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7th Circuit upholds Indiana judicial canons

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A three-judge federal appellate panel says that Indiana’s judicial canons are not unconstitutionally restrictive of free speech and should stand.

In what some are describing as a leading national opinion, the 7th Circuit Court of Appeals handed down its 29-page ruling today in Torrey Bauer, David Certo, and Indiana Right to Life v. Randall T. Shepard, et al., No. 09-2963. The decision affirms a ruling in late 2008 by U.S. Judge Theresa Springmann in the Northern District of Indiana, dismissing the suit.

This judicial-speech case stems from a survey the non-profit group Indiana Right to Life sent to judicial candidates before the election, asking them to state views about policies and court decisions related to abortion, euthanasia, and other issues. Most declined to reply to the survey, citing an advisory opinion from the Judicial Qualifications Commission that warned judicial candidates against making “broad statements on disputed social and legal issues.” But deciding the canons go too far and infringe on candidates’ First and 14th amendment rights, the Indiana Right To Life committee sued to have these canons struck down on behalf of Torrey Bauer, an attorney who was a candidate for Kosciusko Superior Court, and Marion Superior Judge David Certo, who at the time was running for election following his appointment to fill a vacancy.

Specifically, the case involves four conduct code provisions: one that prohibits judges and candidates from making comments that are inconsistent with judicial impartiality; one that requires recusal when impartiality might be reasonably questioned; a third that limits political activities of Indiana’s judges; and a fourth that limits fundraising activities.

Judge Springmann ruled that the Indiana Supreme Court can regulate judicial speech through its canons, and that existing rules don’t violate a judge or judicial candidate’s constitutional free speech or association rights. She’d decided that the original suit challenging the pre-2009 conduct rules was moot.

In upholding the District judge's ruling, the appellate panel made one minor modification to her judgment: dismissing the case as unripe, rather than moot, in regard to the 2008 version of the judicial canons. Everything else remains intact.

A large aspect of the 7th Circuit ruling points to the national division on this issue, which could pave the way for additional litigation and appeals.

“Nothing we can do here could create harmony among the circuits, so there is no reason to depart from the approach taken so recently in this circuit,” Chief Judge Frank Easterbrook wrote.

Though judges are not allowed to commit or promise actions, they aren’t prohibited from voicing general opinions or stances about particular issues as long as they don’t discuss their behavior in office, the panel said, noting that conduct not allowed might include judicial candidates saying they’d award damages against drug companies or give all drunk drivers harsh sentences.

The 7th Circuit declined to strike down the canons as a whole even if they contain ambiguity about what “impartiality” means, deciding instead to give the Indiana Judicial Qualifications Commission and Supreme Court a chance to clarify various issues as they are raised.

When reached by phone earlier today, Terre Haute attorney James Bopp for Indiana Right To Life said he hadn’t had a chance to review the ruling; he couldn’t be reached for comment at a later time, or to say whether he’d ask the 7th Circuit to review the issue en banc or if an appeal to the Supreme Court of the United States might be pursued.

Representing the Indiana Judicial Qualifications Commission, attorney George T. Patton at the Washington, D.C., office of Bose McKinney & Evans called the decision a decisive victory not only for Indiana’s judiciary but for the entire nation.

“This is a tour de force ruling that’s a great win for Indiana,” he said. “This strongly upholds judicial canons and the commission gets broad guidance on how it can ensure an impartial judiciary. This opinion is a clarion call for that, and in my opinion this is the best single federal Court of Appeals opinion on this across the nation.”
 

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  1. wow is this a bunch of bs! i know the facts!

  2. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  3. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  4. It's a capital offense...one for you Latin scholars..

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