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The 5th U.S. Circuit Court of Appeals has expanded the U.S. Supreme Court’s 2002 holding, Republican Party of Minnesota v. White, 535 U.S. 923, beyond the realm of judges’ free speech rights in political campaigns. Jenevein v. Willing, No. 06-50368. The 5th Circuit panel ruled that the Texas Commission on Judicial Conduct violated former Dallas County Court-at-Law No. 3 Judge Robert Jenevein’s First Amendment rights in publicly censuring him for holding a news conference to criticize an attorney in his courtroom, while wearing his judicial robe. The court said that the commission could censure Jenevein for making the statements while dressed in his robe and standing in his courtroom but it could not censure him for the content of his speech. Writing on behalf of the panel, Judge Patrick Higginbotham said: “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. It signifies that Texas has persisted in electing its judges, a decision which, for good or ill, casts judges into the political arena.” The incidents that led to Jenevein’s January 2003 censure occurred while a high-profile case, Universal Image Inc. v. Yahoo.com, was pending in the Dallas County courts-at-law. On Dec. 23, 1999, Jenevein granted a motion to dissolve a temporary restraining order that the defendants 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 who could be assigned to hear the case. Yahoo! Inc.’s attorney, Lawrence Friedman, a partner at Dallas’ Friedman & Feiger, subsequently filed a fourth amended petition in the litigation in which he alleged, among other things, that David Gibson, then-judge of Dallas County Court-at-Law No. 1 who had recused himself from the case, had made frequent ad litem appointments to Jenevein’s wife, Terrie, a Dallas solo practitioner. After learning of the petition, Jenevein called a news conference and accused Friedman of using the type of judicial intimidation tactics “we normally reserved for the mob.” The commission found that Jenevein’s actions in holding the news conference constituted willful violation of the state’s Code of Judicial Conduct, as prohibited by Texas Const. art. V, � 1-a(6)A. 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. In July 2003, Jenevein filed a federal suit against the commission under 42 U.S.C. 1983. U.S. District Judge Lee Yeakel upheld the censure order in 2006. The 5th Circuit affirmed in part and reversed and remanded in part. Contrary to the commission’s claim that it had censured Jenevein for criticizing a lawyer while appearing in a judicial robe in the courtroom, the 5th Circuit found that its censure extended to the content of his speech. According to the court, the commission’s censure order wasn’t narrowly tailored to meet the state’s compelling interest of protecting the integrity and impartiality of the judiciary. 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.” Seana Willing, the judicial conduct commission’s executive director, said the commission has had difficulty enforcing the Texas Code of Judicial Conduct since White. In August 2002, the Texas Supreme Court, the state’s highest civil court, struck provisions in the judicial conduct code that had restricted what judges and judicial candidates could say.

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