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Monday, November 05, 2012

Ind. Courts - Striking a Balance: Lawyer and Bar Association Commentary on Incumbent Judges and Elections

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

In the absence of any sort of controversy, appellate judges had been retained by comfortable margins in Indiana for four decades. Around this time two years ago, few people had any idea that five judges were up for a retention vote. A rare media story focused on the absence of any sort of campaign.

What a difference one election cycle can make. This year the retention election, especially regarding Justice David, has received a great deal of press, and the public, lawyers, and bar associations are engaging in a sometimes uncomfortable discussions about retention elections and judicial performance.

Retention standard and considerations

Until a few weeks ago, the standard or considerations for when to vote "yes" or "no" in retention elections were seldom discussed by citizens, lawyers, or bar associations.

A recent National Journal article co-authored by retired Chief Justice Shepard suggests that retention elections were adopted “to give citizens a way to consider removing a judge in the rare instance he or she is unfit for office, whether for ethical lapses, for exhibiting general incompetence, or lacking the temperament to hear and decide cases fairly and impartially.”

However, in Indiana a retention election is not necessary to remove an “unfit” judge from office; Article 7, Section 11 gives the Court the responsibility to discipline and remove judges at any point during their term of office.

The ad hoc standard applied in other states, which is understandingly troubling to many, has sometimes been a single decision, as this Iowa 2010 video ad makes clear. A 1986 effort in California was grounded in rulings against the death penalty. Hot button issues like same-sex marriage or the death penalty are far more likely to garner public attention and campaign contributions than an effort based on incompetence, which sadly would probably not be well-known outside the bar.

Lawyer commentary on retention

I expressed my support of Justice David and the other five judges on the ballot this year in an op-ed posted in the ISBA’s website and later printed in the Indianapolis Star. Some lawyers have since questioned not only whether Justice David should be retained but the propriety of an individual lawyer taking a stand at all.

A post on a criminal defense listserv asked “what in the world moved you to author such a pandering piece” (the Star op-ed) and questioned many of the specifics in the article. This was followed by a response from another lawyer that included:

I have an approach that doesn’t require much thought. Just as a matter of prophylaxis, vote "no" for everyone. . . . The folks to come will be quite independent, if they know they only have a two-year sabbatical from real life on an appellate court. . . .

Why would anyone vote "yes" for any of these people? Because some of them hold our licenses? (How about a constitutional amendment to change that?) No one could possibly support any of these people publicly because of the job their doing.

Vote "no"; and tell everyone you know to do the same.

Yet another lawyer agreed with the just-say-no post and added:
I don't think any judges need lawyers to be their cheerleaders to the public audience, let alone criminal defense lawyers or the collective “bar.”
Every citizen, including lawyers, should be free to express a view for or against retention. I don’t think anyone’s law license is in jeopardy, although the difficulty in taking a public stand against a judge before whom a lawyer will likely appear for many years to come is understandable.

Bar association efforts

Individual lawyers expressing their views is different from a bar association doing so. On Friday, the Indiana State Bar Association sent the following email to all members from President Dan Vinovich entitled, “Vote YES to retain our justices & judges”:

Our system of justice is under attack this election. As officers of the court we are obligated to protect the integrity of the judicial system. I encourage each of you to copy & paste the message below and send it to your email contact list, post it on your social media pages (Facebook, LinkedIn, Twitter, etc.) and communicate in any way you are able to educate your friends and family on this most important issue.

This election day please vote YES for all six judges up for retention. Each of the judges earned overwhelming approval in a recent survey by the Indiana State Bar Association. Over the course of a career, a judge may dispose of thousands of cases. One decision alone is not an accurate barometer of a judicial career. Judges are sworn to follow the law and not be swayed by special interest groups. Voting not to retain a judge because of one ruling politicizes the judiciary and threatens its independence as well as our form of government. Support the rule of law. Vote YES for all judges.

Part of this email restates information about the ISBA poll results and comments on the general role of a judge, which is certainly useful to consider in deciding how to vote and perhaps what to say to non-lawyers who seek our advice before the election. However, I’ve heard from some lawyers who found other parts of the email inappropriate, if not a bit offensive:Ideally bar associations strike an appropriate balance by providing useful information and commentary on judges without being seen as constant cheerleaders. Conducting and publicizing polls of lawyers familiar with a judge’s work is eminently reasonable and valuable, as is educating the public on the role and duties of judges. Going beyond those parameters, though, may not only rankle some members but could be used in future efforts to diminish the role of lawyers in selecting judges.

Posted by Marcia Oddi on November 5, 2012 03:06 PM
Posted to Indiana Courts