Marion County must change how it selects its 36 Superior Court judges because the 7th Circuit Court of Appeals struck down Indianapolis’ stacked-deck judicial elections. But judging by reaction to General Assembly plans backed by key lawmakers and stakeholders, the jury’s out on whether the proposal puts politics ahead of performance.
House and Senate bills that propose creating a Marion County judicial selection system are “a nakedly partisan system,” said Indiana University Maurer School of Law professor Charles Geyh, a nationally renowned expert on judicial selection. “This isn’t like any merit-selection system I’ve ever seen.”
Geyh said calling the proposal merit selection is a misnomer because the committee as proposed would be dominated by political appointees. The legislation also would require that no more than half the Marion County bench be of the same political party.
“It gives you the worst of both worlds,” he said, providing voters no direct election of judges, yet “institutionalizing partisanship” so that merit and qualifications are secondary considerations to the party affiliation of candidates.
Nevertheless, Senate Bill 79 and House Bill 1036 have the endorsement of key lawmakers and stakeholders including Marion County judges, the Indianapolis Bar Association and local and state chambers of commerce. “It is a consensus plan,” said Marion Superior Judge Heather Welch, a Democratic judge who said judges in both parties favored the plan. She said under the plan voters would have a say when judges are on the ballot for retention in future years.
“Getting all those people to sign off on this legislation was a tight-wire act,” said Sen. Jim Merritt, R-Indianapolis, whose SB 79 mirrors HB 1036, authored by House Judiciary Committee chairman Rep. Greg Steuerwald, R-Danville. House Speaker Brian Bosma, R-Indianapolis, is among co-authors of Steuerwald’s bill, raising the likelihood of passage where Republicans hold a supermajority.
“I think the membership of the commission is very well-balanced … exemplary,” Steuerwald said. He said balance between various stakeholders was a crucial consideration so that no particular parties or interests could control the committee.
“It was just one of those situations where we really had to have everyone at the table and just encourage balance,” Merritt said. “I was really heartened that everybody endorsed it.”
IndyBar President Nissa Ricafort said the organization has called for merit selection for years and supports the legislation. “I don’t know that there is a perfect solution or structure for merit selection,” she said. “At the end of the day, we believe a lot of effort has been placed on trying to create a committee that includes members from several different constituencies.”
As proposed, eight of the 14 members of the Marion County judicial selection committee would be political appointees. Presidents of four bar organizations would appoint attorney members, and the committee also would include a Court of Appeals judge and be chaired by an Indiana Supreme Court justice. The panel would vet candidates for judicial vacancies and recommend three from which the governor would choose.
Sen. Greg Taylor, D-Indianapolis, has been an outspoken critic of past Marion County judicial reform efforts and saw little to like in the current plan. He favors direct election of judges and questioned why lawmakers continue to insist on party balance on the bench for predominantly Democratic Marion County. “We don’t have this dialogue going on in (predominantly Republican) Hamilton, Boone, or the donut counties,” he said. “For some reason, because the Democrats are winning in Marion County, you’ve got to have some kind of Republican equalization, if you will, of representation on the bench.
“The 7th Circuit made it clear you can’t dilute the votes of the citizens, and that’s exactly what that does,” he said of the partisan-balance language in the legislation. Taylor said he’d rather see legislation include provisions that the bench reflect the racial makeup of the community it serves. “To me, that’s what we should be looking at. Unfortunately, we have people who don’t believe that.”
The constitution of the proposed committee differs from merit-selection commissions in Allen, Lake and St. Joseph counties. There, panels are equally divided between lawyer and lay members and chaired by a Supreme Court justice. Ricafort said the proposed Marion County system would meet the bar’s focus of ensuring attorneys who know and practice before the judges will have a voice in judicial selection.
Welch disagreed that the proposed system would place partisan considerations first. She said because Indianapolis is home to the state’s largest court system and statutory venue for judicial review of many state actions, the committee needed to include more stakeholders than those of other Indiana counties.
“There is no plan that does not have some degree of politics involved in it,” she said. “The objective of this proposal is we want to have a diverse, talented and qualified judiciary.”
Steuerwald said political parties would have less influence under the proposed plan than under the former partisan-balance judicial election statute struck down in 2015 by the 7th Circuit Court of Appeals. The proposed system is “not controlled by the political parties anywhere near like it was before,” he said.
Marion Superior judges had been elected under a statute that equally divided judgeships between Democrats and Republicans. The invalidated election law facilitated a system whereby both parties “slated” ballot positions with judicial candidates who made five-figure financial contributions to their respective parties. Each party filled their ballots after primary elections with the exact number of judges to be elected. The 7th Circuit invalidated the system, ruling it didn’t provide voters a meaningful general election vote.
“This is recasting the slate system without the slate,” Geyh said. He also discounted arguments that because Indianapolis was the capital city with exclusive jurisdiction in many state matters that a unique system is warranted. He said other capital cities in states around the nation have found workable solutions with traditional merit-selection systems where lawyers and lay members work together to nominate the most qualified jurists without regard to politics.
“It befuddles me why they can’t think seriously about a legitimate merit-selection system,” he said, “and try to avoid these eccentric hybrids that are just going to create mischief.”
Meanwhile, Sen. Mike Young, R-Indianapolis, said at IL deadline he intends to introduce a different judicial-selection bill this week. He said committee membership in his proposal would resemble that of the other legislation, but with key differences. His bill would stipulate no more than half the members could be attorneys, and the bill would provide avenues for public input on judicial nominees. He said his bill also would include a provision for partisan balance on the bench.
Public input is crucial if voters are giving up election of judges, Young said. “Anything else I think is a slap in the face to the citizens of Marion County,” he said.•