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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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