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Wednesday, March 20, 2013

Ind. Courts - More on SB 103, changing the Judicial Nominating Commission law

According to reports, questions were raised in the House Committee on Judiciary this week on the constitutionality of Senate Bill 103.

The bill would change the way the three citizen members of the Judicial Nominating Commission are appointed. Currently these appointments are made by the Governor.

Regarding the citizen members, Art. 7, Sec. 9 simply states:

The Governor shall appoint to the commission three citizens, not admitted to the practice of law.
The General Assembly has, by statute (IC 33-27-2-1), added some framework to the process, spelling out that the three citizen members shall be from separate judicial districts and that their terms shall run for three years. The terms are staggered because of the way the law was phased in.

Senate Bill 103, however, would limit the power given to the Governor by the Constitution to appoint three citizen members to the Judicial Nominating Commission by adding a requirement that the Governor make his/her selection from a list of "recommended candidates" prepared by the leadership of the House and Senate.

This proposal appears to raise at least two constitutional concerns.

The first concern is that it imposes an additional qualification on a constitutional office - that a citizen member of the Judicial Nominating Commission not only must be appointed by the Governor, as set out in the Constitution, but additionally under the new statutory proposal, the member must initially have been nominated to the position by the legislative leadership.*

The second, and more obvious, concern with the proposed legislative involvement is that of the separation of powers. Article 3: - "[N]o person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided." The language of Art. 7, Sec. 9 of the Constitution simply does not involve the General Assembly in the selection of the citizen members of the Judicial Nominating Commission.

See earlier ILB posts from March 15th and Feb. 12th.
*An example of a related concern that has been raised in Indiana in the past is whether by statute additional qualifications may be imposed on the constitutional office of coroner.

Posted by Marcia Oddi on March 20, 2013 01:40 PM
Posted to Indiana Courts