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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. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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