The State Commission on Judicial Conduct, which enforces ethical standards for Texas judges, went too far when it rebuked Sarah Eckhardt for actions taken when she was Travis County judge, a special court of review has ruled.
The state agency admonished Eckhardt in December 2020, saying she brought "discredit upon the judiciary" by wearing a pink knitted "pussyhat" while leading a Travis County Commissioners Court discussion on reproductive health care and for making a joke about Gov. Greg Abbott's paralysis at a public forum.
The problem, however, was that as Travis County judge, Eckhardt was working as the county's top executive officer — a job that has no judicial function.
"She enjoyed the title 'judge' but had none of its duties," the three-judge court of review, convened to weigh Eckhardt's appeal, determined in a ruling issued Tuesday.
Ethical rules are meant to preserve the public's trust in fair and unbiased judges, but those rules were not intended to police the actions that Eckhardt took in her political role, the review panel said. In addition to tossing out the public admonition against Eckhardt, the court barred the state agency from taking further action in the matter.
Eckhardt, now a Democratic state senator representing Travis and Bastrop counties, called the ruling a victory for the First Amendment.
"Free speech, especially political speech, is a right on which our democracy depends. I am proud that we fought on and won this appeal rather than accepting the harassing censure of the Texas Commission on Judicial Conduct," she said.
It its public admonition, the least severe of three levels of rebuke available to the agency, the commission criticized Eckhardt for:
A September 2019 comment, delivered during the Texas Tribune Festival, about Abbott's support of a state law limiting Austin and other cities' ability to regulate the removal of trees on private property. Eckhardt suggested that the governor "hates trees because one fell on him," a reference to a 1984 accident that paralyzed Abbott after a large tree limb fell on him while jogging. The comment, for which Eckhardt quickly apologized, "could be perceived as offensive, demeaning, and derogatory towards the governor and others with physical disabilities," the commission said.
In January 2017, Eckhardt wore a pink knitted "pussyhat" while leading a commissioners court meeting discussion of a proclamation supporting reproductive health care. The action, the agency said, "could be perceived as undignified, offensive and inappropriate."
In her appeal of the admonition, Eckhardt argued that wearing the hat was a protected political expression because she was protesting statements that Donald Trump had made prior to becoming president.
The special court of review agreed, saying "politically symbolic garb" has been recognized as protected speech "for innumerable years."
In addition, Eckhardt’s joke about a tree falling on the governor came during a public panel discussion on matters of public interest and concern, the court said.
"Her intended 'joke' may be injudicious and callous; indeed, she admitted as much. Yet, First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed," the court said. "Jokes, parody, and satire often shine light on issues of public interest and concern. ... They remain protected expressions, nonetheless."
The court warned, however, that county judges can still run afoul of the State Commission on Judicial Conduct on disciplinary matters. But given the circumstances of Eckhardt's case, this time the commission exceeded its authority, the panel concluded.
The special court convened to hear Eckhardt's appeal consisted of Chief Justice Brian Quinn of the 7th Court of Appeals, Justice Charles Kreger of the 9th Court of Appeals, and Justice W. Stacy Trotter of the 11th Court of Appeals.
This article originally appeared on Austin American-Statesman: Court determines actions of county judge protected by free speech