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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.”

retention2-1col.jpg

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. Good riddance to this dangerous activist judge

    2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

    3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

    4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

    5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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