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Resources for the 2006 Indiana Appellate Judicial Retention Election

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Background on the Indiana Court System and How Judges are Selected

Indiana's court system is made up of trial courts (county circuit courts, county superior courts, etc.), and appellate courts (the Supreme Court, the Court of Appeals, the Tax Court).

Here is a chart showing the organization of Indiana's judicial system.

As shown by the chart, most, but not all, Indiana trial court judges are elected.

Selection and retention of appellate judges/justices. The 15 judges on the Indiana Court of Appeals and the 5 justices on the Indiana Supreme Court, however, are appointed by the Governor after nomination by a judicial nominating commission.

After an initial two-year term, they run on a “Yes—No” retention ballot (Supreme Court justices run state-wide, Court of Appeals judges run in the districts), and, if successful, they then serve ten-year terms. After each ten-year term concludes, the judge or justice may file to stand again for retention for another 10-year term.

There is no limit on the number of times a justice or judge may stand for retention. However, appellate judges and justices must retire when they reach age 75.

For more information on the Supreme Court and what kind of cases it hears (i.e. its mandatory and discretionary jurisdiction) see this page from the Court's website.

For more information on the Court of Appeals and what kind of cases it hears see this page from the Court's website. This page also explains two somewhat confusing concepts - the Court of Appeals "districts" and the 3-judge "panels" that hear cases.

As for the former:

When the Court of Appeals was created, the General Assembly established three districts for it--one for the northern third of the State - the Third District, one for the central third - the Second District, and one for the southern third - the First District. Three judges from each district made up the original nine judges that sat on the Court of Appeals.
However, because of the heavy caseload, since 1970 six more judges have been added by the General Assembly to this original nine. This was accomplished by creating two new, additional "districts", the Fourth and Fifth Districts. These two districts are state-wide.

The result is that some of the appellate judges running for retention this fall will be running state-wide because their district (i.e. the 4th or 5th District) is state-wide; others will be on the ballot only in the 1st, 2nd, or 3rd District, as the case may be.

   

The 2006 Candidates for Retention on the Supreme Court:

Only one Supreme Court justice is up for retention in 2006, Frank Sullivan Jr. Here is his photo and biography - these are the same as those published in the recent issue of Res Gestae:

Justice Frank Sullivan Jr.

The Hon. Frank Sullivan Jr. was appointed to the Indiana Supreme Court effective Nov. 1, 1993, by then-Gov. Evan Bayh. During his tenure on the court, he has authored approximately 385 majority opinions dealing with issues of administrative, commercial, constitutional, corporate, criminal, environmental, family, real estate, tax and tort law. Justice Sullivan has also been active in the administrative work of the Supreme Court. He chairs the court’s Judicial Technology & Automation Committee and has been an active participant in bench, bar and legal education activities.

Justice Sullivan came to the state’s highest court with a background in government service and private law practice. He served as Indiana State Budget Director from 1989 through 1992. Prior to state service, he practiced law in the Indianapolis office of Barnes & Thornburg.

Justice Sullivan is a member of the Board of Visitors of Indiana University School of Law-Bloomington and the Valparaiso University School of Law National Council, and was named an honorary alumnus of Valparaiso University in 2001. He is also a Fellow of the Indiana and American bar foundations and a member of the American Law Institute and an adviser to its “Restatement of the Law Third Economic Torts and Related Wrongs” project.

A member of the executive committee of the Appellate Judges Conference of the ABA’s Judicial Division, Justice Sullivan co-chaired from 2002-2005 the American Bar Association’s Judicial Clerkship Program that encourages minority law students to seek judicial clerkships. He is the recipient of the Indiana State Bar Association’s 2002 Rabb Emison Award for “significant contribution made in advancing opportunities for minority lawyers in legal employment and the legal profession.”

Justice Sullivan is a native of South Bend. He is a graduate of Dartmouth College (A.B., cum laude, 1972), Indiana University School of Law-Bloomington (J.D., magna cum laude, 1982) and the University of Virginia School of Law (LL.M. 2001). He is married to Cheryl G. Sullivan; they are the parents of three sons. An avid runner, he competed in the 2003 Boston Marathon.

Notes: Justice Sullivan, who is 56, runs state-wide. He was appointed by Gov. Bayh in 1993 and is up for his second 10-year term on Nov. 7th, 2006.

   

The 2006 Candidates for Retention on the Court of Appeals:

Five Court of Appeals judges are up for retention in 2006. Here are their photos and biographies - these are the same as those published in the recent issue of Res Gestae.

Note that the Chief Judge is listed first, followed by the other four judges in alphabetic order:

Chief Judge James S. Kirsch

The Hon. James S. Kirsch was appointed to the Court of Appeals, Second District, in March 1994 and was elected chief judge in March 2004.

Judge Kirsch is a graduate of Indiana University School of Law-Indianapolis (J.D., cum laude, 1974) and Butler University (B.A., with honors, 1968). He served as a judge of the Marion Superior Court from 1988 to 1994 and as presiding judge of the court in 1992.

From 1974 to 1988, he practiced law with the Indianapolis firm of Kroger, Gardis & Regas in the areas of commercial and business litigation, and served as managing partner of the firm. Since 1990, he has held an appointment as visiting professor of law and management at the Krannert Graduate School of Management at Purdue University.

Judge Kirsch is a past president of the Indianapolis Bar Association and of the Indianapolis Bar Foundation, and a former member of the Board of Visitors, IU School of Law-Indianapolis. He is a past president of the board of directors of the United Way/Community Service Council and a current or former member of the board of directors of the United Way of Central Indiana, the board of associates of Rose Hulman Institute of Technology, and the boards of the Goodwill Industries Foundation of Central Indiana, Community Centers of Indianapolis, the Indianapolis Urban League, the Legal Aid Society of Indianapolis and the Stanley K. Lacy Leadership Association.

Judge Kirsch is a Fellow of the Indianapolis and Indiana bar foundations. He is a frequent speaker and lecturer, and has served on the faculty of more than 200 continuing legal education programs. He has been named a Sagamore of the Wabash by four different governors.

Judge Kirsch and his wife, Jan, have two children, Adam, a senior at Wabash College, and Alexandra, a senior at Cathedral High School.

Notes: Chief Judge Kirsch, who is 59, runs in the Second District. He was appointed by Gov. Bayh in 1994 and is up for his second 10-year term on Nov. 7th, 2006.

Judge Terry A. Crone

The Hon. Terry A. Crone was appointed to the Court of Appeals March 8, 2004, and currently serves as the presiding judge of the Third District.

Judge Crone was raised in South Bend. He graduated cum laude from DePauw University in 1974 and graduated from Notre Dame Law School in 1977.

Judge Crone practiced law for nine years, concentrating in areas of civil practice, and served as the St. Joseph county attorney from 1981 to 1986.

In 1986, Judge Crone was appointed magistrate of the St. Joseph Circuit Court, where he served until his appointment as judge of the St. Joseph Circuit Court in 1989.

Judge Crone is a past president of the St. Joseph County Bar Association and a former member of the board of managers of the Indiana Judges Association, the Supreme Court Committee on Character & Fitness and the Alternative Dispute Resolution Committee of the Indiana Judicial Conference. He is currently a member of the St. Joseph County, Indianapolis, Marion County, Indiana State and American bar associations, and the American Judicature Society.

Judge Crone is a frequent speaker at legal education programs and currently serves as moderator of the Indianapolis Bar Association Bar Leader Series. He helped found a program in South Bend to familiarize minority high school students with the law and related fields, and was a founding member of the South Bend Commission on the Status of African-American Males and the St. Joseph County Coalition Against Drugs.

Judge Crone is married and has three daughters.

Notes: Judge Crone, who is 55, runs in the Third District. He was appointed by Gov. Kernan in 2004 and is up for his first 10-year term on Nov. 7th, 2006.

Judge Ezra H. Friedlander

The Hon. Ezra H. Friedlander, Carmel, was appointed to the Court of Appeals, Second District, in January of 1993.

He attended undergraduate and graduate school in Bloomington at Indiana University, having received his degrees in 1962 and 1965. Judge Friedlander practiced law for 27 years before being appointed to the bench. His practice was primarily in the area of civil law, while also having served as a deputy prosecutor in Lake and Marion counties and as corporate council to the Secretary of State’s Office.

Judge Friedlander is currently co-chair of the Indiana Supreme Court’s Commission on Race & Gender Fairness. He is a member of the Indiana State and American bar associations; American Judicature Society; and the Indiana Judges Association.

Judge Friedlander was honored by the IU School of Law and is a member of its Academy of Law Alumni Fellows. He had previously been active in the American Bar Association’s Judicial Division as well as many other areas of the bar, including the Indianapolis Bar Association and the Indianapolis Bar Foundation.

Judge Friedlander is currently a member and committee chair of the IU Foundation. He is a past chair of the ISBA Young Lawyers Section and has been actively involved in community affairs. He is particularly proud of being a member of the local organizing committee for the 2005 Solheim Cup; the 2002 World Basketball Championships; and is a founder of the Carmel Youth Soccer Association.

Judge Friedlander is married and has three children.

Notes: Judge Friedlander, who is 64, runs in the Second District. He was appointed by Gov. Bayh in 1993 and is up for his second 10-year term on Nov. 7th, 2006.

Judge Edward W. Najam Jr.

The Hon. Edward W. Najam Jr., Bloomington, is presiding judge of the First District of the Court of Appeals. Judge Najam was appointed to the court by Gov. Evan Bayh in 1992 and was retained in 1996.

Judge Najam graduated from the Indiana University High School in Bloomington, where he grew up, and attended Indiana University-Bloomington. At IU, he earned a B.A. in political science, with highest distinction, in 1969; was elected to Phi Beta Kappa; and was elected Student Body President. Judge Najam earned a J.D. from Harvard Law School in 1972.

After admission to the Indiana bar, he was Administrative Assistant to the Mayor of Bloomington for two years and was an attorney in private practice for 18 years. He served on the Civil Justice Reform Act Advisory Group and the Local Rules Advisory Committee of the U.S. District Court for the Southern District of Indiana; was a member of the Bloomington Rotary Club; and president of the Monroe County Family YMCA board of directors.

As chair of the ISBA Appellate Practice Section, he initiated the Appellate Rules Project, which culminated in a complete revision of the Indiana Rules of Appellate Procedure. In 2001, he organized and co chaired “Caught in the Middle: A National Symposium on the Role of State Intermediate Appellate Courts,” which was attended by judges from 22 states, the first such national conference.

He has served on the Indiana Supreme Court’s Committee on Rules of Practice & Procedure (1995 to 2005) and the Judicial Technology & Automation Committee (1999 to 2005), and represents the judiciary on the Indiana Department of Homeland Security Counter-Terrorism & Security Council.

Judge Najam is a member of the American, Indiana State and Monroe County bar associations, the ABA Appellate Judges Conference, a graduate of the Indiana Graduate Program for Judges, a Fellow of the Indiana and Indianapolis bar foundations, a member of Phi Delta Phi legal fraternity and an Eagle Scout.

Notes: Judge Najam, who is 59, runs in the First District. He was appointed by Gov. Bayh in 1992 and is up for his second 10-year term on Nov. 7th, 2006.

Judge Patricia A. Riley

The Hon. Patricia A. Riley of Rensselaer was appointed to the Indiana Court of Appeals, Fourth District, in 1994 after 20 years as a lawyer and trial court judge in Jasper County.

A seventh generation Hoosier, Judge Riley was born in Rensselaer in 1949 and educated in its public schools. She graduated from Indiana University, B.A. 1971, and the IU School of Law-Indianapolis, J.D. 1974.

Judge Riley was on the Jasper Superior Court from 1990 until her appointment. She earlier worked as a prosecuting attorney in Marion County after graduation from law school. In 1980, she returned to her hometown and opened a general practice of law. During the next 10 years, while practicing law, she was an adjunct professor at St. Joseph’s College, public defender, served on the Board of Governors of the Indiana State Bar Association, became chair of the Joint Committee of the Bench & Bar on Gender Issues in the Profession and was active in various national, state and local bar organizations.

Since being appointed as judge to the Indiana Court of Appeals, she has served on the board of directors of the National Association of Women Judges and the International Committee of the American Bar Association. She is a member of the Ethics Committee for the Indiana Judges Association and teaches trial practice on Saturday mornings as an adjunct professor at the IU School of Law-Indianapolis.

Judge Riley has two adult sons.

Notes: Judge Riley, who is 57, runs in the Fourth District (i.e. state-wide). She was appointed by Gov. Bayh in 1994 and is up for her second 10-year term on Nov. 7th, 2006.

Results of Indiana State Bar Association
Poll of its Members on the 2006
Indiana Appellate Courts Retention Ballot

Here is the press release from the ISBA, dated 9/25/06:

Judges receive ‘yes’ votes from bar members

The Improvements in the Judicial System Committee of the Indiana State Bar Association (ISBA) has completed its compilation of the 2006 Judicial Retention Poll responses. Results indicate overwhelming support, by ISBA members, of the Indiana Supreme Court justice and Indiana Court of Appeals judges seeking retention.

All in-state ISBA members received ballots -- 9,989; and 1,477 ballots were returned. The yes/no retention portion of the ballot was tabulated, and results are as follows:

Yes No Abstain
Justice Frank Sullivan Jr.:1 81% 15% 4%
Chief Judge James S. Kirsch:2 82% 11% 7%
Judge Terry A. Crone:3 70% 14% 16%
Judge Ezra H. Friedlander:2 78% 14% 8%
Judge Edward W. Najam Jr.:4 78% 13% 9%
Judge Patricia A. Riley:1 70% 21% 9%

Appellate-level court judges face an approval vote in the first general election that occurs at least two years after their appointment, and every 10 years thereafter. Indiana voters will have an opportunity to cast their ballot concerning the judges’ retention Election Day on Nov. 7.

_____________________
1 Justice Sullivan was appointed to the Indiana Supreme Court effective Nov. 1, 1993. Judge Riley was appointed to the Court of Appeals, Fourth District, in 1994. Justice Sullivan and Judge Riley will be subject to a yes/no retention vote in all Indiana counties.
2 Chief Judge Kirsch was appointed to the Court of Appeals, Second District, in March 1994 and was elected Chief Judge in March 2004. Judge Friedlander was appointed to the Court of Appeals, Second District, in January 1993. Chief Judge Kirsch and Judge Friedlander will be subject to a yes/no retention vote in the following counties: Adams, Blackford, Carroll, Cass, Clinton, Delaware, Grant, Hamilton, Howard, Huntington, Jay, Madison, Marion, Miami, Tippecanoe, Tipton, Wabash, Wells and White.
3 Judge Crone is the presiding judge of the Third District of the Court of Appeals and will be subject to a yes/no retention vote in the following counties: Allen, Benton, DeKalb, Elkhart, Fulton, Jasper, Kosciusko, LaGrange, Lake, LaPorte, Marshall, Newton, Noble, Porter, Pulaski, St. Joseph, Starke, Steuben, Warren and Whitley.
4 Judge Najam is presiding judge of the First District of the Court of Appeals and will be subject to a yes/no retention vote in the following counties: Bartholomew, Boone, Brown, Clark, Clay, Crawford, Daviess, Dearborn, Decatur, Dubois, Fayette, Floyd, Fountain, Franklin, Gibson, Greene, Hancock, Harrison, Hendricks, Henry, Jackson, Jefferson, Jennings, Johnson, Knox, Lawrence, Martin, Monroe, Montgomery, Morgan, Ohio, Orange, Owen, Parke, Perry, Pike, Posey, Putnam, Randolph, Ripley, Rush, Scott, Shelby, Spencer, Sullivan, Switzerland, Union, Vanderburgh, Vermillion, Vigo, Warrick, Washington and Wayne.

Information from the Secretary of State's Office on the Nov. 7, 2006 Judicial Retention Questions

The Office of the Secretary of State has a document available about the Nov. 7, 2006 judicial retention questions. It begins:

Under Indiana Code 33-25-2-2, if the term of a person currently serving as a Justice of the Supreme Court of Indiana or a Judge of the Court of Appeals of Indiana will expire December 31, 2006, that person may file a request to have the question of their retention in that office placed on the November 2006 general election ballot.

Under Article 7 of the Constitution of the State of Indiana, a Justice or Judge serves a term of 10 years following the approval by the voters of their retention as a Justice or Judge.

The question of retention of a Supreme Court Justice is voted on by all of the voters of Indiana. However, the question of retaining certain Court of Appeals Judges is only placed on the ballot in the specific counties listed below.

This information is followed by a list of the ballot questions for each of the individuals seeking retention. Access it here [PDF]

"Voting to Retain or Reject Indiana Appellate Judges and Justices"

In October of 2005 Res Gestae published a column by attorney Marcia J. Oddi titled "Voting to Retain or Reject Indiana Appellate Judges and Justices."

The article sets forth the position that voters need information about judges' records in order to make informed decisions and to make the retention vote meaningful. The article concludes:

As shown in the tables, in 2006 one Supreme Court justice and five Court of Appeals judges will be up for retention, should they so choose. In 2008, as the facts stand now, the Tax Court judge, one Court of Appeals judge and three Supreme Court justices may be on the ballot. It is up to the state and local bar associations, the media, and the League of Women Voters and similar civic groups, to start now to assure that the citizenry will have the information they need to make their votes on retention meaningful.
You may access a copy of the article online.

A second Res Gestae column, published in March of 2006, "Analysis of another effort to alter the Indiana judicial selection and retention process,"   looks in depth at the judicial nomination process put in place by constitutional amendment in 1970.

Watch the Judges Listening to Oral Arguments

Supreme Court Oral Arguments. Most of the arguments in cases before the Indiana Supreme Court are available online. To watch the five justices, including Justice Sullivan, listening to oral arguments, click on any Supreme Court argument at the Court's online webcast page. Oral arguments as far back as September 2001 may be accessed.

Court of Appeals Oral Arguments. Few of the oral arguments before the Indiana Court of Appeals are available as videocasts online. Further, although the Court of Appeals is comprised of 15 judges, they hear cases in panels of 3 judges. That means it is more difficult to find webcasts including at least one of the five Court of Appeals judges -- Kirsch, Crone, Friedlander, Najam, and Riley -- who are up for retention Nov. 7, 2006. Below is a table showing all the Court of Appeals webcasts for the period from 2004 through 2006.

Date and Time
of Argument		 Court Name of Case (click to watch video of oral argument before panel) Background Judges on Panel
(Schduled)		 APP Opinion Issued
1/12/2004 11:00:00 AMAPPRuth Morrison, et al., v. Doris Ann Sadler, et al.Summary Barnes, Kirsch and Friedlander 1/20/05
2/12/2004 2:00:00 PMAPPNorthrop Corp. v. General Motors Corp.Summary Darden, Sullivan and Riley 4/27/04
4/21/2004 2:00:00 PMAPPBartlett Washington v. State of IndianaSummary Darden, May and Barnes 5/7/04
6/14/2004 10:00:00 AMAPPDoris A. Sadler, et al. v. State of IndianaSummary Crone, Baker and Barnes 5/19/04
10/13/2004 2:00:00 AMAPPRobert Bell v. State of IndianaSummary Darden, Baker and Friedlander 11/30/04
10/27/2004 2:00:00 PMAPPSt. Margaret Mercy Healthcare Centers, Inc. v. Barbara PolandSummary Darden, Friedlander and Baker 5/31/05
11/17/2004 10:30:00 AMAPPNancy Prewitt v. State of IndianaNot available Baker, Friedlander and Robb 12/13/04
12/16/2004 2:30:00 PMAPP SCI Indiana Funeral Services, Inc. v. D.O. McComb & Sons, Inc. and Terra Services, Inc.Not available Baker, Friedlander and Robb 1/14/05
2/15/2005 2:00:00 PMAPPJames K. Helsel v. Hoosier Insurance CompanyNot available Mathias, Bailey and Sullivan 5/13/05
12/14/2005 2:00:00 PMAPPPlanned Parenthood of Indiana v. Steve Carter, et al Summary Crone, Najam and Barnes 9/23/06
2/10/2006 1:00:00 PMAPPThe Matter of Infant Girl W., The Adoption of M.W., Summary Baker, Najam and Vaidik 4/13/06
2/21/2006 2:00:00 PMAPPAlan and Sherry Stowers v. Clinton Central School Corp., Summary Kirsch, Darden and Robb No ruling as of 10/15/06
5/5/2006 10:00:00 AMAPPHerman Idlewine v. State of IndianaSummary Baker, May and Crone 6/1/06 (NFP)
8/21/2006 1:00:00 PMAPPGibson-Lewis, LLC v. Teachers Credit Union, et alSummary Kirsch, Darden and Vaidik 9/26/06
9/7/2006 2:00:00 PMAPPSt. Charles Tower, Inc. v. Bd. of Zoning Appeals of EvansvilleSummary Riley, Bailey and May 10/11/06
9/28/2006 10:00:00 AMAPPPricewaterhousecoopers, LLP v. James Massey, et al Summary Kirsch, Sharpnack and Mathias No ruling as of 10/15/06
10/24/2006 10:00:00 AMAPPState Farm Mutual Automobile Insurance v. D.L.B.Summary Riley, Darden and Vaidik [here insert]

   

Eight Questions for the Appellate Court Judges

In the style of Howard Bashman's "20 Questions for the Appellate Judge,"  earlier this month the ILB sent, to the five Courts of Appeals judges and one Supreme Court justice who are on the November 7th ballot for a "Yes/No" vote on retention, a set of  "Eight Questions for the Indiana Appellate Judge."

Every jurist who received a questionaire has elected to participate in the responses: from the Court of Appeals -- Chief Judge James S. Kirsch, Judge Terry A. Crone, Judge Ezra H. Friedlander, Judge Edward W. Najam Jr. and Judge Patricia A. Riley; from the Supreme Court -- Justice Frank Sullivan Jr. The judges decided to submit a collective response to each of the ILB's questions.

Question #1. Learning curve for appellate judges.

Q. All of you [who are up for rention in 2006] except for Judge Crone have been on the appellate or supreme court for more than a dozen years. Three of you were trial judges before your appointment to the Court of Appeals. Judges Friedlander and Najam, and Justice Sullivan came to the bench with no prior experience as a judge. Is there a steep learning curve, moving from the world of a practitioner or trial judge to that of an appellate judge? What are some of the difficulties or surprises?

A. Six members [of the 15-member] joined the Court of Appeals directly from private practice, and nine members came from the trial bench. All the judges on the Court have had courtroom experience on one side of the bench or the other, and most of the judges have many years of appellate experience. There is, indeed, a learning curve when someone moves to an appellate court whether from a trial practice, the trial bench or other prior experience. Much of what we do is unique to appellate adjudication. Perhaps the most significant challenge for an attorney or trial judge who joins the appellate bench is to learn the fine points of appellate review, which distinguish appeals from trials. The learning curve is modulated by the fact that three judges participate in each opinion. While trial judges act alone, the Court is a collegial institution in which the judges collaborate on a regular basis. Because the Court of Appeals sits in three-judge panels, we have former trial judges and former practitioners working together. The fifteen judges on the Court provide ready access to a wide variety of experience.

For a judge coming to the Court from the trial bench, a noticeable immediate difference was that there is not a decision to be made every five minutes and that schedules are not set by lawyers and litigants clamoring for court time. While there is a tremendous volume of work to be done, there is not the urgency you will find in the trial courts. We all appreciate the luxury of having the opportunity to consider complex legal issues in a contemplative environment. Another immediately noticeable and pleasant surprise is opportunity to work with our law clerks. Regrettably, law clerks are a rarity among Indiana’s trial courts. They are absolutely essential to what we do, and the quality and dedication of the law clerks adds significantly to the experience of serving as an appellate judge. Another is the tremendous intellectual resource provided by the 14 other regular judges and the senior judges on the court, all working in a collegial atmosphere.

A couple of the more difficult adjustments for appellate judges as they start out is adapting to working in a group, as opposed to being the sole decision-maker on a matter, and having significantly less contact with lawyers and litigants. Another major surprise is to discover the volume of not for publication cases decided by the Court of Appeals on an ongoing basis. Even former trial judges who have served on the trial bench for a number of years do not realize the tremendous volume of such cases.

Question #2. NFP opinions.

Q. Under App. Rule 65, Court of Appeals opinions are deemed “Not for Publication” unless the case establishes, modifies or clarifies a rule of law; criticizes existing law; or involves a legal or factual issue of unique interest or substantial public importance. Recently, the Court of Appeals decided to make its NFP opinions more accessible. For many of us, that meant seeing for the first time how much work the judges on the Court of Appeals actually put out each week. What we had seen up to then was merely “the tip of the iceberg.” What surprised many of us was that other than the NFP stamp in the upper left hand corner of the first page, the NFP are no different than the “published” opinions. These are not one-page “Affirm” or “Reverse” opinions. They are full-blown opinions, sometimes split, sometimes reversing the lower court. Who makes the “NFP” determination in each case? Is it the judge who writes the opinion? How does the process operate?

A. The Court of Appeals of Indiana is one of a few intermediate appellate courts that decide every case by a full written opinion decided by a three-judge panel. You are right that there is no significant difference between an opinion that is designated for publication and one that is not. Usually, no decision is made regarding publication until after the opinion is completely drafted. This results in the quality of the not for publication opinions being substantially the same as the for publication opinions.

In some cases, we will know from the outset that a particular case will be decided by a published opinion because it clearly falls within the criteria in the rule. In other cases, the decision is made after the opinion is written and circulated to the panel. In all cases, the writing judge makes a recommendation to the other members of the panel regarding publication.

If the recommendation is to publish the opinion, the recommendation will be made by a publication memorandum setting out the reason publication is recommended with reference to the appropriate provision of App. Rule 65.

Sometimes, one of the other members of the panel will suggest publication for a case that the writing judge did not originally designate as a for publication case. We occasionally have a situation where somebody writing a dissent feels that a case should be published because of the nature of the opinion expressed in the dissent. Also on occasion, a member of the Court who is not on the panel will suggest publication. The decision to publish or not publish is made by a majority vote of the panel.

Question #3. The 3-judge panel.

Q. The five justices on the Supreme Court hear cases together. The 15 members of the Court of Appeals never meet together, as far as I know. They instead meet in 3-judge panels. Has it always been this way? I read somewhere that few other states meet in panels like this. What do they do? What are the advantages here? How are the judges who will sit on a panel determined? How are cases assigned?

A. The three-judge panel system has been traditional in this country for intermediate appellate courts, has been the practice in Indiana since at least 1972, and is consistent with the standard adopted by the American Bar Association. The underlying rationale for panels of three is that cases should be resolved by a collective judicial judgment so that appeals are more than substituting the decision of a single appellate judge for that of a single trial judge. A panel of three provides this opportunity without incurring the costs which would be involved in panels of a greater number. The three-judge panel also avoids the possibility of an evenly divided court.

Although there are some variations from three judge panels in courts in other states, it is the structure for most intermediate appellate courts including the United States Circuit Courts of Appeal.

Unlike some of our sister states, Indiana does not have a procedure for the Court of Appeals to sit en banc. As a result, there is a possibility that different panels may resolve a particular issue in different ways with no internal mechanism for resolving the conflict. Such conflict between panels is a very significant factor considered by our Supreme Court in deciding whether to grant a petition to transfer.

Our three-judge panels sit together for terms of four months after which the judges rotate. The panels are selected by a mathematical formula which assures that each member of our court will work with every other member of the court for at least four months out of every thirty months.

Case assignments are made by rotation. When a case is fully briefed, it is transmitted by the Clerk of the Supreme Court, Court of Appeals and Tax Court to the Court of Appeals Administrator. The Administrator then routes it according to the rotational system. There are four rotational wheels: criminal, civil, expedited and child-related. Each judge gets every fifteenth criminal case, every fifteenth civil case and so forth. This assures an even division of the cases across the court both in terms of numbers and types of cases.

Question #4. The oral argument.

Q. Readers can watch online a few of your 3-judge panels hearing oral arguments. Do you have oral arguments in all cases? What percent? How do you decide that an oral argument is needed? Some of your oral arguments are held outside the Statehouse, in various locations around the State? Tell use about this - is it a new practice? How often do you schedule arguments are various locals? How to get on the list?

A. We do not hold oral argument in all cases. Indeed, in recent years we have held oral arguments in approximately five to ten per cent of our cases each year. In 2005, we held oral arguments in eighty-four cases out of the 2,350 cases which we decided by majority opinion. The relatively low number is the result of two factors: First, although a majority of the oral arguments requested each year are granted, oral arguments are requested in only a small percentage of cases. Second, the time commitment required by an oral argument must be balanced by the demands of a continually mounting caseload.

If an oral argument is requested by one of the parties, the request will be ruled upon by the three-judge panel to whom the case is assigned. In some cases the panel will set a case for oral argument on its own motion. In deciding whether to an oral argument on any particular case, judges will consider a number of factors including whether there are issues in a case that were either not raised or were not fully developed in the parties’ briefs and whether there has been a change in the applicable law since briefing was completed.

We have held oral arguments around the state for a number of years. Indeed, earlier this year the Court was recognized by St. Mary of the Woods College for holding oral arguments there for twenty-four consecutive years. The practice of holding oral arguments around the state has been significantly expanded since the Court celebrated its one hundredth anniversary as a permanent court in 2001. That year, as part of our Centennial celebration, we held oral arguments in every part of the state, and we decided to try to visit each county in the state at least once every three years.

Our court remains committed to holding oral arguments throughout our State. In addition to the educational opportunities which the arguments provide for students and the general public, they afford us the opportunity to meet with local bar associations and judges and discuss mutual concerns. If anyone would like to host our court for an oral argument, we would welcome the opportunity. Readers should feel free to contact our Court Administrator, Steve Lancaster, to make arrangements.

Question #5. Suggestions for practitioners.

Q. Do you have any suggestions for lawyers who argue before you? What about briefing?

A. Entire treatises, law review articles, law school classes, and continuing educational programs are devoted to appellate oral arguments and briefing so a comprehensive answer to these questions is not possible here.

With that caveat, we counsel lawyers who are arguing a case before us that the best oral arguments are conversations with the court. Questions from the bench are opportunities to address matters that may troubling one or more of the justices or judges. Lawyers should always answer the question posed. If you do not know the answer, say so and offer to file a post-argument submission if the Court desires you to do so. Credibility is as important on appeal as it is at any other stage of a proceeding. Address matters of fact and law that are contrary to your position directly and openly and tell us why that adverse fact or authority is not determinative of the matter before us.

In regard to briefing, know and follow the appellate rules. Realize that the justices or judges who will read your briefs are reading hundreds of pages of briefs, records and cases on a daily basis and thousands of pages each week. Short, clear and concise arguments are often more persuasive than lengthier ones. Avoid argument in the statement of the case and the statement of facts. Avoid overstating the facts, and avoid overstating the holding in your case citations. Avoid personal attacks on the trial court, opposing parties and counsel. As with oral argument, acknowledge adverse facts and adverse authority and set forth your argument why such facts or authority should not be determinative of the case.

Question #6. Preparation for an appellate judge.

Q. For those readers still in school. Is there an "appellate judge" track -- i.e. serving as a law clerk or trial judge, for instance?

A. As you note in your first question, members of the Indiana Supreme Court and the Court of Appeals have varied backgrounds, and there is no particular track that one can follow leading to service on our courts. Serving as a judicial law clerk provides a wonderful opportunity to learn first hand what the job of a Supreme Court Justice or an appellate judge is like. As noted above, both the Supreme Court and the Court of Appeals have members who served as trial judges and members who did not. We have justices and judges who served as prosecutors, deputy prosecutors, public defenders, civil trial lawyers, business lawyers, family lawyers, bankruptcy lawyers and probate lawyers. The varied backgrounds yield a synergy which benefits both the Supreme Court and the Court of Appeals.

Question #7. The retention election.

Q. Appellate judges in our surrounding states - Illinois, Ohio, Michigan and Kentucky, are elected to office (see http://www.ajs.org/js/select.htm) Indiana is different, and has been since 1970 - Judges of the appellate courts are appointed by the governor from a list of three names submitted by the state judicial nominating commission. After two years, appellate court judges are on the ballot for 10-year terms via a "yes/no" vote. There is no limit on the number of terms, but the retirement age is 75. What are the advantages of this system? Are there any disadvantages? What, if anything, do you do to "run" for retention?

A. In 1970, the voters of Indiana approved a constitutional amendment providing for merit selection of Indiana Supreme Court justices and Indiana Court of Appeals judges. This system, now in place for 36 years, has been used to select all of the current members of the Indiana Supreme Court and 14 of the 15 current members of the Indiana Court of Appeals.

Our system relies upon a state Judicial Nominating Commission consisting of seven members. Three members of the Commission are lawyers elected by the lawyers state; three are non-lawyers appointed by the Governor; and the seventh member is the Chief Justice of Indiana, who chairs the Commission. When there is a vacancy on the Supreme Court, Court of Appeals, or Tax Court, interested judges and lawyers submit applications to the Commission and the Commission nominates the three applicants it considers most qualified. The Governor makes the final appointment from among the Commission's nominees. Once appointed, a justice or judge must stand for a retention election at the first statewide general election after the justice or judge had served for two full years and, if retained, every 10 years thereafter. (During the retention vote, the voters are presented with the question, should Justice (or Judge) John B. Jones be retained in office? If the justice or judge receives a majority of "yes" votes, he or she is retained.)

Some states, notably Missouri, have systems of selecting appellate judges quite similar to ours. Other states rely on conventional elections in which candidates for justice or judge run against each other, in some states (including our neighbors of Ohio, Michigan, Illinois, and Kentucky) on partisan ballots and in other states (including Wisconsin) on non-partisan ballots. Still other states provide for appointment without any election or retention vote process at all.

Of the various methods of selecting appellate judges used in this country, we believe that ours best furthers the goals of impartiality and accountability. In many states, elections of appellate judges have become dominated by special interests that contribute literally millions of dollars to the campaigns of the candidates. This creates at least the appearance that the justice or judge who is elected will not be impartial when it comes to matters in which his or her principal supporters have a stake. It also creates at least the appearance that an incumbent justice or judge will cast his or her vote in certain cases in a way calculated to improve his or her chances of being reelected. Two stories in the New York Times earlier this month detailed these concerns with Supreme Court elections in Ohio this year and in Illinois and West Virginia in 2004. See “Campaign Cash Mirrors a High Court's Rulings” and “Case Studies: West Virginia And Illinois,” The New York Times, October 1, 2006.

In contrast, justices and judges in Indiana decide cases fairly and impartially, free from any campaign finance considerations, need to attract votes, or fear of partisan attack.

At the same time, our system provides for accountability in several ways. First, the justices and judges selected are unlikely to be outside the mainstream with respect to their judicial philosophy and temperament precisely because appointees of the Governor and the Governor himself are involved in screening and appointing them. Furthermore, there is a check on their performance shortly after their appointment and at periodic intervals thereafter by means of the retention election process.

Judges who are candidates for retention are not permitted to campaign or solicit public support or campaign funds unless there is organized opposition to their retention.

The men and women who serve on Indiana's Supreme Court, Court of Appeals, and Tax Court enjoy superior reputations both nationally and within the state for the quality of their decisions and for their impartiality, fairness, integrity, and hard work. We believe that this is directly attributable to the merit selection process we use to choose and retain these justices and judges and that the voters of Indiana made an extremely wise decision when it put a system in place in 1970.

Question #8. Women and minorities as appellate judges.

Q. There are no women on the 5-member Indiana Supreme Court (and there has been only one woman on the Court in its history). There are only four women (of 15) on the Court of Appeals. Minorities are poorly represented on both courts. Any thoughts?

A. Both the Indiana Supreme Court and the Indiana Court of Appeals are committed to racial and gender equality. However, the Justices of the Indiana Supreme Court and the Judges of the Court of Appeals are appointed by the Governor from the names put forward by the Judicial Nominating Commission. As a result, we do not choose our colleagues, and we don’t have the power to select more women and minorities as members of our court.

On matters within our control, members of both courts have been leaders in promoting opportunities for women and minorities within the legal profession. Justice Frank Sullivan has co-chaired the American Bar Association Judicial Clerkship program that encourages minority law students to seek judicial clerkships. Judge Ezra Friedlander is co-chair with former Justice Myra Selby of the Commission on Race And Gender Fairness in the Courts. Both Justice Sullivan and the Court of Appeals have received the Raab Emison Award from the Indiana State Bar Association for “significant contributions made in advancing opportunities for minority lawyers in legal employment and the legal profession.”

Our Supreme Court has started the CLEO program to assist entering minority law students. For more than ten years, the Court of Appeals has sponsored its own CLEO program hiring students each summer to work as judicial clerks. Both courts employ a number of minority lawyers and women as judicial clerks and staff attorneys. It is our belief that by developing programs that assist minority law students and exposing them to the judicial branch that they will attain full and equal participation with judges in the future. Also, by working with minority lawyers, we serve as an example to other members of the legal profession to show that we value racial, ethnic and gender diversity within the law.

We would also note that Supreme Court Justice Myra Selby and Court of Appeals Judges V. Sue Shields, Linda Chezem and Betty Barteau, all left the Indiana appellate judiciary to pursue more lucrative employment opportunities, and Judge Robert Rucker left the Court of Appeals to serve as Justice of the Supreme Court.