IN Right Life Inc v. Shepard, Randall

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4333
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.
____________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division at Lafayette.
No. 04 C 71—Allen Sharp, Judge.
____________
ARGUED SEPTEMBER 14, 2007—DECIDED OCTOBER 26, 2007
____________
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
2 No. 06-4333
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 faith-
ful 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 Re-
publican Party of Minnesota v. White, 536 U.S. 765 (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 Amend-
ment. 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, ___
F.3d ___, 2007 WL 2743603 (9th Cir. 2007).
No. 06-4333 3
The hurdle the organizations face, however, is in show-
ing 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 su-
preme 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, ad-
vises 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
4 No. 06-4333
“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 permit-
ted 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 per-
spectives.”
It is in this context that Indiana Right to Life sent
questionnaires to judicial candidates in 2002. The ques-
tionnaires 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 develop-
ment.” 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 ques-
tionnaire. 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
1
Mr. Bopp, lead counsel in this case, has been involved in other
cases. He argued White before the Supreme Court and was
(continued...)
No. 06-4333 5
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 ques-
tionnaire. 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 question-
naire].” Newton later stated that “irrespective of the
Judicial Canons,” he “would not have answered the Sur-
vey.” 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 candi-
dates 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 state-
ments and four possible responses: Agree, disagree,
undecided, or decline. “Decline” was explained to mean
that the candidate believed that he must decline to
1
(...continued)
also counsel in Pennsylvania Family Institute and Alaska Right
to Life.
6 No. 06-4333
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 personal opinion
regarding the perception of potential litigants were he
to answer.
No enforcement actions were initiated based on the
2004 questionnaire. In fact, there is no evidence that an
No. 06-4333 7
enforcement action has ever been initiated based on a
candidate’s answering a questionnaire.
Nevertheless, Right to Life contends that the canons
inhibit judicial candidates from stating their views on the
issues and therefore violate Right to Life’s first amend-
ment right to receive and publish protected speech. On
that basis, the organization claims to have standing.
Viewed somewhat skeptically, the situation is a chess
game. Candidates may not want to answer the questions
and would perhaps be happy to have the Code as a
reason to decline. When that is true, Right to Life, while
ostensibly asserting the right of candidates to speak, may,
in fact, be acting against what the candidates see as
their best interests. And probably much to Right to Life’s
dismay, the Commission, by taking no action against
candidates, is simply not playing. The voters? One can
hope that they can discern when a candidate is ducking
a legitimate question and when she is legitimately refus-
ing to become a pawn. Perhaps because of the strange
alignment of interests, the plaintiffs have a problem
showing that there is a case or controversy.
Article III, § 2 of the Constitution “limits the ‘judicial
power’ to the resolution of ‘cases’ and ‘controversies.’ ”
McConnell v. FEC, 540 U.S. 93, 225 (2003). A case or
controversy requires a claim that is ripe and a plaintiff
who has standing. The two concepts require related but
distinct inquiries: “Whereas ripeness is concerned with
when an action may be brought, standing focuses on who
may bring a ripe action.” Pic-A-State Pa., Inc. v. Reno, 76
F.3d 1294, 1298 n.1 (3rd Cir. 1996). To have standing, a
plaintiff must have a cognizable injury that is causally
connected to the alleged conduct and is capable of being
redressed. Lujan v. Defenders of Wildlife, 504 U.S. 555(1992).
8 No. 06-4333
Obviously, Right to Life recognizes that it, itself, is not
subject to the Judicial Code, and as we said, its claim
is based on a “right to listen.” Although the First Amend-
ment does not refer to a right to listen, in Virginia State
Board of Pharmacy v. Virginia Citizens Consumer Council,
Inc., 425 U.S. 748, 756 (1976), the Court determined that
“the protection afforded is to the communication, to its
source and to its recipients both.” When one person has a
right to speak, others hold a “reciprocal right to receive”
the speech. Id. at 757. A precondition of the right to
receive, however, is the existence of a “willing speaker.” Id.At 756. It follows, then, that in order to assert its
claim, Right to Life must establish the existence of a
candidate who wants to answer the questionnaire. If
there is no willing speaker, or if no speaker has been
subjected to sanctions based on the Code, Right to Life
does not have standing.
Despite recognizing that its claim is for a right to
listen, Right to Life nevertheless contends that Buckley
v. Illinois Judicial Inquiry Board, 997 F.2d 224 (7th Cir.
1993), requires that we find standing in this case. There
is a significant and obvious difference, however, between
the case before us and Buckley—or White, for that matter.
Neither White nor Buckley is a right-to-listen case. More
importantly, in both, the plaintiffs were themselves
judicial candidates whose right to speak was constrained.
In White, Gregory Wersal was a candidate for associate
justice of the Minnesota Supreme Court. In Buckley, the
plaintiff, Robert C. Buckley, was a justice on the Ap-
pellate Court of Illinois. He was running, ultimately
unsuccessfully, for a seat on the Illinois Supreme Court.
He circulated campaign literature saying he had never
written an opinion reversing a rape conviction. The
Judicial Inquiry Board filed charges against him. He
filed suit and ran for the supreme court again, and again
he was unsuccessful, but he retained his seat on the
No. 06-4333 9
appellate court. At this point, the Illinois Judges Associa-
tion intervened in Buckley’s lawsuit, which was then
consolidated with a similar case. Right to Life is right
that we had no trouble finding standing in that case. But,
as should be obvious, what that case had and the present
case lacks are plaintiffs who wanted to speak but felt
constrained not to because of the Judicial Code or who
were being disciplined for speaking out in violation of
the Code.
In a right-to-listen case, Right to Life would have
standing if there are otherwise willing speakers who are
constrained by the Judicial Code. Right to Life says
there are. We cannot agree. No judicial candidate in
Indiana has been disciplined for a violation of the canon
at issue. The two candidates who answered the ques-
tionnaire in 2004 have stated that they have no fear of
disciplinary action for doing so. In addition, of the remain-
ing six who responded to Right to Life but did not
answer the questions, clearly none stated that they
declined to answer based on the canon. Some mentioned
the canon but went on to say that they were relying on
their own personal feeling as to what was appropriate
for a judicial candidate to say. Right to Life attempted to
put words in the candidates’ mouths by setting out a
footnote to the response “decline” on the questionnaire.
The footnote seems to be an attempt to indicate that the
only reason for declining would be the Code. The individ-
ual responses show that is not true and negate any
force that the footnote could conceivably have. In addition,
the organization’s targeted, chosen speaker, Newton,
turned out to be unwilling to speak regardless of the
Code. Right to Life has failed to establish standing to
bring this action.
Our decision is in line with the previously mentioned
decisions of the Courts of Appeals for the Third Circuit
and the Ninth Circuit. In Pennsylvania Family Institute,
10 No. 06-4333
plaintiffs had argued that if a candidate responded
“Decline to Answer” with its accompanying footnote
referencing the judicial code, he was communicating a
belief that they were prohibited from speaking by the
Code. The court said that perhaps some of the candidates,
in fact, did believe they were prohibited by the Code, but,
nevertheless, in order to have standing, the plaintiffs
must “at least demonstrate that but for a regulation, a
speaker subject to it would be willing to speak.” In Alaska
Right to Life, the court looked at ripeness. As here, there
was no evidence of a real threat of enforcement; accord-
ingly, the case was not ripe. The court said that the
district court should have declined jurisdiction for lack of
a justiciable case or controversy. Like those cases, the
case before us does not present a case or controversy. Right
to Life has no standing to bring the case, and it should
have been dismissed.
The decision of the district court that Canon 5A(3)(d)(i)
and (ii) is unconstitutional is REVERSED. We REMAND the
case to the district court with instructions to dismiss it.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-26-07