For the second time this year, the Indiana State Bar Association publicly rejects laws aimed at judicial selection in Indiana. This time, she speaks out against a bill that would “unnecessarily change” a “working system” for judicial selection in Counties Lake and St. Joseph.
The ISBA on Wednesday issued a statement against House Bill 1453, which the Indiana House passed earlier this month. The bill is also being rejected by the judges of the Supreme Courts of the Lake and St. Joseph, as well as the bar associations in both counties.
Rep. Michael Aylesworth, the Hebron Republican who introduced HB 1453, described the legislation as a simple “reset” of the judicial selection process in northern Indiana counties. Together with Marion and Allen counties, Lake and St. Joseph counties recommend their candidates for Supreme Court Justice through merit rather than judicial election. The judges are then appointed by the governor.
HB 1453 would reduce the number of members of the judicial nomination commissions at the lake and St. Joseph’s to five, with three – including the chair – appointed by the governor and two appointed by the district commissioners. These commissions would send the governor the names of the five most qualified candidates for the Supreme Court Bank, from the three names currently being filed by the Lake County JNC.
Aylesworth said he heard from lawyers in Lake County who believed the local selection process was “skewed” and that the names of finalists were a foregone conclusion before the interview process began. Rep. Jake Teshka, R-South Bend, told lawmakers he had heard similar concerns from lawyers in St. Joseph County.
However, ISBA said the merit screening process worked well in the two northern Indiana counties to “produce qualified, diverse candidates.”
In addition, the bill would jeopardize the independence of the judiciary.
“This bill unnecessarily politicizes the review process for judicial candidates and shifts this responsibility to the executive branch,” said the ISBA’s statement. “The current system allows key input to be exchanged from experienced local practitioners and a Supreme Court / Court of Appeal judge to ensure that a judicial candidate’s qualifications are properly verified.
“In contrast, the current bill would allow the governor to select the majority of the nominating commissioners (three out of five) without the appointed persons having to have any legal training or association with the legal community. Likewise, there is no guarantee that on-site lawyers will be part of the judicial selection process at all. “
Current law provides that the Lake County JNC has four attorneys and four non-attorneys while the St. Joseph body has three attorneys and four non-attorneys. The Lake County statute also sets standards for diversity.
JNC in each county is headed by a member of the Indiana Supreme Court – Judge Geoffrey Slaughter of Lake County and Judge Christopher Goff of St. Joseph County. The legislation would make the Indiana Chief Justice or their nominee an ex officio non-voting member.
According to HB 1453, there is no requirement that lawyers serve in the JNCs, nor are there any requirements for diversity other than the existing language in which the JNCs must reflect “the makeup of the community”. Current law also prohibits commissioners from considering candidates’ political affiliations.
Attorneys for the Lake and St. Joseph JNCs advised the Indiana attorney that the commission members will not discuss politics during their deliberations. The attorney’s members raised concerns about how HB 1453 affects diversity, both on the judiciary’s nomination commissions and on the candidates sent to the governor.
Supreme Court benches in both counties sent letters to the Indiana General Assembly requesting that the judicial selection bylaws in their counties not be changed in the manner suggested by Aylesworth’s bill. Local bar associations in northern Indiana counties also opposed the move. The St. Joseph County Bar Association proposed that the matter be referred to a summer study committee.
“The ISBA has recognized in the past that local bars are best placed to guide the process of selecting their judges in court. For more than 40 years, Lake and St. Joseph counties have had a merit selection system that allows citizens, attorneys and appellate judges to review and select candidates for governor’s appointment, ”ISBA said in its opposition statement.
“In summary, HB 1453 unnecessarily discards a functioning system and replaces it with one that is primarily monitored by the executive branch, without the advice of those who interact with the court on a daily basis.”
Indiana House passed HB 853 on February 8th by 63-31 votes. The bill has been sent to the Senate but has not yet been passed on to a Senate committee.
Also during the Indiana General Assembly session in 2021, ISBA announced its opposition to Joint Senate Resolution 16.
Similar to HB 1453, SJR 16 would fundamentally change the selection process for Indiana Appeals Judges, including Indiana Appeal Court justices and Indiana Supreme Court justices. Among other things, the resolution would reduce the number of Indiana Judicial Nominating Commission attorneys interviewing candidates for appeal courts, granting JNC legislative appointments, and requiring the confirmation and retention of appellate judges by the Indiana Senate and House of Representatives.
“We have come to the conclusion that the legislation would politicize our appeal positions and jeopardize the independence of the judiciary,” said a January letter signed by ISBA President Michael Tolbert. “For this reason the ISBA intends to oppose this legislation.”
SJR 16 was assigned to the Senate Judiciary Committee but was not scheduled for a hearing at the IL date. February 23 is the final day for the final vote on Senate bills in the Senate, and the Judiciary Committee does not currently have a meeting scheduled before that date.