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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. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

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