« Ind. Courts - "Pence backs merit selection for new juvenile court judge" | Main | Ind. Decisions - More on the blogger Daniel Brewington appeal »

Wednesday, March 13, 2013

Ind. Courts - "State legislators overreached their authority when they passed a law prohibiting judges from transferring to a different court unless they have gone through merit selection, Lake Chief Judge John Pera wrote Monday

That is the beginning of Marisa Kwiatkowski's latest story on filling the Lake County court vacancy created when long-time Lake Juvenile Court Judge Mary Beth Bonaventura accepted Gov. Pence's appointment as director of the Indiana Department of Child Services. From today's story:

At issue is the Lake Superior Court's announcement that Judge Nicholas Schiralli would replace Lake Juvenile Court Judge Mary Beth Bonaventura, who is leaving the bench to become director of the Indiana Department of Child Services. Schiralli would transfer into the position based on seniority.

Bonaventura disagreed with the method of choosing her replacement and wrote letters asking the Supreme Court justices to require her successor be chosen through merit selection rather than a transfer, letters obtained by The Times show.

She argued Schiralli's move to juvenile court would violate a Lake County-based rule and a number of Indiana laws, including one that states a judge who has not been appointed through merit selection is ineligible to transfer, according to her letter dated Feb. 25. Schiralli did not go through merit selection.

Through merit selection, a Judicial Nominating Commission interviews applicants and chooses three finalists to present to the governor, who has final choice.

Bonaventura was appointed through merit selection.

In his letter to the Supreme Court, Pera argued merit selection is not the only way to appoint a qualified juvenile court judge. He said such a notion is offensive to trial judges elsewhere in the state who were elected to their positions. It also implies the Lake Superior Court judges are not equal to one another once in office, Pera said.

More from the long story:
Pera asked the Supreme Court justices to deny Bonaventura's request to intervene. He responded to each of her arguments, paying particular attention to the state statute prohibiting the transfer of a judge who has not gone through merit selection, the letter shows.

Pera argued in his letter the law is "a legislative overreach into the exclusive province of the judiciary" and is "unconstitutional." He said the separation of powers prevents the Legislature from "meddling" in the judiciary. * * *

Joel Schumm, a clinical professor of law at Indiana University's Robert H. McKinney School of Law in Indianapolis, said the judges set a "dangerous precedent" by deciding on their own that a statute is unconstitutional. He said the constitutionality of a law typically is determined through a court case and argument from both parties.

"I'm not familiar with a court, on its own, ever deciding to do something like this," Schumm said.

He said Bonaventura's strongest argument is that Schiralli cannot transfer into juvenile court because it would be against state law for him to do so. Schumm said her other arguments — including her suggestion that a current merit-selected judge could not be reassigned to the juvenile division — are on shakier ground.

A similar transfer recently occurred in the superior court system in Allen County.

"I cannot imagine that the Indiana Supreme Court is eager to be dragged into a dispute between Judge Bonaventura, a long-serving and well-respected judge, and her distinguished colleagues who are also well-known to the justices," Schumm said. "But I don’t see how the court can ignore the issue at this point."

Here, thanks to the NWI Times, is a copy of Chief Judge John Pera's March 11, 13-page letter to the Indiana Supreme Court.

Some quotes from the letter:

[beginning at p. 10] The true interpretation of the separation of powers is that any one department of the government may not be controlled or even embarrassed by another department, unless so ordained in the Constitution. In re Senate Act No. 441, 332 N.E.2d at 98 (striking down as unconstitutional legislation prescribing qualifications for county court judges that required such judges to take and pass a special examination administered by the Supreme Court with a standard of examination less than that fixed to practice law as a violation of the separation of powers).

The legislature cannot interfere with the discharge of judicial duties or attempt to control judicial functions of superior courts once they are created. Montfort, 723 N.E.2d at 411-412 (Ind. 2000). The courts possess the entire body of the intrinsic judicial power of the state, and the other departments are prohibited from assuming to exercise any part of that judicial power. Id.

The Transfer Restriction Statute purports to set qualifications for Judges of the Lake Superior Court in a manner that subjugates it to the control of the legislature and attempts to dictate to the Lake Superior Court the manner in which it may carry out its judicial function.

When a person becomes a Lake Superior Court Judge, he or she holds all of the powers of such office and stands equal to fellow Lake Superior Court Judges. The legislature cannot create a superior court staffed with several judges with equal powers and then declare, in an Orwellian manner, that some superior court judges are more equal than other superior court judges.

Judge Bonaventura's position conflicts with the 2000 Supreme Court Order and the firm and consistent holdings of our appellate courts that the Executive and Legislative branches of Government cannot intermeddle with the internal functions of the Judiciary. The adoption of Judge Bonaventura's analysis will result in the usurpation by the Indiana Legislature of the authority the Supreme Court has to control judicial functions.

Determining which judges serve in which Divisions of the Lake Superior Court is an inherent judicial function committed exclusively to the judicial branch. The Transfer Restriction Statute does no more than dictate to the Lake Superior Court, which Judges of the court may serve in its Divisions. Accordingly, the Transfer Restriction Statute should be given no effect by this Court. This legislative overreach into the judiciary by such statute should be
rejected. * * *

[beginning at p. 12] The gravamen of Judge Bonaventura's Letter Petitions to this Court and her attempts to bar Judge Schiralli from transferring to the Juvenile Division is the untenable notion that elected judges are somehow less qualified than judges appointed by way of Merit Selection.

This Court should dismiss such notion out of hand and spare great offense to the trial judges of this state who tirelessly work in all manner of courts upon all types of cases. In all counties, circuits and disrricts of this State, except Lake County, and even in St. Joseph County (the only other county in which Superior Court judges are selected via Merit Selection), elected judges diligently and competently serve as judges in juvenile cases and in juvenile courts.

Judge Bonaventura's claim that the Juvenile Division requires some "unique" qualifications and that Judge Schiralli, and apparently any other current Lake Superior Court Judge, does not possess the requisite "unique" qualifications required to serve in the Juvenile Division insults the outstanding judicial officers that already serve the public in the Lake Superior Court.

It is without any reservation or equivocation that we state that any current Judge of the Lake Superior Court has the knowledge, skill, character, integrity, competence, and ability to serve in the Juvenile Division. At least four (4)current judges have experience in the Juvenile Division and each can attest that such position requires no set of legal skills, no unique sense of empathy, no special legal knowledge, and no greater devotion to the rule of law and the administration of justice than that required to serve in the Civil Division, Criminal Division or County Division.

See earlier ILB posts, beginning with this most recent one from March 12th.

Posted by Marcia Oddi on March 13, 2013 08:27 AM
Posted to Indiana Courts