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New judicial selection battle ahead?

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Indiana may soon see its next battle over how the state’s top judges are selected.

That debate surfaces at least once or twice a decade, and it’s expected to heat up again following a controversial Indiana Supreme Court decision that says residents can’t resist unlawful police entry into their homes, no matter the situation or how reasonable that resistance might be.

One state senator plans to introduce a constitutional amendment in the next session that would alter the existing merit-selection system, and other lawmakers support discussing potential changes to the judicial selection method that’s been in place for 40 years in the Indiana appellate courts and two county’s Superior courts.

Meanwhile, hundreds of people have mounted a campaign to recall the state’s newest justice – Justice Steven David who joined the Supreme Court in October and faces retention in 2012. This is in the wake of the May 12 ruling in Richard L. Barnes v. State, a split decision that Justice David authored after just six months on the bench.

While many in the Indiana legal community question the rationale the justices used in issuing such a broad holding, those same people come to the defense of the merit-selection system. Many say that even if they don’t like the selection method, they don’t advocate discarding it because of one decision.

“What’s clear to me is that having an isolated incident form the basis for moving away from a selection system is stupid,” said Indiana University Maurer School of Law professor Charlie Geyh, a national expert on judicial selection. “This seems like an excuse de jour for changing the system, and calling for that or even a recall is a very risky proposition to even consider because it usurps the power of what the courts are supposed to do.”

Since 1972, the state’s highest appellate courts have used a merit selection system that involves a seven-member Judicial Nominating Commission recommending three finalists to the governor. The governor then makes the appointment. Both Lake and St. Joseph Superior courts use similar selection methods, while all of the state’s other counties elect their judges. Marion County is unique, using a slating system where the county political parties choose candidates for the May primary, and those candidates take the bench if no one runs against the slate in the November election.

Through the years, attempts have been made to change the selection system at the local or state levels.

The most recent legislative battle on that topic was in 2009, when the Indiana General Assembly approved scrapping merit selection for judicial elections in St. Joseph Superior courts. Rep. Craig Fry, D-Mishawaka, authored and gained legislative approval of House Enrolled Act 1491. Gov. Mitch Daniels vetoed that measure and voiced his support for merit selection.

That same year, Fry offered a resolution changing the selection method for state Supreme Court justices, but it didn’t achieve any traction. The Indiana State Bar Association has worked to educate legislators about the merit selection system.
 

foley-ralph-mug.jpg Foley

In 2006, Rep. Ralph Foley, R-Martinsville, who is also an attorney, suggested restructuring the nominating commission and placing recommendations from the JNC on the ballot next to the names of jurists up for retention. That bill passed out of committee on a party-line vote, but it was never voted on by the House of Representatives.

Foley said he saw that proposal as a compromise to radical departures from the existing system. When he began practicing in 1965 and supported the move from elections to merit-based selection, Foley didn’t envision what he now describes as “blatant politicking to stack the deck for committee members and judicial nominees.”

While he sees a need for more accountability and public education, Foley said that isn’t a focus for the upcoming session and he would oppose a large-scale shift based on this single decision.

“I imagine because of recent events, it’s attracted attention once again on how we select our judges,” he said. “Yes, I think the decision went too far. But that’s not enough to change what we have. Every time I have a disagreement with a court ruling, I don’t want to go out and try to redo how the court is made up.”

Other lawmakers have plans of their own.


white-tess-mug.jpg Young

Sen. Mike Young, R-Indianapolis, plans to revive a proposal he introduced six years ago that would require Senate confirmation of any state appellate judge or justice initially appointed or up for retention. His bill passed the Senate in 2005 but didn’t get support in the House, and the legislator said he’s been waiting for the best time to reintroduce the idea. He says he will do that during next session. Young said the Barnes ruling justifies why judges must be held more accountable than they are now.

“To have a judge in Indiana basically be serving for life without anyone reviewing any decisions they’ve made, that’s just not right and it goes against public policy. At least this way, a judiciary committee would be able to review the actions and that would be a more practical way to do things than the meaningless retention process we have now,” Young said.

Various lawmakers have echoed those thoughts, and a public campaign on Facebook dubbed “Recall Justice David” has been formed and is circulating petitions calling for his removal. But opinions differ within the legal community.

Indianapolis lawyer John Trimble said the public too often hears about a judicial opinion but does not get a complete or accurate description of the underlying facts or the precedents the court relied upon in reaching a decision.

“I believe that all lawyers strongly support the right of all citizens to criticize the government, but the public has lost complete touch with the role of the judiciary in our society,” said Trimble, who served on the Judicial Nominating Commission from 2007 to 2010 and has worked with the state bar’s judicial selection committee. “It is not the role of judges to do what is popular at the moment. Unfortunately, the speed of news these days through cable outlets and the Internet has caused what I view as a lynch mob mentality toward judicial decisions, and much of the time the attitude of the mob is based on incomplete information or misinformation.”•

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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