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Friday, October 20, 2006

Ind. Courts - Eight Questions for the Indiana Appellate Judge - Q #7: the retention election

Earlier this month the ILB sent, to the five Courts of Appeals judges and one Supreme Court justice who are on the November 7th ballot for a "Yes/No" vote on retention, a set of "Eight Questions for the Indiana Appellate Judge."

I am publishing the responses here in the ILB (in no particular order) and as I do, I will also add the answers to the "Resources for the 2006 Indiana Appellate Judicial Retention Election" website.

The judges decided to submit a collective response to each of my questions. I will post my original email to the judges, including the list of eight questions, shortly.

Here is Q&A 7 - about the retention election

Q. Appellate judges in our surrounding states - Illinois, Ohio, Michigan and Kentucky, are elected to office (see http://www.ajs.org/js/select.htm)

Indiana is different, and has been since 1970 - Judges of the appellate courts are appointed by the governor from a list of three names submitted by the state judicial nominating commission. After two years, appellate court judges are on the ballot for 10-year terms via a "yes/no" vote. There is no limit on the number of terms, but the retirement age is 75.

What are the advantages of this system? Are there any disadvantages?

What, if anything, do you do to "run" for retention?

A. In 1970, the voters of Indiana approved a constitutional amendment providing for merit selection of Indiana Supreme Court justices and Indiana Court of Appeals judges. This system, now in place for 36 years, has been used to select all of the current members of the Indiana Supreme Court and 14 of the 15 current members of the Indiana Court of Appeals.

Our system relies upon a state Judicial Nominating Commission consisting of seven members. Three members of the Commission are lawyers elected by the lawyers state; three are non-lawyers appointed by the Governor; and the seventh member is the Chief Justice of Indiana, who chairs the Commission. When there is a vacancy on the Supreme Court, Court of Appeals, or Tax Court, interested judges and lawyers submit applications to the Commission and the Commission nominates the three applicants it considers most qualified. The Governor makes the final appointment from among the Commission's nominees. Once appointed, a justice or judge must stand for a retention election at the first statewide general election after the justice or judge had served for two full years and, if retained, every 10 years thereafter. (During the retention vote, the voters are presented with the question, should Justice (or Judge) John B. Jones be retained in office? If the justice or judge receives a majority of "yes" votes, he or she is retained.)

Some states, notably Missouri, have systems of selecting appellate judges quite similar to ours. Other states rely on conventional elections in which candidates for justice or judge run against each other, in some states (including our neighbors of Ohio, Michigan, Illinois, and Kentucky) on partisan ballots and in other states (including Wisconsin) on non-partisan ballots. Still other states provide for appointment without any election or retention vote process at all.

Of the various methods of selecting appellate judges used in this country, we believe that ours best furthers the goals of impartiality and accountability. In many states, elections of appellate judges have become dominated by special interests that contribute literally millions of dollars to the campaigns of the candidates. This creates at least the appearance that the justice or judge who is elected will not be impartial when it comes to matters in which his or her principal supporters have a stake. It also creates at least the appearance that an incumbent justice or judge will cast his or her vote in certain cases in a way calculated to improve his or her chances of being reelected. Two stories in the New York Times earlier this month detailed these concerns with Supreme Court elections in Ohio this year and in Illinois and West Virginia in 2004. See “Campaign Cash Mirrors a High Court's Rulings” and “Case Studies: West Virginia And Illinois,” The New York Times, October 1, 2006.

In contrast, justices and judges in Indiana decide cases fairly and impartially, free from any campaign finance considerations, need to attract votes, or fear of partisan attack.

At the same time, our system provides for accountability in several ways. First, the justices and judges selected are unlikely to be outside the mainstream with respect to their judicial philosophy and temperament precisely because appointees of the Governor and the Governor himself are involved in screening and appointing them. Furthermore, there is a check on their performance shortly after their appointment and at periodic intervals thereafter by means of the retention election process.

Judges who are candidates for retention are not permitted to campaign or solicit public support or campaign funds unless there is organized opposition to their retention.

The men and women who serve on Indiana's Supreme Court, Court of Appeals, and Tax Court enjoy superior reputations both nationally and within the state for the quality of their decisions and for their impartiality, fairness, integrity, and hard work. I believe that this is directly attributable to the merit selection process we use to choose and retain these justices and judges and that the voters of Indiana made an extremely wise decision when it put a system in place in 1970.

Notes from the ILB: The NYT article cited, "“Campaign Cash Mirrors a High Court's Rulings”, is unfortunately no longer freely available online, but is quoted in this Sept. 30th ILB entry.

"Case Studies: West Virginia and Illinois" also is no longer freely available, but here is a quote:

Justice Larry V. Starcher of the West Virginia Supreme Court says he likes his new colleague, Justice Brent D. Benjamin. But he has a funny way of showing it.

“It makes me want to puke,” said Justice Starcher, a Democrat, “to see massive amounts of out-of-state money come in and buy a seat on our court.”

Justice Benjamin, a Republican lawyer with no judicial experience, unseated a West Virginia Supreme Court justice in 2004 with the help of about $3 million in advertisements and other support from Don L. Blankenship, the chief executive officer of Massey Energy, a coal-mining company. Massey has its headquarters in Virginia, but the company says Mr. Blankenship has spent most of his life in West Virginia.

As far as Justice Starcher is concerned, “Now we have one justice who was bought by Don Blankenship.”

Like other justices around the country who gained seats on their states’ highest courts with the help of large contributions and heavy independent spending, Justice Benjamin sees no conflict in sitting on his supporters’ cases. In April, he refused to disqualify himself from an appeal in a case in which a jury had ordered a Massey affiliate to pay $50 million.

Posted by Marcia Oddi on October 20, 2006 04:08 PM
Posted to Indiana Courts