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, 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.•


  • 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. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  2. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  3. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  4. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  5. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.