Friday, June 22, 2007

Daniels Names Bradford To Court of Appeals: What Does It Mean?

Gov. Mitch Daniels took his first step in reshaping the face of Indiana's appellate courts by naming Marion Co. Superior Court judge Cale Bradford to the Court of Appeals, replacing retiring Judge Patrick Sullivan. At the relatively young age of 46, Bradford could easily be rendering decisions for the next quarter-century. The liberal-leaning Blue Indiana reacted negatively to Daniels' appointment today. "This gentleman is no ordinary rightwinger, he is exactly the kind of extremist ("activist") that should not only not be appointed to such a high position, he shouldn't be sitting on a bench period," the blog writes.

Did Daniels appoint a conservative Republican like Bradford to the Court of Appeals to move it further to the right? Possibly. In appointing Bradford, Daniels cited Bradford's criminal law experience as a compelling reason to choose him over Judge William Hughes and Judge Robyn Moberly. "The Court of Appeals reviews many criminal trials, and it’s here where Judge Bradford’s deep experience really stands out,” Daniels said. Bradford also has strong Republican credentials. His grandfather was a Marion Co. GOP chairman in the 1940s, and his father was a close associate of the late Keith Bulen, who was credited with building the Marion Co. GOP into a dominating force for decades.

Bradford first became a judge at the young age of 36 after serving as a Marion Co. Deputy prosecutor and an assistant U.S. attorney for about 7 years. Bradford is not perceived as an intellectual legal scholar by any stretch of the imagination. As he describes himself, “People know that I have a lot of common sense, I’m fair, and I’m collegial. I’ve been doing that all of my life and I have no intention of changing those qualities.” Although Bradford has been a trial court judge for more than a decade, it's not always easy to discern the ideological bent of a trial court judge from his day-to-day rulings. There are some cases which give us a hint of how Bradford thinks.

The Indiana Law Blog draws attention to some of those cases. The most notable case that comes to everyone's mind when they think of Judge Bradford is the so-called Wiccan decision. The Court of Appeals slapped down a ruling he made in a child custody matter instructing the parents of a child not to expose the child to their Wiccan beliefs. The Court found that Judge Bradford had exceeded his authority by imposing his personal belief that the parent's non-mainstream religious beliefs caused harm to their child without making any findings to support his ruling. In another decision, conservatives would argue Judge Bradford showed judicial restraint in tossing out a case brought by the Indiana State Teachers Association challenging the state's school aid formula. A ruling in favor of the plaintiffs in this case would have been tantamount to a court-imposed statewide tax increase.

On partisanship, Judge Bradford was criticized when he refused to recuse himself from consideration of a redistricting decision for the Indianapolis city-county council because his brother, Jim, served as a city-county council member at the time. The state Supreme Court later took charge of the case, throwing out a ruling written by Bradford and adopted along party lines by the county's judges approving a Republican redistricting plan, and redrew the lines to its own liking. Republican partisans are likely to feel comforted that Bradford will not forget his party roots when deciding a case which is politically-charged based upon the redistricting decision.

Some ideologically-driven Republicans may be disappointed that the governor didn't select a more scholarly choice who could be groomed to fill a future vacancy on the Indiana Supreme Court during Daniels' tenure. Given the three choices from whom he had to choose, though, that wasn't really a choice he had. As for an ideological shift on the Court, a decision which is most likely to stir the most interest is any case involving the parenting rights of gays and lesbians. The Court of Appeals has taken a strong stance in support of recognizing gay parenting rights much to the chagrin of the religious right, while the Supreme Court has dodged such cases in the past. There is nothing the religious right folks would like more than to overturn the earlier Court of Appeals decisions on gay parenting rights. While Bradford's views on the subject aren't publicly known, Jim Bradford was one of the most outspoken opponents of Indianapolis' HRO extending protections to gay, lesbian and transgender citizens as a member of the city-county council. So angered he was by its passage that he suggested two Republican city-county council members who voted for the HRO and the consolidation of the law enforcement agencies should leave the Republican Party.


Jacob Perry said...

The fact that it pissed off Blue Indiana is good enough for me.

They probably hate him because he isn't likely to legislate from the bench, which is the cornerstone of liberal activism.

A judge who uses common sense? Go figure...

Wilson46201 said...

Gary: a good writeup about Bradford. Very informative - would that the Star could have such articles...

Charlotte A. Weybright said...

Indiana has 5 circuit courts of appeals, each overseeing several counties, and each court has three justices. The opinions of each circuit court are mandatory authority for that circuit only. Bradford's agenda, if he has one, will only impact the second circuit.

As to his legislating from the bench, he certainly tried to impose his own "religious" notions in the case of Jones v. Jones, 832 N.E. 2d 1057 (2005) when he ordered divorcing parents to keep their child away from their Wiccan practices.

The relevant Indiana Code required that such a restriction had to be based on a showing of harm to the child. Bradford somehow decided it would harm the child, so he decided to ignore the statute and legislate his own belief.

Anonymous said...

I really wish the scribe would point to some actual "activist" decisions, that is, decisions with no basis in law or fact. Otherwise it seems that any judge whose decisions you disagree with is an activist.

Anonymous said...

Actually, while the appellate courts are divided into districts, unlike other states, each district's decision sets precedent for the entire state. In other words, districts only seem to make a difference in ensuring that the judicial appointees come from around the state. Judge Bradford will certainly be setting precedent for the entire state - so wiccans beware!

Your article is thoughtful and well-researched. Seriously, the Star could use a columnist like you. If they were smart, they'd hire you to write guest pieces.

Oh well, the Star's loss is our gain. I continue to look to Advance Indiana for real news.

Thanks for the hard work.

Gary R. Welsh said...

Karen, Thanks for clarifying that point. I thought that was the case. I appreciate your kind comments. I was surprised there was so little information in the Star article today. In a way, the appointment of the appellate court judges is the most important function exercised by the governor. The process in this case has garnered very little attention.

Anonymous said...

In addition to the Wiccan case, Bradford has been reversed in numerous cases since he began hearing civil suits a couple of years ago. What is alarming is that in four of those reversals in the past two years, he was reversed not just for making honest legal errors, but for abuse of discretion. See 862 N.E.2d 1230, 858 N.E.2d 119, 838 N.E.2d 1096, and 832 N.E.2d 1057 (the Wiccan case).

Jacob Perry said...

Seriously "Johnny"?

Nest you're going to demand proof of liberal bias in the MSM. Or that the Earth revolves around the Sun, for that matter.

Charlotte A. Weybright said...

Let me clarify my statements. The state has 5 circuit courts of appeals - the 1st, 2nd, and 3rd circuits cover all 92 counties. The 4th and the 5th cover the entire state.

The decisions of each circuit provide precedent for the other circuits, but it is only persuasive authority. The circuits are not obligated to follow a decision from a circuit different from their own. In other words, the 1st circuit is not bound by the decisions of the 2nd and 3rd circuits.

Bradford will be setting precedent as all cases result in being seen as precedent, but as I stated in my earlier post, his decisions will only be binding on the 2nd circuit. They will constitute persuasive guidelines for the other circuits.

Precedent is not the same thing as mandatory authority or persuasive authority.

Indiana is no different than any other state when it comes to setting precedent and using either mandatory authority or persuasive authority. However, once the Indiana Supreme Court decides an issue then that does become mandatory authority on all circuits and is binding in cases that follow.

I apologize if I did not make my distinctions clear in addressing the issues of mandatory authority and persuasive authority as opposed to precedent.

John M said...

Charlotte, your information is several years out of date. The districts still exist, but primarily for the purpose of geographic balance on the court. The three-judge panels that decide cases are now selected without regard to district. I recently had a case decided by the Court of Appeals, and the three judges on my panel were from three different districts. If you look at the court's current opinions, either on Westlaw of the .pdf documents on the court's website, you will see that there is no district designation. I think your description was once an accurate description of the way the Court of Appeals works, but it is not accurate today, and hasn't been since some time before I was admitted to practice in 1999. A Court of Appeals decision is a Court of Appeals decisions is a Court of Appeals decision.

Anonymous said...

"the scribe"-

Yes, seriously.

Charlotte A. Weybright said...

John M. - I got part of my info off the Court of Appeals website, so I would certainly hope it is accurate.

I also do research on Lexis all the time, and the appeals courts still are designated for purposes of their decisions as First District, Second District, Third District, Fourth District, and Fifth District; however, the citation itself no longer carries a designation. Here is a case, Waldon v. State, 829 N.E.2d 168 (2005), and it has COURT OF APPEALS OF INDIANA, SECOND DISTRICT right in the citation under the name of the case. So the cases are still distinguished numerically by districts.

Indiana Code 33-25-1-2. Districts states as follows:

"Indiana is divided into five (5) geographic districts, which shall be designated as the "court of appeals - First District; Second District; Third District; Fourth District; and Fifth District" as follows: (the segment goes on to list the counties in each district)

In conjunction with the above code section, Indiana Code 33-25-1-5. Docketing of cases - Transfer between districts states as follows:

"A case appealed to the court of appeals shall be placed upon the docket of the district from which the appeal is taken."

As far as no criteria for selection, Indiana Code 33-25-1-3. Residency requirements for judges states:

"(c) When a vacancy is created in the court of appeals, the individual who is appointed by the governor to fill the vacancy must be a resident of the district in which the vacancy occurred." I take this section to mean that Judge Bradford must be a resident of the 2nd district.

The three-judge panels sit together for terms of four months after which they rotate. The panels are selected by a mathematical formula to assure that each member has the opportunity to work with every other member of the court for at least four months out of every thirty months.

If I understand you correctly, you are saying that there is no longer mandatory precedent anymore - "A Court of Appeals decision is a Court of Appeals decisions is a Court of Appeals decision."

Here is a section from the Judiciary part of AccessIndiana:

"Unlike some of our sister states, Indiana does not have a procedure for the Court of Appeals to sit en banc. As a result, there is a possibility that different panels may resolve a particular issue in different ways with no internal mechanism for resolving the conflict. Such conflict between panels is a very significant factor considered by our Supreme Court in deciding whether to grant a petition to transfer."

I am reading this to mean that the different panels assigned to the districts may not decide the same issue the same way. Obviously, if this is the case, then the other district court judicial panels' decisions are not mandatory.

I am not sure we are on the same wave length yet, but I am sure mandatory and persuasive precedent still exist, even in Indiana. If I am incorrect in my assessment of mandatory and persuasive authority, could you please provide some references for me to review? Thanks.

John M said...

Well, as I said, the districts still exist, but their main functions appear to be geographic balance and administration. As I said, I recently had a case decided by the Court of Appeals. My case was pending in Marion County (second district). My panel included judges from Allen County (first district), Monroe County (third district), and Vanderburgh County (third district). So, on which district is my case binding? Of course, conflicts among the various three judge panels may result in the Supreme Court granting transfer, but the three judge panels do not represent any particular district. There are only three judges per district, so the rotating system described by the court's website necessarily involved setting up panels of judges from different districts. Again, the Court's own published opinions no longer identify the district from which the appeal originate. I'll take your work for it on Lexis, which I do not sue, but Westlaw does not list the district, at least not on civil opinions.

I'm not saying that mandatory authority doesn't exist. I'm saying that under the current system, Court of Appeals opinions have equal precedential value in every corner of the state, and are regarded that way by judges and practicing attorneys. I'm a bit pressed for time today, but some time I'll look to see whether there is any difference between civil and criminal cases in this regard.

Anonymous said...

Scribe, you have a point, unless you ignore the case involving his own brother.

It was as partisan and sloppy a ruling as you'll ever likely see.

And that's not legislating from the bench?

The Supremes took it up in three days, and their opinion is good legal reading. They heavily chastised Judge Bradford. The man should have run from the case. Instead, as presiding Superior Judge, he embraced it. A complete lack of judicial and legal ethical reasoning. Control of the City Council hung in the balance. Everyone knew it, including the GOP leadership. While we're not necessarily better off for it, Bradford's ruling was criminally inept and partisan.

For that ruling alone, he should never be considered for a higher position. Ever.

Aside from that legal slip, he's one of the snottiest SOBs on the bench.

The word smarmy comes to mind.

Off with his head.

Anonymous said...


"They probably hate him because he isn't likely to legislate from the bench, which is the cornerstone of liberal activism."

It always cracks me up when the wing-nuts make this stupid statement. Please get out of your brainstem. And you probably like him because he is likely to legislate from the bench, which is the cornerstone of conservative activism.

Jacob Perry said...

Look, I don't even know the guy, and had only heard of him once before this appointment, so everyone just relax.

I never posted anywhere an outright endorsement of him, I just stated an obvious fact.

If the lefties are getting this worked up about a conservative judge, that's a positive for him in my book.

That's typically because lefties believe the courts are the battleground for getting their agendas passed. When a judge believes in following the law, that person typically is attacked in the manner Bradford has been. See:

Alito, Samuel
Roberts, John
Bork, Robert
Thomas, Clarence
Pickering, Charles

Was the Wiccan opinion silly? Possibly, frankly I haven't read it. Surely it can't be as bad an example (or as poorly written) of case law as Roe v. Wade was, the linchpin of liberal religion.

Anonymous said...


"the linchpin of liberal religion"

Jesus was a liberal.

Jacob Perry said...

No doubt He was.

I mean, when I read scripture, I see where He was a big fan of killing babies, as a matter of choice.

And no doubt, He was an even bigger believer in evolution, the junk science of liberalism. I mean, just because He was God, doesn't mean He actually believed in that silly intelligent design stuff, right?

What an asinine statement to make.