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In memory of Indiana Justice Roger Owen DeBruler

March 8, 2017
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Following are excerpts from a eulogy delivered by retired Indiana Supreme Court Justice Frank Sullivan Jr. at the funeral of the late Indiana Justice Roger DeBruler at Christ Church Cathedral in Indianapolis Feb. 21. DeBruler, 82, died Feb. 13.



Roger DeBruler [was appointed] to the Indiana Supreme Court in 1968. Here is Chief Justice Shepard’s description of a photo taken at the time: “In this picture, the newest thirty-something Democrat [sic] justice sits up proudly in a full beard (fluffed up, no doubt, during the bicycle ride over from Lockerbie Square) and faces the camera with a restrained grin that says: ‘I’m not like them.’ By ‘them,’ Roger frequently meant the Republicans on the court.”

. . .

The first 17 years of DeBruler’s [28 years on the court] were characterized by [his writing many] dissenting opinions. . . . [A] justice of the United States Supreme Court once wrote that certain dissents “seek to sow seeds for future harvest” and when a judge writes such a dissent, the judge speaks with a “prophetic” voice. [Professor Kenneth] Stroud recited this in a discussion of DeBruler’s dissents. Stroud never explicitly said that DeBruler was a prophet – but that’s what he meant. And he was right.

debruler-roger-mug DeBruler

For example, DeBruler in dissent wrote that a man who had quit his job rather than perform a task that violated his religious beliefs was entitled to unemployment benefits. Later, Congress, nearly unanimously, enshrined this principle in the 1993 Religious Freedom Restoration Act. (Not to be confused with the pernicious bill here in Indiana a couple of years ago that masqueraded under the same name.)

Not once but twice, DeBruler in dissent wrote that particular Indiana criminal statutes violated the United States Constitution. These dissents prophesized the later very famous cases of Roe v. Wade and Lawrence v. Texas.

Positions taken by DeBruler in dissent. Today, the law of the land.

DeBruler’s dissents are models of decorum. Tightly reasoned. Not overstated. Written in a straightforward, declarative style; not punctuated with hyperbolic rhetoric. Dissents written in this style meant that when a new generation of justices joined the court toward the end of his tenure and following — Shepard, Dickson, Krahulik, Selby, Boehm, Rucker and more — the DeBruler dissents of years gone by were adopted by and became the majority opinions of the Indiana Supreme Court.

DeBruler always wanted Indiana standards to be higher than the nation’s. The dissents I have just mentioned and many more embodied his aspiration that Hoosiers enjoy liberties greater than those protected by the Bill of Rights.

And in this regard, he was not always in dissent.

To this day, thanks to a DeBruler opinion, Hoosiers have greater protection from searches by the government than even that provided by the Bill of Rights.

To this day, thanks to a DeBruler opinion, Hoosier juveniles have greater protection from interrogation by the government than even that provided by the Bill of Rights.

And a eulogy to DeBruler cannot help but remind that Hoosiers have greater protection from search and seizure by the government of their what? Their automobiles! “It is particularly important, in the state which hosts the Indy 500 automobile race, to recognize that cars are sources of pride, status, and identity that transcend their objective attributes. We are extremely hesitant to countenance their casual violation.”

Was his tongue in his cheek when he wrote this? Perhaps. But the broader point remains: more protection than even that provided by the Bill of Rights.

There is much more to be said about DeBruler and law. But these reflections on dissent will have to suffice.

. . .

What, professor, do you want us to take away from this eulogy?

That Roger DeBruler showed us by his life and example how to take a stand for what will make things better.

That even in dissent, taking a reasoned stand, with decorum, sows seeds for future harvest.

That, although he taught us these lessons through his monumental written contribution to law, in whatever our walk or station of life, progress demands from time to time courageous yet dignified disagreement.

That Roger DeBruler showed us by his life and example how to love and hold dear our families, how to take care of our minds and our bodies. He showed us self-effacing modesty, almost to a fault.

And one last thing. Roger DeBruler left us with some words that are uncannily apt for this time in our history. Hoosiers, he wrote, are people who “always value[ ] neighborliness, hospitality, and concern for others, even those who may be strangers.”

We mourn with Karen and the DeBruler family the death of Roger Owen DeBruler. May he rest in peace.•

__________

Frank Sullivan Jr. is a professor of practice at Indiana University Robert H. McKinney School of Law and served with DeBruler on the Indiana Supreme Court from 1993 to 1996. The opinions expressed are those of the author.
 

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