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Federal judge OKs state's judicial canons

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A federal judge says the Indiana Supreme Court can regulate judicial speech through its cannons, and has ruled the existing rules do not violate a judge or judicial candidate's constitutional free speech or association rights.

In a 71-page order issued late Tuesday in Torrey Bauer, et al. v. Randall T. Shepard, et al., No. 3:08-CV-196, U.S. District Judge Theresa Springmann in Fort Wayne dismissed a case brought by Indiana Right to Life, which challenged the state's judicial canons on constitutional grounds.

The judicial-speech case stems from a survey the non-profit group sent out last year to judicial candidates before the election, asking them to state views about policies and court decisions related to abortion, euthanasia, and other issues. Most declined to reply to the survey, citing an advisory opinion from the Judicial Qualifications Commission that warned judicial candidates against making "broad statements on disputed social and legal issues."

But deciding the canons go too far and infringe on candidates' First and 14th amendment rights, the committee sued in April 2008 on behalf of Torrey Bauer, an attorney who was a candidate for Kosciusko Superior Court, and Marion Superior Judge David Certo, who has since been elected but at the time was a judicial candidate running for the first time after being appointed by the governor in 2007 to fill a vacancy.

Chief Justice Shepard is named as the lead defendant, as he chairs the Indiana Judicial Qualifications Commission. Parties filed amended complaints and answers earlier this year, focusing the arguments to the revised 2009 judicial code of conduct.

In the nine counts brought against the state judicial commission, the federal judge found the plaintiffs have standing to bring the case but dismissed two counts and entered judgments against the plaintiffs on the other seven. She vacated a 14-month-old preliminary injunction that had stopped the commission from enforcing the canons.

"In this case, the free speech and association rights of judges and judicial candidates, which are protected by the First Amendment, bump into the interests of the people of Indiana in having a judiciary that is independent, fair, impartial, and competent, that is comprised of individuals of integrity and that preserves the principles of justice and the rule of law," Judge Springmann wrote. "As a consequence, the Indiana Supreme Court must carefully balance the various values and interests at stake and narrowly tailor the rules governing the conduct of judges and judicial candidates to serve these interests."

Pointing out that Indiana's high court has repeatedly adjusted the applicable rules and advice throughout the years based on U.S. Supreme Court rulings and other precedent, Judge Springmann found the current code is narrowly tailored to serve the compelling interests in protecting the judiciary's image.

She also found little to support the plaintiffs' claim challenging the disqualification and recusal provisions of the state canons, citing the recent U.S. Supreme Court ruling of Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009), to guide her decision and saying that the plaintiffs were "running up hill" in parts of their challenge.

But most significantly, Judge Springmann wrote the canons don't prevent judicial candidates from answering questionnaires like this - that they are permitted to state their views about disputed social and legal issues, as long as they abide by the canons and specific rules governing that.

"The questionnaire could (be) improved with clear assurances that judicial candidate respondents will keep an open mind and carry out their adjudicative duties faithfully and impartially if elected," she observed.

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. 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?

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