Indiana Right to Life, Inc. v. Shepard

• Citation: 463 F.Supp.2d 879
• Decision Date: 14 November 2006
• Docket Number: No. 4:04-CV-0071.,4:04-CV-0071.
• Parties: INDIANA RIGHT TO LIFE, INC. and Arline Sprau, Plaintiffs, v. Randall T. SHEPARD, James O. McDonald, Judy Johns Jackson, Donald W. Ward, Payton Wells, John O. Feighner, and Elizabeth Peralta, in their official capacities as members of the Indiana Commission on Judicial Qualfications, and Fred Austerman, Diane L. Bender, Janet L. Biddle, Corinne R. Finnerty, Robert L. Lewis, R. Anthony Prather, J. Mark Robinson, Anthony Zappia, and Sally Franklin Zweig, in their official capacities as members of the Indiana Disciplinary Commission, Defendants.
• Court: U.S. District Court — Northern District of Indiana

Page 879

463 F.Supp.2d 879

INDIANA RIGHT TO LIFE, INC. and Arline Sprau, Plaintiffs, v. Randall T. SHEPARD, James O. McDonald, Judy Johns Jackson, Donald W. Ward, Payton Wells, John O. Feighner, and Elizabeth Peralta, in their official capacities as members of the Indiana Commission on Judicial Qualfications, and Fred Austerman, Diane L. Bender, Janet L. Biddle, Corinne R. Finnerty, Robert L. Lewis, R. Anthony Prather, J. Mark Robinson, Anthony Zappia, and Sally Franklin Zweig, in their official capacities as members of the Indiana Disciplinary Commission, Defendants.

No. 4:04-CV-0071.

United States District Court, N.D. Indiana, Hammond Division.

November 14, 2006.

Anita Y. Woudenberg, James Bopp, Jr., Thomas J. Marzen PHV, Bopp Coleson & Bostrom, Terre Haute, IN, Cara C. Putman, Roger W. Bennett, Bennett Boehning & Clary LLP, Lafayette, IN, for Plaintiffs.

Gary Damon Secrest, Indiana Attorney General's Office, George T. Patton Jr. Marisol Sanchez, Bose McKinney & Evans LLP, Indianapolis, IN, for Defendants.

MEMORANDUM, OPINION AND ORDER

ALLEN SHARP, District Judge.

This matter is before the Court on the Motion for Summary Judgment (Docket No. 67) filed by Plaintiffs Indiana Right to Life, Inc. and Arline Sprau. The Court also considers Defendants' Motion to Dismiss (Docket No. 36)¹ and Motion for Summary Judgment (Docket No. 94). The Court heard oral argument in Lafayette, Indiana on my 21, 2006, and the issues have been fully briefed. For the reasons set forth below, the Plaintiffs' Motion for Summary Judgment is GRANTED in part and DENIED in part, and the Defendants' Motion for Summary Judgment is GRANTED in part and DENIED in part.

I. Introduction

On September 29, 2004, Plaintiffs, Indiana Right to Life, Inc., Arline Sprau, and Mary P. Hall,² filed a Complaint for Declaratory and Injunctive Relief against members of the Indiana Commission on Judicial Qualifications and members of the Indiana Disciplinary Commission. The Plaintiffs filed an Amended Complaint for Declaratory and Injunctive Relief on January 4, 2005, challenging the constitutionality of Indiana Canons of Judicial Conduct 3E(1) and 5A(3)(d)(i) and (ii). Plaintiffs and Defendants filed motions for summary judgment, each claiming there is no genuine issue of material fact and that each is entitled to judgment as a matter of law.

II. Standard of Review

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Nebraska v. Wyoming, 507 U.S. 584, 590, 113 S.Ct. 1689, 123 L.Ed.2d 317 (1993); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In deciding a motion for summary judgment, a court must view all facts in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); NUCOR Corp. v. Aceros Y Maquilas de Occidente, 28 F.3d 572, 583 (7th Cir.1994).

The moving party bears the burden of identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits" that the moving party believes demonstrate an absence of genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once this burden is met, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." FED. R. UV. P. 56(e); Becker v. Tenenbaum-Hill Assocs., Inc., 914 F.2d 107, 110 (7th Cir.1990); Schroeder v. Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir.1989). "[A] party who bears the burden of proof on a particular issue may not rest on its pleading, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact which requires trial." Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir.1988).

When parties file cross motions for summary judgment, each motion must be assessed independently, and denial of one does not necessitate the grant of the other. M. Snower & Co. v. United States, 140 F.2d 367, 369 (7th Cir.1944). Rather, each motion evidences only that the movant believes it is entitled to judgment as a matter of law on the issues within its motion and that trial is the appropriate course of action if the court disagrees with that assessment. Miller v. LeSea Broadcasting, Inc., 87 F.3d 224, 230 (7th Cir.1996).

III. Background and Facts

In 1973, the Indiana Supreme Court adopted a code of judicial conduct based on the American Bar Association's Model Code of Judicial Conduct. The provisions of two canons of that code are at issue here — Canon 3E(1) and Canon 5A(3)(d)(i) and (ii). Indiana Canon of Judicial Conduct 3E(1) requires judges to recuse themselves when a "judge's impartiality might reasonably be questioned." Indiana Canon of Judicial Conduct 5A(3) states: "A candidate for judicial office" shall not "make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office" or "make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court." Ind.Code of Judicial Conduct, Canon 5A(3)(d)(i) and (ii).

In February 2002, the Indiana Commission on Judicial Qualifications sent a memo to all judicial candidates for that year's elections stating that they may not make statements which appear to commit them to the outcome of cases, such as "tough on crime platforms." Second Affidavit of Margaret W. Babcock ("Babcock Affidavit"), Exhibit B, 112. On June 27, 2002, the United States Supreme Court issued its opinion in Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002), finding the so-called "announce clause" in Minnesota's Canons of Judicial Conduct unconstitutional. Announce clauses stated that judicial candidates shall not announce their views on disputed legal or political issues. See Id. at 769, 122 S.Ct. 2528. In 1990, the ABA amended the Model Code and took out the announce clause, and in 1993, the Indiana Supreme Court amended its Code to remove the announce clause.

Following the White decision, the Commission issued Preliminary Advisory Opinion # 1-02 ("Advisory Opinion") to judicial candidates. The Advisory Opinion indicates that the Commission is "amending its advice about certain campaign speech where the prior limitations would not be enforceable under White." Amended Complaint, Ex. D at 2. The Advisory Opinion states that Indiana eliminated the announce clause from Canon 5 in 1993, and judicial candidates are constitutionally permitted to state their general views about disputed social and legal issues. The Advisory Opinion further stated, however, that "broad statements relating to the candidate's position on disputed social and legal issues, ... incurs the risk of violating the `commitment' clause and/or the `promises' clause." Amended Complaint, Ex. D at 4. The Advisory Opinion outlined several examples of permissible speech — such as "criticizing an opponent's qualifications, record, or past decisions, so long as the criticism is based on objective facts," or making promises relating to court administration — but declined to provide a "list of approved and disapproved statements." Amended Complaint, Ex. D at 2. Such a list was improper, according to the Advisory Opinion, because "the propriety of more particularized statements is too dependent upon context and facts to allow the Commission's prejudgment in most instances. Instead, many issues about campaign speech will require ad hoc analysis." Amended Complaint, EL D at 3-4. Judicial candidates were "encouraged to contact the Commission directly and in advance to discuss the propriety of the campaign statements, or to discuss the appropriateness of their opponents' statements and the proper responses to those statements." Amended Complaint, Ex. D at 4.

In 2002, Plaintiff Indiana Right to Life, Inc.³ sent questionnaires to judicial candidates of that year's elections. Those questionnaires asked judicial candidates about disputed legal and political issues, such as abortion and assisted suicide. Right to Life sent out questionnaires again in 2004. Although most recipients of the questionnaire declined to respond to it, at least two recipients provided substantive answers. Amended Complaint Exhibits E-24 through E-31; Defendants' Memorandum in Support of Motion for Summary Judgment at 3. Some questionnaires indicated that the recipient declined to respond because of the Canons of Judicial Conduct or the advice of Margaret Babcock, counsel to the Commission. Amended Complaint Exhibit E.

On September 29, 2004, Right to Life filed a Verified Complaint for Declaratory and Injunctive Relief against members of the Indiana Commission on Judicial Qualifications⁴ 4 in their official capacity and members of the Indiana Disciplinary Commission⁵ in their official capacity. On January 4, 2004, Right to Life filed an Amended Verified Complaint for relief challenging the "recusal clause" found in Canon 3E(1) and the "pledges and promises clause" and "commit clause" found in Canon 5A(3)(d)(i) and (ii).

More specifically, Right to Life claims that Canon 3E(1) violates the First Amendment of the United States Constitution as applied to the 2004 candidate questionnaire, insofar as it "can be applied to prevent judges who have exercised their right to speak on disputed legal and political issues from hearing cases that address the issues on which they have spoken." Amended Complaint at 3, ¶ 5. Right to Life further claims that the Commission's enforcement policy regarding Canon 3E(1) is in violation of the First Amendment, both on its face and as applied to the 2004 candidate questionnaire." Amended Complaint at 3, 115. Right to Life also alleges that Canon 5A(3)(d)(i) and (ii) "chills...