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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. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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