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Barnes used as excuse to challenge merit selection

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Indiana Lawyer Editorial

We surmised it would only be a matter of time before the clamor began, but we were a little taken aback at how few days passed after the Indiana Supreme Court decision in Barnes v. State was issued before a legislator told us he would put together a proposal to change the merit selection process that’s been in place for our appellate courts for nearly 40 years.

Most of the comments reacting to the Indiana Supreme Court’s decision in Barnes have been loud and opposed to the decision, which holds that Hoosiers no longer have the right to reasonably bar illegal entry to their homes by law enforcement officers. A rehearing petition in the case was filed earlier this month.

Regardless of how one views the ruling, to jump to the conclusion that we would somehow be better off with a judiciary subject to the whims of the loudest and best-funded portion of the electorate in a given election cycle strikes us as a profoundly flawed line of reasoning. Subjecting nominees for the appellate bench to an “advise and consent” process in the Legislature would be another form of that tortuous undertaking.

Yet that’s exactly what’s up for discussion.

State Sen. Mike Young, R-Indianapolis, told the newspaper earlier this month that he plans to revive a proposal he introduced six years ago that would require Senate confirmation of any state appellate judge or justice initially appointed or up for retention. His bill passed the Senate in 2005 but didn’t get support in the House, and the legislator said he’s been waiting for the best time to reintroduce the idea. He says he will do that during next session. Young said the Barnes ruling justifies why judges must be held more accountable than they are now.

“To have a judge in Indiana basically be serving for life without anyone reviewing any decisions they’ve made, that’s just not right and it goes against public policy. At least this way, a judiciary committee would be able to review the actions and that would be a more practical way to do things than the meaningless retention process we have now,” Young said.

The retention process is hardly meaningless, because, in fact, if voters were so inclined, enough of them could vote “no” during the retention vote to turn the judge or justice from the bench.

We have been troubled by the willingness of some demonstrators to call Barnes’ author, Justice Steven David, an “enemy of the Constitution,” as one sign-carrying remonstrator alleged at a protest of the ruling in late May. It is ludicrous to suggest that Justice David, who served 23 years in the Army Reserves and who was mobilized twice since Sept. 11, is an enemy of the document that serves as the bedrock of our form of government.

Here’s a comment from a reader via the newspaper’s website, theindianalawyer.com. This particular reader takes issue with the Indiana State Bar Association’s statement in support of judicial independence, which was made shortly after the Barnes decision began making headlines.

“The ISBA needs to stop advocating against the people. Judges selected by the state and its politicians need to be accountable to the people. Electing judges in our counties works very well. They are accountable. Without accountability to the people violence will be the peoples only option. Read the Declaration of Independence.”

We’re going to go on record again in pointing out that electing judges in our counties works well if you happen to agree with the particular judge running for election, or you have contributed enough funds to a judicial candidate to believe that once on the bench, the judge will see things your way.

Some point to our neighbors in Wisconsin and shudder, wondering whether the alleged non-partisan judicial smackdown currently going on in their Supreme Court could happen here.

It could and indeed it did, though perhaps not to the extreme degree it is currently ongoing to the north.

Justice Walter Myers Jr. was elected to the Indiana Supreme Court in 1962, taking the bench in January of the following year. He replaced Justice Arch N. Bobbitt, who was ousted over his decision in a case regarding constitutional limitation on cities’ power to let bonds for construction projects. Indiana continued to elect appellate judges for another 8 years.

“What’s clear to me is that having an isolated incident form the basis for moving away from a selection system is stupid,” Indiana University Maurer School of Law professor Charlie Geyh, a national expert on judicial selection, told an Indiana Lawyer reporter recently. “This seems like an excuse de jour for changing the system, and calling for that or even a recall is a very risky proposition to even consider because it usurps the power of what the courts are supposed to do.”

And what the courts are supposed to do is have the freedom and independence to uphold the law, not whatever will ensure a jurist’s electability in the next election cycle.

We keep going back to this comment from LewisWagner partner John Trimble. He served for three years on the Judicial Nominating Commission.

“I believe that all lawyers strongly support the right of all citizens to criticize the government, but the public has lost complete touch with the role of the judiciary in our society. It is not the role of judges to do what is popular at the moment.”

Should we allow legislators to “fix” the current method we have of selecting our appellate court, doing what’s popular at the moment will be of the utmost importance to jurists looking to keep their jobs.•

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  • Synopsis of Article
    We can not trust the electorate. The electorate might do things we can not control.
    I will take my county system of electing judges any day. Men who could care less about Indianapolis and its politics and who they rub shoulder with.

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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