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Indiana Judges Association: Protect 'We (All) the People'

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IJA-Dreyer-DavidIn 1947, 16 German judges were tried and convicted for crimes against humanity, that is, enforcing Nazi racial purity laws supporting the Holocaust. In 2010, three Iowa judges were attacked and removed for striking down a same-sex marriage ban, that is, what some supporters call a marriage purity law. All these judges were guilty of doing their job. So what’s the difference? Well, the Nazi judges were following what they felt was required by the German government, and to some extent the German people, regardless of the consequences. But the Iowa judges were guilty of doing what they felt was required by the law, regardless of the consequences.

Afterwards, Iowa law professor Todd Pettys told the Wall Street Journal, “The notion of throwing someone out on the basis of one ruling is entirely in tension with all other considerations that went into coming up with Iowa’s policy [of keeping electoral politics out of the judiciary] . . . Given this, you’d think that the standard for rejecting a judge would be pretty extreme, like misconduct or a pattern of blatantly disregarding the rule of law. . . There’s just no misbehavior [here] of any kind.” So has electoral politics seeped into the American judiciary?

In 1849, a South Bend state trial judge named Elisha Egbert freed former slave David Powell and his family who were tracked down by their Kentucky “owners.” He interpreted a 1793 law to allow only damages for runaway slaves, not possession. If Judge Egbert was facing slave-owning voters, would he have been thrown out? A year later, Congress passed the Federal Fugitive Slave Act, and Northern judges everywhere followed the law to return former slaves to former masters. What would Judge Egbert have done under the new law? Presumably, he would have done his job – interpreted the law and followed it. If he was still in office.

Unfortunately for all Americans, a new Brennan Center for Justice report entitled “The New Politics of Judicial Elections” identifies a “grave and growing” challenge to impartial consideration of judges and the emergence of several “super spenders,” like the U.S. Chamber of Commerce. But is this new? Under accusatory euphemisms like “activist” or “legislating,” there is a discouraging record of judicial challenges based more upon a partisan single interest scorecard than the rule of law:

In 1996, Tennessee Justice Penny White was rejected for just concurring in a unanimous decision reversing a death penalty conviction – three California justices were earlier removed because of death penalty opposition.

In Kansas, Chief Justice Lawton R. Nuss and three colleagues recently survived strong opposition (abortion).

In Colorado, Chief Justice Mary Mullarky retired this year rather than face an organization called “Clear The Bench.” (taxes, redistricting, eminent domain)

In Illinois, Chief Justice Thomas Kilbride vigorously fought and survived opposition based not upon any ruling, but seeking a more partisan court for upcoming political redistricting. Even local cynics conceded any new judge might still be independent. (“It’s conceivable that [the court] would do what it ought to do.” – Illinois official Dawn Clark Netsch)

“The business of the law is to make sense of the confusion of what we call human life, “said poet Archibald MacLeish, himself a lawyer, “to reduce it to order but at the same time to give it possibility, scope, even dignity.” This could be a standard by which to judge a judge – not whether we agree on a single case, or to bully an expedient political point. Bob Vander Plaats, the Iowa opposition leader, declared, “It’s ‘we the people,’ not ‘we the courts.’” But according to the Founding Fathers, he is wrong. The plain words of the Constitution give power to the people – and deliberately balance that power with the rule of law. So it is more accurate to say, “We all the people (protected by the law all the time),” not “we the (majority of) people (only in one election on one issue).”

What can be done? Nothing. In a democracy, no law should stop these “super spenders” and single-issue thinkers. But judges who forfeit their independence for short-term considerations may face long-term consequences. Just ask the German judges. Overall, there has been no diminishing effect on the courage and dedication of our judges to do what is right rather than do what polls show. But there will always be good judges who will be removed, who will get thrown out for the wrong reason, or no reason. Regardless, the Republic stays strong because judges stay strong. Just ask the Powell family.•
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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 in this column are the author’s

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  1. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  2. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  3. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

  4. I am one of Steele's victims and was taken for $6,000. I want my money back due to him doing nothing for me. I filed for divorce after a 16 year marriage and lost everything. My kids, my home, cars, money, pension. Every attorney I have talked to is not willing to help me. What can I do? I was told i can file a civil suit but you have to have all of Steelers info that I don't have. Of someone can please help me or tell me what info I need would be great.

  5. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

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