18
September
By Marilyn Odendahl
The Indiana Citizen
September 18, 2024
This November, three Indiana Supreme Court justices and two Court of Appeals of Indiana judges will be on the ballot for retention.
Indiana voters do not elect the state justices or appellate judges. Instead, the justices and appellate judges are appointed by the governor as part of a judicial merit selection process. However, through the retention vote, Hoosiers do get to decide whether the jurists on the ballot should be retained.
The November ballot will include a single question for each of the five jurists, asking voters whether the justice or judge should be retained. Any of the five who gets a majority of “yes” votes will be retained, but if any lose the retention vote, he or she will be removed from the bench and the merit selection process will fill the vacancy.
Why does Indiana have judicial retention votes?
In 1970, Hoosiers voted to amend the state constitution so that Supreme Court justices and Court of Appeals judges are not elected by popular vote. Instead, the jurists are appointed through a merit selection process and periodically appear on the ballot, giving voters the opportunity to determine whether they should be retained or removed from the bench.
The merit selection process is championed as keeping politics out of the judiciary. Prior to merit selection, all Indiana judges were elected by partisan ballot, which resulted in appellate judges being swept in and out of office “on the political tides that had nothing to do with their judicial qualifications or performance,” according to Senior Judge Edward W. Najam Jr.’s history, “Merit Selection in Indiana: The Foundation for a Fair and Impartial Appellate Judiciary.” The article highlights a survey of Indiana attorneys conducted by the Judicial Study Commission in the 1960s, which found 87% of the attorney-respondents believed politics had influenced judges’ rulings to some degree and 32% felt politics “frequently influenced (judicial) decisions.”
How does merit selection work?
The merit selection process begins with the seven-member Indiana Judicial Nominating Commission soliciting applications whenever a vacancy opens on either the Supreme Court or the Court of Appeals. After reviewing the application materials and interviewing all the candidates, the commission will recommend three candidates. The governor will then appoint one of the three.
Two years after being appointed, the new justice or judge will be placed on the ballot for retention. If that jurist is retained, then he or she will serve a 10-year term and be placed on the retention ballot every decade. State law mandates that all justices and appellate court judges retire at age 75.
As Najam noted in his article, the application and vetting process for the judicial vacancy is rigorous and “not for the faint-hearted.” Each applicant must complete a detailed questionnaire about his or her professional and personal life that is then posted online. The commission does its own investigation of each applicant and then holds public interviews, making further inquiries into each individual’s personal and legal backgrounds.
“There is no question that the Judicial Nominating Commission conducts a more thorough, systematic, objective, and reliable evaluation of judicial candidates than the political party convention ever did,” Najam wrote.
How will the retention question appear on the ballot?
State statute requires the question for retaining an Indiana Supreme Court justice to be as follows:
“Shall Justice (insert name here) be retained in office?”
For a COA judge, the retention question will be:
“Shall Judge (insert name here) be retained in office?”
What happens if a justice or judge is not retained?
The term of a justice or judge whose retention is rejected by the electorate ends when the Indiana secretary of state issues a certificate under Indiana Code 3-12-5-1 stating the justice or judge has been removed. The secretary of state must issue the certificate no later than the third Friday after the election.
Then the merit selection process will then start again to fill the vacancy.
What cases are heard by the Supreme Court and Court of Appeals?
The Indiana Supreme Court and Court of Appeals of Indiana hear cases that have been decided in a county superior or circuit court. If one of the two parties in the dispute disagrees with the trial court’s decision or the jury’s verdict, that party can appeal.
Any criminal or civil case that is appealed must be reviewed by the Court of Appeals of Indiana. Also the COA can review the decisions of the state government’s administrative agencies, including the Worker’s Compensation Board, the Department of Workforce Development and the Utility Regulatory Commission.
The Indiana Supreme Court must hear appeals on criminal cases in which the sentence is either death of life without parole. Also, it must hear appeals involving waiver of parental consent to abortion, appeals in which a state or federal statute has been declared unconstitutional and appeals involving orders issued by the lower courts mandating funds.
All other cases will primarily come from an individual appealing the ruling from either the Court of Appeals or the Indiana Tax Court. In these cases, the Supreme Court reviews the petitions for transfer and decides which cases to review.
How many judges hear each case on appeal?
The Court of Appeals has 15 judges. Its cases are heard by three-judge panels.
The Supreme Court has five justices. All five sit for oral arguments, unless one recuses himself or herself from participating in the review of the case.
Who is on the retention ballot this November?
From the Indiana Supreme Court:
Chief Justice Loretta Rush and Associate Justices Mark Massa and Derek Molter will be on the ballot for retention this November.
Rush was appointed to the Supreme Court in 2012 as the state’s 108th justice and became Indiana’s first female chief justice in 2014. As chief justice, she oversees the state’s entire judicial branch, working with the Indiana General Assembly to secure funding and allocate resources and supervising the judicial administrative office, which handles an array of duties, including caseload measures, technology updates, and the admission and discipline of lawyers.
In addition, Rush has served on several national committees including the National Center for Courts Board of Directors; immediate past-president of the Conference of Chief Justices and co-chair of the National Judicial Opioid Task Force.
A graduate of Indiana University Maurer School of Law, Rush spent 15 years in private practice in Lafayette and then was elected three times as Tippecanoe Superior Court 3 judge.
Massa was appointed in 2012 and is Indiana’s 107th justice. A native of Milwaukee, Wisconsin, Massa graduated from Indiana University and worked as a newspaper reporter before becoming a deputy press secretary and speechwriter for Gov. Robert Orr. He pursued a law degree in the evenings at Indiana University Robert H. McKinney School of Law.
He worked as a deputy prosecutor for the Marion County Prosecutor’s Office and as an assistant United States attorney for the Southern District of Indiana. Prior to his appointment, he served as general counsel for Gov. Mitch Daniels.
Molter was appointed in 2022 and is the state’s 111th justice. He had been a judge on the Court of Appeals, having been appointed to the appellate court in 2021, but served less than a year before being elevated to the Supreme Court.
Prior to becoming an appellate judge, Molter was a partner in the litigation practice group at Ice Miller in Indianapolis, where he led the appellate practice and handled appeals in state and federal courts throughout the United States.
He is a 2007 magna cum laude graduate of Indiana University Maurer School of Law.
From the Court of Appeals:
Judges Rudolph Pyle III and Peter Foley will be on the ballot for retention.
Pyle was appointed to the Court of Appeals in 2012. He had served four years as an Indiana state trooper, and, after completing his law degree, clerked for Court of Appeals Judge Carr Darden, before becoming a deputy prosecuting attorney in Madison County. Prior to his appointment to the appellate court, Pyle was the Madison County Circuit Court judge.
He is a 2000 graduate of Indiana University Maurer School of Law.
Foley was appointed to the Court of Appeals in 2022. He began his legal career practicing at the Martinsville law firm started by his grandfather, Charles Foley, in 1930. After more than 17 years in private practice, Foley was elected in 2014 as judge of Morgan County Superior Court 1.
He is a 1997 graduate of Indiana University Robert H. McKinney School of Law.
For more information
Hoosiers wanting to learn more about the retention process and who will be on the retention ballot should visit the special website created by the Supreme Court’s Office of Judicial Administration.
Dwight Adams, an editor and writer based in Indianapolis, edited this article. He has been a content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and a planner for other papers, including the Louisville Courier Journal.
The Indiana Citizen is a nonpartisan, nonprofit platform dedicated to increasing the number of informed and engaged Hoosier citizens. We are operated by the Indiana Citizen Education Foundation, Inc., a 501(c)(3) public charity. For questions about the story, contact Marilyn Odendahl at marilyn.odendahl@indianacitizen.org.
