ILNews

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. I will continue to pray that God keeps giving you the strength and courage to keep fighting for what is right and just so you are aware, you are an inspiration to those that are feeling weak and helpless as they are trying to figure out why evil keeps winning. God Bless.....

  2. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  3. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  4. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  5. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

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