On the Way to Something Better

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While the reports that the Constitution directs the Governor and the Chief Justice to give are known as the “State of the State” and the “State of the Judiciary,” very little in life is actually static. These annual snapshots always reflect a journey from where we used to be, towards something new and better.

The yesterday of Indiana’s courts lasted largely unchanged over decades. Our courts were a collection of unconnected silos. There were few agreed ways of conducting the court’s business. For much of our history, courthouse rules and practices varied so much that even lawyers, and certainly citizens, could rightly think they were crossing the state line when they simply went to the next county.

Over time Indiana’s courts have become less like a collection of Lone Rangers and more like a group of united colleagues. The legislature created unified courts in urban areas, and it began to support collaboration between judges.

The movement towards collaboration was visible in 2011 when the legislature created unified courts in Henry, Clark, and Madison counties. Judges and county officials concluded they could be more effective by working together. We have also adopted rules to consolidate multiple probation departments into one.

Joint Action for Families and Children

You could call this growing commitment to joint effort “court reform” or “tax dollar-efficiency,” but it makes a difference in people’s lives. A generation ago, courts heard disputes about families and children and domestic violence much the same way as cases on property ownership or breach of contract. The techniques had not grown alongside the size of the problems.

That has changed dramatically. Indiana’s ability to care for abused or neglected children is light years ahead from a decade ago. Governor Daniels launched an agency that focuses solely on children, whose caseworkers have enough training and time to do the job right, at state, instead of local, expense.

When children went to court in the old days, too often no one spoke for them because parents were so focused on their own conflict. Today, Indiana’s courts have volunteer Court-Appointed Special Advocates (CASAs) who speak just for the best interests of the child. The Daniels Administration and the legislature gave the judiciary the resources to recruit and support an army to speak for children. Indiana has more local CASA programs than any state but Texas. In 2011 we trained the largest number of new volunteer advocates ever—1,010. And the number of children awaiting assignment of a CASA is half what it was this time last year.

For particularly acrimonious divorces involving children, family mediation is available. Allen County Judge Tom Felts first launched this initiative and legislation authorizes its use statewide. It is now in 33 counties.

In the cases involving the worst threats, we have more tools than ever for combating domestic violence. Previously when a court issued a protection order, only paper copies existed, making it tougher for police to enforce them. Now judicial orders are sent immediately and electronically to law enforcement. We have also trained victim advocates in women’s shelters to help victims in 61 counties file requests for protective orders electronically.

Last year we were working on a way to send text or email messages to victims when a protective order is actually served on the abuser, a particularly dangerous moment. Last year we sent notices to 9300 victims. These improvements literally save lives.

More Effective Criminal Justice

When I was a trial judge, judges mostly had two sentencing options: prison and probation. In the intervening 25 years, everyone in the criminal justice system has wrestled continually with the twin challenges of exploding prison populations and persistent recidivism.

But ingenuity has produced a different world: 49 drug courts, highly professional probation departments with the time and tools to monitor tens of thousands of felons, 56 court drug and alcohol programs, the first veterans courts, delinquency projects run jointly with school corporations and social workers, and the new risk assessment tools that help identify the most effective sanction for individual offenders. Last year we evaluated 134,000 offenders using this 21st century evaluation technique.

Members of the Indiana House and Senate attended Chief Justice Shepard's final State of the Judiciary address in the Indiana House Chambers.

Courts and Healthy Commerce

Among the heart-warming aspects of stories written recently has been commentary describing how Indiana’s courts are not a barrier to economic development. Businesses shy away from some states because of the litigation climate.

One way the legal system can be a barrier has to do with sheer complexity, but Indiana sometimes produces simplicity. For example, to decide what evidence is admissible in court, for 175 years Indiana followed the ancient common law system of evidence. People confronted with these issues had to search thousands of pages of opinions for guidance.

We’ve replaced those millions of words with the Indiana Rules of Evidence, just 24 pages covering everything from hearsay to when you need the original document or just a copy.

Debates still occur about what is admissible. But lawyers and judges now can know which rule applies and can focus on exploring how to apply the rule to a particular situation. Citizens who find themselves in court without a lawyer can also use this relatively simple roadmap.

Calling such a reform “modernization” passes over that it holds down the cost of litigation and improves citizen access. The same is true of the Jury Rules (a recent study ranked Indiana fourth on the fairness of juries—they’re drawn from the most inclusive in the country) and the Plain English Jury Instructions (which give jurors a fighting chance to escape the legalese).

The other barrier is partially organizational and partially mental frame of reference. Do people in courts understand that how they perform affects a state’s economic climate? That the work we’ve done on mortgage foreclosure proves our bona fides on that point. Led by Lieutenant Governor Skillman, with energetic participation by Attorney General Zoeller, Indiana has been working to revise statutes and develop new court practices that give homeowners a better chance to re-write their mortgages and stay in their homes.

The judiciary has been working to focus all these techniques in the place where it really matters, the courthouses. A new package of best practices is in place in the 20 counties that represent two-thirds of the foreclosures. It turns out that these new processes multiply the chance a homeowner might achieve a successful workout by six times!

A Better Legal Profession

Over two decades ago, Indiana became a state where lawyers have to complete continuing legal education because lawyers thought it would be good for them and for clients. The Indiana State Bar Association’s original proposal left out judges, but judges insisted that we should impose on ourselves whatever we required of lawyers.

In 2011, continuing that same spirit, judges proposed that judges should have an even higher requirement than lawyers, and now we do.

What else is better about the lawyers and judges who make up Indiana’s legal profession? We have:

• improved bar admissions by adopting three new national exams., including one on ethics and one on problem solving
• created the country’s first joint program for impaired lawyers and judges;
• created the first statewide lawyer leadership academy, a project of the State Bar in which Justice Steven David is playing a leading role;
• created with your help, the Indiana Conference on Legal Education Opportunity and doubled the number of minority lawyers.

Is This Quality Work?

In addition to the whole judiciary, I do want to say a few words about the appellate courts. One way to measure quality is whether Indiana’s decisions are used by lawyers and judges in other states.

There was a time when Indiana stood near the top of where lawyers, scholars, and other judges looked for answers to legal problems. A study in 1912 examined how often state courts cited each other, and Indiana was fifth, following only New York, Massachusetts, Illinois, and California. Our ranking dipped over the years and by 1975 a study of the reputation of state supreme courts placed Indiana twenty-fifth.

That’s not the way it is today. Court of Appeals Chief Judge Margret Robb’s recent opinion about environment liability has been cited in Massachusetts and Texas, placed in a handbook on insurance law, explored by a law journal in Ohio, and cited by the American Law Institute. Supreme Court Justice Brent Dickson’s opinion on the use of risk assessment tools in criminal sentencing was described as the best piece of work anywhere. The Chief Justice of Nevada said to me, “We were so grateful for Justice Frank Sullivan’s opinion on gaming.”

This is, of course, grounds for professional pride, and it’s probably one reason why more people are voting in retention elections than ever before. But there’s a much more important reason. It is the value in the public sector of what George Will recently called “reasoned judgment.” Whether the disputes people bring to us are thoughtfully and honestly decided according to facts and law is crucial to a free society.

An Extraordinary Circle of Servant-Leaders

These are but the most evident trends from where we used to be to where we are going, and it is not humility but simple fact for me to say that the circle of people on the bench and in the bar who have been lending ingenuity and leadership is very broad. We are well served by people like:

• Lilly Judson, State Court Administration, and Mike Witte, of the Supreme Court Disciplinary Commission, who have both just finished terms leading national organizations.
• Justice Frank Sullivan has played a key role in bringing more minority law students into court clerkships and is now leading all of the bar’s efforts on ethics and professionalism.
• Judge Wayne Trockman of Evansville whose ground-breaking work in drug courts was recently honored by the National Association of Drug-Court Professionals.
• Judge John Surbeck of Fort Wayne, fairly called one of the inventors of re-entry courts, is literally in world-wide demand for his expertise.
• Jan Dickson was rightly recognized in November by the National Center for State Courts for having done more to help the families of judges than anyone, anywhere.
• Justice Robert Rucker, who chairs the National Bar Association‘s Judicial Council and whose career has been such an inspiration to others that the Lake County Commissioners recently renamed the facility in East Chicago the Robert D. Rucker Courthouse.

Extraordinary People Working on Important Causes

These extraordinary people and others have been engaged in making the system of justice work better tomorrow than it did yesterday and their collective commitment is the reason we can be confident about tomorrow. Here are some examples from 2011:

• After winning national awards for innovation from organizations like the Council of State Governments, JTAC, led by Mary DePrez, is just on the verge of deploying our new 21st century case management system in 40% of the state’s cases.
• Our program on civics, Courts in the Classroom, won its tenth award, from the National Council on Public History, for its success in helping teachers and students and the public understand courts and their government.
• Judge Diane Schneider of Lake County and others launched ground-breaking work on guardianships for those seniors without family to look after their affairs.

My Thanks for the Opportunity

To be engaged with so many splendid people in so many worthwhile causes has for me been a better career than one could ever imagine.

To deliver this final report standing in this place where so many valuable measures in support of a fairer society have found success is simply uplifting. To do this between Mitch Daniels and Becky Skillman is very poignant, for their friendship has enriched my life. And if a fellow imagined that he’d be linked in public memory on the back end of a hyphen, where the name at the front was Joe Kernan’s, how could you beat it?

Could there be a better cause, a more worthwhile way to “spend and be spent” in life than working toward greater justice?

The scores, if not hundreds of times when members of the General Assembly have been willing partners in improving the delivery of justice have been a great gift. Those many moments, and the demonstrated achievements by so many of the men and women on the bench and in the bar, are the reasons why I say that Indiana will have an even better system of justice tomorrow than it has today.

I have been able to carry my own role in all this with the steadfast love of Amy MacDonell. Amy and Mattie and I are enormously grateful for the countless generosities and acts of kindness we have received.

That graciousness, and simple observable facts, will allow me to leave the stage with full confidence that we will succeed in building Indiana as a safe and prosperous and decent place.

God Bless you, and God Bless Indiana.