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. 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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