1982 case shows election issue

February 19, 2009
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As lawyers, you understand the legal nuances and issues in cases that appear before our appellate courts. The general public often does not. They don’t understand why convictions are overturned or cases are remanded for retrial.

Now imagine the power the general public could have in determining our Supreme Court’s makeup if House Joint Resolution 9 survives, whether in its current form or rolled into another bill. You don’t think there could be something that would rile up people enough that they would protest a judge’s election? Let’s flashback to 1984, thanks to an article from The New York Times.

When then-Chief Justice Richard M. Givan was up for retention in 1984, a group of activists in support of rights for handicapped people called for voters to not retain him. The reason: the high court refused to intervene in a Monroe County case (ruled on then by current Indiana Court of Appeals Chief Judge John Baker) in which the court ruled the parents of a deformed baby with Down’s Syndrome had the right to follow doctors’ advice and withhold medical treatment.

The man organizing the group “Remember Baby Doe – Retire Judge Givan Committee” admitted he hadn’t read any of the chief justice’s opinions and wasn’t familiar with his legal work. Instead of understanding that the Supreme Court wasn’t asked to rule on the merits of the case, only on the question of whether a lower court judge had jurisdiction on the matter, the activists were blinded by their beliefs and lack of comprehension of the legal issues before the high court.

The chief justice is quoted in the article as saying he was thinking of forming his own committee to counter the negative campaign against him.

This is a prime example of why we’re unnerved at the prospect of our Supreme Court being elected instead of chosen based on merit and then given the opportunity to be retained. We need justices on the court who understand the law and rule to the best of their abilities, not people who are elected because they have the biggest election coffers or most support from an activist group.

It’s true with our current retention system that if an activist group is angry enough with a justice, they may be able to garner enough support to oust one with whom they didn’t agree, but that has yet to happen. Honestly, most people couldn’t even name one of our justices, let alone be familiar with their legal rulings.

If you remember this controversy surrounding Justice Given and the Baby Doe case, or any other controversial cases that led to groups trying to fight the retention of Indiana’s Supreme Court justices, feel free to comment here or e-mail reporter Mike Hoskins at mhoskins@ibj.com. We’d like to explore this topic in a future issue of Indiana Lawyer.
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  • I have less problems with electing our Supreme Court than most. Yes, we have seen problems in other states where justices face the kind of the problems faced by Givan in a retention vote. However, no retention vote has come close to unseating a Supreme Court justice.

    We had elected appellate court justices and judges for over 100 years. We had a fairly regular turnover of personnel. How much of this was due to poor pay and how much was due to voting is something I was never able to discover.

    If you go back to the 1851 constitutional convention debates, the same arguments against electing appellate judges were made then. What was never made then or now is this: electing judges ought to change the dynamic of judicial review as they will no less a popular branch of government as the legislative.

    What we should complain about are two things: 1) the necessity of doing this now, and 2) that any election be non-partisan.

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  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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