An amendment added to HB 1419, until now a vehicle bill, concerning judicial nominations is getting some attention. Here is the text of the language inserted into the bill. As I read it, it does a few things. The judicial nominating committee is made up of 3 attorneys nominated and elected from 3 different judicial districts by attorneys in their respective districts. In addition the commission has 3 non-attorney members appointed by the Governor. Finally, the Chief Justice of the Indiana Supreme Court is on the commission.
The bill alters how the judicial nominating committee is selected. Instead of being nominated by attorneys in the district, the nominating would be done by the Speaker of the House and the President Pro Tem of the Senate. The attorneys would have to vote for individuals pre-approved and nominated by the Speaker and President Pro Tem.
As for the non-attorney members, the bill terminates all of the current non-attorney members’ terms of office on May 31, 2006, allowing Governor Daniels to replace all of them right away regardless of whether their 3-year term expires naturally or not.
The bill then directs the commission to review all judges who are up for a retention vote. If 4 of them recommend for or against retention, that recommendation (for or against) is to be placed on the ballot next to the candidate’s name.
Niki Kelly, writing for the Fort Wayne Journal Gazette has a story in today’s paper. Surely just a coincidence that the bill is being hammered through in advance of the 2006 election where 5 appellate court justices and 1 Supreme Court justice are up for retention — they are all Democrats.
The rationale:
The bill’s author, Rep. Ralph Foley, R-Martinsville, said the system
hasn’t worked out fairly because in 16 years all 21 judges appointed
have been Democrats, including five Supreme Court justices and 16
appeals court judges.
This stands to reason, since Democrats have held the Governor’s office for the past 16 years. And, when Republicans controlled the Governor’s office, Republicans were appointed to the judiciary. As it stands now, Rep. Foley is trying to engineer a system where between 4 to 7 Republicans will be on the nominating commission and will be allowed to insert their unrebutted commentary onto the ballot urging rejection of Democratic judges.
If I were Rep. Foley, a licensed attorney, I would be careful about playing hardball with the judiciary in this fashion. Two weeks ago I posted an entry involving Rep. Foley. He represented Morgan County defending an ordinance it adopted in excess of the county’s authority. Morgan County had adopted a certificate of need ordinance to protect the county hospital by requiring county permission before new medical construction in the county could begin. The County did not have the authority to adopt such an ordinance under the Home Rule Act. In an apparent attempt to obtain for his client from the legislature what could not be obtained under existing law, Rep. Foley authored HB 1492-2005 which would have given Morgan County the authority to adopt such an ordinance. I don’t know that the Rules of Professional Conduct prohibit representing one’s clients in this fashion, but it sounds a little sketchy to me.
I would suggest that, to the extent possible, keeping the political separate from the judicial is the best course of action. If Representative Foley wants to politicize the judiciary in this fashion, things could get ugly, particularly for the attorneys in the legislature, if the judiciary decides to get political.
Other coverage of this bill is available at Rep. Dvorak’s site, The Indiana Law Blog, and Taking Down Words.
How do I get a law passed so that the word “hack” is placed next to Mr. Foley’s name on the ballot?
Promise you’ll put the whole state on Central Daylight Time and only enter into contracts with Indiana companies?
they have a majority in the legislature, they have the governor’s office, and as the Indiana Law Blog points out, a number of judges registered as D’s would be vulnerable if this passed. what makes you think they give a hoot or would be stopped by what the judiciary/bar association thinks?
I wonder if any attorney in the state legislature has ever worried about a disciplinary commission complaint for any of the ethically questionable things they may do during a legislative session (and you and I both know it happens, and not infrequently either). I doubt it.
Maybe if the Republicans stopped harping about evil ambulance-chasing trial lawyers, frivolous lawsuits and ‘legislating from the bench’, then area lawyers would be more receptive to the idea of nominating someone from the Republican party.