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Schedule set to fill upcoming Indiana Supreme Court vacancy

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Anyone who wants to be the next Indiana Supreme Court justice has until the end of June to apply for upcoming vacancy on the state’s highest court.

The Indiana Supreme Court’s Judicial Nominating Commission is accepting applications until June 30 for the appellate post, which is being vacated once Justice Theodore Boehm retires Sept. 30. He announced his decision May 25.

In the initial days after his announcement, the Indiana legal community has already started speculating who could be the next state justice, and much discussion has focused on whether that person should come from the judiciary and how likely it is that a woman would be named.

Indiana and Idaho are currently the only two states without a female justice, while Justice Boehm is one of three sitting justices who don’t have any judicial experience before joining Indiana’s high court.

Though there are names being batted about and formulas for who might be the state’s 106th justice, one common theme is clear: that person will have much to live up to in succeeding Justice Boehm.

“Those are large shoes to fill,” said Indianapolis attorney Jason Stephenson at Barnes & Thornburg, one of two authors of an annual review of the state’s high court. “His replacement needs to be ready to draft a lot of opinions, (because) over the years that I’ve participated in this article Justice Boehm has often written the majority of the court’s opinions.”

With the polarization between the federal and state governments, Stephenson said the appointee will have to be able to listen to both sides as Justice Boehm has done and not exhibit a knee-jerk reaction. This is even more crucial in the current political climate so that the end result is viewed as clearly just and not politically driven.

Many key players in the legal community say the next justice should be a woman, but they’re quick to note that gender is just one consideration and any appointee must be qualified for the post. Justice Boehm is one of those voices, as are Chief Justice Randall T. Shepard and former Justice Myra Selby, who was the state’s first and only female member of the court in the mid ’90s.

“I think it’s definitely something he should – and I expect will – take into consideration,” Justice Boehm said about the governor’s option in name a female justice. “It may not be the controlling factor, but it certainly should be something that is in everybody’s thoughts.”

Any court must reflect all kinds of diversity, from gender and race to geography, backgrounds, and skill sets, Justice Boehm said. In order to increase the court’s diversity on all those fronts, the retiring justice said this could be a time to again think about expanding the court from five members to as many as eight, as the state Constitution allows. The topic first surfaced in the late 1980s and again the late ’90s, but it hasn’t come up seriously since then. He won’t be the one to raise it but said it might be a concept for the legislature to start considering.

“It wouldn’t be a bad idea,” Justice Boehm said.

Indianapolis attorney and Indiana University School of Law – Indianapolis professor Joel Schumm, who clerked for Justice Boehm in the late ’90s, said he hopes the new justice is a woman – particularly because half of all attorneys graduating law school are females and the court doesn’t reflect that trend.

Indiana Court of Appeals Judge Margret Robb, one of five women on the intermediate appellate bench, said it’s an important issue.

“In terms of women on the court, that is an important consideration, but my overall hope is that the person will have requisite respect for the other branches of government, the law, and the Constitution,” said Judge Robb, who’s been a board member for the National Association of Women’s Judges.

Selby has echoed those thoughts, telling Indiana Lawyer in the past that the high court should reflect society and that having a female perspective is important and warrants discussion along with all the factors.

When Selby left the court, the legal community clamored for another female justice and then called for an expansion after Justice Robert Rucker was elevated from the Court of Appeals to take her spot. At the time, Chief Justice Shepard predicted that the next justice would be a woman – though he didn’t know at what point in the future that might happen.

The time could be now.

But ultimately, that depends on who applies, who the seven-member Judicial Nominating Commission chooses as finalists, and which person Gov. Mitch Daniels picks for the court.

Most of the process is in the hands of the nominating commission, which the chief justice chairs and consists of three attorneys chosen by their colleagues and three non-lawyers appointed by the governor.

Commission members will conduct public interviews with applicants July 6 and 7 in Indianapolis, and then a second round of interviews with semi-finalists will take place July 30. The commission will deliberate in executive session following those second interviews and then vote in a public session on the names of the three finalists that will be forwarded to Gov. Daniels for consideration.

Though Gov. Daniels has appointed two judges in recent years to the Indiana Court of Appeals, this will be his first chance to name a Supreme Court justice and it’s the first time since 1986 that a Republican governor will have the chance to fill a post on that bench.

By law, the governor has 60 days to select a new justice from the time he receives the nomination list. If he fails to do so, the chief justice or acting chief justice would make the appointment from the same list.

A candidate must be an Indiana resident and an Indiana bar member for at least 10 years, or an Indiana judge for at least five years. The annual salary and allowances for a Supreme Court justice is $154,328, according to the court’s public information officer Kathryn Dolan.

Whoever is chosen will serve until he or she faces a retention vote in the next general election at least two years following their appointment, then it would be every 10 years following that. Appellate judges in Indiana are only allowed to serve on the bench until the mandatory retirement age of 75, which was one of the reasons why Justice Boehm – who turns 72 in September – decided to retire now.

The last time a new justice search happened because of Selby’s return to private practice in 1999, the commission received 25 applications – significantly more than the 10 who’d applied in 1994 when she was eventually chosen by then-Gov. Evan Bayh.

Those interested in applying may contact counsel Adrienne Meiring with the Indiana Judicial Nominating Commission at (317) 232-4706. Applications are posted on the state judiciary’s website at http://www.in.gov/judiciary/jud-qual/justice.html.

As far as planning for a Supreme Court seat, Justice Boehm said it mostly comes down to someone being in the right place at the right time – as he said he was.

“It’s about who fits the makeup of the court, is someone the commission wants, the governor wants … what are the odds of being in the right place?” he said. “As far as planning … I’m not sure there’s a way to. If your career plan is to be an appellate judge, then your financial plan should be to win the lottery.”•

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  1. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: http://media.star-telegram.com/Munchausenmoms/ Here are the two research papers: http://www.sciencedirect.com/science/article/pii/0145213487900810 http://www.sciencedirect.com/science/article/pii/S0145213403000309 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

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  3. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  4. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

  5. From the article's fourth paragraph: "Her work underscores the blurry lines in Russia between the government and businesses . . ." Obviously, the author of this piece doesn't pay much attention to the "blurry lines" between government and businesses that exist in the United States. And I'm not talking only about Trump's alleged conflicts of interest. When lobbyists for major industries (pharmaceutical, petroleum, insurance, etc) have greater access to this country's elected representatives than do everyday individuals (i.e., voters), then I would say that the lines between government and business in the United States are just as blurry, if not more so, than in Russia.

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