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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. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

  2. Should be beat this rap, I would not recommend lion hunting in Zimbabwe to celebrate.

  3. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

  4. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  5. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

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