Moberly: If At First You Don’t Succeed, Try, Try Again (and Again, and Again…)

At the time of this writing (Friday, March 11), I can say that this has been a week like no other. On Thursday, March 10, the judicial selection bill for Marion County died in the eleventh hour of the legislative session. I can’t describe how close we got to a final compromise between legislators. The clock just ran out.

When you are selected to be a future president of this organization, you never know what’s going to upset the apple cart during your administration. Will the executive director quit? No, I got a commitment from her. Will we run out of money? No, the association and foundation have been very good stewards of our money. Will the legislature address same sex marriage? No, we’ve been there and President Jeff Abrams dealt with that. But when the 7th Circuit affirmed Judge Young’s opinion finding the Marion County judicial selection method unconstitutional, I knew I’d be spending a lot of time in the statehouse.

I had opportunity to do some lobbying when I was an officer and then president of the Indiana Judges Association. Now, THAT is a group with friends in the legislature! Judges are usually really popular in their hometowns and with their legislators. My judge friends introduced me to a number of smart, civic-minded legislators from both sides of the aisle. I had no idea when I left the Indiana Judges Association that those legislators I had met through my judicial friends would be so important.

We almost got a version of merit selection through the legislature once before in 2005, but it was traded away at the last minute in return for going to daylight saving time. (I admit I like daylight saving time. I just wish it hadn’t cost us so much). The legislative process is fraught with unexpected twists and turns, and this year’s bill was no different.

It’s no secret that the IndyBar has supported merit selection for decades. It’s also no secret that view is not held by everyone. I sincerely respect our members who would prefer an open partisan election of our judges in Marion County. Mostly that view is held as a result of a reverence for voting rights, which I hope we all share.

The equal partisan judicial balance in this state’s capital city has worked extremely well over the past 40 years and surveys have told us our members agree with that. Fundraising by judicial candidates’ committees causes the public to question the judiciary’s impartiality and integrity. Having observed the disproportionate number of votes cast for judicial candidates whose names started with A, B or C, I have wondered how precious a voter’s right is when it’s so uninformed.

This year, we approached the legislative session with a list of core principles that we thought a good merit-selection bill should contain. We stuck to those broad principles and refrained from objecting (and at times, refused to object) to language that other groups favored or opposed for their own reasons. We tried to stay positive and open to any bill consistent with our association’s principles, expecting this to be the most likely path to a good bill. It’s too early to fully understand why the bill did not succeed, but we will spend a lot of time talking to people and figuring that out. We hope to learn and be as helpful as we can next session.

We reached out directly to lawyer-legislator friends for advice and support such as Representatives Steuerwald, DeLaney, Washburne, and Bosma; as well as Senators Merritt and Head (a former Marion County deputy prosecutor). Senator Young first opened the door to us with the original merit-selection bill known as SB352, which we appreciated. We will never know who else was ushering this bill forward, but we know some key Marion County lawyer-members of the General Assembly had their hands in it. While the Marion County judges did not lobby the bill, they kept us informed of their views. The president of the Marion County Bar Association and I shared our views over lunch one day. And, our annual Lawyer Legislator Luncheon was helpful in keeping these valued relationships strong.

Past IndyBar presidents John Kautzman and Kevin McGoff have spent hundreds of hours working on a merit-selection bill from the very beginning. Both men are highly regarded, politically diverse and have more friends than I can count. They worked tirelessly over the past few months to pass a good merit-selection bill. As John Kautzman said, it feels like losing a trial we’d all worked on for a very long time, only to discover we’d picked the wrong jury! Fortunately, in this situation, no one went to jail.

A word about the legislators: like lawyers, doctors and Indian chiefs, some are good, some not so good and some are great. Kevin, John and I have frequently remarked about how hard working these legislators are and how committed to good government they are. Fair-minded people can disagree on what’s good policy for our community, but no one could question how sincere the legislators with whom we have worked are to good government. Lawyer-legislator Greg Steuerwald is one of the great ones.

Finally, two words about pro bono service: Lawren and Mindy. Lawren Mills and Mindy Westrick worked all hours of the day and night (literally) to help us navigate the unfamiliar procedures of the Legislature and to avoid missteps. The Legislature has a culture that promotes collegiality and respect, while fighting tooth and nail. That requires the navigational skills of Pocahontas, diplomacy of Madeleine Albright and the psychology of Joyce Brothers (it’s not coincidental I reference famous women). The bar association is in these women’s debt for the generous gift of their time and expertise. And, they are already talking about the long session that starts with Organization Day in November.

My takeaway from this experience is two-fold. First, never miss an opportunity to make a friend and keep a friend. Second, lawyers are still my favorite people.

Channeling (and paraphrasing) the Terminator—“We’ll be back!”•