Immunity Shaky for Official Who Fired Lawyer Over Islam Tweets

A federal appeals court panel in Cincinnati expressed skepticism that an official at the Tennessee Supreme Court’s legal ethics board should be able to avoid a lawsuit by a lawyer who says his termination for tweeting about Muslims violated his First Amendment rights.

Judges on the US Court of Appeals for the Sixth Circuit pushed back during oral argument Wednesday on the claim that the employment decision merited immunity because it was a judicial function meant to protect the integrity of the disciplinary process for attorneys practicing in the state.

The case has the potential to clarify the boundary between judicial actions triggering immunity from lawsuits and administrative actions that do not, particularly in the context of employment lawsuits alleging discrimination or other workplace misconduct.

The attorney for the Tennessee Supreme Court’s Board of Professional Responsibility and the board’s chief disciplinary counsel likened the firing to “permanent recusal.”

“You characterize it as a recusal issue, but isn’t it really just a personnel matter, which is typically an administrative function and not a judicial function?” asked Judge Stephanie Davis, a Biden appointee.

Tennessee Assistant Attorney General David Rudolph said the decision to fire Jerry Morgan had elements of both, as it arose from allegations in lawyer Brian Manookian’s motion to disqualify Morgan from a disciplinary case because of his anti-Muslim tweets. There were also complaints made against Morgan in a second matter, Rudolph said.

“I usually think of a judicial immunity” situation as involving “a litigant or someone out in the general public that’s trying to sue the actor,” responded Judge John Bush, a Trump appointee. “Whereas here, this is an internal matter, it’s not somebody outside of the office,” he said, adding that “I guess you do have that outside component for Manookian.”

Bigotry Complaint

Morgan’s appeal is challenging a federal district judge’s decision granting quasi-judicial immunity to Sandra Garrett, the official who fired him, thus allowing her to avoid being sued. He’s also appealing the grant of sovereign immunity to the legal ethics board, which the lower court said was an arm of the state.

Garrett fired Morgan after Manookian, a lawyer who is married to a Muslim woman, moved to disqualify Morgan from his discipline case in 2020 for alleged anti-Muslim bigotry.

Manookian cited various Twitter posts from Morgan, including tweets warning that Muslims will “take everything we give them” and use it “against us,” declaring that the “#1 issue of our time” is “stopping Muslims,” and stating that the “Constitution does NOT REQUIRE us to let in more Muslims!”

Garrett used Manookian’s disqualification motion, a separate misconduct complaint from a different attorney, and Morgan’s duty to handle cases without bias as justifications for his termination.

But Morgan contends his tweets, which he posted before joining the Board of Professional Responsibility, are political speech protected by the First Amendment and echo views expressed by former President Donald Trump.

‘Pretty Big Distinction’

At oral argument, Rudolph pointed to the Sixth Circuit’s 1997 decision in Barrett v. Harrington, which said actions like recusals are intended to protect the integrity of the judicial process and thus warrant judicial immunity.

“But there is a pretty big distinction between recusal and termination,” responded Judge Alice Batchelder, a George H.W. Bush appointee.

Bush questioned Morgan’s lawyer, Gary Blackburn of the Blackburn Firm, about whether the Sixth Circuit panel should address qualified immunity for Garrett if the court agrees she shouldn’t receive judicial immunity. Qualified immunity shields government officials from constitutional claims when their actions weren’t a clearly established violation of the law.

“Yes, your honor, and I realize the reach of that,” Blackburn said. “The problem is that we think what occurred here was clearly wrong and, if this case is remanded on that basis, then the next thing we will face will be a motion to dismiss based upon qualified immunity.”

The case is Morgan v. Bd. of Pro. Resp., 6th Cir., No. 22-05200, oral argument 10/19/22.