Bauer v. Shepard

Decision Date07 July 2009
Docket NumberCause No. 3:08-CV-196-TS.
Citation634 F.Supp.2d 912
PartiesTorrey BAUER, et al., Plaintiffs, v. Randall T. SHEPARD, et al., Defendants.
CourtU.S. District Court — Northern District of Indiana

Anita Y. Woudenberg, James Bopp, Jr., Josiah S. Neeley, Bopp Coleson & Bostrom, Terre Haute, IN, for Plaintiffs.

George T. Patton, Jr., Marisol Sanchez, Bose McKinney & Evans LLP, Thomas M. Fisher, Ashley E. Tatman, Heather L. Hagan, Suzanna K. Hartzell-Baird, Indiana Attorney General's Office, Indianapolis, IN, for Defendants.

OPINION AND ORDER

THERESA L. SPRINGMANN, District Judge.

The people of the State of Indiana through the Indiana Constitution have granted the Indiana Supreme Court authority to regulate the conduct of Indiana lawyers and judges. In exercising this authority, the Indiana Supreme Court has adopted the Indiana Rules of Professional Conduct and the Indiana Code of Judicial Conduct. In adopting these rules of conduct, the court has balanced values important to the administration of justice (such as judicial fairness, impartiality, independence, integrity, and competence, the principles of justice, and the rule of law) against other values (such as the speech rights of judges and judicial candidates). Additionally, in response to decisions by federal courts regarding the constitutionality of various standards governing judicial conduct, the Indiana Supreme Court has amended the Indiana rules, even as recently as within the last year.

In this case, a nonprofit issue advocacy organization, a judge, and an attorney who recently ran for judicial office challenge several rules adopted by the Indiana Supreme Court that govern the conduct of judges and judicial candidates. They argue that these rules unconstitutionally restrict their free speech and association rights in violation of the First Amendment to the Constitution of the United States of America.

This matter is now before the Court for ruling on cross-motions for summary judgment filed by the parties. Although the parties do not highlight any real dispute over material facts, they do pose one overarching legal question: do certain rules adopted by the Indiana Supreme Court to govern the conduct of judges and candidates for judicial office violate the free speech and association rights of judges and judicial candidates as protected by the First Amendment? For the reasons stated in this Opinion and Order, the Court finds that the rules challenged in this lawsuit do not violate the Plaintiffs' First Amendment speech and association rights.

PROCEDURAL BACKGROUND

On September 29, 2004, Indiana Right to Life, Inc. (IRL) and two other plaintiffs (who were not judicial candidates) instituted a lawsuit (Indiana Right to Life, Inc., et al. v. Randall T. Shepard, Cause Number 4:04-CV-71 (Shepard I)) in this judicial district against members of the Indiana Commission on Judicial Qualifications (ICJQ) and the Indiana Disciplinary Commission (IDC), seeking declaratory and injunctive relief, challenging the "pledges or promises clause" and the "commits clause" (Canon 5A(3)(d)(i) and (ii)) and the "recusal requirement" (Canon 3E(1)) of the Indiana Code of Judicial Conduct in effect at that time, and claiming that these provisions might prohibit judicial candidates from responding to an IRL questionnaire. Judge Allen Sharp denied the plaintiffs' request for a preliminary injunction. Ultimately, however, Judge Sharp permanently enjoined enforcement of the "pledges or promises clause" and the "commits clause," but denied the plaintiffs' request for a permanent injunction with respect to the "recusal requirement." Ind. Right to Life, Inc. v. Shepard, 463 F.Supp.2d 879 (N.D.Ind.2006). The defendants appealed, and the Seventh Circuit reversed, holding that the plaintiffs lacked standing to assert a First Amendment claim because they lacked sufficient evidence of willing speakers. Ind. Right to Life, Inc. v. Shepard, 507 F.3d 545 (7th Cir.2007). On January 4, 2008, that case was dismissed.

On April 18, 2008, IRL along with Torrey Bauer, an attorney and (at that time) a candidate for judge of the Kosciusko Superior Court, and Judge David Certo of the Marion Superior Court, instituted this lawsuit against members of the ICJQ and the IDC in their official capacities. The Plaintiffs claimed that provisions of the Code violate their rights under the First and Fourteenth Amendments to the United States Constitution. In their original Verified Complaint for Relief [DE 1], they sought injunctive relief barring enforcement of the "pledges or promises clause" (Canon 5A(3)(d)(i)), the "commits clause" (Canon 5A(3)(d)(ii)), and the "recusal requirement" (Canon 3E(1)) of the Code in effect at that time. In addition to their Complaint, the Plaintiffs filed a Motion for Temporary Restraining Order [DE 3] and a Memorandum in Support [DE 4]. The Court construed the Motion as a request for a preliminary injunction because the Defendants had received notice of the Plaintiffs' request. On April 29, the Defendants filed a Memorandum in Opposition [DE 16]. On April 30, the Court conducted an evidentiary hearing, permitting the parties to present evidence and argument with respect to the request for a preliminary injunction. On May 6, the Court issued an Opinion and Order granting the Plaintiffs' request for a preliminary injunction and enjoining the ICJQ and the IDC from initiating disciplinary proceedings under the "pledges or promises clause" and the "commits clause" (Canon 5A(3)(d)(i) and (ii)) against judicial candidates who respond to the IRL's 2008 questionnaire until the Court issues a final decision on the merits.

On June 5, the Plaintiffs filed a Verified Amended Complaint for Relief [DE 25], in which they continued to challenge the "pledges or promises clause" (Canon 5A(3)(d)(i)), the "commits clause" (Canon 5A(3)(d)(ii)), and the "recusal requirement" (Canon 3E(1)). However, they added challenges to the "partisan activities clauses" (Canon 5A(1)(a) & (c)) and the "solicitation clauses" (Canon 5A(1)(e) & 5C(2)), as well as Canons 5A(1)(b) and 5C(1)(g). On July 16, the Defendants filed their Answer [DE 29].

On July 28, the Plaintiffs filed a Motion for Summary Judgment [DE 31] and supporting brief [DE 32]. On August 27, the Defendants responded by filing a Motion to Deny Plaintiffs' Motion for Summary Judgment or, Alternatively, to Continue Under Rule 56(f) [DE 33] and Memorandum in Support [DE 34]. On September 8, the Indiana Supreme Court issued a press release indicating its adoption of a new Code of Judicial Conduct (or its amendment of the existing Code), which would go into effect on January 1, 2009, and on September 19, the Indiana Supreme Court issued its Order Amending Code of Judicial Conduct.1 On September 11, the Plaintiffs filed a Response in Opposition [DE 35] to the Defendants' Motion. On September 25, the Court issued an Opinion and Order granting in part and denying in part the Defendants' Motion to Deny Plaintiffs' Motion for Summary Judgment or, Alternatively, to Continue Under Rule 56(f), and allowing the Defendants to file their Response to the Plaintiffs' Motion for Summary Judgment sixty days after the Plaintiffs respond to the Defendants' discovery requests.

On October 1, Plaintiff Certo filed a Motion for Preliminary Injunction and Temporary Restraining Order [DE 39] and a Memorandum in Support [DE 40]. On October 7, the Court conducted a telephone conference with the parties. During the conference, the Court raised the issue of the new Code adopted by the Indiana Supreme Court, which was to take effect on January 1, 2009. The Plaintiffs expressed their view that the 2009 Code was not substantially different from the pre-2009 Code, that there was no need to amend the Complaint or other submissions based upon the adoption of the new Code, and that their Motion for Summary Judgment was still viable, even as to the 2009 Code. The Defendants urged that relevant provisions of the Code were rewritten, that the 2009 Code renders issues regarding the pre-2009 Code moot, and that these differences have an impact on the Plaintiffs' Motion for Summary Judgment and any ruling the Court would enter on the Plaintiffs' Motion. On October 8, the Court issued an Order setting a discovery and briefing schedule on the Plaintiffs' Motion for Summary Judgment. On October 16, the Defendants filed a Memorandum in Opposition [DE 48] to Plaintiff Certo's Motion for Preliminary Injunction, and on October 21, Plaintiff Certo filed his Reply in Support [DE 50]. On October 22, the Court conducted a hearing on Plaintiff Certo's Motion for Preliminary Injunction. The parties then proceeded with discovery. The Defendants' response to the Plaintiffs' Motion for Summary Judgment was due on March 11, 2009, and the Plaintiffs' reply on April 1, but these deadline were later extended at the parties' request.

On March 23, 2009, 2009 WL 791548, the Court entered an Opinion and Order [DE 64] denying without prejudice as moot the Plaintiffs' Motion for Summary Judgment [DE 31] and Motion for Preliminary Injunction and Temporary Restraining Order [DE 39], based upon the Indiana Supreme Court's issuance of the new Code. The Court noted that the pre-2009 version of the Code no longer had legal effect, that the 2009 Code included provisions that corresponded (to some degree or another) to the challenged provisions of the pre-2009 Code, that the Plaintiffs' Verified Amended Complaint for Relief and the other submissions of the parties were based on the pre-2009 version of the Code, and that the parties in their submissions had not adequately addressed the similarities and differences between the old Code and the new Code. For these reasons, the Court directed the parties to prepare submissions to address the differences between the pre-2009 version and the new Code and the impact (if any) of the...

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  • Pellegrino v. Ampco Sys. Parking
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    • Michigan Supreme Court
    • March 31, 2010
    ...generally dismissed due to a lack of standing or ripeness. See, e.g., Florida Family Policy Council v. Freeman, 561 F.3d 1246 (C.A.11, 2009). 8Bauer v. Shepard, 634 F.Supp.2d 912, 948-950 (N.D.Ind., 2009); Indiana Right to Life, Inc. v. Shepard, 463 F.Supp.2d 879, 887 (N.D.Ind., 2006), rev'......
  • England v. Jackson County Public Library
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    ...Court applies a strict scrutiny standard to JCPL's decision to permanently ban him from the Seymour Library. See Bauer v. Shepard , 634 F. Supp. 2d 912, 940 (N.D. Ind. 2009), aff'd as modified , 620 F.3d 704 (7th Cir. 2010) ("Although political speech is not beyond all restraint, courts app......
  • Winter v. Wolnitzek
    • United States
    • U.S. District Court — Eastern District of Kentucky
    • May 13, 2016
    ...cases out of the Seventh Circuit upheld a "similar provision" of the Indiana Code of Judicial Conduct. R. 100 (citing Bauer v. Shep a rd , 634 F.Supp.2d 912 (N.D.Ind.2009) ; Bauer , 620 F.3d 704 ). That is simply not true. Indiana's Canon forbade judges and judicial candidates to "act as a ......
  • Parker v. Judicial Inquiry Comm'n of State
    • United States
    • U.S. District Court — Middle District of Alabama
    • March 2, 2018
    ...concerning issues that are likely to come before them in their judicial capacity." (emphasis added) ), with Bauer v. Shepard , 634 F.Supp.2d 912, 926 (N.D. Ind. 2009) ("Candidates have a constitutional right to state their views on, for example, abortion or the death penalty ...." (quoting ......
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2 books & journal articles
  • THE ARCHITECTURE OF JUDICIAL ETHICS.
    • United States
    • University of Pennsylvania Law Review Vol. 169 No. 8, August 2021
    • August 1, 2021
    ...political gatherings and seeking, accepting, or using a political organization's endorsement). (103) Compare Bauer v. Shepard, 634 F. Supp. 2d 912 (N.D. Ind. 2009), aff'd as modified, 620 F.3d 704 (7th Cir. 2010) (invalidating Indiana's prohibition on pledges, promises, and commitments), wi......
  • Caperton's Amici
    • United States
    • Seattle University School of Law Seattle University Law Review No. 33-03, March 2010
    • Invalid date
    ...result is devoutly to be wished. Its consummation, however, remains uncertain. 192. For an early application, see Bauer v. Shepard, 634 F. Supp. 2d 912 (N.D. Ind. 2009), drawing on Caperton in upholding the Indiana Supreme Court's recently revised versions of a "pledges of promises clause" ......

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