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Sunday, April 27, 2008

Ind. Courts - Even more on "Judicial Candidates Sue to Protect Judicial Speech Rights"

Updating earlier ILB entries from April 18th, April 21st and April 23rd, the Richmond Palladium Item has an editorial today, titled "Let judges express their views." It reads:

Two Indiana judicial candidates have joined the Indiana Right to Life Committee as plaintiffs in a federal lawsuit seeking to block enforcement of Indiana rules the judges say prohibit them from explaining their views on abortion, euthanasia and other hot-button, divisive issues.

This one is not easy, but critically important.

The issue arises from a preliminary advisory opinion from the state's Judicial Qualification Commission warning that judicial candidates who make "broad statement on disputed social and legal issues" run the risk of violating the Indiana Code of Judicial Conduct.

Several candidates for Indiana judgeships declined to respond to a Right to Life survey, citing the Indiana code.

The 7th U.S. Circuit Court of Appeals tossed out the case, initially filed by Indiana Right to Life, saying there was no evidence that a judicial candidate faced commission reprisal for answering the survey.

But that was before the two judicial candidates -- Marion Superior Court Judge David Certo and Torrey Bauer, a candidate for judge in Kosciusko County Superior Court -- joined plaintiff Right to Life, saying they did in fact fear reprisal for answering.

In the 2002 case of Minnesota Republican Party v. White, the U.S. Supreme Court struck down the "announce clause" in Minnesota's Code of Judicial Conduct that said that a judge shall not "announce his or her views on disputed legal or political issues." A similar "announce clause" in Indiana's code of judicial conduct was subsequently removed.

In its advisory opinion, the commission seems to acknowledge the pre-eminence of First Amendment free speech guarantees and the Supreme Court's ruling in the Minnesota case, but then goes on to split legal hairs over how a judicial candidate may or may not answer position questions.

The commission has an obvious interest, one shared by a conscientious public, to assure judicial independence and neutrality -- far apart from the kind of pandering and promise making that accompanies the rawness of political campaigns.

Judicial candidates, if they feel a need to respond at all -- and they are not required to do so -- are well advised to remind Right to Life or any other lobby or interest seeking to impose a dangerous political litmus test on their appointment or election, that they will rule on the law, without sway of personal view. Who could ask for more?

Meanwhile, Indiana's Commission on Judicial Qualifications should take to heart its own opinion, notably the part that quotes Justice John Paul Stevens in his dissent in the Minnesota case. Stevens noted that even if a judicial conduct code may not sanction judicial candidates from exercising free speech rights in their views on issues, the commission holds full free speech rights of its own. It can, for example, publicly draw attention to "the speaker's unfitness for judicial office" where his or her remarks or promises compromise judicial integrity.

"If the solution for harmful speech is more speech," Stevens wrote, "so be it."

It's a time-honored, deserving principle that the nation's finest justices have advanced.

The April 21st ILB entry includes links to most of the documents filed so far in the suit, including the "preliminary advisory opinion" referenced in the editorial.

Posted by Marcia Oddi on April 27, 2008 01:34 PM
Posted to Indiana Courts