substantial justice: justice of a sufficient degree especially to satisfy a standard of fairness; also: justice administered according to the substance and not necessarily the form of the law — Merriam-Webster
Henry McCullough served in Vietnam and was honorably discharged. Eventually, he and his wife found themselves facing the loss of their home of 20 years. They were unable to afford a lawyer, but defended themselves regardless of the perils of unrepresented litigants. The trial court entered a judgment of foreclosure. The couple then embarked upon the uncertain seas of appellate procedure. They tried to write a proper brief but failed by a long shot, so it was rejected by the clerk. Eventually, the appeal was dismissed because the McCulloughs apparently could not figure it out. Although transfer was initially, and not surprisingly, rejected by the Indiana Supreme Court, the case was later accepted. In March, Justice Robert Rucker wrote the unanimous opinion affirming the trial court and the foreclosure of the home — closing the case, but giving a vet his full measure of due process.
May 12, 2017, marked the last day of Justice Rucker’s service on the Indiana Supreme Court. After 26 total years on the appellate bench, he has authored more than 1,000 majority opinions. Like the foreclosure of a veteran’s home, Justice Rucker has become known as a strong advocate of “doing substantial justice,” which, he will tell you, is a judge’s job. As he explained recently, the case “touched” him, and was therefore deserving of the right result — that is, making sure the vet received the full explanation of why he was losing his home, even though the result was unfavorable. His fair day in court was the least he was seeking, and at least what the court could give him. Justice Rucker showed there are ways a court can be sympathetic without the benefit of law or procedure and benefit a party even when they don’t “win.”
Justice Rucker originally set out to become a doctor when he met Alton L. Gill Jr., a Lake County attorney who helped him with a minor matter. The effect of that meeting led young Rucker to discover law as the right path. Although he found success as a practicing attorney, he was heavily lobbied to seek an appointment on the Court of Appeals, where, as he says, “I went from pounding on the table to telling counsel to calm down.” Time as an appellate judge led him to know “what it means to collaborate,” which he has done admirably.
Richard Posner once wrote that lawyers should recognize the “essentially pragmatic disposition of most American judges” and emphasize “the practical stakes in the case and thus the consequences of the decision.” Well-known as a primary progenitor of the law and economics school of jurisprudence, Judge Posner was actually writing about the role of the judge in the 21st century. He believes judges are most defined by their ideology, not their politics or personal preferences. Ideology, says Posner, is shown by the consistent worldview that shapes one’s answers to questions about social, economic and political issues.
But how can a judge allow his or her ideology to affect the court’s judgments? Many years ago, before Rucker became a justice, a man named Michael R. Pence sued the state of Indiana as a taxpayer challenging the constitutionality of a new statute. The Indiana Supreme Court affirmed judgment for the state for lack of standing. When describing its decision that standing is an inflexible part of a court’s jurisdiction, the court also explained that “we do not permit overly formalistic interpretations … to impede substantial justice,” but strict separation of powers dictated that particular result. In other words, the court stated, as Justice Rucker says now, that prescribed rules of law can necessarily be balanced by “substantial justice.” Does this allow ideology as a basis of decision-making? Justice Rucker’s worldview is inclusive, sympathetic, constrained by the law, and yet shaped by practical experience. Accordingly, his “ideology,” as Judge Posner would say, is one in which the effect of law and procedure comports to fair-mindedness regardless of the result or what law might require. Such is real justice; such is substantial justice. Justice Rucker has lived this ideal all his professional life.
After all this time, what case most sticks with Justice Rucker? He will say it is Anglemyer v. State of Indiana, in which he paddled among a complex array of federal and state obstacles and steered Indiana clear to a new sentencing scheme. Most importantly, he found that criminal defendants deserve at least a “sentencing statement” before they go to jail that explains why they are getting what they got. Like the veteran foreclosure case in March, it’s only fair, even if you lose. It’s substantial justice. It’s the least we can do. It’s the best that Justice Robert Rucker did for everybody.•
• Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed are those of the author.