The Indiana Legislature is considering a bill that changes the way Lake Superior county judges are chosen.

House Bill 1266, introduced by Reps. Steven Stemler, D-Jeffersonville, Ed Clere, R-New Albany, and Terry Goodin, D-Austin, mandates merit selection for the four Superior county judges, with those positions being placed on the ballot for a retention vote every six years. Currently, the judges are chosen by the electorate – the only four Lake Superior judges not currently subject to merit selection.

Geyh

In an email to Indiana Lawyer, Julie Glade, president of the Lake County Bar Association said, “The LCBA is pleased and proud that our Legislature is taking a serious look at HB 1266. We are cautiously optimistic that the bill will become law, and if it does, we anticipate that the process of choosing our judiciary will be a much more uniform and much less costly endeavor. Expensive and time-consuming elections such as the Supreme Court justice race in Wisconsin will be avoided. This bill will also introduce cost savings to the community by allowing our courts to more effectively utilize support staff and conduct business more efficiently – something everybody values.”

But not everyone supports merit selection for county-level judges.

Professor Charles Geyh, associate dean for research and John F. Kimberling professor of law at Indiana University Maurer School of Law, explained some of the reasons why people may be opposed to merit selection.

“The public position in opposition is, ‘We don’t want to give up our right to vote,’” Geyh said. His response to that argument is that people don’t vote for parole officers, prison wardens, and others in the criminal justice system that have a direct effect on the lives of people under their oversight.

“Don’t you want to delegate (judicial selection) to the people who want to take the time and energy to really get it right?” he said.

The retention vote, he added, allows the public to vote against judges whom they don’t feel are doing a good job, so merit selection doesn’t take away the public’s power.

Rep. Charlie Brown, D-Gary, says he is in favor of HB1266, but he questions whether the current approach to retention voting makes sense.

“It’s very unfair that every six years … people walk into the voting booth and cannot make the decision because they don’t even recognize the names (of the judges on the ballot) or know that person,” he said. “So something needs to be done in terms of informing the electorate, to make them aware in advance that this is going to be on the ballot, and here’s some information to prepare.”

Geyh said that in rare cases, judges up for a retention vote may find themselves the target of political attacks.

He cited as an example Tennessee Supreme Court Justice Penny White, who in 1998 was the subject of an attack in which the opposition sent faxes throughout the state, urging the public to vote “no” on her retention. She lost her retention vote, and Geyh said that opponents of merit selection might argue that she would have been better able to defend herself against a negative campaign if she had been running in an election. But he said he thinks such attacks would be “pretty unlikely in most trial court settings.”

Jeffry Lind, president of the Indiana State Bar Association, said the bar supports merit selection in communities that are in favor of it, and that it seems merit selection does have public support in Lake County. He thinks opposition may be related to the fact that in Indiana, “Nobody likes to be told what to do.” And Geyh said that the word “merit” might cause some people concern, as it could be interpreted to mean judges who are merit-selected are somehow more qualified than those chosen by voters.

Geyh said that even when judges are chosen by the electorate, “More often than not, they run unopposed.” It’s one of the many reasons why he favors merit selection.

“I think it’s a good idea, and I think it really ought to be the statewide norm, rather than some patchwork system of judicial selection,” Geyh said.•