ISBA fights legislation to end retention votes, ‘politicize’ appellate bench

A measure that would strip Hoosier voters of the power to retain appellate judges and Supreme Court justices — transferring that authority to the Legislature — has drawn fire from the Indiana State Bar Association, which warned the proposal would politicize the appellate bench and threaten the independence of the judiciary.

ISBA announced Wednesday it will fight Senate Joint Resolution 16. That legislation would fundamentally change how judges of the Indiana Court of Appeals and Indiana Supreme Court justices are chosen and retained. It also would shake up the Indiana Judicial Nominating Commission, dumping attorneys elected to the commission by their peers in favor of members appointed by leaders of the Indiana House and Senate, among many other changes.

Tolbert

“We have concluded that the legislation would politicize our appellate judicial positions and threaten judicial independence,” said a Wednesday letter to ISBA members signed by President Michael Tolbert. “For that reason, the ISBA intends to advocate against this legislation.

“The resolution would alter the process of how appellate level judges are appointed in Indiana, including the removal of lawyers from the nominations committee (in favor of Senate and House appointees) and a requirement of any nominee to go before Indiana’s legislative body for a confirmation hearing,” the letter said. “In addition, it would remove the process that allows Indiana citizens to vote on judicial retention.”

The resolution is authored by Republican Sens. Erin Houchin, Michael Young and Chris Garten. While the resolution has been assigned to the Senate Judiciary Committee, it has not yet been scheduled for a hearing on upcoming committee agendas.

Houchin said in a statement Thursday that the legislation is motivated by a couple of concerns. “First, I believe that the Legislature has ceded too much of its authority to the other branches of government,” she said, noting as examples Gov. Eric Holcomb’s pandemic executive orders and judicial reforms favoring pretrial release programs over cash bail.

“Second, I believe the appellate court and Supreme Court justices’ ideology should reflect that of the people of the state of Indiana,” Houchin said, arguing politics is already part of the selection process. “… The primary voice in the nominating process now is the left-leaning State Bar Association. I don’t believe the political views of the bar association reflect the views of the majority of the citizens of the state of Indiana. The Indiana General Assembly is the purest expression of the will of the people.”

The JNC is the body that interviews and recommends applicants to fill vacancies on the Indiana Court of Appeals and Supreme Court. The chief justice chairs the commission, which is comprised of three attorney members chosen by Indiana lawyers and three nonlawyer members appointed by the governor. The JNC interviews applicants for judicial vacancies and recommends finalists to the governor, who appoints a judge or justice from the list of finalists.

SJR 16 would reduce the number of attorneys on the commission selected by members of the bar from three to one. Those attorney members would be replaced by a member chosen by the speaker of the House and the president pro tem of the Senate.

The resolution would give lawmakers unprecedented influence over appellate courts, including the power to block judicial appointments or remove judges from the appellate bench. Voters would lose their direct voice in the retention of Court of Appeals judges or Supreme Court justices under the proposal. Among other things, it would:

  • Require judges appointed by the governor be confirmed by the Indiana Senate.
  • Require retention votes for appellate judges and justices in the Indiana House. A 60% vote against a judge would require removal.

Currently, appellate judges and Supreme Court justices must stand for retention votes in the first general election following their appointment and then every 10 years afterward. Judges are retained with a simple majority of votes, and no judge or justice has lost a retention vote since the system was adopted in the 1970s.

Houchin said that argues for change. “I don’t think it can be fairly argued that the retention vote is an effective check on the judiciary.”

The bar urged its members to review the resolution and contact lawmakers to express concerns. The ISBA noted joint resolutions must pass in two legislative sessions, with an election between the sessions, then be approved by voters.

“While this extends the timeline of the legislation, we still must work hard to help legislators understand why politicizing judicial positions is not in the best interest of Indiana residents,” the letter said.

Tolbert said Thursday ISBA members responded positively to the letter. “Our members understand the value of a truly independent judiciary as it relates to the administration of justice for the public we serve,” he said in an email.

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