Rookie year on the Supreme Court

In the public arena, Justice Steven David’s first year on the bench may be marked by a decision he penned about resisting police entry into a person’s home.

But to many Indiana trial judges, appellate attorneys and legal observers, the newest Indiana Supreme Court justice represents a fresh, practical voice on the state’s highest court and someone who has his hands in multiple facets of the state legal community.

The former Boone Circuit judge joined the court Oct. 18, 2010, as Indiana’s 106th justice, following Justice Theodore Boehm’s retirement. Although David is modest when reflecting on his impact, some say the new justice has made a difference in the court’s tone. Chief Justice Randall Shepard points to David’s debut year as one that marks a moment in time the court hasn’t experienced in 26 years.

“If there’s anyone who hit the ground running, it’s been Steve David,” the chief justice said. “Comparatively, I think Steve has been very successful in a moment in the court’s history that makes this a first year very different than it would have been for anyone else who’s joined our court. His work overall looks very different, on balance, than we’ve had before.”

This is the first time since Shepard joined the bench in 1985 that the court has had representation from the trial courts, appellate bench and private practice at the same time. That’s significant because the public face of the Indiana Supreme Court has expanded during the past decade, putting the justices out in the legal community more often. David has taken on multiple roles that include rulemaking, court reform, admission and discipline, judicial and attorney education and juvenile justice issues throughout the state.

“I didn’t have any specific expectations and so everything has been pretty new,” David said. “I’m still establishing a niche and learning as much as I can, and I am still in awe of what I’m doing and where I’m at.”

On the case-specific side, David has remained busy. By his one-year anniversary date, he’d written 14 of the 72 non-per curium opinions that included sentence modifications, post-conviction relief, mortgage foreclosures, due process rights, statutory and common law rights and juvenile justice. He’s participated in more than 70 oral arguments as a justice, the court’s argument docket shows.

Appellate attorneys and court watchers credit David for following the promise he made when Gov. Mitch Daniels appointed him: that he’d be true to the rule of law. They say David has been a thoughtful and independent voice on the court so far.

Indianapolis appellate attorney Bryan Babb¸ who has argued four times before David, said it’s obvious the new justice has become more confident on the bench. During Babb’s first argument before David late last year, Babb noted that David asked few questions. But that’s changed over time, and he’s become more engaged with each argument.

“Each justice has a different style during arguments, and my sense is that he will be one of the justices people can expect to receive a lot of questions from,” Babb said. “It’s too early in his career to predict completely or accurately the type of questions you’ll get, such as the hypothetical questions you expect from Justice (Frank) Sullivan, but so far they seem to be very practical and down to earth.”

David said he enjoys preparing for the arguments, and he takes different approaches each time – sometimes writing questions down ahead of time; other times, he jots down notes and questions based on what his colleagues ask. As for the question of determining which justice will author an opinion, the court has a practice of distributing work equally and allowing the person who might best present the group’s consensus to write it, the chief justice said. David has been ready to volunteer on any issue, according to Shepard.

“His productivity is everything we’d hoped for, and I expect he’ll find even more ways to be a fine contributor,” Shepard said.

Of all the cases during his first year, the one that’s drawn the most attention has been Barnes v. State, in which David wrote for a 3-2 majority ruling that neither a common law right to resist police nor the statutory castle doctrine are defenses to battery on a police officer. That May 12, 2011, decision was the fourth opinion David had written, and it sparked a immediate reaction from the general public, lawmakers and legal observers who saw it as an attack on Fourth Amendment protections against illegal searches and seizures. Opponents organized a protest rally in front of the Indiana Statehouse where they displayed signs with messages like “Justice David is an Enemy of the Constitution.”

Lawmakers formed a study subcommittee to explore the issue and a four-person panel is finalizing proposed legislation that would sidestep the Barnes ruling and revise state statute to protect both homeowners and police and give people the right to use reasonable resistance except in domestic violence situations. The court in late September granted a rehearing request in Barnes and David wrote the opinion that clarified but upheld the earlier decision.

Looking back, David says he wishes the Barnes decision hadn’t been interpreted in such a sweeping fashion.

He refused extra security after death threats directed at him following the decision, and he defends the peaceful protests that took place outside the Statehouse after the original ruling was issued. “If the Barnes case was about doing away with constitutional rights, then I would have been out there, too,” David said.

Aside from the Barnes controversy, David has become more comfortable with his new role as a justice. With his trial-level experience and passion for child and family issues, many within the juvenile justice system say they’ve looked to him for more guidance and representation from the Supreme Court. David penned two significant juvenile-focused cases in recent months that highlighted concerns about the Department of Child Services – A.B. v. State, involving out-of-state juvenile placements, and In the Matter of the Involuntary Termination of Parent-Child Relationship of C.G., involving parental rights’ termination hearing practices.

Several juvenile judges say that having “one of their own” on the high court is a positive change.

“I enjoyed in the opinions how Justice David used his own experiences about DCS practices that we’ve felt are often too shabby,” LaPorte Superior Magistrate Judge Nancy Gettinger said about the two rulings in which the new justice has criticized the state agency. “It’s nice to have someone in our corner who’s aware of how this plays out in our courtrooms.”

The chief justice echoed that sentiment, saying that the other two justices on the court who served on the bench before joining the Supreme Court – himself as Vanderburgh Superior judge before 1985 and Robert Rucker at the intermediate appellate level before his appointment in 1999 – are so far removed from those previous positions that it’s good to have David’s fresh perspective.

“It’s refreshing to have someone who just a year ago was on the front lines litigating and hearing these cases we see on appeal,” Shepard said. “Often during our conferences, he’ll offer his thoughts about the trial court functions based on his recent experiences. That’s a very useful viewpoint to have represented.”

David said he enjoys what he’s doing, and is working to keep the promise he made at his appointment about respecting the rule of law.

“Overall, I think it’s fair to say that I’m more comfortable and at ease with the process but no less humbled,” he said. “We’re trustees or guardians of the rule of law, and I am having a lot of fun every day.”•