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Standing up for the judiciary

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Indiana Lawyer Focus

Indianapolis attorney Tom Schultz sees that the judiciary is under attack and, as a past president of the Defense Trial Counsel of Indiana, he’s doing something about it.

He pointed to examples nationwide on how the judiciary’s independence is in danger, from the landmark Supreme Court of the United States decision in early 2010 that allowed unlimited campaign donations in judicial elections to the November 2010 general election where three Iowa Supreme Court justices lost their seats as the result of public sentiment over a decision allowing same-sex couples to marry.

schultz-thomas-mug.jpg Schultz

Indiana saw that danger after a May decision from the Indiana justices on the Barnes v. State case involving residents’ rights to resist police entry into a home. Justices received death threats, a public rally protested the decision and lawmakers formed a legislative study committee in response to the ruling. That ruling also sparked a conversation among some lawmakers that Indiana re-examine its merit selection system for appellate judges.

With those examples fueling concern within the legal community about whether judicial independence is in jeopardy, the DTCI is forming a new committee to help advocate for the third branch by educating the public and legislative leaders about the judiciary’s purpose and inner-workings.

Schultz says the things the committee may look at include overall reaction to judicial opinions, public criticism of judges or courts, issues surrounding judicial selection, and efforts to limit funding or judicial salaries. He envisions the committee working through the media, Legislature and school systems to educate lawmakers and members of the public, possibly even being a place for the media to turn for fair comment on judicial rulings.

Schultz expects those details will be worked out once the committee – which will include six to eight attorneys – starts meeting in January. Eventually, Schultz hopes the defense bar can work with the judicial and legislative branches as well as other bar associations, including the plaintiffs’ bar, to discuss judicial issues impacting attorneys and judges throughout Indiana.

“As an organization, we see that it’s apparently en vogue to attack the judiciary,” the principal partner at Schultz & Pogue said. “But while that’s a problem in itself, a bigger problem is that judges can’t stand up and defend themselves. So that falls to us, as lawyers. We need to defend the system we have and also educate people about the role of the judiciary.”

Schultz said the negative tone against lawyers sometimes clouds the public’s view of the entire legal system. He doesn’t believe an answer can be easily found by turning to tort reform or changing how judges are chosen – two elements Schultz sees as the most common responses when legislators or members of the public don’t like what the courts are doing.

“Lawyers and courts are easy targets, but many people don’t understand the basics about the system,” he said.

Indianapolis defense attorney John Trimble, a past DTCI president and member of the defense attorney advocacy group known as DRI, has been a part of national and statewide efforts studying the issue of judicial independence.

“Public perception of our judiciary is largely based on headlines and not the merits of a case as derived from the facts, law and precedent,” Trimble said. “It’s very easy for the public to criticize and lambast judicial holdings, especially now with blogs and other Internet options allowing them to voice opinions. The public lashes out against judges and urges legislators to do something about it, based on limited or no understanding of what a decision might have said.”

Other states’ defense bars have embraced efforts similar to that being undertaken by DTCI, such as in Washington where a defense bar committee joined the teacher’s association and League of Women Voters to work on shaping opinions about how judges are selected. Other jurisdictions have done the same on other court-related issues, Trimble said.

trimble_joh-mug.jpg Trimble

Those types of efforts could be duplicated by the DTCI committee, Trimble and Schultz said.

“For us lawyers, we’re the front line consumers of judicial services based on the work we do for our clients,” Trimble said. “But in generalities, we attorneys are guilty of standing idly by while our judiciary deteriorates. We get accustomed to the day-to-day operations of courts that we deal with and we don’t realize how corrosive these attacks on courts can be. If we don’t defend the courts, no one will.”

The Indiana Trial Lawyers Association supports the effort and looks forward to working with the defense bar on some of those common issues involving the judiciary, according to ITLA president and Fort Wayne attorney John O. Feighner. When judicial pay or judge selection debates have happened in the past, he said the plaintiffs and defense bars have worked along with the Indiana State Bar Association to address those concerns on the public and legislative fronts.

“We all want to see the courts treated fairly and that transcends the boundaries of who we represent and which side we’re on,” he said.

For the ISBA, the educational effort is already underway as it works to make sure the decision-makers in the General Assembly understand the legal system and how the courts are meant to function. The ISBA held its first-ever Law School for Legislators prior to Organization Day in mid-November. Organizers believe it was the first of its kind in the nation.

ISBA legislative counsel Paje Felts said the decreasing number of practicing attorneys in the General Assembly means that fewer legislators know the practical impacts of the legislation they’re considering and passing. This is becoming an even more important trend now that Indiana is expected to lose several key lawyer-legislators who plan on not running for re-election, Felts said.

“When you look at the numbers, it looks like the amount of lawyers has risen,” she said of her count of 26 legislators who have law licenses. “But so many haven’t practiced and don’t really understand these issues we see in the legal community. Lawyers have to bring this knowledge to the table.”

At the legislative law school, Felts said legislators were able to discuss issues such as how their legislative mandates impact administrative law and more general topics such as judicial selection and the interaction between the legislative and judicial branches.

Whether it’s led by the DTCI, another bar association or other organization, Felts said the educational aspect is what is important about any effort focusing the judiciary.•
 

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  1. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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