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Moving forward on merit selection: Judiciary, bar association support statewide change

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An effort that began more than 50 years ago is being resurrected and could eventually reshape how judges are selected throughout Indiana.

Stars are aligning for a multi-faceted thrust toward merit selection and retention for all trial judges statewide, an endeavor that's been brewing behind the scenes for years but is now gaining more steam from the state's judiciary and largest bar associations.

While no guarantee exists that lawmakers would even consider such a change, key players supporting the concept in the legal community agree that it would help secure judicial independence and improve the state's judiciary by removing election campaigning components. 


Click here to read the ISBA House of Delegates' resolution supporting merit selection and retention for all trial judges statewide, as well as proposed legislation that will be sent to the Commission on Courts."This debate on selecting judges is as old as the country, and this is all a fascinating echo of how we got started on this path here," Indiana Chief Justice Randall T. Shepard said. "There are people who advance the democratic ideal that they should be able to elect a candidate, and that's a very American way of looking at it. But that doesn't take into effect how you feel if you end up in court for a custody battle and learn that your ex-spouse made a large campaign contribution to the particular judge. It's important to think forward how you'll feel that morning."

So far, the Indiana State Bar Association is leading the way with a resolution and proposed legislation that could be taken to lawmakers as soon as the next session of the General Assembly. The ISBA's House of Delegates adopted the proposal during its annual meeting in early October, supporting statewide merit selection for trial judges and outlining a potential process for choosing local jurists.

For all counties, bipartisan commissions made up of attorneys and civilians would be formed to review and interview potential jurists before submitting finalists' names to the governor for appointment. The chief justice would have the duty to appoint a judge if the commission didn't do so within 30 days. That group would also provide periodic, meaningful evaluation of judges and share those findings with the public prior to any retention election, according to the proposal.

The ISBA also recommends Allen, Lake, Marion, St. Joseph, and Vanderburgh counties have 11 commission members. A group of remaining large counties would have nine members, and smaller counties would have seven-member commissions.

The final language of the proposal came from the ISBA's Improvements in the Judicial System Committee in the past year, but work began at least four years ago through a subcommittee chaired by Indianapolis attorney Philip S. Kappes, who has been practicing law for six decades and watched firsthand the changes in the appellate judicial system about 40 years ago.

He doesn't want lawmakers to immediately vote on this issue but instead wants the bar associations and judiciary to get input from the public and interested organizations. Then, lawmakers can see what's possible.

"We don't pretend to have the final answer, but we hope our ideas can start the discussion again," he said. "That proposed legislation can be the lightening rod for this thing, and we hope people can take that and chew on it."

The Indianapolis Bar Association has also offered a resolution supporting merit selection in the past and continues discussing the issue, said Julie Armstrong, IBA executive director.

History shows that the idea for all-merit selection has been posed in some form since 1948, but lawmakers seriously started eyeing the concept in 1962 when state Supreme Court jurists were elected. One in particular authored a decision that angered a particular interest group, and that organization successfully waged a campaign to defeat him. A result was support for removing elections from the system. Though the effort failed in subsequent years, it eventually gained enough support in the late 1960s. At that time, two lawmakers introduced a proposed constitutional amendment that would have provided for merit selection of all Indiana judges. A watered-down version eventually made it through two legislative sessions, with only the appellate courts undergoing the change - 58 percent of voters approved it in 1970, and the constitutional restructuring occurred in 1971.
 That system remains, though trial courts have tried various methods - including Lake and St. Joseph counties that saw legislative changes in 1973 put them on the merit selection system. Of Indiana's 92 counties with trial courts, all but four hold partisan elections to select Superior and Circuit judges. Allen and Vanderburgh counties use non-partisan elections open to anyone who wants to run, while Lake and St. Joseph counties use the merit selection system where a local nominating commission reviews applicants, submits names to the governor for consideration, and then requires those appointees to face a retention vote on the ballot within four to six years.

"We hope people recognize how well the appellate court and Supreme Court have been functioning, that this quality piece of the judiciary speaks to the process," said Kappes, adding perhaps now's the right time.

Opposition to the idea exists, as illustrated by failed legislation during the last session that called for ending merit-based selection. The sponsor was Rep. Ryan Dvorak, D-South Bend, who is now a member of the Commission on Courts and was recently inducted to the state's bar.

At a recent meeting, Dvorak voiced concern about the concept because it seemed to give too much authority to the governor, who makes the final choice from the nominees submitted for consideration. He worried about the elected governor coming up with his own litmus test, deciding who might be the best judge based on the governor's agenda.

The Commission on Courts is expected to discuss merit selection and retention at its next meeting, as it has done at several previous meetings. The legislative study committee has already delved into public awareness about merit selection and retention and those judges coming up for a vote, and an Oct. 3 meeting was packed with discussion about the Lake and St. Joseph judicial-selection systems. An envoy of elected, bar association, and court officials traveled to Indianapolis to tell the commission that the St. Joseph system shouldn't be changed. They also said Lake County's system should be expanded to include the four county divisions of the Superior Court that are elected and handle small claims and criminal cases involving potential prison sentences of less than three years.

Justice Frank Sullivan urged the commission to not change the system in St. Joseph County, where he is from, and Justice Robert Rucker did the same for his home base of Lake County.

St. Joseph Superior Judge Michael Scopelitis, who is a governor appointee, testified that judicial elections are a serious threat to judicial independence. He cited a personal example where a local interest group put up a billboard against him after he ruled part of a business ordinance was unconstitutional.

"All they cared about was whether I agreed with their agenda, not whether I was fair and impartial or whether it was a well-reasoned opinion," he said. "That's the threat. You're not a better judge because of merit selection; it's just a better process."

Aside from what the legislative commission is already considering, more input may be coming from the state's top judicial leaders. The state Judicial Conference's strategic planning committee is exploring the topic and is expected to finalize drafts in coming months. Recommendations are expected to be presented to the conference Oct. 31, according to Marion Superior Judge Mark Stoner, who co-chairs the committee with Elkhart Circuit Judge Terry Shewmaker. Judge Stoner said everything is still in draft form and he'd prefer to not discuss the issues until more is finalized.

But Indiana Court of Appeals Chief Judge John Baker, who is a member of that committee, said in early September that monumental changes are being contemplated.

"Everything imaginable is being discussed," he said, noting that he expects the judiciary to offer a court-reform proposal on the heels of a local government reform report issued late last year. That report was the one created by a commission cochaired by Chief Justice Shepard, who is a proponent of this effort and court restructuring and also a member of the Commission on Courts.

The chief justice cited high-dollar campaigning in other states as evidence of the potential election dangers.

"There's not a lot of coverage on this point in Indiana, but one only needs to look around at what's happening in neighboring states to see how interestgroup politics and money has influenced judicial elections," he said. "It's important to think about what kind of justice the public expects or can hope for, having that fair and impartial decision maker. Although a situation might really be fair, we don't feel good about it because there's not an appearance of fair play. Perception and reality are close first cousins." •
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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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