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Thursday, March 30, 2017

Ind. Courts - Senate Committee amends HB 1036, intended to replace Marion County judicial selection law declared unconstitutional by the 7th Circuit [Updated]

Here are the two earlier ILB posts on HB 1036, from Feb. 2 and Feb. 6.

Here is the HB 1036 page. The bill hasn't been reprinted yet to reflect the Senate Committee amendment (#6) yesterday, so you will need to read the Jan. 27th version in conjunction with the amendment, or wait for the new version.

Here is the Senate committee amendment #6 to HB 1036.

Yesterday, as Fatima Hussein's long story today in the Indianapolis Star begins:

The Senate Judiciary Committee unanimously passed a House bill Wednesday that would create a committee to select judges in Marion County, a move that was vehemently opposed by black community leaders and legislators who said it would disenfranchise minority voters.

Black legislative leaders said House Bill 1036, which revises the way Marion County's 36 Superior Court judges are selected, would suppress the vote in largely black and Democratic Marion County, and limit diversity on the bench.

The ILB disagrees with the next sentence: "Faced with vocal opposition of the bill, the Senate committee amended the proposal ....". Actually, Senator Mike Young, who is not listed as a Senate sponsor, introduced amendment #6 as soon as HB 1036 came up on the agenda. The amendment was discussed by the committee and adopted before the bill was open to public testimony. Members of the public did not appear to have immediate access to the language of the 18-page amendment. Dave Stafford of Indiana Lawyer, in a long story, has some good coverage of the amendment:
The amended bill removes four representatives of the proposed Marion County Judicial Selection Committee that had been reserved for members of the Indianapolis Bar Association, Marion County Bar Association, Indiana Trial Lawyers Association and Defense Trial Council of Indiana.

Indianapolis Republican Sen. Mike Young’s amendment divides Marion County into four districts, each of which would elect a representative to serve on the panel that would recommend candidates to fill judicial vacancies. If the bill is approved, the governor would make appointments to the 36-member bench, and judges would face retention votes. [ILB update - see comments below]

The bill cleared the committee 10-0 despite concerns from members in both parties that it still might not be constitutional. The General Assembly must adopt a new method of election Indianapolis judges this session after the 7th Circuit Court of Appeals in 2015 invalidated the former “slating” system that guaranteed partisan balance. That system deprived residents a meaningful vote, the 7th Circuit ruled, because each party “slated” the exact number of candidates for the guaranteed number of judgeships.

If the General Assembly fails to act, Marion Superior Judge Marc Rothenberg warned, the federal government would impose a new judicial selection on Indianapolis. Rothenberg said a consensus of judges supports merit selection.

[Updated at 1:10 pm] Indianapolis attorney Greg Bowes has written the ILB with respect to the statement in the IL story quoted above:
It says: “If the bill is approved, the governor would make appointments to the 36-member bench . . ..” This statement is not quite correct under the amendment that Senator Young proposed and the committee adopted. The governor would fill any “vacancy” but the selection commission would fill any “open judicial seats”. The governor’s power is limited to filling out the remainder of any term not completed by the judge. Any time a term is completed, and subsequently open, the commission fills the spot without any input from the governor. This is a major difference. Put another way, the governor’s power would be temporary, and the commission’s power has much more permanence. The commission’s filling of an open judicial seat carries with it a 6-year term followed by the retention vote. The governor’s filling of a vacancy lasts only for the remainder of the current term, but the commission’s appointment could result in a life appointment, so long as the judge succeeds in each 10-year retention vote.

Posted by Marcia Oddi on March 30, 2017 09:07 AM
Posted to Indiana Courts