaller counties) exercise judicial power in cases that are misdemeanors or ordinance violations, but this is relatively rare. In Travis County, the county judge does not -- and since the primary functions are executive and legislative, the notion that they are supposed to be somehow "non-political" is absurd (especially since even judges are elected on a partisan ballot in Texas).

[ReaderY]

It’s also interesting that the opinion found that she was a judge for purposes of jurisdiction. Merely labeling her a judge subjects her to procedures for state judicial discipline. But she wasn’t for purposes of the merits. The state has a heightened interest in limiting judges’ ability to express themselves in ways that could communicate an appearance of bias in cases. This bias only applies to the kind of judges who actually hear cases. It does not apply to people simply because they have the title judge.

The special court noted, however, that because it had jurisdiction, in an appropriate case it could discipline a judge in name only, if the person did something warranting sanctions for people with non-judicial roles and not having special first amendment protection. Thus, the judicial discipline process remains a viable vehicle for adjudocating citizen complaints about county judges and enforcing discipline on them based on the code of judicial conduct, even though they don’t act in a judicial capacity, as long as there isn’t a special constitutional defense for their conduct as existed in this case.

[cmcc_aus]

Thanks ReaderY for that explanation. I'm a Travis County resident and have followed the case since the beginning. It had seemed to me a stretch that the disciplinary board wanted to assert its authority over a 'non-judicial' judge, and in fact it was an overreach to do so where there was free speech involved, and where the forum was overtly political, and non-judicial.
But as you say, the special court holds that "the judicial discipline process remains a viable vehicle for adjudicating citizen complaints about county judges and enforcing discipline on them based on the code of judicial conduct"... The "county judge" remains a hybrid beast, and certain aspects of Texan governance seem intended to confuse outsiders.

[dwshelf]

{"You can do anything you want–-grab 'em by the pussy."}

Curious how a twisted Trump quote ended up in a legal decision.

Here's the actual quote.
Trump: And when you’re a star, they let you do it. You can do anything.
Bush: Whatever you want.
Trump: Grab ’em by the pussy. You can do anything.

Note the missing "they let you do it". The difference between a crime and no crime.

[JonFrum]

Of course, Trump was right. When you're rich and famous, you CAN grab 'em by the pussy, and they'll like it just fine. As long as you bring them to the right parties, and maybe take them on a shopping trip. And 'they' make themselves known, so it's not like you're going to grab Liz Warren by the pooter.

[dwshelf]

Or, just advance their career.

A civilized form of prostitution.

[Jimmy the Dane]

A special reminder that even asshats are protected by the First Amendment....

[Eric VonSalzen]

I learned about this kind of "judge" in reading David McCullough's biography of Harry Truman, who held that position in Missouri; it was an administrative position, not a judicial one. To the extent that special rules apply to those public officials who exercise judicial authority, the fact that someone is called "judge" doesn't seem a sufficient basis for doing so.

[tkamenick]

Seems right. Even if she were a real judge, judge, wearing a hat like that while doing non-judge-judge work would be just fine. If she were on the bench at the time doing judge judge work, that would be different.