Thursday Supreme Court interviews conclude

March 3, 2016

The Indiana Judicial Nominating Commission wrapped up the first day of interviews Thursday, hearing from 10 of the 15 applicants who seek to succeed Justice Brent Dickson on the Indiana Supreme Court. Here are highlights of Thursday afternoon’s interviews.

Judge Darrin M. Dolehanty, Wayne Superior Court 3, Richmond

Dolehanty was asked whether he thought private citizens or corporations should be required to assist in government investigations, and displayed a bit of his dry wit. “Welcome to the second round,” he quipped, receiving the largest laugh of the afternoon. “This is a lot easier than talking about triathlons,” he said, alluding to a subject of his prior interview.

After a pause, Dolehanty referred to the bundle of sticks analogy, in which citizens own rights to all the sticks in the bundle that haven’t been turned over to the government. Aside from those sticks the citizens have handed over, “I don’t see where the government has any authority, any legitimate authority to do so.”

Dolehanty also criticized the sentencing revision powers granted to appellate courts under Indiana Rule of Appellate Procedure 7(b), allowing appeals court to modify sentences on based on the nature of the offense and character of the offender. “I hate it,” he said. For trial court judges, “these aren’t things we take lightly.” He said he realized the rule was available as a remedy in outlier cases. “It’s an important rule to keep in place; it bothers me that it has to come into play.” He noted he had never had a resentencing under the rule.

Asked what role the Indiana Supreme Court could play in establishing a statewide public defender system, he said, “It would be my hope the Supreme Court doesn’t have to. … There are so many things we should fix ourselves instead of having someone fix it for us.” He noted, though, that while public defenders were adequately funded in Wayne County, the same isn’t always the case in neighboring counties.

Dolehanty said he would seek consensus if appointed to the court but would stand his ground if he believed a dissent was warranted. “It’s tough to be the unpopular kid, the person who has the minority opinion,” he said. “But it’s darned important.” He noted two justices wrote separate dissents on a case involving the statute of repose that overturned precedent. “Is that a difficult position to take? I think it is. Is it an important position to take? Absolutely.”

Judge Frances C. Gull, Allen Superior Court, Fort Wayne

Gull, asked if she agreed with a comment from late U.S. Supreme Court Justice Thurgood Marshall that a judge should do what’s right and let the law catch up, said, “I agree with that to a certain extent. There are laws that need to catch up.” There weren’t drones, for instance, a few years ago, and she said adoption laws also have been slow to catch up to society. She said the Supreme Court has often written opinions that in essence say, “it’s not our place to change the law, but perhaps the Legislature could do something.”

But Gull also said that any statutes that supersede common law must be very explicit. “I’m a rules follower,” she said, looking to the four corners of the document she’s asked to interpret.  “I’m very much an interpreter of what is the intent of the Legislature, what is the intent of the statute.” She said if she couldn’t find answers in the books or case law, she would seek out colleagues on the court with expertise in the area. “I would buckle down and do the work and the research necessary to issue good opinions.”

Addressing Rule of Appellate Procedure 7(b), Gull, who has presided over more than 600 felony trials, said she hadn’t been reversed on that basis and that appeals courts give great deference to trial courts. “The duty of higher courts is to look at the bigger picture,” she said. “They should be looking at what happened in LaPorte County with a similar kind of case and what happened in Evansville in similar types of cases.”

Gull also was asked about handling jury trials with wide media exposure, and she mentioned the recent trial of Bob Leonard who was convicted of 51 counts including murder for the Richmond Hill house explosion in Indianapolis. By changing venue due to extensive pretrial publicity, she said, “We were able to get a jury in a day.” She also noted an award for use of technology for a system connecting jurors to the courts.

Noting she only recently upgraded her flip phone for an iPhone, it was far from her idea alone. “I surround myself with brilliant people and I take their advice when it’s offered,” she said.

Judge Steven L. Hostetler, St. Joseph Superior Court, South Bend

Hostetler said he didn’t entirely agree with the observation of Marshall that a judge should do what’s right and let the law catch up. “We get in trouble many times when we try to decide what is right” when the law may dictate a different result. He then was asked if his view of judicial restraint would have resulted in a different outcome than the 1954 Brown v. Board decision blocking segregation in schools.

“First of all, I would handle it the same as the court did in that case – you have to recognize the civil rights of everyone,” he said. While he believes in judicial restraint, he said, “It would have been inappropriate to restrain the power of the court,” and the court could not abdicate a responsibility in the case.

As a transactional and business lawyer for about 20 years before his years as a judge, Hostetler said he had seen more emotion in board rooms and conference rooms than he’s seen in domestic relations cases. He said he had to learn to be a neutral when he came to the bench. “I feel I’m a good listener,” he said. “It’s so important not just as a judge or as a Supreme Court justice, but in life.”

He said he didn’t believe a statute had to be terribly explicit to supersede common law. He said he would look to “why did the Legislature do what it did if it didn’t mean to replace common law. I don’t think that has to be expressed.” He also said he would try to reconcile the common law with the statute, and that justices “should not replace common law when it doesn’t need to be replaced.” In deciding close questions where a right isn’t enumerated, he was asked whether he would likely recognize the right or allow the democratic process to decide. “I would have to say I am such of lover of human rights and freedoms I’m probably going to err on the side of recognizing” the right, he said.

Hostetler said he sees a growing rift between the judiciary and the general public. “We’re drifting farther apart, and we’re seeing that in the pro se legal problem” and with the public defender system. “I believe society depends on and needs a strong legal system.”

Judge Matthew C. Kincaid, Boone Superior Court 1, Lebanon

Kincaid was asked by Chief Justice Loretta Rush who the first three people he would call if he were appointed to the Supreme Court. He’d call his wife, his father (and mother), and a local lawyer and mentor. Kincaid said he’s been blessed with mentors, including former Boone County jurist and now Justice Steven David. “I spent many years with him on the bench,” Kincaid said. Asked how he’d fare if he had to dissent in an opinion, he said, “I’m not going to get pushed around by my mentor,” though he’d listen to what he had to say.

Kincaid nuanced his view of the comment of Marshall, that a judge should do what is right and let the law catch up. “If he did say that and it was true for him, he’s smarter than me,” Kincaid said. Rather than determining what the law ought to be, he said, “it’s hard enough to figure out what the law is.”
Commission member Charles Berger asked, given his view of judicial interpretation, where Kincaid would have come down on the 1954 Brown v. Board U.S. Supreme Court decision that struck down segregation. “The justices understood the importance of what they were doing at the time,” he said, describing it as revolutionary change. “I think it’s honorable for the court to come together on important issues.” Nevertheless, he said “I think it’s with great caution that we depart from precedent.”

He said circumstances dictate when a court should find a specific legal issue not specifically mentioned in the constitution or in case law. “We find our law in what the Legislature provides and what the constitution provides,” he said, but also in common law. “I think you can find those rights in places other than statutes.”

Asked about times in his prior practice or on the bench when he’s provided legal aid to someone who could not afford it, Kincaid said it happens on a daily basis in court when he has to decide who has a right to a court-appointed attorney. He said he errs on the side of providing an attorney in close cases. Legal representation, he said, “is the key to the adversarial system.”

Judge James R. Ahler, Jasper Superior Court, Rensselaer

Ahler said challenges facing the court are many and vast, and start with finding funding for and creating a better system of public defenders around the state, perhaps shifting the cost to the state. “If we truly believe in the principle that every litigant who comes before the court should have equal access,” he said, “we actually need to step up and put out money where our mouth is.”

He also said trial courts need help with non-English-speaking litigants, and senior judges stand ready to assist trial courts. “We need to do a better job of matching seniors with the needs in courts throughout the state.” Ahler said the judges want to participate more in the judiciary but for a number of reasons are unable to.

Appealing to the court to consider the needs it will have after Dickson’s departure, he said he would bring a combination of leadership, management, affability and teamwork, as would most, but he’d offer more. He would bring a “balanced portfolio” of 20 years of practice in what would be commercial courts, followed by more than eight years presiding in a court with a wide-ranging docket.

“I firmly believe in judicial minimalism,” he said, noting courts should limit their answers to the questions squarely before them. But courts also have a responsibility to develop common law, he said, and have to be mindful we live in a changing society.

“And we must change with that,” he said. Ahler said he would come to the job knowing every decision the court makes has to be vetted with all members. He vowed “a little humility, a lot of patience and a lot of listening skills. … Better judges are those that listen more than they talk,” he said.

Here are highlights of Thursday morning’s interviews.

Peter J. Rusthoven, Barnes & Thornburg LLP, Indianapolis

Rusthoven was questioned about the Religious Freedom Restoration Act. Rusthoven had editorialized about “distorted” media coverage, saying opponents of the bill wrongly characterized it as a license to discriminate. He said he was proud to have participated in a civil forum about the law in which people on all sides of the issue participated respectfully.

“I think some of that may be due to the training in our profession with how to deal with people on the opposing side who disagree,” he said. He said his column and stance traced the history of RFRA laws around the country and the U.S. Supreme Court and federal actions that led to them in the 1990s and later.

“I was a little surprised at the level of reaction to it,” he said of RFRA opposition. But he said debate is healthy. “I think it’s a good thing as long as people aren’t treating each other as the enemy,” he said. “One of my prayers is we quit doing that; I think it’s happened too much.”

Rusthoven said he would be able to set aside his past experiences as a trial lawyer and Republican Party activist and work collaboratively on the court. He said he would “administer justice fairly without regard to wealth, without regard to party, without regard to position in life.”

He said he would meet with trial court judges and strive to see courts received adequate resources, noting 1.3 million new cases were filed last year, including a troubling number of criminal heroin charges. Novel solutions such as problem-solving courts are vital to meet those needs. Without them, he said, “I think there is a danger of the system getting swamped.”
Judge Vicki L. Carmichael, Clark Circuit Court 4, New Albany

Carmichael told the commission that if she wasn’t a trial court judge, she would be a teacher. She said the passion for education her teacher father instilled in her would follow her to the court, noting she does a fair share of continuing legal education instruction with local bar groups and the Indiana Judicial Center.

 “… I was one four judges who went around the state and offered to teach criminal code reform,” Carmichael said. “I have to learn it in order to teach it … it was something where I was learning it, so for me, teaching is a passion.” If she were explaining the Supreme Court to sixth-grade children, she said she would describe the court as having the same powers as the children’s mom and dad.

Carmichael said she was inspired to become a lawyer and a judge from a school visit to a city court. Her legal education led to a clerkship for former Kentucky Supreme Court Justice Charles Leibson.

“My experience with Justice Leibson on the Kentucky Supreme Court is one I still value today because it taught me to really look at the issues and focus on the issues,” she said, and also gave her experience drafting appellate opinions.

Oral argument is beneficial in close-question cases, particularly in criminal cases, she said, and she responded to a question about whether judges should recognize a right not found in the law or allow the democratic process to determine that right by saying, “I think a judge should always err on the side of protecting the rights of individuals and citizens.”

Carmichael said if selected to serve on the Supreme Court she would move to Indianapolis from her home nearly two hours away. She also said she has no use for social media – “It drives me crazy when people post everything they’re doing on Facebook,” she said – and gets her news from National Public Radio, CNN and Fox News. “I don’t watch a lot of local news because it’s so depressing,” she said, and she’s also concerned about hearing things that could come before her.
Judge Steven R. Nation, Hamilton Superior Court 1, Noblesville

Nation suggested that Brown v. Board of Education was wrongly decided during his interview Thursday with the Judicial Nominating Commission.  

The Hamilton County judge was questioned by commission member Charles Berger of Evansville about his judicial philosophy and whether judges must do what is right and let the law catch up, paraphrasing the late Supreme Court Justice and civil rights icon Thurgood Marshall. Berger asked the question of several applicants.
Nation answered “no” when asked if the court in 1954 would have struck down desegregation had it followed his judicial philosophy. “They should have followed the Constitution,” Nation said. If a right isn’t enumerated in the Constitution, he said, “We’re not there on the Supreme Court to judicially change the constitution.”
With his background as a prosecutor and trial court judge, Nation has seen rapid growth in Hamilton County and said that in reaching goals, it’s been important to reach out to groups to find common ground. He would look for ways to implement ideas that have worked in the Indianapolis northern suburb community. “Three counties over it wouldn’t work, but the basic principle would still work; how do we adapt that to work in your county.”

He said court outreach to trial court judges is critical, and that a judge may talk about things differently over a cup of coffee than in a formal setting. He said serving on the court would be a pinnacle in a life of public service. “I would hope you would look at my experience, how I’ve been able to resolve conflicts.” He said he hoped to make the justice system better “so when it’s passed on to the next generation they have this beautiful institution.”
Thomas M. Fisher, Indiana solicitor general, Indianapolis

Fisher also was asked about the Thurgood Marshall comment that a judge should do what is right and let the law catch up. “That does not sound like something I would agree with,” he said, noting judges may not retract principles of the law. Commission member Charles Berger asked Fisher and others about the Brown v. Board decision, and Fisher said it was appropriate for courts to revisit constitutional and statutory law. “The more important and more fundamental question is to get it right,” he said.

Chief Justice Loretta Rush asked Fisher about whether he would be able to compartmentalize his past as an advocate for the state if appointed to the court. “That’s an impossible question,” he said, “because we don’t shed our experiences, unfortunately.” Fisher said, though, that he would be collegial and open to constructive criticism. “I love that interchange of ideas,” he said. “That’s how you learn.”

Fisher said the increasing number of pro se litigants is among the biggest challenges for the courts, and he’s dealt with the issue in his appointment to the 7th Circuit Court of Appeals’ pro se committee. He said his strength among four appellate litigators in the 15 finalists lies in the 2,000 arguments he’s made before the Indiana Supreme Court as well as those representing the state in federal courts.

While clerking for 7th Circuit Court of Appeals Judge Michael Kanne, he said the jurist believed oral argument made a difference in about 15 percent of cases. “It may be a greater impact in the Indiana Supreme Court,” he said. “It’s going to be impactful as long as everybody’s prepared and everybody’s engaged.”

Fisher said he couldn’t answer in the abstract whether a judge should rule on recognizing a right or allowing the democratic process to play out in close cases.  He also said he’s optimistic about the coming Indiana commercial courts. “I think it’s going to be something that businesses involved in disputes are going to see as a way to bring proper attention to the complexity of their cases.”
Magistrate Judge Paul R. Cherry, U.S. District Court, Northern District of Indiana, Hammond

Cherry said that if the commission is looking for a versatile jurist, he’s got more experience than any other applicant. “I come out as Number 1 in terms of judicial service,” with 15 years on the state bench as a judge in DeKalb County and 12 years in his current role as a federal magistrate in Hammond.

Along with judicial breadth, he also is claimed by the legal and general communities of northwest and northeast Indiana and knows and appreciates the distinct cultures of each region.

Cherry said he would defer to the legislative process before extending rights from the bench, noting, “We’ve gotten in trouble in this country over that, I think.”

Commission member Charles Berger asked whether if his judicial philosophy had been followed that the Brown v. Board case would have been decided as it was, ending segregation in 1954. “I’d like to think sitting here in 2016 I would have been in the majority,” Cherry said. “I like to think treating everyone equally trumps – no pun intended – in that particular instance.”

Asked about a time when he had served a client in need, Cherry recalled representing a mentally challenged man in some matters who was unable to pay and ashamed. “He had this old jalopy of a car,” he said, which he drove to his house one day and “dropped off grocery sacks of tomatoes he’d grown in his garden. That was his payment to me.”

Cherry said he’d welcome the opportunity to provide public service on the Indiana Supreme Court. “It would be an immeasurable honor in terms of one’s career, ones standing,” he said. “It would be a wonderful way for my career, to end my career.”

Here is the schedule for Friday’s interviews:
8:30– 9:15 a.m. – Executive session to consider applications
9:30–10 a.m. – Rep. Thomas W. Washburne, Old National Bancorp, Evansville
10–10:30 a.m. – Mark A. Lienhoop, Newby Lewis Kaminski & Jones LLP, LaPorte
10:30–11 a.m. – Judge Thomas J. Felts, Allen Circuit Court, Fort Wayne
11:15 a.m. – 11:45 a.m. – Thomas E. Wheeler II, Frost Brown Todd LLC, Indianapolis
11:45 a.m. – 12:15 p.m. – Geoffrey G. Slaughter, Taft Stettinius & Hollister LLP, Indianapolis
12:30 p.m. – Lunch and deliberations in executive session

The commission will select three finalists and submit their names to Gov. Mike Pence, who then will have 60 days to appoint Dickson’s successor. Dickson will retire April 29.


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