"The Indiana Supremes"

State's top court places more emphasis on constitutional law

By Tracy Warner
The Journal Gazette
December 20, 2004

This article has been reprinted here with permission.
Source: http://www.fortwayne.com/mld/journalgazette

Indiana's five Supreme Court justices on Monday will hear arguments in an Allen County case that illustrates the court's increasing interest in interpreting the state's constitution.

While the U.S. Supreme Court's power and political ideologies are well known, the state Supreme Court is under the radar screen of most Hoosiers. Yet in recent years, the state's highest court has issued rulings on gun rights, searches, privacy and other subjects that affect Hoosiers as much as or even more than the federal court's rulings, if not more. And unlike the super-secret U.S. Supreme Court, Indiana Chief Justice Randall T. Shepard - to his credit - has taken significant steps to make all of the state's courts more accessible.

One reason for the court's relative obscurity is the absence of consistent political divisions, although ideological splits do sometimes occur.

The court, of course, is not without disagreement or controversy. Some gun rights advocates criticized the justices for ruling last year in an Allen County case that gun owners can be sued for failing to safely store their weapons. A 3-2 ruling regarding paying for abortions with Medicaid was criticized by people on both sides of the issue. Pending court rules that will change aspects of jury duty are not universally liked.

And the case the court will hear Monday that challenges the existence of the Fort Wayne-Allen County Airport Authority and its control of Smith Field stems from a 2003 ruling on special legislation that caused resentment and consternation among state legislators.

Change in direction

The presence of more state constitutional cases like the airport authority lawsuit is no accident. The court has successfully promoted amendments reducing the number of criminal appeals on which the court must rule.

As a result, the breakdown of criminal appeals before the court plummeted from 93 percent of the caseload in the late 1980s to 36 percent in 2003.

"The court is taking far more civil cases than criminal and is also able to take more complex cases," said Kevin Betz, an Indianapolis trial lawyer who has conducted an annual review of state Supreme Court cases for the Indiana Law Review, published by the Indiana University School of Law - Indianapolis. The justices "are engaging in far more in-depth analysis and taking on far more challenging issues."

For example, the court previously declined to rule on most disputed election cases, said George T. Patton Jr., a lawyer with the Bose McKinney & Evans law firm who follows Indiana appellate cases. More recently, the court has shed this reluctance, ordering a new primary election in East Chicago following complaints of fraud and drawing new election districts for the Indianapolis City-County Council.

While the criminal appeals that formerly dominated the court's docket often addressed narrow legal issues applying only to individual cases, the increase in civil cases means the court is addressing issues that affect more Hoosiers.

"It has changed very dramatically," Shepard said in a telephone interview. "We're doing more law that affects the regular lives of people than ever before."

At the same time, the court's direction draws more attention to the Indiana Constitution, a remarkable document that enumerates 37 individual rights, as opposed to the U.S. Constitution's 10-section Bill of Rights.

"There is no single issue that the court has focused on more than the state constitution," Betz said.

The justices "want citizens to read this document," Patton said, and want the public to know about their rights. "The best way to give life and meaning to the constitution is to study it...have cases on it."

Inconsistent blocs

While many of the U.S. Supreme Court decisions are broken down along known ideological lines, traditional conservative-liberal splits are not as apparent or as contentious in Indiana.

"You don't really see the Democrat vs. Republican voting bloc at all," said Betz, the lawyer who has studied the court's rulings. "You're not seeing left vs. right." In fact, Betz added, "You don't see many blocs."

The absence of consistently sharp divisions lies in both Indiana's conservatism and the appointment process.

Govs. Evan Bayh and Frank O'Bannon, who appointed three of the five justices, were middle-of-the road Democrats. Republican Robert Orr, who appointed the remaining two justices, was a conservative closer to the center than the far right.

And the governors don't pick anyone they want. They choose from three finalists that a bipartisan nominating commission selects, eliminating extreme ideologues.

In some of the most notable cases, Democratic appointees Robert Rucker and Theodore Boehm do appear to be to the left of Shepard and Brent Dickson, both Orr appointees. But Frank Sullivan Jr., a former official in the Bayh administration, falls closer to the center.

Betz' study of 2003 rulings found that Dickson and Shepard were the two justices who most often agreed on criminal cases, but in civil cases it was Boehm and Sullivan who were most often on the same side.

In any event, none is as ideologically predictable as the U.S. Supreme Court justices.

For instance, all the justices supported a 2003 decision that the state constitution's guarantee of gun ownership rights did not prohibit gun owners from being sued if they fail to safeguard their weapon. The court unanimously supported the state's sex offender registry and Fort Wayne's right to regulate smoking in public places.

When the court ruled certain students could be subject to random drug testing, Sullivan sided with the more conservative Shepard and Dickson, while Boehm and Rucker opposed the ruling. And in a controversial ruling regarding when Medicaid can pay for abortions, Sullivan sided with Boehm and Rucker on a portion of the ruling and with Shepard and Dickson on another.

And, in the case that sparked the airport authority lawsuit, only Sullivan dissented.

Special legislation

For years, when the legislature crafted a law for a specific city or county, it would not name the place but - with a wink and a nod - list a population range so narrow only one place would meet it. And it would often adjust the range after the census so it still applied to only one place.

Although such laws had previously been upheld, the court - in 2003's South Bend v. Kimsey - ordered a halt to the practice unless circumstances in that city or county were so unusual that the special law was required. Otherwise, such special laws violate the state constitution's requirement that "all laws shall be...of uniform operation throughout the state."

Some lawmakers, particular Sen. David Long of Fort Wayne, were frustrated that the court did not offer a clear distinction on which laws were acceptable and which unconstitutional. Opponents of the ruling - including Sullivan - said the decision could put hundreds of laws guiding local governance and fiscal practices in jeopardy.

"It was vague, it was gray, it wasn't clear," Long said last week.

After the local airport authority voted to close Smith Field in 2002, a number of airport advocates devised strategies to keep it open, including seeking historic designation status. One, Joe Tocci, formed a group called SMDFund and sued the authority, claiming its control over Smith Field was unconstitutional because the 1985 law creating it was special legislation. After the authority reversed its decision, most of the Smith Field advocates began trying to work with airport officials, but Tocci continued his lawsuit.

There is no question that the law creating the authority was meant only for Allen County. The court will likely narrow the case down to one or two issues: Is it too late to bring a lawsuit against a 1985 law? And were Fort Wayne and Allen County unusual enough that it was appropriate to create a law specifically for them?

Some court observers, Long among them, believe the court has taken the case to provide more guidance on the Kimsey ruling. "I am confident they are going to give us some clarification," Long said.

The Kimsey decision has already affected lawmakers, who now more carefully consider whether laws they are drafting to benefit a community should be expanded to include other communities as well.

"Absolutely, we are writing laws differently. And I'm not saying that's wrong," Long said. "We're going to be able to operate with this rule they have written as long as we have clear direction."

Long also questions whether the court may be close to stepping over the separation-of-powers line in which the legislature and courts have different duties. "There seems to be an eagerness to tell us how to do legislation," Long said. "Within certain parameters, that's OK."

While Long has been critical of the Kimsey decision, he admires Chief Justice Shepard's work, particularly in making the courts more accessible.

Increasing accessibility

Shepard expanded the Indiana Supreme Court's tradition of occasionally hearing oral arguments in law schools to taking them to high schools and community centers. In April, the court heard arguments in the East Chicago election case in Fort Wayne's City-County Building.

The court's excellent Web site - www.in.gov/judiciary/supreme - has a number of features, including Webcast oral arguments, both in real time and in its archives.

Through its power to set rules and procedures for all Indiana courts, the state Supreme Court has extended its accessibility efforts to the local level, working to make courts easier to use.

"We've put a good number of standard forms and standard petitions on the court's self-help pages on the Web site," Shepard said.

The court has worked with county clerks to offer more help to people who want to file divorce petitions and other cases with guidelines to distinguish between helping file documents and offering legal advice. It created a system to certify much-needed interpreters in local courts. It runs a "Courts in the Classroom" program that offers teaching guides at various grade levels.

Justice Sullivan is working on a program to put courts throughout the state on a common computer system that will greatly reduce the labor and potential for error of repeatedly keyboarding information into computers.

Jury rules

The court is also working with state agencies to help smaller counties use technology to take advantage of new rules that broaden the jury pool beyond registered voters to prevent a limited number of people from being called for jury duty again and again. Those rules, which Allen Superior Court Judge Fran Gull championed, took effect in 2003 and also allow jurors to ask questions and take notes.

More rules intended to help jurors take effect in January, but they are more controversial. One would keep juror information, other than what is revealed in court, secret; the other would allow jurors to discuss a case among themselves before the trial concludes.

In counties like Allen, which identifies jurors by a number in court rather than a name, identities of jurors might never be known, a profoundly bad idea. For his part, Shepard notes that jurors are "sort of involuntary public figures" who are concerned about "safety and unnecessary intrusion." The chief justice said striking a balance between easing jurors' concerns of privacy and the public's right to know is difficult, and he suggested the rules could be refined later. "This is still a work in progress," he said.

Another rule change will, for the first time, allow jurors to discuss a case before the trial concludes. Shepard rightly notes that the old idea of jurors sitting passively, hearing all the information before being able to verbally mull it over, is unrealistic. People don't make decisions that way, he said, "particularly group decisions."

So jurors will be told, "if you're all in the jury room...and you want to chat about it, go ahead," Shepard said. But they will also be cautioned, "keep in mind that you haven't heard the whole story yet, and you should resist making the final conclusion until you have heard it all."

Regulating lawyers, judges

The Supreme Court also has responsibility for determining whether complaints against judges and lawyers are valid and, if so, what punishment should be meted.

While the public can legitimately conclude that too much of the disciplinary process occurs behind close doors, Shepard and the current Supreme Court have opened the door far wider than it has been. Public disciplinary actions are posted on the court's Web site; even the naming of a hearing officer in disciplinary cases is posted, showing the names of lawyers suspected of misconduct when their guilt has not yet conclusively been established.

"You're seeing the court take a harder line," said Patton, the lawyer who follows appellate courts.

The court has also beefed up a program to aid lawyers and judges who have substance abuse or health problems, intervening and establishing sobriety and health recovery programs similar to employee assistance programs offered in the corporate world.

"You go back 20 or 30 years, the problems the lawyers had then are about the same as now, but the Supreme Court didn't get involved," Patton said.

The program is yet another way that Shepard and company have dramatically and quickly pulled the Supreme Court - and Indiana's lower courts - into the 21st century.

It is striking, Patton said "how far the court has come in such a short time."

Randall T. Shepard
Appointed: 1985
Appointed chief justice: 1987
Appointed by: Gov. Robert Orr (R)
Law degree: Yale
Undergraduate degree: Princeton
Experience includes: Vanderburgh Superior Court judge, 1980-85

Theodore R. Boehm
Appointed: 1996
Appointed by: Gov. Evan Bayh (D)
Law degree: Harvard
Undergraduate degree: Brown University
Experience includes: Clerk for U.S. Supreme Court Chief Justice Earl Warren; attorney for Baker & Daniels, 1964-88, 1995-96; general counsel, GE Appliances, 1988-91; deputy general counsel, Eli Lilly, 1991-95.

Brent E. Dickson
Appointed: 1986
Appointed by: Gov. Robert Orr (R)
Law degree: Indiana University ( Indianapolis)
Undergraduate degree: Purdue
Experience includes: Trial lawyer 17 years

Robert D. Rucker
Appointed: 1999
Appointed by: Gov. Frank O'Bannon (D)
Law degree: Valparaiso
Undergraduate degree: Indiana University
Experience includes: Trial attorney; deputy prosecutor, Lake County; Indiana Court of Appeals judge, 1991-99

Frank Sullivan Jr.
Appointed: 1993
Appointed by: Gov. Evan Bayh (D)
Law degree: Indiana University (Bloomington)
Undergraduate degree: Dartmouth
Experience includes: Attorney, 1980s; state budget director, 1989-92

On the Web

To see oral arguments in the Smith Field/Airport Authority case at 9:45 a.m. Monday, go to http://mycourts.in.gov/arguments/
Search for: SMDfund Inc., et al v. Fort Wayne-Allen County Airport Auth., et al

After the arguments conclude, they will be archived and available for viewing later.