ILNews

SCOTUS recusal ruling cited in judicial-canon case

Back to TopCommentsE-mailPrintBookmark and Share

A federal judge in Fort Wayne is deciding whether the state's judicial conduct code should be able to restrict judicial candidates from answering surveys about views on issues they might someday hear in court.

Now, a recent ruling from the Supreme Court of the United States is being used in that federal case to delve further into what states should be allowed to do in order to balance free speech with possible perceptions of bias on the bench.

The judicial-speech case is Torrey Bauer, et al. v. Randall T. Shepard, et al., No. 3:08-CV-196, which stems from a survey the non-profit Indiana Right to Life Committee sent to judicial candidates asking them pre-election to state their 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 Indiana Judicial Qualifications Commission that warned judicial candidates against making "broad statements on disputed social and legal issues."

But deciding the rule goes too far and infringes on candidates' First and 14th amendments, the committee sued in April 2008 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 a judicial candidate running for the first time after being appointed by the governor in 2007 to fill a vacancy.

Chief Justice Randall T. Shepard is named as the lead defendant because he chairs the Indiana Judicial Qualifications Commission.

Both sides filed newly amended complaints and responses earlier this year as a result of the state adopting a revised judicial code in January. Both sides have filed motions for summary judgment, and the case remains open pending a summary judgment decision from U.S. District Judge Theresa L Springmann in Fort Wayne.

But in the past week, attorneys have filed briefs citing the June 8 decision of Hugh M. Caperton, et al. v. A.T. Massey Coal Co., Inc., No. 08-22, pointing to it as possible authority for the court to consider in its ongoing case. In that landmark 5-4 ruling, the SCOTUS held that elected judges must recuse themselves in cases involving interested parties or litigants who've made large campaign contributions that might create an appearance of bias, because those donations could be perceived to deny litigants of their due process rights.

Counsel for the Indiana Judicial Nominating Commission filed a five-page notice of supplemental authority June 18, saying the Caperton decision supports its canons designed to ensure due process through judicial open-mindedness.

On Tuesday, Terre Haute attorney Jim Bopp filed a response on behalf of his clients, saying the case doesn't apply. That SCOTUS ruling applied only to "an exceptional case," and not others such as this case, Bopp wrote. He also noted that a state can adopt as rigorous a recusal standard as it likes, so as long as it doesn't run afoul of the U.S. Constitution.

"Thus, a State could not require judges to recuse themselves in all cases because they belong to a particular political party, nor can they require recusal simply because a judge has announced her views on a disputed legal or political issue," the plaintiffs' response says.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

  2. The Department of Education still has over $100 million of ITT Education Services money in the form of $100+ million Letters of Credit. That money was supposed to be used by The DOE to help students. The DOE did nothing to help students. The DOE essentially stole the money from ITT Tech and still has the money. The trustee should be going after the DOE to get the money back for people who are owed that money, including shareholders.

  3. Do you know who the sponsor of the last-minute amendment was?

  4. Law firms of over 50 don't deliver good value, thats what this survey really tells you. Anybody that has seen what they bill for compared to what they deliver knows that already, however.

  5. My husband left me and the kids for 2 years, i did everything humanly possible to get him back i prayed i even fasted nothing worked out. i was so diver-stated, i was left with nothing no money to pay for kids up keep. my life was tearing apart. i head that he was trying to get married to another lady in Italy, i look for urgent help then i found Dr.Mack in the internet by accident, i was skeptical because i don’t really believe he can bring husband back because its too long we have contacted each other, we only comment on each other status on Facebook and when ever he come online he has never talks anything about coming back to me, i really had to give Dr.Mack a chance to help me out, luckily for me he was God sent and has made everything like a dream to me, Dr.Mack told me that everything will be fine, i called him and he assured me that my Husband will return, i was having so many doubt but now i am happy,i can’t believe it my husband broke up with his Italian lady and he is now back to me and he can’t even stay a minute without me, all he said to me was that he want me back, i am really happy and i cried so much because it was unbelievable, i am really happy and my entire family are happy for me but they never know whats the secret behind this…i want you all divorce lady or single mother, unhappy relationship to please contact this man for help and everything will be fine i really guarantee you….if you want to contact him you can reach him through dr.mac@yahoo. com..,

ADVERTISEMENT