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Indiana attorney is still battling merit-selection in courts

November 4, 2010

A Terre Haute attorney has been dealt another blow in his national effort to challenge judicial merit-selection systems in favor of popular elections.

On Wednesday, a federal judge in Kansas tossed a suit filed in August by Indiana attorney Jim Bopp on behalf of four residents challenging that state’s system of choosing judges through an attorney-citizen nominating commission – a system similar to what the Hoosier judiciary uses to select its appellate judges. The plaintiffs claimed the system is unconstitutional because it gives lawyers too much power and violates the voting rights of other residents.

The suit challenges the nine-person nominating commission that fills vacancies on the Kansas Supreme Court and state appellate courts, and in which lawyers elect five of those nine positions.

In a 13-page order in Robert Dool, et al. v. Anne Burke, et al., No. 10-1286, U.S. Judge Monti Belot ruled that the court recognizes this a “hot topic” brought by Bopp and some of the same parties looking to replace merit selection with popular elections or appointments by elected officials.

“It is not this court’s job to weigh in on the debate except to point out that Kansas voters approved the present system and the absence of evidence that Kansas’ system has not worked and will not continue to work to ensure that qualified individuals are appointed to the Kansas Supreme Court and the Kansas Court of Appeals,” he wrote.

He noted in a footnote that Kansas voters retained all four justices of the Kansas Supreme Court up for retention by margins of 60 percent or better on Nov. 2.

The judge in September had rejected a request by the plaintiffs for a preliminary injunction, refusing to block Kansas from filling a vacancy on its highest court.

Bopp has also challenged the merit-selection system in Alaska with a similar suit challenging that system in place for the appellate and trial courts. In Alaska, a seven-member Judicial Selection Council makes recommendations to the governor, who makes the final decision on a judge or justice. Of those seven members, the chief justice is the chair while three are non-lawyers appointed by the governor and confirmed by lawmakers, and three are lawyers appointed by the Alaska Bar Association's governing board.

A federal judge in the District of Alaska last year tossed out that suit, and now Bopp is asking for an appellate rehearing after the 9th Circuit Court of Appeals on Sept. 30 affirmed the dismissal. That suit is Kenneth Kirk, et al. v. Chief Justice Walter Carpeneti, et al., No. 09-35860. The appellate court hasn’t ruled on that rehearing request filed Oct. 14.

Similar federal court challenges haven’t been raised about the Hoosier system, though some lawmakers have in recent years targeted the selection systems and tried unsuccessfully to change how the appellate or trial courts operate in choosing judges. Most of the Indiana trial judges face some type of election, though Lake and St. Joseph Superior courts are the only ones who use a nominating commission and retention system. Efforts to overturn those methods have gained steam recently, with lawmakers last year voting to change the St. Joseph system but Gov. Mitch Daniels vetoing that move and upholding merit selection.
 

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