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Indy judicial selection bill revised: Bar groups out, vote in

March 29, 2017

Indianapolis voters would elect four of 14 members of a proposed committee to nominate Marion Superior Court judges under a revised bill that eliminates bar group representation on the panel and continues to draw opposition from African-American lawmakers and community members.

The Senate Judiciary Committee on Wednesday overhauled House Bill 1036 and moved it to the full Senate. The amended bill removes four representatives of the proposed Marion County Judicial Selection Committee that had been reserved for members of the Indianapolis Bar Association, Marion County Bar Association, Indiana Trial Lawyers Association and Defense Trial Council of Indiana.

Indianapolis Republican Sen. Mike Young’s amendment divides Marion County into four districts, each of which would elect a representative to serve on the panel that would recommend candidates to fill judicial vacancies. If the bill is approved, the committee would make appointments to fill open seats on the 36-member bench, and judges would face retention votes.

The bill cleared the committee 10-0 despite concerns from members in both parties that it still might not be constitutional. The General Assembly must adopt a new method of election Indianapolis judges this session after the 7th Circuit Court of Appeals in 2015 invalidated the former “slating” system that guaranteed partisan balance. That system deprived residents a meaningful vote, the 7th Circuit ruled, because each party “slated” the exact number of candidates for the guaranteed number of judgeships.

If the General Assembly fails to act, Marion Superior Judge Marc Rothenberg warned, the federal government would impose a new judicial selection on Indianapolis. Rothenberg said a consensus of judges supports merit selection.

“The issue here is how do we create a system that’s fair to all groups and do it in a way that the public has a chance to participate,” Young said, explaining his amendment. “Some of the testimony I’ve heard here has given me a little pause as to whether we stand on firm legal ground.”

African-American lawmakers and community members have warned that a merit-selection system in Marion County is likely to be face tests in court. That’s because Marion County would join Lake, Allen and St. Joseph as the only counties without direct election of judges, and those counties also have the largest percentage of minorities of any Indiana counties. Hamilton County has a larger population than St. Joseph County but still has direct elections of Superior Court judges.

“I will be fighting you for as long as I am able,” attorney Aaron Haith told lawmakers after laying out the potential constitutional problems with House Bill 1036.

Rev. David W. Green Sr., president of the Concerned Clergy of Indianapolis, warned lawmakers that depriving residents of a vote for judges “will be met with resistance from the community at large and especially the minority community.” He said the bill was “about the disenfranchisement of Marion County voters.”

Attorney Nathaniel Lee said lawmakers were replacing one problematic judicial selection scheme with another. He said problems with the former system that the 7th Circuit struck down could have been resolved by simply tweaking the statute to allow parties to nominate more candidates than available judgeships. He opposes merit selection and foresees fresh problems with the proposed judicial selection panel.

“You’re trying to treat African-American citizens differently than Caucasian citizens,” Lee told the committee. “We overreacted to this federal court decision,” he said, noting the proposed system introduces “a case you can’t win.”

The amended bill would create a 14-member committee that would recommend three candidates to fill open seats on the Marion Superior bench. Along with four elected members, House and Senate Republican and Democratic leaders would each have one appointment, Marion County Democratic and Republican Party chairs would appoint two members each, and the chief justice or her designee and a member of the Court of Appeals would serve.

Court of Appeals Judge Cale Bradford defended the proposed system and said merit selection generally is as good or better at assuring diversity on the bench than direct election. But Sen. Lonnie Randolph, D-East Chicago, said that hasn’t been Indiana’s experience. He once supported merit selection, but no longer does based on that experience.

Randolph supports direct election of judges, but Bradford said that would end political diversity on the Marion County bench, likely driving out all Republican judges. House Bill 1036 also would retain partisan balance in the Indianapolis judiciary, ensuring no more than 18 judges could be of the same political party.

“It looks like a rigged system,” Sen. Tim Lanane, D-Anderson, said of the bill.

Several speakers, including IndyBar President Nissa Ricafort, said they were concerned about the bill’s removal of requirements that some of the members be lawyers. “We do believe there is a benefit to having lawyers on this committee,” she said, adding the bar joins judges in supporting merit selection.

Despite concerns about the bill, the panel voted it from committee 10-0, since a new system must be in place this year. “I think this bill is a work in progress,” said Sen. Greg Taylor, D-Indianapolis, who’s been an outspoken critic of the legislation.

Among other changes, the revised bill strips the committee of its prior requirement to make recommendations on whether judges should be retained. Young said bar groups traditionally have done that and questioned the wisdom of granting that responsibility to the committee. The amended bill also would permit the governor to appoint judges to fill vacancies in unexpired terms from from candidates recommended by the committee.
 

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