ILNews

State urges SCOTUS to deny judicial canons case

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Attorney General’s Office has filed a brief with the nation’s highest court, urging the justices to not hear a case about whether Indiana’s judicial canons constitutionally infringe on the free speech rights of those on or vying for seats on the bench.

A 28-page brief filed Friday comes about four months after Terre Haute attorney James Bopp asked the Supreme Court of the United States to grant certiorari in the case of Torrey Bauer, David Certo, and Indiana Right to Life v. Randall T. Shepard, et al., No. 09-2963.

The Bauer judicial speech case stems from surveys sent out by Indiana Right to Life asking judicial candidates about views on policy and controversial court issues, and some declined to participate because they saw the canons as preventing them from doing so. The conservative group sued in April 2008 on First and 14th Amendment grounds, on behalf of then-judge candidate Torrey Bauer 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. Judge Theresa Springmann dismissed the case and upheld the canons, and the 7th Circuit last summer ruled that the state judicial canons aren’t unconstitutionally restrictive of free speech and should stand.

The three-judge panel relied on a related ruling from June in The Hon. John Siefert v. James C. Alexander, et al., No. 09-1713, where it 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, and personal fundraising. That decision relied heavily on the SCOTUS ruling in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), regarding that free speech issue in relation to judicial elections and campaigns. 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 decided Bauer and affirmed Judge Springmann’s ruling that had dismissed the suit. Bopp is now trying to combine both cases before the SCOTUS.

Bopp appealed to the SCOTUS in September and the state waived its right to respond, but the high court in November asked the Indiana Attorney General’s Office to respond to the certiorari petition. This new brief came just prior to the deadline Tuesday, and the justices could begin considering this case yet this month.

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.

But the state AG disagrees, contending in its brief that, “They may hope to use this case to deregulate judicial election campaigns, but the decision below written by Chief Judge Easterbrook provides little reason for the Court to become involved. The Seventh Circuit, examining common, time-tested restrictions on judicial speech, reached the same unremarkable First Amendment conclusions as nearly all courts.”

The state contends that abstract tension among lower courts about proper legal standards do not justify review, and that when no District or Circuit court conflict exists under precedent, the SCOTUS shouldn’t interfere.

While the SCOTUS is considering the Bauer case, Bopp has also filed a certiorari petition in the Siefert case and that is pending separately. The state of Wisconsin has also declined to respond in that case, and no docket activity shows that it’s been considered yet in private conference.

ADVERTISEMENT

  • canons stink and suppress democracy
    These canons are attempts by the organized bar which is the kept woman of big business and the national powers that be, to suppress judicial electioneering. It is aimed squarely at one of the last vestiges of authentic local democracy in this country. They ought to flush them all down the toilet. The same time the bar is running around flogging the democracy shibboleth, it's also suppressing it with crap like this.

Post a comment to this story

COMMENTS POLICY
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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

ADVERTISEMENT