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Indiana Judges Association: Is it time for an electoral college for judges?

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IJA-Dreyer-David“I was married by a judge. I should have asked for a jury.”

Groucho Marx



Some people just do not like judges. But according to Indiana University Maurer School of Law professor Charles Geyh, most people do – at least up to a point. In Marion County, 18 judges were just “elected.” Or were they? Did the voters pick them, retain them or what? We don’t know because the voters don’t know. Geyh has chiseled an indelible body of work about judicial selection. Aside from Marion County’s “rather odd hybridized system,” his thinking has evolved over many years of research and observation. As he and others describe, overall the dilemma lies in the seemingly unattainable balance between “accountability,” i.e., elections by the people, and “independence,” that is, insulation from the people – or at least political and public influence.

Even the Framers argued about whether judges should be elected, appointed or whatever. Alexander Hamilton argued in “The Federalist Papers” that lifetime appointed judges were necessary “to guard the Constitution and the rights of individuals from the effects of . . . ill humors.” Indeed, as an elected judge, I have often suffered from “ill humor,” but is that any reason to preclude the public’s chance to select, or at least approve, the judges who decide their cases? Thomas Jefferson, like Groucho Marx, held a pessimistic view of judges’ power, believing that “Our judges are effectually independent of the nation. But this ought not to be … they should be submitted to some practical and impartial control.” Jefferson always advocated an elected federal bench or at least one more closely controlled by the executive branch (see Marbury v. Madison).

According to Geyh, about 80 percent of all state court judges face some sort of ballot – whether direct partisan or nonpartisan election, retention after appointment, or some mixture. For example, all Illinois state court judges are elected by direct partisan election and then thereafter stand for nonpartisan retention. But as Geyh recounts, the voters in Chicago get a judicial retention ballot listing over 100 names! Is that any better than Marion County’s intraparty “pick your top 9” system? As indicated at the outset above, Geyh finds that most people are just fine not knowing who the judges are.

“The best defense of judicial elections,” says Geyh, “is that 99 times out of 100, people are happy to just let a judge stay in office because it is assumed the judge is OK.” But on the other hand, “the public still wants that one time out of 100 to ‘throw the bum out’ if they feel like it.”

There are countless examples of good, elected judges who were thrown out after making correct, but unpopular, rulings as well as bad judges who were politically appointed within a so-called “merit” system.

“No system is safe,” says Geyh, who, after years of studying judicial selection, concludes that it is “a poor idea to take a ‘one-size-fits-all’ approach.” Despite the well-known pitfalls of electing judges, Geyh reasons that such elections may outweigh concerns about independence and serve a useful purpose “where there is a deep-seated lack of confidence in courts.” Voters in such communities may need this accountability for public order. But Geyh says Indiana “has done pretty well maintaining public confidence,” and risks losing that proper balance between accountability and independence since selection systems among our counties are so varied.

When I was teaching a class, I asked the students how they voted for judges. Some said they voted just for women or looked for nice names (I wondered how I got elected) or just did not pick any. One student had a novel idea: why not have sitting judges pick them? After all, he reasoned, they know more than anyone who is qualified, fair and mild-tempered. As the media and the non-legal public increasingly scrutinize courts and judicial selection, maybe this is an idea whose time has come. If for no other reason than to see if Thomas Jefferson will turn in his grave, why not form an “electoral college” of sorts among the Indiana judiciary? Could this be any worse than the various theories and practices that have left the public largely befuddled, not to mention a clear lack of consensus among so many experts? As long as a public retention vote remains, would the public really care who picks the judges in the first place? A diverse panel of judges could arguably do as well as any current system or better. The benefits:

• Improved neighborhoods – there would be 80 percent fewer yard signs.

• Improved economy – there would be 95 percent fewer political fundraisers.

• Improved legal profession – think how much more civilized the lawyers will become, at least to we judges.

• Improved national standing – the Indiana Plan would take its place alongside the Missouri Plan (or at least whatever the Marion County plan is called).

Nevertheless, the more we care about how judges are selected, the more we develop an investment in our world. For with our courts, and the public’s confidence in them, we are the best country on the planet. We can select judges any way we want and the bottom line still never changes: the Constitution, equal access, time-honored due process, and the law. And judges will be there every day to make sure it never changes – no matter who picks them.•

__________

Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed are those of the author.

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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