University of Denver

Judicial Selection at Issue in Two Indiana Counties

Former Manager, Quality Judges Initiative

Indiana's superior courts are created by statute, and as such, the method of selecting judges is determined by statute as well and varies from county to county. In two counties, superior court judges are chosen through a commission-based appointment process, while in all other counties these judges are chosen in partisan or nonpartisan elections. Both of these selection processes are currently the subject of controversy.

In Lake County, where a judicial nominating commission recommends the best qualified applicants to the governor for appointment, a local attorney is challenging the composition of that commission. A 1995 law requires gender, racial, and political balance on the nine-member commission, and Republican Joe Hero alleges that there are not enough women or Republicans on the current commission. However, though it is still on the books, the 1995 law was struck down by a federal judge in 1996 as an impermissible imposition of quotas. Hero argues that the quota law should be followed until the state legislature clarifies its status. The Lake County nominating commission recently recommended to the governor three applicants with Democratic voting records.

In Marion County, the American Civil Liberties Union and Common Cause Indiana filed a lawsuit in November alleging that the process for electing superior court judges is unconstitutional, and last week a federal court rejected a motion filed by state officials to dismiss the suit. Under a 2006 law, Marion County uses a unique process where the Republican and Democratic parties choose an equal number of candidates in their primary elections, the total number of which matches the number of judicial seats available. In essence, then, superior court judges are chosen in the primary election, and third party voters have no say in the matter unless there is a third-party candidate in the general election. In light of the federal court's recent ruling, the lawsuit is moving forward.