Opinion and Forefront

BOEHM: Courts free to 'call 'em like they see 'em'

March 31, 2012

Ted BoehmThe Indiana Supreme Court recently ruled that Gov. Daniels, a Republican, can appoint the successor to removed Secretary of State Charlie White, also a Republican. The court rejected the Democratic Party’s argument that the office should be filled by Vop Osili, the Democratic candidate who received the second-highest number of votes for the office in the 2010 election.

Both parties had plausible arguments, but the Supreme Court ruled unanimously that the governor gets to fill the position.

The decision turned on the interplay between two statutes, one dealing with ineligible candidates, the other with vacancies in office. The former provided for the second-leading candidate to fill an office and the latter for the governor to fill it.

What is noteworthy is that the court, whose members come from different political parties, ruled unanimously in this politically charged dispute.

We have come to expect legal rulings, not political partisanship, from the Indiana appellate courts.

The current Supreme Court is composed of three members appointed by Republican governors and two appointed by Democrats. From 1993 until 2010, there were three Democratic and two Republican appointees.

Since Chief Justice Randall Shepard joined the court 25 years ago, the court has addressed several cases with obvious partisan political interests at stake, beginning with the court’s ruling in 1988 that Evan Bayh was eligible to run for governor despite claims that he had lost his Indiana residency by living in Washington, D.C. Others involved the eligibility of the mayor of Terre Haute, the redistricting of the Indianapolis City-County Council, and the overturning of the election of the mayor of East Chicago for election irregularities.

All these cases were decided unanimously except the East Chicago matter, in which there was a 3-2 split, but not along party lines.

This resolution of disputes by reasoned decisions applying the law as the court sees it, free from partisan considerations or outside influences, is important to everyone whose lives can be affected by a court ruling. Indiana’s appellate courts are the envy of most of our surrounding states.

We have enjoyed this freedom from outside influence for decades. Part of this is due to the leadership of retiring Chief Justice Shepard, whose many kudos are well deserved. But the chief justice’s seat on the bench, and those of his colleagues, are due to Indiana’s method of selecting its appellate bench.

Unlike Illinois, Ohio, Michigan and many other states that elect their Supreme Court justices, Indiana’s appellate courts have not become battlegrounds of competing factions, and have not been required to raise large sums to fund a campaign. Indiana’s justices are chosen through a merit selection process that requires no money to be raised and no obligations undertaken to interest groups as the price of electoral support.

Despite the recognition of the Indiana Supreme Court as one of the best in the country for many years, we still face repeated calls to revise the selection process to inject either some form of contested election or to give the legislative branch some means of supervision over the courts. We should thank the court for handling the White matter as it did, but recognize that fair and reasoned decisions from our courts are the product of the people who sit on those courts.

The quality of our judges and their freedom to call ’em as they see ’em are directly related to the process by which they come to the court. Proposals to subject judicial selection to some form of legislative or voter action are calls to inject politics and money into a realm that is mercifully and beneficially free of both.

The White case is another reminder that we have a good bench in place, and can look forward to more of the same if we don’t start tinkering with merit selection.•

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Boehm is a retired Indiana Supreme Court justice who previously held senior corporate legal positions and helped launch amateur sports initiatives in Indianapolis. Send comments on this column to ibjedit@ibj.com.

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