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Supreme Court preps for lineup change

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The Indiana Supreme Court will soon see its first lineup change in more than a decade, and as that turnover approaches, the state’s highest appellate court is mostly conducting business as usual.

While it may appear in public little change is happening, behind the scenes the court is preparing for Justice Theodore Boehm’s departure Sept. 30. Attorneys practicing before the state’s highest court say they expect some impact leading up to when a new justice takes the bench.
 

Theodore Boehm Boehm

“I imagine there are efforts to complete certain court business before the turnover, just like in any workplace where you’re getting ready for a turnover in personnel,” said Indianapolis appellate attorney Jon Laramore at Baker & Daniels. “But it’s hard to know specifically how that might happen here in Indiana because most of the business is done in conferencing behind closed doors.”

The number of rulings in recent months hasn’t shifted from what’s typical for a given year, with August having only two opinions and July with three opinions following the flurry of activity in June before the court’s fiscal year ended. Since the new fiscal calendar began, Justice Boehm has authored two of the eight opinions issued by deadline for this story, though four others have been per curiam decisions with unanimous agreement from all five justices.

Rule revisions are typically finalized and released in September or October, and so that doesn’t change based on the justice’s departure and the court continues meeting in its weekly conferences as usual. But Chief Justice Randall T. Shepard, who’s been in that top administrative position for 23 years, said the court is trying to clean up as much as it can of existing business prior to the transition even though most depends on what specific matter is before them.

“There’s no magic about this,” he said. “We’ll manage what’s before us based on the topic and whatever is needed. We try our best to come to closure on as many transactions as we possibly can, from rule changes and opinions or project decisions, and try to finish things that have been in play for a long time. But we understand that’s not all together possible all the time.”

For example, the court may put more effort into looking at issues where division exists, to try and reach some conclusion by the time the lineup changes, the chief justice said. He expects that Justice Boehm will continue to participate in court business up until the final day – a time that’s historically led to interesting nuances reflecting the changing makeup of the court.

In 1986 when Justice Brent Dickson succeeded Justice Dixon Prentice, the chief justice recalled how two decisions issued the same day reflected a lineup change – Justice Prentice in the morning and Justice Dickson by mid-afternoon. Chief Justice Shepard also pointed to a gap in the late ’90s when there were only four justices on the court.

“I arrived at a moment my predecessor was still a member of the court but wasn’t participating in many issues because of his health,” he said about former Justice Donald Hunter. “When I came on, I recall there was one case where the other four were equally divided and they’d sat there waiting to know who the new member was and which way he’d vote. That fell onto me.”

The chief justice said he’d also heard that when Justice Boehm arrived, he found some cases where his predecessor had been the dividing vote and he ended up writing it.

Justice Boehm said he plans to participate in whatever actions – cases, rules, appointments, or other issues – that are before the court until he leaves Sept. 30, or unless some specific reason exists for him to not do so. The office remains the same and the powers and authority do not change based on who’s on the bench, he said.

“Another way to think about this is the public is entitled to full service until the person leaves office,” Justice Boehm said. “In the case of a multi-judge court like mine, it means the court has its full complement of five justices until a justice leaves office, and the fact that a different person succeeds and gets the last word doesn’t change that.”

Appellate attorneys throughout Indiana say they haven’t traditionally seen any significant administrative differences when one justice leaves and another takes a spot on the bench. But some changes can be more evident at the state’s highest appellate court, just as it is when a new justice joins the Supreme Court of the United States. Laramore pointed to how federal justices have said the entire court’s relationship changes with the appointment of a new member, and that’s likely to be the case here in Indiana.

For example, one change will be the simple nature of how the private conferences are conducted each week. When they meet at the statehouse each week, Chief Justice Shepard sits at the head of the table while the rest sit in order of reverse seniority ­– Justice Rucker in the first chair to the left, then Justice Boehm, Justice Frank Sullivan on the right side, and Justice Brent Dickson to the right of the chief justice.

Once a new justice is appointed, Justice Rucker will move to the second chair on the left while the newest member takes the first spot.

“This will have a huge effect in conferences, where the junior member sits in the first chair,” Laramore said. “A new voice will be starting that discussion for the first time in well over a decade.

Once a new justice is named and takes the bench, attorneys say it will be interesting to see if the court takes any new direction on certain issues or how dockets are managed administratively. The three finalists include two trial judges and a longtime appellate attorney, making this transition different from when Justice Robert Rucker joined the court in 1999 from the Indiana Court of Appeals – none have appellate level judicial experience, though one did work previously as Supreme Court administrator.

Some trends might take longer to identify once a new justice is named, Laramore said. While Justice Boehm has traditionally worked on broadening juror pools and Justice Sullivan’s focus has largely been on the judicial technology front, any interests the new justice might have won’t be immediately known.

“Two of the finalists are trial judges and a third worked on the rules committee for years, so as an example we might well have some strong opinions on rule changes that are before the court,” Laramore said. “But we won’t know the particular interests of a new justice until that person arrives and gets settled in.”

Overall, attorneys say they aren’t expecting any significant changes in the final weeks of Justice Boehm’s tenure or once a new member joins the court. That has been the trend through the years, and should continue this time.

“From what I’ve seen, it’s always been a pretty seamless transition,” said attorney Bryan Babb at Bose McKinney & Evans. “You might have a little delay with someone learning the ropes once they take the bench, but I don’t think it’s anything noticeable to those of us practicing before the court.”

But what could present an even more significant caseload change is Justice Boehm’s move to senior judging for the Court of Appeals. The chief justice confirmed that his departing colleague has an interest in that, and the additional assistance at the intermediate appellate level will help the judiciary be even more efficient at a time when resources are tight. Justice Boehm would become the Court of Appeal’s fifth senior judge, working with the 15 sitting judges in the court where most state appeals come to an end.

This will be the first time in Indiana in which a retiring justice will be senior judging at the lower appeals level, though Chief Justice Shepard noted other states and the federal system see that trend regularly.

“I think it’s very interesting and will be a very good thing for our judiciary overall,” he said.•

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  1. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

  2. GMA Ranger, I, too, was warned against posting on how the Ind govt was attempting to destroy me professionally, and visit great costs and even destitution upon my family through their processing. No doubt the discussion in Indy today is likely how to ban me from this site (I expect I soon will be), just as they have banned me from emailing them at the BLE and Office of Bar Admission and ADA coordinator -- or, if that fails, whether they can file a complaint against my Kansas or SCOTUS law license for telling just how they operate and offering all of my files over the past decade to any of good will. The elitist insiders running the Hoosier social control mechanisms realize that knowledge and a unified response will be the end of their unjust reign. They fear exposure and accountability. I was banned for life from the Indiana bar for questioning government processing, that is, for being a whistleblower. Hoosier whistleblowers suffer much. I have no doubt, Gma Ranger, of what you report. They fear us, but realize as long as they keep us in fear of them, they can control us. Kinda like the kids' show Ants. Tyrannical governments the world over are being shaken by empowered citizens. Hoosiers dealing with The Capitol are often dealing with tyranny. Time to rise up: https://www.theguardian.com/technology/2017/jan/17/governments-struggling-to-retain-trust-of-citizens-global-survey-finds Back to the Founders! MAGA!

  3. Science is showing us the root of addiction is the lack of connection (with people). Criminalizing people who are lonely is a gross misinterpretation of what data is revealing and the approach we must take to combat mental health. Harsher crimes from drug dealers? where there is a demand there is a market, so make it legal and encourage these citizens to be functioning members of a society with competitive market opportunities. Legalize are "drugs" and quit wasting tax payer dollars on frivolous incarceration. The system is destroying lives and doing it in the name of privatized profits. To demonize loneliness and destroy lives in the land of opportunity is not freedom.

  4. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  5. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

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