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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

    2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

    3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

    4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

    5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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