Anti-abortion group loses challenge to judicial campaign ethics rule

A right-to-life group has lost a second round in its challenge to an Indiana ethics rule that prohibits judges from identifying their views on abortion.

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A right-to-life group has lost a second round in its challenge to an Indiana ethics rule that prohibits judges from identifying their views on abortion. The U.S. Court of Appeals for the 7th Circuit affirmed on a technicality a lower court that upheld the state’s Code of Judicial Conduct, which bars judges and candidates in judicial elections from making statements that are “inconsistent with the impartial performance of judicial office.” The court dismissed the case, brought by Indiana Right to Life Inc., as unripe. The defendants were the Indiana Commission on Judicial Qualifications and the Indiana Disciplinary Commission. The appeals panel left undecided whether the Indiana rule runs afoul of a 2002 U.S. Supreme Court decision, Republican Party of Minnesota v. White. The justices held that elected judges and candidates for judicial office have a First Amendment right to state their legal views during their campaigns. Indiana Right to Life sends questionnaires to candidates for election or retention to judicial office asking whether they agree or disagree with Roe v. Wade, the 1973 Supreme Court ruling that struck down many laws restricting abortion. One of the members of Indiana Right to Life was Torrey Bauer, recruited by the group to run for judicial office. Bauer said that he answered the Indiana Right to Life questionnaire in 2008 but that he would keep silent in the future for fear of jeopardizing his judicial career. A sitting judge who was part of the group said that he had never answered the questionnaire and that the ethics rule silenced him. Chief Judge Frank Easterbrook, in a 17-page ruling, declined to consider claims related to some of the judicial rules that were modified while the case was pending. As to the constitutionality of the current rules, the court determined that “the best way to find out is to wait and see” — any forthcoming advisory opinions from the Indiana Commission on Judicial Qualifications would provide guidance, the panel found. “And when the Commission brings a proceeding the state judiciary will issue an opinion that makes the rules more concrete,” the decision stated. Representing Indiana Right to Life were James Bopp Jr. and Josiah Neeley with Bopp, Coleson & Bostrom in Terre Haure, Ind. Representing the defendants were Thomas Fisher and George Patton Jr. of Bose McKinney & Evans in Indianapolis. Also on the appeals panel were Judge Daniel Manion and Judge Terence Evans. Leigh Jones can be contacted at [email protected].

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