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. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  2. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  3. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

  4. I am one of Steele's victims and was taken for $6,000. I want my money back due to him doing nothing for me. I filed for divorce after a 16 year marriage and lost everything. My kids, my home, cars, money, pension. Every attorney I have talked to is not willing to help me. What can I do? I was told i can file a civil suit but you have to have all of Steelers info that I don't have. Of someone can please help me or tell me what info I need would be great.

  5. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

ADVERTISEMENT