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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. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. 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)

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