Shepard's Legacy State of Judiciary

Chief Justice Randall Shepard


Sandie Love

The Statehouse File


Justice Randall Shepard

gave his final State

of the Judiciary

speech Wednesday, highlighting the court's most recent

achievements and recognizing colleagues that brought him near tears.

The beginning of Shepard's speech refers to the courts of

Indiana as once being like a "collection of Lone Rangers" and

shifting to "a group of colleagues with a common purpose."

He strengthened his argument talking about how the

unification among the courts has helped the people of Indiana by allowing them

to focus more on providing assistance to needy families and neglected children.

"The Daniels administration and the legislature gave

the judiciary the resources to recruit, place and support an army of volunteers

who speak for children," Shepard said.

Not only has the court succeeded in finding ways to support

those in need, but it also created a more efficient criminal

justice system

, giving judges more options on how to punish offenders of

Indiana laws, Shepard said.

He cited statistics about Indiana's 49 certified drug

courts, 56 court-based drug and alcohol programs and delinquency projects run

jointly with schools and the social work community.

He said other court programs have helped homeowners deal

with foreclosures.

"We have now deployed that new package of practices in

the 20 counties that represent two-thirds of the foreclosures, including all 10

of the hardest hit," Shepard said. "It turns out that these new

processes multiply the chance that a homeowner might achieve a successful

workout by six times."

At the end of his speech, Shepard says that delivering his "final

report standing in this place where so many valuable measures in support of a

fairer society have found success is simply uplifting."

TheStatehouseFile is powered byFranklin College journalism

students and faculty.


is a complete transcript of Shepard's remarks courtesy of the Indiana Supreme



the Way to Something Better"

Chief Justice Randall T. Shepard

January 11, 2012

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 public or private

life is actually static. These annual snapshots always reflect a journey

from where we used to be, towards something new and better.

I'm always mindful that the Constitution calls on me to

report on the state of the whole judiciary, all 400 of Indiana's courts, a report

on the larger enterprise that is moving from yesterday to tomorrow.

The yesterday of Indiana's courts lasted largely unchanged

over decades. As in many other states, our courts were a collection of

silos that rarely connected. There were few agreed ways of conducting

business, or assigning the disputes people brought, or managing those disputes

to a speedy finish. For much of our history, rules and practices varied

so much from one courtroom to the next that even lawyers, and certainly citizens,

could rightly think they were crossing the state line when they simply went

over to the county next door.

That began to change about a generation ago, and over time

Indiana's courts have become less like a collection of Lone Rangers and more

like a group of colleagues with a common purpose. The legislature created

unified courts in the state's urban areas, and it began to support

collaboration between judges through the Judicial Conference of Indiana, the

Judicial Center, and the Division of State Court Administration.

The movement towards collaboration was visible in 2011 when

the General Assembly created three more unified courts in Henry County, Clark

County, and Madison County, at the request of judges and county officials who

had reached the conclusion that they could be more effective by working

together more closely. And at your prompting, the Judicial Conference

adopted rules to consolidate probation departments in those few places that

were still operating as though criminal justice could succeed in a series of



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

the lives of people. You can see that in fields like families and

children and domestic violence. A generation ago, courts heard those

disputes about the same way we heard cases on property ownership or breach of

contract. The techniques had not grown alongside the size of the


That has changed dramatically. Indiana's ability to

care for abused or neglected children, for example, is light years ahead of

where it was just 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. And the General Assembly has taken the expense of

protecting those children off the backs of property taxpayers.

As for the judicial branch, when children went to court in

the old days, too often no one really spoke for them because the parents were

so focused on their own conflict. Today, Indiana's courts have people who

speak just for the best interests of the child—sometimes lawyers, but

more often volunteer Court-Appointed Special Advocates, CASAs for short.

The Daniels Administration and the legislature gave the judiciary the resources

to recruit, place, and support an army of volunteers who speak for children.

Indiana now 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, we

now offer family mediation, something that didn't exist two decades ago.

Judge Tom Felts of Fort Wayne first launched this initiative, and you

authorized us to use this approach statewide, and we now employ it in 33


In the cases involving the worst threats, we have more tools

than ever for combating domestic violence. In 2002, you made valuable

changes to the statutes on domestic violence protection orders, but when a

court issued an order, only paper copies existed, making it tougher for the

police to enforce them. Not anymore. Thanks to the Judicial

Technology and Automation Committee, when a judge issues an order we send it

immediately and electronically to law enforcement. JTAC has also enabled

local victim advocates like women's shelters to have direct access to the

Protective Order Registry, and 71 victim advocates do that in 61 counties.

This time last year I told you we were on our way to being

able to send text or email notices to victims when a protective order is

actually served on the abuser, a particularly dangerous moment. JTAC

completed that work and last year we sent notices to 9300 victims. These

improvements literally save lives.


Effective Criminal Justice

This same seriousness of purpose is the story in criminal

justice. When I was a trial judge, judges mostly had two sentencing

options: prison and probation. In the intervening 25 years,

governors and legislators and prosecutors and defense lawyers and judges have

wrestled continually with the twin challenges of exploding prison populations

and persistent recidivism.

State and local ingenuity have produced a different

world: 49 certified drug courts, highly professional probation

departments with the time and tools to monitor felons who number in the tens of

thousands, 56 court drug and alcohol programs, the first veterans courts,

delinquency projects run jointly with school corporations and the social work

community, 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.

There is deep interest at the local level in finding more

effective approaches, even under existing law. In May, the Department of

Correction and the judiciary invited people in the criminal justice community

to a statewide summit on evidence-based sentencing, and 775 people came:

prosecutors and judges, defense lawyers, community corrections and probation

officers, and school corporation staff. It was clear to me that the

spirit of reform was alive and well at the local level.

This spirit is vividly illustrated by a project on

evidence-based strategies under way in Grant County, led by Judge Mark Spitzer

and Prosecutor James Luttrull, that the U.S. Department of Justice plans to use

as a national guide.


and Healthy Commerce

Among the heart-warming aspects of stories written in the

last few weeks has been commentary on the fact that Indiana's courts are not a

barrier to economic development. You could all name states where

businesses shy away because of the litigation climate.

One way the legal system can be a barrier has to do with

sheer complexity, but this state sometimes strikes important blows for simplicity.

On a basic matter like deciding what evidence is admissible in court, for 175

years Indiana employed a system derived from the ancient common law, using

appellate court opinions to specify how to submit evidence—how to

establish that a document is genuine, what is hearsay and what is not.

People confronted with these issues had to search thousands of pages of

opinions for guidance. When they were lucky, they found an appellate

opinion giving the answer. If they were not so lucky, they would find two

opinions giving different answers.

We've now replaced those millions of words with the Indiana

Rules of Evidence, just 24 pages covering everything from the definition of

hearsay to when you need the original of a document and when a copy will suffice.

There are still debates in the course of a trial about what

is admissible, but at least everybody now sings from the same page.

Lawyers and judges can know which rule applies and spend their energies

exploring how to apply the rule to a particular situation. Citizens who

find themselves in court without a lawyer can use this relatively simple


Calling such a reform "modernization" passes over

what it does for holding down the cost of litigation and improving 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? I suggest that the work we've

done together on mortgage foreclosure proves up 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, if that's possible. The judiciary has

been working to focus all these techniques in the place where it really

matters, the courthouses. We have now deployed that new package of

practices in the 20 counties that represent two-thirds of the foreclosures,

including all 10 of the counties hardest hit. It turns out that these new

processes multiply the chance that a homeowner might achieve a successful

workout by six times!

This is important for homeowners, but not for homeowners

alone. After all, a functioning real estate market is part of what a

healthy economy needs. One of the case managers who you've helped us put

in place recently wrote in praise of the many mortgage company lawyers who, she

said, view this effort as a win-win opportunity.


Better Legal Profession

That leads me to tell you about changes in our legal

profession that ought to be a source of pride. 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, there was a development that reflected that same

spirit. As a result of the Judicial Conference's strategic planning,

judges proposed that judges should have an even higher requirement than

practising 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 David is playing a leading role;

  • created

    with your help, the Indiana Conference on Legal Education Opportunity and

    doubled the number of minority lawyers.


This Quality Work?

While most of what I've said applies to the whole judiciary,

I do want to say a few words about the appellate courts. I could talk

record numbers, but I'd rather talk about quality. One way to measure

quality is whether the decisions issued in Indiana get relied on by lawyers and

judges in other states.

There was a time when Indiana stood near the top of the

state courts to which lawyers, scholars, and other judges looked for answers to

the legal problems of the day. A study in 1912 examined how often state

courts cited each other, and Indiana was the fifth, following only New York,

Massachusetts, Illinois, and California. A similar exercise in 1920

showed Indiana ranked eighth. A study in 1936 concluded that Indiana

ranked fifteenth. By 1975, a study of the reputation of state supreme

courts placed Indiana twenty-fifth. Only Missouri and Texas had fallen


That's not the way it is today. Chief Judge 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. And a national sentencing

expert recently said to me that Justice Dickson's opinion on the use of risk

assessment tools in criminal sentencing was the best piece of work anywhere in

the country. At a recent national conference the Chief Justice of Nevada

said to me, "We were so grateful for Justice 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.


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 indeed. We are so well served by

people like:

  • Lilly

    Judson, State Court Administration, who has just finished holding the

    highest office in court administration in America as a leader of the

    National Center for State Courts, and Judge Mike Witte, now director of

    the Supreme Court Disciplinary Commission, who just finished a term

    leading all the nation's judges in the American Bar Association.

  • Justice

    Frank Sullivan breathed new life into the cause of 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

    with its "Transformation Award."

  • 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.

  • And

    Justice Robert Rucker, who chairs the Judicial Council of the National Bar

    Association 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.


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 ("aiming

higher," as a friend said), 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.

  • Forty-four

    new law enforcement agencies began using JTAC's electronic citation

    system, bringing the total to more than 250, from the State Police to the

    St. Joseph County Sheriff's Department. Last year more than 1.3

    million tickets were issued using JTAC technology.

  • 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 general public understand their courts and their


  • The

    Public Defender Commission added yet another large county, Delaware, to

    its network of upgraded local public defender services, and national

    experts on indigent defense have been writing about Indiana.

  • Judge

    Diane Schneider of Lake County and others launched ground-breaking work on

    guardianships for those seniors who have no family to look after their


  • And

    Judge Schneider spoke on our behalf in urging your adoption of the new

    Uniform Guardianship Act, just in time for the tidal wave of retiring baby



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.

And that is the state of your judiciary.


Recommended for you