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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. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. 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)

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