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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. 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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