Donna Dutton v. Jimmy Shaffer

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 26a0097p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

HON. DONNA GREENWELL DUTTON,

│

Plaintiff-Appellant/Cross-Appellee, │

│

v. │

> Nos. 25-5352/5391

│

JIMMY SHAFFER, in her official capacity as the │

Executive Secretary of the Judicial Conduct │

Commission; HON. R. MICHAEL SULLIVAN, HON. JEFF │

S. TAYLOR, HON. ELIZABETH CHANDLER, HON. EDDY │

COLEMAN, HON. JOE E. ELLIS, and HON. JANET LIVELY │

MCCAULEY, in their official capacities as Members of │

the Judicial Conduct Commission, │

Defendants-Appellees/Cross-Appellants. │

┘

Appeal from the United States District Court for the Eastern District of Kentucky at Frankfort.

No. 3:23-cv-00039—Gregory F. Van Tatenhove, District Judge.

Argued: March 5, 2026

Decided and Filed: April 1, 2026

Before: GIBBONS, WHITE, and MURPHY, Circuit Judges.

_________________

COUNSEL

ARGUED: Christopher Wiest, CHRIS WIEST, ATTY AT LAW, PLLC, Covington, Kentucky,

for Judge Dutton. Olivia F. Amlung, ADAMS LAW, PLLC, Covington, Kentucky, for the

Secretary and Members of the Judicial Conduct Commission. ON BRIEF: Christopher Wiest,

CHRIS WIEST, ATTY AT LAW, PLLC, Covington, Kentucky, Thomas B. Bruns, BRUNS

CONNELL VOLLMAR & ARMSTRONG, Cincinnati, Ohio, for Judge Dutton. Olivia F.

Amlung, Jeffrey C. Mando, ADAMS LAW, PLLC, Covington, Kentucky, for the Secretary and

Members of the Judicial Conduct Commission.

Nos. 25-5352/5391 Dutton v. Shaffer, et al. Page 2

_________________

OPINION

_________________

JULIA SMITH GIBBONS, Circuit Judge. This appeal arises from Donna Greenwell

Dutton’s lawsuit against the Kentucky Judicial Conduct Commission (JCC) for attempting to

enforce state judicial ethics rules against her. The JCC suspected that Dutton’s statement to a

newspaper during her campaign for reelection ran afoul of three rules in the Kentucky Code of

Judicial Conduct (KCJC). After the JCC sent Dutton a Proposed Agreed Order to discipline her,

Dutton sued Jimmy Shaffer, in her official capacity as Executive Secretary of the JCC, as well as

R. Michael Sullivan, Jeff S. Taylor, Elizabeth Chandler, Eddy Coleman, Joe E. Ellis, and Janet

Lively McCauley, in their official capacities as Members of the JCC.

Alleging that the JCC’s attempt to enforce the KCJC violated her free speech rights under

the First Amendment, Dutton pled one facial challenge and one as-applied challenge to each of

the three rules. The district court granted summary judgment and ordered permanent injunctive

relief in favor of Dutton based on her as-applied challenge to Rule 4.1(A)(11), which prohibits

judicial candidates from making false statements of material fact. Yet the court rejected

Dutton’s as-applied challenges to Rule 1.2, which requires judicial candidates to uphold judicial

independence, integrity, and impartiality, and Rule 2.4(B), which prohibits them from allowing

personal relationships to influence judicial conduct or judgment. The court also denied Dutton

relief based on her facial challenges to all three Rules.

We affirm in part and reverse in part the district court’s order. While the district court

properly granted Dutton’s motion for summary judgment and a permanent injunction based on

her as-applied challenge to Rule 4.1(A)(11), it erred in denying her motion based on her as-

applied challenges to Rules 1.2 and 2.4(B).

I.

Dutton is a sitting Kentucky district court judge in and for the 53rd Judicial Circuit, which

includes Anderson, Shelby, and Spencer Counties. She was a judge when she sought reelection

in 2022. On October 24, 2022, Dutton made a statement to The Sentinel-News. The newspaper

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published her statement in an article titled Hot-Button Issues Keeping Races Lively, which

discussed Dutton’s disciplinary history. The article explained that the JCC had suspended her in

2020 for accusing defense counsel of stealing from her husband and engaging in other

misconduct during a bench conference.

The article referred to Dutton’s conduct in 2020 while presiding over a bench conference

in Commonwealth v. Carter, a state court case. According to the JCC, Dutton “falsely accused a

local attorney of stealing money from her husband’s law firm,” did not recuse herself from

the case, and interfered with the attorney’s right to obtain a video copy of the bench conference.

DE 1-7, JCC Proposed Agreed Order, Page ID 47. Dutton has emphasized that the JCC

disciplined her because she made inappropriate comments—not because she made false

statements.

This suit concerns the JCC’s enforcement against Dutton for the statement she made to

The Sentinel-News about this prior issue. Dutton stated, “‘That issue involved the theft of a large

sum of money by an attorney who also happens to practice law with my opponent.’ . . . ‘I let my

personal feelings about the theft interfere with my courtroom conduct and for that I apologize.

No litigants were affected by my actions, and the only person hurt was me.’” DE 1-4,

Newspaper Article, Page ID 24.

On January 23, 2023, Jimmy Shaffer sent Dutton a letter on behalf of the JCC to inform

her that a disciplinary complaint had been filed against her regarding the “alleged statements

[she] made to The Sentinel-News in response to questions about [her] previous suspension by the

Commission[.]” DE 1-5, JCC 2023 Letter, Page ID 25. The JCC’s letter recounted the

complaint’s allegations that Dutton made false statements in the newspaper article regarding her

previous suspension. In the article, as described above, Dutton stated the following: “That issue

involved the theft of a large sum of money by an attorney who also happens to practice law with

my opponent . . . . No litigants were affected by my actions, and the only person hurt was me.”

Id. The complaint alleged that Dutton’s statements were false because no theft occurred, no theft

was undertaken by an attorney who practiced law with Dutton’s opponent, and the litigant in

Carter was indeed harmed because Dutton’s failure to recuse herself caused him to “live and

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work under bond conditions longer than necessary.” Id. In its letter, the JCC requested that

Dutton provide a “written response to the allegations” by February 27, 2023. Id.

Dutton responded on February 24, 2023. She asserted that her statement to the

newspaper was “fair and accurate” in “addressing both the events precipitating her suspension

and the suspension itself.” DE 1-6, Response to JCC Letter, Page ID 26. Although the JCC’s

letter did not identify specific rules that Dutton had violated, Dutton anticipated potential

enforcement based on “Supreme Court Rule 4.300, [KCJC], Canon 4, or any other provision of

the Code.” Id. Dutton also specifically noted that her “statement . . . did not violate Rule

4.1(A)(11),” which prohibits a judge or judicial candidate from “knowingly, or with reckless

disregard for the truth, mak[ing] any false statement of material fact.” Id. Dutton explained why

each statement was not false.

We recount Dutton’s responses and other evidence pertinent to each statement’s veracity

in the summary-judgment record. Dutton first stated that her prior disciplinary issue “involved

the theft of a large sum of money by an attorney . . . .” DE 1-4, Newspaper Article, Page ID 24.

Some background is in order. Dutton’s husband, C. Gilmore Dutton III, is an attorney in

Kentucky who employed Cole Tomlinson—the defense counsel in Carter. Mr. Dutton

discovered that Tomlinson over several months had “diverted to himself funds from clients that

should have been paid to Mr. Dutton’s firm[.]” DE 31, Verified Am. Compl., Page ID 323;

DE 1-6, Response to JCC Letter, Page ID 27; DE 34-1, Aff. Decl. C. Gilmore Dutton III, Page

ID 370. According to Mr. Dutton, he learned of the theft when his firm received an IRS Form

indicating that the firm had “been paid money from various clients, which were never received in

[the firm’s] office.” DE 34-1, Aff. Decl. C. Gilmore Dutton III, Page ID 370. The fees

Tomlinson stole were “substantial,” but no audit was conducted. DE 1-6, Response to JCC

Letter, Page ID 27–29; DE 34-1, Aff. Decl. C. Gilmore Dutton III, Page ID 371.

After discovering the theft, Mr. Dutton terminated Tomlinson’s employment, reported his

conduct to the Kentucky Bar Counsel, and demanded repayment. Tomlinson tendered Mr.

Dutton a check dated January 30, 2019. The check reflects a payment of $2,150.00 to the

“Dutton Law Office.” DE 1-2, Check Repaying Trust Funds, Page ID 19. Mr. Dutton chose

“not to pursue the complaint” or civil or criminal remedies against Tomlinson, and “it is believed

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that the complaint” was “dismissed by the [Kentucky Bar Association].” DE 1-6, Response to

JCC Letter, Page ID 27; DE 34-1, Aff. Decl. C. Gilmore Dutton III, Page ID 371. Dutton

alleged that this theft was a “fact,” and emphasized that her ethical violations in 2020 were based

on the impropriety of her remarks rather than their veracity. DE 31, Verified Am. Compl., Page

ID 324, 324 n.1.

Next, the JCC flagged Dutton’s statement concerning Tomlinson’s practice of law with

Dutton’s opponent in the Kentucky judicial election. The JCC first implied and later proposed a

finding that the statement was false because Tomlinson did not “practice law” with Dutton’s

opponent. See DE 1-5, JCC 2023 Letter, Page ID 25 (emphasis added); DE 1-7, JCC Proposed

Agreed Order, Page ID 48.

Dutton responded that Tomlinson practiced law or “shared office space with” her

opponent. DE 1-6, Response to JCC Letter, Page ID 27, 29; see DE 31, Verified Am. Compl.,

Page ID 326. Specifically, she alleged that Tomlinson and her opponent, Amanda Wills Cypert,

not only “shared office space” and “secretarial staff,” but also “covered hearings for each other

from time to time.” DE 31, Verified Am. Compl., Page ID 326. Mr. Dutton confirmed that

Tomlinson, at the time of his termination, was in an office-sharing arrangement or casual

attorney association with Dutton’s opponent in an office located at 301 Washington Street,

Shelbyville, KY 40065. Further, Mr. Dutton believed that Tomlinson had worked there since he

was fired. Mr. Dutton also confirmed that “Cypert . . . shares office space, works with, or is

associated with Mr. Tomlinson” at that address. DE 34-1, Aff. Decl. C. Gilmore Dutton III,

Page ID 371–72.

The JCC then cited as false Dutton’s remark that “[n]o litigants were affected by [her]

actions, and the only person hurt was” Dutton. DE 1-5, JCC 2023 Letter, Page ID 25.

According to the complaint, Dutton’s “actions delayed resolution of Mr. Carter’s case and

caused him to live and work under bond conditions longer than necessary,” and Dutton “sought

to harm litigants when [she] failed to recuse from the attorney’s cases.” Id.

Dutton responded that any concern regarding delay in Carter’s case was “speculative”

and unsupported by the record. DE 1-6, Response to JCC Letter, Page ID 31. She noted that her

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statement was an expression of subjective opinion. When Carter appeared without counsel for

his arraignment before Dutton on July 2, 2019, Dutton set his next appearance for July 18, 2019.

Carter appeared with counsel for the first time then and requested that Dutton recuse herself.

During a bench conference to discuss the recusal motion, Dutton accused Tomlinson of theft.

Dutton recused herself later that same day. “[O]nly a couple of hours had lapsed between”

Dutton’s comment and her recusal. DE 41, Depo. Tr. Donna Dutton, Page ID 479.

After Dutton’s recusal, Carter’s case was re-docketed for July 25, 2019; and on that date,

the new judge imposed a sentence of six months deferred and scheduled a review for January 23,

2020. Dutton claimed that it was not clear that Carter’s “case would have been resolved—or

[his] bond conditions modified—earlier but for [her] conduct,” so the JCC’s assertion of falsity

was “speculative[.]” DE 1-6, Response to JCC Letter, Page ID 32. She stated that Carter’s case

was not delayed because of her recusal and that Carter would agree that no litigants were

affected and only she was hurt. Dutton further asserted that it is a stretch to suggest that, even if

her conduct played a role in creating a delay, Carter was harmed by a “one-week delay in the

resolution of his case[.]” Id.

On May 17, 2023, Jeff Mando, the JCC’s outside counsel, sent Dutton’s counsel, Guthrie

True, an email with a “proposed Public Reprimand” attached. DE 39-6, Email Correspondence,

Page ID 563. This proposed reprimand was the JCC’s Proposed Agreed Order, which directly

led to Dutton’s suit. The Proposed Agreed Order, titled “In Re the Matter of: Donna G. Dutton,

District Court Judge 53rd Judicial Circuit,” would have Dutton “waive[] formal proceedings and .

. . agree[] to” its disposition. DE 1-7, JCC Proposed Agreed Order, Page ID 47. In the

document, the JCC concluded the following: (1) Dutton’s remark about the theft was

“inaccurate, and inappropriately attempt[ed] to undermine the severity of her prior judicial

misconduct,” (2) Dutton’s remark about the attorney who committed the theft practicing law

with her opponent was an attempt to “inappropriately fabricate a conspiracy in furtherance of her

election objectives,” and (3) Dutton’s remark that no litigants were harmed was false and

“downplay[ed] the severity of her prior misconduct.” Id. at 47–48.

On these bases, the JCC proposed “that Judge Dutton’s conduct violated” Kentucky

Supreme Court Rule (SCR) 4.020(1)(b)(i), SCR 4.300, and Kentucky Rules of Judicial Conduct

Nos. 25-5352/5391 Dutton v. Shaffer, et al. Page 7

(Rules) 4.1(A)(11), 1.2, and 2.4(B). Id. at 48–49. Rule 4.1(A)(11) bars judges and judicial

candidates from “knowingly,[] or with reckless disregard for the truth, mak[ing] any false

statement of material fact[.]” DE 42-7, Rule 4.1, Page ID 718. Rule 1.2 requires them to uphold

the independence, integrity, and impartiality of the judiciary and Rule 2.4(B) prohibits them from

allowing “family, social, political, financial, or other relationships” to influence their judicial

conduct or judgment. DE 42-14, JCC Proposed Agreed Order, Page ID 754–55. The Order

purported to “publicly reprimand[]” Dutton. DE 1-7, JCC Proposed Agreed Order, Page ID 49.

In response to Mando’s email including the Order, True replied, “Before I send this to

[Dutton], how wedded are you to the language used? I need to know whether there can be

revisions.” DE 39-6, Email Correspondence, Page ID 562. Mando responded that the JCC

“approved the document,” and “[i]f [True has] proposed changes, send them to me and I will

discuss with the Commission.” Id. Dutton believed True could not make any revisions and that

there would be no “negotiations regarding the fact” that the Order would be a public reprimand

and “no negotiation of [its] content.” DE 41, Depo. Tr. Donna Dutton, Page ID 523–25, 527–28.

True has also stated that “Mr. Mando [had] indicated that the [JCC] was wed[ded] to a public

reprimand[.]” DE 43-1, Aff. Decl. J. Guthrie True, Page ID 781. Because she “was not going to

agree to a lie,” Dutton declined to agree to the Order. DE 41, Depo. Tr. Donna Dutton, Page ID

527. And given the JCC’s enforcement activity, Dutton felt “too scared to say anything”

publicly. Id.

II.

On May 24, 2023, Dutton filed her original complaint, which pled as-applied and facial

challenges to the three Rules, and concurrently moved for emergency injunctive relief.

Specifically, Dutton requested a preliminary injunction or temporary restraining order

prohibiting the defendants from instituting formal proceedings against her. On September 15,

2023, the district court denied Dutton’s motion for a preliminary injunction because Dutton had

won her election, so she no longer “face[d] a threat of imminent, irreparable harm.” DE 17,

Order, Page ID 208. Dutton timely appealed.

Nos. 25-5352/5391 Dutton v. Shaffer, et al. Page 8

On January 22, 2024, Dutton filed a verified amended complaint, now operative,

in which she pled both facial and as-applied challenges to Rules 4.1(A)(11), 1.2, and 2.4(B).

Part I of Count I includes Dutton’s as-applied challenges to the Rules, and Part II includes her

facial challenges to the Rules. Each part contains a request for permanent injunctive and

declarative relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201, 2202. The defendants

promptly answered Dutton’s verified amended complaint.

On April 1, 2024, Dutton moved for summary judgment and a permanent injunction

against the defendants, and, in response, the defendants made a cross-motion for summary

judgment on Dutton’s claims. Before the district court ruled on the parties’ motions for

summary judgment, we vacated its decision denying Dutton’s request for a preliminary

injunction. Dutton v. Shaffer, No. 23-5850, 2024 WL 3831884, at *5 (6th Cir. Aug. 15, 2024).

We remanded with instructions for the court to conduct the preliminary injunction analysis “in its

entirety,” as it had analyzed only the irreparable harm factor and not Dutton’s likelihood of

success on the merits. Id.

Following our order, the district court granted in part and denied in part Dutton’s request

for a preliminary injunction. And just over two months later, the court granted in part and denied

in part Dutton’s and the defendants’ motions for summary judgment. The court denied Dutton a

permanent injunction based on her facial challenges to all three Rules and her as-applied

challenges to Rules 1.2 and 2.4(B). The court, however, sustained Dutton’s as-applied challenge

to Rule 4.1(A)(11) because the JCC’s enforcement “r[an] afoul of the First Amendment.”

DE 52, Op. & Order, Page ID 857. On April 3, 2025, the district court entered its judgment

granting Dutton a permanent injunction limited to the defendants’ enforcement of Rule

4.1(A)(11) against Dutton for her statement to The Sentinel-News. Dutton filed her notice of

appeal on April 15, 2025, and the defendants filed their notice of cross-appeal on April 25, 2025.

III.

We may assess whether a plaintiff has standing to sue because standing is vital to our

exercise of subject matter jurisdiction. Loren v. Blue Cross & Blue Shield of Mich., 505 F.3d

598, 607 (6th Cir. 2007). In determining standing at summary judgment, we accept as true the

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plaintiff’s evidence-backed allegations. Kareem v. Cuyahoga Cnty. Bd. of Elections, 95 F.4th

1019, 1022 (6th Cir. 2024).

We review de novo a district court’s grant of summary judgment. McKay v. Federspiel,

823 F.3d 862, 866 (6th Cir. 2016). Summary judgment is appropriate where a party establishes

that there is no genuine issue of material fact and the party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a). A fact is material if it could affect the suit’s outcome under the

governing law, and an issue about a material fact is genuine if the evidence would allow a

reasonable jury to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). We believe the non-moving party’s evidence and draw all justifiable inferences in

that party’s favor. Morales v. Am. Honda Motor Co., 71 F.3d 531, 535 (6th Cir. 1995). These

standards do not change when parties advance cross-motions for summary judgment. Craig

v. Bridges Bros. Trucking LLC, 823 F.3d 382, 387 (6th Cir. 2016). We consider each motion on

its own. Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991).

Regarding a permanent injunction, we review its grant or denial for an abuse of

discretion. United States v. Miami Univ., 294 F.3d 797, 806, 820 (6th Cir. 2002); Kallstrom

v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998). A district court abuses its discretion

when it relies on “clearly erroneous findings of fact or when it improperly applies the law.”

Herman Miller, Inc. v. Palazzetti Imps. & Exps., Inc., 270 F.3d 298, 317 (6th Cir. 2001). To

reverse, we must have a “‘definite and firm conviction that the trial court committed an error of

judgment.’” Pouillon v. City of Owosso, 206 F.3d 711, 714 (6th Cir. 2000) (quoting Monette

v. AM-7-7 Baking Co., 929 F.2d 276, 280 (6th Cir. 1991)).

IV.

The district court granted summary judgment and entered a permanent injunction in favor

of Dutton based on her as-applied challenge to Rule 4.1(A)(11), and it granted summary

judgment in favor of the defendants and denied Dutton relief based on her other challenges.

Dutton appeals the court’s denial of her as-applied challenges to Rules 1.2 and 2.4(B) and her

facial challenges. On cross-appeal, the defendants contest the district court’s grant of summary

judgment and entry of a permanent injunction based on Dutton’s as-applied challenge to Rule

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4.1(A)(11). The defendants also raise on appeal Dutton’s standing to sue and the Proposed

Agreed Order’s admissibility. We consider in turn Dutton’s standing to sue, the Order’s

admissibility, and Dutton’s as-applied challenges to Rules 4.1(A)(11), 1.2, and 2.4(B).

A.

Dutton has standing to bring her pre-enforcement challenge because she has established

injury in fact. She expressed an intent to engage in campaign speech in a manner arguably

proscribed by the Rules. Moreover, she established a credible threat that the JCC will enforce

the Rules against her. See Susan B. Anthony List v. Driehaus, 573 U.S. 149, 160 (2014). We

have also found standing in similar cases. See Fischer v. Thomas, 52 F.4th 303, 307–09 (6th Cir.

2022) (per curiam); Winter v. Wolnitzek, 834 F.3d 681, 687 (6th Cir. 2016).

Although the district court did not assess whether Dutton had standing to bring her First

Amendment claims, the defendants contend that she did not. The defendants contest only the

injury in fact element, which depends in this case on whether the “threatened enforcement of a

law creates an Article III injury.” See Driehaus, 573 U.S. at 158. Specifically, they assert

that Dutton failed to establish a “sufficiently concrete and imminent” injury because she showed

no credible threat that the JCC would enforce the KCJC generally or these Rules specifically.

CA6 R. 22, Defs.’ Br., Page ID 23–24. They reason that the JCC never “actually applied” the

Rules to Dutton, as Dutton’s claims relied on a “draft Agreed Order of Public Reprimand”

written amid “settlement discussions,” and the JCC did not guarantee that it would enforce the

exact Rules identified in its Order if it pursued formal charges. Id. at 22–24 (emphasis in

original).

It is well-established that a litigant subject to a threat of enforcement need not await

“actual arrest, prosecution, or other enforcement action” to establish injury in fact. Driehaus,

573 U.S. at 158; accord MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128–29 (2007). But

the litigant must still show that enforcement is “sufficiently imminent.” Driehaus, 573 U.S. at

159; Crawford v. U.S. Dep’t of Treasury, 868 F.3d 438, 454–55 (6th Cir. 2017).

Threatened enforcement is sufficiently imminent where a party “‘has alleged an intention

to engage in a course of conduct arguably affected with a constitutional interest, but proscribed

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by a statute, and there exists a credible threat of prosecution thereunder.’” Driehaus, 573 U.S. at

160 (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). In

Driehaus, a congressman filed a complaint with the Ohio Elections Commission, urging it to

enforce a false statement statute against a pro-life group. Id. at 153–54. The petitioner group,

Susan B. Anthony List (SBA), filed a pre-enforcement suit based on the First Amendment

because its speech had been “chilled,” it intended to engage in “substantially similar activity in

the future,” and it faced the possibility of future action based on this speech. Id. at 154–55.

First, the Court concluded that SBA intended to engage in a course of conduct affected

with a constitutional interest because it had made statements that it sought to make in future

election cycles and those statements were political speech in a campaign for political office. Id.

at 161–62. Second, the Court reasoned that SBA’s speech was “arguably proscribed” by the

Ohio false statement statute given its broad sweep and the fact that the Commission panel had

“already found probable cause to believe that SBA violated the statute[.]” Id. at 162; see also

Babbitt, 442 U.S. at 298 (requiring that a party show that the statute “arguably” proscribes the

plaintiff’s conduct). Third, the Court proceeded to find that the threat of the statute’s

enforcement was “substantial” based on the following factors: a history of past enforcement, the

Commission’s findings, the ease with which a person could lodge a complaint with the

Commission, the frequency of Commission proceedings, and the fact that the respondents did not

disavow enforcement. Driehaus, 573 U.S. at 164–65.

In accordance with the third part of the Driehaus Court’s analysis, we have determined

that a credible threat exists where a plaintiff alleges a subjective chill and some combination of

these factors, which we refer to as the McKay factors. See McKay, 823 F.3d at 869. No credible

threat of enforcement exists where the record is “‘silent as to whether the [defendants] threatened

to punish or would have punished’” the plaintiff for conduct that might violate the challenged

law. Id. (quoting Morrison v. Bd. of Educ. of Boyd Cnty., 521 F.3d 602, 610 (6th Cir. 2008));

Kareem, 95 F.4th at 1023, 1025–26; Fischer, 52 F.4th at 307–08.

Driehaus compels us to conclude that Dutton has standing. As a preliminary matter,

Dutton alleged and stated under oath that she filed suit because the JCC’s measures chilled her

speech; that she intends to run for a judgeship in 2026, make public appearances, and respond to

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media inquiries as she did in The Sentinel-News; and that she faces the threat of the JCC’s

enforcement for her speech. See Driehaus, 573 U.S. at 154–55. First, Dutton has expressed an

intent to engage in constitutionally protected speech in support of her judicial campaign. See id.

at 161–62. She intends to speak about her qualifications and earlier disciplinary controversy.

And her speech is protected political speech in a campaign for office. See Williams-Yulee v. Fla.

Bar, 575 U.S. 433, 436 (2015) (“Judicial candidates have a First Amendment right to speak in

support of their campaigns.”); Winter, 834 F.3d at 695–96 (“If the Commission wishes to impose

mandatory sanctions on the speech of judicial candidates for office, . . . it must satisfy the rigors

of the First Amendment in doing so.”); see also Kiser v. Reitz, 765 F.3d 601, 608 (6th Cir. 2014);

Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971).

Second, the Rules arguably proscribe Dutton’s speech. See Driehaus, 573 U.S. at 160,

162; see also DE 31, Verified Am. Compl., Page ID 327–30. Rule 4.1(A)(11) bars judicial

candidates from “knowingly,[] or with reckless disregard for the truth, mak[ing] any false

statement of material fact[.]” DE 42-7, Rule 4.1, Page ID 718. Rule 1.2 requires them to uphold

the independence, integrity, and impartiality of the judiciary, and Rule 2.4(B) forbids them from

allowing “family, social, political, financial, or other relationships” to influence their conduct or

judgment. DE 42-14, JCC Proposed Agreed Order, Page ID 754–55. Dutton’s speech regarding

the “theft of a large sum of money” could be deemed a knowingly false statement of material

fact. See, e.g., DE 1-4, Newspaper Article, Page ID 24 (“That issue involved the theft of a large

sum of money by an attorney who also happens to practice law with my opponent [.] . . . No

litigants were affected by my actions, and the only person hurt was me.”). As the defendants

suggest, false statements of material fact regarding prior discipline could be deemed an “affront”

to the judiciary’s integrity. See DE 39, Defs.’ Mot. for Summ. Judgment, Page ID 425. And

making a false “comment about a certain attorney stealing money from [her] husband” could

reflect a personal relationship’s interference with judicial judgment. See DE 41, Depo. Tr.

Donna Dutton, Page ID 477. These are “plausible interpretation[s]” of the Rules, so the Rules

arguably proscribe Dutton’s conduct. See Kentucky v. Yellen, 54 F.4th 325, 337 (6th Cir. 2022).

The JCC, of course, also believed that the Rules barred Dutton’s speech. In its January

2023 letter, the JCC stated that a complaint had been lodged against Dutton based on her

Nos. 25-5352/5391 Dutton v. Shaffer, et al. Page 13

remarks. And in its Proposed Agreed Order, the JCC “conclude[d]” that Dutton’s conduct

violated the three Rules. DE 1-7, JCC Proposed Agreed Order, Page ID 48–49; see Driehaus,

573 U.S. at 162 (“[A] Commission panel here already found probable cause to believe that SBA

violated the statute” when it made a statement similar to those it plans to make). Under these

circumstances, “we have no difficulty concluding that [Dutton’s] intended speech is ‘arguably

proscribed’ by the law.” See Driehaus, 573 U.S. at 162; Winter, 834 F.3d at 687; Boone Cnty.

Republican Party Exec. Comm. v. Wallace, 132 F.4th 406, 415–18 (6th Cir. 2025).

Third, Dutton has established a credible threat of enforcement because she alleged a

subjective chill based on the JCC’s conduct and showed the applicability of at least four of the

McKay factors. See McKay, 823 F.3d at 869. She alleged a subjective chill when she stated that

the “continued threats of enforcement” were preventing her from responding to media inquiries

in the way she responded to The Sentinel-News. DE 31, Verified Am. Compl., Page ID 329–30;

see McKay, 823 F.3d at 869. And she emphasized that she was “too scared to say anything”

publicly after receiving the JCC’s Proposed Agreed Order for a public reprimand. DE 41, Depo.

Tr. Donna Dutton, Page ID 527.

With respect to the first factor, Dutton has shown a history of the JCC’s enforcement

against her, but that past enforcement did not target the “same conduct” at issue here.

Cf. Driehaus, 573 U.S. at 164; Christian Healthcare Ctrs., Inc. v. Nessel, 117 F.4th 826, 848–49

(6th Cir. 2024). The JCC’s earlier enforcement addressed Dutton’s conduct when she presided

over a bench conference and accused a local attorney of stealing from her husband’s law firm.

The enforcement activity at issue here, however, concerns her statement to The Sentinel-News

regarding that earlier controversy. A prior instance of enforcement based on separate conduct

does not necessarily portend a threat of later enforcement. See Driehaus, 573 U.S. at 164; but

see Fischer, 52 F.4th at 308 (finding it relevant that the JCC had previously enforced rules

against other candidates). Yet even assuming this factor cuts against finding a credible threat of

enforcement, the remaining factors do not.

Because the JCC sent Dutton a warning letter regarding her statement and the Proposed

Agreed Order, Dutton established the second factor. See Driehaus, 573 U.S. at 165; Kiser,

765F.3d at 609–10; Berry v. Schmitt, 688 F.3d 290, 296–98 (6th Cir. 2012). Dutton has also

Nos. 25-5352/5391 Dutton v. Shaffer, et al. Page 14

shown that the KCJC encourages enforcement, as anyone can file a complaint with the JCC

about a judge’s or judicial candidate’s conduct. See Driehaus, 573 U.S. at 164; Platt, 769 F.3d

at 452. Shaffer noted in sworn testimony on behalf of the JCC that complaints number in the

“hundreds . . . each year,” the JCC sent nineteen warning letters in one year, and four of those

resulted in action, so enforcement proceedings are frequent. DE 42-5, Aff. Decl. Shaffer, Page

ID 712–14; see Driehaus, 573 U.S. at 164 (finding that proceedings were “not a rare occurrence”

because the Commission handled twenty to eighty complaints per year).

And the defendants did not disavow enforcement against Dutton. See Driehaus, 573 U.S.

at 165; McKay, 823 F.3d at 869. In fact, informal conferences like the one JCC intended to have

necessarily precede enforcement actions. We do not expect plaintiffs to satisfy each McKay

factor. See Fischer, 52 F.4th at 307–08 (“This isn’t a laundry list; the candidates don’t have to

satisfy all the factors.”). Because Dutton alleged a subjective chill and produced evidence to

support these factors, she established a credible threat of enforcement. See McKay, 823 F.3d at

869.

While the Driehaus Court did not base its finding of imminence solely on the

Commission’s proceedings, as SBA’s allegations were backed by the “additional threat” of

criminal prosecution, it did not imply that the “burdensome . . . proceedings” could not have

sufficed. Driehaus, 573 U.S. at 166. We have decided that the threat of administrative

enforcement confers standing based on records much like the one here. See Kiser, 765 F.3d

at 609–10; Winter, 834 F.3d at 687; Berry, 688 F.3d at 296–98; Fischer, 52 F.4th at 308–09;

Platt, 769 F.3d at 452; see also Ohio C.R. Comm’n v. Dayton Christian Schs., Inc., 477 U.S. 619,

625–26 n.1 (1986). Dutton thus has standing to challenge the JCC’s enforcement of Rules

4.1(A)(11), 1.2, and 2.4(B).

B.

The defendants argue that the district court improperly considered the JCC’s Proposed

Agreed Order because the Order is inadmissible pursuant to Federal Rule of Evidence 408. We

disagree because Rule 408 does not exclude the Order.

Nos. 25-5352/5391 Dutton v. Shaffer, et al. Page 15

Rule 408 states that a party cannot introduce evidence of an offer of “valuable

consideration in compromising or attempting to compromise” a claim to “prove or disprove the

validity or amount of a disputed claim[.]” Fed. R. Evid. 408(a)(1). The Rule “excludes evidence

of settlement offers only if such evidence is offered to prove liability for or invalidity of the

claim under negotiation.” Vulcan Hart Corp. (St. Louis Div.) v. N.L.R.B., 718 F.2d 269, 277 (8th

Cir. 1983) (emphasis added).

Rule 408 does not exclude the Order because the claims in the Order are not the claims in

Dutton’s suit. The Order discusses the JCC’s claims that Dutton violated the KCJC, but it does

not discuss Dutton’s constitutional claims against the JCC. See id. Stated differently, the

“claim[s] under negotiation” in the Order are not the claims at issue in this litigation. See id.;

Broadcort Cap. Corp. v. Summa Med. Corp., 972 F.2d 1183, 1194 (10th Cir. 1992) (“Rule 408

did not bar [the] evidence because it related to settlement discussions that involved a different

claim than the one at issue in the current trial.”). In addition, Dutton does not seek to use the

Order to “prove or disprove” the “validity” of her claims or the Commission’s findings. See Fed.

R. Evid. 408(a)(1). She seeks to show the Commission’s “state of mind” about whether she

violated the KCJC. See Croskey v. BMW of N. Am., Inc., 532 F.3d 511, 519 (6th Cir. 2008);

Coakley & Williams Const., Inc. v. Structural Concrete Equip., Inc., 973 F.2d 349, 353–54 (4th

Cir. 1992). Therefore, the district court did not err in considering the Proposed Agreed Order.

C.

The district court properly sustained Dutton’s as-applied challenge to the JCC’s

enforcement of Rule 4.1(A)(11) against her speech. We uphold the court’s decision because the

JCC attempted to apply the Rule to statements that were “readily capable of a true interpretation”

on the summary-judgment record, so its enforcement of Rule 4.1(A)(11) fails strict scrutiny

review. See Winter, 834 F.3d at 693.

Specifically, the district court concluded that it could “conceive of a world” in which

Dutton’s three statements to The Sentinel-News were “readily capable of a true interpretation,”

or “at the very least . . . not made ‘knowingly, or with reckless disregard for truth.’” DE 52, Op.

& Order, Page ID 851–52 (quoting Rule 4.1(A)(11)). The court determined that Dutton’s remark

Nos. 25-5352/5391 Dutton v. Shaffer, et al. Page 16

that the issue involved the theft of a large sum by an attorney who happened to practice law with

her opponent could be deemed either an “opinion” or a “misleading statement on her prior

disciplinary action,” both of which are protected under the First Amendment. Id. at 853–54.

And it decided that Dutton’s statement that no litigants were affected by her actions and she was

the only person hurt was a “matter of opinion and not subject to Rule 4.1(A)(11).” Id. at 854–55.

The defendants stress that the record “contains sufficient evidence” that Dutton’s statement was

“actually and materially false,” not a protected opinion or negligent misstatement. CA6 R. 22,

Defs.’ Br., Page ID 30, 32.

First, strict scrutiny applies to Rules 4.1(A)(11), 1.2, and 2.4(B). Each Rule is a content-

based restriction on judicial candidates’ speech, preventing speech “about some subjects . . . but

not others,” and referring to and being “justified with reference to” the contents of candidates’

speech. See Carey v. Wolnitzek, 614 F.3d 189, 199 (6th Cir. 2010) (citation modified) (quoting

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). Indeed, strict scrutiny “applies to any

State’s efforts to regulate the campaign speech of sitting or aspiring judges.” Winter, 834 F.3d at

688; see Weaver v. Bonner, 309 F.3d 1312, 1319 (11th Cir. 2002). Rules facing strict scrutiny

are “presumptively invalid” unless the restriction discriminates based on certain classes of

unprotected speech, none of which is relevant here. See Carey, 614 F.3d at 199 (listing the

“categorical carve-outs,” including fighting words or incitement, defamation, obscenity, and

child pornography). And these Rules target a “core area of free-speech protection: elections.”

Id.

Because strict scrutiny applies to Rule 4.1(A)(11), the JCC may enforce the Rule against

Dutton’s speech only in a manner “‘narrowly tailored to serve a compelling interest.’” See

O’Toole v. O’Connor, 802 F.3d 783, 789 (6th Cir. 2015) (quoting Williams-Yulee, 575 U.S. at

442). We have already decided that a constitutional prohibition on false statements—one nearly

identical to Rule 4.1(A)(11)—cannot survive strict scrutiny as applied to a statement that is

“readily capable of a true interpretation[.]” Winter, 834 F.3d at 693. Such an application is not

narrowly tailored because it “outstrips” a state’s interest in “ensuring candidates don’t tell

knowing lies and thus fails to give candidates the ‘breathing space’ necessary to free debate.” Id.

(quoting Brown v. Hartlage, 456 U.S. 45, 60–61 (1982)). And an application of Rule 4.1(A)(11)

Nos. 25-5352/5391 Dutton v. Shaffer, et al. Page 17

to speech that is not false would not further Kentucky’s compelling interest in preventing

candidates from lying. See id.; see also Berry, 688 F.3d at 303 (statements of opinion that do not

“‘imply a false assertion of fact’” and seemingly factual statements that “‘cannot reasonably be

interpreted as stating actual facts about their target’” are protected (quoting Standing Comm. on

Discipline of U.S. Dist. Ct. for Cent. Dist. of Cal. v. Yagman, 55 F.3d 1430, 1438 (9th Cir.

1995))).

We agree that the Rule’s application to Dutton’s speech fails strict scrutiny review

because it is not narrowly tailored to serve a compelling interest. The defendants stretched the

Rule’s reach beyond materially false statements of fact to regulate speech that was either

opinion-based or “readily capable of a true interpretation,” and they lacked a compelling interest

in doing so. See Winter, 834 F.3d at 693.

First, the JCC’s attempt to enforce Rule 4.1(A)(11) against Dutton based on her statement

about the theft cannot survive strict scrutiny because it is an attempt to enforce a prohibition

on false statements to speech that is “readily capable of a true interpretation[.]” See Winter,

834 F.3d at 693. Dutton’s statement that the issue “involved the theft of a large sum of money

by an attorney” is largely uncontroverted. See DE 1-4, Newspaper Article, Page ID 24. Mr.

Dutton stated that he discovered Tomlinson’s diversion of client funds that should have been

paid to Mr. Dutton’s law firm; he discovered the theft after his firm received an IRS Form

indicating it had been paid money that was never received; and Tomlinson stole “between

$25,000 and $50,000” in fees. DE 34-1, Aff. Decl. C. Gilmore Dutton III, Page ID 370–71. The

check that Tomlinson provided Mr. Dutton for part of the stolen funds reflected a payment of

$2,150.00 to the Dutton Law Office on January 30, 2019. And Dutton stated that the theft

occurred, even if her comment about it during the bench conference was inappropriate.

While the defendants attempted to enforce Rule 4.1(A)(11) against Dutton by labeling

this statement “inaccurate,” they do not explain how it was false. DE 1-7, JCC Proposed Agreed

Order, Page ID 47; accord DE 1-5, JCC 2023 Letter, Page ID 25; DE 39, Defs.’ Mot. for Summ.

Judgment, Page ID 421. As the district court reasoned, one cannot conclude that Tomlinson did

not engage in the conduct Dutton described just because the Kentucky Bar Association (KBA)

declined to discipline him and he was not criminally charged. Shaffer acknowledged on behalf

Nos. 25-5352/5391 Dutton v. Shaffer, et al. Page 18

of the JCC that Tomlinson’s conduct would qualify as theft if he was not entitled to the money,

that Shaffer had seen the documents indicating that Tomlinson diverted or kept for himself client

fees or escrow funds, and that the absence of an investigation or of criminal charges does not

mean that no theft occurred. The JCC’s attempt to enforce Rule 4.1(A)(11) against Dutton was

unconstitutional. See Winter, 834 F.3d at 693; Brown, 456 U.S. at 60–61; O’Toole, 802 F.3d at

789.

Moreover, the JCC could not constitutionally enforce Rule 4.1(A)(11) against Dutton for

stating that Tomlinson “also happens to practice law with [her] opponent” in the election because

this statement was also “readily capable of a true interpretation[.]” See DE 1-4, Newspaper

Article, Page ID 24; Winter, 834 F.3d at 693. The JCC has stated that it sought to enforce the

Rule against Dutton because Tomlinson did not “practice law” with Cypert. See DE 1-5, JCC

2023 Letter, Page ID 25 (emphasis added); accord DE 1-7, JCC Proposed Agreed Order, Page

ID 48; DE 42, Depo. Tr. Shaffer, Page ID 678–80, 689–90.

Dutton alleged that Tomlinson “practiced law with” Cypert, as they shared office space,

shared secretarial staff, and covered hearings for each other from “time to time.” See DE 31,

Verified Am. Compl., Page ID 326. And Mr. Dutton stated that he believed Tomlinson was in

an office-sharing arrangement or a casual attorney association with Cypert at the time that Mr.

Dutton fired him, Tomlinson had worked there since he was fired, and Tomlinson and Cypert

shared office space, worked together, or were associated together in one office. DE 34-1, Aff.

Decl. C. Gilmore Dutton III, Page ID 371–72.

The JCC’s basis for claiming that Tomlinson and Cypert did not practice law together is

unclear. Its Proposed Agreed Order indicated that the two attorneys “operated separate practices

and kept separate office spaces,” and that Dutton misrepresented their relationship in a

“transparent effort to inappropriately fabricate a conspiracy in furtherance of her election

objectives . . . to downplay the severity of her prior misconduct.” DE 1-7, JCC Proposed Agreed

Order, Page ID 48. Shaffer acknowledged that the two attorneys shared office space but asserted

that sharing office space cannot reasonably be understood as practicing law because some

attorneys share a space without practicing together. Shaffer also acknowledged that there are no

grounds to dispute that Tomlinson shared office space and support staff with Cypert, and that she

Nos. 25-5352/5391 Dutton v. Shaffer, et al. Page 19

did not know whether there was any reason to dispute that Tomlinson and Cypert occasionally

covered cases for each other. The JCC labeled Dutton’s statement as a false statement of

material fact because it disagreed with the term that Dutton used to describe two attorneys

sharing office space and covering the same cases—not because Dutton’s factual bases were

incorrect.

Yet the JCC’s disagreement with Dutton’s choice of words cannot remove her speech

from the First Amendment’s range of protection because disagreement is not evidence of falsity.

Shaffer and the JCC adduced no facts besides their own Order’s language that the two attorneys

were not practicing law together. Shaffer did not dispute that the attorneys shared space and

resources and that she did not know whether they covered cases for each other. In our view,

Dutton’s claim that two lawyers who share office space, support staff, and case-related duties are

practicing law together is “readily capable of a true interpretation[.]” See Winter, 834 F.3d at

693. What qualifies as “practicing law” depends on the relevant definition but Shaffer noted that

the JCC has no such definition. DE 42, Depo. Tr. Shaffer, Page ID 680. And while Shaffer

noted that such an inquiry would be “fact specific,” she marshaled no facts to support the JCC’s

position. Id. The JCC cannot enforce Rule 4.1(A)(11) against Dutton for stating that the lawyers

practiced law together because the record reflects that the statement was “readily capable of a

true interpretation,” as the JCC has advanced insufficient evidence of falsity. See Winter,

834 F.3d at 693.

The JCC also impermissibly attempted to enforce Rule 4.1(A)(11) against Dutton for

stating that no litigants were affected by her actions and only she was hurt. Her assertions were

not statements of fact subject to Rule 4.1(A)(11)—they were opinions and thus outside the

Rule’s reach. See DE 1-4, Newspaper Article, Page ID 24; DE 42-7, Rule 4.1, Page ID 718;

see also Winter, 834 F.3d at 694 (“But only a ban on conscious falsehoods satisfies strict

scrutiny.” (emphasis added)). And to the extent that Dutton’s statement implied assertions of

fact regarding the people affected and hurt by her disciplinary misconduct, those assertions were

capable of a “true interpretation” and not false on this record. See Winter, 834 F.3d at 693;

Berry, 688 F.3d at 303 (“An opinion can ‘be the basis for sanctions only if it could reasonably be

Nos. 25-5352/5391 Dutton v. Shaffer, et al. Page 20

understood as declaring or implying actual facts capable of being proved true or false.’” (quoting

Yagman, 55 F.3d at 1438–39)).

When Carter appeared with counsel for the first time on July 18, 2019, he had already

requested that Dutton recuse herself. Dutton recused herself that same day—only a “couple of

hours” later. DE 41, Depo. Tr. Donna Dutton, Page ID 479. After Dutton’s recusal, Carter’s

case was re-docketed for a week later; and on that date, the new judge imposed a sentence of six

months deferred and scheduled a review in the case for January 23, 2020. Dutton asserted that it

was not clear that Carter’s “case would have been resolved—or [his] bond conditions

modified—earlier but for Judge Dutton’s conduct,” and that his case was not delayed because of

her recusal. DE 1-6, Response to JCC Letter, Page ID 32.

Shaffer stated that the “only litigant” who could have been affected by a delay in recusal

was Carter. DE 42, Depo. Tr. Shaffer, Page ID 686–87. The JCC thus labeled as false Dutton’s

statement that no litigants were “affected” and only she was “hurt,” DE 1-4, Newspaper Article,

Page ID 24, because Dutton’s actions “delayed resolution” of Carter’s case and “caused him to

live and work under bond conditions longer than necessary.” DE 1-5, JCC 2023 Letter, Page ID

25; see DE 39, Defs.’ Mot. for Summ. Judgment, Page ID 421–22.

The record does not support the JCC’s claim because there is no evidence that Dutton’s

actions delayed the resolution of Carter’s case. First, the JCC specifically stated that Dutton

failed to recuse herself. But Shaffer conceded that Dutton “recused [herself] the same day”

Carter requested that she do so. DE 42, Depo. Tr. Shaffer, Page ID 696. So there is no evidence

that Dutton’s failure to recuse herself affected or hurt Carter. And although Shaffer noted that

Dutton failed to “immediately” recuse herself, Shaffer stated that the outcome in Carter’s case

would not have changed whether Dutton “recused [herself] at the hearing or several hours

later[.]” Id. at 667, 683. The JCC defendants presented no evidence that the few hours that

Dutton took to recuse herself affected or hurt Mr. Carter. And the JCC advanced no evidence

that Carter’s case would have been resolved earlier or his bond conditions would have been

shorter had Dutton recused herself sooner. To the extent that Dutton’s assertions implied

statements of fact, they implied statements “readily capable of a true interpretation[.]” See

Winter, 834 F.3d at 693; Berry, 688 F.3d at 303.

Nos. 25-5352/5391 Dutton v. Shaffer, et al. Page 21

Therefore, we agree with the district court’s conclusion that the JCC’s enforcement of

Rule 4.1(A)(11) against Dutton’s speech failed to give Dutton the requisite “breathing space” to

exercise her First Amendment rights. See DE 52, Op. & Order, Page ID 851 (internal quotation

marks omitted) (quoting Brown, 456 U.S. at 61).

D.

We disagree with the district court’s conclusion that Dutton failed to carry her burden on

her as-applied challenges to the JCC’s enforcement of Rules 1.2 and 2.4(B). Dutton carried her

burden at summary judgment of showing that the JCC sought to enforce Rules 1.2 and 2.4(B)

against statements that were “readily capable of a true interpretation[.]” See Winter, 834 F.3d at

693. And we conclude that the defendants, as cross-movants for summary judgment, failed to

carry their burden of showing that their enforcement withstands strict scrutiny review under the

First Amendment.

The JCC’s Proposed Agreed Order concluded that Dutton violated Rules 1.2 and 2.4(B).

And at summary judgment, the defendants likewise maintained that Dutton violated Rules

1.2 and 2.4(B) because she made materially false statements. The district court stated that

Dutton did not explain how the enforcement of Rules 1.2 and 2.4(B) burdened her free speech

rights. It noted that it was required to draw “all reasonable inferences against the party whose

motion is under consideration,” Dutton bore the burden at summary judgment, and she did not

address why those Rules were unconstitutionally applied to her speech. DE 52, Op. & Order,

Page ID 848–49. Yet the court failed to evaluate Dutton’s arguments and to apply

summary-judgment standards to the defendants as cross-movants. See Taft Broad. Co., 929 F.2d

at 248. And in concluding that the defendants “passed strict scrutiny under both rules,” the court

failed to ask whether their application of the Rules passed strict scrutiny—it asked only whether

their text did. DE 52, Op. & Order, Page ID 843, 849; see N.Y. State Club Ass’n v. City of N.Y.,

487 U.S. 1, 14 (1988) (stating that facial overbreadth challenges require a showing from the

law’s “text” that the law cannot be applied constitutionally in a substantial number of instances).

The defendants claimed that they were entitled to summary judgment because Dutton’s

“statements were materially false,” so Dutton violated her obligation to the judiciary’s values

Nos. 25-5352/5391 Dutton v. Shaffer, et al. Page 22

under Rule 1.2 and her obligation to refrain from allowing personal relationships to interfere

with her role under Rule 2.4(B). DE 39, Defs.’ Mot. for Summ. Judgment, Page ID 423–25.

Notably, the defendants staked their enforcement’s constitutionality on the theory that Dutton

made “statements that are consciously false with the intention of deceiving the public” and those

“materially false statements” were “an affront” to the judiciary. See id. at 424–25. Yet they did

not articulate in their warning letter, Proposed Agreed Order, or motion papers a single

alternative basis why Dutton’s statements ran afoul of Rules 1.2 and 2.4(B). At its core, their

justification for enforcement was that both “Rules 1.2 and 2.4(B) essentially rise and fall with

these materially false statements.” Id. at 425 (emphasis added); accord CA6 R. 22, Defs.’ Br.,

Page ID 26–27 (“Rules 1.2 and 2.4(B) have cascading application . . . . Both Rules 1.2 and

2.4(B) essentially rise and fall contingently with underlying misconduct—if misconduct

occurred, these Rules are implicated.”).

The defendants’ lone justification for enforcing Rules 1.2 and 2.4(B) lacked any

evidentiary support. As we explained in our analysis of Dutton’s as-applied challenge to Rule

4.1(A)(11), the record does not support the defendants’ claims that Dutton’s statements were

false. Because no evidence sustains the defendants’ sole predicate for enforcing Rules 1.2 and

2.4(B) against Dutton, the defendants failed to establish the absence of a genuine issue of

material fact regarding the constitutionality of Rules 1.2 and 2.4(B) as applied to Dutton and they

were not entitled to judgment as a matter of law.

We hold that the JCC’s application of Rules 1.2 and 2.4(B) to Dutton’s speech fails strict

scrutiny review. The JCC sought to enforce the Rules against speech that was “readily capable

of a true interpretation” without evidence of falsity and the JCC provided no alternative,

factually supported basis on which to enforce the Rules against Dutton. See Winter, 834 F.3d at

693. The defendants cannot sidestep the First Amendment’s limits on enforcing a false

statements prohibition against statements that are “readily capable of a true interpretation” by

applying other rules to that same speech without an independent basis for enforcement. See id.

Dutton, on the other hand, carried her burden at summary judgment. She explained that

the defendants applied Rules 1.2 and 2.4(B) to her statements on the basis that they were false,

but her statements were not false, and the defendants could not constitutionally enforce these

Nos. 25-5352/5391 Dutton v. Shaffer, et al. Page 23

prohibitions against statements “‘readily capable of a true interpretation.’” DE 34, Pl.’s Mot. for

Summ. Judgment, Page ID 359–64 (quoting Winter, 834 F.3d at 693). Because she showed that

the defendants attempted to enforce Rules 1.2 and 2.4(B) against statements protected under

Winter without an alternative basis for those Rules’ application, Dutton established that there is

no genuine issue of material fact and that she is entitled to judgment as a matter of law on her as-

applied challenges to Rules 1.2 and 2.4(B).

We need not reach Dutton’s facial challenges to Rules 4.1(A)(11), 1.2, and 2.4(B)

because she is entitled to summary judgment on her three as-applied challenges. See Ohio

Citizen Action v. City of Englewood, 671 F.3d 564, 570–71 (6th Cir. 2012); Bd. of Trs. of State

Univ. of N.Y. v. Fox, 492 U.S. 469, 484–85 (1989).

E.

The standard for a permanent injunction is “essentially the same” as for a preliminary

injunction, but a plaintiff must show “actual success”—not a mere “likelihood of success on the

merits[.]” Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987); see Am. C.L.

Union of Ky. v. McCreary County, 607 F.3d 439, 445 (6th Cir. 2010). The movant must also

show that the absence of an injunction will likely “result in irreparable harm.” Kallstrom,

136 F.3d at 1068. We presume irreparable injury when “constitutional rights are threatened or

impaired[.]” Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012); accord Am. C.L.

Union of Ky. v. McCreary County, 354 F.3d 438, 445 (6th Cir. 2003). The injunction must also

not cause “substantial harm to others” and it must serve the public interest. City of Pontiac

Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (per curiam) (en banc).

The district court properly granted Dutton a permanent injunction based on her as-applied

challenge to Rule 4.1(A)(11), but it abused its discretion because it improperly applied the law in

denying her the same relief based on her as-applied challenges to Rules 1.2 and 2.4(B). See

Herman Miller, Inc., 270 F.3d at 317. Dutton showed that the JCC’s enforcement of all three

Rules as applied to her speech violated her constitutional rights, so she established actual

success. See Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998). And it is

“well-settled” that even short deprivations of First Amendment freedoms “unquestionably

Nos. 25-5352/5391 Dutton v. Shaffer, et al. Page 24

constitute[] irreparable injury,” so Dutton has established irreparable harm because the

defendants violated her free speech rights. See id. (quoting Elrod v. Burns, 427 U.S. 347,

373 (1976) (plurality opinion)).

Moreover, the entry of a permanent injunction enjoining the application of the Rules to

Dutton’s speech poses no harm to the public. And while the JCC has an interest in

constitutionally enforcing the KCJC, it suffers no harm from our preventing its unconstitutional

enforcement of the Rules. See Connection Distrib. Co., 154 F.3d at 288. Finally, it is “always in

the public interest to prevent the violation of a party’s constitutional rights.” G & V Lounge, Inc.

v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994); accord Dayton Area

Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995). Dutton is entitled

to a permanent injunction enjoining the enforcement of Rules 4.1(A)(11), 1.2, and 2.4(B) as

applied to her speech.

V.

For the foregoing reasons, we affirm the district court’s grant of partial summary

judgment to Dutton based on her as-applied challenge to Rule 4.1(A)(11) and affirm its entry of

a permanent injunction enjoining the JCC’s enforcement of Rule 4.1(A)(11) against Dutton. We

reverse the district court’s grant of partial summary judgment to the JCC with respect to its

enforcement of Rules 1.2 and 2.4(B) against Dutton and reverse its denial of a permanent

injunction enjoining the JCC’s enforcement of Rules 1.2 and 2.4(B). On remand, the district

court is ordered to grant summary judgment to Dutton based on her as-applied challenges to

Rules 1.2 and 2.4(B) and enter a permanent injunction enjoining the JCC’s enforcement of those

Rules against Dutton.