Moving forward on merit selection: Judiciary, bar association support statewide change

An effort that began more than 50 years ago is being resurrected and could eventually reshape how judges are selected throughout Indiana.

Stars are aligning for a multi-faceted thrust toward merit selection and retention for all trial judges statewide, an endeavor that’s been brewing behind the scenes for years but is now gaining more steam from the state’s judiciary and largest bar associations.

While no guarantee exists that lawmakers would even consider such a change, key players supporting the concept in the legal community agree that it would help secure judicial independence and improve the state’s judiciary by removing election campaigning components. 

Click here to read the ISBA House of Delegates’ resolution supporting merit selection and retention for all trial judges statewide, as well as proposed legislation that will be sent to the Commission on Courts.”This debate on selecting judges is as old as the country, and this is all a fascinating echo of how we got started on this path here,” Indiana Chief Justice Randall T. Shepard said. “There are people who advance the democratic ideal that they should be able to elect a candidate, and that’s a very American way of looking at it. But that doesn’t take into effect how you feel if you end up in court for a custody battle and learn that your ex-spouse made a large campaign contribution to the particular judge. It’s important to think forward how you’ll feel that morning.”

So far, the Indiana State Bar Association is leading the way with a resolution and proposed legislation that could be taken to lawmakers as soon as the next session of the General Assembly. The ISBA’s House of Delegates adopted the proposal during its annual meeting in early October, supporting statewide merit selection for trial judges and outlining a potential process for choosing local jurists.

For all counties, bipartisan commissions made up of attorneys and civilians would be formed to review and interview potential jurists before submitting finalists’ names to the governor for appointment. The chief justice would have the duty to appoint a judge if the commission didn’t do so within 30 days. That group would also provide periodic, meaningful evaluation of judges and share those findings with the public prior to any retention election, according to the proposal.

The ISBA also recommends Allen, Lake, Marion, St. Joseph, and Vanderburgh counties have 11 commission members. A group of remaining large counties would have nine members, and smaller counties would have seven-member commissions.

The final language of the proposal came from the ISBA’s Improvements in the Judicial System Committee in the past year, but work began at least four years ago through a subcommittee chaired by Indianapolis attorney Philip S. Kappes, who has been practicing law for six decades and watched firsthand the changes in the appellate judicial system about 40 years ago.

He doesn’t want lawmakers to immediately vote on this issue but instead wants the bar associations and judiciary to get input from the public and interested organizations. Then, lawmakers can see what’s possible.

“We don’t pretend to have the final answer, but we hope our ideas can start the discussion again,” he said. “That proposed legislation can be the lightening rod for this thing, and we hope people can take that and chew on it.”

The Indianapolis Bar Association has also offered a resolution supporting merit selection in the past and continues discussing the issue, said Julie Armstrong, IBA executive director.

History shows that the idea for all-merit selection has been posed in some form since 1948, but lawmakers seriously started eyeing the concept in 1962 when state Supreme Court jurists were elected. One in particular authored a decision that angered a particular interest group, and that organization successfully waged a campaign to defeat him. A result was support for removing elections from the system. Though the effort failed in subsequent years, it eventually gained enough support in the late 1960s. At that time, two lawmakers introduced a proposed constitutional amendment that would have provided for merit selection of all Indiana judges. A watered-down version eventually made it through two legislative sessions, with only the appellate courts undergoing the change – 58 percent of voters approved it in 1970, and the constitutional restructuring occurred in 1971.

 That system remains, though trial courts have tried various methods – including Lake and St. Joseph counties that saw legislative changes in 1973 put them on the merit selection system. Of Indiana’s 92 counties with trial courts, all but four hold partisan elections to select Superior and Circuit judges. Allen and Vanderburgh counties use non-partisan elections open to anyone who wants to run, while Lake and St. Joseph counties use the merit selection system where a local nominating commission reviews applicants, submits names to the governor for consideration, and then requires those appointees to face a retention vote on the ballot within four to six years.

“We hope people recognize how well the appellate court and Supreme Court have been functioning, that this quality piece of the judiciary speaks to the process,” said Kappes, adding perhaps now’s the right time.

Opposition to the idea exists, as illustrated by failed legislation during the last session that called for ending merit-based selection. The sponsor was Rep. Ryan Dvorak, D-South Bend, who is now a member of the Commission on Courts and was recently inducted to the state’s bar.

At a recent meeting, Dvorak voiced concern about the concept because it seemed to give too much authority to the governor, who makes the final choice from the nominees submitted for consideration. He worried about the elected governor coming up with his own litmus test, deciding who might be the best judge based on the governor’s agenda.

The Commission on Courts is expected to discuss merit selection and retention at its next meeting, as it has done at several previous meetings. The legislative study committee has already delved into public awareness about merit selection and retention and those judges coming up for a vote, and an Oct. 3 meeting was packed with discussion about the Lake and St. Joseph judicial-selection systems. An envoy of elected, bar association, and court officials traveled to Indianapolis to tell the commission that the St. Joseph system shouldn’t be changed. They also said Lake County’s system should be expanded to include the four county divisions of the Superior Court that are elected and handle small claims and criminal cases involving potential prison sentences of less than three years.

Justice Frank Sullivan urged the commission to not change the system in St. Joseph County, where he is from, and Justice Robert Rucker did the same for his home base of Lake County.

St. Joseph Superior Judge Michael Scopelitis, who is a governor appointee, testified that judicial elections are a serious threat to judicial independence. He cited a personal example where a local interest group put up a billboard against him after he ruled part of a business ordinance was unconstitutional.

“All they cared about was whether I agreed with their agenda, not whether I was fair and impartial or whether it was a well-reasoned opinion,” he said. “That’s the threat. You’re not a better judge because of merit selection; it’s just a better process.”

Aside from what the legislative commission is already considering, more input may be coming from the state’s top judicial leaders. The state Judicial Conference’s strategic planning committee is exploring the topic and is expected to finalize drafts in coming months. Recommendations are expected to be presented to the conference Oct. 31, according to Marion Superior Judge Mark Stoner, who co-chairs the committee with Elkhart Circuit Judge Terry Shewmaker. Judge Stoner said everything is still in draft form and he’d prefer to not discuss the issues until more is finalized.

But Indiana Court of Appeals Chief Judge John Baker, who is a member of that committee, said in early September that monumental changes are being contemplated.

“Everything imaginable is being discussed,” he said, noting that he expects the judiciary to offer a court-reform proposal on the heels of a local government reform report issued late last year. That report was the one created by a commission cochaired by Chief Justice Shepard, who is a proponent of this effort and court restructuring and also a member of the Commission on Courts.

The chief justice cited high-dollar campaigning in other states as evidence of the potential election dangers.

“There’s not a lot of coverage on this point in Indiana, but one only needs to look around at what’s happening in neighboring states to see how interestgroup politics and money has influenced judicial elections,” he said. “It’s important to think about what kind of justice the public expects or can hope for, having that fair and impartial decision maker. Although a situation might really be fair, we don’t feel good about it because there’s not an appearance of fair play. Perception and reality are close first cousins.” •