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Lawmakers advance bill for picking Marion County judges

January 26, 2017

Despite public concerns that a bill for choosing Indianapolis judges would reduce diversity on the bench, deprive Marion County residents of the right to directly elect jurists and elevate political considerations, a House committee Wednesday advanced a merit-selection measure supported by lawyers, judges and the business community.

House Bill 1036 cleared the House Courts and Criminal Code Committee 10-3, with Democratic representatives Ryan Dvorak of South Bend, Ryan Hatfield of Evansville and Matt Pierce of Bloomington opposed.

Bill author Rep. Greg Steuerwald, R-Avon, said the bill was the result of consensus-building with stakeholders and an effort to retain partisan balance on the Marion Superior bench. “A lot of time and a lot of thought has gone into this,” he said.

Steuerwald said Marion County courts were unique because they handle many appeals of state actions and that people around the state were subject to rulings that come out of the courts. For that reason, he said it was essential that the courts maintain an equal split among Democratic and Republican judges in heavily Democratic Marion County.

Lawmakers this session must replace a statute for electing Marion County that was invalidated as unconstitutional by the 7th Circuit Court of Appeals.  The invalidated election law facilitated a system whereby both parties “slated” ballot positions with judicial candidates who made five-figure financial contributions to their respective parties. Each party filled its ballots after primary elections with the exact number of judges to be elected. The 7th Circuit ruled the system didn’t provide voters a meaningful general election vote.

The bill proposes creation of a 14-member merit-selection commission: Four appointed by Indiana House and Senate leaders from both parties; two each appointed by Marion County Democratic and Republican party chairs; one each appointed by the Indianapolis Bar Association, Marion County Bar Association, Defense Trial Counsel of Indiana and the Indiana Trial Lawyers Association; one judge of the Indiana Court of Appeals and one Indiana Supreme Court justice. The panel would vet candidates for judicial vacancies and recommend three to the governor for his appointment.

Opponents, including African-American lawmakers and community leaders who testified Wednesday, warned the proposed system could give rise to constitutional equal-protection complaints. Several speakers noted that Indianapolis would join Lake, Allen and St. Joseph counties as those with high minority populations that are also the only Indiana jurisdictions where judges aren’t directly elected.

“It is a disenfranchisement of Marion County voters,” said Rep. Cherrish Pryor, D-Indianapolis.  While the proposed system would give voters the option of retaining judges or not, she said, “A retention vote is not a vote. … We don’t get first crack at who will represent us.”

Rev. David W. Greene Sr., president of the Concerned Clergy of Indianapolis, said voters in Indianapolis deserve to elect judges directly just as voters do in surrounding counties. He said the legislation showed a lack of respect for Marion County voters and unequal treatment that amounted to voter suppression.

“I believe the people should have input into who those judges are,” Greene said.

Court of Appeals Judge Cale Bradford, though, argued that research shows that benches tend to grow more diverse under merit selection than through direct election. “It gives everybody a voice,” he said, noting the panel includes representatives of all three branches of government and voters ultimately decide whether judges stay or go. He noted that Common Cause of Indiana, which successfully sued the state over the prior Marion County judicial election statute, supports the bill.

Common Cause executive director Julia Vaughn gave a qualified endorsement of the bill, though she urged lawmakers to write into the bill provisions that would bar elected officials or party officers from serving on the proposed selection committee. She said no system would be perfect, but she was concerned that under the proposed system, “politics will continue to play a major role in selecting judges in Marion County.”

Some speakers noted that in smaller counties, constituents are likelier to know candidates for judges, whereas that may not be the case in a metropolitan county like Marion that’s served by three-dozen superior court judges. “I think that’s a farce,” said attorney Aaron Haith, likening such arguments to “plantation politics.”

Marion Superior Judge Heather Welch said the court’s 36 judges held a consensus that the proposed system would provide a meaningful vote and promote a diverse, talented, qualified and stable judiciary.

“I’ve never once been asked to make a decision based on race, gender or politics,” she said. Judges apply the law to facts of cases. “That’s what the judiciary is expected to do.”

Indianapolis Urban League director of education, family services and housing Mark Russell noted retired Indiana Supreme Court Justice Ted Boehm’s concerns that the proposed merit-selection system yields too much selection power to the General Assembly.

Indianapolis Bar Association President Nissa Ricafort and John Kautzman, chair of IndyBar’s Independent Bench Committee, spoke in favor of the bill. Ricafort said IndyBar’s board of directors overwhelmingly support the legislation.

“We think that this is a good bill. It’s the right thing for the Marion County judiciary. It’s the right thing for the Marion County electorate,” Kautzman said.

The proposal also was endorsed at Wednesday's hearing by Defense Trial Counsel of Indiana and the Indianapolis and Indiana chambers of commerce. The bill now moves to the full House.     

 

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