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New conduct code impacts judicial speech case

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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.

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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