ILNews

Federal judge OKs state's judicial canons

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Major social engineering imposed by judicial order well in advance of democratic change, has been the story of the whole post ww2 period. Contraception, desegregation, abortion, gay marriage: all rammed down the throats of Americans who didn't vote to change existing laws on any such thing, by the unelected lifetime tenure Supreme court heirarchs. Maybe people came to accept those things once imposed upon them, but, that's accommodation not acceptance; and surely not democracy. So let's quit lying to the kids telling them this is a democracy. Some sort of oligarchy, but no democracy that's for sure, and it never was. A bourgeois republic from day one.

  2. JD Massur, yes, brings to mind a similar stand at a Texas Mission in 1836. Or Vladivostok in 1918. As you seemingly gloat, to the victors go the spoils ... let the looting begin, right?

  3. I always wondered why high fence deer hunting was frowned upon? I guess you need to keep the population steady. If you don't, no one can enjoy hunting! Thanks for the post! Fence

  4. Whether you support "gay marriage" or not is not the issue. The issue is whether the SCOTUS can extract from an unmentionable somewhere the notion that the Constitution forbids government "interference" in the "right" to marry. Just imagine time-traveling to Philadelphia in 1787. Ask James Madison if the document he and his fellows just wrote allowed him- or forbade government to "interfere" with- his "right" to marry George Washington? He would have immediately- and justly- summoned the Sergeant-at-Arms to throw your sorry self out into the street. Far from being a day of liberation, this is a day of capitulation by the Rule of Law to the Rule of What's Happening Now.

  5. With today's ruling, AG Zoeller's arguments in the cases of Obamacare and Same-sex Marriage can be relegated to the ash heap of history. 0-fer

ADVERTISEMENT