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The Journal Gazette

  • Niki Kelly | The Journal Gazette The Indiana Supreme Court courtroom is adorned with more than 100 pictures of justices who served throughout the decades. A new picture will go up in a few months.

Sunday, March 19, 2017 9:44 am

State again in search of jurist for high court

Niki Kelly | The Journal Gazette

INDIANAPOLIS – With just seven years under his belt, Justice Steven David is the old-timer on the Indiana Supreme Court.

In 2010 he kicked off a carousel of arrivals as he replaced former Justice Theodore Boehm.

Three more new justices followed – Mark Massa in April 2012, Loretta Rush in November 2012 and Geoffrey Slaughter in June 2016.

Now the Judicial Nominating Commission begins interviewing Monday for a fifth new justice – replacing retiring Justice Robert Rucker, whose last day is in May.

The result is a wholesale change in the Indiana Supreme Court in just seven years.

"I never could have imagined this," David said. "I thought maybe one or two retirements over maybe 10 years. It is a big change.

"Each of them have assured me it isn’t me personally," he joked.

The overhaul is pretty novel though muted a bit because Indiana has only five justices while 35 states have between 7 and 9.

While all the justices on the court have decades in the legal profession, their institutional knowledge of the state’s highest court is slim.

"There’s a yin and a yang to turnover. Institutional memory is a valuable commodity," said Randall T. Shepard, who served on the court from 1985 to 2012, the majority as chief justice.

He was part of the longest-tenured group of five justices together – serving from 1999 to 2010. Court staff at the time researched the feat and had a Hershey bar made with the likeness of the five members’ faces.

"So we went from total stability to all new people. That contast is stark," said Joel Schumm, professor of law at Indiana University’s Indianapolis campus.

"That being said I don’t think it’s made a huge difference. The fear in a court turnover in a short period of time is they will dramatically change the way they rule. That hasn’t happened."

Rucker’s departure also brings another distinction – the first time since 1958 that all five members of the court will have been appointed by governors of the same political party.

Mitch Daniels picked three of the current members, Mike Pence had one appointment and Gov. Eric Holcomb will get his first selection in the next few months.

Chief Justice Loretta Rush said things eventually have to change and this seems to be the season for the Indiana Supreme Court.

She noted there can be advantages to a new person bringing a fresh perspective. But she also acknowledges the court will miss Rucker’s life experience.

"I’ve had the benefit of having Justice Rucker’s voice in my head," Rush said. "I think having the diversity of voices is key. There’s all kinds of diversity. There is diversity in race. There’s diversity in practice background. There’s locational diversity."

She said political ideology plays little within the court. About 80 percent of the ­cases are decided unanimously, and Rush challenges people to find clear party lines in many of the votes.

"There’s no ‘R’ and ‘D’ discussed around the table," David said. "You can trace us back to a party affiliation of some kind but … politics is not a significant part of our judicial lives.

"I’m very confident that you are not going to see a political court."

Shepard said the Indiana Law Review analyzed the year 2015 and found 12 split decisions of 3-2. Of those, Rucker – a Democrat – joined with the majority five times.

Shepard said Indiana’s unique selection method helps eliminate most partisan fights. The state’s Judicial Nominating Commission has seven members – chaired by the Chief Justice. The other six members are a mix of appointments from the governor, and members of the state bar also select several of the panelists.

The group sends three names to the governor who ultimately chooses the next Supreme Court Justice.

Justices do face retention votes several years after they are first appointed.

This method materialized after Hoosier voters approved a constitutional amendment in 1970. Before that Hoosiers campaigned for the post like any other elected office.

"In some other states you might worry about a zig and zag if you had a rapid turnover but I think that’s unlikely in this moment for the reason that the selection system tends to produce appointees who are relative centrists," Shepard said.

He joked that Boehm used to say the process resulted in "raging moderates."

One thing that has changed with the court is that each justice has become more involved in the administration of the court, rather than the Chief Justice carrying all the weight.

Some justices focus on technology issues; others juvenile justice, public access or pro bono work.

Rush said the court takes 90-100 cases a year, though it disposes or votes on almost 900. The vast majority are votes to not accept transfer – or keep a lower court ruling intact.

Some see a move to more family law cases rather than complex civil. But the tenor of the court has remained the same, Schumm said.

Much of its work is behind the scenes – handling attorney and judge discipline; writing rules for all Indiana courts to operate under and licensing new attorneys.

But it’s the opinions that get the attention. Generally, the Indiana Supreme Court is known to uphold state law. A few reversals recently have gotten attention though.

One moved the burden regarding bail from the defendant – making the state prove why the defendant should be denied bail.

Another was a major asbestos case in which Rush’s dissent now seems particularly poignant.

"I cannot say it is so clearly wrong or unjust to warrant upending an issue we have already settled – when nothing has changed since 2003 but a third vote for the opposing view," she wrote. "I am particularly conscious of our changing composition, both in the recent past and in the near future. And in turn, I am particularly aware of what our actions imply when our narrowly divided Court reverses itself on an issue that, barely a decade ago, narrowly divided us in the opposite direction," she said.

nkelly@jg.net