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Click here for the full text of this decision FACTS:On a Thursday morning, two days before Christmas, Judge Robert Jenevein was having breakfast with his wife Terrie at a Dallas restaurant. Stephen Stodghill, a local lawyer, interrupted them and requested an emergency hearing to consider his request to dissolve a temporary restraining order (TRO), which had been issued by visiting Judge Leonard Hoffman the previous day the last day before the closing of the courthouse for the holidays. Jenevein told Stodghill to get Lawrence Friedman, the opposing counsel, and meet him at 1 p.m. At that time, they went to Stodghill’s office. Following an impromptu hearing, Jenevein granted the motion to dissolve the TRO in what became known as “the Yahoo case.” After the Christmas break, the plaintiff in the Yahoo case moved to reinstate the TRO. The defendants in the Yahoo case had filed an objection to Hoffman’s assignment, which automatically disqualified him under Texas law from continuing to preside over the case. But Hoffman, apparently believing he retained authority in the case, reinstated his earlier restraining order. The Yahoo defendants then sought a writ of mandamus to disqualify Hoffman from further presiding in the case. The appellate court conditionally granted a writ of mandamus, voiding all orders signed by Hoffman and prohibiting him from presiding over the case in the future. The case then transferred to Judge David Gibson of Dallas County Court-at-Law No. 1. After the transfer, Friedman filed an affidavit prepared and signed by Jeffery Robnett, Gibson’s friend and former personal attorney. In the affidavit, Robnett alleged that Gibson had solicited bribes from Stodghill and Mark Cuban, a defendant in the Yahoo case. Gibson then recused himself in the Yahoo case on July 27, 2000, and that case was assigned to another judge. Robnett’s allegation and Gibson’s subsequent recusal attracted significant press coverage. The next morning, the plaintiff in the Yahoo case filed a fourth amended petition, alleging that “Gibson has in other cases exchanged rulings for sexual favors, has made frequent ad litem appointments to Judge Robert Jenevein’s wife and to [another lawyer] with his former firm, and with whom Gibson is alleged to have a more intimate relationship.” According to Jenevein, all knew that this allegation was false and baseless and an abusive litigation tactic. Because of three recusals in the case, there were only two judges eligible to preside over the case, one of whom was Jenevein. Based on his Dec. 23, 1999, ruling and his friendship with Gibson, Jenevein suspected that Friedman would not want him to preside over the Yahoo case. Learning of the pleading, Jenevein drafted a press statement responding to Friedman’s pleading and had a court employee fax it to the local media. The court employee also notified local media outlets that Jenevein would be holding a press conference in his courtroom at 4 p.m. At the press conference, Jenevein appeared in his judicial robes and read a statement that defended his wife’s conduct and attacked Friedman’s allegations as baseless charges made for the purpose of intimidation. He also withdrew from participation in the case. Jenevein did so because of his intention to file a grievance against Friedman with the State Bar of Texas. “As an adverse party to him in that proceeding, it would be inappropriate for me to preside over this case,” Jenevein stated. “It is my fervent hope,” Jenevein also stated, “that I and the hundreds of attorneys and judges in this county who share my views will soon stop what I perceive as abuses of the process and the criminal vilification of good lawyers and good judges in the interest of financial gain.” The press conference generated substantial news coverage. In the days following the press conference, Jenevein received approximately 100 inquiries from friends and colleagues. In response, Jenevein sent an e-mail to approximately 76 friends, family members and colleagues which included fellow attorneys and judges that thanked them for their support, again defended his wife and rebutted a news story that formal charges had been filed against him. The e-mail was sent at approximately 2:30 p.m. from Jenevein’s computer at the County Court of Law No. 3. After the press conference and e-mail, Friedman filed a grievance against Jenevein with the State Commission on Judicial Conduct. The commission initiated formal proceedings against Jenevein asserting four charges against him, but dismissing two of the charges soon thereafter. The commission first charged that Jenevein’s decision to hold a press conference while wearing his judicial robes for the purpose of rebuking Friedman’s conduct allegedly violated Art. V, �1-a(6) of the Texas Constitution and several canons of the Texas Code of Judicial Conduct (TCJC). The second charge alleged that Jenevein’s decision to send an unsolicited communication discussing the Yahoo case during normal business hours also violated Art. V, �1-a(6) of the Texas Constitution and several canons of the TCJC. Jenevein moved to dismiss both charges, arguing that his statements were protected by the First Amendment. At a hearing on Aug. 26, 2002, the commission determined that it could not rule on the constitutional issue prior to a formal hearing. On Sept. 24, 2002, a special master held a formal hearing on the charges but declined to rule on the constitutional issue, recommending that the issue be addressed by the commission. The commission subsequently held a hearing on the objections to the recommendations of the special master. On Jan. 21, 2003, without addressing the constitutional issue, the commission entered an Order of Public Censure against Jenevein. “As to Charge 1, the Commission concluded that”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 [sic] and his clients in connection with that still-pending Case’ violated Article 5, Section 1-a(6)A of the Texas Constitution and Canon 2B of the TCJC. As to Charge 2, the Commission concluded that”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’ violated Article 5, Section 1-a(6)A of the Texas Constitution and Canon 2B of the TCJC.” (footnotes omitted). Jenevein attempted to appeal the censure order, requesting that the chief justice of the Texas Supreme Court appoint a special court of review, and he did, selecting three Texas state appellate judges. This special court of review held a hearing in April but on June 12, 2003, announced that it lacked jurisdiction to hear an appeal from the commission and dismissed Jenevein’s appeal. Following the dismissal of his disciplinary appeal, Jenevein filed a suit under 42 U.S.C. �1983 in U.S. district court against the members of the commission in their official capacity. In his complaint, Judge Jenevein set forth two claims. First, he asserted that the commission violated his First Amendment rights, because his comments were protected speech for which he could not be disciplined. Second, he claimed that the commission violated his due-process rights. Based on these claims, Jenevein requested the district court to order the commission to expunge the censure order and to award him attorneys’ fees incurred in defending the disciplinary proceeding and in prosecuting the �1983 suit. The district court referred the commission’s summary judgment motion to the magistrate judge for a report and recommendation. The magistrate judge recommended that the motion for summary judgment be granted. The district court approved and accepted the magistrate judge’s report and recommendation, granting the commission’s motion for summary judgment. Jenevein filed timely a notice of appeal. HOLDING:Affirmed in part, reversed and remanded in part. It is true, the court stated, that Jenevein was an employee of the state. It is equally true, the court stated, that as an elected holder of state office, his relationship with his employer differed from that of an ordinary state employee. “If the state, however, chooses to tap the energy and the legitimizing power of the democratic process in the election of judges, the court stated that it must accord the participants in that process the First Amendment rights that attach to their roles.” The court held that it would apply strict scrutiny to the commission’s regulation of an elected judge’s speech to his constituency, requiring such regulations to be narrowly tailored to address a compelling government interest. The court agreed that the state had a compelling interest in protecting the integrity of its 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. Thus, to the extent that the commission censured Jenevein for the content of his speech, shutting down all communication between the judge and his constituents, the court reversed and remanded the case with instructions to expunge that part of the order. The court held that the commission’s application of its canons to Jenevein was not narrowly tailored to its interests in preserving the public’s faith in the judiciary and litigants’ rights to a fair hearing. The court, however, held that it was within the commission’s power to censure Jenevein for donning his robe and conducting his press conference in the courtroom, instead of walking to a public forum a block a way, and also using state computers to send the e-mail to his supporters. OPINION:Higginbotham, J.; Higginbotham, Wiener and Clement, JJ.

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