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Friday, October 26, 2007

Ind. Decisions - 7th Circuit dismisses challenge to Indiana canons of judicial ethics

In Right to Life v. Randall T. Shepard (ND Ind., Judge Sharp), a 10-page opinion, Judge Evans writes:

Indiana Right to Life and Arline Sprau (we will refer to them collectively as Right to Life) filed this complaint against the Indiana Commission on Judicial Qualifications and the Indiana Disciplinary Commission, contending that two canons in the Indiana Code of Judicial Conduct violate their First Amendment rights. The district court agreed that one of the canons was unconstitutional and the state defendants appeal.

The canon at issue—Canon 5A(3)(d)(i) and (ii)—provides:

A candidate, including an incumbent judge, for a judicial office . . . shall not: (i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; (ii) make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.
In the parlance of cases such as the one before us, the two clauses in this canon are referred to respectively as “pledges” and “commitments” clauses. The contention that the clauses are unconstitutional grows out of Republican Party of Minnesota v. White, 536 U.S. 765 (2002), which declared unconstitutional a provision in Minnesota’s Code of Judicial Conduct. The provision, commonly called an “announce” clause, stated that a candidate for judicial office shall not “announce his or her views on disputed legal or political issues.” The clause, the Court said, covered much more than promising to decide an issue a particular way; it prohibited merely stating a candidate’s current position, even if he did not bind himself to maintain that position after the election. That broad a prohibition was found to violate the First Amendment. The more limited provisions—pledges or promises clauses—were not challenged, and on those clauses, the Court specifically said it “express[ed] no view.” It is with its eye on invalidating the latter clauses that various groups have filed lawsuits throughout the country. See, e.g., Pennsylvania Family Institute v. Black, 489 F.3d 156 (3rd Cir. 2007); Alaska Right to Life v. Feldman, ___ F.3d ___, 2007 WL 2743603 (9th Cir. 2007). * * *

Despite recognizing that its claim is for a right to listen, Right to Life nevertheless contends that Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224 (7th Cir. 1993), requires that we find standing in this case. There is a significant and obvious difference, however, between the case before us and Buckley—or White, for that matter. Neither White nor Buckley is a right-to-listen case. More importantly, in both, the plaintiffs were themselves judicial candidates whose right to speak was constrained. * * *

In a right-to-listen case, Right to Life would have standing if there are otherwise willing speakers who are constrained by the Judicial Code. Right to Life says there are. We cannot agree. No judicial candidate in Indiana has been disciplined for a violation of the canon at issue. The two candidates who answered the questionnaire in 2004 have stated that they have no fear of disciplinary action for doing so. In addition, of the remaining six who responded to Right to Life but did not answer the questions, clearly none stated that they declined to answer based on the canon. Some mentioned the canon but went on to say that they were relying on their own personal feeling as to what was appropriate for a judicial candidate to say. Right to Life attempted to put words in the candidates’ mouths by setting out a footnote to the response “decline” on the questionnaire. The footnote seems to be an attempt to indicate that the only reason for declining would be the Code. The individual responses show that is not true and negate any force that the footnote could conceivably have. In addition, the organization’s targeted, chosen speaker, Newton, turned out to be unwilling to speak regardless of the Code. Right to Life has failed to establish standing to bring this action.

Our decision is in line with the previously mentioned decisions of the Courts of Appeals for the Third Circuit and the Ninth Circuit. In Pennsylvania Family Institute, plaintiffs had argued that if a candidate responded “Decline to Answer” with its accompanying footnote referencing the judicial code, he was communicating a belief that they were prohibited from speaking by the Code. The court said that perhaps some of the candidates, in fact, did believe they were prohibited by the Code, but, nevertheless, in order to have standing, the plaintiffs must “at least demonstrate that but for a regulation, a speaker subject to it would be willing to speak.” In Alaska Right to Life, the court looked at ripeness. As here, there was no evidence of a real threat of enforcement; accordingly, the case was not ripe. The court said that the district court should have declined jurisdiction for lack of a justiciable case or controversy. Like those cases, the case before us does not present a case or controversy. Right to Life has no standing to bring the case, and it should have been dismissed.

The decision of the district court that Canon 5A(3)(d)(i) and (ii) is unconstitutional is REVERSED. We REMAND the case to the district court with instructions to dismiss it.

Note that this opinion is well worth reading in full.

For background, see this Sept. 12th ILB entry headed "Challenge to Indiana judicial canons goes before 7th Circuit."

[More] See Robert Loblaw's Decision of the Day's summary here, headed "Seventh Rejects Judicial Ethics Challenge on Standing Grounds."

Posted by Marcia Oddi on October 26, 2007 01:41 PM
Posted to Ind. (7th Cir.) Decisions | Indiana Decisions