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Feighner: Judicial selection in Indiana

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Indiana Lawyer Focus

Indiana’s system of judicial selection through the Indiana Judicial Nominating Commission and the periodic retention vote for appellate judges and justices vindicate the core constitutional value – judicial independence. The French philosopher, Montesquieu, observed in his 1752 Treatise “Spirit of Laws” that “There is no liberty, if the power of judging be not separated from the legislative and executive powers.” More recently, the American College of Trial Lawyers’ policy statement on judicial independence quotes Chief Justice Randall Shepard: “Judicial independence is the principle that judges must decide cases fairly and impartially, relying only on the facts and the law.”

Constitutional role for the IJNC

The Judicial Article of the Indiana Constitution became effective Jan. 1, 1972. The Indiana Constitutional amendment prepared by the Judicial Study Commission was first presented to the Indiana General Assembly. After considerable controversy and debate in the 1967 and 1969 sessions of the General Assembly, the judicial article was approved by the legislature and won adoption by a convincing plurality of 141,323 votes in the 1970 electoral referendum. The commission has the constitutional duty to select and nominate three qualified attorneys for vacancies on the Indiana Court of Appeals or the Indiana Supreme Court for consideration by the governor. Unlike some other states, the Indiana governor may not reject the panel and call for a new one. In Indiana, if the governor does not make a selection from the three names within 60 days, the chief justice, presiding member of the commission, must pick the nominee from the panel. In addition, the commission selects the chief justice from the members of the Indiana Supreme Court every five years. That selection will occur again in December 2011 upon the expiration of Chief Justice Shepard’s current five-year term. The commission consists of seven members, including the chief justice and three “non-attorney citizen” members appointed by the governor for three-year terms. These terms are staggered and each of the appointees represents a different judicial district in South, Central and Northern Indiana. Similarly, three attorney members are elected by Indiana attorneys. The current attorney members are John C. Trimble, John O. Feighner, and James O. McDonald. Trimble ends his term Dec. 31, 2010. William Winingham, Indianapolis, was recently chosen in a spirited Central Indiana election among attorneys. The commission members have a statutory responsibility to evaluate each candidate, in writing, on the following considerations: legal education, legal writings, reputation in the practice of law, physical condition, financial interests, activities in public service, and any other pertinent information the commission feels is important in selecting the most highly qualified individuals for judicial office.

ITLA members have a long history of service to the Indiana Judicial Nominating Commission. Beginning in 1972, 14 members of ITLA have served varying terms as commissioners. The first commissioner was Howard Young, former president of ITLA. Other commission members included Donald Ward, Thomas Singer, Glenn Tabor, Theodore Lockyear, Daniel Roby, Charles Berger, Peter Obremskey, Terrance Smith, James McDonald, James Young, Sherrill Wm. Colvin, and Stephen Williams. Seven of those members have served as president of ITLA. Other prominent Indiana lawyers active in business litigation, insurance defense practice, and mediation also have served as commission members throughout the years.

2010 judicial selection process

Beginning in June 2010, the commission embarked on an extraordinary interview process to select three names to forward to Gov. Mitch Daniels to fill the vacancy upon the retirement of Justice Theodore Boehm. As Commissioner Trimble noted in his editorial in the Indianapolis Star, Sept. 28, 2010: “The recent selection process that resulted in the appointment of Judge Steven H. David to the Indiana Supreme Court exceeded all prior precedent for direct public access and input. For the first time, candidate applications were posted online, which allowed the press and the public to review every detail of applicant information from their work and educational background to their litigation and medical history. In addition, the public had access to the candidates’ writing samples, letters of recommendation and academic transcripts. This information allowed the press to fully develop stories of the candidates in the process.”

As a result of this process, the commission received valuable input on the candidates from legislators, local elected officials knowledgeable about lawyers and trial judge applicants, appellate judges, other trial judges, law professors, business persons, neighbors, friends, and even high school teachers. This process provided the commission members with a real flavor for the judicial philosophy and experience of each candidate. Importantly, the information was publicly disseminated and subject to validation through media and Internet comments by interested citizens. When the process was completed, the commission selected two experienced trial judges and an extraordinarily talented appellate advocate for the governor’s consideration.

Compare our Indiana judicial selection history with the sordid specter played out in Ohio, Illinois, and Michigan. In these three adjoining states, candidates for appellate judicial offices have spent a total of $69 million on high-court elections in the last decade. Nationally, candidates for state Supreme Court races raised $206 million in 2000 through 2009 and special interest groups spent an estimated $39 million more on independent television ads on appellate court races. Thankfully, Indiana has so far avoided this controversy in judicial selection of our appellate judges and Supreme Court justices. It is vital that the Indiana Judicial Nominating Commission continue to fulfill its role in a credible manner in order to earn the continuing support of our citizens.•

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John O. Feighner, Fort Wayne, attorney and president-elect of the Indiana Trial Lawyers Association, is serving his second term on the Indiana Judicial Nominating Commission. Feighner views his service on the commission as a phenomenal leadership opportunity to benefit the citizens of Indiana and the bench and bar. He was first selected to serve as a member of the commission in 2003 for a three-year term. He returned to the commission for his second three-year term in 2009. Interest in the Indiana Judicial Nominating Commission’s work has been highlighted this year with the selection of three nominees for the Indiana Supreme Court vacancy submitted to Governor Mitch Daniels. The opinions expressed in this article are those of the author.
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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