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. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.