Two judges, Fort Wayne attorney selected as finalists for COA vacancy

The Indiana Judicial Nominating Commission has selected two judges and a Fort Wayne attorney as the three finalists to fill an upcoming vacancy on the Indiana Court of Appeals.

The JNC announced late Wednesday afternoon that it will send the names of St. Joseph Superior Judge Steven Hostetler, Lake Superior Judge Elizabeth Tavitas and attorney David Van Gilder of Van Gilder & Trzynka, P.C. to Gov. Eric Holcomb, who will choose one of them to replace retiring Judge Michael Barnes.

The JNC, led by Chief Justice Loretta Rush,completed the second round of interviews with candidates to replace Barnes on Wednesday. Six semi-finalists were selected last month to proceed to the second round after all 12 applicants were interviewed last month. The Commission questioned the applicants on a variety of topics, ranging from their views on stare decisis to the role of politics in the law to past professional experiences and beyond. 

Once the JNC sends the three names to Holcomb, he will have 60 days to pick Barnes’ successor.

Here are some highlights from Wednesday’s six interviews:

Judge Elizabeth F. Tavitas: On any given day, the Indiana Court of Appeals can hand down a dozen opinions, but only a fraction will be considered for-publication rulings. Asked whether the court should issue fewer not-for-publication decisions, Lake Superior Judge Elizabeth Tavitas didn’t necessarily think so. If a case addresses a narrow issue that is fact-specific, then the trial judge said her colleagues on the appellate bench should have the discretion to determine that their decision in that case should not become precedential.

If she were to join the appellate bench, Tavitas said she would be joining a family of 15 judges who are both friends and colleagues. But aside from the personal aspect of joining the court, Tavitas also said she would use her appellate role to promote issues she cares about, such as pro bono representation, and to educate the community about the work of the courts.

Magistrate Judge Deborah A. Domine: Despite the high number of juvenile appeals that come before the Indiana Court of Appeals, none of the judges currently on the bench have a background in juvenile law. Elkhart Circuit Magistrate Judge Deborah Domine said the judiciary would not tolerate that knowledge gap for any other area of the law, so it should not tolerate it for juvenile law. To that end, Domine said her experience hearing juvenile cases would fill that knowledge gap and would signal to the public that juvenile cases are just as important as other areas of the law.

Aside from hearing cases, Domine said joining the COA would allow her to continue her work as a judicial activist — but not in the traditional sense of the word. Rather than legislating from the bench, which Domine said she does not do, her definition of a judicial activist is someone who is actively involved in their community, either by getting involved in local activists or traveling to the Statehouse to lobby for statewide issues. Those are things the magistrate judge said she already does through her work on the trial court bench.

David C. Van Gilder: The JNC frequently noted the disparity between the number of cases the Court of Appeals grants oral argument to and the same number at the Supreme Court. When asked if the lower court should change the number of cases it hears, David Van Gilder said that while time constraints prevent the court from hearing every case that comes before it, oral arguments, when possible, are a very valuable decision-making tool. Van Gilder also noted that the role of the appellate courts can be a mystery to the public, but having oral argument gives people a glimpse into life on the bench.

The work of the courts can also be a mystery to pro se or poor litigants who cannot afford to take their problems to court. To remedy the access to justice gap, the Fort Wayne attorney said the legal profession needs to cultivate a culture of service where pro bono work is common. Creating that culture can begin as early in the process as law school, where fledgling attorneys can be taught the value of service.

Andrew Teel: According to Socrates, there are three skills every judge should have: listening courteously, answering wisely and considering soberly. When asked by Rush which of those he would struggle with the most, Fort Wayne attorney Andrew Teel pointed to the first, but not because he’s a bad listener. Instead, Teel said he’s never had the opportunity to listen to litigants as a judge. But if he were given a seat on the COA bench, Teel said he was confident he would listen courteously to give each litigant a fair court experience.

Among the judges already on the bench, Teel expressed admiration for Judge Paul Mathias, whom he said goes beyond the duties of a judge to advance the practice of law. One example of Mathias’ efforts to advance the law has been his work on the electronic filing rollout, Teel said. If he were appointed to the bench, Teel said he would look for similar opportunities to go beyond the basic “9 to 5” duties of being an appellate judge.

Judge Steven Hostetler: Room 319 of the Indiana statehouse erupted in laughter when St. Joseph Superior Judge Steven Hostetler answered the question of what message his appointment to the COA bench would send: “The third time’s the charm.” Hostetler’s answer was in reference to his two previous bids at joining the Indiana Supreme Court, when the JNC selected him as a finalist and semi-finalist for the seats that ultimately went to justices Geoffrey Slaughter and Christopher Goff. Answering more seriously, Hostetler told the JNC that his appointment would show the legal community that working hard and doing the right thing can advance a career.

Referencing his-would be predecessor, Hostetler closed his interview by recalling a conversation in which Barnes told him that the court must treat all litigants the same, even inmates who file pro se appeals. Though those appeals may be difficult to work through, Hostetler said Barnes’ words reminded him of the importance of equal justice under the law for all Hoosiers. That’s a value he said he adheres to on the trial bench, and one he promised to bring to the appellate court.

Jaime Oss: If there is one thing Valparaiso attorney Jaime Oss would change about Indiana’s appellate system, it would be the appellate rules. Those rules can be burdensome and can differ from trial rules, which makes them difficult to navigate, Oss said. They also present significant challenges to pro se litigants trying to navigate the appellate courts on their own.

But Oss also told the court that her personal beliefs about court rules or the law should not play any role in judicial decision-making. Personal experiences, however, can be more commonly considered, she said, noting that even juries are encouraged to consider common sense when reaching cases.