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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. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  5. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

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