By Kevin Betz
By initiating a constitutional amendment based on misinformation, three Indiana Republican state senators, now joined by multiple others, have proposed a radical resolution to eliminate citizen involvement in the retention vote of appellate judges, changing the current selection process that has been in place for 50 years. This proposal also severely decreases judicial independence and increases the political pressure on our state’s appellate judiciary. Indeed, if successful, the proposal would give the legislative branch far greater control over the Indiana state appellate judges and justices. It would also further embed in Indiana’s Constitution more systemic racism.
Senate Joint Resolution 16 proposes to alter the delicate balance struck in 1972 with the current selection process for appellate judges. With no apparent problems to fix with the current selection process and no discussion or explanation by these Republican senators for this radical proposal, they have initiated this far-reaching constitutional amendment. It is apparently based on nothing other than misinformation and the existing Republican supermajority control in the state Senate and House of Representatives.
Within days of its below-radar introduction on Jan. 25, there is already a coalition of organizations fighting this. It includes a swift and direct condemnation by the Indiana State Bar Association, plaintiff lawyers as well as defense lawyers. Any coalition that joins plaintiff and defense lawyers rarely occurs, so that alone is a measure of how wrongheaded this proposal is.
The resolution has been assigned to the Senate Judiciary Committee, but it has not been scheduled for a hearing at this point. Among the three initial senators to author or co-author this proposal is state Sen. Erin Houchin, who is also the assistant majority whip for the Republican caucus. She has provided the only known explanation for this action to change the 50-year-old selection process for Indiana appellate judges, and some of it is totally false. For example, Sen. Houchin was quoted as stating: “The primary voice in the nominating process now is the left-leaning State Bar Association.” The truth is that the Indiana State Bar Association has no formal or even informal role in the nominating process. Sen. Houchin is just plain wrong.
Regardless of the misleading political rhetoric, this proposal dramatically shifts control over our appellate courts to the Legislature by eliminating two independent attorneys from the Judicial Nominating Commission and replacing those independently elected attorneys with two political appointees by the speaker of the House and the president of the Senate. This shift creates a JNC dominated by the governor with three appointees and two by heads of legislative branch — five of the seven seats. The other members of the JNC would still be the Indiana chief justice, but only a single attorney selected by his/her peers would remain. This JNC will still select three judicial nominees from all applicants to send to the governor for a selection. This is where the current selection process ends, though, and a new process would begin: The next step after the governor’s selection would be another transformation to a wholly new confirmation vote by the Indiana Senate where the candidate must garner 26 senator “yes” votes out of the 50 senators.
As if that is not enough involvement by the legislative branch, the next new twist is to require the candidate to apply again for the judgeship in two years to the Indiana House of Representatives. The candidate must earn a vote of at least 41 of the 100 representatives (the candidate fails to be retained if the vote against retention reaches 60 votes out of the 100 representatives). These House votes would occur two years after the Senate confirmation and then again 10 years after the Senate confirmation. The House would again vote to retain (or not) every 10 years thereafter. But that’s not an end to the oversight by the JNC over appellate judges and justices. With this newly configured and far more political JNC, the JNC may make a recommendation at any time to the Indiana Supreme Court to oust or censure any appellate judge or justice. Upon such a recommendation by the JNC, the Supreme Court must conduct a hearing on whether to oust or censure the justice or judge.
As to the Legislature’s involvement and oversight of the judiciary, this new process introduces at least 26 state senators and at least 41 state representatives into the Indiana judicial selection and retention process, not to mention the Speaker of the House appointee and the president of the Senate appointee to the JNC. These changes would dramatically increase the role of the Legislature not only in the selection process, but also significantly move into an oversight role of judges. So much so that it also greatly decreases the independence of the judiciary and would create a chilling effect on appellate judges. The judges would constantly have this legislative oversight on their mind when making rulings and issuing opinions.
There are more subtle changes that are nonetheless significant. For example:
• Current judges and justices would need to apply for confirmation by the Senate by a majority vote upon the expiration of their terms. This may have consequences because there are nine Court of Appeals judges who were appointed by Democratic governors and six appointed by Republican governors. (One Democratic appointee just announced his retirement, which will make it 8-7.) The Indiana senate holds a supermajority of 39 Republicans to only 11 Democrats.
• The chief justice currently provides the State of the Judiciary address, but under the proposed resolution also would be compelled to provide “such other reports as may be requested by the General Assembly.”
• The JNC shall also select the chief justice under the proposal. No longer would the head of the Indiana judiciary be selected by the other members of the Supreme Court, as is done currently.
In sum, this proposed constitutional amendment would put the Indiana appellate judiciary under the thumb of the Legislature, creating radical and dangerous consequences to the delicate checks and balances currently in place.•
• Kevin Betz is senior emeritus partner at Betz+Blevins and has practiced civil rights law for more than three decades in Indiana. Opinions expressed are those of the author.