For the second time this year, the Indiana State Bar Association is publicly opposing legislation targeting judicial selection in Indiana, this time speaking against a bill that it says would “unnecessarily change a working system” for judicial selection in Lake and St. Joseph counties.
The ISBA on Wednesday released a statement in opposition to House Bill 1453, which passed the Indiana House earlier this month. The bill is also opposed by the judges of the Lake and St. Joseph superior courts, as well as the bar associations in both counties.
Rep. Michael Aylesworth, the Hebron Republican who introduced HB 1453, described the legislation as a simple “reset” of the judicial selection process in the northern Indiana counties. Along with Marion and Allen counties, Lake and St. Joseph counties recommend their Superior Court judge nominees through a merit-based process, rather than through judicial elections. Judges then are appointed by the governor.
HB 1453 would reduce the number of members on the Lake and St. Joseph judicial nominating commissions to five, with three — including the chair —appointed by the governor and two appointed by the county commissioners. Those commissions would send the names of the five most qualified candidates for the Superior Court bench to the governor, up from the three names currently submitted by the Lake County JNC.
Aylesworth said he heard from Lake County attorneys who felt that the local judicial selection process was “skewed” and that the names of the finalists were a foregone conclusion before the interview process began. Rep. Jake Teshka, R-South Bend, told lawmakers he had heard similar concerns from lawyers in St. Joseph County.
The ISBA, however, said the merit selection process in the two northern Indiana counties has worked well to “produce qualified, diverse candidates.”
What’s more, the bar said, the bill would threaten judicial independence.
“This bill unnecessarily politicizes the vetting process for judicial candidates and shifts that responsibility to the executive branch,” the statement from the ISBA said. “The current system allows for vital input to be shared from experienced, local practitioners and a Supreme Court/Court of Appeals judge to ensure the qualifications of a judicial candidate are properly vetted.
“In contrast, the current bill would allow the governor to select the majority of nominating commission members (three of the five) with no requirement that the appointees have any legal training or connection to the legal community. Likewise, there is no guarantee that local attorneys would even be part of the judicial selection process.”
Current law provides that the Lake County JNC be comprised of four attorneys and four nonattorneys, while the St. Joseph body has three attorneys and four nonattorneys. The Lake County statute also sets diversity benchmarks.
Each county JNC is chaired by a member of the Indiana Supreme Court — Justice Geoffrey Slaughter in Lake County and Justice Christopher Goff in St. Joseph County. The legislation would make the Indiana chief justice or her designee an ex officio non-voting member.
Under HB 1453, there is no requirement that any attorneys serve on the JNCs, nor are there any diversity requirements, other than existing language requiring the JNCs to reflect “the composition of the community.” Current law also prohibits commissioners from considering candidates’ political affiliations.
Attorney members of the Lake and St. Joseph JNCs told Indiana Lawyer that commission members do not discuss politics during their deliberations. Attorney members raised concerns about how HB 1453 affect diversity, both on the judicial nominating commissions and among the candidates who are sent to the governor.
The Superior Court benches in both counties sent letters to the Indiana General Assembly asking that the statutes governing judicial selection in their counties not be amended in the manner proposed in Aylesworth’s bill. The local bar associations in the northern Indiana counties likewise opposed the measure, with the St. Joseph County Bar Association suggesting that the issue be sent to a summer study committee.
“The ISBA has a history of recognizing that local bars are best suited to determine the process for selecting their trial court judges. For more than 40 years, Lake and St. Joseph Counties have had a merit selection system which allows for citizens, lawyers, and appellate judges to screen and select the candidates for appointment by the governor,” the ISBA said in its opposition statement.
“In summary, HB 1453 unnecessarily discards a working system and replaces it with one primarily overseen by the executive branch, without counsel from those who interact with the court on a daily basis.”
The Indiana House passed HB 1453 with a 63-31 vote on Feb. 8. The bill has been sent to the Senate but has not yet been assigned to a Senate committee.
Also during the 2021 session of the Indiana General Assembly, the ISBA announced opposition to Senate Joint Resolution 16.
Similar to HB 1453, SJR 16 would fundamentally change the merit selection process for Indiana’s appellate judges, including judges of the Indiana Court of Appeals and justices of the Indiana Supreme Court. Among other things, the resolution would reduce the number of attorneys on the Indiana Judicial Nominating Commission, which interviews appellate court candidates, give legislative leaders appointments to the JNC, and require appellate judges to be confirmed and retained by the Indiana Senate and House, respectively.
“We have concluded that the legislation would politicize our appellate judicial positions and threaten judicial independence,” a January letter signed by ISBA President Michael Tolbert said. “For that reason, the ISBA intends to advocate against this legislation.”
SJR 16 was assigned to the Senate Judiciary Committee but at IL deadline had not been scheduled for a hearing. Feb. 23 is the last day for final votes on Senate bills in the Senate, and the Judiciary Committee currently does not have a meeting scheduled before that date.