Legislature’s final days bring up merit selection, out-of-state placement issues

Hoosier lawyers and judges were kept on the edge of their seats as the Indiana General Assembly navigated its final days of the session, reviving talk on two issues that have significant impact on the state's judiciary and legal system.

One measure would have overridden a governor's veto on adding a new appellate panel to the Indiana Court of Appeals and also replacing merit selection with nonpartisan elections in St. Joseph Superior Court. Another would have repealed a last-minute legislative change in 2009, which allowed the Department of Child Services to make final decisions on out-of-state placements rather than juvenile judges.

In the end, lawmakers didn't act, and the changes weren't adopted by the time they adjourned about 1 a.m. Saturday, March 13. But how that process played out in the final days and hours is even more telling than the measures themselves and reflect what might happen in the future if the topics come up again.

Those monitoring the session described their disappointment in how the merit selection and placement issues evolved during the final days but pointed out they weren't necessarily surprised with what happened.

"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," South Bend attorney and former Indiana State Bar Association president Bill Jonas said, referencing the merit-selection change that Gov. Mitch Daniels had vetoed in 2009.

Both the House and Senate had passed HEA 1491, which targeted one of the two counties statewide that doesn't use elections to select trial court judges. But it died when the governor vetoed it with a strongly worded message supporting the current system that's been in place for more than three decades.

"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," he wrote, adding that it would be difficult to justify the $2 million yearly cost for a new appellate panel.

"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."

The House put the measure on the calendar during the final three days, and it stayed there until the final hours when lawmakers reached a session-ending deal involving unemployment insurance, jobs, and various financial issues.

Both members of the ISBA and St. Joseph County Bar Association echoed Jonas' thoughts that it was bad form to bring the issue back so late in the legislative session.

The legislation's author, Rep. Craig Fry, D-Mishawka, was outside the state during the final week of the session and neither he nor House Speaker Rep. Pat Bauer, D-South Bend, returned messages from Indiana Lawyer seeking comment about why HEA 1491 was resurrected. But hours before the session finished, Sen. John Broden, D-South Bend, said he was disappointed but not surprised that it came back up for consideration. He didn't know how much support it might get in the House, or if Senate leadership would give it a chance if it came to their chamber. Regardless, Broden said he remains adamantly opposed to both the judicial selection change and the extra appellate panel, which would cost millions at a time when the state's battling budget woes and making cuts across the board.

"I remain opposed and strongly support the governor's veto, particularly with regard to the new court panel costs. That's even more significant almost 12 months later, when the fiscal picture of our state is worse than it was then," Broden said.

As that legislation faded, so did the hopes for Senate Bill 149 that would have repealed the DCS out-of-state placements statute change from last year. The idea was originally included in HB 1167 and representatives approved it, but the measure died after it failed to get a hearing in the Senate Judiciary Committee. Reps. Linda Lawson, D-Hammond, and Winfield Moses, D-Fort Wayne, merged it into SB 149 that included multiple DCS-related law changes, but some lawmakers opposed that move and it went to conference committee during the legislature's final week.

On the Senate side, Broden had originally signed on as a sponsor to HB 1167 and said he was disappointed it didn't get support in the end. But he wasn't surprised because the DCS had considered it a high priority to defeat the measure. Some last minute negotiations were happening to keep it included, but those fell through and lawmakers had to eliminate the placement issue in order to get the broader SB 149 approved, he and others said.

Three of the four final conference committee members – Rep. Dennis Avery, D-Evansville; Rep. Matt Bell, R-Avilla; Sen. Connie Lawson, R-Danville – said the opposition was too strong to get the placement law changed. The fourth committee member, Sen. Tim Lanane, D-Anderson, couldn't be reached at Indiana Lawyer deadline.

Several lawmakers were also appointed from each chamber to serve as technical advisors, including Rep. Ralph Foley, R-Martinsville, who had unsuccessfully tried to get the DCS placement language removed from the original legislation.

Avery co-sponsored the amended bill and said he worked on the conference committee during the final days to get it passed, but eventually let it die when it was clear the full SB 149 wouldn't pass if the placements provision was included. Word was that the judiciary's chair Sen. Richard Bray, R-Martinsville, refused to hold a hearing and later opposed the amendment because it appeared to circumvent the committee process, Avery said. He also heard that the Senate leadership was supporting the administration and felt the placement revision was an attempt to embarrass the DCS and Director James Payne, a former juvenile court judge.

Bell said he believes that juveniles shouldn't be sent outside Indiana because current service providers offer adequate and quality facilities that aren't fully used.

Despite the lack of success this session, Broden doesn't think the issue is dead and he hopes to bring it back in the future.

"As long as juvenile judges, who handle these placements firsthand, have concerns, lawmakers will be knocking at the door on this issue," Broden said. "I think this will be an ongoing dispute we have to address."