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For 50 years Indiana has had a merit selection process to identify and appoint the members of our Indiana Supreme Court and Indiana Court of Appeals.
Once our judges and justices are appointed to the court by the governor, they must submit to a statewide retention vote within two years. Thereafter, they are submitted for a retention vote every 10 years.
Our judges and justices do not campaign for retention, but if there is organized opposition to retention they are permitted to respond.
Rarely have we seen organized opposition, but this year we have it.
Chief Justice Loretta Rush, Justice Mark Massa, and Justice Derek Molter are up for retention to the Indiana Supreme Court, and Judges Rudolph Pyle and Peter Foley are up for retention to the Indiana Court of Appeals. The organized opposition is directed toward Rush, Massa, and Molter.
When the United States Supreme Court overturned Roe v Wade in the case of Dobbs v Jackson Women’s Health Org the regulation of abortion ceased to be a federal issue, and the individual states were left to decide the parameters of abortion.
In the summer of 2022, the Indiana Legislature passed Senate Bill 1 which broadly prohibited abortion but made exceptions for 1) when an abortion is necessary either to save a woman’s life or to prevent a serious health risk; 2) when there is a lethal fetal anomaly; and 3) when pregnancy results from rape or incest.
After the governor signed the bill into law, a group of abortion providers brought a lawsuit to invalidate the law and to enjoin enforcement of the law. The lawsuit was a facial challenge to the entire law, so the providers had to prove that they had standing and that there were no circumstances under which the law could be upheld.
In Members of the Medical Licensing Board of Indiana v Planned Parenthood Great Northwest, et al, the Indiana Supreme Court studied the Indiana Constitution and the history of abortion law in Indiana.
In a lengthy opinion that had concurring and dissenting opinions, the court found that the plaintiffs had standing to bring the case and that Article 1, Section 1 of the Indiana Constitution protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk.
At the same time, the court found that the Indiana Legislature had the authority to enact legislation protecting prenatal life and that the Legislature could prohibit abortions that did not fall within one of the three categories.
Under the procedural posture of the case, that was based on a facial challenge, the court ruled that the injunction was improper because the plaintiffs could not demonstrate a likelihood of prevailing on the merits. Boiled down to simplicity, this was a “who decides” case, and the court found that the Legislature had the right to decide with limited exceptions.
In postcards that are being disseminated to the public, a group has made the statement that, “These three justices all voted to ‘strip away’ Hoosier women’s rights to abortion and reproductive health care. This November all three justices can be fired by Hoosiers.”
Unfortunately, the proponents of firing the justices must not have read the case, because the Court actually found a constitutional right to abortion when necessary to protect a woman’s life or to protect her against a serious health risk, and the Court’s ruling was based on the procedural posture of the case and not on the merits of a claim in any particular set of circumstances.
Furthermore, the history of Indiana and forty other states had traditionally allowed limitations on abortion until Roe v Wade had made abortion a federal legal issue.
I am not writing this column to advocate for or against the issue of abortion, but I am writing to urge lawyers everywhere to vote to retain our court.
Indiana has one of the most respected supreme courts in America. Our justices serve in many capacities in national judicial organizations, and Chief Justice Rush has been president of the Conference of Chief Justices and Chair of the National Center for State Courts.
Our other justices have served on numerous national judicial committees. Opinions of our supreme court have been cited often in other state judicial opinions and scholarly articles and relied on by state and federal courts nationwide.
Many lawyers and citizens do not know about the innovation of our court. Indiana has 161 problem solving courts; we have 31 veterans courts; and, we now have 10 commercial courts that decide complex business cases. Our courts promote public safety, and there are numerous programs to improve the lives of families, children, and older adults.
Each time there is a retention vote, voting history has shown that only 75-80% of voters vote on the retention issue. Of that group of voters, we see year in and year out that a hard core 30% always vote no. That means that an organized group that wishes to oppose a judge or justice must only muster another 21% or so to unseat a judge.
It is imperative that the retention of our justices and judges should be based upon their body of work and not based upon one opinion that has been mischaracterized.
I urge everyone in our profession to vote to retain our justices and judges and to encourage your friends, families, and co-workers to do the same. We have a court that has earned retention, and we would be exposed to chaos if a misinformed opposition effort succeeded in voting them out. Let’s don’t let that happen.
#WillYouBeThere?•
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John Trimble (@indytrims) is a senior partner at the Indianapolis firm of Lewis Wagner LLP. He is a self-described bar association “junkie” who admits that he spends an inordinate amount of time on law practice management, judicial independence and legal profession issues. Opinions expressed are those of the author..
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