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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. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

  2. As an adoptive parent, I have to say this situation was as shameful as it gets. While the state government opens its wallet to the Simons and their friends, it denied payments to the most vulnerable in our state. Thanks Mitch!

  3. We as lawyers who have given up the range of First amendment freedom that other people possess, so that we can have a license to practice in the courts of the state and make gobs of money, that we agree to combat the hateful and bigoted discrimination enshrined in the law by democratic majorities, that Law Lord Posner has graciously explained for us....... We must now unhesitatingly condemn the sincerely held religious beliefs of religiously observant Catholics, Muslims, Christians, and Jewish persons alike who yet adhere to Scriptural exhortations concerning sodomites and catamites..... No tolerance will be extended to intolerance, and we must hate the haters most zealously! And in our public explanations of this constitutional garbledygook, when doing the balancing act, we must remember that the state always pushes its finger down on the individualism side of the scale at every turn and at every juncture no matter what the cost to society.....to elevate the values of a minority over the values of the majority is now the defining feature of American "Democracy..." we must remember our role in tricking Americans to think that this is desirable in spite of their own democratically expressed values being trashed. As a secular republic the United States might as well be officially atheist, religious people are now all bigots and will soon be treated with the same contempt that kluckers were in recent times..... The most important thing is that any source of moral authority besides the state be absolutely crushed.

  4. In my recent article in Indiana Lawyer, I noted that grass roots marketing -- reaching out and touching people -- is still one of the best forms of advertising today. It's often forgotten in the midst of all of today's "newer wave" marketing techniques. Shaking hands and kissing babies is what politicians have done for year and it still works. These are perfect examples of building goodwill. Kudos to these firms. Make "grass roots" an essential part of your marketing plan. Jon Quick QPRmarketing.com

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