ILNews

Touched by controversy

Back to TopCommentsE-mailPrintBookmark and Share

In the history of court controversies, a recent ruling by the Indiana Supreme Court has created public outcry and calls for change in ways that few others do.

But it’s not alone.

The courts have faced a handful of issues through the years pitting judges against public opinion, from a federal ruling on school desegregation in the 1970s to the governor criticizing a ruling that struck down the state’s voter ID law as unconstitutional in 2009. Trial and appellate judges once faced common law liens on their property from people upset about particular decisions, and the judiciary has stood up to attacks from lawmakers and residents who’ve taken issue with a holding that’s seen as “unpopular.”

What’s most rare, though, is the heated response that leads to calls for judges and justices to be removed from the bench, and it’s in those moments where the legal community can test the strengths and find the failings in the Hoosier judiciary.

“Sometimes, these things create their own vortexes of controversy,” Court of Appeals Judge John Baker said, referring to his own experience handling a controversial case in the early 1980s. “That can spin out of control very quickly for a judge or the entire court.”

He knows first-hand.

Baby Doe

While still on the Monroe Superior bench in 1982, Judge Baker took on what became known as the “Baby Doe” case involving a Bloomington baby who lived for only five days with Down syndrome and serious internal birth defects that prevented him from eating or drinking normally. The parents decided against surgery, but the hospital wanted court intervention to keep the baby alive – a parental authority issue that had never been addressed anywhere in the country. Judge Baker decided the government shouldn’t interfere with the parents’ choice based on the medical advice, and the hospital counsel failed to convince the Indiana Supreme Court to intervene.
 

courts-15col.jpg Protesters gathered at the Indiana Statehouse on May 25 to protest an Indiana Supreme Court ruling. Justice Steven David wrote the majority opinion focusing on the common law right to resist police entry into a home, leading some to call for his removal from the bench.(IL Photo/ Eric Learned)

Pro-lifers accused the judiciary of condemning the baby to die, while hundreds of calls came to judicial and state offices. Protests were staged at the Indiana Statehouse rallying for Baby Doe’s right to life. Some called Judge Baker a “baby killer,” and he considered moving his family out of Bloomington because of threats. Others labeled the baby’s death “infanticide” and accused the courts of being part of a conspiracy to further a master race and devalue the sanctity of life.

Opposition faded, but it came back in 1984 when then-Chief Justice Richard Givan faced a retention vote. A Lafayette group launched a statewide campaign with newspaper ads to oust him from the appellate post saying, “Remember Baby Doe, Retire Judge Givan.”

Though his retention number dipped slightly from the norm, the chief justice won that retention vote by a 3-1 margin.

That was the first time public reaction had led to a recall effort under the state’s retention system, but it wouldn’t be the last.

Pivarnik-Shepard

About five years later, a state justice made public accusations about one of his colleagues shortly before a retention election. That cast a cloud on the judiciary and became what some describe as the ugliest chapter in Indiana Supreme Court history. At the time, some in the legal community wondered if the court and system overall could survive the controversy.

Justice Alfred Pivarnik had lost his bid to replace outgoing Chief Justice Givan in 1987, and the Judicial Nominating Commission chose a young Justice Randall T. Shepard for that top post, even though he’d only been on the appellate bench for about 18 months.

More than a year went by and just 12 days before Chief Justice Shepard faced his first retention vote in November 1988, Justice Pivarnik publicly challenged the chief justice selection. He accused the chief justice of having a drinking problem, a history of drug use, and a “personal social problem” that Justice Pivarnik later elaborated on as homosexuality. He later alleged the governor and chief justice had covered up an investigation when Chief Justice Shepard was initially interviewed for the state bench, even though investigators and state police found no proof and had dismissed the issues. Justice Pivarnik also alleged that the chief justice often voted with partisan views when deciding high court cases.

Former Chief Justice Givan joined with Justice Pivarnik and raised questions about Chief Justice Shepard leading up to the retention vote, but the legal community supported the new chief justice and many criticized the other two justices for damaging the court’s integrity with the unsubstantiated public claims rather than addressing personality differences internally.

Chief Justice Shepard won retention, and Justice Pivarnik refused to resign despite calls that he do so. The Indiana State Bar Association in late 1988 filed a formal misconduct complaint questioning whether Justice Pivarnik and former Chief Justice Givan’s statements had violated judicial canons, and although it was ultimately dismissed without any action, it revealed a hole in state law on how justices would handle those actions if three of the five had to step aside. The court developed a plan to deal with that rare possibility, and the whole Pivarnik-Shepard controversy motivated lawmakers to change state law and open up the Judicial Nominating Commission interview process that had historically been closed.

Those on the court and in the state’s legal community worried the incident would leave the court unable to function, but instead that situation ushered in a new era of professionalism for the judiciary.

Following the Pivarnik-Shepard issue, the Indiana courts wouldn’t see another anti-retention effort of that caliber until this year.

Barnes

On May 12, a split Supreme Court issued a ruling in Richard L. Barnes v. State, No. 82S05-1007-CR-343, holding that a person must use the civil court process for redress against unlawful police action instead of trying to resist in any way. Justice Steven David wrote the decision, becoming the focal point for the public outcry that has followed.


courts03-15col.jpg (IL Photo/ Eric Learned)

National media attention zeroed in on Indiana criticizing the broad ruling, and in the week following that decision the state police were called to investigate potential threats made to the court by phone and email.

A “Stand Up for your Fourth Amendment Rights” rally drew about 300 people to the front steps of the Indiana Statehouse to protest the decision, and dozens made signs or banners displaying messages such as “Justice David is an Enemy of the Constitution” while others waved American flags and copies of the U.S. Constitution. A political action committee and a Facebook page have been created with the goal of recalling Justice David, who was appointed to the court last fall and will face an initial retention vote in 2012.

What happens next depends on the case and how long the public outcry continues.

Indiana University Maurer School of Law professor Charlie Geyh, a national expert on judicial independence, said the initial reaction could play into the final result, depending on what the court does next.

“Judges make tough decisions and this is a result of them having to make one of those on a tough issue,” he said. “If I was a member of the majority, I’d think long and hard about changing views even slightly because it might look like you’re caving because of the public response. Judicial independence could take a shot in the face even if it didn’t factor in, but it looks like it did. That puts this whole notion of rehearing in a more precarious position.”•

ADVERTISEMENT

  • Remember a guy named Hamilton?
    Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

    - The Federalist Papers
  • Judicial Independence? Or infallibility?
    I wonder if the editors and writers for Indiana Lawyer have ever stopped to consider that when the public responds negatively to a judge's decision, it might be because the decision is actually wrong. Judicial independence should not be interpreted as judicial infallibility. Perhaps some in the legal community need to learn the difference.
  • King John was "independent" too
    In Barnes they are taking common law rights away and the public righteously has condemned this judicial activism and abrogation of civil liberties.
  • overlooked statute must be a factor on rehearing
    It is indeed to be expected that the Justices in the Barnes majority will be reluctant to look as if they are "caving" to public pressure. However, the fact that a pertinent statute was overlooked requires reexamination of the cause, regardless of appearances.

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  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.

ADVERTISEMENT