Judicial Nominating Commission concludes first round of interviews to succeed Kirsch

After two days spent interviewing 23 candidates, the Indiana Judicial Nominating Commission has selected 12 applicants to proceed to a second round of interviews for an upcoming vacancy on the Indiana Court of Appeals.

The JNC on Friday voted to advance these candidates to a second round of interviews to succeed Judge James Kirsch, who is retiring from the 15-member Indiana Court of Appeals in September:

  • Stephanie K. Bibbs
  • Stephen R. Creason
  • Judge Mark K. Dudley, Madison Circuit Court
  • Judge Paul A. Felix, Hamilton Circuit Court
  • Elizabeth C. Green
  • Derek R. Moler
  • Judge Timothy W. Oakes, Marion Superior Court
  • Judge Brant J. Parry, Howard Superior Court
  • Patrick W. Price
  • Zachart J. Stock
  • Judge Lisa L. Swaim, Cass Superior Court
  • Judge Heather A. Welch, Marion Superior Court

These additional 11 candidates interviewed with the commission May 13  and 14:

  • Judge Jonathan Brown, Hamilton Superior Court
  • Brad A. Catlin
  • Judge Kurt M. Eisgruber, Marion Superior Court
  • Judge James A. Joven, Marion Superior Court
  • Cynthia A. Lasher,
  • Judge Patricia C. McMath, Marion Superior Court
  • Patricia P. McCrory
  • Judge Gary L. Miller, Marion Superior Court
  • Bryce D. Owens

The 12 semifinalists will participate in a second interview with the JNC on June 8. The commission, led by Indiana Chief Justice Loretta Rush, will then vote on three finalists, whose names will be submitted to Gov. Eric Holcomb. Holcomb will make the final selection on Kirsch’s successor.

Below is a recap of Friday’s 12 interviews. Live coverage can be found on Twitter via @Indiana_Lawyer.

Stephen Creason, Office of the Indiana Attorney General

Though he’s not a judge, Stephen Creason said he has the requisite knowledge to serve the Indiana Court of Appeals well. Creason has spent the last 11 years as chief counsel for appeals in the Office of the Indiana Attorney General, and he said he understands Indiana’s appellate system at an “intimate level.” He might not have judicial experience, he said, but that doesn’t mean he won’t understand the role of an appellate judge.

“We’re all lawyers,” Creason said. “We work in different ways, but we’re remarkably similar.”

If he were appointed to the Court of Appeals, Creason said he knows what elements he would work to include in his written opinions. Chief among those elements, he said, would be an analysis that is as accessible to the “average person” as possible.

Patrick Price, Indiana Office of Management and Budget

Like many lawyers, Patrick Price said traditional legal education does not teach law students how to be lawyers. Instead, Price said he turned to clinics during his time at Yale Law School to learn what it means to actually practice law. Price told the JNC about one particular experience with an immigration clinic: Though his client lost in immigration court, they prevailed on appeal due in large part to what the clinic’s team had “teed up.”

“I was proud of that and the record we had built,” Price said.

Now as a practicing lawyer himself, Price has had a varied career, ranging from private practice to clerkship to his most recent work in public service. That experience would serve him sell on the Court of Appeals, Price said – because he’s familiar with multiple areas of the law, he can see the big picture of how a ruling on one issue might affect another issue.

Derek Molter, Ice Miller

Derek Molter’s day-to-day practice focuses on civil law, but he told the JNC he’s had his share of exposure to the criminal arena. He’s clerked for a federal judge who handled criminal cases, he’s taken criminal cases pro bono and he’s even written articles about criminal law developments. Given that experience, Molter told the JNC he would be able to make the transition to the COA, which issues rulings on a substantial number of criminal law cases.

Asked about his judicial philosophy, Molter gave a unique answer: He doesn’t have the “liberty” to have one. If selected, Molter would be joining Indiana’s intermediate appellate court that, while the end of the road for many litigants, is still subject to review. Thus, his “philosophy” would be to follow the Indiana Supreme Court’s position on the issues that would come before him as an intermediate appellate judge, Molter said.

Brad Catlin, Price Waicukauski Joven & Catlin

When asked about the biggest social issues facing Hoosiers, Catlin pointed to an issue also present at the national level: distrust in institutions. Especially after the pandemic, Hoosiers and Americans generally are skeptical of their governments, including their courts, Catlin said. To remedy that issue, Catlin pointed to public outreach efforts such as meeting with students and continuing the successful Appeals on Wheels program.

“It’s as much modeling behavior as anything else,” he said.

Catlin also enjoys engaging with the Hoosier legal community through programs such as CLEs. A frequent CLE presenter, Catlin said he enjoys educating other lawyers because it helps him “keep his knife honed.”

Judge Gary Miller, Marion Superior Court

Marion Superior Judge Gary Miller knows that sometimes, CLE presentations are less than engaging. It can be hard to present complex legal issues in an entertaining manner, but he’s found a unique solution: cinema. The law is a popular topic for Hollywood, and Miller draws on the proliferation of legal films to enhance his CLE presentations.

“For trial lawyers, watch ‘My Cousin Vinny,’” Miller told the JNC. “It shows exactly what trial lawyers should be learning.”

On a more practical issue, Miller told the JNC that all Indiana Court of Appeals opinions should be for publication. For lawyers and trial judges, it can be difficult to have to wade through the 80% of appellate opinions that are not for publication to find the 20% of opinions that can be cited. It’s frustrating when a practitioner finds a case that’s perfectly on-point, only to discover it can’t be cited, the judge said.

Judge Patricia McMath, Marion Superior Court

Now a magistrate judge in the Marion Superior Court, Patricia McMath spent the last four years in the Office of the Indiana Attorney General, including two years on former AG Curtis Hill’s executive team. McMath said she enjoyed serving on the executive team because it gave her the opportunity to go out into the community, engage with stakeholders and use their input to help formulate policy.

Now as a magistrate judge, McMath said she’s learned that the law is often grayer than she realized as a lawyer. When she comes across a legal issue that’s not clear, her first response is to determine what is clear. Then she determines how the facts and context of the case fall into the legal issues that are clear and that are not, helping her to determine the path toward a just ruling.

Judge Mark Dudley, Madison Circuit Court

As a judge, Mark Dudley wants to ensure the rulings he hands down are consistent for like parties. But, he said, he doesn’t always have access to the data that will help him discern patterns. As a workaround, Dudley created a spreadsheet tracking his sentencing rulings to ensure fairness and consistency. But ideally, the judiciary would be improved by better data reporting, he said.

The judiciary also benefits from a collaborative approach, Dudley told the JNC. Although he presides over his own court, Madison County has a unified court system, allowing the local judges to frequently work together and discuss issues facing the local court system. On the Court of Appeals, Dudley said he would transfer that collaborative approach to the three-judge panels he would sit on.

“I can’t imagine being a judge in isolation,” he said.

Judge James Joven, Marion Superior Court

James Joven began presiding over the Marion County Small Claims Court at a time of “controversy and change.” The court had recently been raided by the FBI, Joven recalled, and his predecessor had never been a hands-on jurist. But when Joven took the bench in 2006, he said he took back control, separating the court from the influence of the local trustee and regularly holding trials.

“We set up a good system that worked, and it still works today,” he said.

Even as a judge, Joven described himself to the JNC as an “old-school litigator.” To him, that means lawyers must be fierce advocates for their clients, taking the time to fully prepare a case and present the best argument possible. His role as a judge in that system is to enable the lawyers to put their best feet forward.

Paul Sweeney, Ice Miller

Paul Sweeney sees overlap between the work of a judge and his work as a church youth minister. In the latter role, Sweeney said he works with kids to help them apply the religious teachings they’ve received to their lives. Similarly, as a judge, it would be his role to apply the law that’s already been established to the facts of a specific case.

Regardless of who’s on the bench, Sweeney said he’d like to see the Court of Appeals become more “interactive.” Appellate judges feed off of each other during oral arguments, picking up on each other’s questions and points of interest. If that process yields an issue that requires more study, Sweeney said the COA should allow lawyers to submit additional briefs on those new issues that developed during arguments.

Judge Faith Graham, Tippecanoe Superior Court

Judge Faith Graham welcomed the idea of a three-person panel, as opposed to issuing rulings on her own. A Tippecanoe County judge with a busy juvenile docket, Graham said her work requires her to issues decisions on complicated issues swiftly and independently. Having the opportunity to consult with other judges, in contrast, would be a welcome change of pace.

“That would be heaven,” she said.

Graham described herself as a construction/originalist, but she qualified that designation. Judicial philosophy is not just a label, she said – it’s about how you actually practice on the bench. Regardless of how she rules, Graham has learned that generally, litigants will leave her court “OK” if she hands down a reasoned decision.

Judge Jonathan Brown, Hamilton Superior Court

The Hamilton County Courts were able to hold multiple jury trials despite the pandemic, and Judge Jonathan Brown said that was due to good planning. During months when COVID cases weren’t rising rapidly, the county looked for alternate locations where a trial could be held safely. Brown ended up in the historic courthouse in Noblesville, where there was a gallery big enough to seat 30 potential jurors.

“Once you have a plan, just execute it,” he said.Brown’s four years on the bench have taught him more than he learned in his previous 19 years of practice, he told the JNC. As an advocate Brown was focused on his client’s position. Now as a judge, he’s learned to see cases from all sides and perspectives.

Bryce Owens, solo practitioner

Bryce Owens’ greatest asset on the Court of Appeals, in his view, would be his attention to the rule of law. As a judge, Owens said he would understand that it’s not his rule to make new law. Individual cases are important, he said, but the key is to applying existing law to those cases.

Another perspective Owens said he would bring to the COA would be that of a small-town practitioner. Having practiced in Pendleton for several years, he said the appellate court would benefit from the voice of a lawyer not from a bigger firm or a bigger city.

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