SCOTUS recusal ruling cited in judicial-canon case

Back to TopCommentsE-mailPrintBookmark and Share

A federal judge in Fort Wayne is deciding whether the state's judicial conduct code should be able to restrict judicial candidates from answering surveys about views on issues they might someday hear in court.

Now, a recent ruling from the Supreme Court of the United States is being used in that federal case to delve further into what states should be allowed to do in order to balance free speech with possible perceptions of bias on the bench.

The judicial-speech case is Torrey Bauer, et al. v. Randall T. Shepard, et al., No. 3:08-CV-196, which stems from a survey the non-profit Indiana Right to Life Committee sent to judicial candidates asking them pre-election to state their 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 Indiana Judicial Qualifications Commission that warned judicial candidates against making "broad statements on disputed social and legal issues."

But deciding the rule goes too far and infringes on candidates' First and 14th amendments, the committee 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 at the time was a judicial candidate running for the first time after being appointed by the governor in 2007 to fill a vacancy.

Chief Justice Randall T. Shepard is named as the lead defendant because he chairs the Indiana Judicial Qualifications Commission.

Both sides filed newly amended complaints and responses earlier this year as a result of the state adopting a revised judicial code in January. Both sides have filed motions for summary judgment, and the case remains open pending a summary judgment decision from U.S. District Judge Theresa L Springmann in Fort Wayne.

But in the past week, attorneys have filed briefs citing the June 8 decision of Hugh M. Caperton, et al. v. A.T. Massey Coal Co., Inc., No. 08-22, pointing to it as possible authority for the court to consider in its ongoing case. In that landmark 5-4 ruling, the SCOTUS held that elected judges must recuse themselves in cases involving interested parties or litigants who've made large campaign contributions that might create an appearance of bias, because those donations could be perceived to deny litigants of their due process rights.

Counsel for the Indiana Judicial Nominating Commission filed a five-page notice of supplemental authority June 18, saying the Caperton decision supports its canons designed to ensure due process through judicial open-mindedness.

On Tuesday, Terre Haute attorney Jim Bopp filed a response on behalf of his clients, saying the case doesn't apply. That SCOTUS ruling applied only to "an exceptional case," and not others such as this case, Bopp wrote. He also noted that a state can adopt as rigorous a recusal standard as it likes, so as long as it doesn't run afoul of the U.S. Constitution.

"Thus, a State could not require judges to recuse themselves in all cases because they belong to a particular political party, nor can they require recusal simply because a judge has announced her views on a disputed legal or political issue," the plaintiffs' response says.


Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  2. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  3. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  4. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  5. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.