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. Other than a complete lack of any verifiable and valid historical citations to back your wild context-free accusations, you also forget to allege "ate Native American children, ate slave children, ate their own children, and often did it all while using salad forks rather than dinner forks." (gasp)

  2. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  3. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  4. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  5. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

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