A Test For Governor Daniels

In a decision guaranteed to bring outraged barons all over America to the defense of their castles, the Indiana Supreme Court has ruled, in the course of one week, that 1) you don’t have the right to block a policeman from entering your home without a warrant, and 2) they don’t need to knock to serve the warrant.  (Moat, Mr. President?  Did someone say, “moat?”)

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer’s entry.

This is the second major Indiana Supreme Court ruling this week involving police entry into a home.

On Tuesday, the court said police serving a warrant may enter a home without knocking if officers decide circumstances justify it. Prior to that ruling, police serving a warrant would have to obtain a judge’s permission to enter without knocking.

This is what happens when you peel legal education free from Blackstone, Maine, Marshall, and Story.  I’m not even an attorney, but I’ve been to Runnymede and seen the Magna Carta monument there, and I can tell you that it’s going to take some Olympic-worthy mental gymnastics to turn overturning 800 years of English Common law precedent into solemn respect for stare decisis.

Now, we all remember when President Obama decided to use the State of the Union Address not only to berate the Supreme Court justices in attendance over the Citizens United ruling, but to encourage the Democrat members of Congress to rise in thunderous applause, surrounding those justices with their own reprimand.

This case should provide an opportunity for a prospective President Mitch Daniels to find a statesmanlike way to rectify this situation without sending out the landed gentry to hold their swords to the Indiana justices’ necks.

He does have some options.

First, the Indiana Constitution does provide for amendment, and while this is probably the most sure way of solving the problem, it’s also the one that Indiana absolutely can’t execute before the 2012 elections.  Two separately elected general assemblies have to approve the proposed amendment, which means that even if the current one did so tomorrow, they’d have to wait until the 2013 session to send the measure to the people.  (A simple statute designed to overturn the ruling is also possible, but could obviously be overturned by a legislation some time down the line; the Magna Carta should be above majority vote by by state government.)

Second, justices do have to face retention elections every 10 years.  However, two of the current justices were retained in ’08.  The Chief Justice Steven David was appointed in ’10, so presumably is not up for a vote.  And of the two remaining justices, one voted the right way here.  The third Justice, Sullivan, was retained in 2006.

(Sullivan got his law degree from the University of Virginia, but I should note that the rest of the University long ago cast out the Law School as a wayward child because of its history of undermining all that is just and good in the world, especially as regards the Honor System.  The school accepted Teddy Kennedy after he got kicked out of Harvard for cheating, and law students have spent most of the ensuing decades trying by turns to undermine and overturn the Honor System’s Single Sanction for violations.)

There is, however, a peculiarity written into current Indiana law which permits the legislature to expand the number associate justices from four to as many as eight.  A Judicial Nominating Commission would present the governor with a list of three choices for each vacancy, from which he would pick one, who would then go to the people for an immediate retention vote.

The Nominating Commission itself is composed of three parts: the Chief Justice, three members elected by the bar, and three laymen appointed by the governor.  I can see some immediate objections to this path as well.  Justices would serve for 10 years, and this would require an increase in the Court’s budget.  How they would vote even on this issue, were it to arise again, is uncertain, and then you’d still have to live with all their other rulings for 10 years, at least.  It could also smack of FDR’s court-packing plan, although a vigorous defense of 4th Amendment rights, combined with a reminder that the justices had to pass a vote of the people to serve, could prove an effective defense.

The offending justices could also be impeached; that would require a 2/3 vote of each house of the legislature, but I suspect is incredibly unlikely over a ruling, rather than corrupt or criminal behavior.

It’s hard to say what the most appropriate route for Gov. Daniels to take would be.  But one hopes that broad expressions of public contempt for this ruling might provide him with the political capital to show President Obama was actual leadership on matters of consequence looks like.

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