Legislators revisit vetoed merit-selection measure

In the final days of the Indiana General Assembly session, as lawmakers pushed to finish and put final touches on the end-of-term business, a 2009 measure that divided the Hoosier legal community came back into play.

Lawmakers resurrected vetoed legislation that would not only scrap St. Joseph County's merit-selection system for nonpartisan judicial elections, but also add a new three-judge panel to the Indiana Court of Appeals.

For those in St. Joseph County who'd be directly impacted by this judicial selection change, they describe the last-minute legislative move as disappointing.

"I find it discouraging and more than a little cynical that this would surface at the end of the session, when it could be hidden or lost in the shuffle of end-of-term business," said South Bend attorney Bill Jonas, the former Indiana State Bar Association president who led the opposition to this legislation last year. "It's even harder to believe when analysts say that the new appellate court panel is unnecessary, and that it would cost more than $2 million annually. It doesn't make sense to me to be spending that kind of money when we're laying off teachers and slashing funding for higher education."

The House of Representatives on Wednesday put on its calendar House Enrolled Act 1491, which had been introduced in early 2009 by Rep. Craig Fry, D-Mishawaka, and passed both chambers before ultimately being vetoed by Gov. Mitch Daniels.

"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," the governor wrote.

He also explained it would be tough to justify the $2 million yearly cost for a new appellate panel, given the current fiscal challenges, but that the proposal should be considered on its own merits – not attached to the merit-selection change.

"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," he wrote.

Almost a year later when the state's financial crisis has gotten worse and lawmakers have pressed for budget cuts and less spending at all levels, the House has brought the measure back for reconsideration. Nothing had happened on the measure by IL deadline.

A simple majority from both the House and Senate is needed for a veto override. Legislative staff and the ISBA expected it would get more attention before the session ends March 14.

ISBA legislative counsel Paje Felts said she wasn't surprised by the quiet reintroduction of the act during the final days of the session, but that she and others in the legal community had hoped it wouldn't be brought back for consideration.

ISBA, Indianapolis Bar Association, St. Joseph County Bar Association and others had strongly opposed changing the selection system in St. Joe, fearing that a shift there would lead to a change in Lake County where merit selection and retention are also used. The topic is controversial at every level, and late last year the Judicial Conference of Indiana proposed adopting a statewide merit selection system. That move hasn't gotten support from the Indiana Judges Association, which says there isn't enough consensus statewide and in the largest areas like Marion County on how to move toward a unified selection system for Indiana.

SJCBA president John Lloyd, a partner at Krieg DeVault in Mishawaka, echoed what his colleague Jonas said about the ill timing of the legislation.

"The (legislation) seeks to change a local court system that works and is based on a model that all serious analysts believe is the best way to select judges," he said, noting that a campaign contribution cap in the measure could be unconstitutional. "Worst of all is how there is no justification for wasting $2 million dollars for a Court of Appeals division that is completely unnecessary."

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