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3 remain in running for high court

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Boone Circuit Judge Steven David said it best about what it’s like to be in the running for an opening on the Indiana Supreme Court.
 

David David

“This is sort of like being nine little birds in a nest,” the longtime judge said during his interview with the Indiana Judicial Nominating Commission. “You’re all flying overhead us with a great big worm, and we’re all in the nest with our mouths open wanting a piece of that worm. Now, I know what a bird feels like but fortunately, there’s no elbowing.”

The judge and two others are finalists for the state’s highest court. Following a full day of interviews July 30, the seven-member commission chose Judge David, Marion Superior Judge Robyn L. Moberly, and Indianapolis appellate attorney Karl L. Mulvaney with Bingham McHale for the governor to consider for the next justice.

Moberly Robyn Moberly


They were among nine semi-finalists who’d interviewed for the spot after surviving a first round of interviews of the 34 initial applicants. The vacancy will be created once Justice Theodore R. Boehm retires Sept. 30.

Whoever is chosen will be Republican Gov. Mitch Daniels’ first appointment to the state’s highest court and the first new justice since 1999.
 

Mulvaney Karl Mulvaney

“I can’t imagine ever being better,” Judge Moberly said within an hour of hearing the news of her selection as a finalist. “I’m thrilled and humbled to be one of the three being sent to the governor.”

Judge Moberly, 56, has been a Marion Superior Court judge since 1997 and handled domestic violence and major criminal cases before moving to the civil side almost a decade ago. She’d previously served as a commissioner before taking the bench as a judge. Prior to that, she practiced privately since her graduation cum laude in 1978 from Indiana University School of Law – Indianapolis.

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If chosen, Judge Moberly would become only the second female justice in the court’s history and the first since Myra Selby stepped down in 1999. Indiana is one of only two top state courts in the country – the other is Idaho – without a female justice. The legal community has been vocal about the need for a female justice and many – including retiring Justice Boehm – have expressed an interest in seeing a woman appointed. But the chances have narrowed as 19 women initially applied, four made the semi-finalist round, and now only one is under consideration.

But aside from Judge Moberly and the gender diversity, the governor also has two other finalists who most agree are stellar choices for the Supreme Court.

Judge David, 53, has been on the bench since January 1994. The 1982 Indiana University School of Law – Indianapolis graduate served as a U.S. Army judge advocate general following law school and then practiced law privately in Columbus before serving as in-house counsel at Mayflower Transit in Carmel. Once being elected to the bench, Judge David has presided over all types of civil, criminal, and juvenile matters and also served as special judge by Supreme Court appointment and hearing officer or special master in attorney and judicial misconduct cases. Throughout those years, he remained in the Army Reserves and worked on reforming the treatment of detainees in Iraq in 2003, as well as serving as chief defense counsel for Guantanamo Bay detainees at one time.

The only non-judicial finalist is Mulvaney, 60, who’s a partner at Bingham McHale and a cum laude graduate in 1977 from IU School of Law – Indianapolis. Following law school, he’d served as the Indiana Supreme Court’s assistant administrator and administrator from 1978 to 1991, reviewing transfer petitions and handling an array of administrative and legal issues. He began his legal practice at what was then known as Bingham Summers Welsh & Spillman in 1992, and since has handled scores of appellate cases and argued before both the state appellate courts.

Aside from the three finalists, those who made it past the first round of cuts were: Indianapolis attorney Ellen Boshkoff with Baker & Daniels, Indiana University associate general counsel Kiply Drew, Johnson Superior Judge Cynthia Emkes, Indiana Solicitor General Thomas M. Fisher, Hamilton Superior Judge Steven Nation, and State Sen. Brent Steele, R-Bedford, who’s an attorney at Steele & Steele.

Each person began their 30-minute interview with a congratulatory welcome from Chief Justice Randall Shepard, who chairs the commission. He then asked each semi-finalist to address a two-part question sent to them prior to the interviews: “What do you consider your finest professional accomplishment or contribution?” and “Name two things that need improving in the Indiana court system that a justice might help solve.”

All raised points about what they might tackle if they were a member of the court, and then responded to other questions posed by commission members – their views on approaching issues of first impression, how they might complement the current court makeup, what the judiciary’s three most pressing issues are, and how justices should factor in political, economic, and social ramifications in decision-making.

Judge David said the biggest challenge is how the state judiciary stays efficient and relevant without much money, and he said more centralized operation and coordination between the 92 counties must be explored. The court must be as open and transparent as possible in order to make sure litigants have adequate access to justice. As part of improving transparency, the judge said he supported both cameras in the courtrooms and also the Judicial Technology and Automation Committee’s statewide case management system.

Mulvaney told the commission that his experience in handling attorney ethics matters is his biggest accomplishment. Potential changes might include how judicial mandates are handled and possibly a rule revision about how long juvenile cases can have to be briefed on appeal. One commission member praised Mulvaney’s appellate experience and also allowed the attorney to delve into his experience as Supreme Court administrator and how that gave him experience in many issues before the court.

In the last of the three finalists to face their interview, Judge Moberly discussed her pride in being involved in the state’s Family Court Project since it began almost a decade ago. She also said that the growing number of pro se litigants is one of the judiciary’s biggest concerns, and that one idea that could help might be creating a public law librarian program modeled after how the court recruits teachers to educate kids about the judicial branch. She also explained the importance of managing the inevitable statewide court system changes, and how statewide funding is a significant point to consider. She said regional funding might be a step in that direction because everyone might be able to easily agree on that.

After hearing Judge Moberly speak so passionately about her family and trial court work, one commission member asked her why she wanted to move to the Supreme Court despite her loving what she does now.

“I know there’s another chapter in my career … I hope this is the next chapter, but I know there’s something more for me out there and I hope it presents itself here,” she said. “If not me, who would do it?”

One of those three are now waiting for “the big worm” that the governor is holding. The governor’s general counsel, David Pippen, said a 60-day clock begins once Daniels receives an official evaluation report on the three finalists from the nominating commission – expected in the first week of August. Interviews will likely be scheduled “pretty quickly,” and there’s really no set procedure for how that interview process will happen. Whether one interview will take place or finalists will be invited for a second informal interview hasn’t been determined, but it will be up to the governor to decide. Pippen said he doesn’t expect the governor will come close to running the 60-day deadline, but if Daniels doesn’t meet that deadline, the chief justice would make an appointment from the same list.•


 

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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