Bopp Wins Partial Victory In Indiana Judicial Case

Terre Haute attorney Jim Bopp's nationwide drive to force judicial candidates to announce their views on cases or issues likely to come before the courts in which they will sit in judgment took a step forward in Indiana. In the case of Indiana Right to Life v. Shepard, et al., Federal Judge Allen Sharp of the district court for Northern Indiana entered an injunction prohibiting the enforcement of a judicial canon adopted by Indiana, which prohibited judicial candidates from completing questionnaires submitted to them by interest groups like the plaintiff Bopp represented in this case, Indiana Right to Life. Sharp, however, ruled in favor of the enforcement of another judicial canon challenged by Bopp, which requires the recusal of judges in certain instances where their impartiality is questioned.

Canon 5A(3)(d)(i) – the so-called “pledges and promises clause” – prohibits a judicial candidate from making pledges or promises of conduct in office “other than the faithful and impartial performance of duties of the office.” Canon 5A(3)(d)(ii) – the so called “commitments clause” or “commits clause” – prohibits a judicial candidate from making statements that commit or appear to commit a candidate with respect to cases, controversies, or issues that are likely to come before the court. The Indiana Commission on Judicial Qualifications advised judicial candidates not to respond to a questionnaire furnished to them by Right to Life of Indiana asking them to express their judicial views on such issues as abortion and same-sex marriages. Following the U.S. Supreme Court decision in Republican Party of Minnesota v. White, Judge Sharp ruled that the judicial canons in question violated the judicial candidates' free speech rights and entered an injunction against their enforcement.

Judge Sharp, however, upheld Indiana Canon of Judicial Conduct 3E(1), which states, “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” Finding that the canon advanced a compelling state interest, Judge Sharp wrote, "It furthers the purpose of removing bias for or against a party to the proceeding and seeks to guarantee that the judge will apply the law in the same manner that would be applied to any other litigant." Finding that the canon was narrowly tailored and neither vague nor overly broad, Sharp said, "Recusal is required only in those situations where questioning the judge’s impartiality is objectively reasonable.

Judge Sharp makes it clear that his ruling in no way requires judicial candidates to answer questionnaires like those prepared by Right to Life. He writes, "Finally, it is worth restating that nothing in this Court’s order should be read to compel, or even encourage, judges or judicial candidates to answer questions put to them by these plaintiffs or any other group." "This Court comes to its decision without regard to the political or social agendas of the Plaintiffs in this matter," he adds. So while judicial candidates are free to answer questionnaires like those prepared by Right to Life, a judge arguably will run the risk of his/her impartiality being called into question if a particular case relates directly to a matter on which the judge staked out a position in such a questionnaire. In some instances, the judge may be required to recuse himself from the case.

A big hat tip to Indiana Law Blog for catching this and the link to the court's decision. To read more, click here.