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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. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  2. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  3. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  4. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  5. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

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