Despite constitutional concerns, judicial nomination bill advances

Proposed changes to the panel that recommends judges for the Indiana Supreme Court and Court of Appeals advanced to the House floor Monday, but not before some lawmakers said they reserved judgment on whether the measure was constitutional.

Senate Bill 103 passed the House Judiciary Committee on an 8-3 vote. The bill would change how nonattorney members of the Indiana Judicial Nominating Commission are appointed. The panel interviews Court of Appeals and Supreme Court candidates and prepares a list of three finalists from which the governor selects an appointee.

Currently, the governor appoints nonattorney members to the seven-member commission, whose members also constitute the Indiana Commission on Judicial Qualifications that receives and investigates ethics complaints against judges.

The governor still would appoint nonattorney members under legislation sponsored by Senate Judiciary Chairman Brent Steele, R-Bedford, but a governor’s choice under SB 103 would be from a list recommended by the Senate president pro tem, the House speaker, and the House and Senate minority leaders.

Because Indiana’s merit-selection system for the judiciary is enshrined in Article 7 of the state Constitution, questions have arisen as to whether the commission may be altered by an act of the Legislature. Rep. Jerry Torr, R-Carmel, voted for the measure in committee but said he wanted to investigate its constitutionality before a floor vote. At least one other lawmaker who voted the bill out of committee did so with the same caveat.

Steele said the measure had been vetted by a prominent constitutional attorney who said the bill would not run afoul of the constitution. He said SB 103 would give the legislative branch a “thumb on the scale” as it pertains to Court of Appeals judges and Supreme Court justices.

Rep. Ed DeLaney, D-Indianapolis, asked Steele whether there had been a problem with the commission members the governor had been picking. That wasn’t a factor, Steele said. “There’s always been a desire to let legislators have their say,” he said.

DeLaney, Reps. Pat Bauer, D-South Bend, and Vernon Smith, D-Gary, voted against the bill.

Article 7, Section 9 of the Indiana Constitution defines the duties and composition of the commission. Attorneys in each of the three Court of Appeals geographical districts elect three lawyer members, and the panel is chaired by the chief justice or his designee. The constitution says, “The Governor shall appoint to the commission three citizens, not admitted to the practice of law.”

Steele said he’s comfortable the bill doesn’t interfere with that language, even though he told Bauer that the bill would restrict the governor’s choice to four names recommended by Statehouse leaders.

A message seeking comment from the office of Indiana Gov. Mike Pence was not immediately returned.

SB 103 also would reduce the time a governor has to fill a commission vacancy from 60 days to 30 days after receiving the list of recommended candidates.