Speculation swirls around next Indiana chief justice

December 8, 2011

Speculation suggests that Indiana's newest Supreme Court's justice is a likely possibility to serve as the next chief justice, one day after longtime Chief Justice Randall T. Shepard announced his retirement.
But before he could serve the five-year term, 54-year-old Justice Steven David must survive a 2012 retention vote that could be clouded by the controversy over a ruling he wrote that denied residents' right to resist illegal entry by police.

Some legal experts turned their attention to David, a former military lawyer who once served as chief defense counsel for Guantanamo Bay detainees, on Thursday, the day after the 64-year-old Shepard announced he would leave the court in March.

"Justice David strikes me as the most likely current member of the court to become chief justice," said Joel Schumm, a professor at the Indiana University Robert H. McKinney School of Law in Indianapolis. "He's been very engaged with the community, bench, and bar. Not every justice would want to take on the added responsibility, much of it ceremonial."

"I would think Steve would be a logical choice," said former Justice Theodore Boehm, whom David was appointed to replace last year, though he said he had no inside information.

Attorney and blogger Marcia J. Oddi also wrote on her popular Indiana Law Blog that David was the most likely next chief justice, in part because four of the seven members of the commission that will select the chief justice were appointed by Republican governors. Besides Shepard, who is leaving, only David and Justice Brent Dickson were appointed by Republicans. Dickson will turn 75 and be forced to retire before he could complete a five-year term as chief justice, she wrote.

David also is the youngest justice on the court, which could appeal to officials looking to replace Shepard, who was 40 when he became chief justice and has served nearly 25 years.

David, who earned his law degree from IU School of Law in Indianapolis, has solid legal credentials. A longtime military lawyer and U.S. Army colonel, he also served for several years as a circuit judge in Boone County just north of Indianapolis.

Supreme Court spokeswoman Kathryn Dolan said it would be inappropriate to speculate on who might be the next chief justice. She said David was ill Thursday and unable to comment.

Schumm said David was known for writing strong opinions for a mostly unanimous court. He said, however, that it was hard to characterize those opinions as liberal or conservative.

One opinion written by David in May generated a Statehouse protest and a flood of critical emails and phone calls to the court. When the court ruled 3-2 that people have no right to resist if police officers illegally enter their home.

Seventy-one legislators and the state's attorney general asked the court to rehear the case, which involved an Evansville man named Richard Barnes who was convicted of resisting law enforcement for shoving a police officer who tried to enter his home after he told the officer he could not enter. The court later upheld its own ruling 4-1, but said the ruling was not intended to gut Fourth Amendment protections against unreasonable search and seizure.

In response to the ruling, a General Assembly study committee proposed legislation that would allow homeowners to use force to prevent police from entering their homes in a handful of instances.

The flap over the ruling led to criticism of David, who wrote it, and calls on Facebook to oust him when he faces a retention vote in 2012.

"When I heard the announcement yesterday I thought I hope this guy's not in line with it ... I think he's shown an immense lack of judgment in that ruling. It's an outrage for those who are paying attention," said Greg Fettig of the tea party group America Refocused.

But Schumm said he believed the controversy had largely passed.

"I have the sense many people have "moved on" from the Barnes ruling," he said. "The Legislature will debate and likely pass a modest statutory amendment next year clarifying the right of individuals to resist unlawful entry by police.

"I don't see this issue garnering the out-of-state money and sustained public ire that the same-sex marriage ruling in Iowa did in 2010. All three justices up for retention there lost."


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