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New vacancy on Indiana’s highest court

Sullivan to exit for IU position; Daniels gets 3rd pick in 2 years


– Indiana Supreme Court Justice Frank Sullivan Jr. announced his departure from the state’s highest court Monday, giving Gov. Mitch Daniels a rare opportunity to appoint a third member of the five-member panel during his term.

Sullivan, appointed to the court in 1993 by then-Gov. Evan Bayh, will join the faculty of Indiana University’s Robert H. McKinney School of Law in Indianapolis.

His new position teaching business and finance courses takes effect at the start of the fall semester.

“Though my work here has been deeply satisfying and I’m proud of it, probably two years ago I got to thinking I was reaching an age where if I was going to do one more big thing before retiring, I needed to get about it,” Sullivan said Monday.

The 62-year-old is from South Bend and in his spare time is an avid runner who competed in the 2010 Boston Marathon. He was state budget director from 1989 through 1992.

The latest announcement is the continuation of a period of monumental change for the Indiana Supreme Court.

From 1990 to 1999, there were five changes on the court. Then there were none from 1999 to September 2010, when Daniels tapped Steven David to replace Theodore Boehm.

In December, then-Chief Justice Randall T. Shepard announced his retirement. Daniels appointed Mark Massa to take his place last month and he was sworn in Monday.

Now Sullivan is leaving this summer – giving Daniels three appointments in the span of just two years.

IUPUI law professor Joel Schumm said in 2010 the Supreme Court justices had a combined 91 years of experience, which falls to 41 years after Sullivan’s departure. And 27 years of that experience belongs to acting Chief Justice Brent Dickson, who must retire in 2016 when he turns 75.

“All three of these justices left before they had to,” Schumm said. “It says something about the trust and confidence they have in Gov. Daniels.”

Both Boehm and Sullivan were appointed by Democrats.

Sullivan was known during his time on the court for relentlessly questioning attorneys during oral arguments – often with interesting scenarios of future law.

“I like engaging the lawyers. I learn a lot,” he said. “Sometimes I wonder a little bit whether I talk too much. I shoot from the hip.”

Off the bench, Sullivan chaired a committee aimed at improving technology for all Indiana courts, including an interconnected case management system that is now in 120 courts handling 35 percent of the statewide caseload.

“We will miss his keen intellect, thoughtful wisdom, enormous energy and great passion,” said Dickson, citing Sullivan’s contagious enthusiasm and meticulous leadership. “Justice Sullivan’s many accomplishments as a jurist and a judicial leader will long be remembered with gratitude.”

In his office Monday, Sullivan said he is most proud that during his time on the bench not a single case was decided along party lines for political purposes.

“We have a judicial selection system in this state that minimizes the importance of partisanship. People are not thinking about partisanship when they cast their votes,” he said.

“It’s a remarkably, remarkably good system that we have here in Indiana. It lifts up raging moderates, such that each of us is free to find our own way to what we think is the right decision under the law and the facts in any particular case.”

In Indiana, applicants for a seat on the Supreme Court are first interviewed by a seven-member Judicial Nominating Commission. The panel consists of three attorney members selected by their peers, three non-attorneys appointed by the governor and the chief justice.

The commission culls the list of applicants to three finalists, which are given to the governor. He then has 60 days to pick one of those three members.

Daniels received some pressure during his first two appointments to pick a woman, largely because Indiana is one of only three states not to have a female jurist on the state Supreme Court.

When Boehm left, 19 women and 15 men applied. One finalist was a woman and Daniels chose a man. When Shepard left, eight men and seven women applied. One finalist was a woman and Daniels chose a man.

Both times, Daniels said he considers gender a tiebreaker to be used only if the final candidates are equal in accomplishments and qualifications.

Sullivan said he thinks some female attorneys might be reluctant to apply this time, but he encouraged them to do so.

“I think that our court would be better off if there were one or two or three women on it. If it comes to pass that my successor is a woman, no one will be more delighted than I, except maybe my wife,” he said.

But Sullivan also noted that in 1993 when he was selected no woman had ever been on the Indiana Supreme Court, and there was considerable sentiment that Bayh should have chosen a woman.

“It would be disingenuous for me to say that Gov. Daniels ought to appoint a woman no matter what. There are so many contingencies, whether women apply, make it through the nominating commission process and who they will be up against,” he said. “I have every confidence that if he gets a panel of three women, he will appoint a woman.”