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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

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  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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