Saturday, March 25, 2017

Ind. Courts - Still more on: Complaint filed against Johnson County prosecutor

Updating this ILB post from Oct. 6, 2016, and this one from Sept. 27, 2016, sometime late yesterday (Friday), the Supreme Court posted its disciplinary ruling in the case of Johnson County Prosecutor.

In In the Matter of: Bradley D. Cooper, a one-page, 5-0 order signed by Robert D. Rucker, Acting Chief Justice of Indiana, the Court writes:

Facts: In 2000, Michael Dean Overstreet was convicted of murder and other charges in Johnson County and sentenced to death. Respondent was one of the deputy prosecutors involved with the case at the trial and sentencing phases. In 2013, this Court authorized the filing of a successive petition for post-conviction relief. The matter initially was before Judge Cynthia Emkes, who presided over Overstreet’s trial and sentencing. However, Judge Emkes filed a notice of recusal, and this Court appointed St. Joseph Superior Court Judge Jane Woodward Miller as special judge to hear the case. Overstreet’s successive PCR petition was litigated in St. Joseph County in 2014, and in November 2014 Judge Miller granted the petition. Respondent, now the elected Johnson County Prosecutor, did not participate in the successive PCR litigation.

After Judge Miller granted the petition, Respondent provided a statement to the Indianapolis Star for public dissemination. In that statement, Respondent indicated he was “suspicious” of the transfer of the case to Judge Miller and then offered as purported support for that suspicion additional commentary that was false, misleading, and inflammatory in nature. In considering the statement itself, and the surrounding circumstances in which it was made, we agree with the hearing officer that the statement attacked Judge Miller’s qualifications or integrity and that Respondent made the statement with reckless disregard as to its truth or falsity.

Violation: The Court finds that Respondent violated Professional Conduct Rule 8.2(a), which prohibits making a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.

Discipline: For Respondent’s professional misconduct, the Court imposes a public reprimand.

Holly V. Hays of the Indianapolis Star caught the story and reported it late last evening. From the story:
Cooper told IndyStar via text message Friday night that the ruling reaffirmed a hearing judge's January recommendation for reprimand.

"I printed out the now official 'reprimand,' placed it in an 8.5"x11" frame I bought from Big Lots and have hung it next to the sentencing order of death which hangs on my office wall," he said.

He declined to comment further on the reprimand.

A complaint was filed following comments he made to IndyStar and the Associated Press questioning the decision to bypass the death penalty for Michael Dean Overstreet, who was convicted of the 1997 rape and murder of 18-year-old Franklin College student Kelly Eckart. Cooper was a deputy prosecutor on the team that won Overstreet's conviction in 2000.

The Indiana Supreme Court moved the Overstreet case to St. Joseph County after Johnson Superior Court Judge Cynthia Emkes recused herself for health reasons. The new judge, Jane Woodward Miller, later ruled Overstreet was not competent to be executed.

"I was angry and suspicious when this case was sent to a distant judge who is not accountable to the Johnson County citizenry or a grieving mother who couldn't even afford to drive up for the hearing," Cooper told IndyStar via text message in 2014. "The idea that this convicted rapist murdering monster is too sick to be executed is nothing short of outrageous and is an injustice to the victim, her mother, the jury and the hundreds of people who worked to convict this animal."

Posted by Marcia Oddi on March 25, 2017 10:29 AM
Posted to Ind. Sup.Ct. Decisions

Friday, March 24, 2017

Ind. Decisions - 7th Circuit's Judge Hamilton issues strong opinion in Illinois case

In Sherry Anicich v. Home Depot U.S.A., Inc., a 22-page ND Illionois, ED opinion, Judge Hamilton writes:

This tragic case tests the scope of Illinois employers’ tort liability for intentional torts commit‐ ted by their supervisory employees against other employees where the employer has been negligent. Plaintiff’s complaint alleges that the defendants jointly employed as a supervisor a man with a known history of sexually harassing, verbally abusing, and physically intimidating his female subordinates. The complaint also alleges that the joint employers failed to take reasonable steps in response to female employees’ com‐ plaints and to misbehavior that more senior managers ob‐ served.

The supervisor’s treatment of one subordinate, Alisha Bromfield, included verbally abusing her while throwing things, controlling and monitoring her both during and out‐ side her work hours, and requiring her to come with him on business trips. After five years of that treatment, he used his supervisory authority to require Alisha to come on a personal trip with him—to an out‐of‐state family wedding—by threat‐ ening to fire her or cut her hours if she refused. She went. Af‐ ter the wedding, he killed and raped her. 

  Alisha’s mother, acting as the administrator of the estates of Alisha and Alisha’s unborn daughter, has sued the employ‐ ers. The defendant‐employers persuaded the district court that they had no duty to control this supervisor’s behavior. We respectfully disagree. Illinois law permits recovery from employers whose negligent hiring, supervision, or retention of their employees causes injury. The unusually detailed com‐ plaint plausibly states such claims. We believe the Illinois courts would apply this general principle to the claims arising from Alisha’s murder. * * *

The defendants and the district court emphasize that Cooper never made explicit threats and never physically harmed anyone before his fatal attack on Alisha. The district court’s opinion all but requires such a history to support an inference of reasonable foreseeability. * * *

The defendants’ argument also assumes that none of Cooper’s alleged behavior was implicitly threatening. That is incorrect. Anyone who saw Cooper, for example, “throwing and slamming items in the garden center and … parking lot while screaming obscenities,” Am. Compl. ¶ 39, could have easily concluded that Cooper either was dangerous because he had lost control of himself or was trying to frighten Alisha.

Every life lost to brutality is unique, each family’s hell a private one. We do not diminish that truth when we repeat that Alisha’s story is an old story that has been told too many times.8 Its ending is both shocking and predictable. Alisha’s family is entitled to try to prove its truth.

For these reasons, we REVERSE the judgment of the dis‐ trict court in favor of defendants and REMAND for further proceedings consistent with this opinion.

Posted by Marcia Oddi on March 24, 2017 01:16 PM
Posted to Ind. (7th Cir.) Decisions

Environment - "People in Pittsburgh can report odors to authorities using a smartphone app"

James Bruggers reports today in the Louisville Courier-Journal:

Pittsburgh's got an app for them.

It's called Smell PGH.

And there's a case to be made that Louisvillians should have a Smell LOU app on their iPhones.

The smartphone app allows people in Pittsburgh to report and describe any pungent emanations as they are being detected, with the information going to public health officials charged with investigating such complaints. People reporting the odors can also see on a map what other people are experiencing, and where.

"There is an empowerment in that," said M. Beatrice Dias, project director of the CREATE Lab at Carnegie Mellon University, which developed the app with support from the Heinz Endowments. * * *

Odors can be a nuisance, sometimes minor, sometimes serious. They can indicate the presence of pollution that could be harmful and in a localized area not detected by regional air quality monitoring.

The app came out of work CREATE Lab did to help connect and empower – with cameras and shared Google spreadsheets – a neighborhood that was having difficulty with pollution from a coke works industrial plant, Dias said. Carnegie Mellon rolled it out last fall and it's available for anyone to use.

Posted by Marcia Oddi on March 24, 2017 10:05 AM
Posted to Environment | Indiana Government

Ind. Gov't. - More on "Bills that allow police to take DNA upon arrest advance"

Updating this ILB post from Feb. 21st, Madeline Buckley reported March 22nd for the Indianapolis Star - some quotes from the long story:

If an individual is arrested, and DNA is collected — but prosecutors do not immediately file charges — how long should the government be able to hold on to the DNA sample?

Is 30 days enough time? What about six months?

Or should the government be allowed to keep a person's DNA for a year, even if he or she has not been formally charged with a crime?

Lawmakers on Wednesday debated the question during a committee hearing for a bill that would allow police to take a DNA sample upon arrest, broadening the scope of the state's DNA database, which currently only takes samples from those who have been convicted of a crime.

Versions of the bill have passed both the House and the Senate, signaling support for the measure, which proponents say will help police solve crimes and could exonerate innocent people. But the proposal also has generated vigorous debate about privacy rights and the potential for government overreach.

Now, the bills are back in committee hearings as lawmakers hash out details about how the measure would actually work, if enacted. * * *

In the version of House Bill 1577, which passed the Indiana House of Representatives, a person could remove a DNA sample from the system if no charge was filed within 30 days. But as lawmakers are working to align that bill with the similar Senate Bill 322, which passed the Senate, they altered the provision so that prosecutors now have a full year to file charges before an individual can remove a DNA sample from the system.

Posted by Marcia Oddi on March 24, 2017 09:54 AM
Posted to Indiana Government

Ind. Gov't. - "Can you hear us? Public deserves say in 'small cell' placement"

From a long Fort Wayne Journal Gazette editorial yesterday on SB 213:

Jim Sack was not happy when a new utility tower popped up along his beloved Rudisill Boulevard.

“I called the city and acted like a spoiled brat,” he said, “That boulevard is my baby. I was jumping up and down and insisting they move it, so it went from the north side of the road to the south side. I called again and it finally got moved to Bluffton Road and Broadway.”

But the city wasn’t behind the new pole. It was Verizon Wireless, which is installing small towers across the city as part of its new 5G network expansion. Last June, The Journal Gazette’s Frank Gray reported on a Wallen Road resident who had a similar experience, with a pole originally planted in the right of way in front of his home.

If Senate Bill 213 passes the Indiana General Assembly in its current form, there will be many unhappy property owners, and local elected officials will have no authority to intervene when a telecommunications company decides a spot outside a home, business or church is the best place for its tower. The legislation makes placement of a “small cell facility” exempt from local zoning review.

Make no mistake: A 5G network is a good thing to have. It delivers data at up to 10 times the speed of the current LTE network, so video streams smoothly; websites load instantly. As with most new technology, consumers will demand it once it’s available.

But for now, the technology requires many smaller towers – ideally about every 500 feet – in addition to the large towers. With five wireless carriers in Indiana, it could mean thousands of new towers in densely populated areas.

The House Utilities, Energy and Telecommunications Committee last week heard representatives for the industry extol the benefits of 5G, suggesting Indiana needs to pass the bill to support economic development.

Posted by Marcia Oddi on March 24, 2017 09:47 AM
Posted to Indiana Government

Ind. Gov't. - "Emails reveal problems and fears with state asbestos investigation"

Sandra Chapman reported for 13 WTHR last evening in a story that began:

INDIANAPOLIS (WTHR) - A new legal team for the Indiana Attorney General is releasing critical emails in response to a lawsuit.

The emails were originally "blacked out" by the state's top environmental agency.

13 Investigates now has copies of the correspondence too, showing what IDEM was hiding as contamination piled up in an Indiana neighborhood.

Entire pages of emails once "blacked out" are now filled in.

No more hiding what the Indiana Department of Environmental Management knew about the removal of asbestos and asbestos-laced debris left blowing in the wind in Goshen.

In a move toward transparency, the Indiana Attorney General's office released 28 emails to 13 Investigates.

Key emails came from an IDEM inspector who is under scrutiny for issuing "no violations" for improper asbestos removal at the old Johnson Controls site, despite confirmed asbestos samples in hand.

Homeowners living near the site close to Goshen High School took IDEM to court to demand the agency come clean.

Instead of fighting to keep the records confidential, the Indiana Attorney General's Office decided to turn over un-redacted copies to a federal court.

ILB: The ILB does not yet have the name of the federal lawsuit ...

Posted by Marcia Oddi on March 24, 2017 09:40 AM
Posted to Environment | Indiana Government

Thursday, March 23, 2017

About the ILB - An opportunity for your firm or company to become the ILB's exclusive sponsor

Over Tuesday and Wednesday, the ILB had 12,876 page views - 5,474 on March 21st and 7,402 on March 22nd.

The ILB is looking for a new sponsor (or group of several sponsors) to step forward to support its mission, which began in 2003, of collecting and reporting on the news that matters to lawyers, judges and citizens across Indiana.

Contact me with serious inquiries. Thank you.

Posted by Marcia Oddi on March 23, 2017 03:41 PM
Posted to About the Indiana Law Blog

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 2 NFP memorandum decision(s))

For publication opinions today (2):

In John E. Warner, Jr.; Rick Clay; Sam Early; Brian Goeglein; Mike Campbell; Brad Wilson; and John Zimmerman v. Chauffeurs, Teamsters, and Helpers Local Union No. 414 and Speedway Redi Mix, Inc. , a 14-page opinion, Judge Bradford concludes:

We conclude that the Drivers’ claim that the Union and Employer have required them to remain members of the Union in violation of the Act is a claim upon which relief can be granted. Consequently, we reverse the trial court’s grant of the Union’s motion to dismiss this claim. However, we conclude that the Drivers’ claim based on the Dues Checkoffs is a claim over which Indiana courts have no jurisdiction. We affirm the trial court’s dismissal of that claim and its associated claim of money had and received. We affirm the judgment of the trial court in part, reverse in part, and remand for further proceedings consistent with this opinion.
In Hoosier Mountain Bike Association, Inc., City of Indianapolis, and Indy Parks and Recreation v. Richard Kaler , a 14-page opinion, Judge Riley writes:
Appellants-Defendants, the City of Indianapolis and Indy Parks and Recreation (the City),3 appeal the trial court’s denial of their motion for summary judgment with respect to Appellee-Plaintiff’s, Richard Kaler (Kaler), claims of negligence after Kaler sustained injuries in riding the City’s mountain bike trail at Town Run Trail Park.

The City presents us with four issues on appeal, which we consolidate and restate as follows: (1) Whether a genuine issue of material fact precluded the entry of summary judgment on Kaler’s claim of premises liability; and (2) Whether a genuine issue of material fact precluded the entry of summary judgment based on the City’s claim that Kaler was contributorily negligent. * * *

Based on the foregoing, we hold that there is no genuine issue of material fact that precludes the entry of summary judgment in the City’s favor on Kaler’s claim of premises liability; and Kaler was contributorily negligent when riding the City’s mountain bike trail at Town Run. Reversed.

NFP civil decisions today (0):

NFP juvenile and criminal decisions today (2):

Bradly Paul Canter v. State of Indiana (mem. dec.)

Jabril Scruggs v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on March 23, 2017 11:16 AM
Posted to Ind. App.Ct. Decisions

Ind. Courts - " Body-cam videos play key role in local cases: New technology working its way into legal system"

That is the headline to a long March 20th story in the $$ Bloomington Herald-Times, reported by Laura Lane. [Some of the story may be accessed via the Indiana Economic Digest.] Some quotes:

Police body cameras have become part of the uniform, a safety accessory along with the service revolver, pepper spray, riot baton and bullet-proof vest.

Video and audio footage from cameras clipped to officers’ shirts is finding its way into courtrooms, used as evidence in criminal cases.

“We believe that it is now a ‘best practice,’ as well as good public policy, for all police to be equipped with body-cam technology,” said Bob Miller, chief deputy prosecutor in Monroe County. “There is simply no better evidence of what occurs during a police-citizen encounter than video of the event.”

In October 2014, a body camera clipped to BPD Officer William Abram’s uniform recorded the sounds of gunshots from inside a dark residence where two women were being raped at gunpoint. The video shows two men escaping from a bedroom window and one turning and firing toward Abram, who shot back.

It documents just what happened and backed up the officer’s account.

It’s evidence. Strong evidence.

During a trial this month in Monroe Circuit Court in which a man was convicted of causing his 2-month-old daughter’s death, deputy prosecutor David Gohn played for jurors a video and audio recording. It came from a Bloomington police officer’s body camera that was on when the parents of the battered infant were told that despite efforts to revive her, Kenya Rose Smith-Barton had died. * * *

Video from the cameras is downloaded at the end of each officer’s shift and preserved on a server. Video not related to criminal cases is generally kept for six months, he said. Video involving arrests and circumstances where criminal charges are filed is passed along to the prosecutor’s office and kept until the case is over.

What is pertinent and allowed as evidence for a trial is determined by rules of evidence and a judge’s interpretation. Miller said body-cam evidence is available to both the prosecution and the defense.

“The rules governing its admissibility are no different than any other photographic or video exhibits,” he said. “Clearly, it must be relevant to the issues before the court, and it must be properly maintained to avoid any risk of tampering.”

He said that before such evidence can be used in an attorney’s closing statement, as it was in McNeil’s trial, it must first be admitted as an exhibit through a witness, most often the officer who was wearing it. “We believe that this kind of ‘real time’ evidence is helpful to jurors in many cases,” Miller said. Sometimes, it helps determine a verdict.

Posted by Marcia Oddi on March 23, 2017 10:47 AM
Posted to Indiana Courts

Ind. Courts - "Indiana police digitally transform the search warrant process"

That is the headline to this company news release issued March 20th. Some quotes:

Marion County Superior Court in Indiana wanted to speed and streamline the search warrant process. By digitally transforming systems, the county could handle its annual 4,000 warrants better by reacting faster and more accurately.

Working with BerkOne and using Kofax software, Marion County deployed an electronic warrants system to request and receive approval for search warrants digitally from their vehicles’ computers. * * *

If a submission in a clerk’s queue is not processed within 10 minutes of receipt, the clerk receives another email alert. Similarly, judges are given 25 minutes to review and approve or deny a warrant. Once that time has elapsed, the job is automatically assigned to a secondary judge, who is notified by email and given 10 minutes to complete the review.

In Marion County, the new electronic warrants system has reduced approval time from hours to an average of 18 minutes,

Posted by Marcia Oddi on March 23, 2017 10:21 AM
Posted to Indiana Courts

Courts - Big box/dark box in other states: Wisconsin, Kentucky

Updating a long list of earlier ILB posts, here is a March 19th AP a story from Wisconsin, headed "Big Box Stores Gird for Battle with Wisconsin Cities."

And yesterday Valarie Honeycutt Spears of the Lexington Herald-Leader reported "Walgreens loses tax lawsuit that could have cost Kentucky schools millions." This seems a lot like the big box/dark box issue in other states, but the ILB can't say for sure. Some quotes from the lengthy story:

The Kentucky Supreme Court declined this month to hear an appeal brought by Walgreens Co., presumably ending a longstanding legal battle between the pharmacy chain and Fayette County officials that threatened to strip hundreds of millions of dollars from Kentucky’s school districts. * * *

In its lawsuit, Walgreens contended that Kentucky PVAs use the wrong methodology to determine the value of its stores, resulting in inflated values and unfairly high tax bills. Statewide, Walgreens had appealed the valuation on most of its approximately 94 stores to the state board of tax appeals, O’Neill said. * * *

O’Neill said his office and Fayette County Attorney Larry Roberts’ office “stepped up to take this case on behalf of the entire state.”

“It’s far-more reaching than Walgreens,” O’Neill said. “It’s any number of national chains.”

The 2015 ruling in Fayette Circuit Court said the method O’Neill used to value the property “was not arbitrary or capricious, nor was it clearly erroneous.”

The appeals court concurred, saying, “While Walgreens demonstrated an alternative method for assessing the property, it failed to present convincing evidence that the PVA’s assessment overvalued the property.”

There are three accepted practices for determining a property’s value:

▪ For a residential property, PVAs usually base their estimates on comparable sales in a given neighborhood.

▪ For a new commercial property, PVAs sometimes look at the cost of construction.

▪ For an existing commercial property, PVAs usually determine a value by calculating how much income it can generate. In other words, what could a real estate holding company collect by renting the property over time to a corporation, such as Walgreens?

Walgreens contended that its stores should be assessed based on the sales price of comparable properties, not its cost to lease the stores.

Posted by Marcia Oddi on March 23, 2017 09:32 AM
Posted to Courts in general

Ind. Gov't. - More on "Wrong statements by lawmaker on solar energy stir backlash"

Updating this ILB post from Feb. 27, and a long list of other posts on net metering, Robert King of the Indianapolis Star reported March 21 in a long story headed "Solar energy at crossroads in Indiana" that begins:

To hear solar energy enthusiasts tell it, the future of a growing Indiana industry is at stake, one that benefits homeowners, small businesses, churches and schools; that provides good jobs and, yes, helps the planet.

To hear big utilities describe it, the solar industry is well enough established in Indiana that it should be able to stand without the incentives that got it off the ground, and that could someday become costly to other power customers.

Perspectives aside, there’s little argument that the bill being debated Wednesday [yesterday] in the Indiana House could be a pivot point for the state’s community of small-scale power generators — be they from solar, wind or other forms.

The pivot point, both sides agree, is Senate Bill 309, which has generated as much energy as any other issue in the legislature this year. It pits the well-financed utility industry — which has spent more than $1 million on campaign contributions to legislators in the past year — against a collection of grassroots groups whose members have crowded town hall meetings and Statehouse hearing rooms.

At stake with SB 309 is the financial incentive that helps offset the considerable installation costs of solar panels, wind turbines and other equipment for small producers, through a process called net metering. The incentive allowed them to sell any surplus power back to the utility companies at retail rates, currently around 11 cents a kilowatt hour. The bill would eventually lower the credit for the surplus to the wholesale rate, currently about of 3.5 cents a kilowatt hour.

Posted by Marcia Oddi on March 23, 2017 09:17 AM
Posted to Indiana Government

Ind. Gov't. - Update on forfeiture bills

"Forfeiture bill faces almost certain death this session" reports Fatima Hussein, in an Indianapolis Star story. Rep. Washburne, R-Evansville, chairman of House Courts & Criminal Code committe, "said in an email to IndyStar that the House is not likely to hear Senate Bill 8." (Yes, the same Washburne who was yesterday named a semi-finalist for the Supreme Court). The story reports that instead, House Bill 1123, "which assigns a study committee on the topic of civil forfeiture laws ... has passed through the House and Senate and now awaits a signature from Gov. Eric Holcomb." The story continues:

Several lawsuits challenging the constitutionality of seizure are being litigated from the county to state levels. Attorneys say there is more at stake, especially if Senate Bill 8 dies.

Cardella at IU filed a class-action lawsuit in federal court against Marion County's prosecutor, Indianapolis' mayor and the chief of police for civil forfeiture practices that he says violate criminal defendants' constitutional right to due process.

"If the legislature isn't going to fix the problem, the fix is going to have to come from the courts," he said.

Cardella's suit [Jeff Cardella, an Indianapolis criminal law attorney and professor at Indiana University's Robert H. McKinney School of Law] has endured despite the state's attempts to dismiss the lawsuit. Federal Judge Magnus-Stinson issued a ruling earlier this month denying Marion County's motion to dismiss Leroy Washington v. Marion County Prosecutor.

In the event Cardella is not successful, "we will appeal," he said.

Later this week [ILB: today at 9 am], Indiana's Supreme Court will hear State v. Timbs, Landrover, a case where the state sought forfeiture of a Land Rover owned by Tyson Timbs, an Indiana man who had pleaded guilty to a multiple felonies dealing in a controlled substance and theft.

Timbs used the vehicle to drive from Marion, Indiana to Richmond, Indiana for the purposes of purchasing heroin. He alleges that the seizure of the vehicle, worth approximately $40,000, violates the 8th Amendment’s prohibition against excessive fines.

The Grant Superior Court entered judgment for Timbs on the forfeiture complaint. A majority of the Court of Appeals affirmed on grounds that the forfeiture would constitute excessive fines.

The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

ILB: More on forfeiture bills via this list.

Posted by Marcia Oddi on March 23, 2017 08:49 AM
Posted to Indiana Government

Wednesday, March 22, 2017

Vacancy On Supreme Court 2017 - Thoughts on the First Round

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

For those who have asked, yes, the questions were more difficult yesterday and today than in earlier first rounds. There were no standard opening question(s), and many of the questions were the type of questions (or actual questions) asked in the second round in the past. As Commission members fairly noted, this is a second or third interview for many of the applicants, most of whom have interviewed in the past. I jokingly asked on a break if the second round this year would be a cage match.

The questions were certainly fair and the Commission (and citizens and lawyers of the state) should expect applicants to discuss a variety of legal issues in a cogent and hopefully thoughtful way. This is not an easy process, but we should expect a lot before someone receives a lifetime job (retention elections have never been close in Indiana) on the state’s highest court.

Today’s deliberations should have been easier than the deliberations will be after the second round in April. The Commission was not limited in the number of applicants it could advance. In recent selection processes, about half advanced, although a much smaller percentage advanced when 34 applicants applied in 2010. Today’s vote of eleven names (or 55%) is a bit higher than the past.

I am not surprised with the list of eleven. I created a list of nine names earlier this afternoon that I thought would (that’s “would” not necessarily “should”) advance. All nine did indeed. The interview surely matters, but a less-than-stellar interview is not necessarily disqualifying, as today’s list shows. Some applicants come to the interview with an especially strong application or support on the Commission. Although today’s public vote was unanimous (after Mr. Feighner made a motion seconded by Mr. Yakym), applicants certainly had varying degrees of support among the members, as the four-plus hours of deliberation would suggest.

For what it’s worth, as I have written in the past, trial judges excelled in the interviews — Judges Foley, Carmichael, Goff, and Hostetler were especially strong. Although practice or familiarity with the process surely helps, first-time applicant Judge Foley made most of his shots, some from three-point range (to continue with the basketball reference from earlier today).

These and other applicants with strong interviews generally answered questions directly and succinctly while demonstrating a nuanced and thoughtful understanding of the role of an Indiana Supreme Court justice. One could envision them sitting at the conference table discussing cases, asking questions in an oral argument, chairing an important meeting, or speaking to a group of lawyers or schoolchildren.

Those who struggled with parts of the interview may have not adequately prepared or may have over-prepared, to the point of offering non-responsive and seemingly canned answers to questions. The Commission’s questions expected familiarity with the work of the Indiana Supreme Court, including its opinions and administrative work. Many answers demonstrated a sufficient understanding, while others sometimes went into territory likely to alienate at least some members of the Commission, like a discussion of a recent 3-2 opinion.

All that said, I hope those reading this will both congratulate those who advanced and thank those who did not. I remain a big proponent of Indiana’s merit selection system, which only works when individuals agree to step forward and apply as part of a public and something challenging process.

Posted by Marcia Oddi on March 22, 2017 07:11 PM
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Commission selects 11 finalists for second interview

Here is the official news release:

The Judicial Nominating Commission named 11 finalists for the 110th Supreme Court judicial position. The Commission conducted public interviews of twenty applicants March 21-22. The following applicants will be invited to second interviews with the JNC in April:

Hon. Vicki L. Carmichael, Clark Circuit Court 4
Hon. Peter R. Foley, Morgan Superior Court 1
Hon. Christopher M. Goff, Wabash Superior Court
Hon. Maria D. Granger, Floyd Superior Court 3
Ms. Elizabeth C. Green, Indianapolis, Indiana
Ms. Leslie C. Henderzahs, Fishers, Indiana
Hon. Steven L. Hostetler, St. Joseph Superior Court
Hon. Matthew C. Kincaid, Boone Superior Court 1
Mr. William N. Riley, Indianapolis, Indiana
Mr. Peter J. Rusthoven, Indianapolis, Indiana
Rep. Thomas W. Washburne, Evansville, Indiana

On May 12, 2017 Justice Robert D. Rucker will retire from the five-member Supreme Court. According to the Indiana Constitution and state statute, the seven-member Commission must recruit and select candidates to fill the vacancy on the state’s highest court. Applications and photographs of judges and lawyers who were interviewed for the position are available online. The Commission considers applicants’ legal education, writings, reputation in the practice of law, and other pertinent information.

The Commission will interview the 11 finalists April 17-19. The Commission will then publicly vote to send three nominees to the Governor who has 60 days to select Indiana's next justice.

Posted by Marcia Oddi on March 22, 2017 05:35 PM
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - JNC names semi-finalists

Here are the names, announced slightly after 5 pm this afternoon:

Carmichael
Foley
Goff
Granger
Green
Henderzahs
Hostetler
Kincaid
Riley
Rusthoven
Washburne

Posted by Marcia Oddi on March 22, 2017 05:16 PM
Posted to Vacancy on Supreme Court - 2017

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 12 NFP memorandum decision(s))

For publication opinions today (2):

In Lisa Gill, et al. v. Jeffrey B. Gill, et al. , an 11-page opinion,. Judge Bradford concludes:

In sum, we are bound by the Indiana Supreme Court’s decision with regard to the constitutionality of statutory authority allowing a trial court to order a divorced parent to contribute to their child’s post-secondary educational expenses. In addition, with respect to Jasen Simcox, the trial court did not abuse its discretion in (1) crediting him for nonconforming child support payments made to Amy Likes or (2) basing his financial obligation for T.S.’s post-secondary education on the cost of a public university rather than a private university. In this consolidated appeal, the judgments of the trial courts are affirmed.
In Corey A. McAlpin v. State of Indiana, an 11-page, 2-1 opinion, Chief Judge Vaidik writes:
The State charged Corey A. McAlpin with Level 4 felony dealing in methamphetamine (manufacturing), alleging that he was found to be manufacturing the drug around 10 a.m. on August 21, 2014. The State enhanced the offense from a Level 5 felony to a Level 4 felony because it claimed that McAlpin committed the offense in a drug-free zone, that is, in, on, or within 500 feet of Bicentennial Park in Madison, Indiana, “while a person under eighteen (18) years of age was reasonably expected to be present.” Given that August 21 was a school day for public and private schools in the Madison area and the unique status of Bicentennial Park as having an outdoor amphitheater but no playground equipment, benches, or shade trees, we conclude that the State has failed to prove beyond a reasonable doubt that it was reasonably expected that children would be present at the park at the time of the offense. We therefore vacate McAlpin’s conviction for Level 4 felony dealing in methamphetamine and remand with instructions for the trial court to enter judgment of conviction for Level 5 felony dealing in methamphetamine and to resentence him accordingly. * * *

Reversed and remanded.
Brown, J., concurs.
Bradford, J., dissents with separate opinion. [that begins, at p. 8] Because I disagree with the majority’s conclusion that the State failed to prove beyond a reasonable doubt that children were reasonably expected to be present at Bicentennial Park at 10 a.m. that day, I respectfully dissent.

NFP civil decisions today (0):

NFP juvenile and criminal decisions today (12):

Robert A. Ellington, III v. State of Indiana (mem. dec.)

John Edward Williams v. State of Indiana (mem. dec.)

Stephen Roberts v. State of Indiana (mem. dec.)

Michael Jurell Jones v. State of Indiana (mem. dec.)

Kenneth Scott v. State of Indiana (mem. dec.)

Ronald Tolliver v. State of Indiana (mem. dec.)

Trevor J. Laughman v. State of Indiana (mem. dec.)

Latosha Price v. State of Indiana (mem. dec.)

Billy Neeley v. State of Indiana (mem. dec.)

Austin Jay Huffman v. State of Indiana (mem. dec.)

John F.M. Shaw v. State of Indiana (mem. dec.)

William Harvey Ellis, Sr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on March 22, 2017 02:30 PM
Posted to Ind. App.Ct. Decisions

Vacancy On Supreme Court 2017 - Day 18: Report On Interview #20, Mr. Bryce D. Owens

This is Prof. Joel Schumm's report on the 20th, and final, interview of the first round

Mr. Bryce D. Owens, Pendleton (photo) (application)

In response to a question about filling the shoes of Justice Rucker, Mr. Owens said he does not pretend he could fill Justice Rucker’s shoes. Mr. Owens said he has “basically twelve years left,” which he would like to spend as a sprint to help get the work of the Court done.

In response to a question about improving the court system, Mr. Owens noted the need for the Court to be a leader. He said it is important to bring more people into the process so they understand the process, which is being done with traveling oral arguments. He noted concern about individuals with minor injuries being able to bring their cases because of the cost of experts. He suggested for cases under $25,000 that individuals might be allowed to present their medical bills to seek compensation.

In response to a question about a justice he would emulate, Mr. Owens cited Justice Douglas, who advocated for the small person, which he said it important because the Court is the last arbiter.

Mr. Owens said he would stay in his current residence, about one hour from the Court, if selected. His application noted that he lives “on a small farm. We have llamas, alpacas and a variety of other animals.”

In response to a question about the duties of the Court, Mr. Owens said he is reflective, contemplative, and a good listener.

Mr. Owens believes a dissent can be important and is written for the benefit of the bar. The purpose is not to get at anybody but it is important to illustrate the difference of opinion on an issue.

Mr. Feighner returned to the Justice Douglas response, and asked about the right to privacy and role of the Indiana Supreme Court. He noted the importance of protecting some sphere of privacy, even in an era when many people expose a great deal of information on social media.

In response to a question about a significant case, Mr. Owens recited Brown v. Board of Education. He noted it took many years to get to the point that separate is not equal. The case is important because it advances society and incorporates everyone.

Posted by Marcia Oddi on March 22, 2017 12:59 PM
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 2: Report On Interview #19, Hon. Christopher M. Goff

This is Prof. Joel Schumm's report on the 19th interview of Day 2

Hon. Christopher M. Goff, Wabash Superior Court (photo) (application)

In response to a question about transitioning from a small county trial court judge to the court of last resort, Judge Goff noted that people may underestimate him. He is confident is ability to get the job done. He has become accustomed to being a judge and would enjoy the opportunity to contemplate decisions more and in collaboration with four other people.

In response to a question about professional regrets, Judge Goff said he is a decider and focuses on the applicable rules when he makes decisions. He regrets that he does not have more time to thank his staff who are ones who allow him to look good and do his job well.

In response to a question about his experience as a rural county judge, Judge Goff noted the way his county has adjusted to changes in the law, like criminal justice reform, is a model for other counties.

In response to taking cases under advisement, Judge Goff said speedy justice is important and he has a list of cases he will decide each week. Complex matters may take longer. He believes he has two cases under advisement, the longest of which since February 27.

In response to a question from Mr. Young, Judge Goff discussed his work with problem-solving courts, which seek to hold people accountable while working to resolve the root causes. They are especially important in rural counties.

In response to a question about what he would ask the founding fathers, he recounted a family trip to Williamsburg and the way the country has changes since its founding. He then said, to laughter, he would ask them sometimes, “what did they mean?”

In response to a question about how he would approach a case, Judge Goff would begin with a thorough review of the record, consult with as many people as possible, and have a discussion to make sure he was reaching the correct decision. He would consult amicus brief if they were available. Following up, Mr. Feighner noted Judge Goff was the first applicant to mention amicus briefs. When asked about the weight to be given to amicus briefs, Judge Goff said the facts of the case are most important, but amicus brief could provide useful information.
In response to a question about treatment of a little person in a case with a corporation, Judge Goff responded that everyone is equal under the law.

In response to a question about administrative work and working with others, Judge Goff said he would want to take on big projects, citing his recent work on a domestic violence project, working with state court administration, SPEA, and others.

Posted by Marcia Oddi on March 22, 2017 12:45 PM
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 18: Report On Interview #18, Ms. Leanna K. Weissmann

This is Prof. Joel Schumm's report on the 18th interview of Day 2

Ms. Leanna K. Weissmann, Lawrenceburg (photo) (application)

Chief Justice Rush began by noting the Ms. Weissmann is “quite a powerhouse,” and Ms. Weissmann responded that she had done sixteen oral arguments.

In response to a question about the application of Article 1, Ms. Weissmann said one would need to ensure the person was in the country legally.

In response to the question about Justice Sullivan’s eulogy of Justice DeBruler, Ms. Weissmann discussed the greater protections of the Indiana Constitution, such as Article 1, Section 11 and trash searches. She noted Justice Sullivan was one of her favorite justices before whom she always enjoyed arguing.

Ms. Weissmann said her judicial philosophy was cemented through her work with Justice Rucker. She discussed researching a case that required going back to the 1600s. She would ensure that every case is treated equally; everyone has the equal right to have every judge look at their case in the same way.

When asked about filling Justice Rucker’s seat, Ms. Weissmann explained the Court works well because five different people bring different perspectives. She has spent her career largely as a public defender, giving a voice to the voiceless.

In the past year, Ms. Weissmann noted the lengthy, non-typical application and said she has immersed herself in the study of Indiana law and history as well as doing more civil work.

In response to a question about interpreting the Constitution, Ms. Weissmann said the language and intent are important but that it is not “either or” because the Constitution can build and grow in the future.

In response to question about where she would have been in 1896 in Plessey v. Ferguson, Ms. Weissmann said she did not know, although she hoped she would have been a vocal advocate against anything contrary to basic human rights.

In response to a question about her work as a solo practitioner, Ms. Weissmann said she had staff that work remotely. As a justice, Ms. Weissmann said she is a consensus-builder, noting her work on the Disciplinary Commission. When noting she had visited many jails and asked if judges should, Ms. Weissmann said it’s a “reality check” and they should.

In response to a question from Mr. Young about an important opinion from Justice Rucker, Ms. Weissmann identified the Holden opinion on jury nullification, which stands out as well-written and deep.

When asked about anything beyond her application, Ms. Weissmann discussed her teaching at Ivy Tech, which involves many students who will become police officers. She recently heard from one of her students who was accepted to law school and said she was the reason he wanted to be an attorney.

Posted by Marcia Oddi on March 22, 2017 11:53 AM
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 2: Report On Interview #17, Ms. Elizabeth C. Green

This is Prof. Joel Schumm's report on the 17th interview of Day 2

Ms. Elizabeth C. Green, Indianapolis (photo) (application)

In response to a question about her reasons for applying, Ms. Green noted the “unique time” in which we live and the opportunity to help lead the judiciary for decades to come. She believed one of the biggest challenges would be to learn other areas of law, like criminal law, although she has a broad range of experience from her practice thus far.

In response to a question about areas for improvement, Ms. Green discussed efiling, noting some hiccups that could be improved. She also discussed the importance of access for unrepresented litigants.

In response to a question about what has changed in the past year and her preparation, Ms. Green discussed her increased participation, in such things as “We the People” and the upcoming state bar moot court competition, as well as reading more cases and law review articles.

In response to a question about recent cases that have caught her eye, Ms. Green discussed two summary judgment cases as well as the Myers asbestos case, including a discussion of the dissenting opinions as well.

In response to a question about recusal if cases from her firm made it to the Court, Ms. Green said she would need to review the rules and surely any case in which she had been involved would require her recusal.

In response to a question about administrative work, Ms. Green noted she had read recent annual reports and State of the Judiciary speeches, she said she was particularly interested in education, working with younger attorneys, and the unauthorized practice of law.

In response to a question about her young age, Ms. Green said she has packed a lot into her years of practice and “did not feel young” as she approaches 40. She noted the job is not one she would perform alone, and the importance of bringing someone to the bench who will still be there in ten or twenty years.

In response to a question about influences on her ethics, Ms. Green discussed the influence of her parents. She said she has a high ethical code for herself, which she follows every day at work and outside work.

In response to a question about dissenting opinions, Ms. Green said she would dissent if she thought the majority was wrong after carefully listening to all the views of the other justices. The audience would be the majority, which may change its opinion as a result. Mr. Feighner followed up about the dissenting opinions in the Myers case, and Ms. Green noted it spoke to both the majority and the public.

In response to a question about the justice she admired most, Ms. Green pointed to Chief Justice Roberts, who keeps a cool and calm demeanor and builds a consensus on the Court.

Posted by Marcia Oddi on March 22, 2017 11:47 AM
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 2: Report On Interview #16, Hon. Vicki L. Carmichael

This is Prof. Joel Schumm's report on the 16th interview of Day 2

Hon. Vicki L. Carmichael, Clark Circuit Court 4 (photo) (application)

In response to a question from Chief Justice Rush about why only twenty people out of thousands would apply for this vacancy, Judge Carmichael said she was surprised. She had no suggestions for changing the process, which she said was very open , that she had an opportunity to meet with the Commissioners, and the application was easy to complete.

In response to a question from Mr. Feighner about the experience she would bring to the bench, Judge Carmichael noted her experience as a mediator and as a public defender and in private practice doing criminal defense work. She said people from different parts of the state approach issues differently, and in Southern Indiana there hasn’t been a civil jury trial in a few years. People are more likely to settle cases, which she said is not a bad thing.

In response to a question about interpreting statutes, Judge Carmichael emphasized the importance of the plain meaning of the words, citing two recent Indiana Supreme Court opinions.

In response to a question from Mr. Berger, Judge Carmichael responded that Article 1 applies both to citizens and non-citizens while in the state.

Judge Carmichael discussed the importance of giving people their day in court, approaching cases with compassion, and noted the way Justice Rucker has shown a genuine care for the people of Indiana.

Judge Carmichael said she teaches her students at Ivy Tech that the law isn’t black or white; it’s gray.

In response to a question about an opinion that has shaped her legal philosophy, Judge Carmichael said she cited the Justice Scalia’s Second Amendment opinion in Heller, which relies not just on text but also precedent and the views of legal scholars.

In response to a question from Mr. Berger about the importance diversity, Judge Carmichael said diversity extends beyond race and ethnicity, noting her practice and judicial experience in criminal, family law, and other areas of law. (Mr. Berger’s noted the desire to be “more politically correct” in the wording of his question.)

In response to a question about a rule that needs to be changed, Judge Carmichael mentioned Criminal Rule 26. She said the rule was correct but it imposes a financial burden on counties to have the risk assessments done. The county attorney told Judge Carmichael he believed the rule was only a suggestion. Although she agrees with the rule, she is concerned about the funding.

In response to a question about demeanor, Judge Carmichael noted her fairness and even-tempered nature. She noted that a prosecutor recently told her she would sentence someone to sixty years, who left with a smile on their face.

She noted, having watched parts of the Gorsuch hearing yesterday, that judges are not “Republicans or Democrats.”

Posted by Marcia Oddi on March 22, 2017 11:40 AM
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 2: Report On Interview #15, Mr. Dale W. Arnett

This is Prof. Joel Schumm's report on the 15th interview of Day 2

Mr. Dale W. Arnett, Winchester (photo) (application)

Mr. Arnett fell in love with the Constitution in law school, and 50% of his practice since has been as a public defender. Someone recently told him he was as qualified as anyone to apply for the Court because of his work with constitutional law. He said the biggest challenge would be “to get it right every time.”

Mr. Arnett described his judicial philosophy was that the laws at all levels need to be as “fair” as possible to everyone. He said judges need to be open-minded and listen to everyone on every side. We are a nation of laws and need to follow laws, and he is not a big fan of judicial activism.

Mr. Arnett recounted that Justice Scalia was appointed to the Court while he was in law school, and his legal fraternity was named after him. Although he did not always agree with Justice Scalia, his opinions were well-written. When Mr. Feighner mentioned watching Justice Scalia’s funeral, Mr. Arnett said he cried.

In response to a question about interpreting the constitution, he would be guided by plain language and stare decisis.

In response to a question from Mr. Berger, Mr. Arnett said Article 1 of the Indiana Constitution would apply to non-citizens in addition of citizens.

In response to a question about administrative work, Mr. Arnett conceded he did not know much about the administrative arm of the Court. He has seen Justice David at seminars and knows the justices are the face of the Court.

In response to a question about people skills, Mr. Arnett discussed his ability to listen and empathize with people. He said needs to keep working on his public speaking.

When asked what he would ask the founding fathers, Mr. Arnett said he would ask if they thought it was really going to last.

In response to the final question from Ms. Kitchell, Mr. Arnett returned to Justice Scalia, who he said “hit a home run” in his opinion in the “gay marriage” case.

Posted by Marcia Oddi on March 22, 2017 10:34 AM
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 2: Report On Interview #14, Hon. Maria D. Granger

This is Prof. Joel Schumm's report on the 14th interview of Day 2

Hon. Maria D. Granger, Floyd Superior Court 3 (photo) (application)

Chief Justice Rush began by asking about the opinion-writing function of the Court. Judge Granger said she would take an originalist approach. She would have a strong commitment to stare decisis.

In response to a question about a case from history that helped shape her philosophy, Judge Granger discussed a case of hers involving sports injury and decided last month by the Indiana Supreme Court.

In response to a question about the importance of diversity, Judge Granger said diversity and inclusion are important. She cited the inspirational value to young lawyers, among other reasons for a diversity on the bench and within the bar.

In response to a question about the importance of juries, Judge Granger discussed the Indiana summary judgment standard and precedent as well as the importance of a jury of citizens deciding cases.

In response to a question about unclear statutes, Judge Granger discussed the importance of text and said she has been studying the Scalia/Garner book on interpreting legal texts.

Mr. Feighner mentioned question 5(c), important cases, in which Judge Granger used the phrase “personal and business injury.” Judge Granger discussed the work of the commercial court, which she said can have a profound impact on the communities that rely on those businesses.

Mr. Berger pointed out that Justice Scalia’s dissents were often harsh, and Judge Granger said she would emulate Justice Rucker who is “kind and gentle” in his approach.

Chief Justice Rush posed a hypothetical case about areas in which Judge Granger would like to write if a justice on the Court, noting upcoming oral arguments on medical malpractice, tax, and the Fourth Amendment. She briefly discussed her interest in and importance of medical malpractice.

Posted by Marcia Oddi on March 22, 2017 10:28 AM
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 2: Report On Interview #13, Hon. Peter R. Foley

This is Prof. Joel Schumm's report on the 13th interview of Day 2

Hon. Peter R. Foley, Morgan Superior Court 1 (photo) (application)

Chief Justice Rush began by asking about the longest case Judge Foley had under advisement. He said he has one under advisement in which he is waiting on submissions from the parties next week. He agreed with the premise of the question that justice delay is sometimes justice denied; litigation hangs over people like a cloud. He discussed family law and custody cases in particular, in which he often rules from the bench.

In response to a question about mental health and drug problems, Judge Foley discussed a mental health diversion program. He said the opiate problem is not unique to his county and impacts all parts of the court’s docket.

Ms. Long asked about Judge Foley’s legacy at his retirement if he was selected as a justice. Judge Foley said instead of getting caught up in legacy it is important to do the job well every day, and legacy would take care of itself.

In response to a question from Ms. Kitchell about statutory interpretation that leads to an absurd result, Judge Foley emphasized the importance of relying on the text of the statute and the danger of trying to figure out what was meant. In response to a later question, he explained the importance of applying the common meaning of definition of terms. Mr. Berger later asked if Judge Foley would have any hesitation about looking to Article 1 of the Indiana Constitution if a statute led to an absurd result. Judge Foley said the constitutionality of a statute raises a different question and should be raised by the parties.

In response to a question about his experience, Judge Foley discussed his work as a county attorney as well as private practice where he represented everyday folks. He has been on the bench for more than two years with a mix of criminal and civil cases.

Chief Justice Rush asked what advice Judge Foley would give to newly admitted lawyers. Judge Foley discussed the importance of character and treating other parties and litigants with “dignity and respect.”
In response to a question from Ms. Long, Judge Foley discussed his love of travel and the enrichment that comes from going off the beaten path.

Although questions are something difficult to hear, Judge Foley apparently played basketball against Damon Bailey. Regarding himself, Judge Foley said a basketball “career wasn’t going to work out.”

Posted by Marcia Oddi on March 22, 2017 10:04 AM
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 2 Interviews begin at 9:30

Here is today's interview schedule:

March 22 (Wednesday)

9:30 a.m. – 9:50 a.m. – Hon. Peter R. Foley
9:50 a.m. – 10:10 a.m. – Hon. Maria D. Granger
10:10 a.m. – 10:30 a.m. – Mr. Dale W. Arnett

(Break)

10:45 a.m. – 11:05 a.m. – Hon. Vicki L. Carmichael
11:05 a.m. – 11:25 a.m. – Ms. Elizabeth C. Green
11:25 a.m. – 11:45 a.m. – Ms. Leanna K. Weissmann

(Break)

12:00 p.m. – 12:20 p.m. – Hon. Christopher M. Goff
12:20 p.m. – 12:40 p.m. – Mr. Bryce D. Owens

12:55 p.m. – Lunch and deliberations in Executive Session, followed by public vote to select semi-finalists

The applications of each of the candidates are linked on this page.

Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law, will be covering the interviews.

Disclaimer: The goal of ILB coverage of the Supreme Court selection process is to provide a window into an important public process in an objective and thoughtful manner. That ILB correspondents may have assisted applicants in various stages of the process does not alter the commitment to present interview summaries, application details, and other commentary to ILB readers objectively.

Note that a list of all the ILB posts on the 2017 Supreme Court vacancy may be accessed via this link.

Posted by Marcia Oddi on March 22, 2017 09:04 AM
Posted to Vacancy on Supreme Court - 2017

Tuesday, March 21, 2017

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #12, Mr. Lyle R. Hardman

This is Prof. Joel Schumm's report on the 12th, and final, interview of Day 1

Mr. Lyle R. Hardman, South Bend (photo) (application)

In response to a question about meeting unmet needs of civil litigants, Mr. Hardman emphasized the importance of lawyers doing pro bono work. He is on a panel to provide appellate pro bono representation, but most cases do not sall within his area of expertise.

In response to the question about what he would ask the founding fathers, Mr. Hardman would ask what their intention was in drafting such a general document.

In response to a question from Mr. Young about a recent decision the Supreme Court did especially well, Mr. Hardman first mentioned a 2009 opinion, Williams v. Tharp. He then mentioned the recent Patchett v. Lee opinion, noting that some of the JNC members might disagree with him.

In response to a question about the difference in the federal and Indiana summary judgment standards, Mr. Hardman said he recognizes the distinction and had no problem following Indiana’s standard.

In response to a question by Mr. Yakym about a recent case that has shaped his judicial philosophy, Mr. Hardman instead pointed to the Scalia/Garner book about interpreting legal texts. He expressed concern with judges substituting their views for the legislature.

When asked about an area of Indiana law that could be improved, Mr. Hardman noted funding problems. He represents counties and county jails but many inmates are not getting adequate mental health treatment before and during their incarceration.

When asked about filling Justice Rucker’s shoes, Mr. Hardman said he did not know he could fill his shoes but would bring collegiality (he served on both governing committees of his firm) and enjoys the more complex/weird cases.

When asked what someone might say negatively about him, Mr. Hardman said his wife might say he works too much.

Posted by Marcia Oddi on March 21, 2017 03:50 PM
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #11, Hon. Matthew C. Kincaid

This is Prof. Joel Schumm's report on the 11th interview of Day 1

Hon. Matthew C. Kincaid, Boone Superior Court 1 (photo) (application)

In response to a question from Chief Justice Rush about a situation when his oath conflicted with his personal opinion, Judge Kincaid recited a case involving attorney fees that exceeded damages in a case. He followed the law but did not feel good about it; the decision was affirmed on appeal.

In response to a question from Mr. Feighner about learning from reversals, Judge Kincaid referred about a case where he granted summary judgment against someone who had backed into a retention pond. Judge Kincaid said he agrees with Indiana’s summary judgment jurisprudence.

In response to a new question from Ms. Kitchell about areas where Indiana courts could improve, Judge Kincaid said it would be helpful to develop law in the commercial realm to help provide more guidance to businesses. Although Indiana has a great business environment, it could be improved by more predictability.

He would ask the founding fathers if they liked each other or not, noting the current division in the country.

Mr. Berger asked about appellate review under 7(B), and Judge Kincaid pointed to Justice Rucker’s opinion in Anglemyer, which clarified the law and set forth the responsibility of trial court judges and role of appellate review. Judge Kincaid said trial judges cannot take it personally when their sentences are revised, and it is important for trial court judges to give reasons the appellate court can consider.

In response to a question about dissenting opinions, Judge Kincaid said he would dissent if he believed the majority was wrong. He discussed some recent concurring opinions by Justice Rucker in cases involving Miranda rights and Stanley v. Walker. He concluded dissents make “good reading.”

Posted by Marcia Oddi on March 21, 2017 03:43 PM
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #10, Mr. William N. Riley

This is Prof. Joel Schumm's report on the 10th interview of Day 1

Mr. William N. Riley, Indianapolis (photo) (application)

In response to a question about his background that would lead citizens to believe he would be a good and fair justice, Mr. Riley emphasized his ability to listen. He would work with other justices to craft opinions and not be driven by ego.

In response to question about judicial philosophy, Mr. Riley said judges must rely on the text of the Constitution or statute.

In response to a question about his involvement in the Federalist Society, Mr. Riley said he first became involved as a law student. The emphasis then was the “sovereignty of the people,” and justices should apply laws as enacted by the people. On the local level, he believes most members feel the same way.

In response to a question about a recent opinion outside of his area of practice, he mentioned an opinion by Justice Scalia involving marriage of a non-citizen, which he believed posed an interesting question.

In response to a question about replacing Justice Rucker, Mr. Riley noted that Justice Rucker understands the “common man” and he would seek to emulate protecting their rights.

In response to a question about his lack of experience in criminal cases, Mr. Riley said he was not familiar with the power to revise sentences under Rule 7(B). Mr. Riley said he met with Judge Nation on a number of occasions and observed cases of his to familiarize him with criminal law and procedures.

In response to Mr. Berger’s question, Mr. Riley said he would seek to emulate Judge John Daniel Tinder. One of his first trials was before Judge Tinder, and Mr. Riley was impressed with his humanity and kindness, which put lawyers at ease.

When asked about constitutional rights of non-citizens, Mr. Riley said our rights are given to us by enabling documents. Mr. Yakym followed up for a specific answer, and Mr. Riley said if he were in DC today, referring to the Gorsuch hearing, he would not be able to answer that question because it could come before him as a justice. He concluded he believed the constitution was pretty clear about who is a citizen.

Posted by Marcia Oddi on March 21, 2017 03:25 PM
Posted to Vacancy on Supreme Court - 2017

Ind. Decisions - Supreme Court issues one today

In Consumer Attorney Services, P.A., The McCann Law Group LLP, and Brenda L. McCann, Individually and as Owner and/or Officer of Consumer Attorney Services, P.A., et al. v. State of Indiana, a 10-page, 4-0 opinion, Justice Massa writes:

Consumer Attorney Services, P.A., The McCann Law Group, LLP, and Brenda McCann (collectively “Defendants”) appeal the trial court’s denial of their motion for summary judgment, claiming they are all expressly or impliedly exempt from liability under each of the four statutes cited by the State in this civil suit. Finding that none of the Defendants properly fit within these statutory exemptions, we affirm. * * *

Neither the CSOA, the MRPFA, the HLPA, Nor the DCSA Provides an Exemption for Law Firms.

Posted by Marcia Oddi on March 21, 2017 03:17 PM
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Four apply to replace Johnson County Superior 2 Judge Cynthia Emkes

The Johnson County Daily Journal has two stories on the vacancy. This one from March 20 is headed "Who wants to be judge? 4 seeking judicial opening in county." The story begins:

Four Johnson County men want to be the next judge of a superior court that oversees felony criminal trials or issues or approves sentences in hundreds of cases each year, makes decisions about evidence and witness statements and administers the county’s alcohol and drug services programs to offenders.

The job of judge of Johnson Superior Court 2 will be open at the end of April when longtime Judge Cynthia Emkes retires. The candidates so far are Johnson County judge Magistrate Doug Cummins, longtime attorney and former judge Jeff Eggers, Greenwood City Court Judge Lewis Gregory and attorney Peter Nugent.

Each candidate has more than 10 years of experience as an attorney, and three of them have had previous roles or are currently working as a judge.

The second story, from March 21st, is headed "Detailed vetting process awaits judge candidates." The story, which links to the 16-page application, begins:
The person chosen as a superior court judge in Johnson County will have gone through an intense vetting process and answered questions about his or her community service, role in any controversial public issues and who might not want them to be a judge.

The candidates must disclose information about their health and should be prepared for the state’s legal team to contact whomever they want, including other judges or attorneys or residents, to ask questions about whether they are qualified and what kind of judge he or she would be.

Ultimately, Gov. Eric Holcomb will select a candidate to replace Judge Cynthia Emkes, who is retiring at the end of April after 30 years in Johnson Superior Court 2.

Each candidate for the Johnson County position will have an in-person interview with Joe Heerens, general counsel for Holcomb, and Heeren’s office will conduct a background check, including talking to judges, attorneys and other residents to learn about the personality of each candidate, his or her level of qualifications and what kind of judge he or she would be, Heerens said.

Posted by Marcia Oddi on March 21, 2017 03:07 PM
Posted to Indiana Courts

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #9, Hon. Steven L. Hostetler

This is Prof. Joel Schumm's report on the 9th interview of Day 1

Hon. Steven L. Hostetler, St. Joseph Superior Court (photo) (application)

Chief Justice Rush began with the final sentence of the oath of attorneys, asking for a recent example of advancing the cause of the defenseless. Judge Hostetler said he did a recent presentation to the bar association about the importance of Lincoln as a role model. He has encouraged pro bono work. He posts notices of needs around the courthouse and calls lawyers personally to thank them for their service.

In response to a question from Ms. Kitchell about shaping his ethical views, Judge Hostetler again pointed to Lincoln, noting how similar Lincoln’s law practice was to some practices today, noting he had used examples from Lincoln’s practice in his recent presentation.

He would ask the founding fathers how best to heal the divisions in our country, noting they were required to heal tremendous divisions in forming the United States.

In response to a question about traits of Justice Rucker that he would emulate, Judge Hostetler recounted that he had received two calls from Justice Rucker about appointments as a special judge, noting his courtesy and respect.

In response to Mr. Berger’s question about diversity, Judge Hostetler said it weighed in his decision whether to apply. He believes in diversity and said there are multiple ways to encourage diversity on the bench. He said he would strive to do his best.

In response to a question from Mr. Yakym, Judge Hostetler believes the Indiana Constitution guarantees rights, discussing specifically the independent vitality in the double jeopardy and search and seizure realms. In response to a follow-up question, Judge Hostetler said it’s not an “either or” between the state and federal constitution, emphasizing our citizens are entitled to both protections.

In response to a question about class actions, Judge Hostetler noted that sometimes such suits provide little benefit to individuals but may lead to important changes in behavior.

In response to a question about dissenting opinions, Judge Hostetler said the audience would be members of the Court. He noted the dissent in Plessey v. Ferguson in 1896, which was ahead of its time. He also mentioned dissents in cases that failed to provide political speech. He said dissenting opinions can be important, and he would respectfully dissent when appropriate.

When asked if his oath as an attorney or judge ever came into conflict with his personal feelings, he said he has not experienced it. He said the law is generally helpful in making decisions, noting the statutory factors for child custody, which lead him to the correct result.

Posted by Marcia Oddi on March 21, 2017 02:43 PM
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #8, Mr. Stephen R. Creason

This is Prof. Joel Schumm's report on the 8th interview of Day 1

Mr. Stephen R. Creason, Indianapolis (photo) (application)

Noting the number of lawyers from the AG’s office in the conference room for the interview, Chief Justice Rush began by asking to laughter if any work being done at the AG’s office.

Mr. Creason said he agreed with the recent proposed court rule requiring technological competence and emphasized that lawyers cannot continue to use an electric typewriter or outdated technology.

When asked if he would have done anything different in his career, Mr. Creason said he would definitely handle some cases and administrative work differently. He said he would have worked harder in college. Athough he worked hard in law school, he did not do well on law school exams but did well writing papers.

In response to a question about the DeBruler eulogy, Mr. Creason said Indiana courts should strive for excellence. He pointed to Criminal Rule 24 and the competency and training of defense counsel in death penalty cases, which he said has made a dramatic difference from other states. He also said the text of the Indiana Constitution is sometimes different and should be given meaning when appropriate. He briefly discussed both Article 1, Section 11 and special legislation as examples.

When asked about a former judge he most admires, he identified Judge Patricia Gifford who “kept him in check” in a bench trial. He always learned something when he appeared before her. He said she was tough but never harsh.

In response to a question from Mr. Yakym about cases where he had to appeal when he disagreed, Mr. Creason noted the broad and sometimes conflicting interests at stake. He said he sits down with people and works through it. He emphasized separating his own opinions and doing what is best for the institutions and people involved. Finally, he noted he is the deputy—not an officeholder—and does what he is instructed to do.

In response to a question from Mr. Feighner about assurances to defense counsel that he could be fair in criminal cases, Mr. Creason said he and his colleagues work hard to ensure they are taking the right position in a case, not just the expedient one. They strive to be fair and lead the Court to the right result. He also pointed to his work on the e-filing and other committees, which bring lawyers from different perspectives together.

Posted by Marcia Oddi on March 21, 2017 02:17 PM
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #7, Ms. Leslie C. Henderzahs

This is Prof. Joel Schumm's report on the 7th interview of Day 1

Ms. Leslie C. Henderzahs, Fishers (photo) (application)

Chief Justice Rush returned to the Socrates question and asked Ms. Henderzahs which virtues would be her strong suit and which she would struggle most with. She went through each of the four. She said for 25 years she has been representing families in many different legal situations and roles. It would be most challenging to answer wisely because it would require careful consideration of the law and public policy.

In response to a question about negative things adversaries may say about her, she said one of her biggest adversaries is now of counsel at her firm. He was so angry by her preparation that he literally broke a pencil in his hand. Thus, the attribute would be that she over-prepares.

In interpreting a statute, she would consider the law, the policy behind it, and any debates behind it (then referencing the 1850 constitutional debates).

In response to a question about mediation, Ms. Henderzahs discussed the importance of better understanding a person’s background and life experience to be effective. She said the Supreme Court could highlight the benefits of mediation and perhaps requiring some pre-mediation conferences.

In response to a new question from Ms. Kitchell, prior to your application when is the last time you read a Court opinion outside your practice area. She identified the Evansville smoking ban case.

She would ask the founding fathers if they could summarize the rule of law in a single word. She would hope their answer would be “service.”

She said her most important people skill is “cohesion.” She emphasized the importance of helping people understand the other side.

In response to Mr. Berger’s question, she said the most difficult task of the JNC was to find someone who is well-rounded and would supply what the Court most needs to fill the void created by Justice Rucker. When asked how a “white person” could fill that void, Ms. Herderzahs said it was important to consider the perspective and cultures of others, identifying geographic and other forms of diversity.

In response to Mr. Yakym’s question about interpreting the constitution, she emphasized the importance of judicial restraint and the intent of the framers. She identified the Indianapolis-Marion County redistricting case as an example of judicial independence, where the Court devised its own plan and rejected the partisan ones before it.

In response to a question about law firm culture, Ms. Henderzahs discussed the importance of consensus. Although the lawyers recognize differences, they emphasize commonalities. They have grown from six to forty lawyers. They work to the strengths of each individual while working as a team. She would enjoy the roundtable discussions at the Court.

Posted by Marcia Oddi on March 21, 2017 02:10 PM
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #6, Mr. Peter J. Rusthoven

This is Prof. Joel Schumm's report on the 6th interview of Day 1

Mr. Peter J. Rusthoven, Indianapolis (photo) (application)

Chief Justice Rush opened with a question about the final line of the oath of attorneys, asking for an example of Mr. Rusthoven advancing the cause of the defenseless. He noted an ongoing case with many complexities but was not able to delve into a lot of details because it was pending.

In response to a question about recent books he has read, Mr. Rusthoven recited a couple of children’s books (he has young children) as well as biographies of Earl Warren and others.

In response to a question from Mr. Yakym about considering legislative committee testimony in determining legislative intent (used in federal courts but not Indiana), Mr. Rusthoven said he is skeptical of legislative history. The words have objective meaning and should control. In cases where uncertainty exists, other information may be helpful but committee testimony is often interest group driven.

In response to question from Mr. Feighner about opposing counsel listed on the application, Mr. Rusthoven discussed a case in which he was involved with now-Justice Slaughter.

In response to a question from Ms. Kitchell about areas he could bring to the table different from the remaining four justices, Mr. Rusthoven discussed his corporate, regulatory, and legislative work. He also noted he had gone to school out of state where he was surrounded by talented people from around the country and world, which adds perspective. He also discussed his experience in Washington, with the press, and finally his experience working with Democrats, noting letters he had received from some.

In response to Ms. Long’s question, he would ask the founding fathers if they would ever, in their wildest dreams, imagined it would have turned out as it did. He discussed the competing visions of Jefferson and Hamilton as well as American exceptionalism.

In response to a question from Mr. Young about Justice Sullivan’s eulogy of Justice DeBruler—that Hoosiers enjoy greater rights than others—Mr. Rusthoven noted that Justice DeBruler was appointed at a young age and was often in dissent but always respectful. Many of Justice DeBruler’s views have since become majority ones. Mr. Rusthoven does not believe the Indiana Constitution should be interpreted lockstep with different federal language. The founders believed it was important to protect individual liberty from government.

Posted by Marcia Oddi on March 21, 2017 12:25 PM
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #5, Rep. Thomas W. Washburne

This is Prof. Joel Schumm's report on the 5th interview of Day 1

Rep. Thomas W. Washburne, Evansville (photo) (application)

Chief Justice Rush began by asking if Rep. Washburne would be able to declare a statute unconstitutional—and what would be the guiding principles. He responded that he does not see the role of the Court to expand the Constitution and judges must focus on the text and what it meant at the time drafted and ratified.

When asked about his experience as a legislator, Rep. Washburne noted that 83% of Court opinions are unanimous, and that he similarly works in the legislature to develop a consensus. He also discussed his varied practice experience in a small firm and as a corporate lawyer.

In response to Ms. Long’s question, Rep. Washburne would ask the founding fathers what they meant by the establishment of religion.

When asked by Mr. Young about his view of common law, Rep. Washburne said he prefers the general applicability in criminal cases instead of creating a lot of new statutes to various situations.

Mr. Berger noted that he was on the JNC that sent Justice Rucker’s name to the Governor in 1999 and asked what the JNC should consider this time. Rep. Washburne said it was important to understand the role of the Court. Diversity is important but comes in many forms, including practice and geography.

When asked by Mr. Yakym about making the transition from the legislative to judicial branch, Rep. Washburne noted that he makes a transition every Friday from legislator to corporate lawyer. He noted the role of the Court is determine what the law is. (Mr. Feighner noted that Justice O’Connor was a state legislator and Chief Justice Warren was a Governor.)

In response to a question from Mr. Feighner about funding legal services for indigent people, Rep. Washburne discussed efforts for Public Defender Commission reimbursement for misdemeanors and increasing funding from 40% to 50%. He believes a fundamental purpose of government is to fund services that are constitutionally required.

In response to the question about business climate, Rep. Washburne said the same principles apply universally to all litigants: to be fair, be timely, and be accurate.

When asked what he was most proud of, he discussed his family, pointing out he had brought four of his five children with him to the interview.

Rep. Washburne discussed his effort to provide law clerk support for trial courts in Indiana, growing out of his experience as a law clerk for Judge Dillin. Judges may now secure the assistance of senior judges and third-year law students to assist with complex motions.

Posted by Marcia Oddi on March 21, 2017 12:20 PM
Posted to Vacancy on Supreme Court - 2017

About the ILB - An opportunity for your firm or company to become the ILB's exclusive sponsor

The Indianapolis law firm of Hoover Hull Turner has been the exclusive sponsor of the Indiana Law Blog since the spring of 2016. Its financial arrangement will end on April 30, 2017. HHT writes that it continues to be grateful for Marcia Oddi's tireless work in the name of public service, adding intelligent insight into coverage of new court decisions and legislative developments.

And the ILB, as I know do many you, thanks HHT for its strong and generous support over the past year.

The ILB is now looking for a new sponsor (or group of several sponsors) to step forward to support its mission, which began in 2003, of collecting and reporting on the news that matters to lawyers, judges and citizens across Indiana.

Contact me with serious inquiries. Thank you.

Posted by Marcia Oddi on March 21, 2017 12:04 PM
Posted to About the Indiana Law Blog | Vacancy on Supreme Court - 2017

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 14 NFP memorandum decision(s))

For publication opinions today (2):

In In the Matter of: N.C. (Minor Child), Child in Need of Services and J.M. (Father) v. The Indiana Department of Child Services , a 17-page opinion, Judge Robb writes:

J.M. (“Father”) appeals the juvenile court’s finding that his son, N.C., is a child in need of services (“CHINS”) and the juvenile court’s corresponding dispositional order giving wardship of N.C. to the Indiana Department of Child Services (“DCS”) and ordering Father to comply with the terms of a Parent Participation Plan. Father raises two issues for our review, of which we find the following dispositive: whether the juvenile court erred in finding N.C. to be a CHINS. Concluding DCS did not prove by a preponderance of the evidence that the coercive intervention of the court was necessary to ensure N.C.’s care and therefore the juvenile court clearly erred in adjudicating N.C. a CHINS, we reverse.
In In the Matter of M.O., A Child in Need of Services, M.O., Child v. Indiana Department of Child Services, N.M., Mother, and Mi.O., Father, and Child Advocates, Inc., a 13-page opinion, Judge Kirsch writes:
M.O. (“Child”) appeals the juvenile court’s adjudication, finding her to be a Child in Need of Services (“CHINS”). We consolidate and restate the issues raised by the parties as: I. Whether the juvenile court erred in adjudicating Child as a CHINS on grounds different than those set forth in the CHINS petition; and II. Whether there was sufficient evidence presented to support the CHINS adjudication. We affirm.
NFP civil decisions today (2):

In the Termination of the Parent-Child Relationship of: A.S.C. & A.J.C., C.C. v. Indiana Department of Child Services (mem. dec.)

In the Termination of the Parent-Child Relationship of: Ce.S. & Ch.S. (Minor Children), and C.R. v. The Indiana Department of Child Services (mem. dec.)

NFP juvenile and criminal decisions today (12):

Aaron J. King v. State of Indiana (mem. dec.)

Jeffrey A. Rader v. State of Indiana (mem. dec.)

Tony W. Heroy v. State of Indiana (mem. dec.)

Linda K. Hamilton v. State of Indiana (mem. dec.)

Devon Delshaun Dokes v. State of Indiana (mem. dec.)

Kevin Hoffman v. State of Indiana (mem. dec.)

Everett Wade v. State of Indiana (mem. dec.)

James F. Morris v. State of Indiana (mem. dec.)

Christopher Schafer v. State of Indiana (mem. dec.)

Bruce Morgan v. State of Indiana (mem. dec.)

Tony L. Brown v. State of Indiana (mem. dec.)

Sanchez Dupree Martin v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on March 21, 2017 11:20 AM
Posted to Ind. App.Ct. Decisions

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #4, Hon. Larry W. Medlock

This is Prof. Joel Schumm's report on the 4th interview of Day 1

Hon. Larry W. Medlock, Washington Circuit Court (photo) (application)

When asked about qualities a trial court would bring to the Indiana Supreme Court, Judge Medlock discussed understanding how a case originates, plays out, and the split-second decisions that need to be made. He pointed to a recent jury trial in January, in which he took a recess to research an issue of first impression involving a recently enacted statute.

In response to a question about interpreting statutes, Judge Medlock said he would focus on the plain language and meaning while also discussing statutes in derogation of common law.

In response to a question from Mr. Feighner about the justice he would emulate, he paused and pointed to the Chief Justice, to much laughter. He then discussed Justice David, whom he identified as a friend and mentor.

In response to a question about dissenting, Judge Medlock said he is “generally a team player” and is not opposed to taking a dissenting position. “We are not all the same” and should not be expected to have the same feelings and interpretation about the law. This lets the lawyers and litigants know the Court is not rubber-stamping cases.

In response to a question about where to take a roadshow argument, he said it has been a long time the Court has been in Southern Indiana, except for Corydon. He would like to see the Court go to his Courthouse in Salem, which is being retired.

In response to a question about “why he wants the job,” he discussed the thousands of files from his private practice, public defender, and as a judge—probably more than 25,000—and said he had seen a wide range of issue and could bring that experience to the Court.

In response to a question about the administrative work of the Court, Judge Medlock said he would be willing to do anything asked of him. He pointed to the cost savings of e-filing, and said the fees could be increased to allow for better technology. The money could also be used to create databases to promote public safety in areas like protective orders and mental health cases.

In response to a question about a case that involves creation of a new right, Judge Medlock said he is not one who “creates something out of nothing” and would not create new rights. The duty of judges is to apply the law fairly and interpret statutes.

In response to a question about his background, Judge Medlock pointed to his unique and varied job experience as well as his master’s degree from School of Public and Environmental Affairs.

Posted by Marcia Oddi on March 21, 2017 11:06 AM
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #3, Ms. Jaime M. Oss

This is Prof. Joel Schumm's report on the 3rd interview of Day 1

Ms. Jaime M. Oss, La Porte (photo) (application)

Chief Justice Rush opened by asking about experience, and Ms. Oss discussed her experience with insurance coverage and civil litigation over the past thirteen and a half years. Although she does not have much experience in criminal law, her civil experience would carry over. Chief Justice Rush asked about the Court’s unique Rule 7(B) authority to revise sentences, and Ms. Oss said she had not looked at it.

In response to a question from Mr. Feighner about learning from past experience, Ms. Oss discussed a wrongful death case that included issues of paternity. She said she was not upset that she lost after having the unfortunate task of arguing that paternity was not properly established. She learned that we do not always get to pick our clients, and it is sometimes not bad to lose.

In response to a question from Ms. Kitchell about absurd results from interpreting a statute, Ms. Oss said we need to follow the legislature’s intent, which might require looking at other public policy considerations. The Court’s job is not to change something that is straightforward. Mr. Berger later followed up, and Ms. Oss said she would look at such things as committee reports to try to find support for an interpretation that avoids an absurd result. Mr. Yakym and Mr. Feighner also followed up with questions regarding statutory interpretation. When asked if the Supreme Court could raise a constitutional issue sua sponte, Ms. Oss said she believed the challenge needed to begin in the trial court.

In response to Ms. Long’s query about a question Ms. Oss would ask the founding fathers, Ms. Oss said she did not have one because they were brilliant in creating a government that allows each branch limited authority.

In response to a question from Mr. Young about the role of the jury, Ms. Oss said the jury system was a hallmark of our system and jury verdicts should be entitled to great deference.

In response to a question from Chief Justice Rush about mandatory pro bono, Ms. Oss said it was a “tough question” and that one option might be to allow those in areas difficult for pro bono work to instead contribute to fund legal services.

In response to a question about business climate, Ms. Oss identified the importance of commercial courts.

When asked about something not in her binder that she’s proud of, Ms. Oss identified her children, who are growing up to be wonderful people. She’s also very proud of her professional work and reputation of getting along well with everyone.

In response to a hypothetical question about her first year on the Court and best day ever, Ms. Oss pointed to the Court’s important administrative work and identified Adoption Day, which was highlighted in the Court’s annual report.

Posted by Marcia Oddi on March 21, 2017 10:52 AM
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #2, Hon. Clayton A. Graham

This is Prof. Joel Schumm's report on the 2nd interview of Day 1

Hon. Clayton A. Graham, Marion Superior Court, Criminal Div. 7 (photo) (application)

In response to a question from Chief Justice Rush about an area that would most benefit from improvement, Judge Graham cited more traveling arguments, which would bring the Court to more communities.

In response to a question about Ms. Kitchell about temperament, Judge Graham said he believes it is important that each person be heard. If things get out of hand, he may call a recess and talk to lawyers in chambers.

In response to a question from Ms. Long about things beyond his application, his great-great grandfather was a slave. His father served in WWII under General McArthur and received a Purple Heart. He was later shot and killed when Judge Graham was seven years old. His mother raised several children and did not let them make any excuses.

In response to a question from Mr. Young about Justice Rucker, Judge Graham said he admired Justice Rucker’s compassion for humanity and the common man.

In response to a question from Chief Justice Rush about significant Supreme Court opinions for his work on the bench, Judge Graham cited an opinion in a domestic violence regarding Evidence Rule 803(4). He also cited Hitch v. State, which involved a domestic violence determination that he had made in a case and was affirmed on appeal. He viewed it as non-punitive.

In response to a question from Mr. Berger about what drew him to Indiana, Judge Graham said he received a fellowship to work for Legal Services, initially for Indianapolis but ultimately in New Jersey, and he fell in love with the city of Indianapolis and knew he wanted to return.

In response to a question from Mr. Yakym about a case where the decision was not clear, Judge Graham said he approaches cases with an open mind. He does not consider ethnicity, gender, or sexual preference. He will do further research, talk to his colleagues, or take the decision under advisement when necessary.

In response to a question from Mr. Feighner about a case where he was reversed and what he learned from it, Judge Graham said people “learn from their failures.” He said was reversed in a case where he did not allow the defendant his right to allocution. [Owens is the case.]

In response to the question about business climate, Judge Graham said commercial courts have been one of the best things for the state, allowing more expeditious resolution of cases.

In response to a question from Ms. Long about traveling oral arguments, Judge Graham said he would recommend areas that have not had an opportunity for oral arguments.

In response to a question about collegiality and team work, Judge Graham said he believes it important that judges leave their egos outside and come together to resolve a case. If they disagree, they should disagree respectfully.

In response to questions about changes over the past ten years, Judge Graham said mediation was used more. In looking to the future, Judge Graham said the biggest changes would come in technology and discussed the importance of efiling.

In response to a question about a judge he most admired, Judge Graham pointed to Justice Thurgood Marshall, a legal giant who he was able to meet. He discussed Marshall’s significant work as a lawyer arguing for the important rights of voting an education.

In response to a question about clarity of statutes, Judge Graham discussed Fry v. State, which involved bail in murder cases and overruled 150 years of precedent.

Posted by Marcia Oddi on March 21, 2017 10:25 AM
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #1, Mr. Ralph E. Dowling

This is Prof. Joel Schumm's report on the 1st interview of Day 1

Mr. Ralph E. Dowling, Muncie (photo) (application)

There is no set opening question. Chief Justice Rush quoted Socrates’ four characteristics of being a judge: listen courteously, answer wisely, consider soberly, decide impartially. Mr. Dowling said he would be strongest at listening courteously and has done so in his professional life.

Mr. Berger asked what about the most significant decision of the Indiana Supreme Court in the past twelve months. Mr. Dowling said the decision in Yeakle was especially important for those who do personal injury. He summarized the case’s reasoning at some length and said it clarified the law.

In response to a question from Mr. Yakym, Mr. Dowling said in interpreting a statute he would start with the language and punctuation of the statute, which is evidence of legislative intent. Only if ambiguous would he look to other statutes and whether the interpretation is a sensible one. Courts can also point out ambiguities that can be addressed in a later legislative session.

In response to a question from Mr. Feighner, Mr. Dowling said he would most want to emulate former Justice Dickson, who taught him state constitutional law in law school and judged him in a moot court final. He also discussed a case he later argued to the Court and Justice Dickson’s approach to it.

In response to a question from Ms. Kitchell about court’s influencing the business climate in the state, he emphasized the importance of stability to ensure businesses would stay and move to the state.

In response to a question from Ms. Long about road show arguments, Mr. Dowling said Anderson would be an excellent place because there is a university, where students would attend and learn.

In response to a question from Mr. Young about a case on his application, Mr. Dowling discussed multi-state litigation regarding safety switches to protect people from injuries.

In response to a question about Chief Justice Rush about technology and the recent proposed rule amendment, Mr. Dowling said he had not read the recent proposed rule amendment but was very competent with computers, beginning in 1984 as a professor at Ball State. He has e-filed extensively in federal court and in some state trial courts who recently began requiring it. When pressed about the proposed rule, he said it is mandatory that lawyers understand how to use technology in creating documents and persuading jurors.

In response to a question about Mr. Berger about negative qualities someone might point out if they wrote a letter about him, Mr. Dowling said he tends to be a perfectionist and spend more time on things than he needs to. He said he thinks it would be fun to be on the Supreme Court because he would have time to be a perfectionist and carefully craft opinions.

In response to a question from Mr. Yakym about skill set for the position, Mr. Dowling explained he graduated from law school at 37 after he had written and taught about communication and debate. He has a great appreciation for every written word.

In response to a question from Mr. Feighner about dissents, Mr. Dowling said if a justice thinks the majority is wrong it should be communicated, sometimes in an opinion or more silently but always respectfully. When asked about the audience for a dissent, Mr. Dowling mentioned that some dissents will become majority opinions in the future.

Posted by Marcia Oddi on March 21, 2017 10:15 AM
Posted to Vacancy on Supreme Court - 2017

Vacancy on Supreme Court 2017 - Interviews begin

Here is a photo inside the interview room, all the commissioners look bright and cheery! (Photo via Indiana Courts)

Posted by Marcia Oddi on March 21, 2017 09:45 AM
Posted to Vacancy on Supreme Court - 2017

Vacancy on Supreme Court 2017 - Interviews begin at 9:30 AM

Here is today's interview schedule:

March 21, 2017 (Tuesday)

9:30 a.m. – 9:50 a.m. – Mr. Ralph E. Dowling
9:50 a.m. – 10:10 a.m. – Hon. Clayton A. Graham
10:10 a.m. – 10:30 a.m. – Ms. Jaime M. Oss

(Break)

10:45 a.m. – 11:05 a.m. – Hon. Larry W. Medlock
11:05 a.m. – 11:25 a.m. – Rep. Thomas W. Washburne
11:25 a.m. – 11:45 a.m. – Mr. Peter J. Rusthoven

(Lunch – Executive Session to consider applications)

1:30 p.m. – 1:50 p.m. – Ms. Leslie C. Henderzahs
1:50 p.m. – 2:10 p.m. – Mr. Stephen R. Creason
2:10 p.m. – 2:30 p.m. – Hon. Steven L. Hostetler

(Break)

2:45 p.m. – 3:05 p.m. – Mr. William N. Riley
3:05 p.m. – 3:25 p.m. – Hon. Matthew C. Kincaid
3:25 p.m. – 3:45 p.m. – Mr. Lyle R. Hardman

(Break)

4:00 p.m. – 5:00 p.m. - Executive Session to consider applications

The applications of each of the candidates are linked on this page.

Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law, will be covering the interviews.

Disclaimer: The goal of ILB coverage of the Supreme Court selection process is to provide a window into an important public process in an objective and thoughtful manner. That ILB correspondents may have assisted applicants in various stages of the process does not alter the commitment to present interview summaries, application details, and other commentary to ILB readers objectively.

Note that a list of all the ILB posts on the 2017 Supreme Court vacancy may be accessed via this link.

Posted by Marcia Oddi on March 21, 2017 09:01 AM
Posted to Vacancy on Supreme Court - 2017

Monday, March 20, 2017

Ind. Decisions - 7th Circuit decides one Indiana case today

In Kenneth Collins v. Nadir Al-Shami (SD Ind., Pratt), a 14-page opinion, Judge Flaum writes:

Following an arrest for driving while intoxicated, Kenneth Collins was booked into the Jackson County Jail in Indiana. Collins later sued a jail physician and the physician’s employer (a private corporation) under 42 U.S.C. § 1983 and Indiana state law, claiming that the doc‐ tor had provided inadequate medical care to Collins during his detention. The district court awarded summary judgment to defendants, and we affirm.

Posted by Marcia Oddi on March 20, 2017 03:58 PM
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - "#CanITweet? Guidance to courts on the limits of Broadcast Ban"

A good article by Adrienne Meiring* in this month's publication of the Indiana courts, Indiana Court Times, addresses in detail two questions:

  • Is Tweeting Broadcasting?

  • Can a judge ethically ban electronics from the courtroom or place restrictions on use of electronics in the courtroom?
Reference is made to Advisory Opinion #1-17, issued by the Indiana Commission on Judicial Qualifications.
_______
* It would be helpful if the position and qualifications of the authors of articles appearing in Indiana Court Times were provided to readers, perhaps in a footnote, as is the practice in other legal publications. The information is used by readers to help determine the weight and reliance to be given to an article. In this case, Ms. Meiring, an attorney employed by the Indiana Courts for a number of years now as counsel to the Indiana Commission on Judicial Qualifications, is well known to members of the judiciary, but perhaps not to all readers. ILB mentions of Ms. Meiring date back to Oct. 14, 2009.

Posted by Marcia Oddi on March 20, 2017 01:18 PM
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (3):

RW v. GB (mem. dec.)

CHINS: Child Advocates, Inc., Guardian Ad Litem v. DT, et al. (mem. dec.)

Termination: RW, et al. v. Indiana Department of Child Services (mem. dec.)

NFP juvenile and criminal decisions today (4):

William Ryan v. State of Indiana (mem. dec.)

James Michael Cox v. State of Indiana (mem. dec.)

Kenneth Leon Wilson, Jr. v. State of Indiana (mem. dec.)

Brandon L. Jones v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on March 20, 2017 01:08 PM
Posted to Ind. App.Ct. Decisions

Vacancy on Supreme Court 2017 - Applicant’s Law Schools, Grades, and Class Ranks

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

It has become a tradition here on the ILB to report the law school grades and class rank of applicants. First on the list of statutory “considerations” for each member of the judicial nominating commission to weigh in evaluating Supreme Court applicants is “Legal education, including law schools attended and education after law school, and any academic honors and awards achieved.” Ind. Code § 33-27-3-2(a)(1).

Question 3 on the application form directed candidates: “List all law schools, graduate schools, and post-J.D. programs attended. Include the school name; dates enrolled; degree or certificate earned; class rank; and any academic honors, awards, or scholarships you received and when.” The second part of the question instructed: “Include with your original application a certified transcript from each school named in Subsection 3A, and attach copies of each transcript to each application copy.” Although the applications are posted online, the transcripts may only be reviewed in person.

Law school grades are of some but limited use. Grading practices vary from law school to law school and have generally become more lenient over time. Class rank is arguably more useful because it provides a comparison of how the applicant compares to others within their graduating class. A 3.3 at some law school in the past few decades could mean an applicant was in the top 20% of their class or may mean they are in the bottom half. Although both Indiana University law schools calculate class rank, many applicants did not include it, instead including comments like “class rank not indicated on transcript” or “not provided” — or simply ignoring the topic.

The following chart, which was compiled by reviewing both the applications and the transcripts, is sorted by GPA and offered as in the past with the caveat that grading practices at some law schools have changed over the years.

The chart excludes applicants who attended law school that did not award conventional grades or calculate GPAs on a 4.0 scale. These include Mr. Rusthoven (magna cum laude)** from Harvard Law School and Judge Graham who attended Howard University School of Law.

Do Grades Matter?

The GPAs from the four most recent selection processes are available at these links: 2010 and 2012-1 and 2012-2 and 2016. The four selected justices had GPAs ranging from 3.00 to 3.29 with class ranks in the top 15%, top 24%, top 34%, and top 59%.

An All IU Supreme Court?

Eight applicants attended IU-McKinney and five attended IU-Maurer, which gives a 65% chance that the next justice will be an Indiana University alum. Joining two McKinney graduates (Justices David and Massa) and two Maurer graduates (Chief Justice Rush and Justice Slaughter), the Indiana Supreme Court could soon be one of the few in the nation filled with graduates of the state’s law schools. (I believe New Mexico, South Carolina, and Wyoming are the others.)

Two of the other applicants attended Louisville, and the remaining five attended (in alphabetical order): Harvard, Howard, Loyola-Chicago, Ohio Northern, and Valparaiso.

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** Although used differently at different institutions, summa (highest), then magna, then cum laude are honors reserved for the top percentage of graduating classes or those with a specific GPA. Here's a general description.

Posted by Marcia Oddi on March 20, 2017 10:18 AM
Posted to Vacancy on Supreme Court - 2017

Ind. Courts - "State again in search of jurist for high court"

Niki Kelly of the Fort Wayne Journal Gazette has a good lengthy story today on changes to the Indiana Supreme Court. Some quotes:

With just seven years under his belt, Justice Steven David is the old-timer on the Indiana Supreme Court.

In 2010 he kicked off a carousel of arrivals as he replaced former Justice Theodore Boehm.

Three more new justices followed – Mark Massa in April 2012, Loretta Rush in November 2012 and Geoffrey Slaughter in June 2016.

Now the Judicial Nominating Commission begins interviewing Monday for a fifth new justice – replacing retiring Justice Robert Rucker, whose last day is in May.

The result is a wholesale change in the Indiana Supreme Court in just seven years. * * *

The overhaul is pretty novel though muted a bit because Indiana has only five justices while 35 states have between 7 and 9.

While all the justices on the court have decades in the legal profession, their institutional knowledge of the state’s highest court is slim.

“There’s a yin and a yang to turnover. Institutional memory is a valuable commodity,” said Randall T. Shepard, who served on the court from 1985 to 2012, the majority as chief justice.

He was part of the longest-tenured group of five justices together – serving from 1999 to 2010. Court staff at the time researched the feat and had a Hershey bar made with the likeness of the five members’ faces.

“So we went from total stability to all new people. That contast is stark,” said Joel Schumm, professor of law at Indiana University’s Indianapolis campus.

“That being said I don’t think it’s made a huge difference. The fear in a court turnover in a short period of time is they will dramatically change the way they rule. That hasn’t happened.”

Rucker’s departure also brings another distinction – the first time since 1958 that all five members of the court will have been appointed by governors of the same political party.

Mitch Daniels picked three of the current members, Mike Pence had one appointment and Gov. Eric Holcomb will get his first selection in the next few months. * * *

One thing that has changed with the court is that each justice has become more involved in the administration of the court, rather than the Chief Justice carrying all the weight.

Some justices focus on technology issues; others juvenile justice, public access or pro bono work.

[Chief Justice Loretta] Rush said the court takes 90-100 cases a year, though it disposes or votes on almost 900. The vast majority are votes to not accept transfer – or keep a lower court ruling intact.

Some see a move to more family law cases rather than complex civil. But the tenor of the court has remained the same, Schumm said.

Much of its work is behind the scenes – handling attorney and judge discipline; writing rules for all Indiana courts to operate under and licensing new attorneys.

But it’s the opinions that get the attention. Generally, the Indiana Supreme Court is known to uphold state law. A few reversals recently have gotten attention though.

One moved the burden regarding bail from the defendant – making the state prove why the defendant should be denied bail.

Another was a major asbestos case in which Rush’s dissent now seems particularly poignant.

“I cannot say it is so clearly wrong or unjust to warrant upending an issue we have already settled – when nothing has changed since 2003 but a third vote for the opposing view,” she wrote. “I am particularly conscious of our changing composition, both in the recent past and in the near future. And in turn, I am particularly aware of what our actions imply when our narrowly divided Court reverses itself on an issue that, barely a decade ago, narrowly divided us in the opposite direction,” she said.

ILB: This was a March 2, 2016 opinion - see ILB summary here.

Posted by Marcia Oddi on March 20, 2017 10:07 AM
Posted to Indiana Courts | Vacancy on Supreme Court - 2017

Ind. Decisions - Transfer list for week ending March 17, 2017

Here is the Clerk's transfer list for the week ending Friday, March 17, 2017. It is one page (and 1 case) long.

No transfers were granted last week. In the one case considered last week, transfer was denied by a 2-2 vote:

  • CHINS: SP, et al. v. Indiana Department of Child Services - this is an 11/7/16 NFP COA decision. Transfer Denied - Rush, C.J., and David, J., vote to grant transfer. Rucker and Massa, JJ., vote to deny transfer. Slaughter, J., did not participate. Because the Court is evenly divided on whether to grant or deny transfer, the petition to transfer is deemed DENIED. See Ind. Appellate Rule 58(C).

Posted by Marcia Oddi on March 20, 2017 09:49 AM
Posted to Indiana Transfer Lists