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Merit-selection override a possibility

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The state's top executive has rejected the idea of scrapping merit selection in St. Joseph County, but it remains unclear whether lawmakers will attempt to override that veto during a special session.

On the final day he had to take action, Gov. Mitch Daniels used his veto power for the third time this session and rejected House Enrolled Act 1491, which called for non-partisan elections to choose the county's eight Superior judges for six-year terms. It also called for the creation of a sixth Court of Appeals district and panel starting in July 2011.

In his veto message, Daniels wrote: "The current method of selecting judges for the St. Joseph Superior Court has prevailed successfully for 35 years. 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."

On the appellate panel aspect, the governor wrote, "The addition of another panel to the Court of Appeals at $2 million per year is difficult to justify in today's challenging fiscal environment. 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."

While the legislation's author, Rep. Craig Fry, D-Mishawaka, didn't return telephone messages from Indiana Lawyer after the governor's veto, he told the South Bend Tribune that a veto override is still possible if Senate Republicans are willing to take that step.

A simple majority of both houses, which means 51 in the House and 26 in the Senate - is needed to override the veto. Senate President Pro Tem David Long, R-Fort Wayne, and House Speaker B. Patrick Bauer, D-South Bend, could not be reached late Wednesday or Thursday morning to comment on the veto or possibility of an override.

But if the General Assembly's action earlier in the session on this legislation is a sign, there could be enough support - the House voted 88-3 on the bill aimed at St. Joseph County's judicial selection, and the Senate voted 35-15 to pass an amended version adding the appellate court component.

St. Joseph judges were pleased with the governor's decision, saying Daniels correctly articulated the system as one that works and should remain in place. Even those judges who are currently elected agreed.

"This wouldn't have affected me, but directly impacts my (Superior Court) colleagues," Circuit Judge Michael Gotsch said this morning. "The governor hit it right on the head, saying it should be emulated."

Despite being elected, Judge Gotsch said he prefers merit selection because it offers a choice; he ran unopposed in a judicial campaign, as did the county's other elected jurist, Probate Judge Peter Nemeth.

"If someone wants to run a campaign against a sitting Superior judge and raise questions about their record, let's do that. But no one has ever done that," he said. "How do we know if it works it if it hasn't been tested? It made no sense to throw the whole system out without testing it first."

Indiana State Bar Association president Bill Jonas, a South Bend attorney, was pleased with the veto decision and the language Daniels used in the message.

"What I appreciated the most was that it showed real statesmanship, and his willingness to rise above partisan politics and do what's right as an elected official," Jonas said. "We had met with the governor's legal staff and they indicated his strong commitment to judicial independence and fiscal responsibility. We hoped that would carry through, and it's obvious that it has."

Jonas realizes the battle isn't finished and will be watching closely for any possible veto override action. The state bar association plans to increase its efforts in the coming months to educate the public and legal community about the merit-selection and retention system, an effort that will heavily involve civic education, he said. The ISBA is working with the Indiana Judges Association on this effort to expand the merit-selection and retention system to other parts of the state, he said.

"We have a third branch of government that's independent, and 1491 was an effort to go a little farther than the legislature should in getting involved in the judiciary," Jonas said. "When you talk about this issue with people, who can't name all three branches of government, it's a real challenge to get through, and is indicative of the challenges we face."
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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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