People v. State

fairly undermining public confidence in the administration of justice
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A disciplinary complaint I’d love to see

September 19, 2009 By: John Kindley Category: Uncategorized

I don’t vote, because I’m persuaded that politics is an extension of war by other means, and that war is a racket. Therefore I really could have cared less when I noted in various headlines over the last couple days that the Indiana Court of Appeals has struck down some Indiana law having to do with “voter ID.” But what really drew my attention to the case was this statement issued yesterday by the Indiana State Bar Association:

On Thursday, Sept. 17, the Indiana Court of Appeals issued a ruling in Indiana League of Women Voters v. Rokita, the “voter ID” case, and Gov. Mitch Daniels commented on the decision and the judges who heard the case. While the Indiana State Bar Association (ISBA) recognizes that Gov. Daniels has championed the cause of judicial independence, the State Bar is nevertheless compelled to emphasize that comments such as those attributed to the governor are not helpful in advancing appropriate respect for the courts and the judicial process, and honoring the separation of powers doctrine.

The ISBA respects the governor’s, and every citizen’s, right to disagree with the decision. There are rules, however, that govern judicial conduct and appropriate procedures for dealing with complaints about the judiciary. Comments about individual judges are not the way to express disagreement with any court opinion.

Marcia Oddi at The Indiana Law Blog describes what Mitch Daniels said and offers her thoughts:

Here, from WISH TV, is an expanded quote from Governor Daniels:

Indiana Governor Mitch Daniels called the ruling “transparently partisan”, and promised an appeal. He said, “It’s a preposterous decision, an extreme decision and came in this case from a judge who’s been reversed before and I expect it to happen again.”The governor went on to call the ruling an act of judicial arrogance.

My thoughts: Now really! I find the Governor’s heated statements about the opinion very disappointing, and his personal remarks disparaging the judge way over the top.

[Updated] A reader writes, highlighting the use of the phrase “transparently partisan”:

In In re Wilkins, 782 N.E.2d 985, 985 (Ind. 2003), the Court held that while lawyers can criticize decisions of judges, they cannot recklessly make false claims about a judge’s integrity.Canon 3 B.(2) of the Code of Judicial Conduct clearly states that a judge “shall not be swayed by partisan interests…”.

It appears that Gov. Daniels [a member of the Indiana bar] has accused, falsely or with reckless disregard for the truth, Judge Riley with violating Canon 3 by making a decision based on her partisan interests rather than on the law or the constitution. This statement would seem, under the Wilkins case, to be a violation of Rule 8.2 of the Code of Professional Responsibility.

It would make my day if the Indiana Supreme Court’s Disciplinary Commission pursues a disciplinary complaint against the sitting governor. Think of the can of worms that would open! And if they don’t dare bring such a complaint against the sitting governor for fear of opening that can of worms, how could they with a straight face bring such a complaint against any Joe Average Lawyer who might in the future make a similar statement about a judicial decision? We all have as much of a First Amendment right to speak on public issues as the Governor. The public officials in the legislature who make our laws impugn each other’s integrity every day and nobody raises an eyebrow. That’s business as usual, and everybody assumes that more than half of those insinuations or outright accusations are true. What makes the public officials in the judiciary who interpret our laws (but who also, most everyone agrees, help make them too) so special that they should be immune to the same kind of criticism?

Walter Olson at Overlawyered in this old blog post about the case of the “evil, unfair witch” (recent developments in which I blogged about here) offered what might be the most cogent rationale for limiting what a lawyer can say about a judge:

Lawyers admitted to practice . . . enlist as “officers of the court” with special obligations, among which may be (to name only one) to avoid the sorts of displays of enmity that might complicate future cases before that judge, as by provoking recusal.

But judges are expected to be above being influenced by their personal feelings toward a lawyer appearing before them, aren’t they? Moreover, attorneys can generally file a motion for change of judge at the beginning of a civil case as a matter of right. In any event, the narrow rationale offered by Olson is not the broader rationale actually applied by the Rule of Professional Conduct prohibiting statements made “with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge,” which in Indiana is to prevent “unfairly undermin[ing] public confidence in the administration of justice.”

Don’t get me wrong. I think an attorney should think carefully before publicly criticizing a specific judge before whom he practices, for the reason given by Walter Olson. I’m all for as much civility in the legal profession, which includes judges, as we can stomach. But I don’t think such statements, unless they amount to a flat-out lie which the attorney knows to be a lie, should subject an attorney to discipline. The First Amendment is just way too important.  After all, maybe the public’s “confidence” in the administration of justice  is misplaced and needs to be undermined.

I don’t care enough about the Indiana “voter ID” case to even read the Court of Appeals’ decision or have an opinion about whether it is “transparently partisan.” But I do know there’s no way that Governor Daniels’ statements about the decision and the judges who made it should subject him to a complaint from the Indiana Supreme Court’s Disciplinary Commission. Maybe, though, it does subject him to such a complaint. In which case, I’d love to see it. If the Disciplinary Commission would bring a complaint against Joe Average Lawyer for making similar statements, they should bring one against the Governor.

4 Trackbacks/Pingbacks

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