Indiana Right to Life, Inc. v. Shepard

• Citation: 507 F.3d 545
• Decision Date: 26 October 2007
• Docket Number: No. 06-4333.,06-4333.
• Parties: INDIANA RIGHT TO LIFE, INC. and Arline Sprau, Plaintiffs-Appellees, v. Randall T. SHEPARD, in his official capacity as a member of the Indiana Commission on Judicial Qualifications, James O. McDonald, in his official capacity as a member of the Indiana Commission on Judicial Qualifications, Judy J. Jackson, in her official capacity as a member of the Indiana Commission on Judicial Qualifications, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

507 F.3d 545

INDIANA RIGHT TO LIFE, INC. and Arline Sprau, Plaintiffs-Appellees, v. Randall T. SHEPARD, in his official capacity as a member of the Indiana Commission on Judicial Qualifications, James O. McDonald, in his official capacity as a member of the Indiana Commission on Judicial Qualifications, Judy J. Jackson, in her official capacity as a member of the Indiana Commission on Judicial Qualifications, et al., Defendants-Appellants.

No. 06-4333.

United States Court of Appeals, Seventh Circuit.

Argued September 14, 2007.

Decided October 26, 2007.

James Bopp, Jr. (argued), Bopp, Coleson & Bostrom, Terre Haute, IN, for Plaintiffs-Appellees.

George T. Patton, Jr. (argued), Marisol Sanchez, Bose, McKinney & Evans, Indianapolis, IN, for Defendants-Appellants.

Before BAUER, EVANS, and WILLIAMS, Circuit Judges.

EVANS, Circuit Judge.

Indiana Right to Life and Arline Sprau (we will refer to them collectively as Right to Life) filed this complaint against the Indiana Commission on Judicial Qualifications and the Indiana Disciplinary Commission, contending that two canons in the Indiana Code of Judicial Conduct violate their First Amendment rights. The district court agreed that one of the canons was unconstitutional and the state defendants appeal.

The canon at issue—Canon 5A(3)(d)(i) and (ii)—provides:

A candidate, including an incumbent judge, for a judicial office . . . shall not: (i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; (ii) 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.

In the parlance of cases such as the one before us, the two clauses in this canon are referred to respectively as "pledges" and "commitments" clauses. The contention that the clauses are unconstitutional grows out of Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002), which declared unconstitutional a provision in Minnesota's Code of Judicial Conduct. The provision, commonly called an "announce" clause, stated that a candidate for judicial office shall not "announce his or her views on disputed legal or political issues." The clause, the Court said, covered much more than promising to decide an issue a particular way; it prohibited merely stating a candidate's current position, even if he did not bind himself to maintain that position after the election. That broad a prohibition was found to violate the First Amendment. The more limited provisions—pledges or promises clauses—were not challenged, and on those clauses, the Court specifically said it "express[ed] no view." It is with its eye on invalidating the latter clauses that various groups have filed lawsuits throughout the country. See, e.g., Pennsylvania Family Institute v. Black, 489 F.3d 156 (3rd Cir.2007); Alaska Right to Life v. Feldman, 504 F.3d 840, 2007 WL 2743603 (9th Cir.2007).

The hurdle the organizations face, however, is in showing that they are injured by the canons—in establishing that they have standing to bring the case or in showing that the case is ripe for adjudication. With those issues in mind, we turn to the facts in Indiana.

Most, but not all, judges in Indiana are elected in the first instance. Others are appointed but then must run for retention. The Indiana Supreme Court promulgates and enforces professional conduct rules for judges. The Indiana Code of Judicial Conduct consists of a preamble and five canons, which cover a broad array of conduct. The Indiana Commission on Judicial Qualifications and the Indiana Disciplinary Commission are arms of the supreme court. The Commission on Judicial Qualifications (which body we refer to when we say Commission) advises judges concerning the Code, both formally and informally. The Commission's legal counsel, Margaret Babcock, advises judicial candidates as to whether a proposed course of conduct violates the Code.

When the Commission receives a complaint that a judge has violated the Code, it investigates the case and prosecutes the judge if appropriate. In a prosecution, the Commission's counsel acts as prosecutor. The Commission may issue a disciplinary recommendation, which can be appealed to the Indiana Supreme Court. The Disciplinary Commission has similar jurisdiction to enforce the canons against judicial candidates, who are not yet judges. Discipline can include a private reprimand, public censure, suspension, removal from the bench, or disbarment.

The present Code of Judicial Conduct is drawn from the Model Code, adopted by the American Bar Association in 1990. The Model Code removed the "announce" canon and added a "commitments" canon. In 1993, the Indiana Supreme Court did the same. It was later, in June 2002, that the U.S. Supreme Court struck down Minnesota's "announce" canon. Following the decision, the Indiana Commission issued Preliminary Advisory Opinion # 1-02. It expresses the hope that judicial candidates will focus their campaigns "on the promotion of the impartiality and integrity of the judiciary." It goes on, somewhat reluctantly it seems, to state that "candidates are permitted under the first amendment to state their general views about disputed social and legal issues" and to "express themselves on any number of other philosophies or perspectives."

It is in this context that Indiana Right to Life sent questionnaires to judicial candidates in 2002. The questionnaires covered topics such as abortion and physician-assisted suicide. Candidates were asked whether they agreed that "the unborn 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." They were asked whether they agreed that "Roe v. Wade was wrongly decided." Only nine out of a bevy of candidates provided substantive responses to the questionnaire. There is no evidence that the Commission instituted discipline or even threatened to discipline the candidates who responded.

As the 2004 election approached, Right to Life once again prepared to send questionnaires to all of the many judicial candidates in the state. This time, however, the organization actively looked for a sympathetic candidate willing to ask the Commission for advice. They settled on Christopher Newton. The organization sent Newton a questionnaire. When he received it, he asked James Bopp, Jr.,¹ counsel for Right to Life, "what he was trying to do to me." After he spoke with Bopp, Newton concluded that he wasn't sure whether he could answer the questionnaire. Bopp urged Newton to sign letters addressed to the Commission requesting an opinion as to whether it would violate the Indiana Code to respond to the questionnaire. Newton said he agreed to sign the letters "as a favor to Mr. Bopp because I had an internship with him as a law student in 1987 and 1988" and because Bopp assured Newton that he would not be "part of any lawsuit." Newton then asked Babcock if she had received his letters, and when she said she hadn't, he told her not to worry because "I don't want to answer [the questionnaire]." Newton later stated that "irrespective of the Judicial Canons," he "would not have answered the Survey." Right to Life's effort to recruit a chilled speaker had failed.

Also in 2004, Right to Life sent the questionnaire to all judicial candidates in the state. An accompanying letter explained that Right to Life "produces a voter guide which lists candidate responses to a survey covering issues of concern to our constituency" and that candidates "choosing not to complete the survey will be identified with a `refused to respond' notation." The letter urged candidates to contact the Commission about the questionnaire.

The questionnaire included a synopsis of White and stated that Right to Life did not believe that responding to the questionnaire would violate the Indiana Code of Judicial Conduct. The questionnaire included nine statements and four possible responses: Agree, disagree, undecided, or decline. "Decline" was explained to mean that the candidate believed that he must decline to respond based on the applicable Canons of Judicial Conduct. Examples of the statements are:

I believe that the unborn 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.

I believe that there is no provision in our current Indiana Constitution which is intended to protect a right to abortion.

Only eight candidates responded and, of those, only two provided substantive answers. The latter both checked "agree" next to each statement on the questionnaire, and both have stated that they were never threatened with discipline for providing the responses.

The remaining six responses contained a variety of explanations as to why the candidate would not answer. One candidate sent a letter stating that he thought that, under the applicable canons, it would be inappropriate to answer. He later explained that he did not rely on the canons, but rather had a personal feeling as to his role as a judge which made him think that answering would be inappropriate. The other five declined, but all later explained that it was their own views, not the canons or the Commission, that led them to decline. Three said they consulted with Babcock as to whether they could answer. She said they could, but they personally felt it was inappropriate. Another, who also discussed the matter with Babcock, said he was not threatened with discipline. One judge, who did not talk with Babcock, said that the canons merely reinforced his...