3 remain in running for high court

Boone Circuit Judge Steven David said it best about what it’s like to be in the running for an opening on the Indiana
Supreme Court.
 

“This is sort of like being nine little birds in a nest,” the longtime judge said during his interview with the
Indiana Judicial Nominating Commission. “You’re all flying overhead us with a great big worm, and we’re
all in the nest with our mouths open wanting a piece of that worm. Now, I know what a bird feels like but fortunately, there’s
no elbowing.”

The judge and two others are finalists for the state’s highest court. Following a full day of interviews July 30, the
seven-member commission chose Judge David, Marion Superior Judge Robyn L. Moberly, and Indianapolis appellate attorney Karl
L. Mulvaney with Bingham McHale for the governor to consider for the next justice.

Moberly

They were among nine semi-finalists who’d interviewed for the spot after surviving a first round of interviews of the
34 initial applicants. The vacancy will be created once Justice Theodore R. Boehm retires Sept. 30.

Whoever is chosen will be Republican Gov. Mitch Daniels’ first appointment to the state’s highest court and the
first new justice since 1999.
 

Mulvaney

“I can’t imagine ever being better,” Judge Moberly said within an hour of hearing the news of her selection
as a finalist. “I’m thrilled and humbled to be one of the three being sent to the governor.”

Judge Moberly, 56, has been a Marion Superior Court judge since 1997 and handled domestic violence and major criminal cases
before moving to the civil side almost a decade ago. She’d previously served as a commissioner before taking the bench
as a judge. Prior to that, she practiced privately since her graduation cum laude in 1978 from Indiana University School of
Law – Indianapolis.

Story continues below

If chosen, Judge Moberly would become only the second female justice in the court’s history and the first since Myra
Selby stepped down in 1999. Indiana is one of only two top state courts in the country – the other is Idaho –
without a female justice. The legal community has been vocal about the need for a female justice and many – including
retiring Justice Boehm – have expressed an interest in seeing a woman appointed. But the chances have narrowed as 19
women initially applied, four made the semi-finalist round, and now only one is under consideration.

But aside from Judge Moberly and the gender diversity, the governor also has two other finalists who most agree are stellar
choices for the Supreme Court.

Judge David, 53, has been on the bench since January 1994. The 1982 Indiana University School of Law – Indianapolis
graduate served as a U.S. Army judge advocate general following law school and then practiced law privately in Columbus before
serving as in-house counsel at Mayflower Transit in Carmel. Once being elected to the bench, Judge David has presided over
all types of civil, criminal, and juvenile matters and also served as special judge by Supreme Court appointment and hearing
officer or special master in attorney and judicial misconduct cases. Throughout those years, he remained in the Army Reserves
and worked on reforming the treatment of detainees in Iraq in 2003, as well as serving as chief defense counsel for Guantanamo
Bay detainees at one time.

The only non-judicial finalist is Mulvaney, 60, who’s a partner at Bingham McHale and a cum laude graduate in 1977
from IU School of Law – Indianapolis. Following law school, he’d served as the Indiana Supreme Court’s assistant
administrator and administrator from 1978 to 1991, reviewing transfer petitions and handling an array of administrative and
legal issues. He began his legal practice at what was then known as Bingham Summers Welsh & Spillman in 1992, and since
has handled scores of appellate cases and argued before both the state appellate courts.

Aside from the three finalists, those who made it past the first round of cuts were: Indianapolis attorney Ellen Boshkoff
with Baker & Daniels, Indiana University associate general counsel Kiply Drew, Johnson Superior Judge Cynthia Emkes, Indiana
Solicitor General Thomas M. Fisher, Hamilton Superior Judge Steven Nation, and State Sen. Brent Steele, R-Bedford, who’s
an attorney at Steele & Steele.

Each person began their 30-minute interview with a congratulatory welcome from Chief Justice Randall Shepard, who chairs
the commission. He then asked each semi-finalist to address a two-part question sent to them prior to the interviews: “What
do you consider your finest professional accomplishment or contribution?” and “Name two things that need improving
in the Indiana court system that a justice might help solve.”

All raised points about what they might tackle if they were a member of the court, and then responded to other questions
posed by commission members – their views on approaching issues of first impression, how they might complement the current
court makeup, what the judiciary’s three most pressing issues are, and how justices should factor in political, economic,
and social ramifications in decision-making.

Judge David said the biggest challenge is how the state judiciary stays efficient and relevant without much money, and he
said more centralized operation and coordination between the 92 counties must be explored. The court must be as open and transparent
as possible in order to make sure litigants have adequate access to justice. As part of improving transparency, the judge
said he supported both cameras in the courtrooms and also the Judicial Technology and Automation Committee’s statewide
case management system.

Mulvaney told the commission that his experience in handling attorney ethics matters is his biggest accomplishment. Potential
changes might include how judicial mandates are handled and possibly a rule revision about how long juvenile cases can have
to be briefed on appeal. One commission member praised Mulvaney’s appellate experience and also allowed the attorney
to delve into his experience as Supreme Court administrator and how that gave him experience in many issues before the court.

In the last of the three finalists to face their interview, Judge Moberly discussed her pride in being involved in the state’s
Family Court Project since it began almost a decade ago. She also said that the growing number of pro se litigants is one
of the judiciary’s biggest concerns, and that one idea that could help might be creating a public law librarian program
modeled after how the court recruits teachers to educate kids about the judicial branch. She also explained the importance
of managing the inevitable statewide court system changes, and how statewide funding is a significant point to consider. She
said regional funding might be a step in that direction because everyone might be able to easily agree on that.

After hearing Judge Moberly speak so passionately about her family and trial court work, one commission member asked her
why she wanted to move to the Supreme Court despite her loving what she does now.

“I know there’s another chapter in my career … I hope this is the next chapter, but I know there’s
something more for me out there and I hope it presents itself here,” she said. “If not me, who would do it?”

One of those three are now waiting for “the big worm” that the governor is holding. The governor’s general
counsel, David Pippen, said a 60-day clock begins once Daniels receives an official evaluation report on the three finalists
from the nominating commission – expected in the first week of August. Interviews will likely be scheduled “pretty
quickly,” and there’s really no set procedure for how that interview process will happen. Whether one interview
will take place or finalists will be invited for a second informal interview hasn’t been determined, but it will be
up to the governor to decide. Pippen said he doesn’t expect the governor will come close to running the 60-day deadline,
but if Daniels doesn’t meet that deadline, the chief justice would make an appointment from the same list.•