Letter indicates Lake judges are ignoring a law they deem unconstitutional

2013-03-12T23:00:00Z 2013-04-01T14:33:06Z Letter indicates Lake judges are ignoring a law they deem unconstitutionalMarisa Kwiatkowski marisa.kwiatkowski@nwi.com, (219) 662-5333 nwitimes.com

State legislators overreached their authority when they passed a law prohibiting judges from transferring to a different court unless they have gone through merit selection, Chief Judge John Pera wrote Monday in a letter to the Indiana Supreme Court.

The letter, which was obtained by The Times on Tuesday, indicates judges in Lake Superior Court are ignoring a state statute because they consider it unconstitutional.

At issue is the Lake Superior Court's announcement that Judge Nicholas Schiralli would replace Lake Juvenile Court Judge Mary Beth Bonaventura, who is leaving the bench to become director of the Indiana Department of Child Services. Schiralli would transfer into the position based on seniority.

Bonaventura disagreed with the method of choosing her replacement and wrote letters asking the Supreme Court justices to require her successor be chosen through merit selection rather than a transfer, letters obtained by The Times show.

She argued Schiralli's move to juvenile court would violate a Lake County-based rule and a number of Indiana laws, including one that states a judge who has not been appointed through merit selection is ineligible to transfer, according to her letter dated Feb. 25. Schiralli did not go through merit selection.

Through merit selection, a Judicial Nominating Commission interviews applicants and chooses three finalists to present to the governor, who has final choice.

Bonaventura was appointed through merit selection.

In his letter to the Supreme Court, Pera argued merit selection is not the only way to appoint a qualified juvenile court judge. He said such a notion is offensive to trial judges elsewhere in the state who were elected to their positions. It also implies the Lake Superior Court judges are not equal to one another once in office, Pera said.

Pera asked the Supreme Court justices to deny Bonaventura's request to intervene. He responded to each of her arguments, paying particular attention to the state statute prohibiting the transfer of a judge who has not gone through merit selection, the letter shows.

Pera argued in his letter the law is "a legislative overreach into the exclusive province of the judiciary" and is "unconstitutional." He said the separation of powers prevents the Legislature from "meddling" in the judiciary.

When reached Tuesday by phone, Pera declined to comment on his letter. Schiralli did not respond to calls seeking comment.

Joel Schumm, a clinical professor of law at Indiana University's Robert H. McKinney School of Law in Indianapolis, said the judges set a "dangerous precedent" by deciding on their own that a statute is unconstitutional. He said the constitutionality of a law typically is determined through a court case and argument from both parties.

"I'm not familiar with a court, on its own, ever deciding to do something like this," Schumm said.

He said Bonaventura's strongest argument is that Schiralli cannot transfer into juvenile court because it would be against state law for him to do so. Schumm said her other arguments — including her suggestion that a current merit-selected judge could not be reassigned to the juvenile division — are on shakier ground.

A similar transfer recently occurred in the superior court system in Allen County.

"I cannot imagine that the Indiana Supreme Court is eager to be dragged into a dispute between Judge Bonaventura, a long-serving and well-respected judge, and her distinguished colleagues who are also well-known to the justices," Schumm said. "But I don’t see how the court can ignore the issue at this point."

Kathryn Dolan, spokeswoman for the Indiana Supreme Court, said the justices are deliberating about the matter. She said there is no specific timeline for a decision to be made.

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