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Legislature's final days bring up merit selection, out-of-state placement issues

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Hoosier lawyers and judges were kept on the edge of their seats as the Indiana General Assembly navigated its final days of the session, reviving talk on two issues that have significant impact on the state's judiciary and legal system.

One measure would have overridden a governor's veto on adding a new appellate panel to the Indiana Court of Appeals and also replacing merit selection with nonpartisan elections in St. Joseph Superior Court. Another would have repealed a last-minute legislative change in 2009, which allowed the Department of Child Services to make final decisions on out-of-state placements rather than juvenile judges.

In the end, lawmakers didn't act, and the changes weren't adopted by the time they adjourned about 1 a.m. Saturday, March 13. But how that process played out in the final days and hours is even more telling than the measures themselves and reflect what might happen in the future if the topics come up again.

Those monitoring the session described their disappointment in how the merit selection and placement issues evolved during the final days but pointed out they weren't necessarily surprised with what happened.

"I find it discouraging and more than a little cynical that this would surface at the end of the session when it could be hidden or lost in the shuffle of end-of-term business," South Bend attorney and former Indiana State Bar Association president Bill Jonas said, referencing the merit-selection change that Gov. Mitch Daniels had vetoed in 2009.

Both the House and Senate had passed HEA 1491, which targeted one of the two counties statewide that doesn't use elections to select trial court judges. But it died when the governor vetoed it with a strongly worded message supporting the current system that's been in place for more than three decades.

"It is a model to be emulated, not discarded. It is not broken; it requires no repair. It has produced outstanding jurists and contains sufficient measures of public accountability. I believe it neither necessary nor wise to re-politicize the courts of St. Joseph County," he wrote, adding that it would be difficult to justify the $2 million yearly cost for a new appellate panel.

"Moreover, if I were to sign a bill linking these two proposals, it could contribute to public cynicism by creating the appearance that my acquiescence was purchased with more appointments. Whatever the merits of expanding the Court of Appeals may be, they should be considered alone."

The House put the measure on the calendar during the final three days, and it stayed there until the final hours when lawmakers reached a session-ending deal involving unemployment insurance, jobs, and various financial issues.

Both members of the ISBA and St. Joseph County Bar Association echoed Jonas' thoughts that it was bad form to bring the issue back so late in the legislative session.

The legislation's author, Rep. Craig Fry, D-Mishawka, was outside the state during the final week of the session and neither he nor House Speaker Rep. Pat Bauer, D-South Bend, returned messages from Indiana Lawyer seeking comment about why HEA 1491 was resurrected. But hours before the session finished, Sen. John Broden, D-South Bend, said he was disappointed but not surprised that it came back up for consideration. He didn't know how much support it might get in the House, or if Senate leadership would give it a chance if it came to their chamber. Regardless, Broden said he remains adamantly opposed to both the judicial selection change and the extra appellate panel, which would cost millions at a time when the state's battling budget woes and making cuts across the board.

"I remain opposed and strongly support the governor's veto, particularly with regard to the new court panel costs. That's even more significant almost 12 months later, when the fiscal picture of our state is worse than it was then," Broden said.

As that legislation faded, so did the hopes for Senate Bill 149 that would have repealed the DCS out-of-state placements statute change from last year. The idea was originally included in HB 1167 and representatives approved it, but the measure died after it failed to get a hearing in the Senate Judiciary Committee. Reps. Linda Lawson, D-Hammond, and Winfield Moses, D-Fort Wayne, merged it into SB 149 that included multiple DCS-related law changes, but some lawmakers opposed that move and it went to conference committee during the legislature's final week.

On the Senate side, Broden had originally signed on as a sponsor to HB 1167 and said he was disappointed it didn't get support in the end. But he wasn't surprised because the DCS had considered it a high priority to defeat the measure. Some last minute negotiations were happening to keep it included, but those fell through and lawmakers had to eliminate the placement issue in order to get the broader SB 149 approved, he and others said.

Three of the four final conference committee members - Rep. Dennis Avery, D-Evansville; Rep. Matt Bell, R-Avilla; Sen. Connie Lawson, R-Danville - said the opposition was too strong to get the placement law changed. The fourth committee member, Sen. Tim Lanane, D-Anderson, couldn't be reached at Indiana Lawyer deadline.

Several lawmakers were also appointed from each chamber to serve as technical advisors, including Rep. Ralph Foley, R-Martinsville, who had unsuccessfully tried to get the DCS placement language removed from the original legislation.

Avery co-sponsored the amended bill and said he worked on the conference committee during the final days to get it passed, but eventually let it die when it was clear the full SB 149 wouldn't pass if the placements provision was included. Word was that the judiciary's chair Sen. Richard Bray, R-Martinsville, refused to hold a hearing and later opposed the amendment because it appeared to circumvent the committee process, Avery said. He also heard that the Senate leadership was supporting the administration and felt the placement revision was an attempt to embarrass the DCS and Director James Payne, a former juvenile court judge.

Bell said he believes that juveniles shouldn't be sent outside Indiana because current service providers offer adequate and quality facilities that aren't fully used.

Despite the lack of success this session, Broden doesn't think the issue is dead and he hopes to bring it back in the future.

"As long as juvenile judges, who handle these placements firsthand, have concerns, lawmakers will be knocking at the door on this issue," Broden said. "I think this will be an ongoing dispute we have to address."

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  1. 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)

  2. "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.

  3. 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.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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