Miss. judge’s remarks on race not ‘legitimate political concern’

Friday, February 13, 2009

A county judge’s racially inflammatory remarks did not fall within the bounds of protected speech and would have subjected him to removal from office had he not already resigned, the Mississippi Supreme Court ruled recently.

Applying a public-employee test rather than a judicial-speech precedent, the high court majority determined that former Judge Solomon C. Osborne did not engage in speech on a matter of public concern when he used racially tinged language to describe political appointments in his county.

Osborne, who was appointed in 2001 as a judge with the Leflore County Court, had been the subject of prior judicial disciplinary proceedings for practicing law while on the bench and for engaging in a physical altercation with a man who was repossessing a Mercedes Osborne co-owned with his wife and mother-in-law.

The case the state high court ruled on last week centered on comments Osborne, who is African-American, made in 2006 about the appointment of two local African-Americans to the Greenwood Election Commission by Greenwood’s Caucasian mayor.

On Sept. 13, 2006, Osborne gave a speech before the Greenwood Voters League, a predominantly African-American political group. The following day, The Greenwood Commonwealth ran a story about Osborne’s speech, quoting him as saying: “White folks don’t praise you unless you’re a damn fool. Unless they think they can use you. If you have your own mind and know what you’re doing, they don’t want you around.”

At the time of the remarks, Osborne was running for re-election. (He was re-elected later that year.)

Forty-eight complaints about Osborne’s comments were filed with the Mississippi Commission on Judicial Performance. In February 2007, the commission filed a formal complaint against Osborne, alleging violations of several canons of the Mississippi Code of Judicial Conduct and a state law prohibiting perjury.

Osborne, originally acting as his own attorney, denied making the statements and argued that discipline for his political speech violated his First Amendment rights. The commission referred the matter to a committee, which held a hearing. In February 2008, the committee issued its recommendations, which the commission adopted in March 2008, finding Osborne guilty of violating the judicial canons and of perjury.

On appeal, a divided Mississippi Supreme Court on Feb. 5 affirmed the bulk of the commission’s ruling in Mississippi Commission on Judicial Performance v. Osborne. In his majority opinion, Presiding Justice George C. Carlson Jr. determined that the proper test to apply for evaluating the regulation of the judge’s speech was the U.S. Supreme Court’s public-employee decision Pickering v. Board of Education (1968).

In Pickering, the Court determined that a public school teacher had a First Amendment right to mail a letter to the editor to a local newspaper because the teacher’s speech touched on a matter of public concern or importance and that right was not trumped by the local school board’s interests in a disruptive-free, efficient workplace.

The two-prong Pickering test requires that a public employee first show that his speech touches on a matter of public concern rather than merely expresses a personal grievance. If it does, then the second step for a reviewing court would be to balance the employee’s free-speech rights against the employer’s efficiency interests in a disruptive-free workplace.

Carlson rejected Osborne’s First Amendment argument, finding that his controversial comments in 2006 were not on a matter of public concern. “Osborne’s commentary on Caucasian officials and their African-American appointees in his jurisdiction is not worthy of being deemed a matter of legitimate political concern in his reelection campaign, but merely an expression of his personal animosity,” he wrote.

Since the majority found that Osborne’s speech did not pass the first prong of the Pickering test, the court ended its analysis without considering the second prong.

The majority did reverse the perjury finding because the commission never formally charged Osborne with perjury. The majority also rejected the commission’s finding that Osborne violated one of the judicial canons by speaking to the Greenwood Voters League in the first place. The majority noted that a provision of the canon in question “expressly permits incumbent judges to attend and speak to political gatherings on their own behalf while candidates for election or re-election.”

When deciding on an appropriate punishment, the majority focused on the fact that this was Osborne’s third offense. Given Osborne’s “history of judicial misconduct,” the court said, “the harshest constitutional remedy — removal from office — would be appropriate.” However, the majority noted that since Osborne had resigned his judicial post in May 2008, the most appropriate sanction available was a public reprimand.

Three justices dissented on the findings that Osborne violated the canons for his political speech. Justice Jess H. Dickinson noted that “Judge Osborne’s malevolent, racist words should be offensive to all rational, fair-minded people.” However, he believed that the proper analysis for the Mississippi courts to apply was the U.S. Supreme Court’s judicial-speech decision Republican Party of Minnesota v. White (2002), in which the Court struck down a Minnesota judicial canon that prohibited judges from announcing their views on “disputed legal or political issues.”

“Judge Osborne was clearly announcing his view on a disputed political issue — his disagreement with the Greenwood Mayor’s appointments to the Greenwood Election Commission,” Dickinson said. Dickinson also questioned the majority’s application of Pickering, which he described as a “case decided forty years ago which involves a school teacher, not a judicial candidate.”

Dickinson concluded that “there is no logical argument why the principles announced in White would not extend to any canon or other restriction on a judge’s right to free speech during the course of a political campaign.”

Justice James W. Kitchens also authored a dissent, finding that it violates the First Amendment to sanction a judge for pure political speech. “In my view, Judge Osborne’s comments were far beneath the dignity of a judge,” he wrote. “But just as clearly, his comments addressed a political issue, and not just any political issue, but the seminal political issue of this state’s history: race.”

Kitchens also criticized the majority’s use of Pickering. “When the government seeks to level the sword of judgment against a speaker because of the political content of his message … then the restriction ‘must be subjected to the most exacting scrutiny,’ ” he said. “The majority erroneously applies the lesser standard that the U.S. Supreme Court has developed to address the speech of public employees.

“The high court, the Fifth Circuit Court of Appeals, and this Court,” Kitchens continued, “all have made abundantly clear that elected judges are no mere ‘public employees’ but moderators of public debate that, like all elected officials, enjoy a ‘role that . . . makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.’ ”

Kitchens concluded that the majority’s ruling not only limited Osborne’s free speech but also deprived voters of the right to weigh in on his speech. “Under our state’s system of judicial elections, the decision of whether an outspoken judge’s comments warrant removal rests properly with his constituents,” he said.

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