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. @ President Snow, like they really read these comments or have the GUTS to show what is the right thing to do. They are just worrying about planning the next retirement party, the others JUST DO NOT CARE about what is right. Its the Good Ol'Boys - they do not care about the rights of the mother or child, they just care about their next vote, which, from what I gather, the mother left the state of Indiana because of the domestic violence that was going on through out the marriage, the father had three restraining orders on him from three different women, but yet, the COA judges sent a strong message, go ahead men put your women in place, do what you have to do, you have our backs... I just wish the REAL truth could be told about this situation... Please pray for this child and mother that God will some how make things right and send a miracle from above.

  2. I hear you.... Us Christians are the minority. The LGBTs groups have more rights than the Christians..... How come when we express our faith openly in public we are prosecuted? This justice system do not want to seem "bias" but yet forgets who have voted them into office.

  3. Perhaps the lady chief justice, or lady appellate court chief judge, or one of the many female federal court judges in Ind could lead this discussion of gender disparity? THINK WITH ME .... any real examples of race or gender bias reported on this ezine? But think about ADA cases ... hmmmm ... could it be that the ISC actually needs to tighten its ADA function instead? Let's ask me or Attorney Straw. And how about religion? Remember it, it used to be right up there with race, and actually more protected than gender. Used to be. Patrick J Buchanan observes: " After World War II, our judicial dictatorship began a purge of public manifestations of the “Christian nation” Harry Truman said we were. In 2009, Barack Obama retorted, “We do not consider ourselves to be a Christian nation.” Secularism had been enthroned as our established religion, with only the most feeble of protests." http://www.wnd.com/2017/02/is-secession-a-solution-to-cultural-war/#q3yVdhxDVMMxiCmy.99 I could link to any of my supreme court filings here, but have done that more than enough. My case is an exclamation mark on what PJB writes. BUT not in ISC, where the progressives obsess on race and gender .... despite a lack of predicate acts in the past decade. Interested in reading more on this subject? Search for "Florida" on this ezine.

  4. Great questions to six jurists. The legislature should open a probe to investigate possible government corruption. Cj rush has shown courage as has justice Steven David. Who stands with them?

  5. The is an unsigned editorial masquerading as a news story. Almost everyone quoted was biased in favor of letting all illegal immigrants remain in the U.S. (Ignoring that Obama deported 3.5 million in 8 years). For some reason Obama enforcing part of the immigration laws was O.K. but Trump enforcing additional parts is terrible. I have listed to press conferences and explanations of the Homeland Security memos and I gather from them that less than 1 million will be targeted for deportation, the "dreamers" will be left alone and illegals arriving in the last two years -- especially those arriving very recently -- will be subject to deportation but after the criminals. This will not substantially affect the GDP negatively, especially as it will take place over a number of years. I personally think this is a rational approach to the illegal immigration problem. It may cause Congress to finally pass new immigration laws rationalizing the whole immigration situation.

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