Openings on the Indiana Supreme Court and state Tax Court in recent months have put more focus on the selection process and what goes into choosing appellate jurists, leading to increased interest from the legal community about who has a voice in deciding nomination and other judicial qualifications issues.
Now, more than 7,000 attorneys in 19 central Indiana counties have the chance to vote on one colleague who will be that voice and be a part of the decision-making that will impact the judiciary and legal system throughout the state.
The vacancy will be for one seat on a seven-member panel that doubles as the Indiana Judicial Qualifications Commission and Indiana Judicial Nominating Commission, which is chaired by Chief Justice Randall T. Shepard and includes three lawyers chosen by colleagues and three non-attorneys appointed by the governor. Indianapolis attorney John Trimble completes his three-year term at year’s end, and five lawyers have submitted their names for consideration to replace him.
Applying for the post in the 2nd judicial district for the 2011-2013 term are:
• Jan M. Carroll, a partner at law firm Barnes & Thornburg in Indianapolis who was admitted to practice in 1984 and handles product liability, professional liability for lawyers and doctors, real estate and land use, and general commercial contract disputes. A former journalist who worked as an Associated Press reporter for 11 years, she also handles First Amendment and media law issues.
• David R. Hennessy, a solo criminal defense attorney in Indianapolis who sits on the Indiana Public Defender Council’s board of directors and has been practicing since 1982.
• Kathy L. Osborn, a partner at Baker & Daniels in Indianapolis who’s been practicing since 2000 and handles commercial, antitrust, and appellate litigation. She also chairs the Indianapolis Bar Association Appellate Practice Section.
• Joel Schumm, an Indianapolis attorney since 1998 and a law professor at Indiana University School of Law – Indianapolis, largely practices criminal defense at the state trial and appellate levels.
• William E. Winingham Jr., a name partner at Wilson Kehoe & Winingham in Indianapolis who was admitted to practice in Indiana in 1979, has been an assistant U.S. Attorney assisting crime victims, and a state court prosecutor. Currently, he’s a plaintiff’s attorney focusing on civil litigation that includes vehicle accidents, fires and explosions, products liability, and cases against insurance companies.
The district is made up of Adams, Blackford, Carroll, Cass, Clinton, Delaware, Grant, Hamilton, Howard, Huntington, Jay, Madison, Marion, Miami, Tippecanoe, Tipton, Wabash, Wells, and White counties.
But whoever is chosen to start in January 2011 by those attorneys will have statewide impact on how judicial discipline and qualifications issues are tackled by the commissions. Those five are using that fact to point out specific areas that need more attention and emphasize how the makeup of those lawyer members is an important consideration.
The election also means the legal community is seeing a mix of pseudo campaigning from the group, with some contacting colleagues by word-of-mouth only and others tapping into more organized campaigns using letters, e-mails, and social media.
Through the years, the attorney election for the commissions has evolved into what’s largely viewed as a “plaintiffs versus defense” bar type of race. Trimble noted that when he started practicing in the early 1980s and into the ’90s, the biggest law firms would pool their votes and back one person. That hasn’t happened in 15 to 20 years, though.
“With five people running, it will be interesting to see how votes fall and how this all turns out,” said Trimble, the LewisWagner partner who is wrapping up his time on the commission after starting in January 2008.
Most of the nominees have phoned Trimble to discuss what the commission does and how much time commitment is involved, and he thinks all are qualified and any one of the lawyers would be an excellent choice.
Traditionally, attorneys do some campaigning for the spot and that’s involved writing letters, calling colleagues, and just mentioning their interest and the vote possibility in casual conversation.
Trimble said he didn’t make phone calls or send brochures when he was seeking the position, but he did ask select attorneys, friends, and law firms in central Indiana to e-mail co-workers to let them know about his running. He described his as a “somewhat organized” effort, not a highly organized e-mail or phone campaign. He said the defense bar has been more word-of-mouth, while he’s observed the plaintiffs bar sends letters and pamphlets outlining a person’s biography and qualifications, and particular endorsements.
In responses about that campaigning, the five nominees offered different answers about how they’re handling it. Most are relying on word-of-mouth to some degree, with that level varying with each person and some asking fellow attorneys and law firms to spread the word.
Schumm said he isn’t sending letters or placing any ads, but he is relying on e-mail and word-of-mouth.
Hennessy said he hadn’t considered campaigning and even declined the attorney-contact CD offered as a resource, but he may do letters and rely on word-of-mouth because he’s being urged to campaign.
Carroll said she’s also contacting colleagues and using her personal contacts from her days as a reporter, and she’s considering a letter after receiving one herself from another nominee.
Winingham said he’s called colleagues and sent a letter explaining his interest and summarizing his qualifications.
Osborn indicated she had the most organized and systematic approach in contacting lawyers and law firms, and she also sent letters to all of the county bar associations in 2nd District. Her firm, Baker & Daniels, sent a news release – and posted it online – about her interest, and she said her friends and colleagues are using social media to further campaign efforts.
“I’m not sure that (level of campaigning) was there in previous years,” Carroll said. “Every lawyer is looking for someone who is truly neutral and has the experience and background to make good decisions. For me, the function of these letters is to say, ‘Hey, there’s an election, so be alert and cast your ballot.’”
Ballots and biographies will be mailed Oct. 12 to attorneys’ homes by the Indiana Appellate Clerk’s Office, and attorneys must return the ballots by 4 p.m. Nov. 10. The ballots will be counted at 10 a.m. Nov. 12, according to a clerk’s office notice. During the 2007 election process for that district, the clerk’s office sent 6,616 ballots to attorneys and 1,678 were returned – a 25 percent return response. The clerk’s office expects to send 7,092 ballots this time.
Hennessy said he wasn’t aware of any practicing criminal defense attorney being on the commission, as most practice on the civil side.
Osborn noted that the commission selection has often been cast as “plaintiff’s versus defense bar races” and that has disenfranchised a large portion of the practicing bar. She also emphasized that women make up more than 50 percent of the bar, but no female lawyer has ever been on the commission since it was created in 1970. Women have been on the commission in the past and there’s one currently, but all have been non-attorneys chosen by the governor. Evansville resident Christine Keck – who is director of strategy and business development for renewable energy at Energy Systems Group in Newburgh – is the commission’s only woman and her term also expires in December.
“The disappointing fact that Indiana only ever has had one female Supreme Court justice, and currently has none, is an historical one that goes to the cumulative decisions that have been made over nearly two centuries,” Osborn said, noting that Boone Circuit Judge Steven David’s recent appointment to the high court isn’t to blame. ”I am interested in serving on the Judicial Nominating Commission in part because I believe the fact that there has never been a female attorney on that commission could be one factor of many that has impacted historical nominating and appointment decisions.”
All cited their interest in judicial ethics and the nominating process, and the larger issue of making sure the judiciary remains strong.
Hennessy said he’s observed a decline in court sessions starting on time and overall civility toward lawyers and litigants, and he wants to see greater exposure and transparency, as well as increased sensitivity and early intervention on judicial-stress issues.
Trimble said that it’s most important for the candidates to remember and understand that 95 percent of the work the commissions do involves judicial qualifications issues that come before them, including the selection and appointment of senior judges.
“This is interesting and challenging work, and it’s certainly something I’ve generally enjoyed and would describe as a life-changing experience,” he said.•