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Monday, June 06, 2011

Ind. Decisions - Re the Barnes ruling, columnist writes: "Police Entry: Rehearing Doubtful"; More

The ILB obtained a copy of an upcoming Indianapolis Star column by Andrea Neal this morning, but didn't use it because it was marked For release June 9 and thereafter (670 words).

However, the embargo was broken this afternoon, the entire column has been posted here.

Some quotes:

Gov. Mitch Daniels, Attorney General Greg Zoeller, House Speaker Brian Bosma, Senate President Pro Tem David Long and the attorney for a man convicted of battery on a police officer all agree: The Indiana Supreme Court went too far when it ruled 3-2 “that there is no right to reasonably resist unlawful entry by police officers.”

The misdemeanant wants the court to rehear the case. And at least one lawyer-blogger says, “it seems almost a sure thing” that the court will reconsider its ruling and narrow its opinion.

It seems more likely the justices will hold their ground. The May 12 decision is an extension of prior case law concluding there is no right to resist unlawful arrest, a policy firmly in place by statute or court ruling in 38 states. To expect the justices to reverse themselves — just because the legislative and executive branches want them to — seems a long shot. * * *

Critics have berated the court for judicial activism that gutted the Fourth Amendment. If the court had ruled the other way — that citizens can resist entry to their homes if they think police are acting illegally — the same activist complaint could have been raised. Since when do citizens have a right to commit battery on police?

This is a matter of state policy that should be decided by lawmakers in consultation with the public — relying on statistical analysis and cool heads. That the court has received death threats for its opinion is unconscionable and a reminder why we have legislatures and courts in the first place: We are a government of laws and not bullies, whether they be the public or the police.

As one ILB reader noted to me: "She obviously does not understand the issue or the court." My slightly more charitable reaction was: "She has missed the nuances. And the retention politics issue, which begs for the rehearing, no matter what the ultimate decision."

[Much More] Compare the Neal column with Indiana Legislative Insight's lengthy article (subscription required) from May 30, 2011, written by the always insightful Ed Feigenbaum -- here is how it concludes:

The general consensus on the street and Inside the Limestone is that the Court will agree to rehear the matter and either issue a ruling much more limited in scope . . . or the Chief Justice will author a new opinion joined by the original two dissenters that will largely mitigate the expansive scope of the original ruling while not giving short shrift to the issue of domestic violence.

But if the Court agrees to rehear the matter, justices will be careful not to offer any credit to the public – or public official – sentiment. Bear in mind that Rule 2.4 of the Indiana Code of Judicial Conduct states quite succinctly that "A judge shall not be swayed by public clamor or fear of criticism." The comment to the Rule elaborates – and seems to be directly relevant to the situation today: "An independent judiciary requires that judges decide cases according to the law and facts, without regard to whether particular laws or litigants are popular or unpopular with the public, the media, government officials, or the judge's friends or family. Confidence in the judiciary is eroded if judicial decision making is perceived to be subject to inappropriate outside influences.

But there's more beyond the four corners of the ruling that we alluded to last week, and we'll expand on here.

This is the first time that we can recall the state's top law enforcement officer ever intervening in such a manner, and the joint call by legislative leaders for a rehearing adds to the unprecedented nature . . . and, we believe, may portend the turning of a page in the relationship between the judiciary and the other branches of government and between the judiciary and the Hoosier electorate. For the past dozen years with the consistent composition of the Indiana Supreme Court, there were only isolated complaints about a ruling or two, and no one thought seriously about a non-judicial response to those opinions.

But we sense a change in the air, perhaps boosted by the challenges that we've watched from afar against judges and the judiciary in other states – as we first suggested in our last issue when we discussed the prospect of a potential organized effort to oppose the retention of the opinion's author, Justice Steven David, who faces a retention vote in November 2012 (ironically, he and the Chief Justice sided together on this opinion; we told you back in the 90s that the socialization process on the court found the newest justice on the bench siding more often with the CJ than any other justice would).

"A political action committee and a Facebook page have been created with the goal of recalling Justice David," reports Indiana Lawyer, after several hundred rallied against the ruling at the State House Wednesday – with some protestors specifically targeting Justice David. "Indiana Defending the Fourth Amendment, Recall Justice David" is the name of the Facebook page, although as of Thursday, we found no evidence of any such PAC having been registered. Jeff Houk, a Greenwood insurance agent, is behind the effort.

Formation of such a committee by those now more loosely opposed to Justice David's retention is more important than it might appear at first blush, because Rule 4.2(D) of the Indiana Code of Judicial Conduct (part of the larger Rule regulating political and campaign activities of judicial candidates in public elections) allows candidates for retention to judicial office to engage in certain campaign activities "only if their retention actively is opposed," according to the comment appended to the Rule, although the restriction on activities prior to one year before the election seems to apply only to candidates in partisan and nonpartisan elections.

Specifically, Rule 4.2(D) states that "A candidate for retention to judicial office whose candidacy has drawn active opposition may campaign in response and may: (1) establish a campaign committee and accept campaign contributions .... (2) speak on behalf of his or her candidacy through any medium, including but not limited to advertisements, websites, or other campaign literature; and (3) seek, accept, and use endorsements from any appropriate person or organization other than a political organization."

If opposition were not active or organized (and we don't believe that there has been a specific definition laid down, but we suspect that the Commission on Judicial Qualifications and the Supreme Court itself would, uh, know it if they saw it, so to speak!) until shortly before the election and then swooped in with a big bankroll and media campaign, Justice David could have been blindsided, but the "active opposition" – which would certainly be interpreted to encompass an active PAC – will allow the state's newest appellate judge to get out in front of the debate as he looks toward 2012.

To give you an idea as to what to watch for in a broader context going forward, we'll pass along some words from Sen. Jim Banks (R), a non-attorney, in a report to his constituents on Tuesday. Sen. Banks dissects the ruling, including the justification of post-deprivation remedies now available as part of the change in policy, noting that "It's hard to believe that the court can simply decide that modern conveniences like bail, prompt arraignment and civil recourse actually trump our Constitutional rights."

But, more importantly for our purposes here, Sen. Banks laments that "The nature of our part-time legislature in Indiana has left many citizens feeling powerless. I've fielded many calls and emails from constituents who are worried that we can't stop this dangerous ruling from being implemented [and ensuring that] our freedoms can't be encroached by unelected state Supreme Court justices. Governors get to select a lawyer from a group vetted by a nominating commission. We citizens get to vote to keep them or throw them out by voting to retain them for another term. How many people will have their rights trampled before then? While in the short term I'm committed to working with my fellow conservative legislators to restore these Constitutional rights, over the long term it is clear that Indiana needs to open a debate about judicial accountability."

The freshman senator goes on to elaborate that "There are a number of options on the table – perhaps giving the people a voice on these nominations by requiring the Senate to consent to these appointments is appropriate (similar to Federal judges as well as the states of Delaware and New York). Another solution used in many states might be to elect justices to the bench rather than simple appointments. The bottom line is that Hoosiers demand greater accountability across all levels and branches of government, and this ruling throws that need into stark relief."

Don't look for the status quo to which we've become accustomed since the Supreme Court settled into a niche of restored honor after the bizarre 1988 flap over its leadership.

Posted by Marcia Oddi on June 6, 2011 07:27 PM
Posted to Ind. Sup.Ct. Decisions