ILNews

New conduct code impacts judicial speech case

Back to TopCommentsE-mailPrintBookmark and Share

A federal judge in Fort Wayne wants parties to start over and file new briefs in a challenge to the state's judicial canons, on claims that the rules wrongfully restrict judicial candidates from filling out surveys about their views on issues they might someday hear in court.

U.S. District Judge Theresa Springmann in the Northern District of Indiana issued a four-page order Monday in Torrey Bauer, et al. v. Randall T. Shepard, et al., No. 3:08-CV-196, which had been scheduled to be fully briefed in April.

The judicial-speech case stems from a survey the non-profit Indiana Right to Life Committee sent requesting candidates state their views about policies and court decisions related to abortion, euthanasia, and other issues prior to the primary election. Most declined to reply to the survey, citing an advisory opinion from the Judicial Qualifications Commission warning judicial candidates against making "broad statements on disputed social and legal issues."

Believing the rule goes too far and infringes on candidates' First and 14th Amendment rights, Indiana Right to Life filed the suit almost a year ago on behalf of 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, and is among its seven members.

Terre Haute attorney Jim Bopp Jr. argued that Indiana can still have a rule barring candidates from saying how they would rule on specific cases, but that does not prohibit them from commenting on broader issues.

Accepting that argument in May 2008, Judge Springmann granted a preliminary injunction that stops the state judicial commission from enforcing those rules.

But because the complaint involved a pre-2009 version of the Indiana Code of Judicial Conduct, and has now been revised, the case is effectively moot because that previously cited code no longer has any legal effect. To keep the case alive, the judge wants amended briefs reflecting the current code and whatever legal arguments may apply. Judge Springmann noted that there might not be any differences in the two versions, but that the parties disagree about the effect, meaning, and constitutionality of the current code and that needs to be addressed.

"Because of these problems and unusual procedural posture stemming from the timing and order of the parties' filings, the Court is using its inherent power to control its docket and achieve the orderly disposition of the case to deny the two pending Motions without prejudice because they are moot, vacate the current briefing and ruling schedule, and set a new schedule for pleadings and briefings."

This will allow both sides to have a full opportunity to present their case arguments, Judge Springmann noted.

A status conference is set for Monday, but plaintiffs have until April 6 to file an amended complaint reflecting the 2009 code, and defendants have until April 16 to file an answer. Motions and responses for summary judgment should be filed throughout May. The judge will issue a summary judgment decision by July 1, she said.

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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Oh my lordy Therapist Oniha of the winexbackspell@gmail.com I GOT Briggs BACK. Im so excited, It only took 2days for him to come home. bless divinity and bless god. i must be dreaming as i never thoughts he would be back to me after all this time. I am so much shock and just cant believe my eyes. thank you thank you thank you from the bottom of my heart,he always kiss and hug me now at all times,am so happy my heart is back to me with your help Therapist Oniha.

  2. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  3. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  4. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  5. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

ADVERTISEMENT