INDIANAPOLIS — An Indiana Supreme Court justice who wrote a ruling that set off a public uproar and provoked legislators into passing a new state law faces rare opposition in a routine retention vote.
Justice Steven David must pass a simple yes-or-no vote in the Nov. 6 election to keep his seat on the state's highest court. Experts say Indiana judges survive them more often than not.
But opponents, from tea party activists to Libertarians, want David ousted over a 2011 decision he wrote asserting Indiana residents didn't have the right to resist the police, even if the officers illegally enter their homes. Critics said the 3-2 decision contradicted the Fourth Amendment, which requires police to obtain a court warrant, and violated citizens' centuries-old right to defend their homes.
"For a Supreme Court justice to make a ruling that contradicts the Fourth Amendment is pretty serious," said Jim Bratten of Evansville, state coordinator for the Tea Party Patriots. "That's what got people so incensed. It was a step too far."
Rick Barr, who serves on steering committees for the Indianapolis Tea Party and another conservative group, said the movement was larger than the tea party — drawing college students and Libertarians, too.
"It's a broad-based movement all over the state with a variety of folks involved," Barr said Thursday.
Chris Spangle, executive party of the Libertarian Party of Indiana, said the party had no official stand on David's retention, but many members who disapprove of the ruling were opposing him.
A spokeswoman for the state Supreme Court said it was unlikely David would be available for an interview Thursday.
David's detractors face an uphill battle: Political experts say no justice has been removed from the high court since Indiana's constitution was amended in 1970 to require them to win periodic retention votes.
"Since then, everybody has been retained, and usually by large margins," said Andy Downs, director of the Mike Downs Center for Indiana Politics at Indiana University-Purdue University Fort Wayne.
Joel Schumm, a professor at Indiana University's Robert H. McKinney School of Law in Indianapolis, said votes in favor of retaining justices historically are around 70 percent.
Both said concerted efforts to remove a particular justice are rare. Downs said this drive is unusual in its single-mindedness and the fact that it's apparently backed by a political organization.
Even so, Downs said, "this will have to be an incredibly well-coordinated campaign."
The state Supreme Court's ruling on May 12, 2011, involved a case in which an Evansville man blocked and then shoved a police officer who tried to enter his home without a warrant after the man's wife called 911 during an argument. The man was shocked with a stun gun and arrested.
His wife told officers her husband hadn't hit her, but he was convicted of resisting law enforcement. The justices narrowly upheld that conviction.
Following the decision, penned by David, opponents sent a blizzard of emails to state officials, protested at the Statehouse and threatened the justices.
Lawmakers also reacted strongly, passing a bill this year that specifies that the state's self-defense law shelters residents who reasonably believe force is necessary to protect themselves, someone else or their own property from unlawful actions by a public servant. Gov. Mitch Daniels signed the bill in March.
"Even if you disliked his decision, the law has changed, so the decision is moot," Downs said.
David was appointed to the court by Daniels about two years ago. If retained, David won't face another retention vote for 10 years. He is one of two state Supreme Court justices up for retention this November.
Schumm said people shouldn't base their vote on a single ruling.
"Overall, I think his decisions have been very mainstream, middle of the road," Schumm said. "I hope that people can consider the body of what he's done."
An explanation of the retention process and records of judicial opinions: http://courts.in.gov/retention
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