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Wednesday, November 09, 2005

Courts - Running for judge in Pennsylvania

In a March 23, 2005 ILB entry we reported on "Running for judge in North Dakota." A federal judge in North Dakota had held, according to a press release from the winning attorney, James Bopp, Jr, Terre Haute:

that two canons based on the American Bar Association’s 1990 Model Code of Judicial Conduct were unconstitutional. The court held that provisions of North Dakota’s Code that forbid judicial candidates from making “pledges or promises” of conduct in office or to “commit or appear to commit” candidates to decide a case violate the First Amendment because they forbid judicial candidates from announcing their views on disputed legal and political issues.
The ILB entry links to the North Dakota opinion, plus to a entries on a similar decision in Kentucky, and to pending cases in other states, including Indiana.

Last week a federal judge in Pennsylvania rejected a similar suit because "Plaintiffs fail to satify standing and ripeness requirements." The decision, which I have posted, is Pennsylvania Family Institute v. Black (MD Pa., 11/4/05).

Howard Bashman of How Appealing reported on the decision in an item Tuesday. In a story written before the decision but after the oral argument the Harrisburg Patriot-News reported:

A federal judge is considering a request by a conservative family values group to lift the rules that bar Pennsylvania judicial candidates from commenting on issues.

U.S. District Judge Sylvia Rambo is considering a petition filed by the Pennsylvania Family Institute to determine whether she should issue a restraining order to allow judicial candidates to answer a questionnaire they sent out in September. * * *

The suit says of 20 responses PFI received, 15 candidates declined to answer some of the questions, citing the state's Canons of Judicial Conduct, which prohibit candidates from making promises or committing themselves to certain positions.

The suit asks Rambo to prohibit the Judicial Conduct Board or the Office of Disciplinary Counsel from enforcing those provisions against candidates who answer the survey.

The survey asks questions such as whether the landmark abortion case Roe v. Wade was correctly decided and whether the state constitution would permit same-sex marriage, prayer in school or the display of the Ten Commandments in a courtroom.

James Bopp Jr., an attorney for PFI, argued for a temporary restraining order yesterday, saying the judicial code violates the candidates' right to free speech and the group's right to receive free speech. Some candidates answered the questions, which are attached as an exhibit to the suit.

Under questioning by Rambo, Bopp said PFI has chosen not to publish the surveys for fear the candidates will be disciplined under the judicial canons. In the letter to candidates, the group says it planned to publish the responses on its Web site. The letter says the group believes responses are protected by a 2002 U.S. Supreme Court decision from a case in Minnesota. Bopp said similar cases in Indiana, Kentucky, North Dakota and Alaska have been decided in their favor.

However, the Indiana case, Right to Life v. Shepard, is still pending. The defendants' motion to dismiss on standing, ripeness and abstention is pending before Judge Sharp in the ND Indiana. In answer to my question, George T. Patton, Bose McKinney & Evans LLP, representing defendants (Randall T. Shepard, et al.), along with the Attorney General, reports that "Because affidavits were attached to our motion, Judge Sharp has converted our dismissal into summary judgment and ordered all parties to file any arguments and evidence relevant to that by the end of the year with replies in April of next year."

Posted by Marcia Oddi on November 9, 2005 03:40 PM
Posted to Indiana Courts