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Tuesday, August 05, 2014

Ind. Courts - Choosing the Next Chief Justice of Indiana: This is Huge!

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

The Indiana Judicial Nominating Commission has not been faced with a serious contest for Chief Justice since Justices Shepard and Pivarnik vied for the position in 1987. Tomorrow the Commission convenes to discuss the role of the Chief Justice with Justices Rucker, David, Massa, and Rush — and will appoint one of them to the position. This post previews that process, discusses the immense importance of the position, provides some background on those making the selection, and ends with some possible areas of inquiry.

Importance of the position

Three of the candidates (Justices David, Massa, and Rush) are in their mid-50s, which means any one of them could serve for nearly two decades. The decision is especially important for at least three reasons:

Two Years Ago

When Chief Justice Shepard retired in 2012, each justice supported elevating Justice Dickson, the longest-serving justice, to Chief. Cara Wieneke's summaries of those interviews for the ILB may offer some idea of the types of questions the justices will face. But because only Justice Dickson was seeking the position, many, many of the questions were not about the Chief Justice position but instead about selecting Justice Sullivan’s replacement, a task the Commission would take up just a few weeks later.

This Time Around

According to the press release, “[t]he Commission has asked the Justices to speak about the qualities and attributes important in a Chief Justice.” The schedule is as follows:

1:00 p.m. - 1:20 p.m. – Justice Loretta Rush
1:20 p.m. - 1:40 p.m. – Justice Mark Massa
1:50 p.m. - 2:10 p.m. – Justice Steven David
2:10 p.m. - 2:30 p.m. – Justice Robert Rucker
I will attend and prepare summaries of each interview, which should be posted to the ILB at approximately 1:45 and 2:35. I also plan to wait while the Commission deliberates in private and will attend the public vote, the results of which will be posted to the ILB as soon as it is announced.

A Truly Public Process?

The Commission's agenda allots twenty minutes with each justice; that seems a very short interview period in which to select the leader of the judicial branch. Unlike the binders submitted by applicants seeking an appointment to the Court, there is no application for the Chief Justice position and apparently very few, if any, letters of recommendation have been submitted on behalf of the contenders.*

At least some members of the Commission reportedly have met individually with the justices. This practice was fairly common in selecting the justices in 2010 and 2012, and an opportunity to speak one-on-one does help provide a basis for making this important decision. But some who see or hear of such a meeting might wonder if it’s one of four meetings with each justice or a special opportunity afforded only to the Commission member’s favorite, arranged through personal connections. The perception — especially of those already critical of “the politics” of the Commission process — arguably undermines what is supposed to be an open and public process.

The Deciders

Predicting questions or priorities for Wednesday is difficult, if not impossible. The background of the members might offer some clues, but the process of selecting a Chief Justice among more than one candidate is uncharted territory for all seven members.

The Judicial Nominating Commission is made up of the current Chief Justice, who serves as chair, plus three lawyer members, elected by lawyers from each of the three Court of Appeals geographic districts, and three non-lawyer citizen members, appointed by the Governor, all serving three-year staggered terms.

Biographies are not available on the Commission’s website, but here are short summaries derived from other sources on the web:

Attorney Members

Citizen (non-lawyer) MembersTwo of the commissioners, John Ulmer and Jean Northenor (the only remaining citizen member appointed by Governor Daniels), were members of the Commission in 2012 that interviewed and ultimately selected Justices Massa and Rush. Chief Justice Dickson served part of 2012 and chaired the Commission that selected Justice Rush.

Influence of the Chief Justice

Although each of the seven members has one vote, it seems unlikely that four or more members would select the next Chief without the vote of Chief Justice Dickson. No one knows better the role and responsibilities of the position or the qualifications of the four potential successors than Chief Justice Dickson. The Commission members surely will — and should — give careful thought to his assessment.

Private deliberations

Unlike the Lake County Nominating Commission, which deliberates in public, after the Commission hears from the four justices it will convene in executive session to discuss them and vote. The public vote that follows is a mere formality; the decision will have been made before the public and press is invited back to the conference room for the vote.

Potential Questions

Priorities. Broadly speaking, the Chief Justice sets priorities for the judicial branch in the State of the Judiciary speech and beyond. Although a Chief will likely consult with his or her colleagues on major decisions—and needs at least two votes for such things as rule amendments—the Chief has considerable latitude to bring new initiatives or abandon existing ones. Commission members may well ask questions about each justice’s vision or priorities if selected as the new Chief Justice.

Management style and administrative experience. What type of manager/leader will the new Chief be? How will he or she approach personnel and budget issues? Is a job leading an Indiana Supreme Court agency essentially a job for life or should reviews and replacements occur in some circumstances?

Transparency. Are the activities of the judicial branch sufficiently open (or too open?) to the public? As explained in previous ILB posts, the Judicial Technology Oversight Committee (JTOC), chaired by Justice Massa, has met infrequently with little public information, while the Commission on Improving the Status of Children, led by Justice Rush, has been a model of transparency, providing notice of meetings well in advance of meetings that are both webcast and archived.

Pro bono versus pro se. Chief Justice Dickson has been outspoken in favor of increasing lawyer pro bono work, including the mandatory reporting of pro bono hours. That proposal has been moderated and is still open for comment. How should Indiana meet the needs of those who cannot afford lawyers in civil cases? If pro se litigation is truly a “cancer,” should websites or legal self-help centers be providing do-it-yourself forms for litigants?

Disposition Time. Is a year too long to wait for the Indiana Supreme Court to resolve a case? What, if anything, does the new Chief think should be done to expedite the rendering of opinions?

Finally, although unlikely in a public interview, a fair and revealing question would be “if not you, which of your colleagues would be best suited to be Chief Justice?” Just as lawyers sometimes attempt to dance around or dodge questions at oral argument, I suspect some of the justices might find themselves trying to find a nice way to avoid a direct answer.

The Four Justices

Justice Rucker: The key concern about a Chief Justice Rucker would be the possibility of a short tenure. In 2012 there was some doubt whether Justice Rucker would seek retention or retire. If appointed Chief Justice, would he serve a five-year term? Does he want to take on the increased administrative and public speaking duties that come with the position?

Justice David: His decision in Barnes v. State generated the most negative public and legislative reaction to an Indiana court opinion in decades. What did he learn from that process and would the opinion affect his ability to work with the General Assembly?

Justice Massa: Two current members of the Commission interviewed Justice Massa in 2012 when the “disturbing” television ad he ran as a candidate for Marion County prosecutor in 2010 generated tough questions from an attorney member of the Commission. Will those resurface? More recently, Justice Massa faced considerable public and editorial scrutiny for his decision not to recuse in the Rockport coal gasification case.

Justice Rush: Although many view it as a positive attribute, Justice Rush has shown a streak of independence in dissenting from a couple of high profile opinions in which the three other justices appointed by Republican governors were in the majority. She wrote powerful dissents, joined by Justice Rucker (the only justice appointed by a Democratic governor), in the legislative fines case last June and in the Evansville smoking ban case earlier this year. Interestingly, two years ago then-Justice Dickson emphasized the importance of being seen as a “political neutral”.
* The hundreds of recommendation letters submitted during the justice selection processes in 2010 and 2012 were made available to the public and press before the interviews. I have asked the court’s public information officer about the possibility of reviewing any such recommendation letters sent to the Commission for the Chief Justice position.

Posted by Marcia Oddi on August 5, 2014 10:20 AM
Posted to Schumm - Commentary