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.
  • 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. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.