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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. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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