Tuesday, April 18, 2017
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #6, Ms. Elizabeth C. Green
This is Prof. Joel Schumm's report on the 6th interview of Round 2 (and today's final interview)
In response to an opening question from Chief Justice Rush about she would deal with an issue of a litigant not being provided an interpreter, Ms. Green said she would begin with the Indiana Constitution and the importance of the open access. When asked about the “biggest learning curve,” Ms. Green said she has not dealt with criminal law or constitutional law since law school. She has “learned how to learn” throughout life and would continue to do so.
In response to a question from Mr. Berger about her opinion on the difference between the federal and Indiana summary judgment rule, Ms. Green said access to the Courts is essential, citing that Jarboe and Hughley guarantee the right to court when there is any doubt, which she believes “works just fine.”
In response to a question about replacing Justice Rucker, reading a description of him, Ms. Green said her letters of recommendation give insight into her as a person and attorney. She can be cognizant and aware of a person’s situation even if she has not been there herself. She cited examples of representing “the little guy” and discussed the importance of teaching empathy to her children.
In response to a question about supporting a legal position contrary to her beliefs, Ms. Green said she may sometimes think she does not have a winning case or may not agree with their course of conduct but does the best she can with the facts and law.
In response to a question about obstacles to justice, Ms. Green discussed the challenges of and for pro se litigants, noting the importance of a statewide assessment for ways to address it.
In response to Mr. Feighner’s question about the variety of legal issues the Court decided last year and ways she would contribute, Ms. Green said she would bring her experience and knowledge, remarking specifically on commercial cases. In response to a follow-up question about the differences between transactional and ligation practice, Ms. Green said a lot of her time is spent advising clients.
In response to a question from Mr. Berger about how she would weigh the interests of business or individuals under Article 1, Section 23, Ms. Green said she took Indiana constitutional law in law school with Justice Dickson and learned about Collins v. Day. She believes commercial courts help speed up litigation for businesses, but she does not believe businesses should be treated differently.
When asked by Chief Justice Rush when the standard of review should trump deciding cases on their merits, Ms. Green mentioned the importance of deferring to jury verdicts
In response to a question about opinions of Justice Rucker that have spoken to her, Ms. Green discussed the recent mortgage foreclosure case involving a veteran. Giving voice to the voiceless may not carry the day, but it is much easier to live with the decision if people know they were heard.
In response to a question about her preparation for the interview, Ms. Green said she had talked to a lot of different people and had read and reflected on cases and law review articles.
In response to a question about the most radical action she has taken, Ms. Green discussed studying abroad, which opened the door to a different style of teaching and learning.
In response to a question about what she would like the JNC to know that is not in her application, Ms. Green said her application discusses her involvement with the IndyBar Professionalism Committee. She noted how much the “five C’s” apply to her application for this position: commitment (to the law, justice, and the job), character (integrity, impartiality, humility), competency (wide range of experience), courtesy (the importance of how others are treated), and community involvement.
In response to a follow-up from Mr. Berger about Justice Scalia’s dissents, Ms. Green said a message could be lost in how it was presented, and she would not take the approach of Justice Scalia.
In response to a question about expanding the size of the Indiana Supreme Court, Ms. Green said she does not have a strong opinion either way. Increasing the size would bring more voices, which usually leads to a better result.
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #5, Hon. Maria D. Granger
This is Prof. Joel Schumm's report on the 5th interview of Round 2
In response to a question about what can be done with the low bar passage rate, Judge Granger said she would want to look at where there were gaps in education, which she has done through her participation in ICLEO.
In response to a question about free speech guarantees in the Indiana Constitution and the current climate on college campuses and elsewhere, Judge Granger said she would want to make sure any law had reverence to that important guarantee.
In response to a question from Mr. Berger about better understanding her as a person, Judge Granger discussed the importance of public service and her work with St. Elizabeth Catholic Charities, with which she became involved early as a lawyer.
In response to a question from Mr. Young, who read from a list of her extensive administrative/committee work, Judge Granger explained some of the important work that directly impacts citizens, discussing commercial courts, case management, and protecting information, among other things.
In response to a question about preparing for her interview, Judge Granger said her entire career has been preparation, noting the importance of innovation. She has read many cases to help prepare her for her work as judge and this interview.
In response to a question about a procedural rule she would change, Judge Granger mentioned the challenge for prosecutors who become judges and cannot hear criminal cases, forcing other judges (often not elected in that county) to hear cases.
In response to a question from Mr. Feighner about the “vanishing jury trial” in civil cases, Judge Granger said alternative dispute is important.
In response to a question from Mr. Yakym about a letter she had signed regarding funding for humanities, Judge Granger said she signed onto a letter because she believes it is important for people to understand more about each other.
In response to a question from Mr. Berger about demonstrating diversity on and outside the Court, Judge Granger emphasizes she does a lot of public speaking and a lot can be gleaned when people in a leadership role reach out to the community. Interaction increased public trust and understanding. Her recent speech focused on building consensus.
In response to a question from Chief Justice Rush about the possibility of changing the prohibition on citing unpublished/memorandum decisions, Judge Granger said she does not have a strong opinion but believes the law should be useable. If changing the rule further that, she supports it.
In response to a question about cameras in the courtroom, Judge Granger has seen footage from Kentucky courtrooms, which can spread through social media. Although transparency is important, televising proceedings could backfire.
When asked about mentors, Judge Granger cited another judge who is smart and prepared. What is “extra special” is the “level of kindness” he brings to cases.
In response to a question from Ms. Long about her core values, Judge Granger said she was raised by strong parents, told “actions speak louder than words.” She was one of only a few minority families in rural Indiana, which taught her not to get stuck on differences and the importance of relating to others.
The “most radical action” Judge Granger has taken might make her “sound boring.” She is a conscientious person and wants to plan actions before she takes them. She thinks running for office when she did was radical. She was not born in the community where she ran, but sheer will and belief drove the bold move. In response to a follow-up question about her campaign from Mr. Feighner, Judge Granger said she “started small,” talking to people about how the court could better help the community.
In response to a question about her work on American Law Institute (ALI), Judge Granger said the group is committed to clarifying and modernizing the law. She goes the annual meeting each year and noted the Court had cited the work of ALI, through the Restatements, many times.
Ind. Decisions - Still more on "Wis. Supreme Court to Rule on Predictive Algorithms Used in Sentencing"
Algorithms pervade our lives today, from music recommendations to credit scores to now, bail and sentencing decisions. But there is little oversight and transparency regarding how they work. Nowhere is this lack of oversight more stark than in the criminal justice system. Without proper safeguards, these tools risk eroding the rule of law and diminishing individual rights.
Currently, courts and corrections departments around the US use algorithms to determine a defendant’s “risk”, which ranges from the probability that an individual will commit another crime to the likelihood a defendant will appear for his or her court date. These algorithmic outputs inform decisions about bail, sentencing, and parole. Each tool aspires to improve on the accuracy of human decision-making that allows for a better allocation of finite resources.
Typically, government agencies do not write their own algorithms; they buy them from private businesses. This often means the algorithm is proprietary or “black boxed”, meaning only the owners, and to a limited degree the purchaser, can see how the software makes decisions. Currently, there is no federal law that sets standards or requires the inspection of these tools, the way the FDA does with new drugs.
This lack of transparency has real consequences. In the case of Wisconsin v. Loomis, defendant Eric Loomis was found guilty for his role in a drive-by shooting. During intake, Loomis answered a series of questions that were then entered into Compas, a risk-assessment tool developed by a privately held company and used by the Wisconsin Department of Corrections. The trial judge gave Loomis a long sentence partially because of the “high risk” score the defendant received from this black box risk-assessment tool. Loomis challenged his sentence, because he was not allowed to assess the algorithm. Last summer, the state supreme court ruled against Loomis, reasoning that knowledge of the algorithm’s output was a sufficient level of transparency. * * *
The legal community has never fully discussed the implications of algorithmic risk assessments. Now, attorneys and judges are grappling with the lack of oversight and impact of these tools after their proliferation.
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #4, Mr. William N. Riley
This is Prof. Joel Schumm's report on the 4th interview of Round 2
When asked about why he applied, Mr. Riley mentioned comments made by the Chief Justice at a conference and that he has long known Judge Nation. Mr. Riley feels “called to serve.”
When asked about a holding he would defend, Mr. Riley cited a recent termination of parental rights case and that we should seek to preserve the rights of parents whenever possible.
In response to a question from Mr. Young about his role as a trial lawyer and how that translates to the work of a justice, Mr. Riley said whenever he approaches a case there is “fear” that he does not want to let the client down. He would bring the same fear that he does not want to let the citizens of Indiana or his colleague down.
In response to a question from Ms. Long about what he did to prepare for the interview, Mr. Riley said he reviewed the annual reports since 2000, tried to get a handle on the Court’s administrative role, started reading the Scalia book on interpreting texts, read the last 34 opinions of the Court, and read Appellate Rule 7(B) that he was asked about last interview. The most surprising thing he learned was that Indiana was about 74 judicial officer short of what it needs.
In response to a question from Ms. Kitchell about a procedural rule he would like to be changed, Mr. Riley said we could “borrow” initial disclosures from federal court, which could expedite discovery and reduce disputes.
In response to a question from Mr. Feighner about impressive letters of recommendation from adversaries, reading from one of them about Mr. Riley’s “genuine respect for the law and each person” he encounters in a case, Mr. Riley said the law is what holds our society together. Although his father was not a lawyer, he inherited his father’s respect of lawyers. Opposing counsel is doing their job, and there is no reason to be disagreeable. He calls many of them friends.
Mr. Yakym asked which of the 34 opinions Mr. Riley had read that stand out. Mr. Yakym discussed cases that deal with his practice, like the collateral source rule. He has not dealt with criminal cases since law school,
Mr. Berger read Article 1, Section 23, and asked how many occasions the General Assembly has violated that provision by special legislation. Mr. Riley said he would want to know how many times the issue had been brought to this Court and would want to consider those opinions. Mr. Riley would want to consider the text of that provision in bearing on what the legislature had done. He said he would not want to prejudge anything, if the issue comes before the Court.
In response to a question about the importance of stare decisis, Mr. Riley said stare decisis is especially important but sometimes the Court needs to overrule it, citing Brown v. Board overruling Plessy v. Ferguson.
In response to a question from Mr. Young about things Mr. Riley has done to promote diversity, Mr. Riley said he always wants to hire the best person for the job and always he looks at all applicants. He noted that he has mentored and worked with a lot of female associates in his firm.
In response to a question about his commitment to judicial restraint, Mr. Riley said it is not the position of judges to impose their views. Judges must apply what the law says and let the legislature correct it if there is an error.
In response to a question about his most radical action, Mr. Riley said he took up golf a year ago and wanted to have something to do with his son who is now fourteen.
In response to a question from Mr. Feighner about what clients who had lost a case would say about him, Mr. Riley said he helped them tell their story, which is cathartic.
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 5 NFP memorandum decision(s))
For publication opinions today (2):
In Wanda Roberts, et al. v. Anthony W. Henson , a 19-page opinion, Judges Barnes writes:
Wanda and Ray Roberts, along with seventeen of their neighbors (collectively “the Appellants”), appeal the trial court’s grant of summary judgment in favor of Anthony Henson and the denial of their motion for summary judgment. We reverse and remand.In Luther T. Collins v. Metro Real Estate Services, LLC , a 20-page opinion, Judge Barnes writes:
The restated issue before us is whether the trial court correctly concluded as a matter of law that a structure built by Henson in the Appellants’ neighborhood did not violate the neighborhood’s restrictive covenants. * * *
We reverse the grant of summary judgment in Henson’s favor with respect to the covenant provisions regarding story height and two-car garages and remand for further proceedings with respect to those provisions. However, we agree that, as a matter of law, Henson’s structure is not a “barn” or “pole barn” that is prohibited by the covenants.
Luther Collins challenges the trial court’s order finding an easement exists across Collins’s property for the benefit of adjacent property owned by Metro Real Estate Services, LLC (“Metro”). We affirm. * * *NFP civil decisions today (2):
[Issues] I. whether there is an easement by grant over Collins’s property; and II. whether there is an easement by implication over Collins’s property. * * *
The trial court did not abuse its discretion by concluding an easement exists for Metro’s benefit over Collins’s property. We affirm.
NFP juvenile and criminal decisions today (3):
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #3, Hon. Christopher M. Goff
This is Prof. Joel Schumm's report on the 3rd interview of Round 2
In response to an opening question about ways the Indiana Constitution is greater than the federal constitution, Judge Goff noted some of these could be hot button issues and discussed religion liberties (City Chapel) and commented that he sees more frequently things like search and seizure (Section 11) challenges.
Mr. Goff brought his family, whom Chief Justice Rush asked him to introduce. He said he has been married since he was 21, and she is his life partner. He noted how richly they had been blessed since then.
In response to a question about the greatest obstacles to justice, Judge Goff emphasized providing equal access to justice. He noted that supervision of low-level felonies, for example, had shifted from the state to county, which requires innovation. Confidence in the judicial could erode if we don’t ensure equal opportunities.
In response to a question from Mr. Feighner about his age of 45, about 10 years younger than his colleagues, and the long tenure, Judge Goff said he was not ready as a 22-year-old dad or 32-year-old judge, but when he finds himself at his weakest he reaches out for resources to get the job done. He could contribute on day one, remarking on his work on domestic violence and judicial education. He would work on writing good, clear opinions.
Judge Yakym read the preamble of the Indiana Constitution and asked if the judiciary was working to achieve those goals. Judge Goff emphasized the importance of county judges in addressing problems. Regarding public safety, he believes more needs to be done to extend or regionalize problem-solving courts.
In response to a question from Mr. Berger about the ability of the court to have diversity, specifically the Rooney rule, e which Judge Goff said he could not address. (Mr. Feighner later explained the rule but did not pose a question.)
Following up about the two U.S. Supreme Court justices, Judge Goff said he would first want to be Chris Goff, and remarked on his unique familial background. He will “never look like one of those guys,” which is important, but he adopted an African-American child when he was 22, and he can see discrimination in his treatment. Judge Goff was an African-American studies minor at Ball State and had planned to study in Tanzania but his wife decided they should instead get married. Although he comes from a place without much diversity, he believes it is important to get a broader perspective.
In response to a question about the low bar passage rate, after $100,000 in debt for many students, Judge Goff discussed his attendance of the 2015 AJEI in which Justice Massa presented about challenges to legal education and noted the importance of attracting better students to law school. He also discussed doing a better job promoting civility.
In response to a question from Ms. Long about the power and bounds of the judiciary, Judge Goff discussed the importance of unanimity in opinions and said he is most passionate about ways the judiciary can improve people’s lives and be a good ambassador.
When asked about a life lesson he hoped his children learned from him, Judge Goff said “jump in with both feet and don’t be afraid to try something.”
In response to a question from Mr. Feighner about his work as a judge in a rural county, Judge Goff emphasized the importance of the perspective of small towns, which have different needs. Most of Indiana looks like Wabash and not Indianapolis. If he knows he will have to house all his Level 6 felons in the county jail, he will need problem-solving courts.
In response to a question from Mr. Yakym about expanding the size of the Indiana Supreme Court (the Indiana Constitution allows it and neighboring states have seven justices), Judge Goff said more members give more voices and perspectives, although each may be diluted. Judge Goff said he sometimes gets tired of change and thinks five is probably the right size for Indiana and merit selection has worked well in selecting justices.
In response to a question about things that keeps him awake at night, Judge Goff said his mother doesn’t have health insurance. When deciding cases, he worries about how a supervised visit will work and other issues. He worries about the struggles people have, and that would not change if he was on the Indiana Supreme Court.
Chief Justice Rush asked which of the three cases on the docket for next week Judge Goff would want to write if he was on the Court, and he said tax is the area in which he has the least experience, and he would want to jump in and do that one.
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #2, Rep. Thomas W. Washburne
This is Prof. Joel Schumm's report on the 2nd interview of Round 2
In response to a question from Chief Justice Rush about one case holding he would defend for the rest of his life, Rep. Washburne paused and said he was drawing a blank. Chief Justice Rush followed up, asking about a case that affects what he does as a legislator, he discussed the importance of medical malpractice cases as well as the ESPN cases dealing with university police forces.
In response to a question from Ms. Kitchell about one change he could make to the Indiana Constitution, Rep. Washburne said nothing jumps out as “defective” but that issues could be clarified.
When asked what Judge Dillin (for whom he clerked) would write in a letter of recommendation for him, Rep. Washburne said Judge Dillin cared about accessibility and was skilled at explaining the law. Rep. Washburne commented on his skill at explaining complex matters to non-lawyers - Judge Dillin’s opinions were short but informative.
In response to a question from Mr. Berger about replacing Justice Rucker, the only African-American on the Court, and his views of the two African-American justices on the U.S. Supreme Court, Rep. Washburne said he admired the “courage and challenge” of Justice Marshall but his judicial philosophy is similar to Justice Thomas.
In response to a question from Ms. Long about confronting a legal issue that conflicted with his personal beliefs, Rep. Washburne said as corporate counsel he is sometimes asked to handle matters differently than he might want to personally address them. When lawyers are working for someone, they need to accept that. In the context of government, we need to be loyal to our Constitution and statutes.
In response to a question from Chief Justice Rush about reviewing administrative decisions (mentioned federal Chevron deference), Rep. Washburne said agencies are executive branch officers and entitled to deference. When asked if more or less deference should be given, Rep. Washburne said when due process or constitutional rights are at stake deference is less appropriate. Rep. Washburne said many perceive that ALJs are too cozy with the agencies, a topic of hearings last year. He said the issue was postponed because there was a new administration, but the issue would come back.
When asked about the greatest obstacle to justice, Rep. Washburne said “people are people.” He said we cannot all be as magnificent as the buildings we occupy, and checks and balances are essential.
Mr. Feighner read from the recent Indiana Law Review survey article of types of cases heard by the Court last year and asked how Rep. Washburne would approach such a wide variety of issues, Rep. Washburne discussed the preparation of his background and said our system accounts for the inability of justices to be experts in all areas by requiring briefs.
In response to a question about the Indiana Constitutional provision that says penal laws should be founded on provisions of rehabilitation and not retribution, Rep. Washburne discussed the importance of HEA 1006, which helped bring more proportionate sentences, which included lower penalties for some drug offenses.
In response to a question about the diversity that will be lost with Justice Rucker’s retirement and how he viewed the Black Lives Matter movement, Rep. Washburne said “who could dispute” that black lives matter and applauds the tenacity of the movement. He may not agree with all their principles but hopes they will be more patient in waiting for some of the investigations. Even when he disagrees with activists, he applauds them.
When asked by Mr. Young about his last “random act of kindness,” he said he encouraged his daughter to give the food she took out of a restaurant to someone outside who said he was hungry. He emphasized the importance of treating people with kindness and respect.
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #1, Hon. Vicki L. Carmichael
This is Prof. Joel Schumm's report on the 1st interview of Round 2
In response to the opening question from the Chief Justice, why does she want to be on the Indiana Supreme Court, Judge Carmichael said decisions are made that affect all of Indiana, and she wants a seat at the table. She explained the important role of the Court, including its opinions (often unanimous) and rule-making. She also discussed protecting criminal defendant’s rights, including the early appointment of counsel, which was discussed at the April 7 Indiana Law Review symposium at which she was a panelist.
In response to a question from Ms. Kitchell about the most radical position she has taken in her professional life, Judge Carmichael discussed a local ordinance regarding sex offenders that she believed was unconstitutional. She met with parties in chambers and asked them to fix it before holding a hearing. A new ordinance was enacted but ultimately found unconstitutional by the Court of Appeals.
In response to a question from Mr. Feighner about Clark County becoming a unified court, Judge Carmichael emphasized the utility of administration through one budget and ease in transferring cases between judges.
In response to a question from Mr. Berger about learning more about applicants as a “person” by understanding “what keeps them up at night,” Judge Carmichael responded cases involving children (CHINS and delinquency) and struggles with issues regarding heroin in her county.
In response to a question from Mr. Young about replacing Justice Rucker, who had “courage and fortitude to protect rights” of the voiceless, Judge Carmichael said she has compassion and brings that to the bench. She was a public defender for twelve years—working with the good, bad, and ugly. She believes it is important to help others and focus on the needs of litigants at the time.
In response to a question from Ms. Long about commitment to judicial restraint, Judge Carmichael said she will listen to disputes and make tough decisions — not overstepping her bounds. She noted the difficulty of balancing when one party is self-represented and other is represented by counsel.
When asked by Chief Justice Rush about overturning precedent, Judge Carmichael emphasized the importance of giving predictability and stability. She said new issues — like Internet solicitation of police officers pretending to be children — present challenges when society and technology changes.
In response to a question from Ms. Kitchell about changing the Constitution, Judge Carmichael said she did not believe the Constitution did need to be changed but some rules may need to be changed to make the criminal process and perhaps the civil process more fair.
In response to a question from Mr. Feighner about cases with political aspects (two are included on her application, one was a special judge appointment), she said she talked with the parties and they agreed she could be fair. She does not look at politics in making decisions; she believes judges should be apolitical and impartial. Following up about the case she would make the Governor (as a Democrat) if a finalist, Judge Carmichael said she does not view the JNC as political but instead committed to sending the best three applicants who won’t embarrass. Her background is fair, impartial, and unbiased. She believes judicial elections should be non-partisan. She is a person of integrity and character. She will bring gender and geographic diversity.
Mr. Yakym asked about a 2013 article in which Judge Carmichael said her least favorite part of the job was the administrative tasks, she explained the challenges of asking the Council for money and personnel issues. Even if her least favorite part of the job, she enjoys working with other judges and on committees and would bring that enthusiasm to the Court.
Mr. Berger asked about diversity, noting that the Court’s most recent roadshow argument was in Gary and the significance to students if the Court returned and was “all white people.” Judge Carmichael discussed looking beyond race, noting that she goes to a high school in Jeffersonville, sometimes with a white staff, and believes the students are receptive because she approaches all people with an open mind. She has been a featured speaker at the NAACP, where they see her as Judge Carmichael.
When asked about mentors, Judge Carmichael mentioned a prominent criminal defense attorney in Kentucky who taught her the importance of being prepared, and an “incredibly active” justice of the Kentucky Supreme Court for whom she clerked and who read cases every night.
In response to a question from Ms. Long about the role of the judicial branch, Judge Carmichael emphasized the importance of interpreting laws and not interfering with the legislative or executive branch.
Ind. Law - Golars Environmental Engineering hires former AG Zoeller as general counsel
From a news release:
INDIANAPOLIS, Ind., April 18, 2017 – Golars Environmental Engineering today announced the hiring of former two-term Indiana attorney general Greg Zoeller as general counsel for the Noblesville-based firm.
Golars is an environmental engineering and consulting firm providing integrated services in several disciplines, including site investigation, brownfield redevelopment, remediation services, contaminated sediment services, and waste management services.
Vacancy On Supreme Court 2017 - Waiting for the interviews to begin ...
Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law, demonstrates upgraded seating for reporters at today's interviews:
Vacancy On Supreme Court 2017 - Interviews for Supreme Court finalists begin at 9:30 this morning
Here is today's schedule:
- 9:30 a.m. – 10:00 a.m. – Hon. Vicki L. Carmichael
- 10:00 a.m. – 10:30 a.m. – Rep. Thomas W. Washburne
- 10:30 a.m. – 11:00 a.m. – Hon. Christopher M. Goff
- 11:15 a.m. – 11:45 a.m. – Mr. William N. Riley
- 11:45 a.m. – 12:15 a.m. – Hon. Maria D. Granger
- 12:15 a.m. – 12:45 p.m. – Ms. Elizabeth C. Green
- 1:00 p.m. – 4:30 p.m. – JNC: Lunch and executive session to consider applications
While you are waiting, you may want to review earlier ILB posts on the 2017 vacancy, and particularly this March 22nd post by Prof. Schumm headed "Vacancy On Supreme Court 2017 - Thoughts on the First Round."