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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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  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

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