The Hon. Randall T. Shepard: Some Core Judiciary Concerns

Friday, February 1, 2008 - 01:00

The Editor interviews The Hon. Randall T. Shepard, Chief Justice, Indiana Supreme Court.

Editor’s Note: In June of 2005, the leadership of DRI-The Voice of the Defense Bar formed a task force, chaired by John Trimble, to investigate issues facing the judiciary across America. The task force determined that the most readily identifiable areas of concern for the judiciary were 1) adequacy of judicial salaries, 2) adequacy of court funding, 3) court security, 4) unjust criticism of judicial opinions, and 5) judicial selection. These five topics were the focus of the work of the task force.

In this interview, Chief Justice Shepard provides his insights with respect to some of the topics covered by the Task Force in its report entitled “Without Fear or Favor.”

Editor: Why did you decide to devote most of yourlife to being a judge?

Shepard: I have been both a trial judge and an appellate judge. Eachrole is rewarding in its own way. As a trial judge, you have the chance to seeindividual litigants in person, to hear what they have to say, and at firsthand to feel the importance of the matters that they bring to court. Mostsatisfying were the moments when you were able to rectify some malfunction orliterally to right a wrong. It didn’t happen every day, but it gave you thesense that you were putting your life to a good purpose.

As chief justice, the rewards are quitedifferent. The Supreme Court can effect systemic change across a rather largecourt system in a way that provides our trial judges with more such moments. Inits appellate role, the Supreme Court can shape the evolving law of modernlegal issues.  It works hard to help ourtrial court colleagues in their work and put them in a position to offer abetter quality of justice to the 6.3 million people in our state.

Editor: Howdoes inadequate funding for the courts affect the cost and outcome of litigation?

Shepard: America’s trialjudges are the heroes of its justice system. They labor with very limitedresources and do a remarkably good job with what they are given. The problem ofadjusting the demands placed on judges to the available resources has the sameresult as it does in the private sector -- it puts pressure on quality.

In federal and state appellate courts, the problem of carrying a greatercase load in the absence of a corresponding increase in the number of judgesand expansion in court facilities has the effect of altering the amount ofjudicial thinking time that is applied to each case.

If you read descriptions of how federal courts handle what is called thenon-argument docket, what you see is that the relative balance between judgeand clerk and judge and staff attorney thinking shifts away from the judge andtoward the clerk or the staff attorney. The same phenomenon happens in statecourts as well. It poses very serious questions for just who is making the decision.The judges sign their names, but inevitably it shifts the balance between howmuch judge thinking time and how much law clerk or staff attorney thinking timegoes into those decisions.

Editor: Doyou find that legislatures and the public are sensitive to the need foradequate resources?

Shepard: Thelegislative response to the need for resources rises and falls understandably dependingupon the health of public budgets. In the main, the Indiana General Assemblyhas been quite responsive to the needs of the courts. I think judges and thebar have to explain both to Congress and to state legislative bodies just howresources affect our work.

For one thing, we are a tiny sliver of anybody’s budget – no more than twopercent at most in any state or in the federal system. The declining number oflawyers in legislative bodies is a particular challenge because a higherpercentage of the decision makers are people who are not involved with the courtson a regular basis.

Editor: It issometimes said that in many courts the judge is not making as much as a younglawyer at a larger law firm fresh out of law school who has not yet passed thebar exam. Does this pose a threat to getting a proper hearing before someonewho has a desire and capacity to probe into complex legal issues and to movecases along?

Shepard: Yes,for two principal reasons. Lagging judicial salaries affect who ends up as ajudge. The paradigm used to be that people went to the bench after a career inprivate practice. That is a lot less common today because people in privatepractice simply can’t justify taking the pay cut. You end up with a higherpercentage of people who come to the bench from other public sector employment.The number of people on the bench who have law firm, corporate counsel oracademic experience has been shrinking. My view is that the judiciary worksbest when you get people who have come to the bench from a variety of pastcareer experiences. The present trend is not a healthy one.

The second reason is the effect on the morale of the corps. People come tothe bench knowing what the salary is but, unlike in private practice or incorporations, they continually fall behind. They start out thinking the salaryis X and then they discover there is no such thing as a regular cost-of-livingadjustment and that 10 years later they are actually earning less than theywere when they walked in the door. This leads them to worry about how they aregoing to meet college tuition and other rising expenses and continuing tojustify this to their spouse. This is very wearing on the psyche.

It’s hard to describe how these pressures translate into legal outcomes, butit can’t be favorable. Judges don’t like to be perceived as whining. They arevery cautious who they talk to about it. But, when they talk to each other itis quite plain that low morale is bad for litigants.

Editor: Tellus about what happened in Indianaas a result of improved judicial compensation?

Shepard: Atone point, Indianajudicial pay was ranked as the 54th highest among American-flagjurisdictions, actually behind some of the territories. Habitually judicialsalaries fell below the consumer price index in terms of adjustments from yearto year.

In 2005, our legislature created a new pay scheme with a large pay raisemaking up for lost time. It also put in place a very favorable mechanism forkeeping pace in the future. There was a noticeable improvement in the attitudeof our 500 judges about their work. One of our judges said, “I always felt thatI was part of a group with kind of a cloud over its head, the cloud is liftedand I am ready to roll.”

The U.S. Chamber rightly feels that having a good court system that assuresthe rule of law will attract business to locate in a state. I can tell you ourgovernor understands it in a heartbeat. Governor Mitch Daniels who came out ofEli Lily is completely convinced. And, he’s usually there when I say here’s animprovement we need to make. From a business location standpoint, we are oneveryone’s short list with respect to the quality of our judges and courts.

As a result of the improvements brought about by Governor Daniels and ourlegislature, Indianaranks very favorably in the Chamber’s annual assessment of state court systems.We tend to be in the single digits, somewhere between sixth and ninth. We were 8thin the 2007 survey. I don’t think I’d want us to be first. If you are first inthe Chamber’s ranking it might suggest that your court system didn’t takesufficient account of the real-life risks to consumers and fairly litigate the consequencesof those risks.

Editor:Another DRI Task Force proposal was to make merit a more important part of theprocess of selecting judges.

Shepard: The debate about how Americashould choose judges is as old as the country itself. The variety of ways inwhich judges are chosen I think can be placed along a continuum from relativelypartisan to relatively apolitical. I think it is possible to assert that youget better judges with relatively less partisan approaches like the Missouri plan. They produceoutcomes which lead to greater public confidence in the judiciary and in itsneutrality.

The Missouri plan, devised there some 60 years ago, provides for anominating commission of both lawyers and non-lawyers that screens applicantsand then provides the governor of state with a short list of applicants,typically three, whom it believes are the best prospects from among those whohave applied. The governor is obliged to choose an appointee from that list,the appointee takes office, and thereafter on some periodic basis, usually inthe range of eight to 12 years, the public is asked through referendum todecide whether this judge should be retained in office. The plan embodies acombination of features both merit-based and democratic that supplies a kind ofstability to the judiciary that is very helpful. About thirty states use somevariant of this approach for selecting judges in at least some of their courts,recognizing that most states use more than one way of picking judges.

Editor: The roleof judges may be overshadowed by the “noise” of sensational media coverage. Whatsteps can be taken to create a more positive image of the judiciary?

Shepard: Sensational coverage tends to leave the impression that the country’s courtsare just another form of drama rather than the critical institutions that theyare. Courts need to recognize that these big moments -- trials or decisionswill attract huge attention -- and then to undertake their own efforts toencourage a more balanced reaction on the part of the public.

In Bush v. Gore, the FloridaSupreme Court and the Floridacourts did a superb job at helping the press and the public understand thatcase whether you agreed or disagreed with the outcome and helping peopleunderstand that litigation as it moved forward. The Florida press officer came out and reportedseveral times a day saying, “Here’s what’s happening in what court and here’swhat will likely happen next.” By contrast, the U.S. Supreme Court’s decisionwas issued at 10 o’clock at night, with copies being handed out to reportersstanding on the steps of the U.S. Supreme Court. That court is now movingtoward a more open approach. I use Florida’sapproach as a dramatic example of what can be done by the courts to helpameliorate the effects of the sort of coverage that flows from big news cases.

One of the things counsel do that we can’t do is help shape the expectationof clients and help clients to understand what the court is doing and why. Those confidential momentswhen the lawyer and client are working through how the lawyer intends toproceed and what the court proceeding is going to be like are very important. Ithink clarity and candor and thoughtfulness in those millions of discussionseach year are moments when lawyers can explain how the judicial process worksand help clients come to terms with the outcome.

Editor: Whyis it important to rebut criticism that judges are not accountable? Whatmessage needs to be sent to the public?

Shepard: What we ought to ask our fellow citizens to think about is to whom or to whatdo we want judges accountable? I think we want them accountable to the law,accountable to the Constitution, accountable for a fair and impartialresolution. People need to understand that a judge’s job is to be accountableto the law in the broad sense, the law being the collection of decisions oursociety has made about how we want our relationships ordered.

Editor: How dolarge political contributions to judicial elections affect public thinkingabout the judiciary?

Shepard: The effect of multi-million dollar judicial races has largely been a standoff.The contending sides match each other pretty much dollar for dollar. In only afew instances have they changed the plaintiff-defendant balance in stateappellate courts. The public is left with the impression that judges are justanother group of political animals.

Editor: Whatdo the ethical rules say about campaign promises by judges?

Shepard: About four years ago, the Supreme Court decided Republican Party of Minnesota v. White striking down in afive-to-four vote a piece of the Model Code of Judicial Conduct that only a fewstates had adopted. It was a provision that urged a judge not to engage inpublic discourse on disputed issues of policy. The court said that canon ofethics violated the First Amendment.

More recently, what has been at stake are other parts of the Code of Conductincluding what is called the pledges and promises clause. It says that acandidate for judge shall not make pledges or promises with respect to cases,issues or parties. Another section says judges shall not engage in thesolicitation of campaign contributions. The Eighth Circuit on remand from the White case likewise invalidated both ofthese.

Fortunately, after that not many courts have followed the Eighth Circuit.And recently, in 2007 the attacks on these canons mostly have failed. Thejudicial disciplinary bodies who were the defendants in these cases mostly won.The heart of that issue is the right to due process. If a judge who is acandidate makes a campaign promise about how he or she will decide a givenissue it is hard to see how a litigant appearing in his or her court will beafforded due process if his or her case is decided not on the basis of law andevidence but on the basis of a campaign promise. This is a point that theConference of Chief Justices and the American Bar Association have both beenmaking and lately they have been winning.