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Monday, July 07, 2008

Ind. Courts - More on: Three justices and at least one appellate judge up for retention this year

This July 1st ILB post reported that:

Three of the five members of the Supreme Court: Chief Justice Randall T. Shepard, Justice Brent E. Dickson, and Justice Theodore R. Boehm. must stand for retention in 2008, if they wish to remain in office.
Statements that a juror wishes to stand for retention must be filed with the Secretary of State on or before noon of July 15th.

What happens if one or more justices, for whatever reason, decides not to stand for retention this year?*

Expiration of term. The judge's term expires on December 31, 2008, per IC 33-25-2-3.

Filling the vacancy. When may be vacancy be filled? Article 7, Sec. 10:

Selection of Justices of the Supreme Court and Judges of the Court of Appeals. A vacancy in a judicial office in the Supreme Court or Court of Appeals shall be filled by the Governor, without regard to political affiliation, from a list of three nominees presented to him by the judicial nominating commission. If the Governor shall fail to make an appointment from the list within sixty days from the day it is presented to him, the appointment shall be made by the Chief Justice or the acting Chief Justice from the same list.

To be eligible for nomination as a justice of the Supreme Court or Judge of the Court of Appeals, a person must be domiciled within the geographic district, a citizen of the United States, admitted to the practice of law in the courts of the State for a period of not less than ten (10) years or must have served as a judge of a circuit, superior or criminal court of the State of Indiana for a period of not less than five (5) years.
(History: As Amended November 3, 1970).

I read this to mean that a Governor may not appoint a new justice to fill a vacancy until there is in fact a vacancy -- in this case this would mean on or after January 1, 2009.

When may the Judicial Nominating Commission act? IC 33-27-3-1 provides:

(a) When a vacancy occurs in the supreme court, the court of appeals, or the tax court, the clerk of the court shall promptly notify the chairman of the commission of the vacancy.
(b) The chairman shall call a meeting of the commission not later than twenty (20) days after receiving the notice.
(c) The commission shall submit the nominations of three (3) candidates for the vacancy and certify them to the governor as promptly as possible, but not later than seventy (70) days after the time the vacancy occurs.
(d) When it is known that a vacancy will occur at a definite future date, but the vacancy has not yet occurred, the clerk shall notify the commission immediately of the future vacancy, and the commission may, not later than sixty (60) days after receiving the notice of the vacancy, make nominations and submit to the governor the names of three (3) persons nominated for the future vacancy.
(As added by P.L.98-2004, SEC.6.)
But for subsection (d), I would read this section to mean that a vacancy must have occurred before the commission may convene.

But subsection (d) would appear to allow the commission in this case to convene after July 15th, should a justice fail to file for retention. Thereafter, not later than sixty days after receiving the notice of the vacancy, under subsection (d) the commission is to make nominations and submit to the governor the names of three persons nominated for the future vacancy.

But nothing I see authorizes the governor to actually fill the vacancy until a vacancy in fact exists. That language is in the Constitution. IC 33-27-3-1(d) therefore may be problematic, because if followed a governor could be required either to fill a vacancy before it exists, or cede that authority to the chief justice.
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*My first thought, of course, is that this would be an opportunity for the Governor to appoint a woman to the Supreme Court. For background, start with this ILB entry from Oct. 6, 2007.

Posted by Marcia Oddi on July 7, 2008 12:26 PM
Posted to Indiana Courts | Judicial Retention