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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. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

  2. GMA Ranger, I, too, was warned against posting on how the Ind govt was attempting to destroy me professionally, and visit great costs and even destitution upon my family through their processing. No doubt the discussion in Indy today is likely how to ban me from this site (I expect I soon will be), just as they have banned me from emailing them at the BLE and Office of Bar Admission and ADA coordinator -- or, if that fails, whether they can file a complaint against my Kansas or SCOTUS law license for telling just how they operate and offering all of my files over the past decade to any of good will. The elitist insiders running the Hoosier social control mechanisms realize that knowledge and a unified response will be the end of their unjust reign. They fear exposure and accountability. I was banned for life from the Indiana bar for questioning government processing, that is, for being a whistleblower. Hoosier whistleblowers suffer much. I have no doubt, Gma Ranger, of what you report. They fear us, but realize as long as they keep us in fear of them, they can control us. Kinda like the kids' show Ants. Tyrannical governments the world over are being shaken by empowered citizens. Hoosiers dealing with The Capitol are often dealing with tyranny. Time to rise up: https://www.theguardian.com/technology/2017/jan/17/governments-struggling-to-retain-trust-of-citizens-global-survey-finds Back to the Founders! MAGA!

  3. Science is showing us the root of addiction is the lack of connection (with people). Criminalizing people who are lonely is a gross misinterpretation of what data is revealing and the approach we must take to combat mental health. Harsher crimes from drug dealers? where there is a demand there is a market, so make it legal and encourage these citizens to be functioning members of a society with competitive market opportunities. Legalize are "drugs" and quit wasting tax payer dollars on frivolous incarceration. The system is destroying lives and doing it in the name of privatized profits. To demonize loneliness and destroy lives in the land of opportunity is not freedom.

  4. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  5. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

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