Lawyer Disciplined For Criticizing Judge Loses His Final Appeal
John Topp, a Bonner County lawyer who says his free-speech rights were violated when he was publicly reprimanded for criticizing an Idaho judge, lost a U.S. Supreme Court appeal Monday.
The justices, without comment, let stand the Idaho Supreme Court’s disciplining of Topp, an attorney for Bonner County.
Topp’s appeal had argued that the disciplinary action against him means “no Idaho attorney will be able to engage in public criticism or discussion of the state’s elected judiciary without fear of punishment.”
Topp attended a Bonner County court hearing in 1993 in which county officials sought a ruling by Judge James Michaud that voter approval was unnecessary for a $4.1 million plan to close three landfills and build a new trash transfer station.
Michaud ruled against the county officials. The proceeding was held at a time of great public debate over property taxes in Bonner County and amid efforts to recall some elected officials.
Topp, who was not involved in the tax case, told a radio station reporter that another judge had reached the opposite conclusion in a Shoshone County case. He said the only difference in the two cases was that the other judge “wasn’t worried about the political ramifications.”
Acting on an Idaho State Bar request for disciplinary action, the state Supreme Court concluded by a 4-1 vote that Topp’s statement was not merely opinion and that it falsely impugned the judge’s integrity.
“It is ridiculous to suggest the judiciary has the power to silence its critics,” Topp’s attorney, Breck Seiniger, said. “This is an elected position. Apparently the point is you can’t question the judgment of an elected official.”
But the state Supreme Court ruled that Topp was “objectively reckless” because “a reasonable attorney, in considering these facts, would not have made the statement in question.”
Michael Ochs of the Idaho Bar said all state attorneys are bound by the bar’s code of professional conduct and while judicial criticism is part of the system, making false statements about judges is not.
In the appeal acted on Monday, lawyers for Topp argued that the state court should not have disciplined him without finding that he had acted with “actual malice” - knowledge or reckless disregard of the truth.
The appeal said the state court ruling violates Topp’s free-speech rights because “it punishes discussion of the public acts of elected public officials without proof (Topp) in fact entertained serious doubts as to the truth of his statements.”
, DataTimes