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Thursday, July 20, 2006

Ind. Courts - Still more on: Six Indiana appellate judges up for retention in November

On Monday the ILB called for readers' thoughts on the ILB's proposal to make more information available about the records of the five Court of Appeals judges and one Supreme Court justice who are up for retention at the November 2006 general election. The proposal:

The ILB is considering pulling case statistics from the Courts' reports for the various judges and making them more accessible. The ILB is also considering compiling a list of recent opinions for each judge or justice and making that information available under their name, as well as links to online oral arguments in which they participated.
Yesterday I repeated the call for input and promised a report on readers' input so far by today. Here is the report.

The first response, from an attorney, was not encouraging:

May be too much work for you. Attorneys already know who is good. Non-attorneys could care less -- although you have mentioned the search engine hits you get for that kind of stuff.
The second response, also from an attorney:
How to do an objective and useful resource on judicial retention. That's a challenging question. As you know, I practice in the appellate courts reasonably often, but somehow I don't have that strong of an opinion...in fact I've only rarely had a strongly negative opinion of a judge I've practiced in front of. I do look at prior opinions by the judges that I'm in front of, esp. prior to oral argument, but it's more to get a feel for their recent decisions so as not to hoist myself too quickly.
Both responses were useful, but somewhat attorney-centric. The Constitution does not say only attorneys vote on the retention questions.

I believe many voters want to make meaningful decisions. As I've written before, in the week leading up to the November 2004 general election, the ILB hits tripled. Trying to account for this sudden interest, I found I could access the list of most frequently used search words that had directed visitors to the Indiana Law Blog.

It turned out that the top words and phrases that week were variations on the name "Judge John T. Sharpnack." My interpretation: These were voters who wanted to find out more about the Judge so that they could cast intelligent votes.

The next response was from a software engineer, a non-attorney, who reads the ILB closely each day and who was quick to point out to me my error one day when I messed up the quotes from one of Judge Posner's opinions, adding a paragraph from the dissent as Judge Posner's "conclusion."

He wrote yesterday:

I think this is a great idea. In the past when I have voted I have felt grossly under-informed about the judges I'm voting to retain. The only obvious voting strategies in the absence of information are 1) pro- or anti-incumbent and 2) party affiliation. As I recall, judges' party affiliations don't actually appear on the ballot, but when you live in Carmel, as I do, it's pretty easy to tell from the yard signs which judges are affiliated with the Republican Party.

I would also find statistics on reversal of each judge's opinions to be interesting, but I acknowledge that it might be highly time-consuming to prepare such data in a way that would be detailed enough to be meaningful.

This response supports the position that citizen-voters want more information, and also points out that even very conscientious voters may be somewhat hazy about appellate judges and how they are selected and retained, which I see to be a failure of the legal community to educate, not a failure of the voters.

From another non-attorney, albeit one who keeps close tabs on Indiana legal matters: ".. a real public service, which, one can hope, will keep the General Assembly at bay with regards to changing the merit system of selection and retention."

Finally, from an attorney who appears frequently before the appellate courts (I've edited and combined several of his responses):

I think anything that provides greater information to the public and bar about judges up for retention is great. My concern about using the court's annual report, though, is that it primarily provides statistics about how many opinions were written. I think most lawyers would agree that the judges who write the most are not necessarily writing the best ones. [ILB - The same applies, I think, to those who write the longest.]

Perhaps you could solicit information from readers about specific opinions from the six judges and excerpt those (good and bad). In fairness to the judges, you might contact each of them and ask for a couple of opinions of which they are particularly proud (or think are representative of their work).

I am pretty sure Judge Mathias has been previously asked about which opinions he is most proud. It might have been by the Fort Wayne paper on one of his anniversaries on the bench. I don't think the question is tantamount to stating a position on something for the future but rather gives an indication of the quality of prior work--from the judge's perspective.

I didn't mention the oral arguments earlier. I do think it would be good for the public to be able to see some of those, and hopefully you can make it easy by selecting just a few in which the judge asks quite a few questions.

I wrote back and told the reader that his suggestions paralleled some additional ideas I have been mulling over, which involve a variation on Howard Bashman's "20 Questions for the Appellate Judge."

I said I was thinking of 5 to 10 questions, basically the same for all six of the judges/justices running for retention this fall. The purpose would be to allow the voter to know a little more about the judges than they can find by reading the very brief biographies posted on the court website -- more about their backgrounds and interests -- the kind of things that would be asked if they appeared before an editorial board.

Plus possibly questions such as "list and talk a little about some of your recent opinions: (1) that people may have read about in the papers, or (2) of which you are most proud, or (3) that may impact citizens in their own lives, or (4) etc." Another might be: "tell us how many opinions you write or participate in in a year and how to you manage your time."

No questions, of course, about the judges' positions on issues that might come before the court, or their political views, or asking that they explain their vote on a particular matter.

Is there additional input?

Posted by Marcia Oddi on July 20, 2006 02:23 PM
Posted to Indiana Courts