Ind. Right To Life Inc. v. Shepard - .

• Decision Date: 20 August 2010
• Docket Number: No. 09-2963.,09-2963.
• Citation: 620 F.3d 704
• Parties: Torrey BAUER, David Certo, and Indiana Right to Life, Inc., Plaintiffs-Appellants, v. Randall T. SHEPARD, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

620 F.3d 704

Torrey BAUER, David Certo, and Indiana Right to Life, Inc., Plaintiffs-Appellants,
v.
Randall T. SHEPARD, et al., Defendants-Appellees.

No. 09-2963.

United States Court of Appeals,Seventh Circuit.

Argued Dec. 3, 2009.
Decided Aug. 20, 2010.

620 F.3d 705

620 F.3d 706

James Bopp, Jr., Josiah Neeley (argued), Attorneys, Bopp, Coleson & Bostrom, Terre Haute, IN, for Plaintiffs-Appellants.

Thomas M. Fisher (argued), Office of the Attorney General, George T. Patton, Jr., Attorney, Bose McKinney & Evans, LLP, Indianapolis, IN, for Defendants-Appellees.

Before EASTERBROOK, Chief Judge, and MANION and EVANS, Circuit Judges.

EASTERBROOK, Chief Judge.

The Supreme Court held in Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) ( White I ), that elected judges, and candidates for judicial office, have a right under the first amendment to declare their legal views to the electorate during their campaigns. The decision left open myriad questions of implementation, and litigation has ensued across the country in those states that give the voters some say in choosing judges-either through direct election or by retention votes on judges who came to office by appointment. Recently we held that Wisconsin violated the Constitution by forbidding judges to be members of political parties, but that rules restricting partisan activities (such as endorsing a candidate for non-judicial office), and personal solicitation of funds, are valid. Siefert v. Alexander, 608 F.3d 974 (7th Cir.2010). Today's appeal concerns provisions of Indiana's Code of Judicial Conduct. Some judges in Indiana are appointed by the Governor but must run in retention elections. Others are directly elected. Article VII of Indiana's Constitution provides the details.

I

Indiana Right to Life, Inc., sends questionnaires to candidates for election or retention, asking recipients to state, among other things, whether they agree with Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), which held many forms of abortion legislation unconstitutional, and whether they subscribe to propositions such as: “I believe that the unborn

620 F.3d 707

child is biologically human and alive and that the right to life of human beings should be respected at every stage of their biological development.” (The district court's opinion includes excerpts that convey the gist of all nine questions.) Most recipients have either ignored this questionnaire or told Indiana Right to Life that they fear giving answers could jeopardize their judicial careers because of provisions in the state's Code of Judicial Conduct.

Indiana Right to Life filed suit seeking to have these provisions held invalid, but its suit was dismissed for want of standing, because no person actually or potentially covered by the Code was a plaintiff. Indiana Right to Life, Inc. v. Shepard, 507 F.3d 545 (7th Cir.2007). Indiana Right to Life then recruited a candidate for judicial office (Torrey Bauer) and a sitting judge (David Certo) as plaintiffs to join it in this new suit. The candidate and the judge both say that they refrain from speaking about abortion, and other controversial topics, because they fear the prospect of sanctions under the Code. Bauer answered the group's 2008 questionnaire but says that he will keep silent in the future because of the risk this would pose to his judicial career should he be elected. He expresses concern that his 2008 answers may come back to haunt him should he be elected. Certo has not answered the group's questionnaire in any year. He, too, says that the Code has led to silence.

While this suit was pending in the district court, Indiana substantially amended its Code of Judicial Conduct, in light of changes to a model code published by the American Bar Association. The revised Code, which took effect on January 1, 2009, is the focus of this appeal-though plaintiffs also want an injunction against one provision that has been removed from the Code but was in force when Bauer answered the 2008 questionnaire.

Plaintiffs challenge four provisions (or associated groups of provisions) in the current Code and one provision in the version applicable to 2008. The first comprises Rules 2.10(B) and 4.1(A)(13), which forbid judges and candidates in judicial elections to make commitments that are inconsistent with the impartial performance of judicial office. The parties call these rules the “commits clauses.” Canon 5A(3)(d) of the older Code covered similar ground but was broader; it is the provision relevant to Bauer's 2008 answers. The second is Rule 2.11(A), which requires recusal when a judge's impartiality “might reasonably be questioned.” This the parties call the “recusal clause.” Plaintiffs direct special fire at subsection 2.11(A)(5), which requires recusal if the judge “has made a public statement ... that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.” This specifies a concrete consequence of violating the commits clauses. The third group comprises Rule 4.1(A)(1) and (2), which limits the political activities of Indiana's judges (the parties call these the “partisan-activities clauses”), and the fourth comprises limits on fundraising set out in Rule 4.1(A)(4) and (8) (the “solicitation clauses”).

Defendants are the members of two bodies: the Indiana Commission on Judicial Qualifications and the Indiana Disciplinary Commission. Some of the defendants are judges (Randall Shepard, the lead defendant, is the state's Chief Justice), but they are sued in their capacity as members of these commissions rather than as judges. The Commission on Judicial Qualifications receives and investigates complaints against judges and candidates for judicial office. It has some enforcement power over minor offenses and can issue public admonitions if the subject agrees; but only the state's Supreme Court can remove a judge from office or

620 F.3d 708

impose substantial discipline, and only a judicial body (such as a court of appeals) can remove a judge from a particular case under the recusal clause. As a practical matter, an injunction forbidding the Commission to bring any supposed violation of the contested clauses to the attention of the state's Supreme Court would give plaintiffs the relief they want. The Indiana Disciplinary Commission investigates and prosecutes cases of misconduct by attorneys; again only the state judiciary can take any significant disciplinary action. We do not refer to the Disciplinary Commission again; every reference to “the Commission” is to the Indiana Commission on Judicial Qualifications.

The district court deemed moot Bauer's challenge to the pre-2009 version of the Code. The court concluded that plaintiffs have standing to challenge the version now in force and held that all of the contested provisions are constitutional. 634 F.Supp.2d 912 (N.D.Ind.2009).

II

Defendants contend that plaintiffs lack standing to sue. Standing exists when the plaintiff suffers an actual or impending injury, no matter how small; the injury is caused by the defendant's acts; and a judicial decision in the plaintiff's favor would redress the injury. See, e.g., Summers v. Earth Island Institute, --- U.S. ----, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009); Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 102-04, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Bauer and Certo have not been injured yet, but the existence of a statute implies a threat to prosecute, so pre-enforcement challenges are proper, because a probability of future injury counts as “injury” for the purpose of standing. See Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Brandt v. Winnetka, 612 F.3d 647 (7th Cir.2010); 520 South Michigan Avenue Associates, Ltd. v. Devine, 433 F.3d 961 (7th Cir.2006). We held in Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224 (7th Cir.1993), another pre-enforcement suit by a judge who disagreed with a state's limits on campaign speech, that standing had been established. This case is not materially different. Because Bauer and Certo have standing, it is unnecessary to decide whether Indiana Right to Life independently has standing.

The district court thought that Bauer's challenge to the pre-2009 Code became moot when the Code was amended. To say that a claim is moot is to say that it is too late for the judiciary to affect anyone's entitlements. With respect to Bauer's claim, however, the suit is too early rather than too late. It is unripe, not moot.

If Bauer should be elected in 2010 or later, the Commission might open a proceeding based on his answers in 2008, and the Indiana Supreme Court might remove him from office or discipline him in some other fashion. The amendment of the Code in 2009 does not eliminate the possibility of prosecuting and punishing earlier violations. Nor does the preliminary injunction preventing implementation of former Canon 5A(3)(d), which was in force when Bauer answered the 2008 questionnaire but has since been vacated. An expired or vacated injunction does not prevent a unit of government from punishing conduct, committed before the vacatur, that violates its laws. See Crane v. Indiana High School Athletic Association, 975 F.2d 1315, 1318-19 (7th Cir.1992); Hoskins Lumber Co. v. United States, 20 F.3d 1144 (Fed.Cir.1994). Cf. Hampton Tree Farms, Inc. v. Yeutter, 956 F.2d 869, 871 (9th Cir.1992) ( “[O]nce an injunction in a civil case has been invalidated, rights

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granted under the injunction no longer exist and cannot be enforced.”). So the dispute is not moot.

But before Bauer can face any consequence for his answers in 2008, a series of events must happen: (a) he must be elected to the state judiciary; (b) the Commission must decide to prosecute, even though an injunction was...