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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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