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Chinn: Can of Worms Opened

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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.•

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  1. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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