THE POLITICS OF JUDGING by Jim Redwine
Gavel Gamut
By Jim Redwine
(Week of 29 February 2016)
THE POLITICS OF JUDGING
We elect a president every four years. We elect House members every two years and one third of the Senate every six years. We never elect any federal judge or federal magistrate or federal referee. Some of our states elect many of their judges. Some states elect some of their judges. However, even in states that claim to elect all of their judges, many persons who fill judicial roles, magistrates or hearing officers for example, are selected without general citizen input.
In those situations where judges are not elected, most citizens are excluded from the process while the executive and legislative branches of our federal and state governments select our judges. There is a general misperception that this so called “merit selection†removes the judiciary from the political process. Our current mud wrestling over the replacement of United States Supreme Court Justice Antonin Scalia is just the most recent evidence politics pervades merit selection. The difference between merit selection politics and electoral politics is, appointed judges are products of micro politics that eschews democracy.
This affront to our Separation of Powers has not produced judicial decisions free from political influence. From Marbury v. Madison to Dred Scott to Bush v. Gore to Citizens United and thousands of other cases both federal and state, politics has often driven judicial decisions. In fact, as Alexis de Tocqueville (1805 – 1859) so accurately observed, “In the United states, there is hardly a political question which does not sooner or later turn into a judicial one.†He might well have declared the corollary of this proposition to also be true: In America, judicial decisions are often driven by politics.
This is true whether judges are elected or appointed. The difference is, elected judges are chosen by the many, appointed judges by a few. Another important distinction is many appointed judges serve lengthy terms, some for life, whereas elected judges are subject to review at the next election.
Judges are people. That’s all we need to remember. Most may be good most of the time. Some may be corrupt, lazy, incompetent or crazy. It is the judge, not how she or he comes to the Bench, which controls their judgments. If we have certain reasonable criteria for being a judge then what matters most is that the third branch of our government be independent and fair, and, if not, that we can readily replace them.
Agreeing upon standards for judicial candidates should not be difficult. It is probably reasonable that they be American citizens, residents of the jurisdiction they seek to serve, free of criminal convictions, of a certain age, a college and law school graduate who has passed at least one Bar Examination, have a minimum number of years practicing law without ethical violations and be healthy enough to do the work. You may have other ideas. That’s fine, reasonable minds can come to suitable criteria.
My experience of being a judge, knowing judges and teaching judges leads me to the conclusion we are all about the same. If a judge meets reasonable qualifications and is of good character, he or she will most likely decide most cases fairly.
If I am correct that the judge, not the method of a judicial selection, determines judicial decisions, then we can concentrate on the method of selection with the objectives of enhancing both justice and democracy. I have a few suggestions. Of course, you might also.
Supreme Court: Ex post facto laws don’t apply to 2 sex offenders
Scott Roberts for www.theindianalawyer.com
The Indiana Supreme Court affirmed two men had to register as sex offenders after moving from other states, saying the requirement did not violate the Indiana Constitution’s prohibition against ex post facto laws.
Sidney Lamour Tyson moved to Indiana in 2009, and in 2014 he was pulled over for driving with an expired license plate. The officer found Tyson had been adjudicated a delinquent at 13 for aggravated sexual assault and indecency with a child. Tyson had registered as a sex offender in Texas, but not Indiana. Tyson was charged with the Class D felony failure to register as a sex offender.
At trial, Tyson filed a motion to dismiss the charge. Before 2006, he would not have had to register as a sex offender in Indiana, but in 2006, Indiana law changed. Tyson said because his offense occurred before 2006, he did not have to register as a sex offender in Indiana, an ex post facto violation. The court denied his claim.
The Indiana Court of Appeals upheld the trial court, saying the ex post facto clause was to give fair warning of what conduct will result in criminal procedures, and Tyson had sufficient warning. The COA also said because he was required to register in Texas until 2014, he remained a sex offender upon relocation. Tyson sought a transfer to the Indiana Supreme Court, saying the relevant date for ex post facto analysis is the commission of the offense, not relocation. The Supreme Court granted his transfer and ruled Thursday in Sidney Lamour Tyson v State of Indiana, 45S03-1509-CR-528.
In State of Indiana v Scott Zerbe, 49S05-1509-MI-529, Scott Zerbe was convicted of criminal sexual conduct with a minor in 1992, before Indiana or Michigan had sex offender registry laws. Zerbe moved to Indiana in 2012, and petitioned the trial court to take him off the sex offender registry in Indiana. He said because he committed his crime before 2006, he should not have to register. The trial court granted his request.
The COA overturned the ruling in a split decision, and Zerbe asked for transfer to Indiana Supreme Court, which was granted. The Supreme Court reversed the trial court, finding no ex post facto violation because Zerbe was under an obligation to report and the Indiana statute did not impose any additional punishment.
Supreme Court Justice Mark Massa wrote the decisions in both cases and applied the ruling in Tyson to the Zerbe appeal. He wrote the state posed no ex post facto violation as applied to Tyson. Massa said Tyson was required to register in Texas years before Indiana’s statutory definition was amended to include him, and it was not an undue burden on him to register in Indiana like he did in Texas. He merely maintained his offender status across state lines.
Zerbe’s case was slightly different than Tyson’s, Massa said, because there was no sex offender registration law in Michigan when Zerbe committed his offense, but Massa said that did not make a difference. Massa said it’s not Zerbe’s crime that compels him to register, but the Michigan registry requirement. Michigan courts have determined its act can apply retroactively to offenders, and Indiana is in no place to dispute that.
Because Zerbe was required to register as a sex offender for 25 years, he will be registered in Indiana until 2017.
Also in the Tyson case, Tyson said he did not fit the definition of a sex offender under Indiana Code 11-8-8-5. He argued the statute meant a sex offender must be a person who is required to register as a sex or violent offender in any jurisdiction and should be a child who has committed a delinquent act. The court disagreed, saying the code meant a person who is required to register as a sex or violent offender, including a child who has committed a delinquent act. Massa said Tyson’s reading of the statue is far too narrow. “Reading subsections together as one list of requirements would lead to an absurd result,†Massa wrote.
Baseball knocks off USC Upstate in weekend opener
SPARTANBURG, S.C. – With the University of Evansville tied up at 1-1 in the sixth inning, Purple Aces head coach Wes Carroll turned to pitcher Brent Jurceka to keep the USC Upstate offense at bay, and the senior delivered as he led UE to a 5-2 victory over the Spartans at Cleveland S. Harley Park.
“It feels great to get in the win column,†UE head coach Wes Carroll said. “We got a quality start from Patrick Schnieders, and then Jurceka came in and did a heck of a job for us to close the game out. It feels good to win on a Friday, and hopefully it sets up for more success going into tomorrow.â€
Jurceka, who served as UE’s closer a season ago, recorded the final 10 outs of the ball game for the Aces (1-3), allowing one run on four hits. He also struck out four without issuing a single walk to earn his first victory of the season. It was a strong pitching day overall for the Aces as Patrick Schnieders rebounded from his first appearance of the season, tossing 5.2 one-run innings.
The opening stanza would be a tale of missed opportunities for the Aces, beginning with stranding two runners in the top half of the frame before a Charlie Carpenter two-out double in the bottom half gave the Spartans the lead.
Carpenter as well as Cody Brittain led all hitters in the contest with three-hit outings for Upstate (3-2).
As the innings wore on, it seemed as if the single run might be enough for the hosts as starting pitcher Blake Whitney found his groove, tossing perfect second, third, fourth and fifth innings. However, it would start to come apart for the right-hander in the sixth as a two-out single and wild pitch put Boomer Synek 90 feet from home. Trey Hair, who starred in last weekend’s series at South Alabama, took advantage of the opportunity, doubling to right center to even things up.
Travis Tokarek led off the seventh by reaching on a two-base error, and it would ultimately prove costly as Eric McKibban doubled him home to give UE its first lead of the season. A two-out single from Josh Jyawook doubled the advantage later in the frame, and Hair picked up another run batted in with a bases loaded walk to give the Aces a 4-1 advantage heading into the seventh inning stretch.
Hair was the only UE player to record multiple hits, finishing 2-for-3 with a pair of walks. Overall, the Aces were out-hit 10-7.
After a Daniel Fickas lead-off triple ultimately resulted in another Spartan score in the bottom of the seventh, Korbin Williams singled and stole second in the ensuing half-inning to turn the momentum back in UE’s favor. An errant throw from Upstate third baseman Jordan Ford brought another run home for the Aces to re-establish the three-run cushion for good.
UE will return to action on Saturday as the team will stay in Spartanburg, but this time pay a visit to Wofford. First pitch from Russell C. King Field is slated for 1 p.m. Central.
IceMen Earn Point, Fall in Shootout to Gladiators
Records:Â Â Evansville: 19-25-6-2; Atlanta: 29-19-4-2
Goalies:  ATL – Patterson (W), 14-7-2-1, 18 saves
              EVN – Greenham (SOL), 6-5-1-1, 36 saves
Scoring:
1st Period: 1. EVN – Sims 12 (Fawcett, 3:39); 2. EVN – Zay 6 (Harrison, Hagaman, 8:22); 3. ATL – Phillips 1 (Nunn, Albers, 9:41); 4. ATL – Frazee 11 (Register, Stejskal, 11:20); 5. ATL – Frazee 12 (PP, Register, Nesbitt, 19:27)
2nd Period: 6. EVN – Penny 5 (Himelson, Trebish, 11:51)
3rd Period: No Scoring
Overtime:Â No Scoring
Shootout: EVN – Leveille (save), Penny (save), Moon (save); ATL – Phillips (save), Nesbitt (goal)
EVANSVILLE, IN – The Evansville IceMen earned a point in their fifth straight home game Friday at the Ford Center, but the Atlanta Gladiators edged the IceMen in a shootout. It was the first of two games between the two teams this weekend, as Evansville celebrates Pink the Rink Weekend.
Two goals in the first half of the first period put the IceMen in front 2-0 in a high-scoring opening period. Jordan Sims scored on the first Evansville shot when he beat Atlanta goalie Kent Patterson with a backhander through the legs on a 2-on-1 rush 3:39 into the game. Then Matthew Zay picked up a rebound off of the post and jammed the puck under Patterson’s right pad at 8:22.
The Gladiators answered in a big way, as Zach Phillips scored his first ECHL goal on a one-timer at 9:41. Former IceMen forward Thomas Frazee then struck twice against his old team. He first fired a shot into the top of the net from the left circle to tie the game at 11:20. Frazee then gave Atlanta the lead entering the first intermission, when he tipped a shot in front of Evansville goalie Scott Greenham on a power play with 33 seconds left in the period.
Rookie Ryan Penny tied the game for Evansville midway through the second period, when he deflected a point shot from Andrew Himelson past Patterson. It was Penny’s third point in his first two games since rejoining the IceMen from Binghamton in the AHL. Atlanta outshot Evansville 21-11 through two periods of play, but Greenham made several key saves in the middle frame to keep the game tied 3-3 after two.
Greenham made 14 more saves in the third period, and Patterson stopped seven, as the two teams skated into overtime for the second time this season. After no scoring in the extra period, Derek Nesbitt pocketed the only shootout goal against Greenham to send the Gladiators to a 4-3 win.
The IceMen and Gladiators meet one more time Saturday at 7:15pm at the Ford Center to wrap up Pink the Rink Weekend. Evansville will again wear its special black and pink jerseys, which will be auctioned off after the game. A portion of the proceeds from the auction will go to Susan G. Komen Foundation benefitting breast cancer research.
—
UPCOMING HOME GAMES
Sat. 2/27 – Atlanta at Evansville (7:15pm) – Ford Center
                        Pink the Rink Weekend – Jersey Auction
Fri. 3/4 – Tulsa at Evansville (7:15pm) – Ford Center
                        Colon Cancer Awareness Night / Book Drive Kick Off
Sat. 3/5 – Tulsa at Evansville (7:15pm) – Ford Center
                       Book Drive
Sun. 3/6 – Wichita at Evansville (5:15pm) – Ford Center
                        Faith Night / Subway Family Night / Last Day of Book Drive
CITY COUNTY OBSERVER RESPONDS TO WINNECKE SPENDING HABITS
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Todays “Readers Poll” question is: Do you believe that City officials intentionally lied to us about not having a $6 million dollar deficit in 2014?
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FOOTNOTE: Our next “IS IT TRUE” will be posted on this coming Monday?
If you would like to advertise in the CCO please contact us City-County Observer@live.com.
Todays “Readers Poll” question is: Â Do you believe that City officials intentionally lied to us about not having a $6 million dollar deficit in 2014?
Copyright 2015 City County Observer. All rights reserved. This material may not be published, broadcast, rewritten or redistributed
Aces Ready For Senior Day Matchup Against UNI
Aces To Play Final Regular Season Game Tomorrow
For the final time in the regular season, University of Evansville seniors D.J. Balentine, Egidijus Mockevicius and Adam Wing will take to the Ford Center floor as they are set to wrap up the season looking for their 24th victory of the season when they face UNI on Saturday at 1 p.m.
The first 5,000 fans will receive a commemorative Senior Day print courtesy of ARC Construction Company. Fans are encouraged to be in their seats early as Senior Day ceremonies will begin roughly 15 minutes before the game. Following the contest, the trio along with head coach Marty Simmons, will address the crowd.
A great crowd is expected as the lower bowl of the Ford Center is sold out and upper bowl seating is now available. Walk-up tickets will be available until game time or online at Ticketmaster.com.
The regular season comes to an end as the Purple Aces wrap it up with a huge game against UNI. Evansville is guaranteed to be either the #2 or 3 seed in the MVC as the squad heads to Arch Madness; the Aces are tied with Illinois State and an ISU loss and UE win on Saturday would guarantee UE the second seed. Should the schools be tied following the regular season, the tiebreaker will come down to whoever has the higher RPI according to Jim Sukup’s RPI Report on the morning of Sunday, Feb. 28.
UE picked up its 23rd victory of the season, taking a 67-55 win at Bradley on Tuesday evening. It was the duo of D.J. Balentine and Egidijus Mockevicius leading the way; Balentine totaled 22 points, hitting the 20-point mark for the third game in a row. Mockevicius notched his 8th double-double in a row and NCAA-leading 25th of the season, finishing with 20 points and 17 rebounds. He officially broke the program mark for rebounds in the win and is the first in program history to notch 1,200 in his career; he currently has 1,202 in his career.
Saturday will be the final home game for a senior class that includes: D.J. Balentine, Egidijus Mockevicius and Adam Wing. The three have led the Aces to 20+ wins in three of their four years with the program, something not done by a senior class at UE since 1994. Head coach Marty Simmons has led UE to Senior Day wins in seven of the last eight years.
UNI begins Saturday with a record of 18-12 and 10-7 in the Valley, they are guaranteed the #4 or 5 seed heading into Arch Madness. The Panthers are coming off of a dominant 66-44 win over Indiana State in their home finale on Wednesday as seniors Wes Washpun and Matt Bohannon led the way. Washpun totaled a game-high 16 points while Bohannon had 14 points and 7 rebounds; he also knocked down four three-pointers as UNI shot 45.3% and held the Sycamores to just 27.3% shooting. Overall, Washpun leads UNI with 14.1 points per game and a conference-leading total of 163 assists. Bohannon checks in with 12.5 PPG and is one of the top outside shooters in the league, hitting 42.9% of his long range attempts.
ICYMI: Bucshon, Congress backs court challenge to Obama’s climate plan
(WASHINGTON, DC) –This week, Eighth District Congressman Larry Bucshon, M.D. and 204 members of Congress filed an amicus brief supporting petitions filed by 27 states, including Indiana, seeking to overturn the Environmental Protection Agency’s Clean Power Plan.Â
The Associated Press reported, “A brief filed Tuesday with the U.S. Court of Appeals in Washington argues that the U.S. Environmental Protection Agency overstepped its legal authority and defied the will of Congress by regulating carbon dioxide emissions.â€
After joining the amicus brief, Bucshon stated, “Congress has repeatedly tried to overturn these regulations through legislation; however, the President and his allies continue blocking our legislative efforts in order to protect their ideological climate change agenda. Now we’re taking the fight to the courts because we believe the way forward is through innovation and technology advancements, not unlawful federal regulations that cannot be met, damage the economy, and cost jobs. I’m proud to help file this amicus brief, in support of states like Indiana, requesting that the D.C. Circuit Court vacate these regulations that have been temporarily blocked by the Supreme Court.â€