7th Circuit upholds Indiana's judicial canons

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At a time when the legal community is caught up in controversies about how judges are selected and whether they can remain impartial, the 7th Circuit Court of Appeals has weighed in on that national debate and ruled that states have the authority to self-regulate on those issues as it relates to judicial canons.

With that, a three-judge appellate panel on Aug. 20 upheld Indiana’s judicial canons and found they aren’t unconstitutionally restrictive of free speech.

In Torrey Bauer, David Certo, and Indiana Right to Life v. Randall T. Shepard, et al. No. 09-2963, the panel affirmed a late 2008 ruling by U.S. Judge Theresa Springmann in the Northern District of Indiana that had dismissed the judicial speech case that challenged various parts of the state canons. This 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 some expressed hesitancy to do so because of the judicial canons.

In an April 2008 suit, the group sued 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 in that 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.

The panel relied on its spring decision in the Wisconsin case of Siefert v. Alexander, 608 F.3fd 974 (7th Circuit 2010), which simultaneously held that the state couldn’t prevent judges from being members of political parties but it could restrict partisan activities such as endorsing a non-judicial candidate or personal fundraising. That decision relied heavily on the Supreme Court of the United States ruling in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), regarding that free-speech issue in relation to judicial elections and campaigns, as well as the more recent ruling last year in Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2266-67 (2009), and how newer lines of litigation have delved into subtopics.

“The judicial system depends on its reputation for impartiality; it is public acceptance, rather than the sword or the purse, that leads decisions to be obeyed and averts vigilantism and civil strife,” Chief Judge Frank Easterbrook wrote. “Unless a judge who speaks on behalf of a party, or serves as a party’s officer, recuses in all of these cases – which is to say, almost every case that comes before a court – the public would have good reason to believe that the judge is deciding according to the party’s platform rather than the rule of law. Allowing judges to participate in politics would poison the reputation of the whole judiciary, and seriously impair public confidence, without which the judiciary cannot function.”

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 Easterbrook wrote in the 29-page opinion.

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.

George Patton Patton

Representing the Indiana Judicial Qualifications Commission, attorney George T. Patton at the Washington, D.C., office of Bose McKinney & Evans called the ruling 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.”

Jim Bopp Bopp

A week after the ruling, Terre Haute attorney James Bopp for Indiana Right To Life said a decision hadn’t yet been made about the next step in this litigation – whether he would seek a rehearing en banc before the full 7th Circuit or possibly file a writ of certiorari with the Supreme Court of the United States.

But he dismissed the 7th Circuit’s findings as going against the mainstream of what other federal courts have done on these issues.

“While they purport to protect the First Amendment, they are also saying it doesn’t apply when you’re talking about this case,” Bopp said. “I don’t understand how this is consistent with the First Amendment applying and protecting judicial campaigns when in the face of that, (Indiana) can prohibit ordinary campaign practices such as judges asking for money.”•


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  1. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.