Opinion and Forefront

BOEHM: Judicial elections need lawmaker action

December 1, 2012

Ted BoehmMarion County’s trial judges are selected by a process used nowhere else in the state, and, as far as I know, nowhere on this planet. In the May primary elections, the two major parties each nominate only half the number of judges that will be elected in the general election.

The result, of course, is that the November election is meaningless because all the primary winners will be elected.

Polls of Indianapolis Bar Association members have long shown overwhelming support for replacing the current process of electing Marion County judges with a merit system. The political stars have not aligned to get that job done, but we may have an opportunity this year.

Shortly before last month’s elections, Common Cause, represented by the Indiana Civil Liberties Union, asked a federal court to declare that the system violates the federal constitution.

In short, Common Cause argues that this system denies a meaningful vote to the majority of citizens who do not vote in either primary. Independents and minor-party adherents have no voice in judicial selection. Even those who do vote in the primary select only half the judges.

If Common Cause succeeds in pressing its federal lawsuit, change must come. The overwhelming Republican majorities in the General Assembly will not be eager to let increasingly Democratic-leaning Marion County voters select judges in partisan elections, so some form of merit system might have a chance.

Indiana appellate judges are appointed by the governor from three candidates chosen by a seven-person nominating commission. The commission is chaired by the chief justice with three nonlawyer members appointed by the governor and three lawyers elected by the lawyers of the state, but it is not the only form of merit system.

Many objections to a merit system assume problems that can be avoided.

Current judges should not be concerned. Incumbents were grandfathered or grandmothered in the past when shifting to merit systems. Fairness to those who have devoted their careers to the judiciary, often at significant financial sacrifice, dictates doing the same.

Second, there is no reason a merit system must give statewide officials control of the local judiciary. A local judicial nominating commission can be tailored to meet the demographic and political circumstances of the county.

Lake and St. Joseph counties have such systems. Their nominating commissions are chaired by an appointee of the Supreme Court, but the other members—eight in Lake, six in St. Joseph—are equally divided between lawyers elected by the lawyers in the county and nonlawyers selected by diverse local officeholders. Lake’s commission is required to have at least two minority members, and the St. Joseph commission members are required to come from different political parties.

The result is that the commissions are controlled by local people with equal input from local lawyers, who are best equipped to evaluate judicial performance, and local citizens who are selected in a manner to promote diversity of backgrounds, ethnicity and points of view.

Third, some express concern that an appointive process will reduce minority representation on the bench. But the opposite has been the case on the appellate bench and in counties with locally composed nominating commissions. Appointments by one or more local officials who run countywide must be sensitive to assuring minority representation on the bench, just as governors have been in appointments to the appellate bench.

In sum, experience teaches that merit systems can be tailored to local needs and have served us well where they have been deployed. The General Assembly can pre-empt judicial intervention by acting now.•

• Boehm is a retired Indiana Supreme Court justice who previously held senior corporate legal positions. Send comments on this column to ibjedit@ibj.com.

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