A federal appeals court in Cincinnati expressed skepticism that an official on the Tennessee Supreme Court’s Legal Ethics Committee should be able to avoid a lawsuit from an attorney who says his firing for tweeting about Muslims violated his First Amendment rights.
Judges on the US Court of Appeals for the Sixth Circuit during Wednesday’s hearing dismissed the claim that the hiring decision merited immunity because it was a judicial function designed to protect the integrity of the disciplinary process for attorneys practicing in the state.
The case has the potential to illustrate the line between judicial actions that confer immunity from lawsuits and administrative actions that do not, particularly in the context of labor lawsuits alleging discrimination or other wrongdoing in the workplace.
Counsel for the Tennessee Supreme Court’s Board of Professional Responsibility and the board’s lead disciplinarian attorney compared the dismissal to a “permanent denial.”
“They characterize it as a recusal, but isn’t it really just a personnel matter that is typically an administrative function and not a judicial function?” asked Judge Stephanie Davis, a Biden appointee.
Tennessee Assistant Attorney General David Rudolph said the decision to fire Jerry Morgan had elements of both, as it stemmed from allegations in attorney Brian Manookian’s motion to bar Morgan from a disciplinary proceeding over his anti-Muslim tweets. Complaints have also been filed against Morgan in a second matter, Rudolph said.
“Typically, I think of a judicial immunity situation” as involving “a litigant or member of the public trying to sue the actor,” responded Judge John Bush, a Trump-appointed representative. “While this is an internal matter here, it’s not someone outside of the office,” he said, adding, “I think you have that external component to Manookian.”
Morgan’s appeal challenges a federal district judge’s decision granting quasi-judicial immunity to Sandra Garrett, the officer who fired him, allowing her to avoid a lawsuit. He is also appealing the granting of sovereign immunity to the Legal Ethics Board, which the lower court said was an arm of the state.
Garrett fired Morgan after Manookian, a lawyer married to a Muslim woman, petitioned in 2020 to have Morgan barred from his disciplinary case for alleged anti-Muslim bigotry.
Manookian cited several of Morgan’s Twitter posts, including tweets warning that Muslims would “take whatever we give them” and use it “against us,” and declaring that it was the “#1 problem of our time.” is to “stop Muslims” and that the “Constitution does NOT require us to let more Muslims in!”
Garrett cited Manookian’s disqualification request, a separate complaint of another attorney’s misconduct, and Morgan’s duty to treat cases impartially as justification for his termination.
However, Morgan claims that his tweets, which he posted before he joined the Board of Professional Responsibility, are political speech protected by the First Amendment and reflect the views of former President Donald Trump.
“Pretty big award”
At the hearing, Rudolph referred to the 1997 decision of the Sixth Circuit Barrett vs. Harringtonaccording to which said measures such as refoulements are intended to protect the integrity of the judicial process and thus ensure judicial immunity.
“But there’s a pretty big difference between recusal and termination,” Judge replied
Bush questioned Morgan’s attorney, Gary Blackburn of the Blackburn Company, whether the Sixth Circuit Court panel should consider qualifying immunity for Garrett if the court agrees that she should not receive judicial immunity. Qualified immunity protects government officials from constitutional claims when their actions were not a clearly established violation of the law.
“Yes, Your Honor, and I realize how far that goes,” Blackburn said. “The problem is that we think what happened here was clearly wrong and if this case is remanded on that basis the next thing we face will be a request for dismissal on qualified immunity. “
The case is Morgan v. Vol. by Pro. Resp., 6th Cir., No. 22-05200, hearing 10/19/22.