Introduced Version






HOUSE BILL No. 1703

_____


DIGEST OF INTRODUCED BILL



Citations Affected: IC 3-10-1-16; IC 3-13-6-1; IC 5-8-1-19; IC 33-33-49.

Synopsis: Marion superior court judges. Requires the 32 judges of the Marion superior court to be appointed by the governor for six year terms. Establishes the Marion superior court judicial nominating commission to submit candidates to the governor for appointment to the court. Provides that the judges are retained or rejected by the Marion County electorate every six years. Provides for the initial appointment of 17 judges before October 1, 2006, for terms beginning January 1, 2007, and ending December 31, 2008, with initial retention elections to occur at the 2008 general election. Provides for the initial appointment of the remaining 15 judges before October 1, 2008, for terms beginning January 1, 2009, and ending December 31, 2010, with initial retention elections to occur at the 2010 general election. Repeals the provision that requires the judges to be elected for six year terms.

Effective: July 1, 2005.





Murphy




    January 19, 2005, read first time and referred to Committee on Judiciary.







Introduced

First Regular Session 114th General Assembly (2005)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts between statutes enacted by the 2004 Regular Session of the General Assembly.

HOUSE BILL No. 1703



    A BILL FOR AN ACT to amend the Indiana Code concerning courts and court officers.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 3-10-1-16; (05)IN1703.1.1. -->     SECTION 1. IC 3-10-1-16 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 16. At a primary election a voter may vote for as many candidates for each office as there are persons to be elected to that office at the general election. except as provided in IC 33-33-49-13 for candidates for judge of the Marion superior court.
SOURCE: IC 3-13-6-1; (05)IN1703.1.2. -->     SECTION 2. IC 3-13-6-1 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 1. (a) A vacancy that occurs, other than by resignation, in the office of judge of a circuit, superior, probate, or county court shall be certified to the governor by the circuit court clerk of the county in which the judge resided.
    (b) A vacancy in the office of judge of a circuit court shall be filled by the governor as provided by Article 5, Section 18 of the Constitution of the State of Indiana. The person who is appointed holds the office until:
        (1) the end of the unexpired term; or
        (2) a successor is elected at the next general election and

qualified;
whichever occurs first. The person elected at the general election following an appointment to fill the vacancy, upon being qualified, holds office for the six (6) year term prescribed by Article 7, Section 7 of the Constitution of the State of Indiana and until a successor is elected and qualified.
    (c) A vacancy in the office of judge of a superior, probate, or county court shall be filled by the governor subject to the following:
        (1) IC 33-33-2-39.
        (2) IC 33-33-2-43.
        (3) IC 33-33-45-38.
         (4) IC 33-33-49-43.
        
(4) (5) IC 33-33-71-40.
The person who is appointed holds office for the remainder of the unexpired term.

SOURCE: IC 5-8-1-19; (05)IN1703.1.3. -->     SECTION 3. IC 5-8-1-19 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 19. (a) Under Article 7, Section 13 of the Constitution of the State of Indiana, whenever a circuit, superior, probate, or county court judge or prosecuting attorney has been convicted of corruption or any other high crime, the attorney general shall bring proceedings in the supreme court, on information, in the name of the state, for the removal from office of the judge or prosecuting attorney.
    (b) If the judgment is against the defendant, the defendant is removed from office. The governor, the officer, or the entity required to fill a vacancy under IC 3-13-6-2 shall, subject to:
        (1) IC 33-33-2-39;
        (2) IC 33-33-2-43;
        (3) IC 33-33-45-38; and
         (4) IC 33-33-49-43; and
        
(4) (5) IC 33-33-71-40;
appoint or select a successor to fill the vacancy in office.
SOURCE: IC 33-33-49-4.5; (05)IN1703.1.4. -->     SECTION 4. IC 33-33-49-4.5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 4.5. As used in this chapter, "commission" refers to the Marion County superior court judicial nominating commission established by section 35 of this chapter.
SOURCE: IC 33-33-49-6; (05)IN1703.1.5. -->     SECTION 5. IC 33-33-49-6 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 6. (a) There is established a superior court in Marion County.
     (b) The court consists of thirty-two (32) judges.
    (b) To be qualified to serve as a judge of the court, a person must

be, at the time a declaration of candidacy or a petition of nomination under IC 3-8-6 is filed:
        (1) a resident of Marion County; and
        (2) an attorney who has been admitted to the bar of Indiana for at least five (5) years.
    (c) During the term of office, a judge of the court must remain a resident of Marion County.
    (c) The term of office of a judge is six (6) years.
Unless rejected by the electorate of Marion County under sections 45 and 46 of this chapter, a judge shall serve successive six (6) year terms.

SOURCE: IC 33-33-49-26; (05)IN1703.1.6. -->     SECTION 6. IC 33-33-49-26 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 26. The judge of the Marion circuit court may sit as a judge of the court, with the court's permission, in all matters pending before the court, without limitation and without any further order, in the same manner as a judge of the court with all the rights and powers of an elected a judge of the court.
SOURCE: IC 33-33-49-30; (05)IN1703.1.7. -->     SECTION 7. IC 33-33-49-30 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 30. (a) A judge remains qualified to hold office as long as the judge:
        (1) remains fair and impartial in judicial functions;
        (2) maintains a high standard of morality in dealings, public and private;
        (3) remains physically and mentally capable of performing all the functions and duties of the office of judge; and
        (4) continues to reside in Marion County.
    (b) Complaints against a judge must be forwarded to the commission on judicial qualifications as provided in IC 33-38-13 by any judge of the superior court.
    (c) A judge of the court must retire upon becoming seventy-five (75) years of age. If the judge wishes to retire before the judge's term has ended or upon reaching the mandatory retirement age, the judge shall provide written notice to the presiding judge of the court. The judge shall continue to hold office until a successor has been appointed and qualified.
    (d) When a vacancy occurs in the court by death, removal, retirement, or for any other reason, the governor shall appoint a successor judge who serves the balance of the term of the vacating judge. The successor judge must be a member of the same political party as the judge who is to be succeeded.
SOURCE: IC 33-33-49-35; (05)IN1703.1.8. -->     SECTION 8. IC 33-33-49-35 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 35. (a) The Marion County

superior court judicial nominating commission is established.
    (b) The commission consists of the following five (5) members:
        (1) The county chairperson of each of the two (2) major political parties (as defined in IC 3-5-2-30) in Marion County or the chairperson's designee.
        (2) Three (3) attorney members appointed by the governor, not more than two (2) of whom may be members of the same political party, as provided in section 38 of this chapter.
    (c) A member of the commission:
        (1) may not hold an elected public office; and
        (2) is not eligible for appointment to a judicial office in Marion County:
            (A) while the member is a member of the commission; and
            (B) for three (3) years after the member ceases to be a member of the commission.
    (d) If a member of the commission ceases to be a resident of Marion County, the member is considered to have resigned from the commission.
    (e) A member of the judicial nominating commission may serve until the member's successor is appointed.

SOURCE: IC 33-33-49-36; (05)IN1703.1.9. -->     SECTION 9. IC 33-33-49-36 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 36. (a) The Marion County board of county commissioners shall provide facilities, equipment, supplies, and services necessary for the commission to carry out the commission's duties.
    (b) The members of the commission shall serve without compensation. However, the board of county commissioners shall reimburse members of the commission for actual expenses incurred in performing the members' duties.

SOURCE: IC 33-33-49-37; (05)IN1703.1.10. -->     SECTION 10. IC 33-33-49-37 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS: Sec. 37. (a) The governor shall appoint a chairperson of the commission.
    (b) Three (3) members of the commission constitute a quorum.

SOURCE: IC 33-33-49-38; (05)IN1703.1.11. -->     SECTION 11. IC 33-33-49-38 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 38. (a) To be eligible to be an attorney member of the commission, a person must be:
        (1) on the current annual list of attorneys certified to the clerk of the supreme court; and
        (2) a resident of Marion County.
    (b) One (1) month before the expiration of a term of an attorney

member, an appointment or reappointment shall be made in accordance with subsection (a). All appointments made by the governor shall be certified to the:
        (1) secretary of state;
        (2) clerk of the supreme court; and
        (3) clerk of the superior court;
not more than ten (10) days after the date of the appointment.
    (c) An attorney member:
        (1) shall be appointed for a term of four (4) years; and
        (2) may not serve more than two (2) consecutive terms.
    (d) Whenever an attorney member vacancy occurs on the commission, the chairperson of the commission shall promptly notify the governor in writing of the vacancy. Vacancies shall be filled by appointment of the governor not more than sixty (60) days after the date the notice of the vacancy is received. If the governor fails to appoint an attorney member within the time required in this section, the appointment shall be made by the chief justice. An attorney member appointed under this subsection shall fill the vacancy for the remainder of the unexpired term.

SOURCE: IC 33-33-49-39; (05)IN1703.1.12. -->     SECTION 12. IC 33-33-49-39 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 39. (a) Whenever a vacancy occurs in the court the:
        (1) clerk shall promptly notify the chairperson and each member of the commission of the vacancy;
        (2) chairperson shall call a meeting of the commission not more than ten (10) days after the date the chairperson receives the notice; and
        (3) commission shall:
            (A) submit its nominations of three (3) candidates for each vacancy; and
            (B) certify the nominations to the governor;
        not later than sixty (60) days after the date the vacancy occurs.
    (b) When it is known that a vacancy will occur at a definite future date within the term of the governor then serving but the vacancy has not yet occurred, the:
        (1) clerk shall notify the chairperson and each member of the commission immediately of the vacancy; and
        (2) commission, not more than fifty (50) days after the date the commission receives the notice of the vacancy, may make its nominations and submit to the governor the names of three

(3) persons nominated for the forthcoming vacancy.
    (c) Meetings of the commission shall be called:
        (1) by the chairperson; or
        (2) if the chairperson fails to call a necessary meeting, upon the call of any three (3) members of the commission.
A person who calls a meeting of the commission shall give each member of the commission at least five (5) days written notice by mail of the date, time, and place of the meeting unless the commission at its previous meeting designated the date, time, and place of the commission's next meeting.
    (d) The commission may act only at a public meeting. IC 5-14-1.5 applies to meetings of the commission. The commission may not meet in executive session under IC 5-14-1.5-6.1 for the consideration of a candidate for judicial appointment.
    (e) The commission may act only by the concurrence of a majority of its members attending a meeting.
    (f) The commission may adopt rules for the conduct of its proceedings and the discharge of its duties. The rules must provide for the receipt of public testimony concerning the qualifications of candidates for nomination to the governor.

SOURCE: IC 33-33-49-40; (05)IN1703.1.13. -->     SECTION 13. IC 33-33-49-40 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 40. In selecting the three (3) candidates to be submitted to the governor under section 39 of this chapter, the commission shall comply with the following requirements:
        (1) The commission shall submit only the names of the three (3) most highly qualified candidates from among all those eligible individuals considered. However, not more than two (2) of the candidates may be members of the same political party. To be eligible for nomination as a judge of the Marion superior court, a person must be:
            (A) a resident of Marion County;
            (B) a citizen of the United States; and
            (C) admitted to the practice of law in Indiana.
        (2) The commission shall evaluate in writing each eligible individual on the following factors:
            (A) Law school record, including any academic honors and achievements.
            (B) Contribution to scholarly journals and publications, legislative drafting, and legal briefs.
            (C) Activities in public service, including:
                (i) writings and speeches concerning public or civic affairs that are on public record, including campaign speeches or writings, letters to newspapers, and testimony before public agencies;
                (ii) government service;
                (iii) efforts and achievements in improving the administration of justice; and
                (iv) other conduct relating to the individual's profession.
            (D) Legal experience, including the number of years of practicing law, the kind of practice involved, and reputation as a trial lawyer or judge.
            (E) Probable judicial temperament.
            (F) Physical condition, including age, stamina, and possible habitual intemperance.
            (G) Personality traits, including the exercise of sound judgment, ability to compromise and conciliate, patience, decisiveness, and dedication.
            (H) Membership on boards of directors, financial interests, and any other consideration that might create conflict of interest with a judicial office.
            (I) Any other pertinent information that the commission feels is important in selecting the best qualified individuals for judicial office.
        (3) The written evaluations may not be made on an individual until the individual states in writing that the individual desires to hold a judicial office that is or will be created by vacancy.

SOURCE: IC 33-33-49-41; (05)IN1703.1.14. -->     SECTION 14. IC 33-33-49-41 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 41. (a) The commission shall submit to the governor its written evaluation of the qualifications of each of the three (3) candidates submitted to the governor under section 39 of this chapter.
    (b) The names of the candidates and the written evaluations are public records that may be inspected and copied under IC 5-14-3.
    (c) An eligible candidate whose name was not submitted to the governor shall have access to any evaluation on the candidate by the commission and has the right to make the evaluation public.
    (d) Records specifically prepared for discussion or developed during discussion in an executive session under IC 5-14-1.5-6.1 are excepted from public disclosure, unless the records are prepared for use in the consideration of a candidate for judicial appointment.

SOURCE: IC 33-33-49-42; (05)IN1703.1.15. -->     SECTION 15. IC 33-33-49-42 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 42. (a) After the commission has submitted to the governor the names of three (3) candidates for appointment to fill a vacancy of the court:
        (1) a name may be withdrawn for cause considered by the commission to be of a substantial nature affecting the nominee's qualifications to hold office; and
        (2) another name may be substituted;
before the appointment is made to fill the vacancy.
    (b) If a candidate dies or requests in writing that the candidate's name be withdrawn, the commission shall nominate another person to replace the candidate.
    (c) If two (2) or more vacancies exist, the commission shall nominate and submit to the governor a list of three (3) different persons for each of the vacancies. The commission may, before an appointment is made:
        (1) withdraw the lists of nominations;
        (2) change the names of any persons nominated from one (1) list to another; and
        (3) resubmit the lists as changed or substitute a new person for any person previously nominated.

SOURCE: IC 33-33-49-43; (05)IN1703.1.16. -->     SECTION 16. IC 33-33-49-43 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 43. (a) A vacancy occurring on the court shall be filled by appointment of the governor:
        (1) from the list of three (3) candidates submitted to the governor by the commission under section 39 of this chapter;
        (2) subject to the requirements described in subsection (d); and
        (3)
not more than sixty (60) days after the date the list is presented to the governor.
    (b) If the governor fails to make an appointment from the list not more than sixty (60) days after the date the list is presented to the governor, the appointment shall be made by the chief justice or the acting chief justice:
        (1) from the same list or altered list provided under section 42 of this chapter; and
        (2) subject to the requirements of subsection (d).
    (c) The governor shall consider only those qualifications of the candidates included in section 40 of this chapter.
    (d) In making appointments under this section, the governor

and chief justice shall comply with the following requirements:
        (1) Not more than nine (9) of the seventeen (17) judges who will be retained or rejected under section 45(a) of this chapter beginning with the 2008 general election and every six (6) years thereafter may be members of the same political party.
        (2) Not more than eight (8) of the seventeen (17) judges who will be retained or rejected under section 45(b) of this chapter beginning with the 2010 general election and every six (6) years thereafter may be members of the same political party.

SOURCE: IC 33-33-49-44; (05)IN1703.1.17. -->     SECTION 17. IC 33-33-49-44 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 44. (a) An appointment to the court made by the governor or chief justice takes effect:
        (1) immediately if a vacancy exists on the date of the appointment; or
        (2) on the date the vacancy is created if a vacancy does not exist on the date of appointment.
    (b) If a person is appointed to the court to fill a vacancy that occurs before the end of a judge's six (6) year term, the person appointed:
        (1) shall serve the remainder of the judge's unexpired term; and
        (2) may run as a candidate for retention under section 45 of this chapter.

SOURCE: IC 33-33-49-45; (05)IN1703.1.18. -->     SECTION 18. IC 33-33-49-45 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 45. (a) Beginning with the 2008 general election and every six (6) years thereafter, persons eligible to vote at the general election may vote to retain or reject seventeen (17) judges of the court as described in section 46 of this chapter.
    (b) Beginning with the 2010 general election and every six (6) years thereafter, persons eligible to vote at the general election may vote to retain or reject fifteen (15) judges of the court as described in section 46 of this chapter.
    (c) If a judge of the court is retained for a six (6) year term at a general election, the term of the judge begins January 1 after the general election and continues through December 31 in the sixth year.

SOURCE: IC 33-33-49-46; (05)IN1703.1.19. -->     SECTION 19. IC 33-33-49-46 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 46. (a) The question of the

retention in office or rejection of a judge of the court shall be submitted to the electorate of Marion County at the general election immediately preceding expiration of the term of the judge.
    (b) At the general election, the question of the retention in office or rejection of a judge described in subsection (a):
        (1) shall be submitted to the electorate of Marion County in the form prescribed by IC 3-11-2; and
        (2) must state "Shall Judge (insert name) of the Marion County superior court be retained in office for an additional term?".
    (c) If a majority of the ballots cast by the electors voting on any question is "Yes", the judge whose name appeared on the question shall be approved for a six (6) year term beginning January 1 following the general election as provided in section 45(c) of this chapter.
    (d) If a majority of the ballots cast by the electors voting on any question is "No", the judge whose name appeared on the question shall be rejected. The office of the rejected judge is vacant on January 1 following the rejection. The vacancy shall be filled by appointment by the governor under section 43 of this chapter.
    (e) The Marion County election board shall submit the question of the retention in office or rejection of a judge described in subsection (a) to the electorate of Marion County. The submission of the question is subject to the provisions of IC 3 that are not inconsistent with this chapter.
    (f) If a judge who is appointed does not desire to serve another term, the judge shall notify in writing the clerk at least sixty (60) days before any general election and the:
        (1) question of that judge's retention in office or rejection may not be submitted to the electorate; and
        (2) office becomes vacant at the expiration of the judge's term.

SOURCE: IC 33-33-49-13; (05)IN1703.1.20. -->     SECTION 20. IC 33-33-49-13 IS REPEALED [EFFECTIVE JULY 1, 2005].
SOURCE: ; (05)IN1703.1.21. -->     SECTION 21. [EFFECTIVE JULY 1, 2005] (a) The governor shall appoint:
        (1) the three (3) attorney members of the Marion County superior court judicial nominating commission under IC 33-33-49-35(b)(2) and IC 33-33-49-38, both as added by this act, before October 1, 2005; and
        (2) a chairperson of the commission under IC 33-33-49-37(a), as added by this act, before November 1, 2005.
    (b) This SECTION expires November 2, 2005.

SOURCE: ; (05)IN1703.1.22. -->     SECTION 22. [EFFECTIVE JULY 1, 2005] (a) The terms of office of the seventeen (17) judges of the Marion superior court whose terms would have expired December 31, 2006, under IC 33-33-49-13, as repealed by this act, expire December 31, 2006.
     (b) Notwithstanding IC 33-33-49-39(a)(3), as added by this act, the Marion County superior court judicial nominating commission shall submit the names of two (2) candidates for each of the seventeen (17) judicial vacancies described in subsection (a) to the governor under IC 33-33-49-39, as added by this act, before March 1, 2006. In submitting the names of candidates to the governor under this SECTION, the commission shall comply with the requirements of IC 33-33-49-43(d)(1), as added by this act.
    (c) Notwithstanding the time limits in IC 33-33-49-43, as added by this act, the governor shall appoint seventeen (17) persons to fill the seventeen (17) judicial vacancies under this SECTION before October 1, 2006. In appointing persons under this SECTION, the governor shall comply with the requirements of IC 33-33-49-43(d)(1), as added by this act.
    (d) Notwithstanding IC 33-33-49-6(c), as amended by this act, the term of office of a judge appointed under this SECTION begins January 1, 2007, and ends December 31, 2008.
    (e) The initial retention elections for the seventeen (17) judges appointed under this SECTION must occur at the 2008 general election described in IC 33-33-49-45(a), as added by this act.
    (f) This SECTION expires January 2, 2009.

SOURCE: ; (05)IN1703.1.23. -->     SECTION 23. [EFFECTIVE JULY 1, 2005] (a) The terms of office of the fifteen (15) judges of the Marion superior court whose terms would have expired December 31, 2008, under IC 33-33-49-13, as repealed by this act, expire December 31, 2008.
     (b) Notwithstanding IC 33-33-49-39(a)(3), as added by this act, the Marion County superior court judicial nominating commission shall submit the names of two (2) candidates for each of the fifteen (15) judicial vacancies described in subsection (a) to the governor under IC 33-33-49-39, as added by this act, before March 1, 2008. In submitting the names of candidates to the governor under this SECTION, the commission shall comply with the requirements of IC 33-33-49-43(d)(2), as added by this act.
    (c) Notwithstanding the time limits in IC 33-33-49-43, as added by this act, the governor shall appoint fifteen (15) persons to fill the fifteen (15) judicial vacancies under this SECTION before October 1, 2008. In appointing persons under this SECTION, the governor shall comply with the requirements of IC 33-33-49-43(d)(2), as

added by this act.
    (d) Notwithstanding IC 33-33-49-6(c), as amended by this act, the term of office of a judge appointed under this SECTION begins January 1, 2009, and ends December 31, 2010.
    (e) The initial retention elections for the fifteen (15) judges appointed under this SECTION must occur at the 2010 general election described in IC 33-33-49-45(b), as added by this act.
    (f) This SECTION expires January 2, 2011.