Washburn Selected One Of Final Five to Succeed Retiring Justice Brent Dickson On The Indiana Supreme Court

Dave Stafford for www.theindianalawyer.com

The Indiana Judicial Nominating Commission is deliberating to select three finalists to succeed retiring Justice Brent Dickson on the Indiana Supreme Court. before the commission Friday morning. Here are the highlights.

Rep. Thomas W. Washburne, Old National Bancorp, Evansville

Washburn told commission members he would bring a unique perspective to the interpretation of law based on his years as a lawmaker, corporate attorney and a clerk for former U.S. District Court Judge S. Hugh Dillon. “I think it’s very important to have a diversity of life experience on the Supreme Court,” he said. “I’ve been blessed with a very eclectic career.

His aim as a law student was to become a patent attorney, he said, noting his training following in his father’s footsteps as an engineer. That’s led him to an interest in technology as well as a pastime restoring World War II-era HAM radios. “I think you can leverage technology in a way that would be very beneficial to litigant and very beneficial to society as a whole,” he said, reducing costs, gaining efficiency and improving the quality of justice.

“It seems to me some things are clunky,” he said of court technology that he said has gotten better in recent years. “It seems to me we need to improve what we have in many respects,” he said, noting as an example improving search feature on the Odyssey case management system to improve public access.
Asked about whether his experience as a lawmaker would affect his judicial analysis, he said, “When you’re a legislator, you spend time looking at what the law is and what the law ought to be.” He said he would have a difficult time recognizing a right that wasn’t expressly guaranteed in the Constitution or by statute, but noted the Ninth Amendment says not all rights are enumerated, leaving such determinations to the court. “You could recognize them under extraordinary circumstances.”

Washburn was commended on carrying a copy of the U.S. Constitution in his breast pocket, after which he produced a copy of the House rules, raised his brows and said knowing those helps get a lot done behind the scenes. He said his experience as a lawmaker, including serving on committees dealing with judicial issues, show his ability to work toward consensus. “In the Legislature, we do that all the time. One of the wonders of life is that reasonable, intelligent people can disagree” and maintain civility, he said.

Mark A. Lienhoop, Newby Lewis Kaminski & Jones LLP, LaPorte

Lienhoop was the only of 15 finalist applicants who began his interview acknowledging his wife and two of his three children who accompanied him to the interview. He said during law school he committed to be the best lawyer he could, when he married he committed to being the best spouse, and when he and his wife had children, to being the best father possible. He also carried his mother’s observation that you can tell a lot about a person by how they treat subordinates.

“What I’ve done with life was I’ve always chosen things to dedicate myself to,” he said. “I know what I know, I know what I don’t know,” he said. What Lienhoop clearly knows is case law – reciting to the commission with an encyclopedic grasp of precedent, sometimes along with the year and the writing justice. “I fully believe I’m capable and enjoy, as you can tell, talking about the law and the judicial system.

“As a Supreme Court justice you have to be available and willing to communicate,” he said. “Taking it out to the people is, I think, one of the greatest things you can do.” He lauded the courts for rolling out new technology, enabling specialty courts and for massive projected savings through the Juvenile Detention Alternative Initiatives and other programs.

Lienhoop spoke candidly about cases in which he had “fired” clients, including a case in which a client revealed to him in confidence something that was contrary to information in a police report regarding a crash because the person was trying to protect a relative. In another case, he said he fired a client that insisted on proceeding to trial with a case that lacked merit.

Lienhoop, like many other applicants, was asked about statutory caps on damages, and said the constitutional interpretation would “get down to whether or not (the cap) was reasonable, and are you denying a reasonable remedy?” Chief Justice Loretta Rush said courts had ruled in ways that opponents warned would open floodgates of litigation. She asked whether Lienhoop thought that had been the result in any such case. “I have not seen that,” he said. “With the amount of litigation that I do, I think I would have.”

Judge Thomas J. Felts, Allen Circuit Court, Fort Wayne

Felts cited his relationships with court staff through the judicial center and Supreme Court administration as a unique quality he would bring to the court if appointed, and said he would be willing to accept administrative duties on Day One. “Relationships are so important,” he said, noting he knows at least half of the court staff by name. “They know me and I know them and there wouldn’t be a learning curve getting to know who Tom Felts is and how does he do things.”

Felts delayed a bit when asked what his greatest weakness is before allowing it’s sometimes a lack of patience. “Things don’t move as quickly sometimes as I like them to,” he said, noting he’s conscious about getting orders out in cases he’s taken under advisement, for instance. “I’m a stickler about those things, I guess, hopefully not in a manner of being an ogre or coming across too strong.”

Asked whether government should have the power to require individuals or corporations to assist in investigations, Felts said the FBI-Apple case pits compelling arguments of national security against the guarantee of privacy. “It would be very, very rarely” that he would consider such a requirement. “There may be some circumstance, but I’m very hesitant to broach those prior rights.”

When asked if he agreed with the comment that judges should do what’s right and let the law catch up, Felts said that judges should always aim to do what’s right, and that in some cases the law has needed to catch up. “You may need to jump ahead a little bit to do what’s right and let the law catch up,” he said, adding law is “best made at the legislative level and not at the judicial level.”

Along with his relationships, dedication and 26 years on the bench, Felts said he would bring energy. “There’s not much of anything I do in life where I’m not all in 100 percent. …It would be an honor to be on team Supreme Court,” he said, addressing Rush: “Coach, I’m ready. Put me in.”

Thomas E. Wheeler II, Frost Brown Todd LLC, Indianapolis

Wheeler’s background aside from his legal work as a Republican Party official was a focus of questioning that he said showed his strength as a consensus builder. As a member of the Indiana Election Commission that ruled former Secretary of State Charlie White ineligible for office, he noted the bipartisan panel was unanimous, as it often was. “I think I can set that aside,” he said of his political background that also included elective office to the Boone County Council.

He also said if appointed he would be able to shed his current view as an appellate advocate for clients. Asked what separates him from three other Indianapolis appellate practitioners in the running, Wheeler cited his extensive first chair trial experience as well as experience as an administrative law judge and as a county councilman. “I think I bring diversity to it,” he said.

Wheeler talked about forming the Federalist Society chapter in Bloomington as an outgrowth of becoming fascinated with constitution law as a student. It gave him an opportunity to meet with like-minded people and discuss how constitutional law impacts public policy. As a justice, he said he would defer to the legislative and constitutional processes. Courts, though, can recognize rights not enumerated, however. “I believe if there was a situation where we needed to, that can take place,” he said.

Asked about litigation around the state involving the public defender system, Wheeler repeated his position from his first-round interview that the costs of public defenders should be entirely shifted to the state under a unified court system and paid for through the state’s general fund. This would replace the current patchwork system that varies by county. “Access to justice cannot depend upon which side of the county line you sit,” he said.

Wheeler also shared a recent experience involving his father who was injured in a fall and whom he visited in intensive care for two to three hours a day. Walking past 30 or so families who are in the same situation, there to hold a loved one’s hand, deeply affected him, he said. “I learned so much from that,” he said, and that if appointed to the court, he would regard every litigant compassionately. “It’s not just a case,” he said, “It’s somebody’s life.”

Geoffrey G. Slaughter, Taft Stettinius & Hollister LLP, Indianapolis

Slaughter said the next justice will have to help legal professionals through a tough time. “No doubt the profession is going through profound changes,” he said. For instance, the rise of services such as LegalZoom comes as many young lawyers can’t find work. He said the problem of underserved litigants is one he sees as president of the Indiana Bar Foundation, and he’s hopeful programs can evolve that connect litigants to lawyers and route lawyers who are “ambitious, hungry and eager to learn the practice of law, send them to communities where their services are needed.”

With a philosophy of textualism and originalism, Slaughter said the genius of the Framers was the recognition that times will change and people would respond to those changes. He said the U.S. Supreme Court correctly decided the 1954 Brown v. Board case that struck down segregation in schools. The court correctly ruled that Brown reflected the Equal Protection Clause of the 14th Amendment even as it disposed of 60 years of precedent. “They recognized the tension and it needed to be reconciled,” he said.

Slaughter said he would be able to smoothly transition from his role as an advocate if appointed to the court. The judicial oath and black robe, he said, symbolizes the different role the judge takes on. “I take seriously the importance of what the court does, the neutrality of those who serve as justices.” He said the learning curve would probably be his biggest challenge transitioning to the court.

“A judge’s most solemn obligation is to apply the law as it’s been written by others to give the greatest fidelity to what the law is, as best we can discern,” he said. In the case of a close call where the questions were equal, he said he would be willing to rely on empathy if it were the path of least resistance to a resolution. If it’s not a close call, he said, “It seems to me the law needs to trump the value judgment.”

Slaughter said he’s signed up for e-filing and looks forward to using it, but admitted technology wasn’t a strong suit. He noted he carries an iPhone with access to WestLaw and other legal services, though. “I’m comfortable with technology,” he said. “If it’s user-friendly, I can keep up with the best of them.”

7th Circuit Rejects Group’s I-69 Challenges

Scott Olsen for www.theindianalawyer.com

The 7th Circuit Court of Appeals affirmed a federal judge’s ruling granting a motion to dismiss some charges and grant summary judgment on others to the United States Department of Transportation after a group opposing I-69 construction in southern Indiana, Citizens for Appropriate Rural Roads, filed a lawsuit.

CARR challenged several environmental aspects to the construction, alleging 18 counts of wrongdoing. The trial court found counts 9, and 13 through 18 were unripe, and that summary judgment on count 7 was appropriate. CARR appealed judgment on those counts.

In count 7, CARR said defendants violated the National Environmental Policy Act by not filing a Supplemental Environmental Impact Statement. They argued one was needed to address 2009 fleet vehicle data, the impact of the project on the endangered Indiana bat, and the impact of the project on certain historic sites. They argued the defendants arbitrarily used 2004 data instead of available 2009 data but Colin Bruce, District judge in the Central District of Illinois sitting by designation and writing the decision, said the defendants used 2004 data because 2009 data was not quality verified. Also, the plaintiffs did not show that using the 2009 data would have resulted in noncompliance.

Bruce found there was no basis that the plight of the endangered Indiana bat required an SEIS, and the plaintiffs did not include enough evidence to justify the use of an SEIS to gauge the impact of certain historic sites.

In count 13, plaintiffs alleged defendants violated the Clean Air Act and Administrative Procedure Act by not using the 2009 data, but Bruce said the law did not require defendants to use the 2009 data because it was not finalized until 2011. Also, the defendants knew about the 2009 data and chose not to use it.

In counts 17 and 18, the plaintiffs said the defendants concealed certain information in violation of the NEPA, but did not provide sufficient evidence to back up their claims. Bruce said the defendants proved they considered all relevant factors when they decided on a route, and that’s all that was required.

In counts 9, 14, 15 and 16, the plaintiffs did not respond to defendants’ request for summary judgment. They did not include any statement of material facts, and by failing to respond, the defendants’ facts were taken as represented in their motions, meaning they were granted summary judgment.

Bruce said the trial court made an error in its dismissal of all of count 8, but that error was harmless. All of count 8 would have been judged in the defendants’ favor through summary judgment at trial anyway.

The plaintiffs also claimed fraud on the court, but the only evidence of the fraud was “hearsay upon hearsay,” Bruce wrote, so that charge was not granted.

The plaintiffs argued the District Court erred on a number of evidentiary issues, but the 7th Circuit thought otherwise there as well. The plaintiffs’ affidavit was hearsay, the subpoenas were quashed with reason and they were not entitled to an evidentiary hearing.

Finally, the plaintiffs claimed there should have been additional discovery in the case, but again Bruce said the plaintiffs failed to show a need for it.

The case is Citizens for Appropriate Rural Roads, et al. v Anthony Foxx, in his official capacity as Secretary of the United States of Transportation, et al., No. 15-1554.

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