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Circuit Court split on rehearing judicial canons case

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Indiana’s two federal appeals judges disagree about whether the full 7th Circuit Court of Appeals should reconsider a Wisconsin case about the judicial code of conduct in that state, paving the way for a further battle before the nation’s highest court that could influence Indiana’s judicial canons.

What happens with this case may set the stage for what ultimately happens with a similar suit out of Indiana, in which a three-judge 7th Circuit panel recently upheld the state’s judicial canons and found they didn’t infringe upon constitutional free speech rights.

A per curiam decision came today in The Hon. John Siefert v. James C. Alexander, et al., No. 09-1713, in which a majority of the 10 active Circuit judges decided not to grant a rehearing en banc. Chief Judge Frank Easterbrook and Judges Joel Flaum, Michael Kanne, Richard Posner, and John Tinder opted against rehearing. Judges David Hamilton, Illana Rovner, Ann Williams, and Diane Wood voted for the full court to rehear the appeal. Judge Diane Sykes didn’t participate, and one of the active seats remains vacant.

In June, the three-judge panel of Judges Flaum, Rovner, and Tinder issued a 2-1 ruling in Siefert v. Alexander, 608 F.3fd 974 (7th Circuit 2010). Judge Rovner had dissented from the ruling, which simultaneously held that Wisconsin couldn’t prevent judges from being members of political parties but it could restrict partisan activities such as endorsing non-judicial candidates or personal fundraising. That decision relied heavily on the Supreme Court of the United States ruling in Republican Party of Minnesota v. White, 536 U.S. 765 (2002,) regarding free speech issues in relation to judicial elections and campaigns, as well as the more recent ruling last year in Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2266-67 (2009), and how newer lines of litigation have delved into subtopics.

On Aug. 20, a 7th Circuit panel relied on the Siefert decision in its ruling on Torrey Bauer, David Certo, and Indiana Right to Life v. Randall T. Shepard, et al., No. 09-2963, which affirmed a judgment from U.S. Judge Theresa Springmann in the Northern District of Indiana dismissing the judicial canons suit.

Dissenting today, Judge Rovner wrote on behalf of the dissenting judges that the 7th Circuit appears to be an outlier on these issues nationally and that recently the 6th and 8th Circuits have struck down as unconstitutional state statutes restricting First Amendment rights of judges and judicial canons.

“Our divergent opinions on this issue is an outlier and should be reheard en banc,” she wrote.

Terre Haute attorney Jim Bopp, who represented the plaintiff and also represents the Indiana plaintiffs in the Bauer case, couldn’t be immediately reached today to comment on this ruling or whether he’ll file a writ of certiorari to the SCOTUS.
 

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  1. I'm not sure what's more depressing: the fact that people would pay $35,000 per year to attend an unaccredited law school, or the fact that the same people "are hanging in there and willing to follow the dean’s lead in going forward" after the same school fails to gain accreditation, rendering their $70,000 and counting education worthless. Maybe it's a good thing these people can't sit for the bar.

  2. Such is not uncommon on law school startups. Students and faculty should tap Bruce Green, city attorney of Lufkin, Texas. He led a group of studnets and faculty and sued the ABA as a law student. He knows the ropes, has advised other law school startups. Very astute and principled attorney of unpopular clients, at least in his past, before Lufkin tapped him to run their show.

  3. Not that having the appellate records on Odyssey won't be welcome or useful, but I would rather they first bring in the stray counties that aren't yet connected on the trial court level.

  4. Aristotle said 350 bc: "The most hated sort, and with the greatest reason, is usury, which makes a gain out of money itself, and not from the natural object of it. For money was intended to be used in exchange, but not to increase at interest. And this term interest, which means the birth of money from money, is applied to the breeding of money because the offspring resembles the parent. Wherefore of an modes of getting wealth this is the most unnatural.

  5. Oh yes, lifetime tenure. The Founders gave that to the federal judges .... at that time no federal district courts existed .... so we are talking the Supreme Court justices only in context ....so that they could rule against traditional marriage and for the other pet projects of the sixties generation. Right. Hmmmm, but I must admit, there is something from that time frame that seems to recommend itself in this context ..... on yes, from a document the Founders penned in 1776: " He has refused his Assent to Laws, the most wholesome and necessary for the public good."

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