Holloran Center

REMARKS OF INDIANA SUPREME COURT JUSTICE FRANK SULLIVAN, JR., TO JUDGES AND FACULTY AT THE UNIVERSITY OF ST. THOMAS SCHOOL OF LAW
Minneapolis, Minnesota

February 1, 2011

It is a great honor for me to have the chance to visit with all of you this noon; I really appreciate the law school’s hospitality and your willingness to take the time to join me.

I am not sure that there is anything about either judicial elections or court finances that you can learn from me. We all labor in these vineyards together. But what I thought I would do is make a few observations about both these topics from my perspective and then try to be quiet and learn from each of you.

On the judicial elections front, let me make just a few points. I have tried to follow the efforts here in Minnesota to move to a merit selection-retention vote system as recommended by the Quie Commission. I am sorry that the constitutional amendment did not pass the Legislature last year and that the concept has seemed to have lost some of its momentum. We have had a system substantially similar to that recommended by the Quie Commission operating in Indiana since 1970. We think it has served our state well and I hope that the idea will be revived here soon.

Quite as an aside, Al Quie was a very prominent figure in the very first years of my adult life. Between college and law school, I worked in Washington for my hometown Congressman, a Democrat named John Brademas, who chaired an education subcommittee. Then Congressman Quie was the senior Republican on the subcommittee. These two were extremely close colleagues and friends and produced some remarkably productive and enduring legislation. One particular statute very well known today that they literally created in 1975 is I-D-E-A, the Individuals with Disabilities Education Act. It was this law that established the right to a free and appropriate education for all children with disabilities; the national “special education” mandate started with Brademas and Quie in 1975. Brademas and Quie also collaborated on most of the federal legislation enacted during that time concerning schools, colleges and universities; services for the elderly; libraries and museums; and the arts and humanities. Brademas and Quie were a remarkably collegial and productive bi-partisan legislative duo whose legislative contributions in the 1970s still benefit the nation today.

Of course, Minnesota has been spotlighted in the debate over judicial selection because of the Supreme Court’s decision in the White case in 2002. You likely know better than I the specifics of that dispute but for me the principal holding is that state codes of judicial conduct violate the First Amendment if they prohibit candidates for judicial office from announcing their views on disputed legal and political issues. So-called “Announce Clauses” are unconstitutional.

Moving through the courts now is a second generation of litigation that tests whether a state code of judicial conduct would also violate the First Amendment if it contains a more narrowly drawn provision, one that prohibited only campaign commitments to rule in a particular way. Are so-called “Commits Clauses” unconstitutional?

The Indiana Code of Judicial Conduct contains a Commits Clause and it has been upheld by both the Federal District Court and now the Seventh Circuit. Of some note is that the lawyer who is challenging our Commits Clause is the same lawyer who successfully challenged your Announce Clause. Also of note is that the author of the Seventh Circuit opinion upholding the constitutionality of our Commits Clause is a very well-known figure indeed, Chief Judge Frank Easterbrook. If you have a chance to look at it, I think you will find it worth your while. The case is called Bauer v. Shepard, Bauer being a candidate for judicial office who says that he wants to answer the campaign questionnaire of Indiana Right to Life but fears discipline from the Indiana Supreme Court if he does so and Shepard being the Chief Justice of Indiana.

Now, I hope that the constitutionality of our Commits Clause is affirmed. As Judge Easterbrook writes, “How could it be permissible to ‘make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office?’” But I fear the damage has been done with the Supreme Court’s decision in the White case. As long as a candidate for judicial office can announce his or her views on disputed legal and political issues, the candidate can stop well short of making a commitment and still signal to interest groups and big donors what will be the likely result in litigation if the candidate is selected. Indeed, I think it is no coincidence that interest group spending on judicial elections has exploded in the time period since the Supreme Court’s decision in the White case.

You are probably aware that there are substantial efforts underway across the country – indeed, you may be involved in efforts here – to increase the robustness of judicial disqualification and recusal rules. As you well know, in the Massey Coal case, the Supreme Court held that due process required a justice of the West Virginia Supreme Court to recuse in a particular case because a person with a personal stake in that case had had a significant and disproportionate influence in placing the judge on the case by raising funds for the judge’s election when the case was pending. This has resulted in an assertion from several quarters – various entities within the American Bar Association; the Justice O’Connor Project at Georgetown Law School; the American Judicature Society; Dean Chemerinsky – that strong recusal rules are the antidote to unfettered judicial campaign speech and the big-money campaigns that accompany it.

Just as with Commits Clauses, I strongly support robust recusal rules. But just as with Commits Clauses, I don’t think robust recusal rules solve the problem. First, as my own Chief Justice, Randy Shepard, wrote before the White decision, the notion of recusal as the solution to bias from campaign speech is disingenuous because it “disconnect[s] free and unfettered campaign promises from any possibility that they will be carried out.” Advocates of recusal reform like Professor Charles Geyh from my own law school, the Maurer School of Law at Indiana University, believe that tough recusal requirements will prevent judges from announcing their views during campaigns because they will not want to be precluded from participating in cases once elected. Some judicial candidates might engage in that calculus. But I think this is unlikely. It seems to me that it is more likely that a candidate’s priority during the campaign will be on getting elected, not avoiding behavior that may require the candidate (if successful) to recuse after the election.

So my bottom line is not to get too distracted by the efforts underway to bolster recusal and continue to focus on efforts to move from contested elections to merit-based systems.

Now to the subject of financing court operations. Here, too, I’ve tried to pay some attention to what is going on here in Minnesota. I have seen, for example, your Chief Justice advocate forcefully for adequate court funding. I salute her and wish her well.

Here’s sort of a topography of what I think we are all facing.

As a consequence of the recession and its impact on state and local tax revenues, courts at all levels are being provided fewer resources with which to do their work. The consequence of unemployment is lower income and lower consumer spending and that translates into diminished income tax and sales tax collections. At least in jurisdictions where property valuations are tied to fair market value, the decline in the real estate market has lowered assessed valuations which results in reduced property tax collections (unless there is a proportionate increase in tax rates). In my own state, which largely depends on property taxes to fund trial court operations, a property tax reform movement has just written property tax caps into the state constitution.

With less revenue available to appropriate, state and local government must cut somewhere, and because courts are often seen as a lower priority than some other parts of the budget, our cuts are often disproportionately large.

However, the recession has not only adversely affected courts’ funding, it has also adversely affected our workload. The volume of economically sensitive cases like collection and foreclosure has increased. There is also a sense that some types of crimes and domestic violence have increased in proportion to financial stress. In my state, some judges report increases in demand for public defenders in criminal cases and litigants appearing pro se in civil cases where private counsel would have been employed in better economic times.

Among the consequences of the decline in funding and increase in workload reported in my state and others have been the following:

1. Judicial vacancies remaining unfilled.

2. A suspension of jury trials. I have also seen reports of increases in the number of prospective jurors seeking to be excused on the basis of financial need.

3. Reductions in state distributions to trial courts for programs like guardians ad litem in child abuse and neglect cases.

4. Reduced courthouse hours or courthouse closures altogether for one or more days a month.

5. Judicial staff layoffs.

6. Increased backlogs in processing cases generally and reduced levels of services across the board.

Among the responses to the decline in funding and increase in workload reported in my state and others have been the following:

1. In Kansas, funding decreases would have resulted in a decrease in judicial salaries in violation of the state’s constitution. The Kansas Supreme Court mandated a court fee increase so as to keep the Constitution from being violated.

2. Efforts to increase collections of unpaid court costs. In our state, we are just starting a project that we hope will result in intercepting state income tax refunds to taxpayers who have unpaid court costs. The national Conference of Chief Justices is seeking congressional authority to intercept federal income tax refunds to taxpayers who have unpaid state court costs.

3. Courts are being consolidated to increase efficiencies.

4. Court jurisdiction and venue requirements are being altered to increase efficiencies.

5. Courts are exercising more flexibility in managing resources.

6. There are many examples of increasing standardization of financial, clerical, and administrative functions.

7. Technology is being exploited to increase efficiencies, e.g., video arraignments, etc.

I guess the thing that I would like to say is that as difficult as things are and appear that they will continue to be, these challenges present us with some opportunities as well. They force us to reevaluate the way we do business in a way we wouldn’t ordinarily have to, don’t they?

A leading trial judge in our state tells me that the recession has forced her and the five other judges in her county to work together in ways that would be inconceivable but for the condition of the economy. Indeed, they have engaged the National Center for State Courts to advise them on ways to improve their operations.

A strategic planning committee led by Indiana trial court judges has gone so far as to produce an ambitious strategic plan called “A New Way Forward” calling for a much more unified state court system funded entirely from the state, new judicial districts to allocate workload better, and a shifting of staff who handle court case files from the offices of elected clerks to the offices of the courts themselves. This effort might well have occurred even in better economic times, but the current state of affairs gave it a much greater urgency and political impetus.

There are huge opportunities to use technology to eliminate manual data entry both by courts and by law enforcement, state agencies, and others who need and use court information. This has been a particular area of interest to me, and I could tell you some very interesting things about how we now have hundreds of thousands of traffic cases being filed, processed, and disposed of in Indiana courts without ever being touched by a single court employee or judge.

Foreclosure cases are a particularly interesting example. We have always had to deal with them, but never in this volume or with this degree of public scrutiny, right? The heightened emphasis on proper documentation has been a positive consequence of the crisis that will continue even when things get better. Indeed, in our state, the focus on foreclosure has resulted in a published set of best practices for foreclosure cases generally, starting with the contents of complaints.

I predict that because the recession requires us to cooperate as never before, automate as never before, and develop best practices as never before, the ultimate result of our current financial crisis is that courts will be stronger in the end and thereby more responsive to the people who use them.

I am anxious to hear what you think.

Justice Frank Sullivan, Jr.

Sullivan has been active in the Court’s administrative work where he chairs its multi-million dollar project to equip all Indiana courts modern technology to manage their caseloads and exchange data with law enforcement, state agencies, and others who need and use court in-formation.

Sullivan has also been deeply involved in bench, bar, and legal education activities. He is the immediate past chair of the ABA Appellate Judges Conference and current chair of the Ap-pellate Judges Education Institute. He co-chaired from 2002 through 2005 the ABA’s Judicial Clerkship Program that encourages minority law students to seek judicial clerkships. He is the recipient of several awards for advancing opportunities for minority lawyers in the legal profes-sion.

Prior to his appointment to the Court, Sullivan served as State Budget Director (1989-1992) and Executive Assistant for Fiscal Policy to Governor Bayh (1993) during which time he directed the preparation of the Bayh administration’s budget proposals and oversaw implementa-tion of state budgets passed by the Legislature. Prior to state service, he practiced corporate finance and securities law in the Indianapolis office of Barnes & Thornburg, Indiana’s largest law firm. Sullivan served on the staff of former U.S. Rep. John Brademas from 1974 to 1979, ultimately assuming the position of administrative assistant and staff director.

Sullivan is a member of the American Law Institute and is an adviser to its “Restatement Third, Torts: Economic Torts and Related Wrongs” project. He is also a member of the Board of Directors of the American Ditchley Foundation, New York City and Oxfordshire, England. He has served as a member of the Valparaiso University School of Law National Council and of the Board of Visitors of the Indiana University Maurer School of Law–Bloomington. He has also served as an Adjunct Professor of Law at the Indiana University School of Law–Indianapolis.

Sullivan graduated from Dartmouth College (A.B., cum laude, 1972) and the Indiana University Maurer School of Law—Bloomington (J.D., magna cum laude, 1982; Order of the Coif). He also holds an LL.M. from the University of Virginia School of Law (2001). He is married to Cheryl G. Sullivan; they are the parents of three sons. An avid runner, Sullivan has twice competed in the Boston Marathon.