By Alexa Shrake, Indiana Lawyer
A so-called “retention question” appears on the Nov. 5 election ballot, asking voters whether they want to keep Chief Justice Loretta Rush and Justices Mark Massa and Derek Molter on the state’s high court.
A social media campaign is asking voters to toss them off because of their decision to uphold the near-total abortion ban approved by the Legislature in 2023. The five-member court ruled 4-1 to uphold the law.
While the opposition percolates mildly on the internet, 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.
If history is a guide, it’s not exactly like the justices have a lot to worry about. No supreme court justice has lost a retention vote since the process was instituted in 1970.
Nevertheless, PAC chairwoman Deborah Daniels 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.
“This doesn’t just lead to chaos,” said Daniels, a Republican and former U.S. attorney and assistant U.S. attorney general.
The opposition
Democratic activist Susan DeVoe is among those sharing a graphic on social media that calls for the ouster of the three justices.
In bold white letters on a purple background, it says: “VOTE NO on retaining Indiana Supreme Court justices.” It goes on to say that the three justices on the ballot “voted to strip away Hoosier women’s rights to abortion and reproductive health care. … It is time to vote them off the court.’
DeVoe said she doesn’t know who created the graphic but she said she shared it on X (formerly Twitter) to let people know what the justices did and how they can be replaced.
Molter, the court’s youngest justice, has been a particular target of the opposition because he wrote the court opinion that upheld the near-total abortion ban that the Republican-dominated Legislature voted into law in 2023.
The law bans abortion in Indiana, with a few, narrow exceptions. Abortions are only allowed in cases involving fatal fetal abnormalities, to preserve the life and physical health of the mother, and in cases of rape or incest up to 10 weeks of pregnancy.
In the ruling upholding the ban, Molter wrote that “Article 1, Section 1 (of the Indiana Constitution) protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk, but the General Assembly otherwise retains broad legislative discretion for determining whether and the extent to which to prohibit abortions.”
Rush and Massa concurred with that opinion.
The two other justices on the court aren’t up for a retention vote this year, but they saw the case somewhat differently.
Justice Geoffrey Slaughter joined the majority but said in a separate opinion that he would have ruled the health care providers who sought the injunction to block the law lacked standing to sue in the first place, the Indiana Capital Chronicle reported.
Justice Christopher M. Goff disagreed with his colleagues’ decision to terminate the trial court’s injunction blocking the law “in its entirety.”
As with the rest of state government over the past 20 years, the court has come to be dominated by Republicans. All five sitting justices are Republican appointees.
DeVoe said in her opinion any justice who voted to uphold the abortion ban should be considered disqualified for retention.
“I’ve had conversations with others who will vote to retain at least one of the justices, for fear the replacements would be worse than these three,” DeVoe wrote in response to questions from the Lawyer, “but fear has never been a motivator and doing nothing just isn’t an option.”
Supporters of the court, however, argue that despite its heavy Republican tilt it hasn’t voted in lockstep or become heavily partisan, like in some states where supreme court justices are elected.
“There are dissents to opinions, and that’s a healthy thing. So it’s not like they’re all unanimous and you need more divergent thought,” Daniels said.
Former Chief Justice Randall Shepard agreed. “You just don’t feel (political party) when you’re sitting there at the conference table voting on a tort case or a contract dispute,” the Republican appointee said.
Former Democratic gubernatorial candidate John Gregg also supports retaining the state’s justices, citing a need to maintain judicial independence.
Daniels said judges and lawyers from across the political spectrum, including Shepard and Gregg, have joined her on the Committee to Preserve the Indiana Supreme Court.
She said other supporters include: former Democratic-appointed state supreme court justices Theodore Boehm, Myra Selby and Robert Rucker; former Republican-appointed justice Steven David; former Gov. Mitch Daniels, a Republican; and Robert Grand, a powerhouse Republican fundraiser who is serving as the PAC’s treasurer.
Deborah Daniels said the group plans to write columns and post on social media to reach as many people as possible and educate them about how Indiana’s high court is recognized as a national model.
A history of retention
From time to time, other justices have been the subject of retention fights but have easily survived.
Shepard faced his own challenge, shortly after being named chief justice.
Just days before the 1988 election, Justice Alfred Pivarnik, who had lost his bid for the court’s top post, accused Shepard of having a drinking problem and a history of drug use, among other things.
Pivarnik later alleged then-Gov. Robert Orr and Shepard, both from Evansville, had covered up an investigation into such issues when Shepard was initially interviewed for the state bench, even though investigators found no proof of such activity and dismissed the allegations.
At the time, Shepard was the youngest on the court and the youngest chief justice in the nation. Shepard would go on to win the retention vote by a 3-1 margin and become the state’s longest serving chief justice.
In 2012, former Justice Steven David faced opposition due to a decision he wrote for the court.
The case, Richard L. Barnes v. State of Indiana, 82S05-1007-CR-343 held that a person must use civil court for redress against unlawful police action instead of trying to resist in any way.
A “Stand Up for your Fourth Amendment Rights” rally drew about 300 people to the front steps of the Indiana Statehouse to protest the decision, and dozens made signs or banners displaying messages such as “Justice David is an Enemy of the Constitution” while others waved American flags and copies of the U.S. Constitution.
David was retained, with 68.9% of the electorate voting to keep him in office. That was only slightly less than the 71% of the vote another justice on the ballot received that year.
Both Shepard and David said the state is fortunate to have the supreme court justices it has.
“They follow the rule of law, and they do amazing things for not only Indiana’s trial judiciary, but all of Indiana, all Indiana men, women and children,” David said. “They are truly public servants.”
While no Indiana Supreme Court justice or Indiana Court of Appeals judge has ever lost a statewide retention vote, Shepard said it has happened on rare occasion to trial court judges in the few Indiana counties that use the retention system.
The possibility of losing multiple justices at the same time would be catastrophic because it would essentially shut down the court for a time, Shepard said.
“It would be a disaster for citizens who have cases pending before the court,” he said.
The Committee to Preserve the Supreme Court aims to fend off that possibility, no matter how remote.
“We just don’t want to be tossing people out in a knee jerk fashion,” Daniels said.
