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.