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Lucas: More information is needed when judging the judges

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EidtPerspLucas-sigMy mailbox has been overflowing lately with political flyers. I can’t turn on the television without seeing a steady barrage of Pence vs. Gregg, Mourdock vs. Donnelly or, of course, Obama vs. Romney ads. I’m sure you can relate.

But up the street and around the corner from my Broad Ripple house, a yard sign caught my eye that didn’t involve the usual Democrat versus Republican political rhetoric. This simple, hand-painted sign called for the ouster of Supreme Court Justice Steven David.

I find this rather disjointed grassroots effort to remove a sitting Supreme Court justice from the bench both fascinating and disturbing.

On the one hand, it demonstrates the people exercising their right of free speech, and based on what I know of Justice David, no one would support that more than him. In this issue of Indiana Lawyer, the justice speaks about those who oppose him, saying: “If somebody feels strongly that they don’t like the decision, I would defend until my death their right to have that opinion. As painful as that may be personally, that is who we are” as a country.

As I’m sure most know by now, the decision Justice David refers to is Richard L. Barnes v. State of Indiana, issued by the Supreme Court in 2011. In the case stemming from police response to a domestic violence 911 call, Justice David wrote the majority opinion which held that “there is no right to reasonably resist unlawful entry by police officers.” While protests over the decision from those who felt it contradicted the Fourth Amendment and calls to remove the justice seemed to die down late last year, new life seems to have been breathed into the effort during this campaign season even though statutory changes made by the 2012 Legislature made the decision moot.

Still, public conversation is vital, and regardless of your stance on the issue brought to light through Barnes, it is good to see that the process can work. Judges rule based on their interpretation of the laws and Constitution; citizens voice their concerns if they do not feel those decisions, based on our rule of law, reflect society; and government reacts to effect change, if deemed appropriate. Opinions may not be unanimous, they may not always be correct, but the majority rules.

But on the other hand, the effort raises concerns about the understanding our citizenry has as to the role of a judge. I am certainly not the first to question this. Surveys tend to reveal that society at large knows little about the judiciary. Many people can not name members of their state’s supreme court. They tend to do a bit better with naming U.S. Supreme Court justices, but not significantly better.

Knowing this, it is not surprising that there is a lack of understanding in our society about how judges and justices arrive at the decisions they issue. Of course, I have no way of knowing if those behind this particular retention campaign effort understand that judges must rule using the laws and Constitution. Some have said they feel a line was crossed in this decision, but do they believe that line was crossed due to the interjection of personal or political opinion in the case or because the justices writing for the majority interpreted the law and Constitution differently than their detractors do?

Court-watchers say Justice David’s decisions have been fairly mainstream or middle of the road. Indiana attorneys gave him a favorability rating of 81 percent in the Indiana State Bar Association judicial survey. When Gov. Mitch Daniels chose Justice David to fill a seat on the Supreme Court, he said from him he heard, “the clearest expression of commitment to proper restraint in jurisprudence and deep respect for the boundaries of judicial decision making.” Gov. Daniels said, “He will be a judge who interprets rather than invents our laws.”

I understand that I am “preaching to the choir” when it comes to understanding the role of the judiciary. Regardless of your opinion of this particular judge’s work, or any judge’s work for that matter, it seems supporting the ouster of a judge based on one decision is dangerous. It seems to fly in the face of maintaining an independent judiciary. So is this, as they say, a teaching moment? Is it time for the choir to start singing?

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  • How condescending!
    Is it wrong for an ordinary citizen to disagree, not so much with a judge's decision but with a very poorly written ruling? Am I not 'educated' enough to have a voice? What if I simply feel that this Justice did a terrible job, most specifically on how he wrote the ruling, on a extremely important case? I thought he muddied the water and went beyond what the attorneys and the case regarded. If I majorly screw up an important project at my job I would face reprisal or possibly termination especially if it jeopardizes my employer. They would at least expect me to accept responsibility. I simply came to this site in research about how to make my retention vote and wanted to review these events objectively. (yes, I might be a rare breed that reviews the entire ballot before I go to vote.) However, I am amazed at arrogance expressed in this article. I don't believe you are an arrogant person. I tend to give most people the benefit of the doubt and I don't know you personally. So I want to ask, do judges and attorneys view citizens this way, an angry mob of mindless zombies that need to be schooled in the high and mighty ways of judicial workings? Or is the Judiciary too much for the meager concerned citizen to comprehend? No need to respond... I am just an ordinary citizen with no judicial qualifications.

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  1. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  2. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  3. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  4. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  5. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

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