Indiana Law Review


Indiana haw Revieir
Volume 24 1991 Number 3

SURVEY

Foreword

Indiana Law, the Supreme Court, and a New Decade

Chief Justice Randall T. Shepard*

Some of Indiana's finest practitioners and professors have
contributed to this volume about the progress of Indiana law

over the period June 1989 to October 1990. My colleagues have
analyzed particular fields of substantive law in which they are

expert. The editors have invited me to introduce this survey of
the change in Indiana law which this period represents. I do so

by highlighting some themes in the Indiana Supreme Court's
jurisprudence and by describing the initiatives the court has

launched in its role as leader of the state's legal system.

As the Indiana Supreme Court moves into a new decade, it is fitting
to begin by assessing the institution's recent progress. Sometimes progress

is well illustrated by tables and graphs. Other times it is better described

by anecdote. During the 1987-88 campaign for Proposition Two, a
proposal to amend the Indiana Constitution so as to provide the supreme
court with greater control over its docket, I gave hundreds of speeches

explaining the amendment and urging its adoption. • At the conclusion
of one of those speeches, a lawyer approached me and said he supported
the change because it would permit the supreme court to write more

* Chief Justice of Indiana. A.B., Princeton University, 1969; J.D., Yale Uni-

versity, 1972.

1. The origins of this proposal and the case for its adoption were described in

Shepard, Changing the Constitutional Jurisdiction of the Indiana Supreme Court: Letting

a Court of Last Resort Act Like One, 63 Ind. L.J. 669 (1988).



500 INDIANA LAW REVIEW [Vol. 24:499

civil law by shifting initial review of most criminal matters to the Indiana

Court of Appeals. **Candidly," he said, **since I don't practice criminal

law, I read your part of the advance sheets with my thumb." By contrast,
at the October 1990 meeting of the Indiana State Bar Association, a

prominent young bar leader said to me: "I used to read the advance

sheets by subject matter. Now I look first to see what the supreme court
has done." That was as sure a sign as any graph could provide that

Indiana's highest court had turned over a new leaf.
Most who supported Proposition Two did so because they thought

it was important to bring the Indiana Supreme Court back into civil

law. For the ten years before Proposition Two was adopted, the court
accepted review on an average of just twenty civil transfer cases a year.
One year, it issued only seven opinions on civil transfer.^ Everyone
expected that the number of civil cases heard on the merits in the
supreme court would rise when the Indiana Court of Appeals took over
the job of reviewing all criminal appeals in which the sentence imposed

was fifty years or less.

What was not so obvious in the discussion over Proposition Two
was that the old constitutional mandate that the supreme court review

the merits of every case involving a sentence of more than ten years
also placed pressure on the nonadjudicatory aspects of the court's work.

These duties are a substantial part of the supreme court's charge. The

court oversees a judicial structure that includes some 300 judges and
magistrates and nearly 3000 court employees working in more than 100

locations. It also supervises admission of new lawyers and regulates the
practice of law by the Indiana bar, currently numbering some 12,000
lawyers.^ The court's supervisory functions suffered from inadequate
attention during the past decade just as its civil jurisprudence had

suffered."^

This foreword to the Indiana Law Review's annual survey summarizes
the respect in which 1990 was a turning point both in the court's civil

2. See infra note 7.

3. The Clerk of the Indiana Supreme and Appellate Courts informs me that as
of November 1, 1990, there were 11,779 lawyers engaged in active practice. Another 2875
inactive lawyers were on our rolls. Thus, there were actually a total of 14,654 lawyers

on the roll of attorneys.

4. The supreme court's criminal jurisprudence was also affected by the pressure

of this mandatory caseload. The pressure of high volume sometimes led to erratic precedent.

Compare Phillips v. State, 492 N.E.2d 10 (Ind. 1986) (to establish admissibility of statement
made after accused has invoked right to remain silent during custodial interrogation, state
must show that accused later initiated dialogue and knowingly waived previously invoked

right to remain silent) with Moore v. State, 498 N.E.2d 1 (Ind. 1986) (setting aside Phillips
less than six weeks later, holding that showing that dialogue was initiated by the accused

not necessary).



1991] FOREWORD 501

jurisprudence and its nonadjudicatory roles. To describe the new juris-
prudence, I have chosen four topics on a rather subjective basis: the

march of the common law, use of the state constitution, protection of
the environment, and postconviction relief. As for our role as leaders
and supervisors of the courts and the profession, I describe what I

believe are initiatives that set the Indiana judiciary on a strong course

for the new decade. These include an increasing number of oral ar-
guments, major rule reform, reforms affecting legal education, stan-

dardization of trial court records, and a better program on judicial

ethics.

I. Some Thoughts on our Case Law^

The adoption of Proposition Two gave the Indiana Supreme Court
the authority to shift initial review of criminal cases with sentences of

fifty years or less to the court of appeals. The court exercised this

authority within a week of the 1988 election, effective for cases docketed

after January 1, 1989.^ Even though there was a substantial backlog of

pre-Proposition Two direct criminal appeals still to be reviewed, the
court immediately increased the number of civil transfer cases it heard.

^

The court decided forty of those on the merits in 1989, a new record.
That record lasted only one year. In 1990, the court decided fifty-one

civil transfer cases.

^

5. See Indiana Supreme Court Order of November 14, 1988 (amending Ind. App.

R. 4 ), reprinted in 528-29 N.E.2d XLI (Ind. cases ed.).
6. The fact that the Indiana Supreme Court had better docket control was noticed

by our federal colleagues. It prompted discussion in the Seventh Circuit about greater

use of the technique of certified questions. Wright-Moore Corp. v. Ricoh Corp., 908 F.2d

128, 142 (7th Cir. 1990) (Ripple, J., dissenting). It also prompted the judges of the U.S.

District Court for the Northern District of Indiana to suggest the possibility of extending

the certified question procedure to the district court.

7. The shift in the court's docket is reflected by the following table:

Total Direct Criminal Civil Transfer

Year Opinions Appeal Opinions (%) Opinions (%)

1990 206 141 (68%) 51 (25%)

1989 346 286 (83<yo) 40 (12%)

1988 306 268 (88%) 23 (8%)

1987 363 312 (86%) 32 (9%)

1986 445 395 (89%) 21 (5%)

1985 330 291 (88%) 22 (7%)

1984 327 280 (86%) 19 (6%)

1983 323 281 (87%) 24 (7%)

1982 334 285 (85%) 23 (7%)

1981 304 246 (81%) 38 (13%)
1980 270 226 (84%) 21 (8%)



502 INDIANA LAW REVIEW [Vol. 24:499

With more control over its docket, the court is now able to select
the cases that deserve attention — both civil and criminal. I describe
below several areas that captured the court's attention in both civil and

criminal law.

A. **The March of Indiana Common Law**^

In an age when Congress and many state legislatures meet nearly
year-round every year, it is easy to forget that a great deal of the law

important to the lives of individuals is still common law.^ Even though
the Indiana Code has grown to more than 12,000 pages, subjects like
torts, contracts, landlord/tenant, and employment are still governed

substantially by common law. Indiana's courts, especially the supreme
court, act on these subjects just as common law courts have done for
four or five hundred years. New problems and new formulations of old
problems regularly present themselves in the nearly 1.5 million new
lawsuits filed each year in Indiana's courts. *°

There was a time when Indiana's supreme court commonly eschewed
considering new matters of common law. This tilt was not simply the
result of being inundated with criminal appeals; it was imbedded in the

court's definition of its proper role. The likehhood was that the court,

in hearing a matter on the merits, would say of existing common law:
"That is the current law. If you wish to change it, go to the legislature."^^

21 (8<7o)

21 (8%)

12 iJ^Q)

7 (4%)

This chart shows only direct criminal appeals and civil transfers as a percentage of all

our opinions. The remaining cases each year cover writs of mandate, criminal transfer

cases, and others.

8. Morgan Drive Away, Inc. v. Brant, 489 N.E.2d 933, 934 (Ind. 1986).
9. For one recent acknowledgment of the continuing role for the common law,

see G. Calabresi, A Common Law for the Age of Statutes (1982).
10. A total of 1,490,091 cases were filed in Indiana courts in 1989. 1 Division of

State Court Administration, 1989 Indiana Judicial Report 55.
11. E.g., Morgan Drive Away, 489 N.E.2d at 934 (changes in employment at will

doctrine ''better left to the legislature"); Hundt v. La Crosse Grain Co., 446 N.E.2d 327,
329 n.l (Ind. 1983) (change from contributory negligence doctrine to comparative neghgence

doctrine "a matter for legislative enactment rather than judicial adoption"); State v.

Ingram, 427 N.E.2d 444, 448 (Ind. 1981) ("Absent a clear mandate from the legislature

to require Indiana automobile riders to wear seat belts, we are not prepared to step into
the breach and judicially mandate such conduct."); Budkiewicz v. Elgin, Joliet & Eastern
Ry., 238 Ind. 535, 555, 150 N.E.2d 897, 907 (1958) (Achor, J., dissenting), overruled,

241 Ind. 463, 173 N.E.2d 314 (Ind. 1961) (laws regarding negligence liability of railroads

1979 262 210 (80%)

1978 275 234 (85»7o)

1977 164 138 (84%)

1976 165 137 (83%)



1991] FOREWORD 503

Of course, rejection of a new proposition of law is hardly an act of
neutrality. Whether the court rejects a new proposition of law or rejects
the idea of making law, it still decides in favor of the status quo.

During 1990, by contrast, the court flatly declared a willingness to

grapple with the merits of new propositions of common law. This
declaration occurred as we took up the proposal to recognize a new
cause of action in tort, a suit for loss of parental consortium, in the

case of Dearborn Fabricating & Engineering Corp. v. Wickham.^^ The
Indiana Court of Appeals had decided a comparable case on the grounds

that a proposed new cause of action should be taken to the legislature.'^
The supreme court expressly rejected this idea, stating: 'To the contrary,
we find the question of whether the common law should recognize a
child's action for loss of parental consortium to be entirely appropriate

for judicial determination. "'"^ Ultimately, the court held that accepting

the proposed new cause of action would not improve the state's tort
law.»5

Our court has recently addressed a number of areas of common
law. In Stropes v. Heritage House Childrens Center, for example, we
examined the doctrine of respondeat superior and its common carrier
exception.'^ In Klotz v. Horn,^'' we addressed riparian rights in deter-
mining whether an express grant of an easement to a lake included a

right to build a pier at the end of the easement. We examined Indiana's
rules of contract construction in First Federal Savings Bank of Indiana
V. Key Markets, Inc.^^ We also held that a settlement agreement in an
employment dispute can condition the terms of a relationship that would

otherwise be one of employment at will in Speckman v. City of Indi-
anapolis.^'^ We focused on the landlord-tenant relationship, specifically

"should be changed only by legislative enactment").

This approach was also applied to judicial interpretation of statutes. Compare Miller
V. Mayberry, 506 N.E.2d 7, 11 (Ind. 1987) (change in judicial interpretation of statute

must come from legislative change) with id. at 12 (Shepard, J., concurring in result)

("[JJudges should regard themselves as responsible for rules they have erected.").

12. 551 N.E.2d 1135 (Ind. 1990).

13. Barton-Malow Co. v. Wilburn, 547 N.E.2d 1123, 1126 (Ind. Ct. App. 1989)

("In Dearborn Fabricating & Engineering Corp. v. Wickham (1988), Ind. App., 532 N.E.2d
16, trans, pending, it was suggested that this Court need not defer to the legislature in

recognizing a cause of action for loss of parental consortium. However, if the action is

to be created, it is wiser to leave it to the legislative branch with its greater ability to

study and circumscribe the cause."), modified, 559 N.E.2d 600 (Ind. 1990).

14. Wickham, 551 N.E.2d at 1136.

15. Id. at 1139.

16. 547 N.E.2d 244 (Ind. 1989).

17. 558 N.E.2d 1096 (Ind. 1990).

18. 559 N.E.2d 600 (Ind. 1990).

19. 540 N.E.2d 1189 (Ind. 1989).



504 INDIANA LAW REVIEW [Vol. 24:499

whether a binding covenant to repair may be inferred from a landlord's
statement to a tenant at the inception of an oral lease, in Childress v.

Bowser.^^ We also examined the duty of landowners to protect business
invitees in two separate cases. ^*

In the midst of all this common law litigation, the Indiana Supreme
Court still has been quite clear about its duty to give full force and

effect to legislation modifying the common law. In the 1988 case Picadiily,
Inc. V. Colviriy^^ we held that the legislature's enactment of a remedy
for drunk driver dramshop liability claims had not occupied the field. ^^

In Koske v. Townsend Engineering Co.y^"^ we concluded that the legislature
intended to codify the entire law of products Uability, and we held that
a common law defense not mentioned did not survive the codification.

B. Yes, Indiana Has a State Constitution

A second turning point in the Indiana Supreme Court's jurisprudence
during the period was the court's use of the Indiana Constitution to

resolve issues that previously would have been resolved only by reference

to the United States Constitution. State courts across the country in-

creasingly have relied on their own constitutions for almost two decades,
but most commentators did not notice the movement until 1975 when
Justice William Brennan, dissenting from a Burger Court decision on

the constitutional rights of criminal defendants, urged state courts to

use their own constitutions to afford protections not available under the
federal charter. ^^

20. 546 N.E.2d 1221 (Ind. 1989).

21. Douglass V. Irvin, 549 N.E.2d 368 (Ind. 1990); Sowers v. Tri-County Tel. Co.,

546 N.E.2d 836 (Ind. 1989).

22. 519 N.E.2d 1217 (Ind. 1988).

23. The role of this statute in the scheme of common law dram shop liability
is analogous to the relation of motor vehicle driving offense statutes to the

common law duty of drivers to exercise reasonable care for the safety of others.
Rather than preempting the common law, such statutes designate certain minimal
duties but do not thereby relieve persons from otherwise exercising reasonable

care.

Id. at 1220.

24. 551 N.E.2d 437, 442 (Ind. 1990); see also FMC Corp. v. Brown, 551 N.E.2d
444 (Ind. 1990); Miller v. Todd, 551 N.E.2d 1139 (Ind. 1990).

25. Michigan v. Mosley, 423 U.S. 96, 120 (1975) (Brennan, J., dissenting). For a

more thorough discussion of the view that Brennan hardly started this movement but only
gave it visibility, see Shepard, State Constitutions: State Sovereignty, Intergovernmental

Perspective, Summer 1989, at 10. See also Falk, The Supreme Court of California, 1971-
1972: Foreword—The State Constitution: A More Than "Adequate" Nonfederal Ground,
Neglect and the Need for a Renaissance, 3 Val. U.L. Rev. 125 (1969); Linde, First Things
First: Rediscovering the States' Bills of Rights, 9 U. Balt. L. Rev. 379, 396 n.70 (1980)
(providing extensive bibliography).



1991] FOREWORD 505

Indiana lawyers have been accustomed, of course, to litigation based

on the Indiana Constitution when questions affecting the organization

of state government are at issue. A recent example of this important
but traditional role was State Election Board v. Bayh,^^ in which the

supreme court held that the leading contender for governor, the eventual

choice of the voters, was eligible for election as governor under the

residency requirements in the state constitution. Another example was

the court's affirmation of the constitutionality of a law designed to

rescue the township poor relief system in Lake County.^^ Yet another

was the court's invaUdation of a legislative act creating a program utilizing

interest on attorney trust accounts to finance legal services for the poor.^^

During 1989-90, the supreme court applied the Indiana Constitution

to issues quite different from government organization. The Indiana

Constitution played a vital role in resolving a major civil case, Kellogg

V. City of Gary.^^ In Kellogg, the court held that article I, section 32

had been violated when the Gary city administration refused to make
available applications for gun permits. This was a cause of action that

does not exist under the second amendment to the U.S. Constitution.
Cooper V. State^^ focused international attention on Indiana's judicial

system after Paula Cooper, who was fifteen years old when she murdered
elderly Ruth Pelke, was sentenced to death. The court vacated Cooper's

death sentence on two grounds. The principal basis for the decision was

the requirement in article I, section 16 of the Indiana Constitution that

criminal penalties be proportionate to the nature of the offense. In light

of the legislature's 1987 decision that persons under sixteen should not

be subject to the death penalty in the future,^' the court concluded it

would be disproportionate to make Paula Cooper the only person ever
executed in Indiana for an act committed at age fifteen. The second

ground for deciding the case, clearly declared to be separate and in-

dependent,^^ was the U.S. Supreme Court's decision that a similar Okla-

homa statute violated the eighth amendment."
Paula Cooper's case was not the only one supporting the idea that

the Indiana Constitution imposes certain limits on criminal sentencing.

26. 521 N.E.2d 1313 (Ind. 1988).

27. Lake County Council v. Allen, 524 N.E.2d 771 (Ind. 1989).

28. In re Public Law No. 154-1990 (H.E.A. 1044), 561 N.E.2d 791 (Ind. 1990).
29. 562 N.E.2d 685 (Ind. 1990).

30. 540 N.E.2d 1216 (Ind. 1989).

31. After Cooper was sentenced to death but before her appeal was decided, the

Indiana General Assembly passed a bill that prohibited imposition of the death penalty

on persons who committed murder at age 15 or younger. The bill was prospective and
did not purport to apply to Cooper's case. Id. at 1217.

32. Id.

33. Thompson v. Oklahoma, 487 U.S. 815 (1988).



506 INDIANA LAW REVIEW [Vol. 24:499

During 1990, that concept became more firmly imbedded in our case
law. The court restated its previous position that the U.S. Supreme

Court's interpretation of the eighth amendment, as appUed to lengthy

prison terms in Solem v. Helm,^"^ did not adequately address the rights

possessed by persons under article I, section 16 of the Indiana Consti-

tution.^^ The test under the Indiana Constitution was outlined four years

ago in Taylor v. State^^ and Mills v. State^^"^ which held that article I,

section 16 of the Indiana Constitution afforded greater protection to

individuals than the eighth amendment.

The supreme court applied the rule of Taylor and Mills again in
Michael Lee Clark v. State^^ when it set aside a thirty-two-year penalty
for driving while intoxicated on the grounds that it was not proportionate

to the offense and the offender. The court explained:

The fact that appellant's sentence falls within parameters affixed

by the legislature does not reheve this Court of the constitutional

duty to review the duration of appellant's sentence as it is possible

for the statute under which appellant is convicted to be con-

stitutional, and yet be unconstitutional as applied to appellant

in this particular instance.^^

Although the tradition of reluctance of appellate courts to alter a sentence

on appeal will continue, I think there is some willingness to consider
cases on the individual merits rather than to rule out all requests for

alteration. New recognition of the role of the Indiana Bill of Rights
has provided the foundation for this possibility.'^^

Independent adjudication under the Indiana Constitution presents

certain challenges to advocates. Although lawyers are accustomed to

state constitutional litigation on issues like separation of powers, they

34. 463 U.S. 277 (1983).

35. Cash V. State, 557 N.E.2d 1023 (Ind. 1990).

36. 511 N.E.2d 1036, 1039 (Ind. 1987) ("Our state Constitution mandates that the

penalty be proportioned to [the] 'nature' of the offense. . . . [T]he proportionality analysis

of a habitual offender penalty has two components. First, a reviewing court should judge

the 'nature' and gravity of the present felony. Second, the court should consider the

'nature' of the prior offenses.").

37. 512 N.E.2d 846 (Ind. 1987) (first factor in Taylor analysis is gravity of primary

offense, second factor is nature of earlier crimes).

38. 561 N.E.2d 759 (Ind. 1990).

39. Id., slip op. at 10. This expression makes explicit that which was implicit in

Taylor and Mills: a sentencing statute may be "constitutional as applied" under art. I,
§ 16 of the Indiana Constitution.

40. In the wake of Taylor and Mills, I predicted in this law review that some
future litigant would obtain relief. Shepard, Second Wind for the Indiana Bill of Rights,
22 Ind. L. Rev. 575, 583 (1989).



1991] FOREWORD 507

sometimes find it difficult to express state constitutional claims in ways

that do not simply parrot traditional federal grounds/' The court has

declined to consider Indiana Constitutional arguments when the advocate
cites a provision of the state constitution but fails to offer any independent

analysis /2

C. // Was the Twentieth Anniversary of Earth Day

Environmental law is another field where the supreme court has

exercised its new-found freedom to choose important cases. During 1989-

90, the court heard cases involving the protection of land, the improve-

ment of air quality, and the preservation of aquatic life, all in one

twelve-month period.

The leading environmental case of the year was Department of
Natural Resources v. Indiana Coal Council, Inc. ,'*^ in which a unanimous

court upheld the state's program of preserving archaeological heritage

from destruction during coal mining. The Department of Natural Re-

sources had designated for protection from strip-mining 6.57 acres of

potentially mineable land, known as the Beehunter Site and located on
a 300 acre farm that was rich in coal deposits. It indicated that the

landowner could either mine the contiguous land and leave the Beehunter

site intact or accept a mitigation plan under which experts would record

and preserve any archaeological material found on the site. The site's

owners contended that the Department's designation constituted a taking

under the fifth and fourteenth amendments to the U.S. Constitution,

but the court stated:

The regulations as applied to [the owner's] property through the

director's order and mitigation plan bear a substantial relation

to the legitimate state interest of preserving our cultural heritage

by protecting culturally significant data from strip mining. They

are, thus, a legitimate exercise of the State's police power and

since the economic impact of the regulations is slight, they do

not amount to an unconstitutional taking of [the owner's] prop-
erty.^

Air quality was at the heart of State v. CostaSy^^ in which former

state senator William Costas challenged regulations of the Indiana Air

Pollution Control Board requiring motor vehicle emission tests in two

northwest Indiana counties and two counties near Louisville."*^ The pro-

41. Indiana lawyers are not alone. See, e.g.. State v. Jewett, 146 Vt. 221, 223,

500 A.2d 233, 235 (1985).

42. See, e.g.. Light v. State, 547 N.E.2d 1073 (Ind. 1989); St. John v. State, 523

N.E.2d 1353 (Ind. 1988).

43. 542 N.E.2d 1000 (Ind. 1989), cert, denied, 110 S. Ct. 1130 (1990).

44. Id. at 1007.

45. 552 N.E.2d 459 (Ind. 1990).

46. Senator Costas was charged with a class C infraction for failing to have his



508 INDIANA LAW REVIEW [Vol. 24:499

gram was designed to reduce the ozone and carbon dioxide levels in the

air of those four counties to safe levels. In defending himself, Costas

alleged that requiring emission testing in just four counties violated the

privileges and immunities clause of the Indiana Constitution."*^ He also
alleged a violation of the equal protection clause of the United States

Constitution. The trial court granted Costas's motion for summary
judgment"*^ on grounds that the regulations were unconstitutional, under

both the Indiana and federal constitutions, as applied to the two northwest

Indiana counties. On appeal, the court rejected these claims, saying that
it could find no evidence that the program operated in a discriminatory

manner against a protected class of persons.

The preservation of aquatic life was the underlying issue in State

ex rel. Ralston v. Lake Superior Court,"^^ part of a continuing fight

between commercial fishermen and sport fishermen. This lengthy saga

ran through both state and federal courts at the same time.^*^ The

Department of Natural Resources had embarked on a multi-year program

to stock Lake Michigan and protect the results of this stocking by

outlawing use of gill nets by commercial fishermen.^^ The Indiana Su-
preme Court affirmed the implementation of the Department's program

once in Ridenour v. Furness,^^ but intervened a second time after the

Lake Superior Court held the director of the Department of Natural

Resources in contempt and threatened to jail him if he persisted in

enforcing regulations designed to limit commercial fishing. The court

issued a writ prohibiting the superior court from exercising any further

jurisdiction."

In short, the Indiana Supreme Court has used a portion of its new
freedom to take up one of the major legal issues of the day, the

environment. It was an appropriate decision, made just in advance of
the twentieth anniversary of Earth Day, April 22, 1990.

46. Senator Costas was charged with a class C infraction for failing to have his
automobile emissions tested pursuant to state regulations. Id. at 460.

47. Article I, § 23 of the Indiana Constitution states: "The General Assembly shall
not grant to any citizens, or class of citizens, privileges or immunities which, upon the

same terms, shall not equally belong to all citizens."

48. Costas actually moved to dismiss the charge under Ind. Trial R. 12(B).
However, the trial court held an evidentiary hearing on the motion, thus converting it

into a motion for summary judgment. Costas, 552 N.E.2d at 462.
49. 546 N.E.2d 1212 (Ind. 1989).

50. See Burns Harbor Fish Co. v. Ralston, No. IP 89-433-C (S.D. Ind. Nov. 30,

1989) (WESTLAW, 1989 WL 150471, S.D. Ind.).
51. Gill nets are used by commercial fishermen to catch perch, but the nets also

catch protected trout and salmon. Ralston, 546 N.E.2d at 1213.

52. 514 N.E.2d 273 (Ind. 1987).
53. Ralston, 546 N.E.2d at 1213.



1991] FOREWORD 509

D. Post-Conviction Relief: Is the Trial Ever Over?

Questions surrounding Indiana's system for post-conviction relief

were prominent on the court's agenda during 1989-90, and there is every

prospect that they will stay there. The jurisprudence was hotly debated

through the early 1980s as the result of two cases, German v. State^'^
and Austin v. State, ^^ holding that a criminal defendant who pled guilty
was entitled to plead anew if the trial judge accepting the plea omitted

any advisement of rights required by statute. Several years of experience

with this case law and a change in the membership of the supreme court

ultimately led to a change in jurisprudence.^^ In White v. State,^^ the

court declared the German rule had * Visited felony convictions with all
the finality of default judgments in small claims court, "^^ and the court

overruled both its former authorities. It adopted a standard akin to the

one used in federal courts for similar prisoner claims. ^^

During 1989-90, the court sought to refine further the substantive

law of post-conviction rehef and to alter post-conviction procedure in

a way consistent with the posture taken in White. First, in Moredock
V. State,^ the court refused to extend the rule of Ross v. State,^^ which

holds that a court cannot accept a plea of guilty from a defendant who
professes innocence. Moredock claimed the benefit of this rule because

he told the probation officer writing his pre-sentence report that he had

not committed the crime. We held that Ross applied only to protestations
of innocence made to the judge. ^^

Second, in Daniels v. State,^^ the court modified its previous posture

on the retroactivity of new rules of law. It held that the prohibition
on victim-impact evidence, announced in 1989 by the U.S. Supreme

Court in South Carolina v. Gathers,^ would not apply to Daniels's trial,

which had been concluded on direct appeal before Gathers was decided. ^^

The court also adopted new rules governing second and subsequent
petitions for post-conviction relief. These rules clearly estabhsh that a

54. 428 N.E.2d 234 (Ind. 1981).

55. 468 N.E.2d 1027 (Ind. 1984).

56. We are not the only court of last resort where this happens. See South Carolina
V. Gathers, 490 U.S. 805, 824 (1989) (Scalia, J., dissenting) (listing cases in which the

U.S. Supreme Court has changed its jurisprudence).

57. 497 N.E.2d 893 (Ind. 1986).

58. Id. at 900.

59. Id. at 905-06.

60. 540 N.E.2d 1230 (Ind. 1989).

61. 456 N.E.2d 420 (Ind. 1983).

62. Moredock, 540 N.E.2d at 1231.

63. 561 N.E.2d 487 (Ind. 1990).

64. 490 U.S. 805 (1989).

65. Daniels, 561 N.E.2d at 490.



510 INDIANA LAW REVIEW [Vol. 24:499

trial court may dismiss petitions it deems frivolous. They also provide
that the state public defender shall be permitted to withdraw his or her

representation when he or she deems the petition to be without legal
merit.^^

II. Leadership of the Judiciary

A. Oral Argument

When I was sworn in as chief justice, I articulated the hope of my
colleagues **that lawyers will more often have the chance to argue their

cases in person and that the public will more often have the occasion

to see us in the courtroom. '*^^ Oral presentation was one of the traditions

of appellate advocacy left behind in the effort to contend with hundreds

of criminal cases each year. An early sign of the court's renewed
determination to hear more arguments was our decision in April 1987

to order oral argument in the direct appeal of every capital case, whether

the parties requested it or not.

During 1990, the court pursued oral argument with a vengeance.

Arguments were scheduled in fifteen of the first twenty weeks of the

year. And, as the Appendix demonstrates, by the end of the year the

number of people invited to present their cases in person was nearly
double the number invited in 1989.^^

On January 8, 1990, the court began issuing weekly schedules of
arguments for the benefit of the press and the pubHc. The Indiana
Lawyer, a new bi-weekly newspaper published by the Indianapolis Busi-
ness Journal, and Indiana Legislative Insight, a weekly political news-

letter, published these schedules. This permitted lawyers involved in cases

similar to those being heard by the supreme court to attend our ar-

guments.

A court that is more visible is a court in which the people can have
greater confidence. I hope we can find new ways to make the Indiana

66. Ind. Post-Conviction R. 1(12).

67. We aspire as a court to dedicate more of our time to the legal problems
which affect the average citizen: child support and custody, landlord-tenant

disputes, commercial law, negligence, product liability, and the like. We hope
to work our way out from under the mountain of repetitive matters and have
the time to write fewer opinions and write them better. We hope that lawyers
will more often have the chance to argue their cases in person and that the

public will more often have the occasion to see us in the courtroom.
Remarks by Randall T. Shepard on Assuming the Office of Chief Justice, Old Vanderburgh

County Courthouse, Evansville, Indiana (Mar. 4, 1987), quoted in Shepard, supra note

1, at 685.

68. See app., infra at 521.



1991] FOREWORD 511

Supreme Court more accessible to the public and the profession.

B. A Niagara of Rule Reform

The book that sits on the desks of most Indiana lawyers, called

Indiana Rules of Court, contains 1093 pages in its 1990 version. Almost

two-thirds of it consists of rules adopted by or approved by the Indiana

Supreme Court.*^ In urging the passage of Proposition Two, I suggested

that this was an area that needed more attention and would receive it

if Proposition Two were passed.^°

In the first full year after the constitution was amended, the Indiana

Supreme Court issued the most sweeping set of rule changes since the

adoption of the trial rules in 1970.^^ The court amended over fifty

existing rules in November 1989 and adopted several totally new ones.
These amendments covered seventy-eight pages when published in the
Northeastern Reporter, Second.^^

These changes covered everything from the death penalty to small

claims. One rule change was designed to accelerate the appeal of death
penalty cases. Criminal Rule 24(D) mandates that trial transcripts be

prepared by use of computer-assisted technology (CAT). The traditional

method created long delays in the first step of death penalty appeals.

Commonly, preparation of the transcript would consume a year; some-
times more than two years were required.^^ Use of CAT has reduced
transcript preparation time dramatically. When the transcript was filed
in Matheney v. State^''^ it was only the second timely transcript from

the originating county in ten years of capital case filings.

69. The principal vehicle through which the court acts is the Committee on Rules

of Practice and Procedure. Ind. Trial R. 80. That committee receives and considers

proposals for rule reform, particularly in the Indiana Rules of Trial Procedure, through

its own deliberations and through a process of notice and comment.
Other organs of the court also have need from time to time for alterations in the

rules applicable to their operations. Each fall, the various proposals for rule reform are

submitted for consideration by the full court.

70. Commencement Address by Randall T. Shepard, Indiana University School of
Law-Indianapolis (May 10, 1987), reprinted in The Law^ Practitioner, Summer 1987, at
4.

71. Bruce Kotzan, the State Court Administrator, said, "This is the most the court

has done since I've been here, and that's 15 years." State High Court Issues Sweeping

Changes in Rules, Louisville Courier-Journal, Dec. 1, 1989, at B3, col. 2.

72. 542 N.E.2d XXXI-CIX (Ind. cases ed.).
73. One case that took two years for the transcript to be filed was Evans v. State,

No. CR85-235C (Marion Super. Ct. 1986), appeal docketed. No. 49S00-8704-CR-453 (Ind.
Mar. 15, 1989).

74. No. 45G02-9001-CF-00022 (Lake Super. Ct. 1990), appeal docketed. No. 45S00-

9002-DP-116 (Ind. Sept. 20, 1990).



512 INDIANA LAW REVIEW [Vol. 24:499

The court adopted a new rule to define for the first time the meaning

of the
*

'character and fitness" required of a bar applicant. ^^ Yet another

new rule advanced truth in attorney advertising by requiring unsolicited
communications to a potential client to be identified as advertising and

submitted to the Supreme Court Disciplinary Commission.''^

Although it is clear that the breadth of the 1989 rule amendments

was necessitated in part by years of neglect, they represent more than

a mere spring cleaning after a long winter. The court now has the time
and the determination to do more in the way of rulemaking on a regular
basis. We encourage practitioners and judges to help us identify rules
that need improvement.

C. Legal Education

As gatekeeper for admission to the bar, the supreme court also plays

a role in legal education. In 1989, the court acted on a series of proposals

advanced by Indiana's law schools and by the Indiana State Bar As-

sociation. Adoption of these proposals brought Indiana closer to the

national norms established by the American Bar Association for education

and admission to the bar. Their adoption was a logical second step after

the court's decision in 1988 to require that applicants for the bar

examination graduate from an ABA-accredited law school.^''

The court trimmed substantially the requirements under Bar Ad-

mission and Discipline Rule 13(V)(C) that law students take a particular

mix of courses in order to be ehgible to take the bar examination.

Indiana has been one of only two states with such a requirement.^* The

court agreed to reduce the number of required credit hours by approx-
imately twenty-five percent^^ and removed altogether some required

courses, like equity. The court's prior rule specified fifty-three credit-
semester hours of courses.*° This obviously constituted a considerable

proportion of the credit hours required for graduation and tended to

75. IND. Bar Admission and Discipline R. 13(IV)(A) (1990).
76. Ind. Rules of Professional Conduct Rule 7.3(c) (1990).
77. At the time, Indiana, California, and Georgia were the only three states that

permitted graduates of law schools not accredited by the A.B.A. to take their bar

examinations. Since Indiana's action, Georgia has chosen to require graduation from an

ABA-accredited law school for all persons applying to take the Georgia bar after Jan.

1, 1998. Ga. Ct. & Bar Rules 12-8 (1990).
78. South Carolina requires classes in 14 subject areas before an applicant may

sit for the bar exam. Comprehensive Guide to Bar Admission Requirements, 1990 A.B.A.

Sec. Legal Educ. & Admission to Bar & Nat'l Conf. of Bar Examiners 10-12.
79. The court reduced the number of required credit-semester hours to 41. Ind.

Bar Admission and Discipline R. 13(V)(C) (1990).
80. Ind. Bar Admission and Discipline R. 13(V)(C) (1989).



1991] FOREWORD 513

drive students' course choices. The rule also had the effect of limiting

the ability of Indiana law firms to recruit from other states. A student
attending law school in another state would have no particular reason

to choose courses that complied with Indiana's Rule 13 unless the student

knew early on that he or she would come to Indiana to practice. In

an era of increasing mobility, we thought it was wise to reduce this
barrier to national recruiting by Indiana's firms.

The law schools and bar also proposed restricting what had frequently

been called the **two-year rule." This rule permitted students to take

the bar examination after completing two years of law school. A student
who passed the examination on this schedule was eligible for induction
immediately after graduation.^^ This rule had the advantage of making

students eligible for hiring as practicing lawyers immediately after com-

mencement, but it had other effects that were not so attractive. Law
schools reported that some who studied for the bar examination during
their third year as law students were noticeably less prepared for their

regular studies in law school. Schools also reported that students who
passed the bar examination, say, in February of their third year, were

less concerned about their performance during the final weeks of law

school. The court's new rule permits students to take the bar examination
before graduation only if they are within 100 days and five credit hours

of graduation. ^2

D. Initiative on Judicial Ethics

We announced the most significant series of actions on judicial ethics
in anyone's memory in September 1989.^^ First, the Judicial Center
dedicated the annual meeting of the Judicial Conference of Indiana to

judicial ethics. Judicial ethics experts from Indiana and the nation pre-

sented a complete day's program to the state's 300 judges.

Second, the Judicial Conference created a permanent committee on

judicial ethics. I appointed twelve judges to the committee and selected

Monroe Superior Court Judge Marc R. Kellams to serve as chairman.
For the first time, judges serving on city and town courts were included

81. Id. at 13(VII).

82. Ind. Bar Admission and Discipline R. 13(V)(C) (1990). Ind. Bar Admission
AND Discipline R. 13(VII) (1990) grandfathers all students who were enrolled in an approved
law school on Jan. 1, 1990.

83. Judges Act on Ethics, Indianapolis News, Sept. 13, 1989, at CI, col. 1 (home

ed.); New Panel May Revise Code of Judicial Conduct, Indianapolis Star, Sept. 14, 1989,
at B3, col. 1. The Star's editorial board applauded these initiatives. "If ethical standards

are to rule conduct effectively, they must be expressed clearly and often. Strengthening

and emphasizing standards for Indiana judges is a sound move." Honest Judges, Indi-

anapolis Star, Sept. 16, 1989, at A16, col. 1.



514 INDIANA LAW REVIEW [Vol. 24:499

on the conference committee. ^"^ The committee was charged to create a

regular ethics program for Indiana judges. The committee also will

examine the recent changes in the American Bar Association's Model

Code of Judicial Conduct, compare these with Indiana's Code of Judicial

Conduct, and recommend such changes in Indiana's Code as the com-
mittee deems necessary.

Third, the Commission on Judicial Qualifications issued to each

Indiana judge a set of advisory opinions covering ethical questions

commonly raised by judges. Pubhc advisory opinions were themselves
a new tool, first used by the Commission in 1988.^^

The supreme court's own contribution to this activity came in two
sets of rules governing the discipline of judges. In early 1989, the court

issued rules governing disciplinary actions involving members of the court

itself. ^^ More important for the long run, we finished the year by issuing
a comprehensive set of rules of procedure for disciplinary matters in-

volving judges.^^ These rules clarify the procedure under which the

supreme court exercises its authority to discipline judges by collecting

in one place rules that were previously scattered throughout the Indiana

Code^^ or that existed only as unwritten custom.

84. These were Judge Anthony J. Cefali, Hobart City Court; Judge Roger L.

Lindsey, Jeffersonville City Court; and Judge CeceUa J. McGregor, Goshen City Court.

85. For the first 19 years of its existence, the Commission routinely gave ethical

advice to judges by telephone or private correspondence. In 1988, the Commission began

pubUshing advisory opinions in response to questions of general interest. See, e.g., 33

Res Gestae 134 (Sept. 1989) (Commission's first public advisory opinion); 34 Res Gestae

86 (Aug. 1990) (Advisory Opinion #2-90, addressing the propriety of a judge publicly

expressing personal views on the morahty of abortion). Today, the Commission receives

requests from individual judges for written advice concerning questions on judicial ethics.

After the Commission members discuss the appropriate answer to the question posed,

staff counsel Margaret Babcock drafts an advisory opinion reflecting the Commission's

discussion. The Commission finally reviews every opinion before it is issued. Each advisory

opinion is provided to all Indiana judges and is submitted for publication to Res Gestae,

the monthly journal of the Indiana State Bar Association. Although the views of the

Commission are not necessarily those of a majority of the Indiana Supreme Court, which

is the ultimate authority on the Code of Judicial Conduct, the Commission does consider
compliance with an advisory opinion to be a good faith effort to comply with the Code.

86. Ind. Bar Admission and Discipline R. 25(G)(4) (originally adopted Mar. 2,
1989).

87. Ind. Bar Admission and Discipune R. 25 (1990). The previous version of
Rule 25 was one sentence. The new rule covers more than 11 pages and is the product
of an ad hoc committee of the Indiana Commission on Judicial Qualifications led by

Commission Vice-Chair Sara B. Davies. The principal drafters were Bruce A. Kotzan,
counsel to the Commission, and Margaret Babcock, staff attorney for the Commission.

88. Compare Ind. Code Ann. § 33-2.1-5 (West 1983) (laws controHing discipline
of judges) with Ind. Code Ann. § 33-2.1-6 (West 1983) (laws controlling discipline of
superior, probate, juvenile, and criminal court judges).



19911 FOREWORD 515

E. Trial Court Operation

The supreme court's role in supervising the operation of the trial

courts, traditionally a modest one, has been a significant area of activity

during the last half decade. During 1989-90, the court moved forward
from this base with the assistance of Bruce A. Kotzan and the Division

of State Court Administration.

The most significant initiatives have attempted to standardize the

paperwork and record-keeping functions of trial courts, which process

an estimated ten million documents per year. Historically, each county

kept records as it thought best, using methods frequently based on

tradition or inertia. Traveling from one county seat to another was more

Hke passing from Albania to Yugoslavia than Uke visiting two parts of

the same state judicial system.

In late 1989, the court adopted a comprehensive set of rules governing

the record-keeping practices in the trial courts and the clerks* offices.

These practices were tested in several counties and adjusted based on

these experiences. They became mandatory in all counties on January

1, 1991.*^ This new system is explained in a manual provided to every
county, by a series of seminars, and through on-site technical assistance.

These rules follow earlier landmarks such as the uniform case numbering

system (designed to simplify analysis of caseloads), the micrographic

standards (designed to protect our permanent records), and the record

retention schedule (designed to insure that we keep what we need and
throw away paper that nobody needs).

The record retention schedule and the work of the Division of State

Court Administration in implementing it have been a particularly spec-

tacular success. In 1989 alone, the Division's staff assisted in the de-

struction of 700 four-drawer file cabinets full of unneeded documents.

The county clerks destroyed an additional 300 cabinets of dismissed

cases, documents that were routinely retained before our rule was prom-

ulgated.

The court also dispensed funds directly to trial courts for the first

time. Our office of guardian ad litem/court-appointed special advocates
is distributing $800,000 during the 1989-91 biennium to assist juvenile

and family courts in providing better representation for children. The

court is also home to the new Public Defender Commission of Indiana,^
for which the legislature has appropriated $1.3 million during the 1989-

91 biennium to assist counties in paying the costs of litigating capital

cases.

89. IND. Trial R. 58, 72, 77 (1990).

90. iND. Code Ann. § 33-8-13-1 (West Supp. 1990).



516 INDIANA LAW REVIEW [Vol. 24:499

F. Is Anybody Noticing?

When I was sworn in as chief justice, I said: **We want to be a
court so well-regarded that judges in other states, when considering the
toughest legal issues of our time, will be led to look at each other and

ask: 'I wonder what Indiana has done about this?'"^^ This statement

was more a declaration about the need to pursue excellence than the

need to pursue recognition. Recognition flows naturally to those who
perform quality legal and judicial work. Indiana needs courts befitting

the high quality of its bar. A strong Indiana judiciary can contribute
to a better life for Indiana's citizens and for all Americans,^^ indeed,

for citizens in other lands. ^^ The country should view Indiana as a place

where high caliber lawyers practice and high caliber judges sit. I suggest

that there are some signs that this is so.

There was a time when the Indiana Supreme Court stood near the

top of the national list of state courts to which lawyers, academics, and

other judges looked for answers to the legal problems of the day. It

was no accident that when the West Publishing Company created the
Northeastern Reporter in 1885 it included New York, Massachusetts,
Illinois, Ohio, and Indiana. These were states with supreme courts that

the profession regarded as top-rate. A study by West PubHshing Company
in 1912 examined how often state courts cited each other as authority.
In the years immediately before 1910, the Indiana Supreme Court was

the fifth most commonly cited state supreme court, following only New
York, Massachusetts, IlHnois, and California.^'* A similar exercise in 1920
showed Indiana ranked eighth. A study of the relative prestige of state
supreme courts in 1936 concluded that Indiana's court ranked fifteenth.^^

91. Remarks by Randall T. Shepard on assuming the office of Chief Justice of

the Indiana Supreme Court, Old Vanderburgh County Courthouse, Mar. 4, 1987.

92. Although Indiana Supreme Court opinions are not binding on other state

courts, they can offer guidance based on their persuasiveness, especially when other courts

are "confronting novel legal problems or contemplating legal change." G.A. Tarr & M.
Aldis Porter, State Supreme Courts in State and Nation 31-32 (1988).

93. In more ways than we can know, the decisions coming from this state affect

the lives of all persons controlled by the rule of law. Paula Cooper's death penalty appeal

attracted international attention, including a plea for leniency from Pope John Paul II.

Cooper v. State, 540 N.E.2d 1216, 1217 n.l (Ind. 1989) (citing newspaper articles discussing

the international community's reaction to the Cooper case). Communist countries in Europe

and elsewhere are now abandoning their old systems of government and are looking to
the United States collectively and to individual states for guidance in establishing a new

legal order. Our federal colleagues have made a contribution on this front. United States
District Court Judge John D. Tinder recently travelled to Yugoslavia to lecture on the

United States 's attempts to combat drug crimes.

94. The Docket 642 (West, Jan. 1912), cited m Mott, Judicial Influence, 30 Am.
Pol. Sci. Rev. 295, 307-08 (1936).

95. Mott, supra note 94, at 314.



1991] FOREWORD 517

As time passed, our ranking continued to decline. By 1975, a study of
the reputation of state supreme courts placed Indiana twenty-fifth.^^ Only

Missouri and Texas had fallen further. ^^ The years immediately preceding

Proposition Two reflected this same pattern. It was possible to search
Shepard's Indiana Citations and find that virtually all of our opinions

were being cited only in the Northeastern Reporter by Indiana courts.

We were writing to ourselves.
By the late 1980s, Indiana was very much in the business of saying

important things about the law, and attracting national attention. The

nation's other state courts once again have been citing the Indiana

Supreme Court as authority for their own decisions. A search of WEST-
LAW reveals that during 1990 we were cited at least 165 times by other
state courts,^^ 15 times by federal circuit courts,^^ and 2 times by the

U.S. Supreme Court. ^^ Sixty of the citations by other state courts were

to opinions our court issued since the beginning of 1985. Our decision
about social host liability, Gariup Construction Co. v. Foster, ^^^ was

cited by the Supreme Court of West Virginia, '°^ which seemed to Hke

it, and by the Arizona Court of Appeals, '^^ which did not. Our case
about treating mental patients with psychotropic drugs'^ was cited by

the U.S. Supreme Court^^^ and noted by the Maryland Court of Ap-

peals. '^^ The Illinois Court of Appeals cited our decision in Covalt v.

Carey Canada, Inc.^^^ about the statute of repose in asbestos cases. '^^

Many of our recent criminal law decisions have been noted elsewhere.
The Supreme Court of Illinois cited our opinion in Weekly v. State^^

in resolving a question about the exclusion of potential jurors who were

96. Caldeira, On the Reputation of State Supreme Courts, 5 Pol. Behav. 83, 89
(1983).

97. Id. at 92-93.

98. See WESTLAW, Allstates database.
99. See WESTLAW, CTA database.
100. Horton v. California, 110 S. Ct. 2301, 2305 n.3 (1990); Washington v. Harper,

110 S. Ct. 1028, 1055 n.31 (1990) (Stevens, J., concurring in part and dissenting in part).

101. 519 N.E.2d 1224 (Ind. 1988).

102. Overbaugh v. McCutcheon, 396 S.E.2d 153, 156 n.5 (W. Va. 1990).

103. Bruce v. Chas Roberts Air Conditioning, Inc., 801 P.2d 456 (Ariz. Ct. App.

1990).

104. In re Mental Commitment of M.P., 510 N.E.2d 645 (Ind. 1987).
105. Washington v. Harper, 110 S. Ct. 1028, 1055 n.31 (1990) (Stephens, J.,

concurring in part and dissenting in part).

106. Wilham v. Wilzack, 319 Md. 485, 510 n.9, 573 A.2d 809, 821 n.9 (1990).
107. 543 N.E.2d 382 (Ind. 1989).

108. Olsen v. Owens-Corning Fiberglass Corp., 198 111. App. 3d 1039, 1042, 556

N.E.2d 716, 718 (1990).

109. 496 N.E.2d 29 (Ind. 1986).



518 INDIANA LAW REVIEW [Vol. 24:499

black. *'° The Colorado Court of Appeals followed our decision on post-

conviction relief, White v. State, ^^^ to decide the appropriate remedy for

an error in imposing sentence after a guilty plea.*^^ The South Carolina

Supreme Court followed our opinion in Fox v. State^^^ in deciding whether
limited expertise in a witness might permit the witness to express an

opinion.^''*

The court's rising prominence is also reflected in the fact that several

of our cases have been noted by legal commentators. Department of
Natural Resources v. Indiana Coal Council, IncJ^^ received immediate

and wide circulation by national historic preservation organizations, which

predicted that other states would use its analysis, and which called the

opinion a major takings case of national importance.^ '^ Stropes v. Her-

itage House Childrens Center^^'' was the subject of the lead column in
a national trial lawyers magazine. The author called Stropes an

*

'en-

lightened and well-reasoned opinion. "^'^ One month later, the same
magazine analyzed Koske v. Townsend Engineering Co.,^^^ and applauded
the decision as an "exemplary opinion of corrective justice. "'^^ Travel

Craft, Inc. v. Wilhelm Mende GmbH & Co.,^^^ a case of first impression
about disclaimer of warranties, was summarized in the judicial highHghts

section of the advance sheets of most of the regional and national

reporters published by the West Publishing Company. ^^^ Fairrow v.

no. People V. Hope, 137 111. 2d 430, 457, 560 N.E.2d 849, 861 (1990).

111. 497 N.E.2d 893 (Ind. 1986).

112. People V. Sandoval, 1990 WL 162360 (Colo. Ct. App. 1990).
113. 506 N.E.2d 1090 (Ind. 1987).

114. State V. Myers, 391 S.E.2d 551, 554 (S.C. 1990) (''authority exists to guide

us on this precise question").

115. 542 N.E.2d 1000 (Ind. 1989), cert, denied, 110 S. Ct. 1130 (1990).

116. The opinion was featured on the cover page of the National Trust's Preservation

Law Reporter advance sheet for September 1989. The Reporter noted that the case would
"provide other states and local jurisdictions with a useful framework for upholding other

measures designed to protect historic and archaeological sites." The National Center for

Preservation Law called it a "major 'taking' case" of "national importance." 37 Pres-
ervation Law Update 1 (Sept. 4, 1989).

117. 547 N.E.2d 244 (Ind. 1989) (focusing on the liability of children's center for

damages inflicted on severely retarded boy who was living at the center at the time he
was sexually abused by an employee).

118. Lambert, Tom on Torts, 33 L. Rep. 140, 142 (1990). The opinion was also
summarized in a commercial reporter that tracks cases of national significance to the

medical community. 12 Med. Liability Rep. 108 (May 1990).
119. 551 N.E.2d 437 (Ind. 1990) (defense of open and obvious danger does not

survive codification of strict liability).

120. Lambert, Tom on Torts, 33 L. Rep. 188 (1990).
121. 552 N.E.2d 443 (Ind. 1990).

122. See, e.g., 789 P.2d XVI (West Supp. June 1, 1990); 733 F. Supp. VII (West
Supp. June 4, 1990); 552 N.E.2d XXII (West Supp. May 30, 1990).



1991] FOREWORD 519

Fairrow,^^^ a case that held that the question of paternity might be

reopened upon accidental discovery of sickle cell trait, was featured in

a recent issue of the National Law Journal, ^^"^ and it was included on
the front page as a highlighted case in BNA's Family Law Reporter. ^^^

The court's disciplinary opinion in Matter of Kern^^^ became the subject

of a column about ethics on the op-ed page of the National Law
Journal.'^'' Our opinion on judicial discipline, In re Boles, ^^^ was included
in a casebook of the American Judicature Society. '^^

As the court's writings have attracted wider notice, its members have
been in greater demand. During the last two years, law schools from

California to Connecticut have asked members of the Indiana Supreme

Court to sit on moot court panels. '^^ One member of the court was
asked to chair a national panel examining the use of videotape as a

record-keeping tool.*^* Another member of the court was asked to sit
as a judge in a national individual achievement competition. '^^ The Federal

Circuit Bar Association asked one justice to speak at a conference on

takings, held in Virginia. *^^

A court writing more law and playing a more prominent role in
the law finds it easier to recruit good talent. In the early 1980s, the

court generally recruited its law clerks from two law schools. In 1990,

the court's eleven clerks came from a greater variety of places, including

Indiana University-Bloomington (4), Indiana University-Indianapolis (3),

Yale (2), Northwestern (1), and Valparaiso (1). Six of our current clerks

served on the law journals of those schools, including the editor-in-chief

of the Indiana Law Journal and the managing editor of the Yale Law
Journal. That bright, capable young lawyers want to begin their careers

123. 559 N.E.2d 597 (Ind, 1990).

124. Sept. 24, 1990, at 6, col. 2.

125. 16 Earn. L. Rep. (BNA) 1557, 1563 (Oct. 9, 1990).
126. 555 N.E.2d 479 (Ind. 1990).

127. Ethics: Indiana Court Backs Up Sanctions, Nat'l Law J., Oct. 22, 1990, at
13, col. 3.

128. 555 N.E.2d 1284 (Ind. 1990).

129. American Judicature Society, 12th National Conference for Judicial

Conduct Organizations 158 (1990).
130. These include the University of the Pacific, Yale, University of Cincinnati,

John Marshall, and Southern Illinois.

131. The National Center for State Courts asked this author to chair an advisory

committee overseeing a study, the results of which were published in book form. National

Center for State Courts, Videotaped Trlvl Records: Evaluation and Guide (1990).
132. Last June, Justice Brent Dickson served on the 1990 National Awards Jury

at the request of the Freedoms Foundation at Valley Forge.

133. The Federal Circuit Bar Association, the United States Claims Court Bar

Association, and the National Trust for Historic Preservation asked this author to speak

at The Takings Clause Bicentennial, a conference held at Woodberry Forest and Montpelier

Station, Virginia, in June 1990.



520 INDIANA LAW REVIEW [Vol. 24:499

with the Indiana Supreme Court is very heart-warming. It is also a good

sign.

III. Looking at the Future

The progress I have described suggests that the 1990s can be a strong

chapter in the history of the Indiana Supreme Court. A docket balanced
with both civil and criminal cases, and more active leadership of the

judiciary and the profession, are just a beginning.

As for our appellate work, I see at least two tasks in the decade
ahead — one fairly subtle and one quite public. First, we justices must
develop more refined ways of selecting cases to decide on the merits

from among the eight or nine hundred requests presented to us each
year. We now do this with the assistance of staff counsel and through
our own face-to-face discussions of hundreds of cases a year. Still, we
decide which appeals to take largely on a case-by-case basis, without

reference to the whole of the demand on our time. We must create
some new protocol for allocating our docket. Such improvements in our
internal operation will go nearly unnoticed, but more systematic selection

of cases will benefit one and all.

Second, we must pay greater attention to the caliber of the juris-
prudence that our opinions represent. In years when we wrote 3-400

opinions, there was little time for tending to the analytical framework

or the turns of phrase that so often set the course for future development

of the law. We will now write only 100 or 150 opinions per year. Under
these circumstances, pride of craftsmanship and duty to the bar and the

public will command better thinking and greater attention to detail. I
want a court better respected for its writing, in both the academy and

the bar.

We must also give further leadership to the cause of trial court
reform. We should begin asking questions that might have seemed too
ambitious in even the recent past, such as what we can do to improve
the professional working conditions of our trial judges.

We must also improve our record of recruiting women and minorities
to the Indiana judiciary. While the number of women and minority
judges has doubled in the last decade, all of us should recognize that

there are still far too many barriers to equal opportunity. It should be
our common project to make the judiciary (and the profession) more
inclusive.

Courts are the most visible symbols of the role our profession plays

in the lives of the people whom we serve as lawyers and judges. I am
determined that the Indiana Supreme Court will be a place befitting our
profession's highest aspirations, and I am optimistic that it can be.



1991] FOREWORD 521

Appendix

i9

o
B

1
o

I

50

45

40

35

30

25

20

15

Indiana Supreme Court Oral Arguments

1987 988

Year

1989 1990