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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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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