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SCOTUS asked to take both judicial canons appeals

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A Terre Haute attorney wants the nation’s highest court to review two appellate cases out of Indiana and Wisconsin that uphold judicial canons and pose free speech questions about what judicial candidates can say or do when campaigning for office.

On Tuesday, attorney Jim Bopp filed two separate writs of certiorari in the cases of Torrey Bauer, David Certo, and Indiana Right to Life v. Randall T. Shepard, et al., No. 09-2963, and The Hon. John Siefert v. James C. Alexander, et al., No. 09-1713, both decided on this year by the 7th Circuit Court of Appeals.

This is the latest in a line of legal moves on the Bauer judicial speech case, which stems from a survey the non-profit Indiana Right to Life sent out to judicial candidates before the election. The questionnaire asked them to state views about policies and court decisions related to abortion, euthanasia, and other issues. Most declined to reply to the survey, citing an advisory opinion from the Judicial Qualifications Commission that warned judicial candidates against making “broad statements on disputed social and legal issues.”

But deciding the canons go too far and infringe on candidates’ First and 14th amendment rights, the group sued in April 2008 on behalf of Torrey Bauer, an attorney who was a candidate for Kosciusko Superior Court, and Marion Superior Judge David Certo, who’s 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.

U.S. District Court Judge Theresa Springmann last summer dismissed the case and upheld the canons, paving the way for that Indiana case to intersect on appeal with the one out of Wisconsin that raised similar judicial speech issues.

In early June, a three-judge 7th Circuit panel in Siefert held that Wisconsin couldn’t prevent judges from being members of political parties but it could restrict partisan activities such as endorsing a non-judicial candidate or personal fundraising. That decision relied heavily on the Supreme Court of the United States ruling in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), regarding free speech issues in relation to judicial elections and campaigns, as well as the ruling last year in Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2266-67 (2009), and how newer lines of litigation have delved into subtopics. The full 7th Circuit in late August declined to revisit that ruling, though several judges disagreed – including Judge David Hamilton who voted to rehear it and Judge John Tinder who opted with the majority not to reconsider the case.

Using its first Siefert decision, a three-judge appellate panel in June decided Bauer and affirmed Judge Springmann’s ruling that had dismissed the suit. Bopp is now trying to combine both cases before the SCOTUS.

In his writ on the Bauer case, Bopp challenges 14 aspects of the Indiana canons and argues that the 7th Circuit is the outlier on these issues nationally. Other circuits, such as the 6th and 8th, have struck down as unconstitutional state statutes restricting First Amendment rights of judges and judicial canons, he argues, and both 7th Circuit rulings go against the standards put in place back in 2002 with the landmark White decision.

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  1. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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