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Monday, February 08, 2016

Ind. Courts - "BOEHM: Problems loom in plan for picking Marion County judges"

SB 352, re the selection of Marion County Superior Courts, has been passed by the Indiana Senate. For background, see this ILB post from Jan. 29th.

Ted Boehm, a former Supreme Court justice, had a Feb. 6th IBJ Forefront column on the proposal. A sample:

The nominating commission would not only select judges, it would also determine their qualification to stand for retention. This, in effect, authorizes the commission to remove sitting judges. Indiana already has a process administered by the Supreme Court to handle cases of judicial incompetence or worse. It should not and arguably cannot constitutionally be supplanted by a new commission outside the judicial branch.

The proposal to give a commission power to refuse a judge’s request to be put on the ballot is inconsistent with the requirement of a retention election. If retention should be put to the voters, why should a group of political appointees screen who gets on the ballot, any more than we permit anyone to police who runs for any office?

No individual or group should have the power to remove a judge without a judicial proceeding. But this problem is exacerbated by the composition of the commission. Eight commissioners would be legislators appointed by Republican and Democratic legislative leaders. Marion County political party chairs would each appoint three, and the Indiana and Indianapolis bar associations would each appoint one.

Remarkably, any commission member could be removed by the appointing authority “at any time.” The result would be a bipartisan commission with 14 of 16 members serving at the pleasure of six politicians. Appointing judges is historically an executive function, not a legislative one. And giving political appointees the power to terminate a judge’s career is not consistent with the concept of the rule of law, or the separation of powers, both of which require an independent judiciary.

Posted by Marcia Oddi on February 8, 2016 09:17 AM
Posted to Indiana Courts