by Niki Kelly, Indiana Capital Chronicle
October 21, 2024
Judicial retention is usually a foregone conclusion during election season, but an effort to remove three Indiana Supreme Court justices who upheld Indiana’s abortion ban is causing a stir this year.
Chief Justice Loretta Rush, Justice Mark Massa and Justice Derek Molter are up for retention, along with two appeals court judges. That means Hoosier voters can choose to keep them on the bench or end their judicial careers.
Rush pushed voters to examine more than the abortion ban case while making retention decisions.
“We appoint judges in Indiana based on merit selection,” Rush said. “My concern would be, if you take one issue and say, ‘We’re going to send a message on this one issue,’ and not looking at the body of work. I worry about our branch of government becoming political, and judges saying, ‘Which way are the political winds going on a case?’ to make a decision.”
No supreme court justice has lost a retention vote since the process was instituted in 1970, according to the Indiana Lawyer.
A new survey released by the Indiana State Bar Association shows about 84% of its members support retaining the justices.
“Allowing retention elections to become a referendum on one or two high-profile cases threatens to distort the judicial process and compromise the courts’ ability to function independently,” the group said in a written statement. “Our system of judicial selection for Indiana’s appellate courts, though not without imperfections, is designed to minimize the influence of partisan politics and special interests.”
Indiana has used a merit selection process to choose and retain its appellate judges for the past 50 years. Once appointed, a judge must stand for retention at the first statewide general election after the judge has served for two full years. If retained, the judge is on the retention ballot every 10 years. The retention system is designed to allow appellate judges to decide cases fairly and impartially, free from campaign finance considerations, and without influence by partisan politics.
“There are cases that we may not like where the law takes us on a particular case, but we take an oath with regard to following the law … and we take that oath very seriously,” Rush said. “I see what you see. I’m aware of it and I’m concerned long-term.”
Rush has been on the Indiana Supreme Court since 2012 after being appointed by then-Gov. Mitch Daniels. She was retained by voters in 2014 and just began her third term as chief justice. Before joining the high court, Rush was a juvenile court judge in Tippecanoe County. One of her most high-profile opinions backed Gov. Eric Holcomb in his dispute with legislative leaders over special session powers. It was a 5-0 decision, though Rush authored the opinion.Massa was appointed to the Indiana Supreme Court by Daniels in 2012, and was retained in 2014. Massa was a local journalist before becoming a press secretary and speechwriter for then-Gov. Robert Orr. After getting his law degree he served as a deputy prosecutor and assistant U.S. attorney. He worked for Daniels’ administration in several roles. One of his most well-known opinions upheld a law limiting who can run under the banners of a Republican or Democrat in elections. The case involved egg farmer John Rust‘s bid for U.S. Senate as a Republican without having pulled GOP ballots in the two most recent primary elections.Molter is the newest justice to the Indiana Supreme Court, having been appointed by Gov. Eric Holcomb in 2022. He’s up for his first retention vote. Molter previously had a short stint on the Court of Appeals and before that worked in the private sector handling appeals in the state and federal courts. He authored the recent opinion upholding the state’s near-total abortion ban. The decision found women have the right to an abortion to save their lives or avoid serious health risks, but that the General Assembly was within its rights to set narrow regulations. Massa and Rush concurred.
If removed, the next governor would get to appoint replacements. Much like the president and the U.S. Supreme Court, the governor’s political party can influence how they make their judicial picks, such as pushing them further right or left.
A social media campaign has latched onto the abortion ruling in a quest to remove the three members. A citizen named Jeanne Tuka Schutz recently ran an ad in the Warsaw Times Union urging a “no” vote on the three justices.
“All three voted to strip away HOOSIER WOMEN’S RIGHTS TO ABORTION AND REPRODUCTIVE HEALTH CARE,” the ad said. “Indiana Supreme Court Justices seem to be in lock step with extreme right-wing leaning decisions of the U.S. SUPREME COURT. Hoosiers can fire these three when voting.”
The Indiana Lawyer recently reported that a bipartisan political action committee of prominent attorneys and former state justices has formed to help keep the three Republican-appointed justices on the court.
PAC chairwoman Deborah Daniels — former governor Daniels’ sister — said the Committee to Preserve the Indiana Supreme Court has formed to educate voters about the justices and fend off potentially catastrophic consequences.
In the unlikely event that all three justices on the ballot this year were voted off, the state supreme court would essentially cease to operate — at least temporarily — until the Indiana Judicial Commission selected finalists for the posts and the governor selected appointees from among them, legal experts say.
Two members of the Indiana Court of Appeals are also up for retention.
Judge Rudolph “Rudy” Pyle III was appointed to serve the Fourth District in 2012, also by Mitch Daniels. He spent four years as a state police trooper before deciding to become a lawyer. He previously was a deputy prosecutor and judge in Madison County.Judge Peter Foley was appointed to serve the First District in 2022 by Holcomb. His legal career started in his family’s firm, representing individuals and small businesses in civil matters. He became a judge in Morgan County in 2014.
