Start at In Re Inquiry Concerning Hon. Sarah Eckhardt……………, last week, by a Texas Special Court of Review, Chief Justice Brian Quinn Justice Charles Kreger and Justice W. Stacy Trotter (all of Texas Courts of Appeals)
Sanctions in question were a “public warning.” It was the Travis County Judge that had been cited by the Commission. He had already resigned months before. Now, she is a Texas Senator. Sarah Eckhardt is her name.
One of the two acts that the Commission had to caution her for occurred around three years before, on January 24, 2017, while the other was about three years prior. Another occurred on September 27, 2019, Each received much media and public attention. However, on September 28, 2019, a complainant to the Commission made complaints about them both. An unnamed person claimed “…”[j]”The assumption that udges swear to non-partisan office is false. “[Eckhardt]The complainant stated that she does not consider the oath to office as serious through public displays both on and off the job. I don’t trust her to make unbiased decisions, and any conservative republican shouldn’t be afraid of her in her courtroom. According to the person, “She is now a hacker and has lost all confidence.”
These allegations led to Eckhardt being reprimanded by the Commission in December 2020 for “willful conduct that cast discredit on the judiciary in contravention of Article V, Section 1a(6) of Texas Constitution.” The Commission took that action “pursuant to the … authority conferred it in Article V, § 1-a of the Texas Constitution in a continuing effort to protect the public and promote public confidence in the judicial system.”
Eckhardt was seen wearing a pink knitted beanie and cat ears while presideding over the Travis County Commissioners Court meeting in January 2017. She and the Commission agreed that 1) the object was worn “as a political expression” protesting a statement uttered by the “the newly elected” United States President regarding the treatment of women {“You can do anything you want–-grab ’em by the pussy.”}; 2) the “[a]genda item 3 [about to be considered]A resolution was proposed at the meeting in support of women’s health and reproduction rights.”[a]genda Item 3 … was legislative in nature” as were “[t]In considering and acting upon these matters, the Travis County Commissioners Court took certain actions. [it].”
As for the September 2019 incident, the record illustrated that Eckhardt accepted an invitation to sit on “a panel at the annual ‘Texas Tribune Festival,’ scheduled for September 27– 29, 2019.” Two other panelists were the “ex-mayor of Midland, Texas,” the incumbent Mayor of Santa Fe New Mexico and the ex-Deputy Mayor of New York City. The panelists also had to discuss “Civic Enragement”: How progressive politics have turned citizens into soldiers and cities into battlefields. Parties agreed that this topic did not cover judicial issues. The panel convened at the festival and the moderator raised the topic of “actions at Texas’ state government level to override local government measures such as regulations for ride-sharing services or tree preservation ordinances.” {This inquiry was described by the Commission as an “asking.” [Eckhardt] to speculate on why Governor Abbott would involve himself in the City of Austin’s tree ordinance.”} Eckhardt responded by saying that Texas Governor Greg Abbott “hates trees since one fell on him.” The remark was referring to Governor Abbott’s temporary, but permanent paralysis that occurred when a tree fell on him.
Commission found that Eckhardt wore a “pussy-hat” at a legislative forum to express political views and make fun of Governor Markell’s health were examples of “willful misconduct that discredit the judiciary.” She was publicly reprimanded for her actions, which she claimed was necessary to “protect the public” and increase public trust in the judiciary system.
Although Eckhardt isn’t a judge, the court found that the court had jurisdiction.
That is, the post {of Travis County Judge} did not entail the performance of any traditional judicial functions. The only role she played was that of acting as the presiding judge of Travis County Commissioner’s Court. It was responsible for managing the county. She was not qualified to handle probate and other matters that were traditionally assigned to county judges. {She did perform marriages.}
It concluded, however that Eckhardt’s speech was constitutionally protected.
[We]Apply the 2-step approach outlined in Scott v. Flowers (5th Cir. (1990) (restrictions on speech by governmental employees), and reaffirmed in Re Davis (Tex. Spec. Ct. Rev. 2002). {See In re Hecht (Tex. Spec. Ct. Rev. Ct. Rev. Scott inasmuch as a judge’s ability to offer personal opinions or viewpoints has since been found to be protected speech”).} The first is to determine if the language and context in which the speech was purportedly protected were relevant for legitimate public concern given the facts of the case. The second requires us to balance the individual’s First Amendment rights against the government’s interest in promoting the efficient performance of its functions….
Since innumerable centuries, the principle that wearing symbolic clothing is protected speech was held true. This is true even today. The cap Eckhardt wore was an emblem responding to the tasteless comments made about women by the United States President. She wore it during the Travis County Commissioners Court’s legislative session on women’s rights. It is obvious that women’s rights matter. Eckhardt’s wearing of the cap was in support of women’s rights and to protest President Trump’s comments. It is therefore logically linked with a matter which is of public concern.
Eckhardt said that a tree fell on the governor when he was participating in a panel discussion. The panel’s topic was to discuss political activism and the impact it has on communities. If you try to interpret that, the discussion would be meaningless. The moderator brought up the topic of “actions taken at the Texas state level to override local government actions such as regulations of ride-sharing services or tree preservation ordinances”. Eckhardt voiced her opinions about Eckhardt and the reason he was intervening in a discussion concerning tree preservation. This debate seemed to have covered environmental issues like trees and the adoption of local zoning ordinances. It also included the state’s involvement in purportedly local matters. These are also matters of public concern. Eckhardt spoke out on these topics as well as the discussion surrounding them.
She admitted that her “joke” might be ill-informed and callous. However, First Amendment protections don’t apply to only those who are clear, funny and have parodies that succeed. Parody, humor, and satire are often used to highlight issues of concern and public interest. You can see the proof in the comedy routines of George Carlin and Chevy Chase or scenes from Saturday Night Live. They remain protected expressions, nonetheless….
Speech, however, can be restricted, even within the First Amendment. We now move on to the next step. Scott. It obligates us again to weigh the First Amendment rights of the individual against the government’s interest in the efficient execution of its functions. It concerns the government’s judicial branch. The “state interest of the highest rank” is to maintain public confidence. This interest can be furthered by limiting judges’ ability to discredit it, and its obligation of administering justice. Our United States Supreme Court stated that “…”[t]Public confidence in the honesty of judges is important because of their place in government. “Unlike the executive or the legislature, the judiciary ‘has no influence over either the sword or the purse; … neither force nor will but merely judgment.'” “The public’s acceptance of and willingness to follow the decisions made by the judiciary is a major factor in its authority.”
Yet, what of an elected official performing duties akin to those of an executive and legislature and who holds the title of “judge” in name only—does he or she hold a place in the historical concept of the judiciary? Are they really a judge for the purposes of maintaining the integrity and consistency of the “judges” we’ve come to recognize as the judiciary? Williams-Yulee court understands to bethe “judiciary”?A judge, in the common sense, adjudicates disputes.He or she does not engage, as a matter of course, in legislative activities such as enactinglaws,regulations,ordinancesorpublicresolutionsvoicingpositionsontopicsofpublicinterest. As a rule, he or she doesn’t engage in executive functions such as overseeing expansion of operations within a state, city or county. He or She does not seek or heed the public’s input in order to fulfill his orher duties.
These characteristics are among others that differentiate members of judiciary from the members of the legislative or executive branches. Even more important, the citizens of the United States gave up the right to the pulpit, and not to the judiciary.
It is possible to see the real nature of Eckhardt’s position as Travis County judge by comparing her role to other branches of government, such first the judicial then the legislative and executive. A title can be used to indicate one thing, but it does not always reflect the substance of what is found in deeper searches. Constitutional county judges are tasked with judicial duties, as previously stated. Texas law allows Eckhardt to surrender them. She was not considered a “judge” but a county executive. Public debate and public input were all intertwined while she traveled on the plane. These are indica of her work and should be taken into consideration when trying to balance the two prongs of the equation. Scott.
In fact, her record showed that the role of Travis County Judge meant she did not perform any judicial functions. She enjoyed the title “judge” but had none of its duties…. She was a judge, but she didn’t have to perform any of the duties. Williams-Yulee as justifying unique treatment of the judiciary are absent here….
Thanks to the Media Law Resource Center MediaLawDaily for the pointer.