End of an era

After serving a quarter century as chief justice of the Indiana Supreme Court, Randall T. Shepard retired on March 23. State and local government leaders; trial and appellate court judges – past and present; local, state and national bar association leaders; former law clerks; and family, friends and associates packed the Indiana Supreme Court courtroom to give the chief justice a heartfelt send-off.

“The Colts without Peyton was hard enough; the judiciary without Shepard I can’t comprehend,” Gov. Mitch Daniels told those gathered. All echoed Daniels’ sentiment – the mark the chief justice has left on the Indiana judiciary has been made with indelible ink.

Prior to his retirement, Shepard sat down with the Indiana Lawyer to reflect on his 27 years as a justice. Following are excerpts from that conversation.

If you could go back in time and give one piece of advice to the young Randall Shepard just embarking on a legal career, what would it be?

I’d start a little before that. I think I would recommend that Shepard take a course in the Uniform Commercial Code as a law student. It wasn’t on the required list, so, particularly in the beginning, I spent a lot of time when we had a UCC case learning something that I’d have learned in a sounder way if I’d had Ellen Ash Peters as my UCC professor in law school. So I’d tell a young Shepard to be braver, go take a UCC course. You’ll save time later.

What skills or qualities must you see in a lawyer to encourage him/her to consider the judiciary?

For a judge, the ability to sense the difference between the significant and the routine is one of the most important talents. The fact that you have done many similar such cases is a help in deciding the ones that are before you today, but there is also a risk of failing to notice that this one on today’s calendar might be a little different. I’m not sure how one learns that – I guess trial and error makes a difference, staying alert, and not allowing yourself to begin to think of it as processing.

Really great lawyers that I know tend to talk not about my cases, but about Mrs. Jones’ case that I handled for her. The difference is understanding that for litigants, every case is pretty important. You do have to know when it is OK to make a fast decision and move on, but you also have to know when it is time to have your antenna up – is this one that needs a little more attention, or is this one that has a slightly different set of facts – is there another piece of law that applies to this? Good judges pay attention to that difference.

You have served as chief justice during a period of great change in our society. Has the role of local and appellate judges in Indiana changed during the last 25 years?

Judges take a greater sense of responsibility for managing pending cases than they did 25 or 30 years ago. Just a simple practice like holding early pretrial conferences in most civil litigation is something that was not particularly common 30 years ago but is now almost universal. This doesn’t mean the judge tries the case for lawyers, but the judge takes responsibility for managing the “when” and the “how” and, in general, takes responsibility for getting these litigants through the judicial system as promptly as you can, consistent with getting a just result. There were places in our state 30 years ago where a judge never picked up a file until somebody filed a motion, never held a hearing until somebody requested one, or usually didn’t set a trial date until both parties told the court they were ready to go to trial. Judges are much more engaged with lawyers now case by case than they were.

The other great change is the judiciary is interested in the broad role of the rule of law and of courts. … Judges are interested in what the rule of law does for society. You can see this certainly, very vividly, in a field like criminal sentencing. On one level, the object of advocacy is to enforce the law. That is where we all start out. But the broader question is what does criminal law do for society and what is the underlying object of this case. I think most people would say it is to sanction criminal behavior and maximize the possibility that it won’t happen again. … That is why judges, particularly trial judges, are frequently the ones that lead efforts at alternative sentencing and more intensive probation and why they are the ones who decide drug courts are important and create them, because they believe in sanctions across a range of severity, tailored to hold the offender accountable and maximize, to the extent you can, the possibility of non-recidivism. Are you there to decide cases? Sure you are. But why do people put you there to do that? It is to enforce the rule of law in ways that will make society healthy.

Chief Justice Shepard’s service was celebrated in a retirement ceremony March 19. (Submitted photo)

After retirement, what role would you like to take up in the legal community? How do you plan to stay engaged?

It is still very much a work in progress. I think I can kind of do best as a utility player. Most likely not doing a single thing, but playing multiple roles in varying degrees of time commitment. (At his retirement ceremony, Chief Justice Shepard revealed his plans for retirement include serving as a senior judge with the Indiana Court of Appeals, a visiting scholar at the University of Cincinnati College of Law, a guest editor for Indiana University’s history journal, and as director of Justice at Stake.)

What will retirement give you time to do that you haven’t been able to do before?

I’d like to spend a little more time working on things that have to do with history. There are two or three kinds of history that interest me: one is Indiana history, another is family history. And I have quite the pile of books that I’d like to work my way through sooner or later.

As you might know, the governor has asked if I’d serve on the commission for the bicentennial of Indiana’s statehood. I enjoy both research and writing on history topics and being directly engaged in trying to make those come alive for people.

What challenges will be on the plate of the next chief justice?

So much of what we do is collaborative and ongoing … I think the ability to finance the court system is going to be close to the top of the discussion over the next few years. One of the things that we’ve tried to make happen, and we are making progress, is increasing the extent to which the court system and related services are financed by the state system rather than on the backs of county taxpayers. The Legislature, over time, has been moving in the direction of more state finance. It feels like with abused and neglected children or delinquent children, or on the criminal side the range of available sanctions or the quality of public defender work, that we are leveling out differences that historically existed on one side of the county line as opposed to the other. That is why I say this is not a new story, but it is one that is hardly done yet, and needs to be advanced further over the next few years.

After 27 years on the Supreme Court, what stands out as a “best day” in the office?

The day when Judge Dan Donahue of the Clark Circuit Court and several other trial judges came to visit the Supreme Court. … He was then chair of what is called the Domestic Relations Committee of the Judicial Conference, and they had just finished doing one of their periodic revisions to the child support guidelines. Those guidelines were a revolution in terms of how easy it became to work out child support and dissolution and paternity cases. Judge Donahue and his committee came to us and said they had the idea that something similar might be possible with what was then called visitation – one parent has custody, the other has visitation. They came to ask whether, if they spent the time and effort to create the guidelines that covered custody and visitation, would the Supreme Court be willing to entertain adopting those.

Randy Shepard studied law at Yale Law School in 1972. (Submitted photo)

Well, the court said, yes, we’d be willing to consider that, it seems like a plausible idea. Eventually, they came forward with a set of proposals that had a new name – parenting time guidelines. That story is exhilarating on multiple levels. One was the Supreme Court was open for business to people who had interesting ideas and that members of the domestic relations committee thought of us that way, thought they could get a serious hearing and that the interesting idea might get embraced was a great statement. And the substance of what they’ve done is to realign everybody’s thinking on what it is we are actually trying to accomplish by using the term “parenting time.” There were non-custodial dads who were rightly taking objection to use of the word “visitation.” What do you mean visitation with my own children? What Judge Donahue’s committee did was say, “Let’s think about what this is for.” What it is for is to create a framework, one family at a time, in which both adults parent the children they are trying to raise. It showed ingenuity by men and women who saw a possible improvement and brought it forward; and eventually the General Assembly took the word visitation out of the Code and adopted parenting time. I remember that day very vividly. (The chief justice recounted several “best days” in the office, but space prevented all from being shared.)

You have been very involved in historical preservation, the Supreme Court courtroom, for example. Why was that important to you?

I think that Indiana’s legal history is important for modern lawyers and judges because it can be a constant reminder that Indiana is a place where high quality of legal work has been done and can be done in the future. There is so much rich heritage that today’s legal profession enjoys, and that ought to be an inspiration to all of us to do our best to build on that. … So as society changes and law evolves, it seems to me it ought to be an inspiration to us, it certainly is to me, that there have been many, many monumental contributions by judges and lawyers in this state, and we who merely stand on their shoulders ought to aspire to add to that record. So the physical reminders are that – they are modest reminders that important things happened here that mattered in the lives of people.

Do you ever reflect on what your career would have been, if it had not been in the law?

When I was in high school there were three things I thought I might want to do. Law was always on the list. The other two were foreign service and journalism. Those other two interests are still with me. I pay a fair amount of attention to international affairs and travel oversees. My wife and I have visited about 30 countries, and we hope to visit some more. With respect to journalism, I pay a lot of attention to the dramatic changes going on in the news business, how the institutions and platforms are shifting, how the electronic age is affecting how people learn things. I read a lot about that. I am also able to make some use of that interest in the courts in what I’ve tried to accomplish with public access.•