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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. 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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