FIFTH CIRCUIT COURT OF APPEALS UPHOLDS FREE SPEECH RIGHT OF JUDGEs

Mary Alice Robbins Texas Lawyer July 27, 2007

The 5th U.S. Circuit Court of Appeals has handed Robert Jenevein, former judge of Dallas County Court-at-Law No. 3, a partial victory in his seven-year fight with the State Commission on Judicial Conduct.

In a July 20 decision in Jenevein v. Willing, et al., a three-judge panel of the 5th Circuit decided unanimously that the commission violated Jenevein’s First Amendment free-speech rights in its January 2003 public censure of him. However, the 5th Circuit held that the commission could censure Jenevein for holding a news conference in his courtroom — while wearing his judicial robes — to criticize a Dallas attorney.

“It means Judge Jenevein’s First Amendment rights have been vindicated,” Mark Donheiser, one of Jenevein’s attorneys, says of the 5th Circuit’s opinion.

“Judges have free-speech rights that they do not lose when they take office,” says Jenevein, now a shareholder in Vincent Moyé in Dallas.

But San Antonio solo Mark Greenwald, the judicial conduct commission’s special counsel for Jenevein’s case, views the decision as a victory for the commission.

“What the 5th Circuit did here is clearly a win for us, because the sanction stands,” Greenwald says.

Seana Willing, the commission’s executive director, says the 5th Circuit’s decision extends the U.S. Supreme Court’s 2002 opinion in Republican Party of Minnesota v. White beyond the judicial campaign context. If judges are careful, they can say a whole lot about anyone at any time, she says, but a judge just can’t do it in his or her courtroom, dressed in a judicial robe.

“I think the message was sent that you just can’t use the trappings of your office for this kind of agenda,” Willing says.

The incidents that led to Jenevein’s censure occurred while the high-profile case, Universal Image Inc. v. Yahoo.com, et al., was pending in the Dallas County courts-at-law. According to the 5th Circuit’s opinion, in Dec. 23, 1999, Jenevein had granted a motion to dissolve a temporary restraining order the defendants in the Yahoo case had obtained from a visiting judge.

Of the five county court-at-law judges in Dallas County, three had recused themselves from the litigation, leaving only Jenevein and another judge to potentially be assigned to hear the Yahoo case.

Lawrence Friedman, an attorney for Yahoo who is a partner in Dallas’ Friedman & Feiger, subsequently filed a fourth amended petition in the litigation in which the plaintiff alleged, among other things, that David Gibson, then-judge of Dallas County Court-at-Law No. 1 who subsequently recused himself from the case, had made frequent ad litem appointments to Jenevein’s wife, Terrie, a Dallas solo.

After learning of the petition, in July 2000, Jenevein called a news conference accusing Friedman of using the type of judicial intimidation tactics “we normally reserved for the mob.” Jenevein said, “If I were not one of the judges to whom this case could have been assigned, I do not believe my wife would have been mentioned in the filings.”

As noted in the 5th Circuit’s opinion, the commission accused Jenevein of judicial misconduct for holding the news conference in his courtroom, while wearing his judicial robe, and for using a county-owned computer to send e-mails to more than 75 people to explain his reason for holding the news conference. In addition to criticizing Friedman, Jenevein announced at the news conference that he would not preside over the Yahoo case.

Jenevein sought dismissal of both of the commission’s allegations, arguing that the First Amendment protected his statements at the news conference and in the e-mails, but neither the special master who heard the case and made recommendations to the judicial conduct commission nor the commission addressed the constitutional issue, the 5th Circuit noted in the opinion.

The commission found that Jenevein’s actions in holding the news conference and sending the e-mails constituted willful violation of the state’s Code of Judicial Conduct, as prohibited by Article 5, §1-a(6)A of the Texas Constitution. Specifically, the commission found that Jenevein violated Canon 2B of the judicial conduct code, which bars a judge from using the prestige of his office to advance his private interests or those of others.

According to the 5th Circuit’s opinion, Jenevein attempted to appeal the commission’s censure order by asking Texas Supreme Court Chief Justice Wallace Jefferson to appoint a special court of review made up of three appellate judges. However, the special court held in April 2003 that it lacked jurisdiction to consider Jenevein’s appeal.

In July 2003, Jenevein filed a federal suit against the commission under 42 U.S.C. §1983. U.S. District Judge Lee Yeakel of Austin, Texas, upheld the censure order in 2006, granting the commission’s motion for summary judgment, and Jenevein appealed.

The 5th Circuit affirmed Yeakel’s order in part and reversed and remanded the case in part. Although the commission argued to the 5th Circuit that the commission censured Jenevein for his actions of criticizing a lawyer while appearing in a judicial robe in the courtroom, the 5th Circuit found that the commission also censured Jenevein for the content of his speech.

“It was always about his speech,” says Donheiser, a shareholder in Mathis & Donheiser in Dallas.

According to the 5th Circuit’s opinion, the commission’s censure order was not narrowly tailored to meet the state’s compelling interest of protecting the integrity and impartiality of the judiciary.

“To leave judges speechless, throttled for publicly addressing abuse of the judicial process by practicing lawyers, ill serves the laudable goal of promoting judicial efficiency and impartiality,” Judge Patrick Higginbotham wrote for the 5th Circuit. Judges Jacques Wiener Jr. and Edith Brown Clement joined Higginbotham in the decision.

In remanding a portion of the case, the 5th Circuit instructed Yeakel to order the commission to expunge the censure order “to the extent that it reached beyond Judge Jenevein’s use of the courtroom and his robe to send the message.”

Robert Johnson, the assistant state attorney general who represented the commission in the trial court, says the censure stands as long as the commission amends the order to remove any First Amendment implications. However, Johnson says he’s not sure how the commission could have shown that Jenevein used the prestige of his office to advance personal interests without referring to what Jenevein said.

Tom Kelley, spokesman for the Texas Office of the Attorney General, says there has been no decision whether to seek a rehearing or petition the U.S. Supreme Court to hear the case.

Upon remand the 5t. Cirt Ruled:

                   COURT COSTS AND ATTORNEY FEES TO PREVAILING PARTY

ROBERT JENEVEIN v. SEANA WILLING ALLEN III ELIZABETH COATES JOSEPH MORRIS KATHLEEN OLIVARES MONICA GONZALEZ JAMES HALL RONALD KRIST FAYE BARKSDALE HONORABLE REX BAKER III HONORABLE MICHAEL FIELDS BUCK PREWITT

ROBERT JENEVEIN, Plaintiff-Appellant, v. SEANA WILLING, Acting Executive Director of the Texas State Commission on Judicial Conduct;  R.C. ALLEN, III, Member of the Texas State Commission on Judicial Conduct;  ELIZABETH COATES, Member of the Texas State Commission on Judicial Conduct;  JOSEPH B. MORRIS, Member of the Texas State Commission on Judicial Conduct;  KATHLEEN H. OLIVARES, Member of the Texas State Commission on Judicial Conduct;  MONICA GONZALEZ, Member of the Texas State Commission on Judicial Conduct;  JAMES A. HALL, Member of the Texas State Commission on Judicial Conduct;  RONALD D. KRIST, Member of the Texas State Commission on Judicial Conduct;  FAYE BARKSDALE, Member of the Texas State Commission on Judicial Conduct;  HONORABLE REX G. BAKER, III;  HONORABLE MICHAEL FIELDS;  W.A. “BUCK” PREWITT, Commissioner of the State Commission on Judicial Conduct, Defendants-Appellees.

No. 09-50064

– April 30, 2010

Before JONES, Chief Judge, SMITH and ELROD, Circuit Judges.

After being censured by the Texas State Commission on Judicial Conduct, Robert Jenevein, a state judge, sued the members of the commission to have the censure expunged from his record.   The district court dismissed the suit, but we reversed and remanded in part, granting Jenevein partial expungement.   Jenevein appeals the denial of his motion for attorney’s fees as a “prevailing party” under 42 U.S.C. § 1988(b).  Because he is not a “prevailing party,” we affirm.

I.

The story behind the commission’s decision to censure Jenevein is described in detail in Jenevein v. Willing (“Jenevein I ”), 493 F.3d 551, 552-57 (5th Cir.2007).   In summary, Jenevein held a press conference in his courtroom, wearing his judicial robe, to respond to allegations about his wife contained in a petition pending in the Dallas County Court-at-Law, where he served.   He claimed that the allegations were baseless and that he considered them to be an abusive litigation tactic, designed to force his recusal from the case.   He explained that he had issued an emergency order at an earlier stage of the litigation and that, based on that order, the plaintiff’s lawyer likely believed Jenevein would rule against his client.   Later, Jenevein sent a follow-up email about the case and the press conference to seventy-six people.

On the basis of his press conference and email, the commission censured Jenevein for violating the Texas Code of Judicial Conduct and the Texas Constitution.   Jenevein attempted, unsuccessfully, to appeal the censure in state court.   He then sued the members of the commission, in their official capacities, in federal court under 42 U.S.C. § 1983, claiming the commission had violated the First Amendment, because his press conference and email comments were protected speech for which he could not be disciplined.   He sought to have the censure expunged.1  The district court denied all relief.

We reversed in part, holding that the First Amendment required that the censure be expunged “to the extent it reached beyond Judge Jenevein’s use of the courtroom and his robe to send his message.”  Jenevein I, 493 F.3d at 562.   We held that “the censure order survive[d] strict scrutiny to the extent that it [was] directed at Judge Jenevein’s use of the trappings of judicial office to boost his message, his decision to hold a press conference in his courtroom, and particularly stepping out from behind the bench, while wearing his judicial robe, to address the cameras,” because “[t]he state has a compelling interest in preserving the integrity of the courtroom, and judicial use of the robe.”  Id. at 560.   We ordered that the censure be expunged, however, “[t]o the extent that the commission censured Judge Jenevein for the content of his speech, shutting down all communication between the Judge and his constituents.”  Id. On remand, the district court denied attorney’s fees on the ground that the censure was a judicial act, by judicial officers, that § 1988(b) specifically exempts from serving as the basis for attorney’s fees.2  Jenevein appeals.

II.

Section 1988(b) gives federal courts discretion to “allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs” of litigating under § 1983.   The district court passed over, without discussion, the threshold question of whether our partial reversal in Jenevein I made Jenevein a prevailing party for purposes of § 1988.   We review that question of law de novo.  Energy Mgmt. Corp. v. City of Shreveport, 467 F.3d 471, 482 (5th Cir.2006).

“To qualify as a prevailing party, the plaintiff must (1) obtain actual relief, such as an enforceable judgment or consent decree;  (2) that materially alters the legal relationship between the parties;  and (3) modifies the defendant’s behavior in a way that directly benefits the plaintiff at the time of the judgment or settlement.”  Walker v. City of Mesquite, Tex., 313 F.3d 246, 249 (5th Cir.2002) (citing Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)).   To “prevail” under § 1988, a party need not procure a favorable judgment or settlement on every claim.  Fernandes v. Limmer, 663 F.2d 619, 637 (Former 5th Cir. Dec. 1981).   Nevertheless, “a technical victory may be so insignificant as to be insufficient to support prevailing party status.”   Tex. State Teachers Ass’n v. Garland Indep.   Sch. Dist., 489 U.S. 782, 792 (1989).  “Where the plaintiff’s success on a legal claim can be characterized as purely technical or de minimis,” he is not a prevailing party.  Id.

Jenevein obtained relief by way of Jenevein I, and we ordered the district court to expunge part of the censure.   That relief, however, along with its effect on the legal relationship between Jenevein and the commission, and the benefit it conferred on Jenevein, were de minimis.   On remand, the district court left almost all of the original censure order untouched.   Only two recurring sentence fragments, referring to the specific content of Jenevein’s press conference and email, were stricken from the censure.3  All six violations of the Code of Judicial Conduct and Texas Constitution found by the commission remain on Jenevein’s record.

In Roark & Hardee LP v. City of Austin, 522 F.3d 533 (5th Cir.2008), bar owners asked the court, on First Amendment and due process grounds, to strike down and enjoin enforcement of a city ordinance that prohibited smoking in enclosed public places.   The district court complied but denied fees under § 1988.   Reversing in part, we upheld the ordinance’s constitutionality under the First Amendment, though we left in place the district court’s finding that it violated due process to the extent it allowed the city to revoke permits and licenses without providing expeditious judicial review.   We also considered the plaintiff’s cross-appeal asserting that the district court had abused its discretion by denying attorney’s fees.  “Considering the numerous other claims Plaintiffs lost and the fact that the City [could] still enforce the license revocation provision, as long as it provide[d] expeditious judicial review,” we held that the bar owners’ success was “at most, de minimis.”  Id. at 556.

Jenevein’s position is similar to that of the bar owners.   Though he received partial vindication in Jenevein I, the commission’s censure remains in effect.   Its impact on his record, like the ordinance’s impact on the bar owners’ businesses, was not diminished.   Accordingly, any relief Jenevein can claim was de minimis, so he is not a prevailing party under § 1988.

Jenevein argues that he is a prevailing party like the plaintiffs in Walker and Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir.1980).   In Walker, homeowners challenged a remedial order requiring the construction of public housing projects in “predominantly white” neighborhoods.  Walker, 313 F.3d at 248.   After an appeal on the merits, we found the remedial order unconstitutional and remanded for the revision and stay-but not total dismissal-of the order.  Id. The homeowners then requested attorney’s fees, which the district court denied, in part because it found the homeowners were not prevailing parties.  Id. at 249.   A second appeal followed, and we reversed.   Crucially, we held that “the Homeowners achieved exactly the outcome they desired” in the litigation and thus were prevailing parties.  Id. at 250.

Unlike the homeowners in Walker, Jenevein did not receive exactly the outcome he sought.   All the violations found by the censure remain on his record.

In Familias Unidas, a group of Mexican-American students and adults challenged the constitutionality of a state law that gave county judges the power to exact public disclosure of the membership of organizations considered to be interfering with the peaceful operation of public schools.  Familias Unidas, 619 F.2d at 394.   The plaintiffs won declaratory relief, and the statute was struck down, but they did not receive actual damages.   We held that the plaintiffs could recover attorney’s fees under § 1988-except for those costs related to their pursuit of actual damages-because they prevailed with respect to the central issue of the case, the constitutionality of the statute.4  Id. at 405.

Jenevein has not achieved anything close to what the Familias Unidas plaintiffs accomplished.   Those plaintiffs won the lasting benefit of having a law struck down, never again to be enforced against them.   Jenevein had a few clauses removed from a censure, which otherwise remains in full effect.

In sum, the relief Jenevein received from the partial expungement of the commission’s censure was de minimis.   Therefore, he is not a prevailing party under § 1988 and may not recover attorney’s fees.   Because he is not a prevailing party, we need not address the holding that the commission’s censure constituted a judicial act performed by judicial officers.5

AFFIRMED.

FOOTNOTES

1. FN1. Jenevein also alleged that his Fourteenth Amendment right to due process had been violated, and he sought attorney’s fees for defending himself during the censure proceeding.   The district court dismissed both claims, and Jenevein did not raise them on appeal.

2. FN2. Section 1988(b) provides:In any action or proceeding to enforce a provision of section [ ] ․ 1983 ․ of [title 42] ․ the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.(Emphasis added.)

3. FN3. For example, in the three paragraphs addressing violations stemming from the press conference, the court struck the following language from the censure:Judge Jenevein’s actions on July 28, 2000, during the court’s normal business hours, in holding a press conference in his courtroom, while wearing his judicial robe, in order to read a prepared statement concerning the Yahoo Case and his personal feelings and criticisms about the conduct of Freidman and his clients in connection with that still-pending Case, was a willful violation of the Code of Judicial Conduct and violated Article 5, Section 1-a(6)A of the Texas Constitution.In the three paragraphs addressing Jenevein’s email, the court struck the following language:Judge Jenevein’s actions on August 8, 2000, during the court’s normal business hours, in using the county computer system to send the unsolicited communication to approximately seventy-six (76) family members, friends, lawyers, and judges, in order to further discuss the Yahoo Case, Friedman, and the July 28th press conference, was willful conduct that is clearly inconsistent with the proper performance of his duties and violated Article 5, Section 1-a(6)A of the Texas Constitution.

4. FN4. In Texas State Teachers Association, 489 U.S. at 789, the Court clarified that, to be considered a prevailing party, one need not necessarily prevail in the “central issue” of the litigation, so long as he “succeed[s] on any significant issue in the litigation which achieves some of the benefit the parties sought in bringing the suit.”  (Citation omitted.)   In Farrar, 506 U.S. at 111-12, the Court explained further that a plaintiff “prevails” whenever “actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.”   Neither of those decisions conflicts with Familias Unidas or with our decision today.   In Familias Unidas, the plaintiffs obtained relief on a significant issue-indeed, the most significant issue-that materially altered the relationship between the parties in a way that directed benefited them.   Jenevein did not achieve that level of success;  his relief, as we have explained, was de minimis.

5. FN5. Although the district court based its dismissal on the “judicial act” ground, and we affirm on the ground that Jenevein is not a prevailing party, “[w]e may affirm on any grounds supported by the record.”  Wells v. SmithKline Beecham Corp., No. 09-50244, 2010 U.S.App. LEXIS 5894, at *6 (5th Cir. Mar. 22, 2010) (citing Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir.2007)).   The parties contested the prevailing-party status in the district court, and we requested and received supplemental letter briefs on that issue.

JERRY E. SMITH, Circuit Judge:

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