FREE SPEECH RIGHTS of LAWYERS ISSUE NOT SETTLED

 In Kentucky there is a conflict between traditional Constitutional Rights and the Power of the Kentucky Supreme Court.  Nowhere is this conflict more evident than in the regulation of the speech of lawyers by the Ky. Supreme  Court.

This article attempts to discuss the basis for traditional constitutional free speech rights which apply to citizens and lawyers.  It reveals how the Ky. Supreme Court has adopted a rule that limits free speech of lawyers which is contrary to the Federal and State constitutions and an act of the legislature..

 

U.S. CONSTITUTION – FIRST AMENDMENT:

First Amendment – Religion and Expression

Amendment Text

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

 

KENTUCKY CONSTITUTION

Section 8 – Kentucky ConstitutionFREEDOM OF SPEECH AND OF THE PRESS.

  

“Printing presses shall be free to every person who undertakes to examine the proceedings of the General Assembly or any branch of government, and no law shall ever be made to restrain the right thereof.

 

Every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.”

Text as Ratified on: August 3, 1891, and revised September 28, 1891. – History: Not yet amended.

Section 1 – Kentucky Constitution

“Rights of life, liberty, worship, pursuit of safety and happiness, FREE SPEECH, acquiring and protecting property, peaceable assembly, redress of grievances, bearing arms.”



All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:

Fourth: The right of freely communicating their thoughts and opinions.”

Text as Ratified on: August 3, 1891, and revised September 28, 1891.
History: Not yet amended.

KENTUCKY LEGISLATURE:

KRS 432.240 – No contempt for criticism out of court.

“No court or judge shall proceed by process of contempt or impose a fine against any person who animadverts upon or examines into the proceedings or conduct of such court or judge, by words spoken or writing published, not in the presence of the court or judge in the courthouse during the sitting of the court.”

 

KENTUCKY SUPREME COURT BY ADMINISTRATIVE RULE  ADOPTED SCR 3.130 (8.2)(a) which limits the free speech rights of lawyers .

   This Supreme Court Rule limits the right of an attorney to bring into question the integrity or qualifications of a judicial officer, prosecutor, adjudicatory official or public defender. But in the Berry case it was broadly applied to sanction mere criticism of members of the Legislative Ethics Commission, a creature of the legislature.

SCR 3.130 8.2(a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”

    It appears that the Ky. Supreme Court has overruled the specific language of  Kentucky and Federal Constitutions by adopting a limitation of Free Speech rights.

 This was not done under their Constitutional power to decide cases and controversies, but was done under the authority of its rule making power and right to regulate the Bar Association.

Supreme Court Rule (SCR 3.139(8.2)(a)  limits the free speech rights of lawyers and is in direct conflict with the language of a statute the legislature adopted  KRS 432.240. 

 The legislature has protected criticism of a court or judge if the statement or writing is made outside the presence of the court or judge.

To be a violation of statutory law the offending speech must be  ”in the presence of the court or judge in the courthouse during the sitting of the court.”

   
    The Kentucky Supreme Court has ignored the Federal Constitution and the Kentucky Constitution, and the Kentucky legislature by writing a Rule that limits Free Speech which is otherwise clearly protected in the Federal and State constitutions.  

The jurisdiction of the Kentucky Supreme court to issue rules such as SCR 3.130 (8.2)(a) is found in Sections 110 and 115 of the judicial article adopted in 1976 which states:

Kentucky Constitution  – Section 110


Composition — Jurisdiction — Quorum — Special justices — Districts — Chief

“(1) The Supreme Court shall consist of the Chief Justice of the Commonwealth and six associate Justices.

(2) (a) The Supreme Court shall have appellate jurisdiction only, except it shall have the power to issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause, or as may be required to exercise control of the Court of Justice.”

Text as Ratified on: November 4, 1975, effective January 1, 1976

Ky. Constitution Section 116


Rules governing jurisdiction, personnel, procedure, bar membership.

The Supreme Court shall have the power to prescribe rules governing its appellate jurisdiction, rules for the appointment of commissioners and other court personnel, and rules of practice and procedure for the Court of Justice. The Supreme Court shall, by rule, govern admission to the bar and the discipline of members of the bar.”

Text as Ratified on: November 4, 1975, effective January 1, 1976

 

    The argument could be made that the specific protections of the Kentucky Constitution Section 1 and Section 8, regarding Free Speech, should be interpreted to restrict the ability of the Ky. Supreme Court to adopted a Rule in direct conflict with the Kentucky Constitution sections 1 and 8.

U.S. DISTRICT COURT RULING IN  BERRY V. KBA (2011)

U.S. District Judge Danny Reeves recently rejected a claim by attorney John M. Berry, Jr. and The ACLU which challenged SCR 3.130 (8.2(a) as applied to a letter Berry wrote to the Legislative Ethics Commission by attorney Berry.  Berry’s letter was not profane, made no threats, and merely set out a legal argument that the Legislative Ethics Commission had misinterpreted the law.

The Bar has not cited any statement in the Berry letter that was “false” or which questioned the “integrity” or “qualifications for office” of a judge or public legal officer.  In other words, the ethics prosecution against Berry was based on his letter and apparently  became actionable by the KBA since it was critical of the ruling.

The Berry Federal Claim was brought under  the Federal Civil Rights Act 42 U.S.C. 1983 since it violated the constitutional rights of Berry and denied him due process of law.

Judge Reeves ruled that the Federal Courts do not have jurisdiction to review actions of the state bar associations.   Judge Reeves acknowledged that Berry was not provided any right to appeal a finding against him by the Inquiry Commission of the KBA.  However, Judge Reeves held that SCR 3.130 (8.2)(a) served a state interest in regulating the conduct of lawyers, and that even though the rule infringed on constitutional speech, he concluded the statement was “reckless” it didn’t matter that the statement was true.

The ruling of Judge Reeves clearly says a statement made by a lawyer which is “true” but “reckless” is a proper violation of SCR 3.130 (8.2(a).  He did not define how a letter comes to be found to be “reckless”.

We are advised that an appeal of the Berry/ACLU case to the Sixth Circuit Court of Appeals is likely.

The lack of Federal jurisdiction ruling is very interesting.  It appears to conflict with numerous rulings by Federal Courts regarding Bar Rules. 

Some cases in which Federal Courts have ruled on state bar rules:

Shapero v.Kentucky Bar Assn., 486 U.S. 466 (1988) (Set aside KBA Advertising Rules)

Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983)

But United States district courts do have subject-matter jurisdiction over general challenges to state bar rules promulgated by state courts in nonjudicial proceedings, which do not require review of a final state-court judgment in a particular case.”

Nicholson v. Shafe, 558 F.3d 1266 (11th Cir., 2009)

The Supreme Court drew a distinction between general challenges to the constitutionality of state bar rules and challenges to state court decisions in particular cases that raise federal constitutional questions, finding that a federal district court has jurisdiction to consider the former but not the latter. Id. at 485-86, 103 S.Ct. 1303.

In other words, the Supreme Court determined that the federal district court had jurisdiction to consider the general attack on the constitutionality of the d.c. bar rule requiring graduation from an accredited law school but that it lacked jurisdiction to hear the allegations “inextricably intertwined with the District of Columbia Court of Appeals’ decisions, in judicial proceedings, to deny the respondents’ petitions.” Id. at 486-87, 103 S.Ct. 1303

“[s]ince Feldman, [the Supreme Court] has never applied Rooker-Feldman to dismiss an action for want of jurisdiction. Exxon Mobil, 544 U.S. at 287, 125 S.Ct. 1517.

Mothershed v. Justices of the Supreme Court, No. 03-16878 (Fed. 9th Cir. 6/6/2005) (Fed. 9th Cir., 2005)  

“United States district courts . . . have subject-matter jurisdiction over general challenges to state bar rules, promulgated by state courts in nonjudicial proceedings, which do not require review of a final state court judgment in a particular case.”

   

 

 

 

 

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