Court Oks Reprimand For Attorney Remark About Judge Not Protected By First Amendment

A Bonner County lawyer’s comment that a judge’s decision may have been influenced by politics was not an opinion protected by the First Amendment, the Idaho Supreme Court says.

The court on Tuesday approved a recommendation from the Professional Conduct Board of the Idaho State Bar Association that a public reprimand be issued to John R. Topp.

“I think this is a very sad day for the First Amendment to the U.S. Constitution,” Topp said. “They are saying one can infer and imply something about a judge and be sanctioned for it. It’s an infringement on my First Amendment right.”

Topp said he has a right to disagree with a judge’s ruling and is already working on an appeal of the case to the U.S. Supreme Court.

The state court decision was a 4-1 ruling, with Justice Gerald Schroeder dissenting. In his view, it was an opinion protected by the First Amendment.

The court said in 1993, Bonner County requested “judicial confirmation” of a proposed $4.1 million expenditure to close three county landfills and construct a transfer station to haul garbage out of state.

The county argued it was an “ordinary and necessary” expense and thus not subject to voter approval.

District Judge James Michaud ruled against the request. Topp was a part-time attorney for the county but did not take part in the hearing. When Michaud announced his ruling, Topp in interviews with news media suggested that Michaud’s decision was motivated by political concerns.

The Idaho State Bar filed a complaint against Topp for questioning the qualifications or integrity of a judge. He argued that his statements were protected by the free speech provisions of the First Amendment.

The Supreme Court ruled that the lawyer association had established that Topp’s statement about the judge’s motivation was false, that he was “objectively reckless” in making the statement to news media and a reasonable attorney, considering all the circumstances, would not have made such a statement.

Schroeder said a “reader or listener with common sense” would understand that Topp’s statement was his opinion, protected by the First Amendment.