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Signs of dissent in retention vote

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“We hold that there is no right to reasonably resist unlawful entry by police officers.”

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Those words written by Justice Steven David in the 3-2 majority opinion in Richard L. Barnes v. State of Indiana last year created a groundswell of opposition and protests at the Statehouse. For some, the bitterness has lingered as an outspoken, albeit unorganized, effort to remove David in a retention vote on Nov. 6.

Retention1-15col.jpg Printed signs opposing the retention of Indiana Supreme Court Justice Steven David are connected with a website maintained by the Indianapolis Tea Party (top), while some angered by his opinion in Barnes v. State of Indiana have made their own signs to express displeasure. (Photos submitted)

David said in an interview that the Barnes decision had been mischaracterized, that the court had revisited its decision, and that coupled with a subsequent state law that said a right to reasonably resist unlawful arrest does exist, the original decision was “not relevant anymore.”

“It’s important to look at a person’s body of work rather than one decision,” said David, who noted taking part in more than 150 Indiana Supreme Court decisions since his appointment in October 2010, more than 30 of which he wrote.

“If somebody feels strongly that they don’t like the decision, I would defend until my death their right to have that opinion,” he said. “As painful as that may be personally, that is who we are” as a country.

Opposition to David’s retention has raised the profile of judicial retention questions this election season. David recently took the unusual step of setting up a website, justicestevendavid.com, after the Judicial Qualification Commission authorized it. Appellate judges typically may not campaign unless they face active, organized opposition.

Despite the opposition, history is on David’s side. Since Indiana adopted a merit system for appellate judges in 1970, none has lost a retention question. In recent years, votes in favor of retention typically have exceeded 70 percent.

Those against David’s retention include tea party and libertarian activists. There are Facebook pages against retention. Pamphlets urging “no” votes have circulated at gun shows. Printed yard signs with the slogan “This is My House” urge a vote against retention and advertise a website that redirects to a site for the Indianapolis Tea Party, where the Barnes decision is discussed at length. Emails to the contacts provided on that site were returned as undeliverable.

James Bratten of Evansville is Indiana coordinator for Tea Party Patriots, an affiliation of about 3,500 groups nationwide. “We stand on the Fourth

Amendment,” he said. “We would have to make a decision to come down on the side of the Constitution and not on the side of the judge.

david David

“There are lines you do not cross and there are places you don’t go,” he said. “People don’t like judicial activism.”

Indianapolis blogger Roberta X describes her politics as “libertarian verging on anarcho-capitalist,” and wrote that David’s Barnes ruling “spits in the face of the Fourth Amendment,” and the ruling merits his removal.

But Valparaiso University School of Law Professor Bruce Berner, who has written extensively on Fourth Amendment issues, said efforts to remove David as a result of the Barnes decision overreact. He said the case isn’t really a Fourth Amendment case, but rather one that tested a person’s right to “self-help” when an agent of the state conducts an unlawful search.

Barnes, he said, put Indiana in line with roughly 40 other states that follow the Model Penal Code, and that someone who is subject to unlawful search and seizure has redress in court, including award of attorney fees.

“These are highly charged situations,” he said of resisting searches. At least one party, and often both parties, are armed. “The citizen very often does not have access to the information the police officer has access to.”

Meanwhile, a former Valpo student of Berner’s, Justice Robert Rucker, the lone Democratic appointee on the court, also is on the retention ballot and coincidentally wrote the dissent in the original Barnes case in which Justice Brent Dickson concurred. Rucker wrote, “It is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection.”

Rucker’s choice

For several months, Rucker, the second-most-senior justice, deliberated whether he would stand for retention. As the deadline neared in July, he said he even changed his mind on the day he formally decided he would seek reappointment to a term that would run close to the mandatory retirement age of 75.

“I guess I’m what one might call an old-school traditionalist. I’ve always been of the notion that when you turn 65, you retire,” Rucker said in an interview. Turns out he wasn’t ready for that and wasn’t quite sure how he’d fill his days.

“There’s really nothing I like doing better than what I do right now for five days a week,” he said. “I couldn’t figure out a good reason not to serve.”

Also in Rucker’s consideration was the transition on the court. Had he retired, four of five justices would have had less than two-and-a-half years experience on the high court. He was concerned about a potential shortage of institutional knowledge.

judges-facts.jpg“Things like that are pretty important,” he said.

Appeal to voters

While appellate judges typically can’t mount campaigns for retention, Court of Appeals judges have found ways to get their work known.

Judge Nancy Vaidik is the only judge on the court whose name will appear on the retention ballot statewide. She said she’s made an effort to hear more cases on the road through the Appeals on Wheels program.

“We do feel it’s very important for people to make informed decisions regarding their votes,” Vaidik said. “The few things we can do, we try to do.”

Vaidik said she also visits with editorial boards of newspapers that have broad reach.

Judge John Baker, on the ballot in the COA First District, said the Appeals on Wheels program gives judges an opportunity to hear cases in their districts.

“We let those standing for retention raise their hand first for those only if it’s in the district where they’re running,” Baker said.

The experience of other states where big money has influenced judicial elections should make Hoosiers grateful the judiciary remains independent through a merit and retention system, he added.

“Do we want (judges) to be politicians in robes? I think not,” Baker said. “People vote yes unless they have a reason not to.”

Judge Paul Mathias agreed Appeals on Wheels is among the best ways for COA judges to show people in person the work of the court. “During a retention year, I try especially hard to organize my schedule so that I can satisfy oral argument requests from the Third District.”

Baker, Mathias and Vaidik also pointed to the Indiana state court administration retention website, which provides information on appellate judges, and their opinions.

“Sometimes citizens judge a judge on the basis of a single opinion as it is reported by the media, but the full body of a judge’s work is far more important,” Mathias said.

Court of Appeals Judge Michael Barnes is also on the ballot in the Third District.•
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  • oops
    Rucker, not Riker
  • Uphold the Constitution
    I thought every Justice sworn in swears to "uphold the Constitution" ... There's a reason it's the JUDICIAL branch---judges are supposed to judge. Legislative branch is for the house/senate. Duh, didn't every 3rd grader learn that? Apparently Justice Steven David didn't learn that. Hats off to Justice Riker!
    • fox/henhouse
      So, people who have been subjected to an illegal search can seek "redress in court"? In which one arm of the government will pass judgement on another? And when that judgement is that the police "followed procedure", what redress is then available for the damages, the emotional upset, the dead pets? I don't care whether procedures were followed in a illegal act; I do not see a major difference between a gang of thieves or a gang of police performing an armed, illegal entry. Except the police are better armed and can escape punishment even if identified.
    • BS
      Does anyone in government or the judicial system have enough brains to translate unlawful? If not I will help you, unlawful means illegal, violation of law! So are we reasonably supposed to expect the police that are supposed to enforce the law, break the law perform unlawful seaches. Read enough about law and you will believe as I do and that most of it since the framing of the constitution was written bny morons!!!

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    1. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

    2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

    3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

    4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

    5. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

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