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Friday, December 04, 2009

Ind. Decisions - 7th Circuit hears oral arguments in Bauer v. Shepard

On May 6, 2009, Judge Springmann issued a 36-page opinion and order in the case of Torrey Bauer, et al. v. Randall T. Shepard, et al., granting a preliminary injunction enjoining the enforcement of certain provisions of the Indiana Code of Judicial Conduct. Plaintiffs had sued to block enforcement of Indiana rules prohibiting them from responding to a survey asking their views on abortion, euthanasia, and other issues.

On July 8, 2009, Judge Springmann vacated her injunction and dismissed the case. Here is the 71-page opinion. The plaintiffs in the case were Indiana Right to Life, Torrey Bauer, an attorney and (at that time) a candidate for judge of the Kosciusko Superior Court, and Judge David Certo of the Marion Superior Court.

Coverage of the ruling appeared in the July 11, 2009 Fort Wayne Journal Gazette.

The decision was appealed to the 7th Circuit. Oral argument was heard yesterday, Dec. 3rd. Here is a direct link to the 60-minute audio of the oral argument.

(For reasons I don't understand, briefs in these cases are no longer available via the 7th Circuit site. The last time I checked, briefs in civil cases had still been available.)

Today's issue of Indiana Legislative Impact has these comments (reprinted with permission) on yesterday's argument:

At oral argument (the panel was comprised of Chief Judge Frank Easterbrook and circuit judges Daniel Manion and Terence Evans), judges seized upon the distinction between muzzling a judge or judicial candidate entirely, and imploring upon such an individual from making statements that are inconsistent with, or might compromise, their impartiality. That principle, the plaintiffs below argued, was too vague a standard. Josiah Neeley of Bopp, Coleson & Bostrom, attorney for the plaintiffs, which included Indiana Right to Life, Inc. and Marion County Superior Court Judge David Certo, suggested that the pledges and promises clause would be constitutional „if it was limited to pledges and promises of certain results in specific .... case or class of cases.‰ Solicitor General Tom Fisher argued the case for the Indiana judiciary, and judges were largely far less adversarial, spending more time seeking answers and interpretations than challenging his assertions . . . but the judges may have not been satisfied with his responses on vagueness.

Posted by Marcia Oddi on December 4, 2009 01:11 PM
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions | Indiana Courts