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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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