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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. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  5. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

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