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The Indiana Supreme Court should accept the message in a ruling by a Fort Wayne federal judge in a case involving a candidate for Kosciusko Superior Court and restore the First Amendment rights of judicial candidates.
U.S. District Court Judge Theresa Springmann ruled this week that the state’s highest court temporarily cannot enforce its rules that effectively prohibit judicial candidates from responding to questionnaires about their positions on issues. State judicial canons of ethics prohibit attorneys seeking judgeships from making “pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.”
The ruling came about 18 months after another federal judge struck down the Indiana rule. A federal appeals court overturned that decision, however, ruling that the group that brought the case, Indiana Right to Life, was not directly affected and lacked proper standing.
Springmann’s decision came, appropriately, on Tuesday, the same day that one of the candidates involved in the case, Torrey Bauer, was narrowly defeated in the Kosciusko County Republican primary for a Superior Court nomination. Bauer, unaware that the earlier ruling had been reversed, had filled out a questionnaire from Indiana Right to Life and feared he would face disciplinary action. Because he and a sitting judge filed the case along with Indiana Right to Life, the issue of proper standing should not block this case from succeeding.
The current rules exist for good reason. A judge must weigh each case on its own facts and applicable law, and improper statements made during a campaign can portray a judge as deciding how he or she will handle a case before hearing it.
But voters have a right to hear candidates’ opinions on issues, and in 2002, the U.S. Supreme Court threw out similar rules in Minnesota.
Attorney James Bopp Jr. successfully argued this week’s case. Bopp said Indiana’s rule goes too far, infringing on the First Amendment rights of judicial candidates. Indiana can still have a rule barring candidates from saying how they would rule on specific cases, he said, without prohibiting them from commenting on broader issues.
And if a candidate says too much about specifics, voters will react accordingly. “Voters want impartial judges,” Bopp said. “If a judicial candidate goes too far, he’s going to actually lose votes.”
Indeed, how much discretion a candidate uses in campaigning could well give voters insight into how the candidate would serve on the bench.
By issuing a preliminary injunction, Springmann ruled that the plaintiffs are likely to prevail in a trial, though the court has yet to rule on the merits of the lawsuit. Still, this week’s injunction combined with the 2006 ruling and the U.S. Supreme Court ruling in the Minnesota case should cause the state Supreme Court to revise its rules and restore proper First Amendment rights to judicial candidates.
