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SCOTUS recusal ruling cited in judicial-canon case

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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.

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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