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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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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