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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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  2. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  3. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  4. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  5. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

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