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New conduct code impacts judicial speech case

March 27, 2009

A federal judge in Fort Wayne wants parties to start over and file new briefs in a challenge to the state's judicial canons, on claims that the rules wrongfully restrict judicial candidates from filling out surveys about their views on issues they might someday hear in court.

U.S. District Judge Theresa Springmann in the Northern District of Indiana issued a four-page order Monday in Torrey Bauer, et al. v. Randall T. Shepard, et al., No. 3:08-CV-196, which had been scheduled to be fully briefed in April.

The judicial-speech case stems from a survey the non-profit Indiana Right to Life Committee sent requesting candidates state their views about policies and court decisions related to abortion, euthanasia, and other issues prior to the primary election. Most declined to reply to the survey, citing an advisory opinion from the Judicial Qualifications Commission warning judicial candidates against making "broad statements on disputed social and legal issues."

Believing the rule goes too far and infringes on candidates' First and 14th Amendment rights, Indiana Right to Life filed the suit almost a year ago on behalf of Bauer, an attorney who was a candidate for Kosciusko Superior Court, and Marion Superior Judge David Certo, who has since been elected but 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 Shepard is named as the lead defendant, as he chairs the Indiana Judicial Qualifications Commission, and is among its seven members.

Terre Haute attorney Jim Bopp Jr. argued that Indiana can still have a rule barring candidates from saying how they would rule on specific cases, but that does not prohibit them from commenting on broader issues.

Accepting that argument in May 2008, Judge Springmann granted a preliminary injunction that stops the state judicial commission from enforcing those rules.

But because the complaint involved a pre-2009 version of the Indiana Code of Judicial Conduct, and has now been revised, the case is effectively moot because that previously cited code no longer has any legal effect. To keep the case alive, the judge wants amended briefs reflecting the current code and whatever legal arguments may apply. Judge Springmann noted that there might not be any differences in the two versions, but that the parties disagree about the effect, meaning, and constitutionality of the current code and that needs to be addressed.

"Because of these problems and unusual procedural posture stemming from the timing and order of the parties' filings, the Court is using its inherent power to control its docket and achieve the orderly disposition of the case to deny the two pending Motions without prejudice because they are moot, vacate the current briefing and ruling schedule, and set a new schedule for pleadings and briefings."

This will allow both sides to have a full opportunity to present their case arguments, Judge Springmann noted.

A status conference is set for Monday, but plaintiffs have until April 6 to file an amended complaint reflecting the 2009 code, and defendants have until April 16 to file an answer. Motions and responses for summary judgment should be filed throughout May. The judge will issue a summary judgment decision by July 1, she said.

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