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Friday, August 20, 2010

Ind. Decisions - Two interesting Indiana opinions today from 7th Circuit

In Torrey Bauer, David Certo, and Indiana Right to Life v. Randall T. Shepard (ND Ind., Springmann), a 29-page opinion, Cheif Judge Easterbrook writes:

The Supreme Court held in Republican Party of Minnesota v. White, 536 U.S. 765 (2002) (White I), that elected judges, and candidates for judicial office, have a right under the first amendment to declare their legal views to the electorate during their campaigns. The decision left open myriad questions of implementation, and litigation has ensued across the country in those states that give the voters some say in choosing judges—either through direct election or by retention votes on judges who came to office by appointment. Recently we held that Wisconsin violated the Constitution by forbidding judges to be members of political parties, but that rules restricting partisan activities (such as endorsing a candidate for non-judicial office), and personal solicitation of funds, are valid. Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010). Today’s appeal concerns provisions of Indiana’s Code of Judicial Conduct. Some judges in Indiana are appointed by the Governor but must run in retention elections. Others are directly elected. Article VII of Indiana’s Constitution provides the details. * * *

Context may help to disambiguate a statement, but there is an irreducible risk that a promise may be misunderstood— or that the Commission and the Supreme Court of Indiana may treat as “inconsistent with the impartial performance of the adjudicative duties of judicial office” even the sort of statements that are squarely protected by White. We think that statements such as “judges have been too ready to find antitrust problems with mergers” or “mandatory minimum sentences are unjust, and I will read those statutes narrowly” or “drunk drivers are a menace and should be dealt with severely” or “abortion should be freely available, and I will grant a minor’s application for bypass of parental consent when a statute gives me that discretion” are outside the scope of the commits clauses. But will the Commission and the state judiciary agree?

The best way to find out is to wait and see. The Commission [on Judicial Qualifications] issues advisory opinions that reduce uncertainty, state judiciary will issue an opinion that makes the state judiciary will issue an opinion that makes the rule more concrete. Plaintiffs want us to deem the law vague by identifying situations in which state officials might take an untenably broad reading of the commits clauses, and then predicting that they will do so. It is far preferable, however, and more respectful of our judicial colleagues in Indiana, to assume that they will act sensibly and resolve the open questions in a way that honors candidates’ rights under the first amendment. * * *

We modify the district court’s judgment to provide that the challenge to the 2008 version of the Code is dismissed as unripe, not as moot. As modified, the judgment is AFFIRMED.

I can't begin to highlight all the significant parts of this opinion. For background, start with this ILB entry from July 8, 2009.

In Schleicher v. Wendt (SD Ind., Hamilton), a 16-page opinion, Chief Judge Easterbrook writes:

When a large, public company makes statements that are said to be false, securities-fraud litigation regularly proceeds as a class action. Class treatment is appropriate when issues common to class members predominate over those that affect them individually. Fed. R. Civ. P. 23(b)(3). Whether the statements are false is one common question. Whether the falsehoods are intentional (i.e., whether each defendant acted with the required state of mind) is another. Whether the falsehoods affected the stock’s price is a third. (If investors already know the truth, false statements won’t affect the price.) Whether the magnitude of any effect shows that the false information was “material” is a fourth. There will be some person-specific issues, such as when (and how many shares) a given investor purchased or sold. Timing of each person’s transactions, in relation to the timing of the supposedly false statements, determines how much a given investor lost (or gained) as a result of the fraud. But these questions can be resolved mechanically. A computer can sort them out using a database of time and quantity information. * * *

The district court assured itself that the market for Conseco’s stock was thick enough to transmit defendants’ statements to investors by way of the price. That finding supports use of the fraud-on-the-market doctrine as a replacement for individual reading and reliance on defendants’ statements. The district court did not commit a legal error, or abuse its discretion, in deciding that the fraud-on-the-market doctrine should not be conscripted to serve some other function, and its decision therefore is affirmed.

Posted by Marcia Oddi on August 20, 2010 11:25 AM
Posted to Ind. (7th Cir.) Decisions