Subscribe
Jobs
Cars
Real Estate
Apts
Classifieds
Shop
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.
Richard Garnett, professor of law at the University of Notre Dame, said the questions raised by this case and other similar cases around the country center on the nature of judicial elections: Are judicial elections different from a free-speech perspective compared with other elections? And if so, what does that difference mean for speech?
In 2001, Bopp successfully argued a case before the U.S. Supreme Court – Republican Party of Minnesota v. White – that established a key ruling on the matter of judicial free speech.
According to Garnett, the Supreme Court justices said that while the U.S. should have an impartial judiciary, judges can and do have opinions and should be able to express them.
In their opinion, the majority of the justices held that Minnesota’s “announce clause” violated the First Amendment rights of judicial candidates by prohibiting them from stating their views.
Citing that case, Indiana Right to Life, represented by Bopp, filed a federal lawsuit in 2004. It filed against the Indiana Commission on Judicial Qualifications and Indiana Disciplinary Commission. At issue were the Indiana judicial canons and what those canons allow candidates to say during campaigns.
While Indiana’s judicial qualifications commission recognized the Supreme Court decision about the announce clause in the Minnesota case, the commission said it would still enforce the state’s rules about what candidates could say during a campaign. This included rules that judicial candidates not make promises about what they’d do if elected or appear to commit themselves to an opinion about a case, according to court documents.
Indiana Right to Life argued those rules effectively violate candidates’ constitutional rights to free speech by barring those running for judicial office from speaking out about specific issues, in this case answering questions about abortion asked in an election questionnaire sent by the organization, according to the lawsuit.
Distributed during the election seasons, Indiana Right to Life’s questionnaire is designed to solicit opinions about issues of interest to the organization’s constituents, according to court documents.
Questions include statements such as, “I believe that abortion should be permitted only to prevent the death of the mother,” and then candidates check whether they agree, disagree or are undecided.
Judicial candidates may also decline to answer or refuse to answer the question. If they decline to answer the question, they check a box meaning they would have answered but felt that they were prohibited from doing so under Indiana’s judicial canons but say that their response would have not caused them to be biased, according to court documents.
But though the lawsuit was decided in favor of Indiana Right to Life by U.S. District Judge Allen Sharp, it was dismissed by the U.S. 7th Circuit Court of Appeals. The federal appellate judges ruled Indiana Right to Life couldn’t sue because it wasn’t the one seeking election, according to court documents.
Having found judicial candidates during the most recent primary election to serve as plaintiffs in another lawsuit, Indiana Right to Life, again represented by Bopp, filed suit in April. The lawsuit asked a judge to not only decide whether the promises, pledges and commits clauses in the judicial canons violated free-speech rights but also to prohibit the state from disciplining the judicial candidates in the meantime.
Kosciusko County attorney Torrey Bauer and Marion County Superior Court Judge David Certo both joined Indiana Right to Life in their lawsuit.
Bauer ran against incumbent Kosciusko Superior Court Judge James Jarrette, losing by about 600 votes.
“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, including Adams Superior Court judge candidate Patrick Miller, who answered the questions on the form.
Wells Superior Court Judge Everett E. Goshorn received and responded to the questionnaire, though he declined to answer the questions, according to court documents.
But the case itself has not been decided.
Bopp, having had success in various states and before the Supreme Court, is optimistic about the outcome. He said his next step will be to file documents to get a final judgment on the case.
The state has a number of options on the table with regards to the case, and is taking a look at all of them, Patton said.
Free-speech cases are always complicated, often drawing strange bedfellows from opposite sides of the political spectrum, Garnett said.
In the Supreme Court’s Minnesota case, groups such as the conservative American Center for Law and Justice and the liberal American Civil Liberties Union opposed the announce clause.
“This case is about the integrity of the selection process of candidates for elective public office. It is about the ability of candidates to effectively communicate information to voters that the voters need in order to vote in an informed manner,” those groups wrote. “It is about restrictions that muzzle and muffle the free speech and free association rights of candidates for elective office – restrictions that are thus presumptively suspect under the Constitution and automatically subject to the strictest scrutiny because they impinge on values at its very heart.”
Garnett tends to think the Supreme Court got that case right in deciding in opposition to the announce clause.
“Free speech is messy,” he said. “If you take the First Amendment seriously, you don’t want to give the government the power to say what candidates should say. … Free speech doesn’t belong to the left or the right. We all have a stake in it.”
rgreen@jg.net
