Petition for Writ of Certiorari — Laura Hendrix, Executive Secretary, Kentucky Judicial Conduct Commission, et al., Petitioners v. Donna Greenwell Dutton, Judge, 53rd Judicial District, Division 2, Kentucky

Supreme Court briefAug 3, 2026

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Text

No. 26In the

Supreme Court of the United States

LAURA HENDRIX, et al.,

Petitioners,

HON. DONNA GREENWELL DUTTON,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

Olivia F. A mlung

Counsel of Record

Jeffrey C. Mando

A dams Law, PLLC

40 West Pike Street

Covington, KY 41011

(859) 394-6200

oamlung@adamsattorneys.com

Counsel for Petitioners,

Laura Hendrix, Hon. Carroll M. “Trip”

Redford III, Hon. Glenn E. Acree, Hon.

Amy S. Anderson, Hon. Eddy Coleman,

Dr. Joe Ellis, and Janet Lively

McCauley, in their respective official

capacities with the Kentucky Judicial

Conduct Commission

132353

(800) 274-3321 • (800) 359-6859

QUESTION PRESENTED

This Court has long recognized that Article III permits

pre-enforcement constitutional challenges only where a

plaintiff faces a sufficiently credible threat that a law will

be enforced against her. That requirement preserves the

constitutional limits on federal jurisdiction while allowing

challenges to genuinely imminent enforcement actions

before constitutional rights are violated.

State judicial-conduct commissions, however, ordinarily

begin with confidential, preliminary investigations in

response to citizen complaints. At that stage, the Commission

makes no determination regarding the complaint’s validity

or the accuracy of its allegations. Under Kentucky’s Rules,

the Commission merely notifies the judge of the complaint,

requests a response, and conducts a preliminary inquiry

to determine whether formal disciplinary proceedings

are warranted. No discipline may be imposed unless the

Commission later authorizes formal charges.

The Sixth Circuit held that these preliminary, nonfinal

investigative steps created a sufficiently credible threat

of enforcement to confer Article III standing for a preenforcement First Amendment challenge, effectively

permitting federal intervention before the Commission

completed its investigation or decided whether to pursue

formal charges.

T he question present ed is: W hether a st at e

judicial-conduct commission’s confidential, preliminary

investigative actions preceding the initiation of formal

disciplinary proceedings create a sufficiently credible

threat of enforcement to confer Article III standing for a

pre-enforcement First Amendment challenge.

PARTIES TO THE PROCEEDING

Petitioners are Laura Hendrix; Hon. Carroll M. “Trip”

Redford III; Hon. Glenn E. Acree; Hon. Amy S. Anderson;

Hon. Eddy Coleman; Dr. Joe Ellis; and Janet Lively

McCauley, in their respective official capacities with the

Kentucky Judicial Conduct Commission. The Respondent

is Hon. Donna Greenwell Dutton. Pursuant to Supreme

Court Rule 35(3), the official-capacity respondents have

been updated to reflect the automatic substitution of the

current officeholders for their predecessors.

iii

STATEMENT OF RELATED PROCEEDINGS

This case arises from and is related to the following

proceedings:

• Dutton v. Shaffer, Nos. 25-5352/25-5391, United

States Court of Appeals for the Sixth Circuit.

Judgment entered April 1, 2026; petition for

rehearing en banc denied May 5, 2026.

• Dutton v. Shaffer, No. 3:23-cv-00039-GFVT-EBA,

United States District Court for the Eastern

District of Kentucky. Opinion and Order entered

March 27, 2025; judgment entered April 3, 2025.

• Dutton v. Shaffer, No. 23-5850, United States Court

of Appeals for the Sixth Circuit. Order vacating

denial of preliminary injunction entered August

15, 2024.

• Dutton v. Shaffer, No. 3:23-cv-00039-GFVT-EBA,

United States District Court for the Eastern

District of Kentucky, Opinion and Order entered

September 15, 2023.

There are no additional proceedings in any court that

are directly related to these cases within the meaning of

this Court’s Rule 14.1(b)(iii).

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . . ii

STATEMENT OF RELATED PROCEEDINGS . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

PETITION FOR WRIT OF CERTIORARI . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BASIS FOR JURISDICTION . . . . . . . . . . . . . . . . . . . . . 1

CONST I T U T IONA L A N D STAT U T ORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 2

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 6

A. Kentucky’s Judicial Disciplinary Process . . . . . . 6

B. The Commission’s Preliminary Investigation

of Judge Dutton . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Table of Contents

Page

C. District Court and Interlocutory Appeal

Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

D. The Recent Sixth Circuit Proceedings . . . . . . . 10

REASONS FOR GRANTING THE PETITION . . . . 12

THIS CA SE PRESENTS A N

IMPORTANT, RECURRING ARTICLE

III QUESTION THAT THIS COURT HAS

EXPRESSLY LEFT UNRESOLVED . . . . . . 13

II. THE SIXTH CIRCUIT’S EXPANSION

OF SU S A N B . A N T HON Y L IST

U NDERMINES K EN T UCK Y ’ S

CONSTITUTIONALLY AUTHORIZED

SYSTEM FOR DISCIPLINING ITS

JUDICIARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

III. THE DECISION BELOW EXTENDS

THIS COURT’S PRE-ENFORCEMENTSTA N DING CA SES BEYON D

T HE ENFORCEM EN T T HREATS

THOSE CASES REQUIRED . . . . . . . . . . . . . . 18

IV. T H E QU E S T ION I S OU T C OM E D E T E R M I N A T I V E , C L E A N LY

PRESENTED, AND SUITABLE FOR

THIS COURT’S REVIEW NOW . . . . . . . . . . . 21

Table of Contents

Page

THIS COURT SHOULD GRANT THE

PETITION TO AFFIRM THAT ARTICLE

III DOES NOT CON V ERT EV ERY

PRELIMINA RY INQUIRY INTO A

J U S T IC I A BL E EN F OR C EM EN T

CONTROVERSY . . . . . . . . . . . . . . . . . . . . . . . . . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

vii

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, FILED APRIL 1, 2026 . . . . . . . 1a

APPENDIX B — OPINION AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF KENTUCKY,

CENTRAL DIVISION AT FRANKFORT,

FILED MARCH 27, 2025 . . . . . . . . . . . . . . . . . . . . . 38a

A P P E N DI X C — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR T H E SI X T H CI RCU I T, FI LED

AUGUST 15, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58a

APPENDIX D — OPINION AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF KENTUCKY,

CENTRAL DIVISION AT FRANKFORT,

FILED SEPTEMBER 15, 2023 . . . . . . . . . . . . . . . 71a

A P P E N DI X E — O R D E R D E N Y I N G

REHEARING OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH

CIRCUIT, FILED MAY 5, 2026 . . . . . . . . . . . . . . . 85a

viii

TABLE OF CITED AUTHORITIES

Page

Cases

Babbitt v. United Farm Workers National Union,

442 U.S. 289 (1979) . . . . . . . . . . . . . . . . . . . . . . . . 13, 18

Caperton v. A.T. Massey Coal Co.,

556 U.S. 868 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Clapper v. Amnesty International USA,

568 U.S. 398 (2013) . . . . . . . . . . . . . . . . . . . . . . 18-19, 22

Dutton v. Shaffer,

171 F.4th 858 (6th Cir. 2026) . . . . . . . . . . . . . . . . . . . . 1

Dutton v. Shaffer,

No. 25-5352/5391, 2026 LX 273856

(6th Cir. May 5, 2026) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Dutton v. Shaffer,

779 F. Supp. 3d 924 (E.D. Ky. 2025) . . . . . . . . . . . . . . 1

First Choice Women’s Res. Ctrs., Inc. v.

Davenport,

146 S. Ct. 1114 (2026) . . . . . . . . . . . . . . . . . . . . . . . . . 19

MacDonald, Sommer & Frates v. Yolo Cnty.,

477 U.S. 340 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Middlesex County Ethics Committee v.

Garden State Bar Ass’n,

457 U.S. 423 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Cited Authorities

Page

Pakdel v. City & Cnty. of San Francisco,

594 U.S. 474 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) . . . . . . . . . . . . . 13, 14, 17, 18, 21, 22

Williams-Yulee v. Florida Bar,

575 U.S. 433 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Constitutional Provisions

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . 4, 9, 16, 21

U.S. Const. art. III, § 2, cl 1 . . . . . . . 2, 4, 5, 10, 11, 12, 13,

14, 16, 17, 20, 21, 22

Statutes and Other Authorities

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Ky. Const. § 121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6, 14

Ky. Supreme Court Rule 4.020(1)(b)(i)(v) . . . . . . . . . 2-3, 6

Ky. Supreme Court Rule 4.170 . . . . . . 2, 6, 7, 8, 15, 20, 21

Ky. Supreme Court Rule 4.180-4.290 . . . . . . . . . . . . . . . . 6

Ky. Supreme Court Rule 4.300 . . . . . . . . . . . . . . . . . . . . . 3

Cited Authorities

Page

Sup. Ct. Rule 1.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Sup. Ct. Rule 2.4(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Sup. Ct. Rule 4.1(A)(11) . . . . . . . . . . . . . 7, 9, 10, 11, 16, 20

Sup. Ct. Rule 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 21

PETITION FOR WRIT OF CERTIORARI

Petitioners Laura Hendrix; Hon. Carroll M. “Trip”

Redford III; Hon. Glenn E. Acree; Hon. Amy S. Anderson;

Hon. Eddy Coleman, Dr. Joe Ellis, and Janet Lively

McCauley, in their respective official capacities with the

Kentucky Judicial Conduct Commission, respectfully

petitions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Sixth Circuit.

OPINIONS BELOW

The Opinion of the United States Court of Appeals

for the Sixth Circuit (Pet. App. 1a) is reported at Dutton

v. Shaffer, 171 F.4th 858, 864 (6th Cir. 2026). The Sixth

Circuit’s May 5, 2026, order denying en banc review (Pet.

App. 85a) is unreported but available at Dutton v. Shaffer,

No. 25-5352/5391, 2026 LX 273856, at *1 (6th Cir. May 5,

2026). The Eastern District of Kentucky’s order granting

summary judgment in part to plaintiff and in part to

defendants, and issuing a permanent injunction, (Pet. App.

38a) is reported at Dutton v. Shaffer, 779 F. Supp. 3d 924,

929 (E.D. Ky. 2025).

BASIS FOR JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1254(1).

The Sixth Circuit entered its judgment on April 1, 2026,

and denied a timely petition for en banc review on May 5,

2026. This Court has jurisdiction to consider this appeal

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The following provisions are involved in this case:

Article III, Section 2, Clause 1 of the United States

Constitution provides, in relevant part:

“The judicial Power shall extend to all Cases, in

Law and Equity, arising under this Constitution,

the Laws of the United States, and Treaties

made, or which shall be made, under their

Authority; . . . ”

Section 121 of the Kentucky Constitution provides, in

relevant part:

Subject to rules of procedure to be established

by the Supreme Court, and after notice and

hearing, any justice of the Supreme Court or

judge of the Court of Appeals, Circuit Court

or District Court may be retired for disability

or suspended without pay or removed for good

cause by a commission. . . . Its actions shall

be subject to judicial review by the Supreme

Court.

Kentucky Supreme Court Rule 4.170 provides, in relevant

part:

(1) Upon its own motion or upon receiving

a written complaint indicating that there is a

basis for investigation of a matter within the

jurisdiction of the Commission under SCR

4.020, the Commission shall make a preliminary

investigation to determine whether formal

proceedings should be initiated.

(2) Notice of the investigation shall be given

to the judge, and the judge shall be given an

opportunity to appear informally before the

Commission. The name of the complainant shall

not be included in the notice.

(3) If the Commission concludes after

its preliminary investigation that formal

proceedings should not be initiated, it shall so

inform the judge.

(4) After the preliminary investigation is

completed and before formal proceedings are

initiated under Rule 4.180, the Commission

shall afford the judge under investigation an

opportunity to examine all factual information,

including the name of the complainant if relevant,

and shall afford the judge an opportunity to

furnish to the Commission any information the

judge may desire bearing on the investigation.

Kentucky Supreme Court Rule 4.300, Rule 4.1(A)(11)

provides:

A judge or judicial candidate shall not knowingly,

or with reckless disregard for the truth, make

any false statement of material fact.

INTRODUCTION

Every State entrusts a judicial-conduct commission

with the responsibility of investigating complaints against

judges while protecting both judicial independence and

public confidence in the judiciary. To accomplish that

task, state disciplinary systems uniformly begin with

confidential preliminary inquiries—not enforcement

proceedings. A complaint is received, the judge is notified,

a response is requested, and the commission determines

whether the allegations warrant formal disciplinary

proceedings. Until that determination is made, no findings

have been reached, no charges have been authorized, and

no discipline may be imposed.

The decision below fundamentally undermines that

longstanding process. The Sixth Circuit held that a citizen

complaint, coupled with the Commission’s confidential

preliminary investigation and an unaccepted proposed

resolution exchanged before formal proceedings were

ever authorized, created a sufficiently credible threat

of enforcement to confer Article III standing for a preenforcement First Amendment challenge. In doing so, the

court permitted a federal lawsuit to halt the Commission’s

investigation before the Commission had completed its

inquiry, determined whether the complaint had merit,

or voted to initiate formal disciplinary proceedings. In

other words, the Sixth Circuit found a “credible threat”

of enforcement before the Commission possessed enough

information to know whether there was anything to

enforce.

That holding expands Article III standing well beyond

this Court’s precedents. The Judicial Conduct Commission

did not determine that Judge Dutton violated the Kentucky

Code of Judicial Conduct. It did not authorize formal

charges. It did not impose discipline. Indeed, Kentucky

law prohibited the Commission from reaching any of those

questions until it completed the preliminary investigative

process established by the Kentucky Supreme Court.

Yet the decision below treats the Commission’s threshold

inquiry itself as the constitutional injury.

The consequences extend far beyond Kentucky. Every

State employs preliminary investigative procedures to

separate unsupported complaints from those warranting

formal proceedings. Licensing boards, attorneydisciplinary authorities, ethics commissions, and countless

other state agencies likewise rely upon confidential

investigations before deciding whether enforcement is

appropriate. Under the Sixth Circuit’s rule, the mere

commencement of those preliminary inquiries may now

invite immediate federal constitutional litigation before

the responsible state authority has made any enforcement

decision.

This case presents an ideal vehicle to restore the

constitutional limits on federal jurisdiction. The standing

question was squarely presented, fully litigated, and

dispositive below. Because the Commission never

completed its investigation or determined whether formal

proceedings should commence, this case cleanly presents

whether Article III permits federal courts to intervene

in an ongoing state disciplinary investigation before the

State has taken any final or even preliminary enforcement

action. This Court should grant the Commission’s Petition.

STATEMENT OF THE CASE

A. Kentucky’s Judicial Disciplinary Process

Section 121 of the Kentucky Constitution vests the

Commonwealth with authority to discipline judges for

misconduct in office. Pursuant to that constitutional

authority, the Kentucky Supreme Court established

the Judicial Conduct Commission (“Commission”) and

charged it with enforcing the Kentucky Code of Judicial

Conduct. Ky. Const. § 121; Ky. Supreme Court Rule

(“SCR”) 4.020(1)(b)(i)(v). The Commission’s disciplinary

decisions are subject to review by the Kentucky Supreme

Court. SCR 4.290.

The Commission’s disciplinary process begins when

it receives a written complaint alleging conduct within

its jurisdiction. At that point, the Commission conducts

a confidential preliminary investigation “to determine

whether formal proceedings should be initiated.” SCR

4.170(1). During that preliminary stage, the judge shall

be provided notice of the complaint, shall be afforded

the opportunity to submit a written response, and shall

be afforded the opportunity to appear informally before

the Commission. SCR 4.170(2). After completing its

preliminary investigation, the Commission determines

whether formal proceedings should be initiated. SCR

4.170(3)-(4). Only if the Commission authorizes formal

proceedings does the matter proceed to an evidentiary

hearing, where the judge is afforded full procedural

protections, including the right to counsel, to present

evidence, to subpoena witnesses, and to cross-examine

witnesses. SCR 4.170(5); SCRS 4.180—4.290.

Thus, under the Kentucky Supreme Court’s Rules, a

preliminary investigation serves a limited gatekeeping

function. Its purpose is to determine whether formal

proceedings are warranted—not whether a complaint is

meritorious, whether its allegations are true, or whether

a judge has violated the Code of Judicial Conduct. Until

the Commission authorizes formal proceedings, it has

reached none of those determinations.

The preliminary investigation serves an especially

important function in cases arising under Rule 4.1(A)(11),

such as the situation here. That Rule prohibits only

knowingly or recklessly made false statements of material

fact. Accordingly, before the Commission could determine

whether formal proceedings were warranted, it first

had to investigate the factual allegations underlying the

complaint, including an assessment of whether evidence

existed to demonstrate that the challenged statement

was demonstrably false and whether said falsehood

was material. If the available evidence did not establish

a potentially actionable falsehood, the preliminary

investigation would end without the initiation of formal

proceedings. Thus, until the Commission completed the

factual inquiry required by Kentucky Supreme Court Rule

4.170, it had not determined whether Rule 4.1(A)(11) had

been implicated at all.

B. The Commission’s Preliminary Investigation of

Judge Dutton

Judge Donna Dutton has served as a Kentucky District

Judge since 2006. In October 2022, she gave a newspaper

interview discussing discipline previously imposed by the

Commission. After a citizen filed a complaint concerning

statements made during that interview, the Commission

commenced the confidential preliminary investigation

required by Kentucky Supreme Court Rule 4.170.

Consi st ent w it h t he Com m i ssion’s ord i na r y

procedures, the Executive Secretary notified Judge

Dutton that a complaint had been received, requested

a written response, and invited her to participate in an

informal conference. The notice did not identify any Rule

of Judicial Conduct that had been violated, nor did it reflect

any determination regarding the merits of the complaint.

Judge Dutton submitted a written response.

While the preliminary investigation remained

pending, and before any additional investigation could

occur, counsel discussed the possibility of resolving the

matter without consideration of formal proceedings. To

facilitate those discussions, Commission counsel prepared

a draft agreed public reprimand for Judge Dutton’s

consideration. The draft represented only a proposed

resolution prepared by counsel; although approved by

the Commission as an acceptable resolution if accepted,

it remained subject to further negotiation and revision.

Judge Dutton never responded with proposed changes.

Instead, she retained new counsel and filed this action

before the Commission completed its preliminary

investigation or undertook the question of whether formal

disciplinary proceedings should be initiated.

As a result, the Commission never completed its

investigation, never determined whether Judge Dutton

had violated the Code of Judicial Conduct, never voted

to institute (or even considered) formal proceedings, and

never imposed discipline.

C. District Court and Interlocutory Appeal Proceedings

Judge Dutton filed this action under 42 U.S.C. § 1983

seeking declaratory and injunctive relief prohibiting the

Commission from continuing its preliminary investigation

and enforcing several provisions of the Kentucky Code of

Judicial Conduct. (Pet. App. 71a) She asserted both facial

and as-applied First Amendment challenges to Rules 1.2,

2.4(B), and 4.1(A)(11). Before the Commission completed

its preliminary investigation, determined whether the

allegations of the citizen complaint had merit, or voted

whether to initiate formal disciplinary proceedings,

Judge Dutton moved for a temporary restraining order

and preliminary injunction to halt the Commission’s

investigation and prevent any further disciplinary process.

The district court denied preliminary injunctive relief,

concluding that Judge Dutton had failed to demonstrate

imminent, irreparable harm. (Pet. App. 83a—84a) The

court reasoned that Judge Dutton had already prevailed in

her judicial election and had failed to establish any actual

or imminent injury to her reputation or goodwill arising

from the Commission’s ongoing confidential preliminary

investigation. Id. At that time, the Commission had

neither authorized formal proceedings nor made any

determination that Judge Dutton had violated the Code

of Judicial Conduct.

On interlocutory appeal, the Sixth Circuit vacated

that decision, not because it concluded Judge Dutton had

demonstrated irreparable harm or was likely to succeed on

the merits, but because it held that the district court should

have first analyzed her likelihood of success on the merits

before addressing irreparable injury. (Pet. App. 69a—70a)

The court remanded for further proceedings without

resolving the merits of Judge Dutton’s constitutional

claims or whether the Commission’s ongoing preliminary

investigation constituted a sufficiently concrete injury to

support prospective relief. Id.

On remand, the parties filed cross-motions for

summary judgment. The Commission argued that Judge

Dutton lacked Article III standing because she sought to

challenge only a confidential preliminary investigation that

had not resulted in any enforcement action. Specifically,

the Commission had not completed its investigation,

had not determined whether the allegations in the

citizen complaint were meritorious, had not determined

whether Judge Dutton violated Rule 4.1(A)(11) or any

other provision of the Code, had not voted to institute

formal disciplinary proceedings, and had not imposed or

authorized any discipline. The district court rejected the

Commission’s standing arguments. It also rejected Judge

Dutton’s facial challenges to all three Rules and her asapplied challenges to Rules 1.2 and 2.4(B). It nevertheless

concluded that Rule 4.1(A)(11) had been unconstitutionally

applied to Judge Dutton because the statements at

issue were “readily capable of true interpretation,” and

permanently enjoined the Commission from enforcing that

Rule against her. Both parties appealed.

D. The Recent Sixth Circuit Proceedings

The Sixth Circuit affirmed the district court’s judgment

insofar as it held that Judge Dutton possessed Article III

standing to pursue her pre-enforcement challenge and

that Rule 4.1(A)(11) had been unconstitutionally applied

to her. (Pet. App. 36a)

Addressing standing as a threshold matter, the court

concluded that Judge Dutton had alleged a sufficiently

credible threat of enforcement notwithstanding that

the Commission had not completed its confidential

preliminary investigation or authorized formal disciplinary

proceedings. (Pet. App. 21a) The court reasoned that

the Commission’s ongoing investigation, coupled with a

proposed agreed public reprimand exchanged during

confidential settlement discussions, constituted sufficient

evidence that Rule 4.1(A)(11) would be enforced against

Judge Dutton. Id.

The Si xth Circuit rejected the Commission’s

argument that no injury sufficient to satisfy Article

III existed because the Commission had not completed

the preliminary process prescribed by the Kentucky

Supreme Court Rules. Specifically, the court held that

the Commission’s failure to determine whether the citizen

complaint had merit, whether Judge Dutton violated Rule

4.1(A)(11), or whether formal disciplinary proceedings

should be initiated did not preclude a finding that Judge

Dutton faced a sufficiently credible threat of enforcement.

(Pet. App. 31a)

Having concluded that Judge Dutton possessed

standing, the court proceeded to the merits of her asapplied challenge. It agreed with the district court that

Rule 4.1(A)(11) had been unconstitutionally applied

because the challenged campaign statements were

“readily capable of true interpretation” and therefore

could not constitutionally serve as the basis for discipline.

(Pet. App. 31a) The court other wise affirmed the

district court’s rejection of Judge Dutton’s remaining

constitutional challenges.

The Commission timely petitioned for rehearing

and rehearing en banc, arg uing that the panel’s

standing analysis conflicts with this Court’s Article III

jurisprudence by permitting a federal court to adjudicate

a pre-enforcement challenge before the Commission

completed its preliminary investigation or made any

enforcement determination. The Sixth Circuit denied

rehearing. (Pet. App. 85a) This petition followed.

REASONS FOR GRANTING THE PETITION

This petition presents an important and recurring

question concerning the constitutional boundary between

a State’s preliminary investigation of alleged judicial

misconduct and an Article III injury from threatened

enforcement. The court of appeals held that Respondent

had standing to obtain a permanent federal injunction

even though the Commission never initiated formal

charges, never held an adjudicative hearing, and never

imposed discipline. That conclusion rests principally

on a Commission-approved proposed agreed order that

Respondent never accepted and that, by its own terms,

would have waived formal proceedings only if accepted.

The decision warrants review under Rule 10(c). It

resolves an important federal question that this Court

has not settled: whether a preliminary disciplinary

investigation and an unaccepted proposed consent

disposition establish a sufficiently imminent threat of

enforcement where the State has not commenced formal

proceedings or imposed any presently binding sanction.

It also extends this Court’s pre-enforcement precedents

beyond their limits by treating a contingent, nonfinal step

in a confidential disciplinary process as the equivalent of

an actual enforcement action.

THIS CASE PRESENTS A N IMPORTA NT,

R E C U R R I N G A R T IC L E I I I Q U E S T I O N

THAT THIS COURT HAS EXPRESSLY LEFT

UNRESOLVED

Article III permits a pre-enforcement challenge only

when the plaintiff establishes a concrete and particularized

injury that is actual or imminent. A plaintiff challenging

a threatened enforcement action ordinarily must show an

intention to engage in constitutionally protected conduct

that is arguably proscribed and a credible threat that

the law will be enforced against that conduct. Susan B.

Anthony List v. Driehaus, 573 U.S. 149, 158–60 (2014);

Babbitt v. United Farm Workers National Union, 442

U.S. 289, 297–98 (1979).

This case presents the question left open in Susan B.

Anthony List. There, the Court considered an Ohio regime

under which a commission panel had made a probablecause finding, a full administrative hearing had been set,

discovery had begun, and the proceedings were backed

by possible criminal prosecution. The Court held that the

combined threats were sufficient, but expressly declined

to decide whether the burdens of the administrative

proceedings standing alone would establish Article III

injury. Susan B. Anthony List, 573 U.S. at 165–66.

The decision below answers that reserved question

in a materially different setting. Kentucky’s preliminary

process is confidential and serves to determine whether

formal proceedings should be initiated. The Commission

did not institute formal charges; authorize an adversarial

hearing; make a final finding of a violation; or impose

a sanction—the Commission solely asked the judge for

preliminary information it was required by Supreme

Court Rule to seek. The proposed agreed order did not

alter that posture. It offered a consensual disposition that

Respondent could accept or reject; she rejected it. Yet the

court of appeals held that these nonfinal steps, coupled

with Respondent’s asserted subjective chill and intended

future speech, were enough to establish an imminent

enforcement injury.

That question recurs across state judicial-discipline

systems and other professional-regulatory regimes.

States commonly use preliminary inquiries, warning

communications, informal conferences, and voluntary

consent resolutions to screen complaints w ithout

immediately commencing formal adjudicative proceedings.

If those preliminary measures themselves establish

Article III injury, any target of an inquiry may seek

to enjoin the process before the responsible authority

decides whether to bring charges. The resulting federal

intervention is especially consequential where, as here,

a state supreme court has prescribed the investigative

process for the discipline of its own judges.

II. THE SIXTH CIRCUIT’S EXPANSION OF SUSAN

B. ANTHONY LIST UNDERMINES KENTUCKY’S

CONSTITUTIONALLY AUTHORIZED SYSTEM

FOR DISCIPLINING ITS JUDICIARY

Kentucky has assigned judicial discipline to a system

established under its Constitution and administered

under rules of its highest court. Section 121 vests the

Commonwealth with authority to discipline judges for

misconduct; pursuant to that authority, the Kentucky

Supreme Court created the Judicial Conduct Commission,

prescribed a confidential preliminary investigation, and

retained review of the Commission’s disciplinary decisions.

Under SCR 4.170, the preliminary investigation is not a

discretionary preliminary gesture. It is the mandatory

threshold process by which the Commission determines

whether formal proceedings should be initiated. Only after

that determination may the matter proceed to a formal

evidentiary hearing.

That sequencing reflects a state judicial judgment

of institutional design. It protects judges from public

and formal discipline based on untested allegations

while preserving the Commission’s ability to investigate

complaints, gather information, and decide whether

charges are warranted. The Si xth Circuit’s rule

defeats both features. It permits a federal court to halt

the required state-court-created process before the

Commission completes the investigation that Kentucky

law makes the prerequisite to a charging decision—and

before the Kentucky Supreme Court’s review structure

can operate.

This case illustrates why that preliminary inquiry is

indispensable. Unlike many pre-enforcement challenges,

the existence of any potential disciplinary violation

depended upon the resolution of a factual question the

Commission had not yet answered: whether Judge Dutton’s

statement was actually false. The Commission expressly

disavowed any intention to discipline truthful—or even

merely misleading—statements. If the investigation

established that Judge Dutton’s statement was true, or

that the available evidence was insufficient to establish

falsity, the matter would have ended without formal

proceedings. The Commission therefore had not yet

formed a view regarding whether Rule 4.1(A)(11) had

been violated, much less whether discipline should be

pursued. By treating the Commission’s effort to answer

that threshold factual question as a sufficiently credible

threat of enforcement, the Sixth Circuit treated the

Commission’s mandatory effort to determine whether any

violation existed as the constitutional injury.

The Commission’s preliminary process also serves

interests that this Court has held uniquely weighty in the

judicial-election context. Williams-Yulee v. Florida Bar

recognizes that States may regulate judicial-candidate

speech to protect public confidence in the integrity and

impartiality of the judiciary, an interest of the highest

order; Caperton v. A.T. Massey Coal Co. likewise

recognizes the constitutional significance of public

confidence in judicial integrity. Williams-Yulee v. Florida

Bar, 575 U.S. 433, 444–46, 460–61 (2015); Caperton v.

A.T. Massey Coal Co., 556 U.S. 868, 889 (2009). Those

authorities do not dilute First Amendment protections

or create standing where Article III is absent. They

do, however, confirm why the standing threshold must

preserve Kentucky’s ability to conduct the fact-gathering

that is indispensable to distinguishing protected speech

from sanctionable knowing falsehoods.

This Court has recognized the special federalism

interests implicated when a State’s highest court supervises

professional discipline through a constitutionally

author ized system. In Middlesex County Ethics

Committee v. Garden State Bar Ass’n, the Court held that

the State’s interest in maintaining professional discipline

was “extremely important” and that the relationship

between the state supreme court and its disciplinary

bodies warrants federal-court deference. 457 U.S. 423,

434–35 (1982). Middlesex arose under Younger and

therefore does not itself decide standing here. But its

federalism principle confirms why Article III must not be

expanded to authorize federal intervention at an earlier,

nonfinal investigative stage that the State’s highest court

has deliberately required.

The decision below reverses the constitutional order

of Kentucky’s process. It allows a federal court to decide

whether the Commission may investigate and enforce

its judicial-conduct rules before the Commission has

decided whether enforcement will even occur, and before

the Kentucky Supreme Court’s state-law procedures

for considering discipline can run their course. That is

not merely an erroneous application of a properly stated

standing rule—it is a structural alteration of the division

of responsibility between federal courts and a State’s

highest court in the governance of that State’s judiciary.

The Court should grant review to confirm that

Susan B. Anthony List does not require—or permit—

federal courts to treat a State’s mandatory preliminary

disciplinary inquir y as a completed enforcement

action. Otherwise, the decision below will invite federal

challenges at the very stage state supreme courts have

chosen to conduct confidential fact-gathering and screen

complaints, thereby disabling the state systems before

they can determine whether formal discipline is justified.

III. THE DECISION BELOW EXTENDS THIS

COURT’S PRE-ENFORCEMENT-STANDING

CA S E S BEYON D T H E E N F OR C EM E N T

THREATS THOSE CASES REQUIRED

This Court’s precedents permit a party to challenge

a law without first subjecting herself to prosecution, but

they do not dispense with the requirement of an imminent,

objectively grounded injury. In Babbitt, the plaintiffs

alleged planned conduct arguably proscribed by law

and a credible threat of prosecution under a statute that

facially reached that conduct; the State had not disavowed

criminal enforcement. Babbitt, 442 U.S. at 297–303. In

Susan B. Anthony List, the plaintiff had already faced

a probable-cause determination, scheduled proceedings

with discovery, and the additional prospect of criminal

prosecution. 573 U.S. at 162–66.

Those precedents do not establish that a nonfinal

investigatory step or an unaccepted settlement proposal

is itself enforcement. To the contrary, Susan B. Anthony

List reserved that precise issue. The Sixth Circuit’s

contrary approach strips the distinction of practical force:

after receiving a complaint and conducting the preliminary

inquiry required by Kentucky law, the Commission may

now face federal litigation before it decides whether any

formal enforcement is appropriate.

The decision also relaxes the requirement that

an alleged future injury rest on more than a chain of

contingent events. This Court has emphasized that a

claimed future injury cannot depend on speculation about

how government officials and independent decisionmakers

will exercise their discretion. Clapper v. Amnesty

International USA, 568 U.S. 398, 409–14 (2013). Here,

formal discipline would have depended on completion of

the preliminary inquiry, identification of the specific rules

believed to be implicated, a decision voted on by a majority

of the Commission members to authorize charges, an

adjudicative process, and a final disposition. None of

these events occurred. The court of appeals nevertheless

treated a proposed consensual resolution as enough to

bridge those contingencies. But the proposed resolution

is not dispositive of what violations would or could have

even been pursued in formal proceedings.

But most importantly, the Commission first had to

determine whether Judge Dutton’s statement was false

at all. That factual predicate had never been established.

Indeed, the investigation existed precisely so the

Commission could determine whether the evidence—

both that in its possession and that which was yet to be

obtained—established falsity. If the Commission concluded

the statement was true—or that the available evidence

failed to establish falsity—the disciplinary process would

have ended immediately. The Sixth Circuit nevertheless

assumed the existence of a credible enforcement threat

before the Commission completed the inquiry necessary

to determine whether any violation existed.

This Court has recognized, in multiple contexts, that

judicial review ordinarily awaits a sufficiently definitive

governmental position. See First Choice Women’s Res.

Ctrs., Inc. v. Davenport, 146 S. Ct. 1114, 1128 (2026);

Pakdel v. City & Cnty. of San Francisco, 594 U.S. 474,

478–79 (2021); MacDonald, Sommer & Frates v. Yolo

Cnty., 477 U.S. 340, 348 (1986). Although those cases arose

in different constitutional settings, they reflect the same

practical reality: until the government commits itself to a

position regarding how it intends to apply the challenged

law, a court cannot reliably determine whether a concrete

controversy exists.

That principle has particular force here. Throughout

this litigation, the Commission consistently maintained

that it had not completed the factual investigation required

by Kentucky Supreme Court Rule 4.170 and therefore had

not determined whether Respondent’s statements were

false, whether Rule 4.1(A)(11) had been implicated, or

whether formal proceedings were warranted. To be sure,

Respondent alleged an intention to make similar statements

during a future campaign, and the court of appeals relied

on that allegation. But the relevant Article III question is

whether the Commission’s nonfinal investigative conduct

created a sufficiently imminent threat that the Code

would be enforced against that future speech. It did not.

A proposed agreed resolution concerning past speech was

not a final enforcement decision and neither compelled

nor prohibited Respondent’s future speech. Treating that

preliminary settlement proposal as conclusive evidence

of imminent future enforcement enlarges Article III

jurisdiction beyond the concrete enforcement threats

recognized in this Court’s precedents.

Treating that preliminary settlement proposal as

conclusive evidence of imminent future enforcement

allowed the Sixth Circuit to find a “credible threat” before

the Commission had even committed itself to a position on

whether Rule 4.1(A)(11) had been implicated at all. That

decision below extends this Court’s pre-enforcementstanding precedents beyond the concrete enforcement

threats those cases required.

IV. THE QUESTION IS OUTCOME-DETERMINATIVE,

CLEANLY PRESENTED, AND SUITABLE FOR

THIS COURT’S REVIEW NOW

The standing issue was raised by the Commission,

decided by the Sixth Circuit, and preserved through the

petition for rehearing. It is antecedent to every merits

issue. A ruling that Respondent lacked Article III

standing would require vacatur of the merits judgment

and permanent injunction, without any need to resolve

the underlying First Amendment questions.

This case also presents the issue on a developed

record. The material facts concerning the procedural

posture are undisputed: the Commission received a

complaint, opened a preliminary inquiry pursuant to

SCR 4.170(2), sent Respondent notice of the complaint,

proposed an agreed resolution, and did not commence

formal proceedings or impose discipline. The Commission

did not make any probable cause determination or in any

way indicate intent to pursue charges. The only question

is the legal consequence of those facts under Article III.

Nor is this petition a request for routine error

correction. Rule 10 recognizes that certiorari may be

warranted when a court of appeals decides an important

federal question that should be settled by this Court or

decides an important federal question in tension with

relevant decisions of this Court. Supreme Court Rule

10. This case satisfies that standard because the decision

below answers an important question expressly reserved

in Susan B. Anthony List and redraws the line between

preliminary investigation and threatened enforcement in a

manner that affects state disciplinary systems nationwide.

V. THIS COURT SHOULD GRANT THE PETITION

TO AFFIRM THAT ARTICLE III DOES NOT

CONVERT EVERY PRELIMINARY INQUIRY

I N T O A J UST ICI A BL E EN FORCEM EN T

CONTROVERSY

The Federal Judiciary may not adjudicate constitutional

disputes based on a plaintiff’s subjective apprehension of

possible future governmental action. Clapper, 568 U.S.

at 416–18. Yet that is the practical consequence of the

judgment below: a confidential preliminary investigation

and a declined consent proposal now suffice to halt a

State’s disciplinary process before the State decides

whether to file charges.

The Court should grant review to clarify the line

left open in Susan B. Anthony List: whether a nonfinal

disciplinary inquiry and an unaccepted proposed consent

disposition, absent formal charges, an adjudicative

finding, a presently binding sanction, or an independently

imminent coercive consequence, establish the concrete

and imminent injury Article III requires. The answer

will determine when federal courts may intervene

in state disciplinary investigations and will restore

the constitutional distinction between investigating a

complaint and enforcing a rule.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Olivia F. A mlung

Counsel of Record

Jeffrey C. Mando

A dams Law, PLLC

40 West Pike Street

Covington, KY 41011

(859) 394-6200

oamlung@adamsattorneys.com

Counsel for Petitioners,

Laura Hendrix, Hon. Carroll M. “Trip”

Redford III, Hon. Glenn E. Acree, Hon.

Amy S. Anderson, Hon. Eddy Coleman,

Dr. Joe Ellis, and Janet Lively

McCauley, in their respective official

capacities with the Kentucky Judicial

Conduct Commission

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, FILED APRIL 1, 2026 . . . . . . . 1a

APPENDIX B — OPINION AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF KENTUCKY,

CENTRAL DIVISION AT FRANKFORT,

FILED MARCH 27, 2025 . . . . . . . . . . . . . . . . . . . . . 38a

A P P E N DI X C — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR T H E SI X T H CI RCU I T, FI LED

AUGUST 15, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58a

APPENDIX D — OPINION AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF KENTUCKY,

CENTRAL DIVISION AT FRANKFORT,

FILED SEPTEMBER 15, 2023 . . . . . . . . . . . . . . . 71a

A P P E N DI X E — O R D E R D E N Y I N G

REHEARING OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH

CIRCUIT, FILED MAY 5, 2026 . . . . . . . . . . . . . . . 85a

Appendix

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT,

FILED APRIL 1, 2026

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 25-5352/5391

HON. DONNA GREENWELL DUTTON,

Plaintiff-Appellant/Cross-Appellee,

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-cv00039—Gregory F. Van Tatenhove, District Judge.

Argued: March 5, 2026

Decided and Filed: April 1, 2026

Appendix A

Before: GIBBONS, WHITE, and MURPHY, Circuit

Judges.

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 asapplied 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.

Appendix A

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).

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

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

Appendix A

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 work under bond conditions longer than

Appendix A

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 summaryjudgment 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.

Appendix A

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 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.

Appendix A

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

Appendix A

record. DE 1-6, Response to JCC Letter, Page ID 31. She

noted that her 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 396, Email Correspondence, Page ID 563. This proposed

reprimand was the JCC’s Proposed Agreed Order, which

Appendix A

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 (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.

10a

Appendix A

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.

11a

Appendix A

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)

12a

Appendix A

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 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, 106

S.Ct. 2505, 91 L.Ed.2d 202 (1986). We believe the nonmoving party’s evidence and draw all justifiable inferences

in that party’s favor. Morales v. Am. Honda Motor Co.,

13a

Appendix A

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 crossappeal, the defendants contest the district court’s grant of

summary judgment and entry of a permanent injunction

14a

Appendix A

based on Dutton’s as-applied challenge to Rule 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).

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, 134 S.Ct. 2334, 189 L.Ed.2d

246 (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, 134 S.Ct. 2334. 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

15a

Appendix A

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, 134 S.Ct. 2334;

accord MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118,

128-29, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007). But the

litigant must still show that enforcement is “sufficiently

imminent.” Driehaus, 573 U.S. at 159, 134 S.Ct. 2334;

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 by a statute, and there exists a

credible threat of prosecution thereunder.’” Driehaus, 573

U.S. at 160, 134 S.Ct. 2334 (quoting Babbitt v. United Farm

Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60

L.Ed.2d 895 (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, 134 S.Ct. 2334. 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

16a

Appendix A

similar activity in the future,” and it faced the possibility

of future action based on this speech. Id. at 154-55, 134

S.Ct. 2334.

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, 134 S.Ct. 2334. 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, 134 S.Ct. 2334; see also Babbitt, 442 U.S. at

298, 99 S.Ct. 2301 (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, 134 S.Ct. 2334.

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

17a

Appendix A

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 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, 134 S.Ct.

2334. First, Dutton has expressed an intent to engage in

constitutionally protected speech in support of her judicial

campaign. See id. at 161-62, 134 S.Ct. 2334. 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, 135 S.Ct. 1656, 191 L.Ed.2d 570 (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,

91 S.Ct. 621, 28 L.Ed.2d 35 (1971).

Second, the Rules arguably proscribe Dutton’s speech.

See Driehaus, 573 U.S. at 160, 162, 134 S.Ct. 2334; see

18a

Appendix A

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 remarks. And in its Proposed Agreed Order, the

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Appendix A

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, 134 S.Ct. 2334

(“[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, 134 S.Ct. 2334; 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, 134 S.Ct. 2334;

Christian Healthcare Ctrs., Inc. v. Nessel, 117 F.4th 826,

848-49 (6th Cir. 2024). The JCC’s earlier enforcement

20a

Appendix A

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, 134 S.Ct. 2334; 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, 134 S.Ct. 2334; Kiser, 765 F.3d at 609-10; Berry

v. Schmitt, 688 F.3d 290, 296-98 (6th Cir. 2012). Dutton

has also 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, 134 S.Ct. 2334; Platt v. Board of Com’rs

on Grievances and Discipline of Ohio Supreme Court,

769 F.3d 447, 452 (6th Cir. 2014). 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 425, Aff. Decl. Shaffer, Page ID 712-14; see Driehaus, 573

U.S. at 164, 134 S.Ct. 2334 (finding that proceedings were

“not a rare occurrence” because the Commission handled

twenty to eighty complaints per year).

21a

Appendix A

And the defendants did not disavow enforcement

against Dutton. See Driehaus, 573 U.S. at 165, 134

S.Ct. 2334; 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, 134 S.Ct. 2334. 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, 106 S.Ct.

2718, 91 L.Ed.2d 512 (1986). Dutton thus has standing to

challenge the JCC’s enforcement of Rules 4.1(A)(11), 1.2,

and 2.4(B).

The defendants arg ue that the district court

improperly considered the JCC’s Proposed Agreed Order

22a

Appendix A

because the Order is inadmissible pursuant to Federal

Rule of Evidence 408. We disagree because Rule 408 does

not exclude the Order.

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

23a

Appendix A

(4th Cir. 1992). Therefore, the district court did not err in

considering the Proposed Agreed Order.

The district court properly sustained Dutton’s asapplied 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 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.

24a

Appendix A

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, 109 S.Ct. 2746, 105 L.Ed.2d

661 (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 carveouts,” 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, 135

S.Ct. 1656). 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

25a

Appendix A

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, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982)).

And an application of Rule 4.1(A)(11) 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

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Appendix A

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

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, 102

S.Ct. 1523; O’Toole, 802 F.3d at 789.

27a

Appendix A

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

28a

Appendix A

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 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

29a

Appendix A

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

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,

30a

Appendix A

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

31a

Appendix A

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.

Therefore, we ag ree w ith 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, 102 S.Ct. 1523).

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.

32a

Appendix A

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, 108 S.Ct. 2225, 101 L.Ed.2d 1 (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 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

33a

Appendix A

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

34a

Appendix A

“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

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, 109 S.Ct. 3028, 106

L.Ed.2d 388 (1989).

35a

Appendix A

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, 107 S.Ct. 1396, 94 L.Ed.2d

542 (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 “wellsettled” that even short deprivations of First Amendment

freedoms “unquestionably constitute[] irreparable injury,”

36a

Appendix A

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, 96 S.Ct. 2673,

49 L.Ed.2d 547 (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.

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

37a

Appendix A

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.

38a

APPENDIX B —Appendix

OPINIONBAND ORDER OF

THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF KENTUCKY,

CENTRAL DIVISION AT FRANKFORT,

FILED MARCH 27, 2025

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

CENTRAL DIVISION

FRANKFORT

Case No. 3:23-cv-00039-GFVT-EBA

DONNA DUTTON,

Plaintiffs,

HON. JIMMY SHAFFER, et al.,

Defendants.

OPINION & ORDER

Having elected judicial officers breeds a unique set

of problems. Judicial officers and judicial candidates

are bound to a certain code of ethics, aimed at ensuring

the integrity of the judiciary. However, because they

are elected, they are also incorporated into the folds of

the political process, which encourages candidates to

espouse their positions on a variety of matters. These two

processes, seemingly at odds with one another, have come

to head in this case. Judge Dutton, during a reelection

39a

Appendix B

campaign, made a statement to a local newspaper about

her prior disciplinary history that the Judicial Conduct

Commission took issue with. Both parties have filed

Motions for Summary Judgment, and Judge Dutton is

seeking to permanently enjoin the Commission from

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

For the reasons that follow, the Plaintiff’s Motion for a

Summary Judgment and Permanent Injunction [R. 34]

is GRANTED IN PART AND DENIED IN PART and

the Defendant’s Motion for Summary Judgment [R. 39] is

GRANTED IN PART AND DENIED IN PART.

Judge Donna Dutton is a sitting Kentucky District

Court judge for the 53rd Judicial Circuit since 2006.1

In 2020, Judge Dutton was disciplined by the Judicial

Conduct Commission as a result of her handling of

Commonwealth v. Carter, specifically a motion for recusal.

[R. 31 at 4.] During the motion hearing, Judge Dutton

made remarks about the defense counsel stealing money

from her husband and attempted to keep a copy of the

video of the court proceedings from being released. Id.

at 6. Judge Dutton ultimately recused from the case later

that same day but faced disciplinary action from the

Commission. Id. Judge Dutton agreed that she violated

Rules 1.1, 1.2, 1.3, 2.2, 2.4, 2.8, 2.9, and 2.11 of the Code,

and was punished with a 14-day suspension. Id.

1. These facts were taken from the Court’s prior Memorandum

Opinion and Order at [R. 51].

40a

Appendix B

In 2022, Judge Dutton ran for reelection. [R. 31 at

3.] Days before the election, a local Kentucky newspaper

published an article focused on a previous suspension

that Judge Dutton received. Id. at 6. The article included

the below response that Judge Dutton provided to the

newspaper, where she attempted to explain the suspension:

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.

Id. She then won her election. Id.

Months later, the Defendants sent Judge Dutton

a letter informing her that a complaint had been filed

against her with the Commission. [R. 1-5.] The complaint

alleged that Judge Dutton’s response to the newspaper

was false, and the letter invited her to respond to the

complaint. Id. She did. [R. 1-6.] Attorneys for Judge

Dutton and the Commission then began a discussion about

the potential for settlement. [R. 10-5.] The Commission

sent Judge Dutton a proposed agreed order that would

settle the matter and welcomed proposed changes from

Judge Dutton. Id. at 1. If agreed upon, the proposed

agreed order would publicly reprimand Judge Dutton

and state that she violated several portions of the Code of

Judicial Conduct by responding to the newspaper article.

[R. 10-4.]

41a

Appendix B

Rather than proposing changes, Judge Dutton

brought this action against the Defendants. [R. 1; R. 31.]

She now moves for an order enjoining the Defendants from

initiating formal enforcement proceedings against her

for her comments. [R. 4.] In September 2023, this Court

denied her request for a preliminary injunction, finding

that Dutton has not sustained an irreparable injury. [R.

17.] Dutton appealed to the Sixth Circuit. [R. 18.]

On August 15, 2024, the Sixth Circuit vacated and

remanded this Court’s prior denial for preliminary

injunction “for a fresh appraisal of Dutton’s request.” [R.

48-1 at 1.] The Sixth Circuit said that this Court “should

have assessed Dutton’s likelihood of success on the

merits before reaching the irreparable injury question”

because Dutton is alleging a continuing violation. [R.

48-1 at 9.] Ultimately, the Sixth Circuit ordered for this

Court to “conduct the preliminary injunction analysis in

its entirety,” keeping in mind that where a constitutional

right is at issue, the likelihood of success on the merits is

the determinative factor. [R. 48-1 at 9-10.] On January 17,

2025, the Court entered an Order granting in part and

denying in part the Plaintiff’s request for a Preliminary

Injunction. [R. 51.] The Court granted the Plaintiff’s

injunction request and enjoined the Commission from

enforcing Rule 4.1(A)(11) against Plaintiff Dutton. Id. The

remainder of the Plaintiff’s request was denied. Id. Now,

there are two cross-motions for Summary Judgment [R.

34; R. 39], as well as a request for a Permanent Injunction

[R. 34], all of which are now ripe for review.

42a

Appendix B

Under Rule 56, summary judgment is appropriate where

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with affidavits, if any, show

that there is no genuine issue as to any material fact and

the movant is entitled to judgment as a matter of law. 2 See

Fed. R. Civ. P. 56(c). A fact’s materiality is determined

by the substantive law, and a dispute is genuine if “the

evidence is such that a reasonable jury could return a

verdict for the non-moving party.” Anderson v. Liberty

Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d

202 (1986). “[T]he trial court no longer has a duty to

search the entire record to establish that it is bereft of a

genuine issue of material fact.” Street v. J.C. Bradford &

Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989). “Instead, ‘the

non-moving party has an affirmative duty to direct the

Court’s attention to those specific portions of the record

upon which it seeks to rely to create a genuine issue of

material fact.’” J.B-K.-1 v. Sec’y of Ky. Cabinet for Health

& Fam. Servs., 462 F. Supp. 3d 724, 731 (E.D. Ky. 2020),

aff’d sub nom. J. B-K. by E.B. v. Sec’y of Ky. Cabinet for

Health & Fam. Servs., 48 F.4th 721 (6th Cir. 2022) (quoting

In re Morris, 260 F.3d 654, 665 (6th Cir. 2001)).

Summary judgment is inappropriate where there is a

genuine conflict “in the evidence, with affirmative support

on both sides, and where the question is which witness to

2. The Court’s analysis adheres very closely to the analysis

in the prior Memorandum Opinion and Order granting in part and

denying in part the Plaintiff’s request for a preliminary injunction.

[R. 51.]

43a

Appendix B

believe.” Dawson v. Dorman, 528 F. App’x 450, 452 (6th

Cir. 2013). “Credibility determinations, the weighing of

the evidence, and the drawing of legitimate inferences

from the facts are jury functions, not those of a judge. . . .

The evidence of the non-movant is to be believed, and

all justifiable inferences are to be drawn in his favor.”

Morales v. Am. Honda Motor Co., 71 F.3d 531, 535 (6th

Cir. 1995) (quoting Liberty Lobby, 477 U.S. at 255).

The standards upon which we evaluate motions for

summary judgment do not change when, as here, “both

parties seek to resolve [the] case through the vehicle of

cross-motions for summary judgment.” Taft Broadcasting

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

The fact that both parties have moved for

summary judgment does not mean that the

court must grant judgment as a matter of law

for one side or the other; summary judgment

in favor of either party is not proper if disputes

remain as to material facts. Rather, the court

must evaluate each party’s motion on its own

merits, taking care in each instance to draw all

reasonable inferences against the party whose

motion is under consideration.

Id. (quoting Mingus Constructors, Inc. v. United States,

812 F.2d 1387, 1391 (Fed. Cir.1987)).

44a

Appendix B

The Plaintiff disputes the constitutionality of Rule

1.2, Rule 2.4(B), and Rule 4.1(A)(11). [R. 4 at 11.] Rule

1.2 provides: “A judge shall act at all times in a manner

that promotes public confidence in the independence,

integrity, and impartiality of the judiciary, and shall avoid

impropriety and the appearance of impropriety.” Rule

2.4(B) provides: “A judge shall not permit family, social,

political, financial, or other relationships to influence the

judge’s judicial conduct or judgment.” Rule 4.1(A)(11)

provides: “Except as permitted by law, or by Rules 4.2,

4.3, or 4.4, a judge or judicial candidate shall not knowingly

or with reckless disregard for the truth, make any false

statements of material fact.” The Plaintiff argues that

Rules 1.2, 2.4(B), and 4.1(A)(11) are all both facially and

as-applied unconstitutional. [R. 31 at 11-14.]

Where a plaintiff makes a facial challenge under

the First Amendment to a statute’s constitutionality,

the “facial challenge” is an “overbreadth challenge.”

Connection Distrib. Co. v. Holder, 557 F.3d 321, 335

(6th Cir. 2009) (en banc). To succeed on a facial attack,

the plaintiff must establish that a “’substantial number

of instances exist in which the law cannot be applied

constitutionally.’” Glenn v. Holder, 690 F.3d 417, 422 (6th

Cir. 2012) (quoting Richland Bookmart, Inc. v. Knox

Cnty., 555 F.3d 512, 532 (6th Cir. 2009)).

45a

Appendix B

The Plaintiff alleges that the Defendants have

construed Rules 1.2, 2.4(B), and 4.1(A)(11) so overbroadly

as to be facially invalid. [R. 34 at 10.] However, Courts

typically “do not apply the ‘strong medicine’ of overbreadth

analysis where the parties fail to describe the instances

of arguable overbreadth of the contested law.” Wash.

State Grange v. Washington State Republican Party,

552 U.S. 442, 471 n.6, 128 S. Ct. 1184, 170 L. Ed. 2d 151

(2008). The burden of showing a “substantial number of

instances” rests squarely with the Plaintiff. Connection

Distrib. Co., 557 F.3d at 336; see also N.Y. State Club

Ass’n v. City of N.Y., 487 U.S. 1, 14, 108 S. Ct. 2225, 101

L. Ed. 2d 1 (1988) (“To succeed in its [facial overbreadth]

challenge, [the plaintiff] must demonstrate from the text

of [the statute] and from actual fact that a substantial

number of instances exist in which the [l]aw cannot be

applied constitutionally.”). Ultimately, “the record is

utterly barren about whether some, many, indeed any”

individuals, other than Judge Dutton, are adversely

affected by these rules. Id. at 338.

Having determined that the Plaintiff fails to allege

a proper facial challenge on any of the rules, we turn

to the as-applied challenge. As-applied challenges have

a seemingly lower threshold to meet. See Winter v.

Wolnitzek, 834 F.3d 681, 687 (6th Cir. 2016) (“raising a

narrow as-applied challenge is easier, not harder, than

raising a facial challenge”). The Court finds that Dutton

has provided enough facts to allege a plausible as-applied

First Amendment challenge to Rule 4.1(A)(11) but fails as

to Rules 1.4 and 2.4(B).

46a

Appendix B

With respect to Rule 1.4 and Rule 2.4(B), Dutton does

not discuss in sufficient detail, either in her Complaint

or her preliminary injunction briefings, how her First

Amendment rights are burdened by these rules. At

the Motion for Summary Judgment phase, the Court

draws all reasonable inferences against the party whose

motion is under consideration. In a seeming attempt to

shift the burden to the Defendants, the Plaintiff fails

to address completely the rules that she is arguing are

unconstitutional. The Court reminds the Plaintiff that the

burden rests with her to justify that summary judgment

is proper. See Jakubowski v. Christ Hosp., Inc., 627 F.3d

195, 200 (6th Cir. 2010) (“The party seeking summary

judgment bears the initial burden of showing the absence

of a genuine issue of material fact”).

Further, the Defendants have passed strict scrutiny

under both rules. 3 The first Rule in question is Rule 1.2,

which directs that a “Judge shall act at all times in a manner

that promotes public confidence in the independence,

integrity, and impartiality of the judiciary, and shall

avoid impropriety and the appearance of impropriety.”

Under strict scrutiny, the first question is whether the

Defendants have a compelling interest. The Commission

argues they have an interest in “promoting an unbiased

and impartial judiciary and in maintaining the integrity of

3. When a law restricts speech on the basis of content, as these

rules do, the law is unconstitutional unless it passes strict scrutiny.

See Republican Party of Minn. v. White, 536 U.S. 765, 774, 122 S.

Ct. 2528, 153 L. Ed. 2d 694 (2002).

47a

Appendix B

the judiciary.” [R. 39 at 10.] The Supreme Court has held

that such an interest is a compelling one. Williams-Yulee

v. Fla. Bar, 575 U.S. 433, 447-48, 135 S. Ct. 1656, 191 L.

Ed. 2d 570 (2015). Having determined there is a compelling

interest, the Court must now determine whether Rule

1.2 is narrowly tailored to achieve said interest. Judicial

candidates and officers do not have an unfettered right to

say whatever they want. Otherwise, the Code of Conduct

for the United States Judges, which requires judges to

“uphold the integrity and independence of the judiciary”

and “avoid impropriety,” would be unconstitutional,

which the Sixth Circuit has quipped “would come as a

surprise.” See Winter, 834 F.3d 681, 690; see also Canon

1 and Cannon 2.

Being a member of the judiciary is much like being

a doctor. The public places great trust in doctors, and

upon entry into the coveted profession, doctors are

bound by a code of ethics, which provides the confines in

which they operate. Likewise, the judiciary is uniquely

positioned within the community to undertake the role

of decisionmaker. More than any other branch of the

government, the judiciary is entrusted with remaining

fair and impartial.

As the adage goes, with great power comes great

responsibility. A part of that responsibility is being

bound by a set of ethical codes, which are not meant

to restrict more than necessary; rather, their purpose

is to ensure the longevity and vitality of the judiciary.

When deciding to become a member of the judiciary, one

forfeits some autonomy in exchange to fulfill their role as

48a

Appendix B

an impartial decisionmaker. Without such constraints,

the trust and confidence so necessary to the integrity

of the judicial function, could be jeopardized. Thus, the

Court finds that Rule 1.2 is narrowly tailored to achieve

the Defendant’s interest in “promoting an unbiased and

impartial judiciary.”

The second rule is Rule 2.4(B), which provides “[a]

judge shall not permit family, social, political, financial, or

other relationships to influence the judge’s judicial conduct

or judgment.” Similar to the above analysis, the Court

finds that this rule suffices to meet strict scrutiny. The

Commission has a compelling interest in maintaining a

fair tribunal. With respect to narrow tailoring, Rule 2.4(B)

tracks very closely with Cannon 2B of the Code of Conduct

for the United States Judges, which states that “[a] judge

should not allow family, social, political, financial, or other

relationships to influence judicial conduct or judgment.”

So, again, it “would come as a surprise,” if this Rule was

so overbroad as to be unconstitutional.

With respect to Rule 4.1(A)(11), Dutton argues that

the Rule is unconstitutional as applied to her because it

prohibits her from telling her side of the story the way

that she wants to without offending the Commission.

Further, Dutton alleges that she intends to respond to

media inquiries regarding the 2020 reprimand in the

same way that the Commission finds objectionable under

the Code, meaning the threat of enforcement is ongoing.

[R. 31 at 11.] Case law dictates that any impermissible

49a

Appendix B

burden on the First Amendment, however small, is

unconstitutional. See Connection Distributing Co. v.

Reno, 154 F.3d 281 (6th Cir. 1998). There undoubtedly is

a burden on Dutton’s First Amendment right, which begs

the question of whether Rule 4.1(A)(11) can pass strict

scrutiny when applied to the facts. The statement at the

center of this case was given in response to questions

about Dutton’s prior disciplinary history. In her response,

Judge Dutton said:

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 action, and the

only person hurt was me.

[R. 31 at 6.]

The Commission is characterizing Dutton’s statement

as patently false, while Dutton is characterizing her

statement as “ambiguously truthful.” [R. 34 at 7.] Under

Rule 4.1(A)(11), the former is prohibited, while the

latter is allowed. With how the Commission is presently

interpreting Dutton’s remarks, she stands in violation

of Rule 4.1(A)(11) and risks disciplinary action, despite

Dutton believing her statement to be true. As a result,

her ability to speak is burdened. At bottom, the Court can

conceive of a world in which Dutton’s statement is readily

capable of a true interpretation, or, at the very least, that

the statement was not made “knowingly, or with reckless

disregard for truth.”

50a

Appendix B

In the Court’s prior Order granting the Plaintiff’s

preliminary injunction with respect to Rule 4.1(A)(11), the

Court noted that “it appears the practical effect of Rule

4.1(A)(11) has the potential to eclipse said interest, thereby

failing to give Judge Dutton the requisite ‘breathing space’

to exercise her First Amendment right. See generally

Brown v. Hartlage, 456 U.S. 45, 61, 102 S. Ct. 1523, 71 L.

Ed. 2d 732 (U.S. 1982).” [R. 51 at 9.] The Court finds this

conclusion holds true at the Summary Judgment phase.

There is an inherent tension between judicial elections

and judicial independence. If a state chooses to have

judges elected by voters, as is the case in Kentucky, the

electorate should have the necessary information to make

an informed choice. States should not be able to keep

judges and judicial candidates from giving their opinions

on issues that matter to voters. With this in mind, the

Court finds that Dutton’s statements are privy to First

Amendment protections.

As an initial matter, Judge Dutton argues that Rule

4.1(A)(11) is unconstitutionally vague by failing to give “the

person of ordinary intelligence a reasonable opportunity

to know what is prohibited.” Grayned v. City of Rockford,

408 U.S. 104, 108, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972).

The Court finds Rule 4.1(A)(11) gives the requisite

guidance. “Don’t want to violate the [Rule]? Don’t tell a

lie on purpose or recklessly.” Winter v. Wolnitzek, 186

F.Supp.3d 673, 697 (E.D. Ky. 2016) (overruled on other

grounds). Thus, Rule 4.1(A)(11) is not a problem because it

is vague. Rather, the problem lies in how the Commission

is applying Rule 4.1(A)(11) to Judge Dutton.

51a

Appendix B

Taking Judge Dutton’s statement phrase-by-phrase,

the first phrase the Commission takes issue with is:

“[t]hat issue involved the theft of a large sum of money

by an attorney who also happens to practice law with

my opponent.” [R. 31 at 6.] At best, the Court thinks

this phrase is likely Judge Dutton’s opinion on her prior

disciplinary record and therefore outside the scope of

Rule 4.1(A)(11). Winter v. Wolnitzek, 482 S.W.3d 768,

779 (Ky. 2016) (noting Canon 5(B)(1)(c) does not “cover

expressions of opinion because expressions of an opinion

do not implicate a statement that is not factually true”).4

At worst, the Court finds that Judge Dutton’s statement

is misleading, which is still considered constitutionally

protected speech. See Winter, 834 F.3d 681, 694 (noting the

misleading statement clause “adds little to the permissible

ban on false statements, and what it adds cannot be

4. Throughout the Court’s analysis, it will draw comparisons

between Rule 4.1(A)(11) and Canon 5(B)(1)(c), primarily because they

use the same language. Likewise, the language of Canon 5(B)(1)(c)

has been scrutinized by both the Sixth Circuit and the Kentucky

Supreme Court. Thus, the Canon provides helpful guidance to the

Court as it analyzes Rule 4.1(A)(11).

Canon 5(B)(1)(c) provided, in relevant part, that a judge or judicial

candidate “shall not . . . knowingly, or with reckless disregard for

the truth . . . make any . . . false or misleading statements.” Winter

v. Wolnitzek, 186 F.Supp.3d 673, 681 (E.D. Ky. 2016). Rule 4.1(A)

(11) provides, in relevant part, “a judge or a judicial candidate shall

not . . . knowingly, or with reckless disregard for the truth, make

any false statement of material fact.” Rule 4.1(A)(11), Kentucky

Code of Judicial Conduct, SCR 4.300.

52a

Appendix B

squared with the First Amendment.”). As this Court has

previously stated, “[o]ne man’s soundbite is another man’s

misleading statement.” Winter, 186 F. Supp. at 697. In

Winter, the Court concluded that Canon 5(B)(1)(c), which

prohibited judges and judicial candidates from making

any “misleading statement” “knowingly, or with reckless

disregard for the truth,” as unconstitutionally vague.

Id. at 778. It is up to the public, not the government, to

determine whether political speech is true or misleading.

Id. Here, as in Winter, the Court finds that the best way

to combat misleading speech is with more speech. Id.

The Commission argues that this matter was

investigated by the Kentucky Bar Association, and no

further action was taken against the individual accused

of theft. [R. 39-5 at 1.] While the Court acknowledges

this matter was investigated, the fact that no further

action was taken can be attributed to a variety of reasons.

Because the Commission does not provide details as to why

no action was taken, it is entirely possible that no action

was taken for an entirely different reason than the fact

there was no theft.

Further, an “erroneous statement is inevitable in

free debate,” and “[t]he chilling effect of . . . absolute

accountability for factual misstatements in the course

of political debate is incompatible with [an] atmosphere

of free discussion.” Brown v. Hartlage, 456 U.S. 45, 6061, 102 S. Ct. 1523, 71 L. Ed. 2d 732 (1982) (quotation

omitted). It seems to the Court that this statement could

be taken as either an opinion or a misleading statement

on her prior disciplinary action, either of which are privy

to First Amendment protections.

53a

Appendix B

The next statement the Commission takes issue with

is: “[n]o litigants were affected by my actions, and the only

person hurt was me.” Again, the Commission argues that

this statement is false because Judge Dutton’s actions

delayed the resolution of the case. [R. 39-3 at 1.] Further,

the Commission asserted that Judge Dutton “sought to

harm litigants when [she] failed to recuse” herself from the

case. Id. Interestingly, much of the case law surrounding

First Amendment protections given to opinions is in the

defamation context. Although not completely on all fours

with the facts of this case, the aim behind Rule 4.1(A)

(11) and defamation laws are the same—to prevent harm

caused by false statements. The Court again finds Winter

v. Wolnitzek instructive.

In Winter, the District Court certified a question

to the Supreme Court of Kentucky to answer “[w]hat

constitutes a false statement?” In their opinion, the

Kentucky Supreme Court made clear that the “false

statement” section of Canon 5(B)(1)(c) prohibited only

statements of fact, rather than of opinion. Winter, 482

S.W.3d at 779. In their certification opinion, the Supreme

Court of Kentucky concluded that Canon 5(B)(1)(c), does

not “cover expressions of opinion because expressions

of an opinion do not implicate a statement that is not

factually true.” Id. The Kentucky Supreme Court went

on to conclude that Canon 5(B)(1)(c) does not “extend to

expressions of subjective opinions or innocuous campaigntrail ‘puffing.’” Id.

54a

Appendix B

Albeit a different rule, because the same language is

used, the Court finds the certification opinion instructive

on the state’s intent behind Rule 4.1(A)(11). Ultimately,

the Court finds that Judge Dutton’s statement is a matter

of opinion and not subject to Rule 4.1(A)(11). From her

perspective, the matter has been fully resolved, and she is

the one still dealing with repercussions. The Commission

has a different perspective. However, difference in

perspectives does not make Judge Dutton’s statement

recklessly or knowingly false.

In addition to Summary Judgment, the Plaintiff

also asks for a Permanent Injunction. 5 [R. 34 at 21.]

The standard for granting a permanent injunction is

essentially the same as that for a preliminary injunction,

except that the plaintiff must show actual success on the

merits rather than a mere likelihood of success. Herrell

v. Benson, 261 F. Supp. 3d 772, 776 (E.D. Ky. 2017) (citing

Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546

n.12, 107 S. Ct. 1396, 94 L. Ed. 2d 542 (1987)). A plaintiff

seeking a permanent injunction also must demonstrate

that (1) it has suffered an irreparable injury; (2) there is

no adequate remedy at law; (3) considering the balance of

5. In the usual course, a district court should conduct an

evidentiary hearing before issuing a permanent injunction. See

Wedgewood Ltd. Partnership I v. Township Of Liberty, Ohio, 610

F.3d 340, 349 (6th Cir. 2010). However, where no factual issues remain

for trial, a district court’s decision to grant a permanent injunction

without a hearing will be upheld if summary judgment was properly

granted. Id.

55a

Appendix B

hardships between the plaintiff and defendant, a remedy

in equity is warranted; and (4) it is in the public’s interest

to issue an injunction. Audi AG v. D’Amato, 469 F.3d 534,

550 (6th Cir. 2006) (citing eBay Inc. v. MercExchange,

LLC, 547 U.S. 388, 126 S. Ct. 1837, 1839, 164 L. Ed. 2d

641 (2006)).

Inasmuch as the Court has determined that summary

judgment should be entered into in Judge Dutton’s favor

with respect to Rule 4.1(A)(11), the first requirement of

success on the merits is satisfied. Additionally, Judge

Dutton has established that she has suffered an irreparable

injury. An injury is irreparable when it cannot be fully

compensated by money damages. Overstreet v. LexingtonFayette Urban Cnty. Government, 305 F.3d 566, 578 (6th

Cir. 2002). And, where there is a constitutional violation

established, a finding of irreparable injury is mandated.

See ACLU v. McCreary Cnty., 354 F.3d 438, 445 (6th Cir.

2003) (“[I]f it is found that a constitutional right is being

threatened or impaired, a finding of irreparable injury is

mandated.”). The balance of hardships, likewise, militates

in favor of an injunction. While an injunction would

presumably harm the Commission by preventing them

from administering the constitutional application of the

Rule, because the Court has found their application of Rule

4.1(A)(11) as-applied to Judge Dutton is unconstitutional,

the Court finds the Commission is not harmed. Last, it

is in the public’s interest to prevent the unconstitutional

application of Rule 4.1(A)(11). See Martin-Marietta Corp.

v. Bendix Corp., 690 F.2d 558, 568 (6th Cir. 1982) (“It is in

the public interest not to perpetuate the unconstitutional

application of a statute.”).

56a

Appendix B

Accordingly, the Court will grant the requested

permanent injunction as it relates to Rule 4.1(A)(11).

However, the injunction will be limited in scope to the

parties before this Court in this case. See Trump v.

Hawaii, 585 U.S. 667, 138 S. Ct. 2392, 2425, 201 L.Ed.2d

775 (2018) (Thomas, J., concurring) (opining that universal

injunctions “prevent[ ] legal questions from percolating

through the federal courts, encourag[e] forum shopping,

and mak[e] every case a national emergency for the

courts and for the Executive Branch.”). Here is why—the

Commission’s current application of Rule 4.1(A)(11) asapplied to this set of facts is unconstitutionally chilling

Judge Dutton’s speech; however, on a set of different

facts with the same parties, it could be case that the

Commission is applying Rule 4.1(A)(11) in an entirely

constitutional way as to Judge Dutton. The Court does not

have a crystal ball to predict other situations in which this

rule may be applied against Judge Dutton. Permanently

enjoining the Commission from using Rule 4.1(A)(11)

against Judge Dutton effectively makes her immune to

speak falsely with no repercussions. While the Court

agrees that the current application of the Rule to Judge

Dutton on these facts is unconstitutional, Rule 4.1(A)(11)

still plays a narrowly-tailored role in maintaining the

honesty and integrity of the judiciary.

III

In light of the above analysis, the Court finds that

Rule 4.1(A)(11), as it applies to Judge Dutton, runs afoul of

the First Amendment. Accordingly, and the Court being

otherwise sufficiently advised, it is hereby ORDERED

as follows:

57a

Appendix B

The Plaintiff’s Motion for Summary Judgment

[R. 34] is GRANTED IN PART AND DENIED

IN PART;

The Defendant’s Motion for Summary Judgment

[R. 39] is GRANTED IN PART AND DENIED

IN PART;

The Plaintiff’s Motion for Permanent Injunction

[R. 34] is GRANTED IN PART AND DENIED

IN PART;

The Plaintiff’s request for permanent injunction

for her as-applied challenge of Rule 4.1(A)(11) is

GRANTED; and

The Judicial Conduct Commission is ENJOINED

from enforcing Rule 4.1(A)(11) as it applies to

Plaintiff Dutton’s statement in The SentinelNews article published on October 24, 2022.

This the 27th day March 2025.

/s/ Gregory F. Van Tatenhove

Gregory F. Van Tatenhove

United States District Judge

58a

Appendix

APPENDIX C — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT,

FILED AUGUST 15, 2024

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Case No. 23-5850

DONNA DUTTON,

Plaintiff-Appellant,

JIMMY SHAFFER, et al.,

Defendants-Appellees.

Filed August 15, 2024

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

EASTERN DISTRICT OF KENTUCKY

OPINION

Before: GIBBONS, WHITE, and MURPHY, Circuit

Judges.

JULIA SMITH GIBBONS, Circuit Judge. Donna

Dutton, a judge, moves to preliminarily enjoin Kentucky’s

Judicial Conduct Commission from enforcing the state’s

59a

Appendix C

Judicial Code of Conduct, arguing that certain provisions

of the Code are unconstitutional. Because the district

court abused its discretion in its assessment of whether

Judge Dutton would suffer irreparable harm, we vacate

its decision and remand the case for a fresh appraisal of

Dutton’s request.

Donna Dutton serves as a district court judge in

Kentucky’s 53rd Judicial Circuit, a position she has held

since 2006. Her husband is also an attorney.

In 2019, Dutton’s husband accused an attorney at

his law firm of theft. After Dutton’s husband confronted

him, the attorney repaid the allegedly stolen funds.

Dutton’s husband then complained to the Kentucky Bar

Association, but the KBA dismissed his complaint, and

Dutton’s husband pursued no further civil or criminal

remedies.

Several months later, the accused attorney—now

practicing law elsewhere—appeared as defense counsel in

a case assigned to Judge Dutton. The attorney moved for

Dutton’s recusal, but she refused. From the bench, Dutton

accused the attorney of stealing from her husband, and she

warned the attorney’s co-counsel that the attorney would

not “be conflicted out forever.” DE 10-1, Agreed Order of

Suspension, Page ID 140. The attorney interpreted this

statement as a threat, and he sought courtroom video

60a

Appendix C

of Dutton’s remarks. Dutton attempted to suppress the

video by pressuring the county clerk and a fellow judge to

withhold access. That effort failed, and Dutton ultimately

recused herself from the case.

The foregoing episode led to a complaint against

Dutton with Kentucky’s Judicial Conduct Commission (the

“Commission” or “JCC”), the body tasked with enforcing

Kentucky’s Judicial Code of Conduct (the “Code”). After

an investigation, the Commission found that Dutton’s

actions violated Rules 1.1, 1.2, 1.3, 2.2, 2.4, 2.8, 2.9, and

2.11 of the Code. The JCC publicly reprimanded Dutton,

and it suspended her from her duties for two weeks without

pay. Dutton consented to the Commission’s punishment

in lieu of formal proceedings.

In 2022, Dutton ran for reelection. Her opponent

shared an office and some administrative resources,

like secretarial staff, with the attorney her husband had

accused of theft.

Less than a month before election day, a local

newspaper ran an article discussing Dutton’s discipline

by the JCC. Given an opportunity to comment, Dutton

made the following statement:

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

61a

Appendix C

my courtroom conduct and for that I apologize.

No litigants were affected by my actions, and

the only person hurt was me.

I’m proud of the job I’ve done in my 16 years

on the bench and have worked every day to

ensure the court system protects our families

and community.

DE 10-3, The Sentinel-News Article, Page ID 158.

Dutton’s statement generated yet another complaint

to the JCC. In a notice letter, the Commission informed

Dutton of the complaint and offered her an opportunity to

respond. Dutton’s response refuted the charges. To settle

the matter, the Commission proposed a public reprimand,

asserting that Dutton’s conduct violated Rules 1.2,1

2.4(B), 2 and 4.1(11)3 of the Code. When Dutton’s counsel

asked the Commission if the draft reprimand was final,

1. Rule 1.2 provides that, “[a] judge shall act at all times in

a manner that promotes public confidence in the independence,

integrity, and impartiality of the judiciary, and shall avoid

impropriety and the appearance of impropriety.” Ky. R. Sup. Ct.

1.2.

2. Rule 2.4(B) provides that, “[a] judge shall not permit family,

social, political, financial, or other interests or relationships to

influence the judge’s judicial conduct or judgment.” Ky. R. Sup.

Ct. 2.4(B).

3. Rule 4.1 provides that, “a judge or a judicial candidate shall

not: . . . (11) knowingly, or with reckless disregard for the truth,

make any false statement of material fact[.]” Ky. R. Sup. Ct. 4.1(11).

62a

Appendix C

the Commission’s attorney responded that, “[i]f you have

proposed changes, send them to me and I will discuss with

the Commission.” DE 10-5, Mando Email, Page ID 168.

Rather than negotiate with the Commission, Dutton

filed suit in the United States District Court for Eastern

District of Kentucky, alleging that Rules 1.2, 2.4(B), and

4.1(11) of Kentucky’s Judicial Code of Conduct violate the

First Amendment, both facially and as applied to Dutton’s

conduct. Dutton then moved the district court for a

preliminary injunction preventing the JCC from formally

disciplining her for the duration of the proceedings. The

district court denied Dutton’s motion, and Dutton timely

appealed. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1292(a)(1).

II.

Faced with a request for a preliminary injunction,

the district court considers four factors: “(1) whether

the movant has a strong likelihood of success on the

merits; (2) whether the movant would suffer irreparable

injury without the injunction; (3) whether issuance of the

injunction would cause substantial harm to others; and (4)

whether the public interest would be served by issuance

of the injunction.” City of Pontiac Retired Emps. Ass’n

v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc)

(quoting PACCAR Inc. v. TeleScan Techs., LLC, 319 F.3d

243, 249 (6th Cir. 2003)). Typically, the court conducts

this inquiry “as a balancing test,” weighing “the strength

of the four factors against one another.” D.T. v. Sumner

Cnty. Schs., 942 F.3d 324, 326 (6th Cir. 2019). Yet that

63a

Appendix C

best practice comes with two relevant caveats. First,

the presence of irreparable injury is an “indispensable”

factor. Id. And second, “[w]hen a party seeks a preliminary

injunction on the basis of a potential violation of the First

Amendment, the likelihood of success on the merits will

often be the determinative factor.” Jones v. Caruso, 569

F.3d 258, 265–66 (6th Cir. 2009) (quoting Connection

Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1988)).

This is “because the question[] of harm to the parties

. . . generally cannot be addressed properly in the First

Amendment context without first determining if there is a

constitutional violation.” Connection Distrib., 154 F.3d at

288. We review the district court’s denial of a preliminary

injunction for abuse of discretion. Speech First, Inc. v.

Schlissel, 939 F.3d 756, 763 (6th Cir. 2019).

III.

The district court denied Dutton’s motion based on

its analysis of only one of the four preliminary injunction

factors: irreparable injury. Relying on our decision in

Fischer v. Thomas, 78 F.4th 864 (6th Cir. 2023) (Fischer

II), the district court eschewed analysis of Dutton’s

likelihood of success on the merits, of the risk of

substantial harm to others, and of the public interest, and

it instead found that Dutton was not entitled to injunctive

relief strictly because she could not show that she faced

a threat of imminent, irreparable harm. But Fischer is

distinguishable because it did not involve a continuing

violation. Because its analysis does not apply here, and

because the district court should have analyzed Dutton’s

likelihood of success on the merits as logically antecedent

64a

Appendix C

to a finding of irreparable injury, we vacate the district

court’s order and remand for consideration of all four

preliminary injunction factors together.

In Fischer, two Kentucky judicial candidates

sued the JCC after they learned that the Commission

planned to investigate their campaign speech. Id. at 866.

The candidates had identified as “conservative[s]” and

“Republican[s]” in their campaign literature, and both

had received and accepted endorsements from pro-life

organizations. Id. at 867. In a notice letter, the Commission

informed the candidates of allegations that their speech

violated Rules 4.1(A)(6), (A)(7), and (A)(13) of the Code,

which maintain the non-partisan nature of Kentucky’s

judicial elections. Fischer v. Thomas, 52 F.4th 303, 306

(6th Cir. 2022) (per curiam) (Fischer I). The Commission

did not identify the specific statements at issue or the

complaining party. The letter simply asked the candidates

to formally respond in writing and invited them to attend

an informal conference to discuss the allegations in

greater detail. Id.

Rather than wait for the conference, which was set

to occur only two weeks before the upcoming election,

the candidates sued, arguing that the First Amendment

protected their allegedly infringing speech. Fischer II,

864 F.4th at 867. The candidates moved for a preliminary

injunction that would both allow their continued campaign

speech and block the Commission from initiating formal

disciplinary proceedings for the duration of their suit. Id.

The district court denied the candidates’ request, and the

candidates appealed. Id.

65a

Appendix C

We addressed the candidates’ appeal in two stages.

First, in Fischer I, we addressed the candidates’ motion

for emergency injunctive relief under Federal Rule of

Appellate Procedure 8(a)(2), which asked us to enjoin the

Commission from initiating formal proceedings while

the candidates’ appeal of the preliminary injunction was

pending. Fischer I, 52 F.4th at 307–13; see Fed. R. A pp. P.

8(a)(2). Analyzing the candidates’ likelihood of success on

the merits, we found that “[w]hen a judicial commission

sends vague and threatening letters to candidates on the

eve of election, it puts the candidates to a choice between

self-censorship and uncertain sanctions.” Fischer I, 52

F.4th at 313. Because “the First Amendment protect[ed]

the candidates from having to make such a choice,” we

found that the candidates were likely to succeed on the

merits. Id. And eleven days before the election, we ordered

the Commission to hold off on initiating formal or informal

proceedings. Id.

Election day came and went, and both candidates lost

their respective races. Fischer II, 78 F.4th at 867. With

the election over, and with the emergency injunction’s

rationale reaching its expiration date, we took up the

candidates’ original request for a preliminary injunction

in Fischer II. But rather than begin with the candidates’

likelihood of success on the merits, we began by analyzing

irreparable injury, an indispensable showing for those

seeking a preliminary injunction. Id. at 868. Although the

former candidates alleged irreparable harm in four ways,

we found that none sufficed to warrant injunctive relief.

66a

Appendix C

As relevant to this suit, we rejected two of the

candidates’ four theories of irreparable harm due to the

nature of their speech (campaign-related) and the timing

of our consideration of their request (after the campaign).

Id. at 868–69. The former candidates claimed that the

Commission’s formal proceedings would irreparably harm

them first by “chill[ing] their and other candidates’ speech

in future campaigns,” and second by “punish[ing] them

for their past protected speech.” Id. at 868. We rejected

the former theory of harm because there was no ongoing

election, and the former candidates had not indicated that

there would be another election before the case reached

final judgment. Id. Thus, the alleged “chill” over the

former candidates’ speech rights was not “immediate,”

and the candidates were free to “renew their request for

preliminary relief” when an election “loom[ed].” Id. We

rejected the second theory of harm because “the only

speech threatened by the Commission’s proceedings

had already occurred.” Id. at 869. Thus, neither formal

proceedings nor sanction by the Commission would

“affect the former candidates’ ability to speak” moving

forward, making the alleged harm non-irreparable (i.e.,

compensable by damages). Id. (“[I]f a court finds that the

past speech was protected, then the appropriate remedy

is damages, not an injunction.”).

Here, the district court found a lack of irreparable

injury—and denied Dutton a preliminary injunction—by

following our Fischer II analysis to a fault. The court

rejected Dutton’s contention that the Commission’s

formal proceedings would chill her speech by quoting

from Fischer II itself, concluding that “because ‘there’s

no ongoing election’ and [Dutton] has not ‘indicated that

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Appendix C

there will be before the case reaches final judgment . . .

the risk of chill isn’t immediate.’” DE 17, Op. & Order,

Page ID 213–14 (quoting Fischer II, 78 F.4th at 868).

Similarly, the court rejected Dutton’s contention that

formal proceedings would unconstitutionally punish her

for protected speech based on its finding that “the only

speech threatened by the Commission’s proceedings

has already occurred.” Id. at 213 (quoting Fischer II,

78 F.4th at 869). Because “Dutton does not allege that

she intends to engage in similar speech anytime soon,”

the court concluded, “the appropriate remedy” for any

abridgment of Dutton’s protected speech “is damages,

not an injunction.” Id. (quoting Fischer II, 78 F.4th at 869).

But the district court’s analysis fails to recognize

that Dutton’s situation differs from that of the former

candidates in Fischer II. Unlike the plaintiffs in Fischer,

who wanted to self-identify as Republicans and accept the

endorsement of pro-life groups only insofar as they were

running for judicial office, Dutton wants to express her

threatened speech outside the election season. Further,

Dutton is a sitting judge, so her speech—unlike that of

the former candidates—is subject to the Code on a goforward basis. The district court’s observation that there

is no looming election is therefore irrelevant to deciding

whether Dutton’s speech is currently chilled. Moreover,

Dutton explicitly alleges in her complaint that absent a

Commission enforcement action, “[s]he will respond to

media inquiries” regarding her 2020 reprimand “in the

same way.” DE 1, Compl., Page ID 10 ¶ 35. Thus, the

district court’s conclusion that Dutton “does not allege

that she intends to engage in similar speech anytime soon”

is incorrect. DE 17, Op. & Order, Page ID 213. So too

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Appendix C

with the district court’s conclusion that “the only speech

threatened by the Commission’s proceedings has already

occurred.” Id.

What is clear from the record and from the parties’

briefing is that Dutton wants to continue telling her side of

the story in a way that the Commission finds objectionable

under the Code. Equally clear from the record is the fact

that the Commission stands at the ready to discipline

Dutton under its view of the Code, chilling Dutton’s speech.

See Schlissel, 939 F.3d at 764. Whether the Commission’s

application of the Code to Dutton’s speech in fact violates

the First Amendment is a question we reserve for a

later juncture. For now, it is sufficient to say, as we have

many times before, that “[w]hen constitutional rights are

threatened or impaired, irreparable injury is presumed.”

Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012)

(citing ACLU of Ky. v. McCreary County, 354 F.3d 438, 445

(6th Cir. 2003)); see also Connection Distrib., 154 F.3d at

288 (“With regard to the factor of irreparable injury . . . it

is well-settled that ‘loss of First Amendment freedoms, for

even minimal periods of time, unquestionably constitutes

irreparable injury.’” (quoting Elrod v. Burns, 427 U.S. 347,

373 (1976))). Thus, “insofar as a successful showing on the

first [preliminary injunction] factor mandates a successful

showing on the second factor,” the district court should

have assessed Dutton’s likelihood of success on the merits

before reaching the irreparable injury question.4 ACLU of

4. Because Dutton alleges a continuing constitutional

violation, the district court should have first considered her

likelihood of success on the merits. See Connection Distrib., 154

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Ky., 354 F.3d at 445. By failing to do so, the district court

abused its discretion. Appalachian Reg’l Healthcare, Inc.

v. U.S. Nursing Corp., 68 F.4th 324, 331 (6th Cir. 2023)

(district court abuses its discretion by “misapplying the

correct legal standard” (quoting King v. Harwood, 852

F.3d 568, 579 (6th Cir. 2017))).

IV.

That leaves the question of remedy. Dutton asks us to

reverse the district court and remand with instructions

to enter the requested preliminary injunction, a course

that would require us to “resolve the ultimate question”

of Dutton’s likelihood of success on the merits. Schlissel,

939 F.3d at 770. Yet while we review the district court’s

assessment of likelihood of success on the merits de

novo, perhaps counseling in favor of Dutton’s suggested

approach, “we grant the district court substantial

deference in its weighing of the preliminary injunction

factors.” Id. Accordingly, the proper course in this case

is to vacate the district court’s decision and remand

with instructions to conduct the preliminary injunction

analysis in its entirety, keeping in mind that “when a party

F.3d at 244. However, assessing the first prong of the preliminary

injunction analysis is not always essential where there is no

allegation of a continuing violation. In Fischer II, for example, the

plaintiffs were no longer subject to the Code of Judicial Conduct. 78

F.4th at 868–69. As a result, the panel concluded that there was no

risk of irreparable injury, regardless of whether the plaintiffs were

likely to succeed on the merits. Id. Accordingly, first assessing the

“likelihood of success” prong may be unnecessary in other cases

where there is no ongoing risk of irreparable harm.

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Appendix C

seeks a preliminary injunction on the basis of a potential

constitutional violation, likelihood of success on the merits

will often be the determinative factor.” Obama for Am.,

697 F.3d at 436 (quoting Jones, 569 F.3d at 265).

For the foregoing reasons, we vacate the judgment

of the district court and remand for further proceedings

consistent with this opinion.

71a

APPENDIX D —Appendix

OPINIONDAND ORDER OF

THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF KENTUCKY,

CENTRAL DIVISION AT FRANKFORT,

FILED SEPTEMBER 15, 2023

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

CENTRAL DIVISION

FRANKFORT

DONNA DUTTON,

Plaintiff,

HON. JIMMY SHAFFER, et al.,

Defendants.

Civil No. 3:23-cv-00039-GFVT

OPINION & ORDER

This matter is before the Court on Plaintiff Donna

Dutton’s Motion for Preliminary Injunction. [R. 4.] While

running for election, Judge Dutton gave a statement to

a local newspaper. [R. 1 at 6.] The Kentucky Judicial

Conduct Commission informed Judge Dutton that her

statement may have violated the Code of Judicial Conduct.

[R. 1-5.] Judge Dutton now asks the Court to prevent the

Commission from bringing an enforcement action under

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Appendix D

the First Amendment. [R. 1.] But Judge Dutton won her

election. Thus, she does not face a threat of imminent,

irreparable harm. Her request for a preliminary injunction

is DENIED.

Judge Dutton was a candidate for the 53rd Judicial

Circuit in the 2022 election cycle. [R. 1 at 4.] Days before

the election, a local Kentucky newspaper published an

article focused on a previous suspension that Judge

Dutton received. Id. at 6. The article included a response

that Judge Dutton provided to the newspaper, where she

attempted to explain the suspension. Id. She then won

her election. Id.

Months later, the Defendants sent Judge Dutton

a letter informing her that a complaint had been filed

against her with the Commission. [R. 1-5.] The complaint

alleged that Judge Dutton’s response to the newspaper

was false, and the letter invited her to respond to the

complaint. Id. She did. [R. 1-6.] Attorneys for Judge

Dutton and the Commission then began a discussion about

the potential for settlement. [R. 10-5.] The Commission

sent Judge Dutton a proposed agreed order that would

settle the matter and welcomed proposed changes from

Judge Dutton. Id. at 1. If agreed upon, the proposed

agreed order would publicly reprimand Judge Dutton

and state that she violated several portions of the Code of

Judicial Conduct by responding to the newspaper article.

[R. 10-4.]

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Appendix D

Rather than proposing changes, Judge Dutton

brought this action against the Defendants. [R. 1.] She

now moves for an order enjoining the Defendants from

initiating formal enforcement proceedings against her

for her comments. [R. 4.] She argues that such formal

proceedings would violate the First Amendment and

cause her irreparable harm. Id. On the other hand, the

Defendants argue that this Court must abstain from

exercising jurisdiction over Judge Dutton’s claims and

allow the state process to continue. [R. 10.]

A preliminary injunction is an extraordinary remedy

that should be granted only if the movant carries his or

her burden of proving that the circumstances “clearly

demand it.” Overstreet v. Lexington—Fayette Urban

Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002) (citing Leary

v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000)). The

purpose of a preliminary injunction is to “preserve the

relative positions of the parties until a trial on the merits

can be held.” Robertson v. U.S. Bank, N.A., 831 F.3d 757,

761 (6th Cir. 2016) (internal quotations omitted).

To obtain a preliminary injunction, the movant must

show that (1) they have a strong likelihood of success on

the merits, (2) they are likely to suffer irreparable harm

if the injunction is not issued, (3) the balance of equities

favors an injunction, and (4) an injunction furthers the

public interest. See Overstreet, 305 F.3d at 573. Yet when

a party asserts that the Court should apply the Younger

abstention doctrine, a court “must first address the

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Appendix D

Younger issue prior to engaging in any analysis on the

merits of the case.” Kalniz v. Ohio State Dental Bd., 699

F. Supp. 2d 966, 970 (S.D. Ohio 2010) (citing Tenet v. Doe,

544 U.S. 1, 6, n. 4, 125 S. Ct. 1230, 161 L. Ed. 2d 82 (2005)

and Steel Co. v. Citizens for Better Env’t., 523 U.S. 83, 100,

n.3, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998)). If Younger

applies, a court “may not retain jurisdiction over the case.”

See O’Neill v. Coughlan, 490 F. App’x 733, 737 (6th Cir.

2012) (citing Juidice v. Vail, 430 U.S. 327, 348, 97 S. Ct.

1211, 51 L. Ed. 2d 376 (1977) (Stewart, J., dissenting)). The

Defendants argue that Younger abstention applies here.

Abstention doctrines “promote harmony between the

state and federal courts” and reflect the belief that “the

state courts should be left to decide matters of unique

importance to them.” Summit Cty. Crisis Pregnancy

Ctr., Inc. v. Fisher, 830 F. Supp. 1029, 1032 (N.D. Ohio

1993). One abstention doctrine, Younger, “cautions federal

courts against exercising jurisdiction in cases where they

are asked to enjoin pending state proceedings.” Fowler

v. Benson, 924 F.3d 247, 255 (6th Cir. 2019) (citing New

Orleans Pub. Serv., Inc. v. Council of City of New Orleans,

491 U.S. 350, 364, 109 S. Ct. 2506, 105 L. Ed. 2d 298 (1989)).

Younger applies in only “three exceptional categories”

of cases: (1) parallel, pending state criminal proceedings,

(2) state civil proceedings that are akin to criminal

prosecutions, and (3) state civil proceedings that implicate

a state’s interest in enforcing court orders and judgments.

Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72-73, 134 S.

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Appendix D

Ct. 584, 187 L. Ed. 2d 505 (2013). In all cases, there must

be a state proceeding that was pending at the time that

the action was filed in federal court. See Kelm v. Hyatt, 44

F.3d 415, 422 (6th Cir. 1995); Fed. Express Corp. v. Tenn.

Pub. Serv. Com., 925 F.2d 962, 969 (6th Cir. 1991).

With nearly identical facts, the Sixth Circuit has

held that no pending state proceeding existed. Winter v.

Wolnitzek, 834 F.3d 681, 688 (6th Cir. 2016). In Winter,

an individual running for a judicial election made various

statements while campaigning that concerned the Judicial

Conduct Commission. Id. at 686. The Commission sent

her a letter informing her that a complaint had been

filed against her and requesting that she respond to

the allegations in writing. Id. at 687. The letter listed

particular statements and alleged that they violated the

Code of Judicial Conduct. Winter v. Wolnitzek, 186 F.

Supp. 3d 673, 679 (E.D. Ky. 2016). The Commission issued

the letter after deciding that there was “probable cause for

action.” Winter, 834 F.3d at 686. The plaintiff contacted

the Commission and asked for additional details, but the

Commission refused. Winter, 186 F. Supp. 3d at 679. The

Sixth Circuit held that “a finding of probable cause does

not necessarily mean a formal proceeding exists,” and in

the “absence of an ongoing enforcement action, Younger

has no role to play.” Winter, 834 F.3d at 688.

Like in Winter, Judge Dutton made a statement

that the Commission found concerning. [R. 1 at 6.] The

Commission sent Judge Dutton a letter informing her that

“a complaint has been filed against [her]” and “requested

[she] file a written response to the allegations.” [R.

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Appendix D

1-5.] The letter listed the particular statements Judge

Dutton made and alleged that they violated the Code of

Judicial Conduct. Id. The Commission issued the letter

after determining that the complaint showed “a basis for

investigation of a matter within the jurisdiction of the

Commission.” Ky. R. Sup. Ct. 4.170(1). These are the same

procedures as those in Winter. Thus, Winter dictates

that no ongoing enforcement action existed at this point.

Winter, 834 F.3d at 688.

Only, here, Judge Dutton responded to the allegations

and the Commission proposed an agreed order to settle

the matter. [R. 1 at 7-8; R. 1-7.] The proposed agreed order

would have Judge Dutton stipulate to the violations and

receive a public reprimand. [R. 1-7.] But Judge Dutton’s

response and the Commission’s proposed agreed order

are not sufficient to create an ongoing state proceeding.

Neither a response nor a settlement offer moves the

Commission’s investigation out of the preliminary stage.

See Ky. R. Sup. Ct. 4.170. Indeed, the Commission never

initiated formal proceedings. See Ky. R. Sup. Ct. 4.180.

Moreover, the Commission admits that “all parties

understood” that the draft agreed order “was just that—a

draft.” [R. 10 at 3.] It represented a starting point for

negotiations before the Commission considered formal

charges. See id. Therefore, like in Winter, no ongoing

state proceedings exist. And in the “absence of an ongoing

enforcement action, Younger has no role to play.” Winter,

834 F.3d at 688.

The Commission contends that if Judge Dutton faces

a credible threat

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