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Sunday, May 18, 2008

Ind. Decisions - Still more on: Federal court grants preliminary injunction re judicial speech rights

Updating this ILB entry from May 10th, quoting a Fort Wayne Journal Gazette editorial urging free speech for judges, Rebecca S. Green of the Journal Gazette has a lengthy story today giving a kind of overview of the issue. Some quotes:

The rules governing what potential judges can say and what opinions they can express during a political campaign again came under fire during this primary season.

And though a federal judge issued a temporary ruling prohibiting the state from disciplining judicial candidates for what they said during the campaign, the issue – which could affect candidates in future runs for the state’s benches – is far from resolved.

The U.S. Constitution gives you the permission to say just about anything you want, barring, of course, yelling “fire” in a movie theater, but what if you are running for office?

If you want to be a judge, can you say that you won’t keep a drunken driver from serving time in jail? That you are opposed to the death penalty, even though your state allows it? What about your belief on whether abortion should be illegal?

In Indiana, under what are called the “pledges and promises” and “commits” clauses in the canons that govern the conduct of judges in Indiana, it appears you cannot. A judicial candidate can be disciplined by the state for making promises about future conduct in office if elected.

To Terre Haute-based attorney James Bopp, well-known for handling free-speech cases and campaign cases in other states and representing the plaintiff in the most recent case, those rules violate a candidate’s right to free speech.

But Washington, D.C.-based attorney George Patton Jr., representing Indiana’s judicial qualifications commission, says those rules prevent the state’s judiciary from turning into just another political branch of government. * * *

“The (Indiana) judicial establishment is essentially defying the (U.S.) Supreme Court,” Bopp said. “They do not want judicial candidates announcing their views, stating what their general judicial philosophy is; … they are using other canons other than the announce clause to prohibit the same thing, and that is announcing their views.”

This issue goes to the heart of the kind of judiciary the state will have, Bopp said.

By allowing judicial candidates to voice their opinions, the electorate will be able to pick the types of judges it wants based on the views they hold, and then keep them accountable.

Patton, however, believes the state’s rules are different from the ones struck down by the Supreme Court.

Judicial candidates can say they are pro-life or pro-choice, that they are tough on crime, Patton said. But they cannot talk specifically about those opinions or what they would do about specific cases, he said.

“Judges should bring an open mind to the bench,” Patton said. “They should hold the balance without tipping it to one side or another. That’s a different function than an executive or a legislator might do.”

Judges should decide cases based on the facts and the law, rather than their personal opinion, he said.

And when candidates voice their opinions about specific issues, they are in a way committing a kind of electoral fraud, Patton said.

“You’re encouraging judicial candidates to make statements, and they will probably never be able to deliver on them from the bench because they will have to follow the law,” he said. * * *

Just hours before the May 6 Indiana primary, U.S. District Judge Theresa Springmann in Fort Wayne granted a preliminary injunction in favor of Indiana Right to Life, prohibiting the Commission on Judicial Qualifications and the Indiana Disciplinary Commission from initiating disciplinary proceedings against judicial candidates who responded to the election questionnaire ***.

As noted in the May 10th ILB entry, in understanding the Indiana Supreme Court position on its judicial rules, it is useful to review the detailed Indiana Right to Life Questionnaire.

Posted by Marcia Oddi on May 18, 2008 12:33 PM
Posted to Ind Fed D.Ct. Decisions