As the General Assembly weighs a new means of choosing Marion County judges, critics of the proposed merit-selection system say its enactment will almost guarantee another court fight. The legislation is also likely to spark debate about how trial court judges should be chosen elsewhere in Indiana.
Opponents note passage of House Bill 1036 would create a situation where Indiana counties with the highest minority populations would be the only ones where voters don’t directly elect judges. “I don’t think that’s coincidence,” said Sen. Lonnie Randolph, D-East Chicago, ranking member of the Senate Judiciary Committee, where the bill likely will be next heard.
Some merit-selection experts say an equal-protection challenge could prove a strong case. A traditional argument for merit selection has been that in larger counties, voters are less likely to know candidates for judge, so a panel of legal experts and lay members is preferable to nominate them for the governor’s appointment. Under HB1036, Marion County would join Allen, Lake and St. Joseph as the only counties where Superior Court judges are appointed rather than elected.
But because less-diverse Hamilton County has surpassed the population of St. Joseph County, members of the Indiana Black Legislative Caucus see a double-standard.
“I think there is an issue there,” Indiana University Robert H. McKinney School of Law professor Joel Schumm said. “I think if one were to bring that as a lawsuit, I think the state would have a challenge in explaining why Hamilton County could be different than the (other) most-populous counties in the state,” Schumm said.
However, “That’s not a reason not to have merit selection in Marion County,” he said, noting he believes merit selection should be used to choose judges in fast-growing Hamilton County as well. No such measures have been introduced in the Legislature.
Rep. Cherrish Pryor, D-Indianapolis, chairs the IBLC and said HB1036 would disenfranchise Marion County voters. If the bill passes, she said, “It will probably be a matter of time before it does get challenged.” Democratic Indianapolis Sen. Greg Taylor predicted an almost certain court challenge. “I think there’s going to be a group of people prepared to move forward on that and take it all the way to the Supreme Court, if necessary.”
The General Assembly must find a new way to choose Marion Superior judges this session, after the 7th Circuit Court of Appeals voided the former election system. The 7th Circuit ruled the previous system failed to provide a meaningful vote because both parties slated the exact number of candidates to run for an equal number of guaranteed judgeships.
Even with passage of HB1036, “We still have the issue that existed in the (7th Circuit) case,” Randolph said, because people in Marion County would not have a direct vote in judicial elections. Members of the IBLC also criticize the bill for keeping the partisan-balance provision that was in the voided statute.
Merit selection for all?
Senior Judge Michael Scopelitis has studied merit-selection systems and supports them to choose judges not just in large counties like Hamilton, but everywhere in the state. He said it was considered once.
When the General Assembly chose in the early 1970s to appoint jurists to the Indiana Court of Appeals and Supreme Court through merit selection, Scopelitis said an early bill proposed merit selection for all trial courts in the state.
“It was local politicians in the various counties that complained,” he said. “Eventually they gutted the bill to exclude all counties except St. Joseph County and Lake County.”
Gov. Frank O’Bannon appointed Scopelitis to fill a vacancy in St. Joseph Superior Court the third time he was nominated for a vacancy by the St. Joseph County Judicial Nominating Commission. While he endorses merit selection, he says no method of choosing judges is perfect.
“You look at the essence of corruption in the judiciary, it’s electing judges through competitive elections,” Scopelitis said. As a trial lawyer before becoming a judge, he said when he appeared before an elected judge outside his home county, he’d wonder if opposing counsel had contributed to the judge’s campaign, and whether that could influence the case.
In the past few years, there were Statehouse proposals to eliminate merit selection in St. Joseph County, and Scopelitis said he was proud to testify against them. For opponents, “The biggest argument is merit-selection judges are not accountable to the people.” But he noted judges must stand for retention votes, and some have been tossed out. He also noted elected judges have no contested elections upwards of 70 percent of the time.
Scopelitis said merit selection often is criticized as being too political, but he dismisses that claim.
“I’m an example that’s not true,” he said. “I was never politically active. I wasn’t a joiner. I had no political contacts at all. I was just a sole practitioner for 28 years. I managed to get nominated by the committee and got selected by the governor despite the fact that I had no strings that could be pulled for me.”
Members of the IBLC say they prefer direct judicial elections for all voters in the state, though some say they could consider merit selection if it was the method by which all state trial court judges were chosen.
“Judges are probably one of the most important elected officials in a county,” Taylor said. “If we allow the governor to make the decision for Marion County, we should allow the governor to make the decision for the rest of the state.”
Merit selection and diversity
Some IBLC members believe merit selection could decrease racial and gender diversity on the trial court bench, but merit-selection supporters disagree. Indiana’s experience shows mixed results:
• In Allen County, where 12.1 percent of the population is black, there are no black jurists on the Superior Court bench, and three of nine Superior Court judges are women.
• In Lake County, where 25 percent of the population is black, 31.25 percent of the Superior Court judges (five of 16) are black. Likewise, five of the 16 judges are women.
• In St. Joseph County, where 13.3 percent of the population is black, there are no black jurists on the Superior Court bench, but half of the eight Superior Court judges are women.
Marion County, where 28 percent of the population is black, has a Superior Court bench that’s 22.2 percent black (eight of 36 judges). There are 15 women among the 36 Superior Court judges.
“Even though you may not like merit selection, it at least is as good if not better at promoting diversity on the bench … than popular election,” Court of Appeals Judge Cale Bradford, a former Marion Superior judge, said last month while testifying for the Marion County judicial-selection bill.
But even academic assessments on the subject are mostly inconclusive. As director of research and programs at the American Judicature Society in 2013, Iowa attorney K.O. Myers authored “Merit Selection and Diversity on the Bench,” which appeared in Indiana Law Review Vol. 46, No. 1.
“The takeaway message is that minority and female judges are no more or less likely to reach the bench through merit selection or judicial elections,” Myers wrote. “There seems to be some indication that minority judges are selected slightly more under merit selection systems, and women are selected slightly more in states that elected judges, but neither system is clearly better than the other.”•