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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. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

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