An Overview of the New Marion County Judicial Selection Process
Last April, our Indiana Legislature enacted a new process for selecting judicial officers in Marion County. The legislature created this process after the former slating system in Marion County was deemed unconstitutional by the District Court for the Southern District of Indiana and the Seventh Circuit Court of Appeals affirmed the ruling. House Enrolled Act 1036 created the Marion County Judicial Selection Committee, a 14-member panel chaired by Justice Mark Massa. The committee has two primary duties: 1) vetting incumbent judicial officers who desire to be retained and placed on the ballot for election; and 2) addressing judicial vacancies by providing the governor with three potential nominees to fill the vacancy. House Enrolled Act 1036 provides the IndyBar the opportunity to appoint a representative to the committee and we have appointed K. Michael Gaerte as our representative.
The committee will hold its first organizational meeting on November 28, 2017, to begin finalizing the details of the application process for filling a judicial vacancy and how incumbent judicial officers will be vetted by the committee. It is anticipated that the committee will provide specific information to the legal community in the next few months regarding these processes, but for now, the following is a general overview of how the committee is expected to function under the terms of HEA 1036.
Process for Filling Judicial Vacancies: When the committee learns that a judicial vacancy exists or will exist in Marion County, the committee is to publicly announce as soon as practicable that it is accepting applications from persons wishing to fill the vacancy. The committee is required to nominate three candidates to the governor to fill the vacancy. To be considered by the committee, a person applying must be both a resident of Marion County and an attorney who has been admitted to the bar of Indiana for at least five years. The committee will need to review a formal application completed by the candidate and is required to hold at least one hearing to interview qualified applicants. In selecting the three nominees, the committee shall consider the following regarding each candidate: law school record; contribution to scholarly journals and publications, legislative drafting and legal briefs; public service activities; whether the candidate reflects the diversity and makeup of Marion County; legal experience; probable judicial temperament; memberships on boards of directors, financial interest and any other consideration that might create a conflict of interest with a judicial office; and any other pertinent information that the committee finds important in selecting candidates. After these considerations, the committee is to nominate the three most qualified candidates and submit their names to the governor. The governor then has 60 days to appoint one of the nominees to fill the vacancy. If the governor does not make an appointment within 60 days, then the chair of the committee shall make the appointment.
Process for Retention of Incumbent Judges: Our current Marion County judges have been divided into two retention classes. Retention class A consists of the 20 judges whose terms expire on December 31, 2018. Retention class B consists of the 16 judges whose terms expire on December 31, 2020. So, in 2018, 20 of our current judicial officers will need to decide if they desire to be retained and will need to file a statement with the Clerk of Court and the Secretary of State indicating the same by March 1, 2018. The judge also shall notify the committee that the judge wishes to be retained in office by providing the committee with a written statement describing the judge’s qualifications, and focusing on the qualifications listed above that are to be considered by the committee in filling judicial vacancies. Before a judge may stand for retention on the ballot, the judge must appear before the committee so that the committee may issue a recommendation to the voters of Marion County concerning the judge’s qualifications and suitability to continue to hold judicial office. The committee is required to hold a hearing to consider the materials submitted by each judge and to interview the judge. The hearing is to be held in executive session. It is important to note that each judge is presumed qualified and that the affirmative votes of at least nine members of the committee are required for a determination that a judge is not qualified to retain office. After completion of the hearing, the committee is required to place a statement on the website of the Indiana Supreme Court indicating whether the judge is or is not qualified to be retained in office. The committee also is to release a statement to the news media and voter outreach organizations in Marion County regarding the same and is to take any other steps reasonably calculated to inform the general public in Marion County of the committee’s determination as to a particular judge. Judges who are retained will serve a six-year term and incumbent judges are only required to appear in front of the committee and participate in the vetting process one time.
The IndyBar will continue to monitor the implementation of this new judicial selection process and will provide updates when they become available. In the meantime, if you have any questions about the process or need additional information, please feel free to contact our representative, Michael Gaerte, at MGaerte@bdglegal.com. He will keep all inquiries confidential.