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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. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

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