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New judicial speech rights suit filed

Michael W. Hoskins
January 1, 2008
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A federal lawsuit challenging Indiana's rules prohibiting judicial candidates from responding to a survey about their views is picking up where a similar suit left off late last year.

The nonprofit Indiana Right to Life Inc. filed a suit April 18 on behalf of Marion Superior Judge David Certo, who is running for the court for the first time after being appointed by Gov. Mitch Daniels to fill a vacancy last year, and Torrey Bauer, a candidate for Kosciusko Superior Court. The case stems from a survey the organization sent March 22, 2008, requesting that candidates state their views about policies and court decisions related to abortion, euthanasia, and other related issues prior to May's 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" because of the potential risk of violating the Indiana Code of Judicial Conduct, the suit states.

Terre Haute attorney James Bopp Jr., lead counsel for the co-plaintiffs, notes in the suit that the state rules contradict precedent from the U.S. Supreme Court, which states that judicial candidates have a right to respond to surveys and voters should have the right to hear what they say. Caselaw on that point is Republican Party of Minnesota v. White, 536 U.S. 765 (2002). The suit states that Indiana's rules and policy are being interpreted to suppress the same sort of free speech that Minnesota had tried to punish.

The suit, Torrey Bauer, et al. v. Randall T. Shepard, et al., No. 08-CV-196, filed in the U.S. District Court, Northern District of Indiana, South Bend Division also asks the court to grant a motion for a temporary restraining order blocking the state from enforcing the rule. A copy of the suit and the motion for a temporary restraining order can be found through the James Madison Center for Free Speech.

This suit is similar to one dismissed by the 7th Circuit Court of Appeals in October 2007; that suit also came from the Northern District, where the trial judge had ruled the "pledges" and "commitments" clauses of the state's judicial conduct code were unconstitutional. In Indiana Right to Life, et al. v. Randall T. Shepard, et al., No. 06-4333, the 7th Circuit dismissed Indiana Right to Life's complaint against the state judicial and disciplinary commissions that Canon 5A(3)(d)(i) and (ii) is unconstitutional, stating the group had no standing to bring the complaint because no candidates had come forward to challenge it and none had been disciplined for a violation of the canon.

Indiana Right to Life sent questionnaires in 2002 and 2004 to judicial candidates seeking their answers to similar questions. Few responded, but all mentioned their reasons for declining to answer were their own decisions and not influenced by potential discipline from the Commission on Judicial Qualifications.

Circuit Judge Terence Evans wrote in his opinion that Right to Life needed more than a "right to listen"; it must have "a cognizable injury that is causally connected to the alleged conduct and is capable of being redressed."
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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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