Judicial merit-selection override a possibility

The state's top executive has rejected the idea of scrapping merit selection in St. Joseph County, but it remains unclear whether lawmakers will attempt to override that veto during a special session.

On the final day he had to take action, Gov. Mitch Daniels late Wednesday afternoon used his veto power for the third time this session and rejected House Enrolled Act 1491, which called for nonpartisan elections to choose St. Joseph County's eight Superior judges for six-year terms. It also called for the creation of a sixth Court of Appeals district and panel starting in July 2011.

In his veto message, Daniels wrote: "The current method of selecting judges for the St. Joseph Superior Court has prevailed successfully for 35 years. It is a model to be emulated, not discarded. It is not broken; it requires no repair. It has produced outstanding jurists and contains sufficient measures of public accountability. I believe it neither necessary nor wise to re-politicize the courts of St. Joseph County."

On the appellate panel aspect, the governor wrote, "The addition of another panel to the Court of Appeals at $2 million per year is difficult to justify in today's challenging fiscal environment. Moreover, if I were to sign a bill linking these two proposals, it could contribute to public cynicism by creating the appearance that my acquiescence was purchased with more appointments. Whatever the merits of expanding the Court of Appeals may be, they should be considered alone."

Longtime lawyer-lawmaker Sen. Richard Bray, R-Martinsville, said he doubts a veto override would be possible or that a majority of senators would support the idea, but he said it's always a possibility that the idea could resurface in budget talks during a legislative special session.

"I would be surprised if it's presented (for an override vote), and I think the idea of the special session is not to do anything but the budget in the last few days," said Bray, who chairs the Senate Judiciary Committee. "I wouldn't be in favor of anything else or including that into this special session."

Regarding Daniels' veto message, Bray said that he agreed with Daniels' point about merit selection being the best method for St. Joseph Superior judges. Explaining more about his votes in favor of the legislation earlier this year, Bray said he supported it specifically because of the amendment to add the appellate panel. He's been encouraging that addition for years, and there was not another way to get that new panel approved unless it was attached to something else – to think otherwise is naive, he said.

If the idea of merit selection were to be presented on its own – during the special session or another time – Bray said he would not support it, particularly if it were geared toward larger counties where he sees that as a more appropriate judicial-selection method.

"I agree with him on the St. Joseph County situation, and I don't think it needs to be changed," he said.

While the legislation's author, Rep. Craig Fry, D-Mishawaka, didn't return telephone messages from Indiana Lawyer after the governor's veto, he told the South Bend Tribune that a veto override is still possible if Senate Republicans are willing to take that step.

A simple majority of both houses, which means 51 in the House and 26 in the Senate – is needed to override the veto. Senate President Pro Tem David Long, R-Fort Wayne, and House Speaker B. Patrick Bauer, D-South Bend, did not return phone messages to comment about the governor's veto or the possibility of an override.

But if the General Assembly's action in the regular session on this legislation is a sign, there could be enough support for it should leaders choose to bring it up. The House voted 88-3 on the bill aimed at St. Joseph County's judicial selection, and the Senate voted 35-15 to pass an amended version adding the appellate court component.

Based on support for the legislation from both houses, Rep. Charlie Brown, D-Gary, said he thinks a veto override would stand a good chance of succeeding if it were presented. He hadn't been able to reach Bauer by mid-afternoon to discuss that possibility, though.

Brown has stated publicly he intends to introduce during the next session legislation that would change Lake County from merit selection to judicial election; he supported the St. Joseph measure this year. But he noted his overall goal is to have statewide consistency, and he would just as much want to see merit selection in all counties as he would judicial elections.

"A certain part of me says they're right, that we need to let judges get out of the fray of politics and avoid the sense that they might owe a favor to someone who's contributed," Brown said. "But on the other hand, I wonder what makes judges any better or different than state representatives or mayors who have to stand for elections?

"What frustrates me most is that we have these two being different from the rest," he said. "Something is wrong with that adamant opposition to having those two counties operate like the other 90 counties that elect judges. As long as we have a level playing field, any option would be fine with me."

The St. Joseph judiciary were pleased with the governor's decision, saying Daniels correctly articulated the system as one that works and should remain in place. Even those judges who are currently elected agreed.

"This wouldn't have affected me, but directly impacts my (Superior Court) colleagues," Circuit Judge Michael Gotsch said today. "The governor hit it right on the head, saying it should be emulated."

Despite being elected, Judge Gotsch said he prefers merit selection because it offers a choice – he currently ran unopposed in a judicial campaign, as did the county's other elected jurist Probate Judge Peter Nemeth.

"If someone wants to run a campaign against a sitting Superior judge and raise questions about their record, let's do that. But no one has ever done that," he said. "How do we know if it works it if it hasn't been tested? It made no sense to throw the whole system out without testing it first."

Indiana State Bar Association president Bill Jonas, a South Bend attorney, was pleased with the veto decision and the language Daniels used in the veto message.

"What I appreciated the most was that it showed real statesmanship, and his willingness to rise above partisan politics and do what's right as an elected official," Jonas said. "We had met with the governor's legal staff, and they indicated his strong commitment to judicial independence and fiscal responsibility. We hoped that would carry through, and it's obvious that it has."

Jonas realizes the battle isn't finished, and will be watching closely for any possible veto-override action. The state bar association plans to increase its efforts in the coming months to educate the public and legal community about the merit-selection and retention system, an effort that will heavily involve civic education, he said. The ISBA is working with the Indiana Judges Association on this effort to expand the merit-selection and retention system to other parts of the state, he said.

"We have a third branch of government that's independent, and 1491 was an effort to go a little farther than the legislature should in getting involved in the judiciary," Jonas said. "When you talk about this issue with people, who can't name all three branches of government, it's a real challenge to get through and is indicative of the challenges we face."