(Editor’s note: This article has been updated to clarify Marion County Superior Court Judge William Nelson spoke with the counsel for the Marion County Judicial Selection Committee, and Lacy Johnson, committee member and attorney, made the motion to recommend all 10 judges for retention.)
By Marilyn Odendahl
The Indiana Citizen
June 12, 2024
All 10 Marion County Superior Court judges who were retained on the bench in 2018 and will appear on the November ballot have been recommended for retention, even though two of the judges did not participate in interviews Tuesday before the Marion County Judicial Selection Committee.
Judges Linda Brown and William Nelson did not join their eight judicial colleagues and appear before the committee to answer questions and give suggestions. However, they were included on the press release issued Tuesday afternoon, announcing the judges that the committee found to be qualified and should be retained in office.
Indiana Supreme Court Justice Derek Molter, chair of the selection committee, said the presumption of qualification was given to all 10 judges. He pointed to a 2017 state law establishing the judicial retention process in Marion County, which provided that judges facing a retention vote are presumed to be qualified.
“As we made clear to all the judges, these interviews were voluntary, so it was up to the judges whether they wanted to come in and meet with us,” Molter said. “We were very grateful for the judges that did. It was very helpful and enlightening as the committee went about its work.”
However, just days before the interviews, Nelson admitted he was not sure the committee would recommend him for retention. He said he had talked to the counsel for the selection committee who met with the chair and vice chair of the committee, but days before the interview, the committee leaders were undecided.
“(The counsel) got back with me, but they still have no idea what they intend to do, other than put out a press release after the interviews are conducted,” Nelson told The Indiana Citizen prior to the retention interviews.
Brown did not respond to an inquiry from The Citizen.
The issue was settled at 2:21 Tuesday afternoon, when the committee reconvened for a public session. Committee member Lacy Johnson, attorney at Taft Stettinius & Hollister, made a motion to recommend all 10 judges for retention and after it was seconded, the committee passed the motion on a voice vote.
In 2018, the process for selecting judges in Marion County changed from slating to retention.
Previously, the Marion County Republican and Democratic parties split the ballot evenly between themselves. They each nominated candidates for half of the open judgeships that would appear in a November general election. This process essentially robbed the voters of any choice, since every judicial seat on the ballot only had either a Republican or Democratic candidate.
The 7th U.S. Circuit Court of Appeals, in a 2015 ruling, found this slating method not only appeared to be unique within the United States but was also unconstitutional. In Common Cause Indiana v. Individual Members of the Indiana Election Commission, et al., 14-3300, the unanimous appellate panel held the judicial election process in Marion County violated the First and Fourteenth amendments.
The Indiana General Assembly then created the current judicial retention process for Marion County in 2017, under which the selection committee was established and incumbent judges who wanted to remain on the bench had to file for retention. Now, in general elections, Marion County voters are asked if each individual judge on the ballot should be retained.
Nelson and Brown, along with the eight other judges who sat for interviews on Tuesday, were in the first group of Marion County judges to go through the full retention process. Dubbed Class A, these judges’ terms had expired in 2018 and, to be on that November’s ballot, they had to fill out an application as well as appear before the selection committee.
Pointing to the 2017 law, Nelson said Marion County judges are only required to go through the retention process once. He specifically cited subsection A of Indiana Code 33-33-49-13.7, which states “an incumbent judge must appear only one (1) time before the committee” for purposes of retention.
Yet with their six-year terms set to expire at the end of 2024, the Class A judges received a letter in January explaining they would have to reapply for retention, Nelson said. They not only had to complete the application again, he said, they also had to sign waivers to give the selection committee access to their tax returns, driving history, employment records, credit reports, and disciplinary and criminal records.
“That’s when I chose not to do it,” Nelson said. “The committee was making it sound like it’s a voluntary appearance, which it would have been and which I would have been happy to participate in, but then when they said in order to voluntarily appear you must reapply and you must sign this release of information a second time, to me that did away with the voluntariness. And, to me, that’s just not fair that they’re wanting us to do something that the statute clearly does not require us to do.”
Molter countered the statute does not stop at subsection A. Other language in the statute, he said, gives the Marion County judges the opportunity to come and speak to the selection committee, including subsection E, which entitles each judge to a hearing before the committee.
Also, Molter pointed to subsection C, which he described as being confusing, because it says it does not apply to incumbent judges who have previously appeared before the committee at least one time. Still, the language “presupposes that there can be more than one time” a judge appears for a retention interview, he said. “And, this is the only part that says this subsection does not apply. So the rest of the statute does still apply to people who’ve come before (the committee), including that they have a right to a hearing before the committee.”
Brown, Nelson and the eight judges who went before the selection committee Tuesday will all appear on the November ballot for Marion County. Also on the ballot will be eight judges who were appointed to the Marion County bench since 2018 and who appeared before the committee in March.
The committee can only vote to recommend retention; it cannot remove a judge. Even if the committee does not recommend retaining a particular judge, that judge would still appear on the November ballot.
Nelson acknowledged that voters often have difficulty making an informed decision when voting for the judiciary, because judges are prohibited by the Indiana rules of judicial conduct from campaigning like other candidates on the ballot. Although he agreed the recommendation of the selection committee is a vital piece of information for Marion County voters, he said the statute also addresses the voters’ needs.
“We are presumed to be qualified and shall be retained, unless the committee has reasons not to recommend us, which means we’ve either been disciplined since we went through our initial interview or we haven’t done our jobs or for whatever reason,” Nelson said.
Molter said the retention interviews enable the selection committee to understand the operations of the Marion County Superior Courts, which, in turn, helps the committee members recommend the best candidates to the governor for filling any vacancies on the bench. In addition, he said, appearing before the committee might be important for some judges, especially if they want to address information about them that is in the public domain.
Each of the eight judges who appeared before the committee Tuesday was interviewed for 20 minutes. All were thanked for volunteering to participate in the retention process. The judges talked about the demands of their caseloads, the importance of being fair and impartial, and what they hoped to accomplish if they served another six years. Also, they were asked about the varying processes in the Marion County courts for selecting magistrate judges and increasing the racial and ethnic diversity on the bench.
During his interview, Marion County Superior Court Judge John Chavis talked about accountability. He told the committee members that judges are accountable to the system, the people who helped them get on the bench, and their colleagues. Moreover, “we are accountable to do things the right way and to do the best we can every day.”
Committee member Lacy Johnson asked Chavis if being accountable included sitting for a retention interview.
Chavis hesitated and said he did not want to speak for the judges who were not appearing before the commission, but, he said, their absence does not mean they are shirking their responsibility to the people. They are accountable to Marion County and the state of Indiana, he said.
The selection committee, according to Nelson, did make an offer about a week before the interviews to try to get him to participate.
“I was asked if I would reconsider and appear before the committee if I did not have to fill out the application again,” Nelson said. “I said I would not reconsider, because it would not be fair to my colleagues that already filled out the application a second time.”
This might not be the last time the selection committee is confronted with judges who say they do not have to sit for additional retention interviews. As more judges complete their first terms, Nelson said, the issue could arise again.
“If the committee is going to want to see them again in six years,” Nelson said, “(the judges are) going to have the same problem and have to make the same decision that I made, whether or not they’re going to do it again, if, in fact, the (judicial retention) system remains in effect.”
Dwight Adams, a freelance editor and writer based in Indianapolis, edited this article. He is a former content editor, copy editor and digital producer at The Indianapolis Star and IndyStar.com, and worked as a planner for other newspapers, 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
