Editorial: Justice faces rare re-election obstacle



Experts on elections often debate the merits of an informed voter. Let’s face it; many voters, if they’re honest, have no clue who they are voting for the farther down the ballot they go. Everyone knows who’s running for president, but the local township advisory board?

Perhaps the most ill-informed vote appears at the very bottom of the ballot — retention of state Supreme Court and other justices. High court justices up for retention appear every 10 years on the ballot in the form of a simple “yes” or “no” question. Most people check the “yes” box (if they bother to even vote at all) and leave the voting booth.

No justice from the state Supreme Court has been removed by voters since Indiana’s Constitution was amended in 1970 to require a vote of retention. If fact, justices are often retained by margins of 70 percent.

Could 2012 be an exception?

Opposition to Justice Steven David is getting organized. In case you forgot, he’s the justice who wrote an opinion stemming from a 3-2 decision asserting Hoosiers did not have the right to resist the police, even if officers illegally enter their homes. Critics said the 2011 decision violated Fourth Amendment rights.

Tea party activists, Libertarians and others are working to oust the justice. They face an uphill battle, and one that ought to fail.

David, you might recall, was the hearing officer in the Mark McKinney/drug task force/forfeiture case when he was judge on the circuit court bench in Boone County. He was appointed by Gov. Mitch Daniels to the high court about two years ago but is up for retention under election rules.

Here’s what David wrote in September of last year in a 4-1 decision that clarified the original one handed down: “We hold that the Castle Doctrine is not a defense to the crime of battery or other violent acts on a police officer. Our earlier opinion was not intended to, and did not, change that existing law about the right of the people to be secure in their persons, houses, and papers against unreasonable searches and seizures.”

The state’s high court ruled correctly on the matter because there is no language in the Indiana or federal Constitution that gives citizens a clearly expressed right to resist unlawful entry. It’s an interpretation that’s evolved in other courts.

The justice’s opinion sparked protests and resulted in the Indiana Legislature this year passing a bill specifying a self-defense law shelters residents who reasonably believe force is necessary to protect themselves, someone else, or their own property from unlawful actions by a public servant.

No matter that the perceived wrong was corrected. In this age, no “sins” are ever forgiven or forgotten.

Andy Downs of IPFW said, “Even if you disliked his decision, the law has changed, so the decision is moot.”

There’s also danger in “punishing” a justice over a single opinion, while ignoring the entirety of his decisions.

Thankfully, Indiana’s justices decide cases free from campaign finance considerations, a need to attract votes, or fear of partisan attack. In fact, justices are mostly prohibited from campaigning for their jobs.

That’s how it ought to remain. Indiana has a system whereby justices are accountable to the people but are placed above the campaign process, and thus able to render decisions that are fair and impartial.

Organizing a dump David effort will take Indiana in the wrong direction. A Facebook page to do just that has attracted 557 “likes” so far.

We have no problem with opposition organizing to oust a judge. That’s how things work in a democracy.

However, punishing a judge over a single decision lowers the status of the judicial process and can send a chilling message to other justices and judges. Indiana is better than that, and we think voters are smart enough to render their own correct decision.

Distributed by The Associated Press.

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