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Standing up for the judiciary

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Indiana Lawyer Focus

Indianapolis attorney Tom Schultz sees that the judiciary is under attack and, as a past president of the Defense Trial Counsel of Indiana, he’s doing something about it.

He pointed to examples nationwide on how the judiciary’s independence is in danger, from the landmark Supreme Court of the United States decision in early 2010 that allowed unlimited campaign donations in judicial elections to the November 2010 general election where three Iowa Supreme Court justices lost their seats as the result of public sentiment over a decision allowing same-sex couples to marry.

schultz-thomas-mug.jpg Schultz

Indiana saw that danger after a May decision from the Indiana justices on the Barnes v. State case involving residents’ rights to resist police entry into a home. Justices received death threats, a public rally protested the decision and lawmakers formed a legislative study committee in response to the ruling. That ruling also sparked a conversation among some lawmakers that Indiana re-examine its merit selection system for appellate judges.

With those examples fueling concern within the legal community about whether judicial independence is in jeopardy, the DTCI is forming a new committee to help advocate for the third branch by educating the public and legislative leaders about the judiciary’s purpose and inner-workings.

Schultz says the things the committee may look at include overall reaction to judicial opinions, public criticism of judges or courts, issues surrounding judicial selection, and efforts to limit funding or judicial salaries. He envisions the committee working through the media, Legislature and school systems to educate lawmakers and members of the public, possibly even being a place for the media to turn for fair comment on judicial rulings.

Schultz expects those details will be worked out once the committee – which will include six to eight attorneys – starts meeting in January. Eventually, Schultz hopes the defense bar can work with the judicial and legislative branches as well as other bar associations, including the plaintiffs’ bar, to discuss judicial issues impacting attorneys and judges throughout Indiana.

“As an organization, we see that it’s apparently en vogue to attack the judiciary,” the principal partner at Schultz & Pogue said. “But while that’s a problem in itself, a bigger problem is that judges can’t stand up and defend themselves. So that falls to us, as lawyers. We need to defend the system we have and also educate people about the role of the judiciary.”

Schultz said the negative tone against lawyers sometimes clouds the public’s view of the entire legal system. He doesn’t believe an answer can be easily found by turning to tort reform or changing how judges are chosen – two elements Schultz sees as the most common responses when legislators or members of the public don’t like what the courts are doing.

“Lawyers and courts are easy targets, but many people don’t understand the basics about the system,” he said.

Indianapolis defense attorney John Trimble, a past DTCI president and member of the defense attorney advocacy group known as DRI, has been a part of national and statewide efforts studying the issue of judicial independence.

“Public perception of our judiciary is largely based on headlines and not the merits of a case as derived from the facts, law and precedent,” Trimble said. “It’s very easy for the public to criticize and lambast judicial holdings, especially now with blogs and other Internet options allowing them to voice opinions. The public lashes out against judges and urges legislators to do something about it, based on limited or no understanding of what a decision might have said.”

Other states’ defense bars have embraced efforts similar to that being undertaken by DTCI, such as in Washington where a defense bar committee joined the teacher’s association and League of Women Voters to work on shaping opinions about how judges are selected. Other jurisdictions have done the same on other court-related issues, Trimble said.

trimble_joh-mug.jpg Trimble

Those types of efforts could be duplicated by the DTCI committee, Trimble and Schultz said.

“For us lawyers, we’re the front line consumers of judicial services based on the work we do for our clients,” Trimble said. “But in generalities, we attorneys are guilty of standing idly by while our judiciary deteriorates. We get accustomed to the day-to-day operations of courts that we deal with and we don’t realize how corrosive these attacks on courts can be. If we don’t defend the courts, no one will.”

The Indiana Trial Lawyers Association supports the effort and looks forward to working with the defense bar on some of those common issues involving the judiciary, according to ITLA president and Fort Wayne attorney John O. Feighner. When judicial pay or judge selection debates have happened in the past, he said the plaintiffs and defense bars have worked along with the Indiana State Bar Association to address those concerns on the public and legislative fronts.

“We all want to see the courts treated fairly and that transcends the boundaries of who we represent and which side we’re on,” he said.

For the ISBA, the educational effort is already underway as it works to make sure the decision-makers in the General Assembly understand the legal system and how the courts are meant to function. The ISBA held its first-ever Law School for Legislators prior to Organization Day in mid-November. Organizers believe it was the first of its kind in the nation.

ISBA legislative counsel Paje Felts said the decreasing number of practicing attorneys in the General Assembly means that fewer legislators know the practical impacts of the legislation they’re considering and passing. This is becoming an even more important trend now that Indiana is expected to lose several key lawyer-legislators who plan on not running for re-election, Felts said.

“When you look at the numbers, it looks like the amount of lawyers has risen,” she said of her count of 26 legislators who have law licenses. “But so many haven’t practiced and don’t really understand these issues we see in the legal community. Lawyers have to bring this knowledge to the table.”

At the legislative law school, Felts said legislators were able to discuss issues such as how their legislative mandates impact administrative law and more general topics such as judicial selection and the interaction between the legislative and judicial branches.

Whether it’s led by the DTCI, another bar association or other organization, Felts said the educational aspect is what is important about any effort focusing the judiciary.•
 

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  1. 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.

  2. 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.

  3. 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)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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