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Unique Indy merit-selection system replaces voided elections, faces likely challenges

May 3, 2017

Judges in Indianapolis won’t have to worry about running for election in the future, but they will face up-or-down retention votes under a bill signed by Gov. Eric Holcomb April 27. The system to replace the current one ruled unconstitutional was adopted by lawmakers despite warnings that the new system also is spoiling for a fight in court.

Marion County will join Allen, Lake and St. Joseph as the only Indiana counties where appointed judicial-selection panels interview applicants to fill vacancies on the bench, then recommend the three most qualified for the governor’s selection. While establishing merit selection for judges in Indianapolis, the Legislature created several unique features for picking jurists. Among them:

Partisan balance. No more than half of the 36 judges of the Marion Superior Court may be of the same political party.

Politics matters. Eight of 14 members of the Marion Superior Judicial Selection Committee will be chosen by General Assembly leaders in both major parties or by Marion County Democratic and Republican Party chairs.

Retention recommendations. The committee will recommend whether judges should or should not be retained in office, after the committee gives them a hearing behind closed doors.

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Several Republican lawmakers joined Democrats who opposed the bill, including the entire Indiana Black Legislative Caucus, which had warned that depriving voters of the ability to elect judges in Marion County would set the stage for an equal protection or Voting Rights Act challenge.

“I’m very disappointed in terms of how it worked out,” said Sen. Lonnie Randolph, D-East Chicago, an attorney, former city court judge and ranking minority member of the Senate Judiciary Committee. He called the bill’s passage an abuse of authority and posed the question opponents have warned could form the basis of a future court challenge: “Why is it that merit selection exists only where you’ve got a high percentage of minorities?”

“I think a legal challenge is likely,” said Indiana University Robert H. McKinney School of Law professor and judicial selection expert Joel Schumm.

Long time coming

Indiana University Maurer School of Law professor and judicial selection expert Charles Geyh, like Schumm, believes merit selection is a more reliable way than elections to get qualified judges on the bench. He said there’s also evidence that merit selection is at least as good as elections for promoting diversity.

Geyh Geyh

“Merit selection systems can be highly effective if they’re charged with promoting the diversity of the bench,” Geyh said.

The Indianapolis Bar Association in a statement applauded lawmakers for the passage of House Bill 1036. “We have long supported a fair and well-reasoned merit selection process as the best way to ensure the continued high quality and diversity of the Superior Court bench. We also believe that this legislative compromise will help maintain a strong, non-partisan judiciary that will benefit our community for years to come,” the statement said.

Lawmakers had to pass a replacement for the former “slating” system invalidated by the 7th Circuit Court of Appeals, and did so on the final day of the session.

Geyh said the system proposed for Marion County is far from perfect but is more transparent than earlier versions that would have vested greater power in the committee. Along with the eight political appointee members, the committee also will include: one lawyer member each appointed by the IndyBar, the Marion County Bar Association, Defense Trial Counsel of Indiana, and the Indiana Trial Lawyers Association; a Court of Appeals judge; and a Supreme Court justice who will chair the panel.

Keys to judges’ fate?

The committee will have greater power than other merit-selection committees in the state — it will publicly announce after a closed-door hearing with each judge whether it believes a judge should or shouldn’t be retained. Geyh said that’s troubling.

“This basically is an extension of the government telling people how to vote,” he said. The law even spells out what the committee will say when it recommends a judge should or shouldn’t be retained. “It’s a black box, which is problematic,” he said. “The judge can’t defend herself against it. There’s no information about what the conclusion is.”

Joel Schumm mug Schumm

Schumm noted, though, that the committee’s presumption is judges are qualified and should be retained. “A recommendation against retention requires nine of 14 votes, which ensures it would only occur with bipartisan support and a fairly broad consensus,” he said

Schumm and Geyh said other states such as Arizona and Colorado do offer reviews of judicial performance, but do so systematically. They use judicial performance evaluations that, depending on the state, may include input from the bar, court staff, or surveys of court participants — a more thorough review than the committee would likely undertake.

But Schumm said the committee review should provide helpful and objective information to voters. For example, he said, “If a judge is involved in a case that generates negative publicity, the commission’s review will put that case in broader perspective with everything else the judge has done.”

What lies ahead?

Regardless of whether the law is challenged in court, Marion County Bar Association President Detra Lynn Mills said the organization is committed to diversity on the bench.

“The Marion County Bar Association voiced its opposition to House Bill 1036, stemming from MCBA’s belief that Marion County residents should be afforded the same right to choose their judges as residents in neighboring counties,” Mills said in a statement on behalf of the MCBA’s board. “Now that the bill has become law, the MCBA will engage in efforts to educate the broader community on the mechanics of the judicial-selection process and work to ensure that the Marion County bench adequately reflects the diversity of the community it serves.”

Randolph said merit selection in practice in Indiana hasn’t resulted in a more diverse bench, and he’s no longer a supporter as he once had been. “There’s politics in a merit system as well,” he said, noting judges could be beholden to the legislative and executive branches because of the composition of the Marion County Judicial Selection Committee.

He said several Republican senators joined Democrats in opposing the bill because, among other things, they saw the potential of another court challenge. Randolph wonders what the implications would be if another challenge to the judicial selection process in Indianapolis is successful.

“Credibility plays a large role,” Randolph said. If federal courts were to overturn the replacement for an unconstitutional system, he said, “the average person on the street’s going to say, ‘What’s going on with the judicial system in Marion County?’”•

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