ILNews

Chinn: Can of Worms Opened

Back to TopCommentsE-mailPrintBookmark and Share

iba-chinn-scottThis column is usually void of legal analysis. (Pause for various jokes told to yourself.) But in this edition, I want to highlight a recent legal opinion that bears upon an initiative of the IndyBar. I will raise more questions than I answer, and this likely won’t be the last time we will talk about the matter.

As you may know, the IndyBar has been concerned for a few years now with the reach of Caperton v. A. T. Massey Coal Co., the 2009 decision of the U.S. Supreme Court holding that in some circumstances contributions to judicial campaigns can give rise to due process violations when the judge whose campaign received the contribution fails to recuse himself or herself in a case in which the contributor is a party. Shortly after the decision came down, the IndyBar sent a letter to the Indiana Supreme Court asking that the court consider adopting rules for Caperton’s application in Indiana. The court has yet to do that.

Since then, the IndyBar has explored ways to avoid the appearance of impropriety that may be created, and in some cases has been highlighted by the media, by lawyers giving contributions to judges in front of whom they appear. The Attorneys for an Independent Bench political action committee, as one example, was initially formed as a vehicle to accept contributions for distribution to all nominated judges for those who were concerned about making contributions to specific judges in front of whom they may practice.

Again, the point is not that judges’ impartiality can reasonably be compromised by a $100 or $200 contribution from a lawyer. Nor is that level of contribution likely to invoke Capterton’s due process concerns — millions of dollars in contributions were at issue in that case. Still, we want to avoid circumstances that give rise to an appearance of partiality. And to offer a common-sense point that seems to go largely uncommented on in this context: do you think that most clients even know that the lawyers in their cases can lawfully give money to the judge’s campaign? How many clients, when told that opposing counsel had contributed to the judge’s campaign would fail to ask of his own lawyer, “well, how much did you give?”

Add to this discussion the recent case of Bloomington Magazine, Inc. v. Kiang, 961 N.E.2d 61 (Ind. Ct. App. 2012). In this case about an advertising dispute between the publisher of Bloom Magazine and a restaurateur, the trial judge denied a motion by the lawyer for the magazine to recuse the judge because the opposing lawyer had been the judge’s campaign chair for the judicial elections held two years previously. The Indiana Court of Appeals unanimously reversed the trial court’s decision denying recusal, holding that the professional (political) relationship between the judge and the lawyer was close enough in time (2008 election, 2010 case) that “a reasonable person would have a rational basis for doubting her impartiality.” The court relied in part on Rule 2.11 of the Indiana Rules of Judicial Conduct, which requires judicial disqualification when a judge’s impartiality might reasonably be questioned, including for the reason of the judge’s personal bias toward a party’s lawyer.

Attention … the can of worms is now open for business. So, how long is the “cooling-off period” before a judicial campaign chair can practice in the judge’s court again? Is it only the campaign chair whose relationship with the judge gives rise to recusal, or would the appearance of the campaign treasurer or other members of the campaign invoke the rule? Are there any circumstances in which the lawyer-campaign chair’s activities are attributed to his or her partners for purposes of recusal? After Kiang, what are the obligations of a lawyer from a legal malpractice/risk management perspective to perform due diligence about whether his or her opposing counsel has been a campaign officer for the judge?

Turning to Caperton-type issues, what about campaign contributions? What amount of contributions under the Indiana rules would be enough to require recusal? (This is not an academic question. There have been motions to recuse judges in Marion County made and granted on the basis of small contributions having been made by the opposing lawyer.) When determining the threshold amount of a contribution that may give rise to Caperton due process issues or Indiana Rule-based appearance of partiality concerns, do you only consider the contributions of the lawyer appearing in front of the recipient judge or do you count all the contributions from that lawyer’s firm?

Brainstorming these questions would be a dangerous drinking game. But lawyers and judges are now going to have to stir them into the cocktails of our practice.•

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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

ADVERTISEMENT