Monday, April 24, 2017
Ind. Decisions - Supreme Court decides one today, re liability of firearms seller
In KS&E Sports and Edward J. Ellis v. Dwayne H. Runnels, a 19-page, 3-2 opinion, Justice Slaughter writes:
Under Indiana law, “a person may not bring an action against a firearms … seller for … recovery of damages resulting from the criminal or unlawful misuse of a firearm … by a third party.” We agree with the parties that this statute is unambiguous. By its plain terms, the statute immunizes a firearms seller from a damages suit for injuries caused by another person’s misuse of a firearm, regardless of whether the sale was lawful. Having previously granted transfer, we hold that Plaintiff’s claims for damages must be dismissed, but his claim seeking a non-damages remedy survives. We affirm in part and reverse in part. * * *
The parties agree that Section 34-12-3-3(2), which lies at the heart of this litigation, is unambiguous, but they disagree on its meaning. We conclude as follows: Section 34-12-3-3(2) unambiguously bestows immunity on KS&E to the extent Runnels seeks damages resulting from Martin’s misuse of a firearm; Runnels’s negligence, piercing-the-corporate-veil, and civil- conspiracy claims fail Rule 12(C) review because they seek only money damages; and Runnels’s public-nuisance claim survives to the extent it seeks equitable relief. Finally, we hold that federal law does not preempt this statute and reject Runnels’s constitutional claims. * * *
We hold that Indiana Code section 34-12-3-3(2) is unambiguous and functions as a limited immunity statute that insulates KS&E from suits for “recovery of damages resulting from the criminal or unlawful misuse of a firearm . . . by a third party.” Thus, Runnels’s negligence, piercingthe-corporate-veil, and civil-conspiracy claims, which demand only money damages, must be dismissed. Section 34-12-3-3(2), however, does not immunize KS&E from Runnels’s publicnuisance claim seeking equitable relief. That claim survives and may proceed. Finally, we conclude the statute is not preempted by federal law and does not violate either state or federal Constitution. We affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.
David and Massa, JJ., concur.
Rucker, J., concurs in part and dissents in part with separate opinion in which Rush, C.J., concurs.
I part company with my colleagues on their expansive reading of the statute. Consider the following hypothetical: Two men walk into a gun store. Person #1 tells the proprietor, “I am wanting to buy a firearm for my friend here who is a convicted felon who cannot lawfully purchase a firearm. My record is clean.” Person #2 confirms he is a convicted felon and tells the store owner, “I intend to go on a shooting spree.” The purchase is consummated and the next day the convicted felon goes out and wreaks havoc on an elementary school and wounds first responders in the process.
In the majority’s view the gun store would be immune from civil liability and not accountable in civil court to the victims of the shooting. This is so, according to the majority, because “[t]he unambiguous statute operates as a limited immunity provision insulating a firearmsseller from a suit for damages caused by a third party’s misuse of a firearm, regardless of the seller’s culpability.” Slip op. at 6 (emphasis added).
I am not persuaded and cannot believe the legislature intended immunity under the facts posed by the hypothetical. It appears to me the statute was designed to protect innocent and unknowing gun sellers from the acts of third parties. The legislature could not have intended to protect gun sellers from their own illegal acts. On this point, I respectfully dissent.
Ind. Gov't. - "St. Joseph County files lawsuit to seize farmland by power plant"
Ind. Gov't. - News & Trib series on opioid epidemic
The series, "CROSSROADS OF CRISIS: Southern Indiana courts, jails forced to respond to opioid epidemic," by Elizabeth DePompei, has been appearing in the New Albany/Jeffersonville News & Tribune. Here is the schedule:
- APRIL 8 — State of the crisis
- APRIL 15 — Health impact
- APRIL 22 — Criminal justice impact
- APRIL 29 — Economic impact
- MAY 6 — Solutions and success stories
The rise of heroin use across Southern Indiana and the rest of the country has made the revolving door between addiction and the criminal justice system rotate even faster, leaving courts overburdened and jails overcrowded. Despite efforts to address the epidemic from inside the system, many of the people being helped continue to live in a cycle of addiction.
It’s not the kind of problem the system was built for, but those in a position to make a difference say they’re confronting it anyway.
Clark County Circuit Court No. 2 Judge Brad Jacobs saw 1,200 new felony cases filed in his court last year. He estimates that roughly half his caseload involves heroin in one way or another. And it’s not uncommon for Jacobs to see the same person on new charges within the month.
“It seems like the people who are on heroin, who get arrested for heroin, are coming back more frequently,” Jacobs said. “They just pick up another case and another case, and so they’re clogging up the system more than they’re moving through.”
In Floyd County, Superior Court Judge Susan Orth sees cases related to opioid abuse almost daily, whether it’s a possession case or a theft somehow connected to drugs.
“We’ll have days when people are actually actively high standing in front of us,” Orth said. * * *
This story is the third in a five-part series examining the opioid epidemic in Clark and Floyd County.
NEXT SATURDAY: Businesses are losing billions as their employees battle substance abuse. Also, meet the owner of a local restaurant who is giving recovering addicts a second chance.
Vacancy On Supreme Court 2017 - "Supreme Court set to be all-white, all-GOP appointed"
That is the headline to the AP's Rick Callahan's story this weekend. Some quotes:
Indiana’s next state Supreme Court justice will complete the remaking of the bench, as all five justices will be white and will have been appointed since 2010 by Republican governors.
The state’s Judicial Nominating Commission on Wednesday chose three finalists to succeed Justice Robert Rucker, who is retiring May 12. Once the names of the finalists — Judges Vicki Carmichael, Christopher Goff and Matthew Kincaid — are sent to Gov. Eric Holcomb, he’ll have 60 days in which to choose one to succeed Rucker.
Here is some background on the finalists, Rucker and the court. * * *
When Rucker’s replacement is named, all five members of the state’s highest court will have been appointed by Republican governors. Indiana University law professor Joel Schumm said that’s the first time that’s happened since Indiana voters approved a constitutional amendment in 1970 creating a commission to pick finalists for the governor to choose from. He said he doesn’t think the change will be particularly significant because Indiana justices have a long tradition of not being politically ideological in their rulings. The governor’s pick will join Rush, Justice Steven David, Justice Mark Massa and Justice Geoffrey Slaughter on the court. Given the ages of the justices, Schumm says they could be together on the court for about 15 years.
Ind. Decisions - More on: Attorney suspended in 2008 reinstated after lengthy process
Updating this ILB post from April 6th, Mark Wilson of the Evansville Courier & Press has a lengthy, definitely worth-reading "story behind the story" today, headed "10 years after meth addiction, attorney's license reinstated." Just a few quotes:
Attorney Scott Danks represented her during the various stages of the disciplinary process and at the hearing to reinstate her license.
"Trying her case was like watching a movie with a really happy ending. I had to fight back tears the whole time," Danks said. "Sometimes we make mistakes and get knocked off our saddle and are too bruised to get back up. Teresa not only got back on her saddle but won the Triple Crown. She has become a leader in the recovery community, has married and has two beautiful children and has her career back."
It started with her own recovery. McKeethen recalled that her own involvement in drugs was gradual. Growing up in what she described as an upper-middle class family with no exposure to alcohol or drugs. Through her first husband, she became acquainted with a different lifestyle and eventually began to meet other professionals who used drugs. Somehow, it made it seem more acceptable at the time.
During the hearing to reinstate her license in February, McKeethen described it: "They were professional, successful people, so in my mind I justified it a little bit; it made me feel like it was okay because I was doing it with them. It is crazy thinking, I know."
Vanderburgh Superior Court Judge Wayne Trockman, who oversees many of the county's treatment courts, said McKeethen has become a sought-after mentor.
"I think this is an example of the fact that drug or alcohol addiction can hit anyone at anytime," he said.
Ind. Courts - List of judicial vacancies and application forms
Pursuant to Article 5, Section 18 of the Indiana Constitution and Indiana Code, the Governor of the State of Indiana has the authority to fill judicial vacancies as they occur in the state.
Governor Holcomb has a special page for posting current judicial vacancies. Access it here.
Law - Finer points of storage of police body cam video
Brian Sharp reports in a detailed story at the Rochester NY Democrat & Chronicle that:
Roll out of the city's $1.7 million program began last August, starting with a few dozen cameras being issued to members of the Clinton Section in the city's northeast neighborhoods. Cameras are to be worn by all patrol officers, sergeants and lieutenants. Perkowski is one of three people RPD has assigned to the manage the camera program full-time.Here are some recent earlier ILB posts on body cams, from March 15th and March 23rd.
The voluminous video being generated is stored onsite, and is not a concern — at least not yet. But it is highlighting the need for clarity about how long digital files must be kept for evidentiary or other purposes. The department has 11 different retention periods, depending on the incident involved, ranging from months, to decades; if not indefinitely.
But, Perkowski explained, "There's not a lot of statutes on how long we should be keeping digital evidence versus paper evidence."
If you are wondering about the city's surveillance or blue-light cameras, those operate on a 30-day loop with video only retained if it is specifically extracted and saved by request.
A model policy for body cameras, issued by the New York state Municipal Police Training Council, sets minimum retention periods at six months, regardless of evidentiary worth. The policy also suggests that recordings might be kept for officer training, something Perkowski expressed unease over given privacy expectations of citizens involved.
When it comes to access, the Monroe County District Attorney can pull and copy files remotely from RPD's files. Other requests, including those from parole, probation and the public, are answered upon request. Most of the public requests have come from insurance companies looking for footage of motor vehicle accidents, Perkowski said. But the total number of requests has been less than anticipated, so far.
"We deal with, on average, five to 10 video requests a week. That has gone up substantially," Perkowski said. "We were at one or two the beginning of March. I only see that going up."
Over at the DA's office, the video has been helpful in removing ambiguity from some situations.
"There is no gray area. It's black and white, as to what a person said, or how a person looked," Duckles said. "It's adding clarity to the (police and witness) reports."
Video also allows officers to refresh their own memories in preparing for trial, he said, calling it "an invaluable tool." The Leadership Conference on Civil and Human Rights has advised that officer recollection and body-camera footage be kept as independent records, and certainly early on so that reports do not reflect what the cameras recorded but what the officer experienced.
As for the effect on cases, it is still too soon to tell, officials said. Courts have had to adjust rules to allow the body cameras into the courtrooms but otherwise have been able to accommodate with minor adjustments.
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 (1):
NFP juvenile and criminal decisions today (6):
Ind. Decisions - Transfer list for week ending April 21, 2017
Here is the Clerk's transfer list for the week ending Friday, April 21, 2017. It is one page (and 19 cases) long.
One transfer was granted last week:
- Corey Middleton v. State of Indiana - transfer granted, with opinion, on April 21. See ILB summary here.
Ind. Courts - "Tax-case ruling to have far-reaching consequences"
You can be forgiven if the tax bill for the Kokomo Kohl's store isn't foremost in your mind these days. But arguments before the Indiana Supreme Court Thursday could have a major effect on your pocketbook, your neighborhood schools, your library and local government services.
If the state's highest court declines to review and leaves in place an Indiana Tax Court ruling, the state could see a loss of $3.5 billion in assessed property value.
About $50 million in property tax liabilities could be shifted from commercial property owners, and nearly $70 million in local revenues will go uncollected.
You'll pay more if you haven't hit the property tax cap; you'll lose services even if you have. And some commercial property owners stand to reap nearly $121 million in tax savings.
Howard County Assessor v. Kohl's is much more than a disagreement between a county assessor and a single retailer. It represents an industry-wide push by major retailers to cut their tax bills by arguing their stores should be assessed as if they were vacant.
The implications go beyond the so-called “big box” stores like Kohl's, Meijer and CVS. Allowing major retailers to use an assessment methodology – with vacant “dark stores” for a sales comparison – could extend to thousands of other properties – factories, supermarkets, shopping malls and more.
“It's the No. 1 issue assessors are watching,” said Stacey O'Day, Allen County assessor and vice president of the Indiana County Assessors Association. “All of the sudden we have a particular property class that's been allowed to compare itself to vacant, abandoned properties. If one property class is allowed to do this, this could change the way we're looking at all properties.”
Also at stake are infrastructure projects supported by revenue from tax-increment financing districts – projectsundertaken with the expectation of all taxpayers paying their fair share, not paying tax bills based on assessments reduced by as much as 45 percent.
“It carries with it the potential of unraveling the whole system,” said Fort Wayne attorney Mark GiaQuinta, who will argue for a review on behalf of Howard County, the Association of Indiana Counties, county assessors and other interested parties.
The “system” is one the Indiana Supreme Court itself put in place with the St. John case in 1998, which declared the state's assessment procedures unconstitutional.
It called for assessments based on market value, so property owners know that the value of their homes and other property is based on sales of similar properties.
But recent tax court decisions involving big-box stores contradict that ruling in allowing sales comparisons for vacant buildings.
“The (Howard County) decision is one of several from the Tax Court which has redefined the market value-in-use standard to the detriment of each county in the State of Indiana,” argues a friend-of-the-court brief filed by GiaQuinta and attorney Sarah L. Schreiber.
The ruling “violates the spirit of the landmark valuation standard set forth by this Court in Tax Commissioners v. Town of St. John,” they write.
Since the Supreme Court's 1998 decision, Hoosiers have benefited from tax-assessment procedures meeting the court's call for a system that is “substantially uniform and equal based on property wealth.”
It is more fair; it is more transparent. It now hangs in the balance.
Ind. Decisions - Upcoming oral arguments this week and nextThis week's oral arguments before the Supreme Court (week of 4/24/17):
Thursday, April 27
- 9:00 AM - [Rescheduled for 6/29/17]
In the Matter of J.B. and L.B.; J.J. (Mother) v. The Indiana Department of Child Services (20A05-1510-JC-01612) The mother and father shared joint custody of their children under an order entered by the Elkhart Superior Court in the parents’ paternity case. The Elkhart Circuit Court adjudicated the children to be Children in Need of Services (“CHINS”) and later issued an order giving the father sole custody and closing the CHINS case without entering a dispositional decree. The Court of Appeals reversed and remanded. In re J.B., 55 N.E.3d 903 (Ind. Ct. App.), superseded on reh’g, 61 N.E.3d 308 (Ind. Ct. App. 2016). The Indiana Department of Child Services has petitioned the Court to accept jurisdiction over this appeal.ILB: This was a June 8, 2016 COA opinion, reversed on a motion for rehearing in a Sept. 8, 2016 opinion (ILB summary here, 5th case)
- 9:45 AM - Howard County Assesor v. Kohl's Indiana LP (49T10-1502-TA-00004) After Kohl’s appealed the Howard County Assessor’s valuation of its property, the Indiana Board issued a determination in favor of Kohl’s, finding that its appraisal (which used vacant big-box stores, or “dark boxes,” as comparable properties) most accurately reflected the market value-in-use standard as interpreted in recent Tax Court decisions. The Tax Court affirmed. Howard County Assessor v. Kohl’s Indiana LP, 57 N.E.3d 913 (Ind. Tax Court Sept. 7, 2016), trans. pending. The Howard County Assessor has petitioned the Supreme Court to accept jurisdiction over the appeal, and amici curiae Indiana County Assessors Association, the Indiana Association of Cities and Towns, and the Indiana Municipal Lawyers Association have filed a brief in support of review.
- 10:30 AM - Summer Snow v. State of Indiana (45S03-1703-CR-00169) and Reginald Harris v. State of Indiana (45S03-1703-CR-00172) In these two cases tried together, Summer Snow and her co-defendant Reginald Harris filed a motion to exclude evidence of Snow’s lawfully-possessed handgun. The Lake Superior Court denied the motion, and the jury convicted Snow and Harris of battery against a public safety official, and convicted Snow of resisting law enforcement. A majority of the Court of Appeals affirmed. Snow v. State, 65 N.E.3d 1129 (Ind. Ct. App. 2016), vacated; Harris v. State, 66 N.E.3d 628 (Ind. Ct. App. 2016), vacated. The Supreme Court has granted transfer and assumed jurisdiction over both appeals pursuant to Appellate Rule 56(A). [sic] The Court will hold a combined oral argument in the two cases, but otherwise has not consolidated the appeals.
ILB: Both were 2-1 opinions of the COA:
- Summer C. Snow v. State of Indiana - this was a 2-1, Dec. 29, 2016 COA opinion (ILB summary here, 6th case). From the dissent: "This case boiled down to Officer Peck’s word against Snow’s and the admission of the gun could have tipped the scales in favor of the State."
- Reginald Harris v. State of Indiana - this also was a 2-1, Dec. 29, 2016 opinion (ILB summary here - 7th case). From the dissent: "I respectfully dissent. For the same reasons explained in my dissent today in the case of Harris’ co-defendant, Summer Snow ...".
Tuesday, May 2
- 9:00 AM - Marcus Sanders v. State of Indiana (49A05-1605-CR-00971) While moving his car from one space to another in a parking lot, Sanders struck a curb twice. He was stopped by an off-duty police officer who viewed suspected marijuana in Sanders’ vehicle. After a bench trial, the Marion Superior Court convicted Sanders of Class A misdemeanor possession of marijuana. The Court of Appeals affirmed, rejecting Sanders’ argument that the stop violated Sanders’ rights under the United States and Indiana Constitutions. Sanders v. State, No. 49A05-1605-CR-971 (Ind. Ct. App. Dec. 13, 2016). Sanders has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a Dec. 13, 2016 NFP COA opinion, holding: "Having found no constitutional defect with the investigatory
stop, we find that the plain view doctrine justified seizure of the marijuana
- 9:45 AM - Bellwether Properties, LLC v. Duke Energy Indiana, LLC (53S04-1703-CT-00121) The Monroe Circuit Court dismissed Bellwether’s complaint against Duke Energy for inverse condemnation, concluding the complaint was barred by the statute of limitations. A majority of the Court of Appeals reversed, concluding Bellwether’s action did not accrue upon the enactment of the regulation expanding the clearance for electric lines, and under the discovery rule the complaint was timely. Bellwether Props., LLC v. Duke Energy Indiana, LLC, 59 N.E.3d 1037 (Ind. Ct. App. 2016), vacated. The Indiana Supreme Court has granted transfer and assumed jurisdiction over this appeal.
ILB: This was a 2-1, Sept. 16, 2016 COA opinion (ILB summary here, 2nd case), where the majority ruled: "We conclude that the court erred when it ruled that the six-year statute of limitations on Bellwether’s Complaint had expired, and we reverse the court’s ruling and remand for further proceedings."
- 10:30 AM - Board of Commissioners of Union County, Indiana v. Brandye Hendrickson, in her official capacity as Commissioner of the Indiana Department of Transportation, et al. (81A01-1603-PL-00696) Union County’s Board of Commissioners filed a complaint for declaratory judgment and injunctive relief, alleging the Indiana Department of Transportation damaged the septic systems of three private landowners, raising possible health and safety concerns for the County. The Union Circuit Court granted the State’s motion to dismiss the complaint on grounds the County lacks standing. The Court of Appeals reversed, holding the County has standing to pursue both a declaratory judgment and an injunction. Bd. of Comm’rs of Union Cty. v. Hendrickson, 67 N.E.3d 1061 (Ind. Ct. App. 2016). The State has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a Dec. 16, 2016 COA opinion, concluding:
We have reviewed this case as a Trial Rule 12(B)(6) dismissal of a complaint, not a granting of summary judgment, and accordingly have disregarded Parker’s affidavit in considering the merits of the trial court’s ruling. We hold that the trial court erred in dismissing the County’s action for declaratory judgment and injunctive relief against INDOT and that the County has standing to pursue those claims. We reverse and remand for further proceedings consistent with this opinion.
This week's oral arguments before the Court of Appeals (week of 4/24/17):
Monday, April 24
- 1:00 PM - State of Indiana v. John B. Larkin (46A04-1607-C-01522) In 2012, John Larkin’s wife was found dead from multiple gunshots in their home. At the police station, a conversation between Larkin and his attorneys was recorded. Larkin was later charged with voluntary manslaughter. Prior to trial, Larkin moved to dismiss the charges against him because recording the conversation with his attorneys violated his Sixth Amendment right to counsel; the trial court denied the motion for lack of prejudice. Larkin also filed a motion to disqualify the prosecutor’s office and requested appointment of a special prosecutor because members of the prosecutor’s office had viewed the recording and/or read a transcript of the confidential conversation; the trial court also denied this motion. The trial court’s order denying the motion to disqualify was certified for interlocutory appeal but this court held the question of disqualification was moot because the county prosecutor was defeated in the 2014 primary election and the new prosecutor who took office in January 2015 was not involved in listening to the confidential conversation. Larkin v. State, 43 N.E.3d 1281 (Ind. Ct. App. 2015). After this court’s opinion was issued and the case returned to the trial court, a special prosecutor was appointed on the newly-elected prosecutor’s motion. Larkin then moved to disqualify the regular judge, who denied any reason for recusal but recused nonetheless. The special judge accepted his appointment in February 2016. Larkin then filed a motion for discharge pursuant to Criminal Rule 4(C) alleging the State failed to bring him to trial within one year and a motion to dismiss alleging continuing Sixth Amendment and Article 1, section 13 violations related to the recorded confidential conversation. The special judge granted both the motion to discharge and the motion to dismiss. The State now appeals, arguing 1) Larkin waived any Rule 4 violation and 2) the special judge abused his discretion in reversing the regular judge’s earlier orders and dismissing the case. With respect to Criminal Rule 4, the issue is when the clock began running after this court issued its opinion in the interlocutory appeal and whether the delay resulting from the defendant’s motion for change of judge is chargeable to him. With respect to the dismissal based on misconduct, the issue is whether the trial court erred in applying an irrebuttable presumption of prejudice and in denying the State a hearing on the issue. The Scheduled Panel Members are: Judges Riley, Robb, and Barnes. [Where: Hammond Academy of Science and Technology, 33 Muenich Court, Hammond, IN]
- 10:00 AM - Dustin Sorhaindo v. State of Indiana (49A05-1608-MI-01814) On June 30, 2015, a brown box with black duct tape addressed to Dustin Sorhaindo arrived at a local shipping company in Indianapolis, Indiana. That package was singled out for being suspicious and the local shipping company called the police. Upon conducting a narcotic examination of the package, a K9 officer gave a positive indication of a controlled substance in the suspect package. The State applied for a search warrant which was issued on the same day. Following the execution of the search warrant, the police found twenty-four rubber-banded stacks of United States currency, which amounted to $47,940. In December of 2015, the State filed a motion to transfer the seized money from the State to the federal authorities. In July of 2016, the trial court granted the State’s motion to transfer money.
Sorhaindo appeals, requesting this court to review whether the trial court erred in granting the State’s motion to transfer the money seized to the relevant federal authorities.
The Scheduled Panel Members are: Judges Riley, Robb, and Altice. [Where: Wabash College, Crawfordsville, IN ]
- 1:30 PM - Tyler R. Browder v. State of Indiana (49A04-1608-CR-01857) This case arises out of a traffic stop made just before midnight on November 11, 2014, in Indianapolis, Indiana. Tyler Browder (“Browder”) was driving from his apartment complex to a fast-food restaurant in a car with a license plate that was registered to a different vehicle. An Indianapolis Metropolitan Police Department officer, Sgt. Brady Ball (“Officer Ball”), driving behind Browder ran the license plate and found it did not match the vehicle. Officer Ball then pulled Browder over into a nearby gas station because he suspected the vehicle might be stolen. At that time, Officer Ball turned on his audio recording device and the rest of the stop and arrest were recorded. During the stop, Browder claimed that he and his wife had just purchased this vehicle and he thought they had thirty days to use the transferred plate from their previous vehicle. The Officer Ball explained that the statute required Browder have the title or bill of sale in the vehicle. Browder stated that the paperwork was at his home with his wife and indicated that he did not have a paper registration for the vehicle either. The officer returned to his patrol car and ran Browder’s driver’s license and criminal history against BMV and police records. The IMPD officer found that the vehicle was not registered to Browder and discovered that Browder had been a suspect in a prior auto theft. After learning this information about fifteen minutes into the stop, the officer asked Browder to step out of the vehicle in order to question him further about the vehicle’s ownership and his criminal history. During this conversation, Officer Ball asked Browder if there was any identifying paperwork left in the vehicle from the previous owner. He also asked Browder if anything illegal was in the vehicle. Seventeen minutes into the stop, Browder stated there was nothing illegal in the vehicle and told Officer Ball that he could “check it.” There was further discussion between the two, and Officer Ball advised Browder of his right to refuse a search. Browder stated he had “nothing to hide” and that the officer could search the vehicle. In the vehicle, the officer found a marijuana pipe under an insert in the center console. The officer then handcuffed Browder and placed him in the patrol car. Browder admitted that he smokes marijuana but denied ownership of the pipe and knowledge that it was in the vehicle. Browder was charged with possession of paraphernalia, a Class A misdemeanor, and operating a vehicle on a transferred plate for more than thirty-one days, a Class C infraction. The infraction was later dismissed by the State. The Marion Superior Court conducted a three-part bench trial on March 7, April 26, and July 20, 2016, where Browder was found guilty of possession of paraphernalia. During the trial, Browder objected to the admission of the pipe found during the stop. Browder appeals the trial court’s decision to admit the evidence from the vehicle search, arguing that the search and seizure violated the Fourth Amendment to the U.S. Constitution and Article I, Section 11 of the Indiana Constitution. Specifically, Browder argues that the extension of the stop for a traffic infraction was unreasonable. Browder also argues that his consent to search was not voluntary and, therefore, did not give the officer the authority to search the vehicle. The State responds that the officer did have reasonable suspicion to further investigate based on the nature of the traffic infraction. Thus, the State contends that there are no constitutional violations and that the trial court did not abuse its discretion in admitting the evidence. The Scheduled Panel Members are: Judges Kirsch, Mathias, and Pyle. [Where: Cathedral High School Auditorium, 5225 E. 56th St., Indianapolis, IN]
Thursday, April 27
- 2:00 PM - 401 Public Safety, LLC and Lifeline Data Centers, LLC v. David Ray and Committee to Elect David Ray (49A02-1609-PL-02132) Lifeline Data Center, LLC (“Lifeline”) is a tenant of the former Eastgate Mall site in Indianapolis, and 401 Public Safety, LLC is the owner and lessor of the property. Both Lifeline and 401 Public Safety are managed by an individual who is an owner of both companies. The City of Indianapolis is also a lessee of a portion of the property, which portion is commonly referred to as the “Regional Operations Center.” In 2015, during his successful campaign for the 19th District of the Marion County City-County Council, David Ray and the Committee to Elect David Ray (“collectively Ray”), distributed a flyer to residents in his eastside Indianapolis District stating that Lifeline contributed $1300 to incumbent Councilman Ben Hunter’s campaign. The flyer contains additional statements that Lifeline and 401 Public Safety alleges are false and defamatory. Specifically, the content of the flyer addressed the alleged deteriorating condition of the former Eastgate Mall site and accused incumbent Councilman Hunter of cutting “a sweetheart deal for a political insider. A deal that cost the city millions and ties up the former Eastgate site for 25 years.” The flyer stated, “[w]hat will $1300 from a political insider buy? A contract with the City.” The flyer alleged that code enforcement violations and fire and safety hazards existed, and that investigations had occurred at the former Eastgate Mall site. Finally, the flyer states that the community surrounding the site will be responsible for cleaning it up. Lifeline and 401 Public Safety filed a complaint in Marion Superior Court alleging that the statements in the flyer were false and defamatory. 401 Public Safety alleged that it was defamed because it owns the Eastgate Mall site, which was falsely depicted as a fire and safety hazard with existing code violations. 401 Public Safety also alleged that the flyer contains picture of the property from the 1950s, and the property’s condition is markedly different from the image used in the flyer. Lifeline alleged that it was defamed because Ray’s flyer implies that Lifeline bribed a public official to secure a contract to obtain a favorable lease with the City. Lifeline complains that the statement is false because 401 Public Safety owns the Eastgate Mall site and Lifeline does not have a lease with the City of Indianapolis. Ray raised an affirmative defense under Indiana Code chapter 34-7-7, the Anti-SLAPP (Strategic Lawsuit Against Public Participation) statute and filed a motion to dismiss the complaint. Ray argued that the flyer contains speech on a public issue or a matter of public interest, and that he acted in good faith and with a reasonable basis in law and fact when making the statements contained in the flyer. As required by the Anti-SLAPP statute, the trial court treated the motion as a motion for summary judgment. After the trial court held a hearing on the motion, the court entered summary judgment in Ray’s favor. Lifeline and 401 Pubic Safety now appeal. The Scheduled Panel Members are: Judges Baker, Kirsch, and Mathias. [Where: Court of Appeals Courtroom (WEBCAST)]
Thursday, May 4
- 1:30 PM - McKinley, Inc. a/k/a McKinley Associates, Inc. d/b/a Summer Wood Apartment Homes v. Michelle Skyllas (45A05-1612-CT-02853) Michelle Skyllas sued McKinley, Inc. for injuries she sustained when she slipped and fell. During discovery, Skyllas did not respond to a request for admissions. Next, McKinley filed a motion for summary judgment, to which Skyllas did not respond. The trial court granted summary judgment to McKinley. Skyllas hired new counsel, who moved to correct error, claiming Skyllas’ prior counsel had abandoned her case. The court granted the motion, vacated the grant of summary judgment and allowed Skyllas additional time to respond to the request for admissions. McKinley now appeals, arguing the trial court erred by vacating summary judgment and by allowing Skyllas to respond to the request for admissions. The Scheduled Panel Members are: Judges May, Brown, and Sr. Judge Sharpnack. [Where: Court of Appeals Courtroom (WEBCAST)]
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Saturday, April 22, 2017
Ind. Courts - HB 1036, the Marion Superior Court judicial selection bill, goes to Gov.
A conference committee report was adopted yesterday by both houses, by a vote of 28-22 in the Senate and 69-30 in the House.
Here is the final, enrolled version, which will go to the governor.
Friday, April 21, 2017
Ind. Decisions - Supreme Court decides one today
In Corey Middleton v. State of Indiana, involving a petition for post-conviction relief alleging several claims of
ineffective assistance of trial counsel, the Court writes in a 2-page per curium opinion:
[W]e grant transfer and summarily affirm the Court of Appeals opinion [ILB: available here] pursuant to Indiana Appellate Rule 58(A), with the exception of its misstatement of Strickland’s prejudice standard.
Ind. Decisions - No Ind. federal or state appellate opinions posted again today
It looks like nothing since the 19th...
Vacancy On Supreme Court 2017 - More news coverage
Zoie Richey of The Statehouse File writes:
The Judicial Nominating Commission has selected three nominees to fill the Indiana Supreme Court justice vacancy."Judge Vicki Carmichael closer than ever to dream job: Clark County judge a finalist for Indiana Supreme Court" is the headline to Elizabeth DePompei's story today in the Clark County News & Tribune. Some quotes (the story also has a great photo):
Justice Robert Rucker is retiring on May 12 after serving for 26 years.
The commission narrowed down the field from 21 applicants to the final three: Vicki Carmichael, Christopher Goff and Matthew Kincaid.
“I think all three of the finalists are very well qualified. The governor can’t go wrong in selecting any one of the three,” said Joel Schumm, clinical professor of law at Indiana University Robert H. McKinney School of Law. “They have distinguished backgrounds as trial judges and as lawyers before that.”
Schumm sat in on the finalist interviews, and said the process allowed people to learn a lot about the court system.
JEFFERSONVILLE — This isn't the first time Clark County Circuit Court No. 4 Judge Vicki Carmichael has vied for a seat on the Indiana Supreme Court, but as one of three finalists, it's the closest she's ever been to realizing her dream.
"It's like wow, OK, this could really happen," Carmichael said by phone Thursday morning.
The day before, Carmichael, 54, sat in front of a seven-person Judicial Nominating Commission and made her case for why she should become the next justice for the state's highest court. She is one of 21 people who applied last month.
The pool of candidates was whittled down to 11 and on Wednesday, three candidates were chosen. They are: Carmichael, Boone County Superior Court I Judge Matthew Kincaid and Wabash County Superior Court Judge Christopher Goff.
Carmichael applied for a vacancy in 2009 and again in 2016 when Justice Brent Dickson retired. She said this time, Chief Justice Loretta Rush asked her why she keeps coming back.
"And I said because this is what I really want. I want a seat at the table. I want to be able to affect the judiciary and the citizens of Indiana," she said.
The commission will submit a report to Gov. Eric Holcomb in the coming days. Holcomb then has 60 days to appoint one of the nominees. In this case, because all of the finalists are sitting trial court judges, Holcomb will also be tasked with appointing a replacement judge in that county. * * *
The Circuit Court No. 4 judge's seat is up for election in 2018. Carmichael, a Democrat, was first elected to the court in 2007 and she intends to run again if not selected for the Indiana Supreme Court.
But Carmichael is hoping to convince Holcomb, a Republican, that she is the right person for the job. She knows politics are a part of the equation, but she doesn't think it will be the deciding factor.
"I think the commission and the governor both will look at the best qualified candidate," she said. "I've long been an advocate for non-partisan judicial elections. I don't think politics should play a role in being a judge at any level, and so that's what I hope to convince the governor's office."
Instead, it's her philosophy that Carmichael hopes seals the deal. The Bloomington native described herself as fair, impartial and unbiased.
"I'm not an activist judge where I try to go create new law and make new decisions that are going to change the way we've done things forever" she said.
"... Our role as judges, even at the trial court level, is to look at the facts before us, to look at the law that applies to that and make a decision. And it's not to create new law, it's not to create new precedent. We have to look at what was decided before and my philosophy has always been if somebody has had this issue before, let's look at how it was decided."
Carmichael said she expects a call from the governor's office in the next few days. Until then, and until Holcomb makes his choice, she and the other candidates are in a welcomed state of limbo.
"I am honored to be part of the three names going to the governor," she said.
Thursday, April 20, 2017
Ind. Decisions - No Ind. federal or state appellate opinions posted today
Ind. Gov't. - Update on: List of enrolled acts received by Gov. Holcomb
The Governor's Bill Watch page shows a number of new enrolled acts have been delivered and await his action.
Among them is HEA 1369:
Unnecessary, unused law reports. Requires every state agency to compile and report to the legislative council a list of all state laws administered by the state agency that the state agency considers to be in need of change because the laws are no longer necessary or used.ILB: I wonder if this includes laws made unconstitutional by various federal court rulings that remain on the books?
Environment - The importance of US EPA and IDEM
"East Chicago residents lay out demands ahead of visit by EPA head Scott Pruitt" isd the headline to this lengthy story yesterday in the NWI Times (via IED) reported by Sarah Reese.
A later story, by Sarah Reese and Lauren Cross, is headed "UPDATE: EPA's Pruitt visits East Chicago; agency denies regional office closure." It begins [ILB emphasis added]:
EAST CHICAGO — EPA Administrator Scott Pruitt’s visit Wednesday to the city’s contaminated Superfund site was marked with rallying cries from protesters denouncing proposed budget cuts under President Donald Trump’s administration and demanding better protections from polluted air, dirt and drinking water.From the Fort Wayne Journal Gazette's editorial yesterday:
But Pruitt said he hoped his visit to East Chicago’s USS Lead Superfund site — his first to any Superfund site in the country — would be the first step of many in “restoring confidence” in a community grappling with a legacy of toxic industry.
“Please know that it is the EPA’s objection, my objective as the administrator of the EPA, to come in and make sure people’s health is protected here in East Chicago, and that they can have the confidence that their land, their health is going to be secured for the long term,” Pruitt said during a brief media statement outside of the former Carrie Gosch Elementary School — shuttered last summer amid fears of lead contamination.
The U.S. Environmental Protection Agency is “committed to doing that … in a very efficient and effective way,” Pruitt said.
Pruitt did not offer any details as to how EPA’s federal headquarters would restore such confidence during his 90-second speech, after which he refused to take questions from reporters. The briefing, held inside the elementary school gates, was closed to the general public, and reporters were required to RSVP ahead of time or show proper identification to enter.
Thanks to Indiana Gov. Eric Holcomb and U.S. Sens. Joe Donnelly and Todd Young, the environmental woes of East Chicago residents are getting the heightened attention they deserve.
The site of a former lead-smelting plant was declared a federal Superfund cleanup project in 2009, but last year the government discovered that lead and arsenic poisoning were still imperiling hundreds of nearby residents. Holcomb declared the area an emergency site and earlier this year offered state help in relocating residents.
Thursday, U.S. Environmental Protection Agency Administrator Scott Pruitt is scheduled to visit, and Housing and Urban Development Secretary Ben Carson has accepted an invitation from Donnelly to visit the site, as well.
East Chicago is also dealing with elevated lead levels in its water related to aging lead pipelines.
The northwest Indiana city's problems are vivid reminders of why the state's anti-pollution watchdog, the Indiana Department of Environmental Management, needs to be robustly funded and staffed.
Environmentalists have long expressed concern that IDEM's staff and budget are inadequate to its task. According to the Hoosier Environmental Council, staffing levels and appropriations for the agency have shrunk by 17 percent over the past decade.
Now, as the Trump administration prepares to make deep cuts in the EPA's resources and regulatory authority, it's important that IDEM have adequate support.
Vacancy On Supreme Court 2017 - Press coverage of yesterday's JNC nominations [Updated]
"Three judges recommended to replace Rucker on Indiana Supreme Court" reports Dan Carden in this NWI Times story. Some quotes:
INDIANAPOLIS — Justice Robert Rucker, a Gary native, will be succeeded on the Indiana Supreme Court by a county judge hailing from either the northeast, central or southeast region of the state."Boone County judge among 3 Indiana Supreme Court nominees" is the heading to this very brief Indianapolis Star story.
On Wednesday, the Indiana Judicial Nominating Commission unanimously recommended to Republican Gov. Eric Holcomb the three candidates it believes are best suited to serve on the five-member high court.
They are: Clark Circuit Judge Vicki Carmichael, 54, of Jeffersonville; Wabash Superior Judge Christopher Goff, 44, of Wabash; and Boone Superior Judge Matthew Kincaid, 46, of Lebanon.
Kincaid was a finalist last year for the Supreme Court seat that went to Justice Geoffrey Slaughter, a Crown Point native. Kincaid also is a law school graduate of Loyola University Chicago.
This year's other two finalists did not list any connections to Northwest Indiana in their applications.
"Three Finalists Chosen For Supreme Court Opening" is the heading to Brandon Smith's WBOI NPR story.
"Carmichael selected as Indiana Supreme Court judge nominee" reports the Clark County News & Tribune.
"Kincaid among three finalists for Supreme Court seat" write Elizabeth Pearl for the Lebanon Reporter. The story begins:
For the second time in a little over a year, Boone County Superior Court I Judge Matthew Kincaid is one of the three finalists for a seat on the Indiana Supreme Court.[Updated at 10:55 am] "Rep. Washburne not chosen as Indiana Supreme Court nominee," reports Kaitlin L Lange in a story for the Evansville Courier & Press.
Kincaid, along with Wabash County Superior Court Judge Christopher Goff and Clark County Circuit Court Judge Vicki Carmichael were chosen from 11 candidates by a Judicial Nominating Commission. The commission will forward the final three candidates' names to Gov. Eric Holcomb, who will have 60 days to make an official appointment for the seat.
Kincaid, who also made it to the final three in March 2016, said the consideration is an honor.
Wednesday, April 19, 2017
Vacancy on Supreme Court 2017 - Here are the three names to be sent to the Governor
Sec. 10 of ARTICLE 7 of the Constitution of the State of Indiana provides in part:
Section 10. Selection of Justices of the Supreme Court and Judges of the Court of Appeals.This evening the Judicial Nominating Commission has announced it will be submitting the following list of three nominees to Governor Holcomb:
A vacancy in a judicial office in the Supreme Court or Court of Appeals shall be filled by the Governor, without regard to political affiliation, from a list of three nominees presented to him by the judicial nominating commission. If the Governor shall fail to make an appointment from the list within sixty days from the day it is presented to him, the appointment shall be made by the Chief Justice or the acting Chief Justice from the same list.
- Hon. Vicki L. Carmichael, Clark Circuit Court 4 (detailed info here)
- Hon. Christopher M. Goff, Wabash Superior Court (detailed info here)
- Hon. Matthew C. Kincaid - Boone Superior Court 1, Lebanon (detailed info here)
Vacancy on Supreme Court 2017 - JNC announcement to take place shortly
Indiana Courts just tweeted:
In 10 mins the JNC will announce 3 finalists for Sup Ct. Enter SH at west entrance, room 319.
Ind. Courts - Gov. Holcomb Announces Judicial Appointment for Noble County Superior Court 2 Vacancy
From the news release:
INDIANAPOLIS – Gov. Eric J. Holcomb today announced Mr. Steven Clark Hagen as his appointment to the Noble County Superior Court II. Mr. Hagan succeeds Judge Michael J. Kramer, who was elected to serve as judge of the Noble County Circuit Court in November 2016.
Mr. Hagen is a longstanding resident and attorney in Noble County with extensive experience in both civil and criminal law. During his career, Mr. Hagen has served as a deputy prosecutor for Noble County, city attorney for the city of Ligonier.
Ind. Courts - "Chris Wrede appointed judge of Terre Haute City Court"
So reports the Times Sentinel today. Some quotes:
Long-time deputy prosecutor Chris Alan Wrede has been appointed as the new judge of Terre Haute City Court by Gov. Eric Holcomb.
Wrede, 43, of Terre Haute, succeeds Judge Sarah Mullican, who was elected to serve as judge of the Vigo County Circuit Court in November 2016.
A news release from Gov. Holcomb's office said Wrede has extensive experience in both civil and criminal law. He has served as a deputy prosecutor with the Vigo County Prosecutor’s Office for the last 10 years. He was previously in private practice of law for seven years.
Vacancy on Supreme Court 2017 - Now for the waiting
The Judicial Nominating Commission will now lunch and conduct deliberations in executive session. If past history is any indication, it will be late this afternoon before we receive an announcement that they will be reconvening in usually 15 minutes for a public vote and announcement of the three names that will be sent to the Governor. The ILB will be waiting ...
Ind. Courts - IU-MCKinney hosting May 24th CLE and reception honoring Justice Rucker
The law school is hosting a free CLE program and reception to honor Justice Rucker beginning at 2:00 p.m. on Wednesday, May 24. You may register via this link. Here is the agenda:
2:00 - Welcome: Dean Andrew Klein
2:05 - Justice Rucker’s Criminal Law Jurisprudence
2:50 - Justice Rucker’s Civil Law Jurisprudence
- Hattie Harman, Indiana Supreme Court, Indianapolis (Law Clerk to Justice Rucker, 2010-14)
- Ellen H. Meilaender, Office of the Attorney General, Indianapolis
- Leanna K. Weissmann, Lawrenceburg (Law Clerk to then-Judge Rucker, 1994-95)
- Moderator: Professor Joel Schumm (Law Clerk to Justice Boehm, 1998-2000)
3:35 - Break
- Bryan H. Babb, Bose McKinney & Evans, Indianapolis (Law Clerk to Justice Sullivan 1999-2000)
- Abigail T. Rom, Office of the Indiana Attorney General, Indianapolis (Law Clerk to Justice Rucker 2010-2012)
- Tony Walker, The Walker Law Group, Gary, Indiana (Law Clerk to then-Judge Rucker 1995-1997)
- Moderator: Dino L. Pollock (Law Clerk to Justice Rucker 2008-2010)
3:45 - Conference ReunionChief Justice Randall T. Shepard and Justices Brent E. Dickson, Frank Sullivan, Jr., Theodore R. Boehm, and Robert D. Rucker served together on the Indiana Supreme Court from November 19, 1999, until September 30, 2010, by far the longest the Court has ever gone with a change in membership. Justice Rucker’s former colleagues will re-join him in “conference” for the first time since September 30, 2010, to reminisce and respond to questions.4:30 - Reception in the Atrium
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #11, Hon. Steven L. Hostetler
This is Prof. Joel Schumm's report on the 11th (and final) interview of Round 2
In response to a question about how he dispenses justice, Judge Hostetler said he remembers the Golden Rule and keeps in mind the principles of Article 1, Section 1, that all power belongs to the people, and keeping mind we are dealing with real people.
In response to a question about the Rooney Rule and diversity, Judge Hostetler said it is important to reach out to others, noting an upcoming speaking engagement where he will encourage people from diverse backgrounds to apply to be judges and provide them his phone number and future assistance, noting his experience with merit selection both at the county and state level.
In response to a question about whether the preamble to the Indiana Constitution was being achieved, Judge Hostetler noted “we can always do more” and the challenges of the “big five”: domestic violence, child abuse, mental health, veterans, and substance abuse.
When asked about legacy, Judge Hostetler would like to be remembered as someone cared about the big problems facing Indiana and came up with innovative ways to address them.
In response to a question about a procedural rule he would like to see changed, Judge Hostetler mentioned the “lazy judge rule” (Trial Rule 53) but then suggested discovery rules should be examined to “right-size” cases and make sure they are on the right path.
In response to a question about judicial restraint, Judge Hostler said it is a “fundamental pillar” of his philosophy and cited his opinion in the ESPN case. Judicial restraint does not mean abdicating the judicial role to decide cases and interpret statutes.
Judge Young commented on the inclusion of the Article 1, Section 12, as the first page of Judge Hostetler’s application. Judge Hostetler said it is a big part of the commitment when he took the bench and had a larger version posted outside his courtroom.
In response to a question about reviewing administrative decisions, Judge Hostetler said he agreed it should not be applied when a fundamental principle is involved but judges must provide appropriate oversight.
Judge Hostetler said two types of cases keep him up at night: (1) those involving child abuse and (2) cases from his Veteran’s Court, discussing challenges of dual diagnosis.
In response to a question about unified county courts and the possibility of regional courts, Judge Hostetler emphasized competing interests: a balanced caseload and helping citizens on one hand and ensuring those who elect their judges are served by their judges. He does not find fault in the way other counties elect their judges and noted the importance of flexibility in addressing uneven caseloads.
In response to a question about professional regrets, Judge Hostetler said he wife commented he could have pursued a judicial career earlier but he has no regrets.
When asked about his preparation, Judge Hostetler noted this was his “fourth” and he is a very prepared person. He did not review cases in preparation of this interview; he reviews them every week. He tries to be himself and understand things that are going to be important to the Commission and convey his thoughts in a way relevant to their concerns.
Mr. Young read from Ponce v. State (Ind. 2014), noting the importance of interpreters and asked about Judge Hostetler learning Spanish. Judge Hostetler’s goal is not to be able to carry on a conversation in court in Spanish but should know enough to understand something was wrong in that case. He said the opinion is “so wonderful” as an example of legal writing by using “unassailable logic to reach the morally irresistible conclusion” in only fourteen paragraphs.
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #10, Ms. Leslie C. Henderzahs
This is Prof. Joel Schumm's report on the 10th interview of Round 2
In response to an opening question about the influence of social media on legal issues, Ms. Henderzahs said her firm has a policy because people in the community view lawyers as leaders. The firm has a Twitter account to promote events. Her advice to younger lawyers is not to post things that their grandmothers would not be proud of.
In response to a question about obstacles to justice, Ms. Henderzahs said we must continue to provide access to those who do not speak English. It is important to recognize that each of those lives matters, and we are going to serve those people.
In response to a question about judicial restraint, Ms. Henderzahs said “the law must be stable but cannot stand still,” quoting Roscoe Pound. When the Constitution was written, the framers could not have anticipated things like artificial intelligence.
In response to a question about a random act of kindness to someone she did not know, Ms. Henderzahs said she helped someone this morning who did not know where they were going.
In response to a question about Criminal Rule 26, Ms. Henderzahs said she likes that the power remains with the local judiciary. The focus has shifted from incarceration to rehabilitation during her time in practice, which she appreciates.
In response to a question about expanding the size of the Indiana Supreme Court, Ms. Henderzahs said she would support it if the Chief and other justices believed expansion was necessary to get the work done and noted the heavy administrative workload. She noted the ten-year anniversary of the “New Way Forward,” which provides an opportunity to consider its strategic plan.
In response to a question about her preparation for the role of a justice other than her “exemplary practice,” Ms. Henderzahs discussed the nature of the cases she has taken, starting in personal injury and more recently a number of high-profile, high-stakes cases that cannot be discussed in a publicly-posted application. Her clients in those cases have prepared her because of the commitment, discretion, and decorum required. Her clients might require a meeting at 5:30 in the morning or 10:30 at night, which she has done. In addition to the high-profile cases, she has had cases with “rooms, not boxes” of discovery. She has also handled commercial litigation cases, which she also discussed at some length.
When asked what she would do if not a lawyer, Ms. Henderzahs said she would help the elderly with exercise.
In response to a question about her preparation for the interview, Ms. Henderzahs said she had reviewed constitutional landmark opinions, read about justices, and met with each current justice. She has reviewed case law outside her practice area and met with judges to ask what they thought would be valuable. She found the application process incredibly rewarding and educational.
In response to a question about solutions to the low bar passage rate, Ms. Henderzahs said she did not see it as a problem. If law students are not putting sufficient time into preparing and understanding important legal skills, they should not be lawyers. No client wants a lawyer who does not do the job well. She also discussed placing students in job or opportunities to help them develop skills.
In response to a question from the Chief Justice about cases being heard next week (a CHINS, tax, and criminal case), Ms. Henderzahs said “on a personal basis” she would “welcome the opportunity to learn more” about the area of law in the criminal case. On an Indiana basis, she would take the CHINS case because of its broad impact, but would defer to the others on the Court.
About the ILB - The opportunity for your organization to become the ILB's exclusive sponsor is still out there ...
The ILB is still 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.
Although the opportunity for your organization to become the ILB's sponsor is still out there, the end of April is fast approaching. Right now, the ILB is intensively covering the Supreme Court interviews, as it has over past years, and the blog will continue to follow appellate opinions and related matters through the end of the month...
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.
Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 13 NFP memorandum decision(s))
For publication opinions today (5):
In Constantinos P. Angelopoulos v. Theodore P. Angelopoulos, Neptunia Inc., Transmar Corp., Didiac Establishment, Beta Steel Corp., and Top Gun Investment Corp. II, a 16-page opinion, Judge Mathias writes:
On remand from this court, the Porter Superior Court issued an order denying the motion of Constantinos P. Angelopoulos (“Constantinos”) seeking to modify a protective order preventing him from using certain materials obtained during discovery and designated as confidential by Appellees-Defendants Beta Steel Corp. (“Beta Steel”) and Top Gun Investments Corp. II (“Top Gun”) under the protective order, in future litigation in Greece between Constantinos and his brother Theodore P. Angelopoulos (“Theodore”). The trial court’s order also concluded that, pursuant to Administrative Rule 9, portions of Theodore’s deposition testimony should be excluded from the public record. Constantinos appeals and presents two issues, which we reorder and restate as (1) whether the trial court erred under Administrative Rule 9 by excluding from the public record portions of Theodore’s deposition testimony, and (2) whether the trial court abused its discretion by failing to modify the protective order. * * *In Citizens Action Coalition of Indiana, Inc. v. Northern Indiana Public Service Company; NIPSCO Industrial Group; and United States Steel Corporation, a 25-page opinion, Judge Baker writes:
Given the evidence before the trial court that release of personal information regarding Theodore and his family could lead to an increased risk of crime and terrorism against the family, we cannot say that the trial court abused its discretion in denying Constantinos’s motion to modify the protective order. Indeed, Constantinos merely desires to use Indiana’s generous discovery process to discover information that would apparently not be permitted in Greece and be allowed to use these materials in Greece. Unless and until a Greek court decides that such materials would be admissible in the proceedings before the Greek court, a decision to which our courts would afford comity, we cannot say that the trial court abused its discretion by declining Constantinos’s request to modify the protective order.
Conclusion. The trial court did not abuse its discretion when it found that Theodore had met his burden of establishing, by clear and convincing evidence, that the portions of his deposition previously designated as confidential, but submitted in court, should be part of the public record. Nor did the trial court abuse its discretion when it denied Constantinos’s motion to modify the Protective Order to permit Constantinos to use, in Greek litigation, the discovery materials designated as confidential discovery in the Indiana action.
Northern Indiana Public Service Company (NIPSCO) filed a petition with the Indiana Utility Regulatory Commission (IURC) seeking to implement a new rate design, pursuant to which certain rates would increase. NIPSCO and other entities, including NIPSCO Industrial Group (Industrial Group) and United States Steel Corporation (US Steel), engaged in settlement negotiations and reached an agreement. Citizens Action Coalition of Indiana, Inc. (CAC), had intervened in the proceeding and objected to the agreement. The IURC ultimately approved the settlement agreement, and CAC now appeals, arguing that there is not substantial evidence supporting the IURC’s order and that the IURC should have required the inclusion of a low-income payment assistance plan and the collection and reporting of customer data by NIPSCO. Finding substantial evidence and no other error, we affirm.Matthew L. Johnson v. State of Indiana
NFP civil decisions today (5):
NFP juvenile and criminal decisions today (8):
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #9, Mr. Peter J. Rusthoven
This is Prof. Joel Schumm's report on the 9th interview of Round 2
In response to an opening question about collegiality and if he had one regret from his professional experience, Peter Rusthoven said he has never had difficulty viewing opposing counsel as someone doing their job. In one particularly heated case, he responded to a lawyer “chatting him up” that they were not friends.
In response to a question from Mr. Feighner about measuring up the example of former justices (Powell, O’Connor, Dickson, and Rucker), Mr. Rusthoven said they did their homework and treated individuals well. He appreciates the way Justice Rucker grasps the issue and gets to the heart of it in his questions at oral argument.
In response to a question about a life lesson he hopes his children would learn from him, Mr. Rusthoven discussed the importance of honesty, not sacrificing integrity for any reason, and not giving up.
In response to a question about his commitment to judicial restraint, Mr. Rusthoven said he is as committed as one can be. It is vital that each branch of government “stay in its own lane.” The executive and legislative branches can be booted if they step out of line. Judges should be umpires, following and enforcing the rules, not being philosopher kings and queens. One of the reasons the U.S. Supreme Court nominations have become so contentious is because the Court decides issues based on considerations other than text, and the process is now viewed as “one of nine votes for a super-legislature.”
Mr. Rusthoven went to law school with Merrick Garland, who would have been confirmed in a different era — as would Robert Bork. He appreciates that this Court has instead stayed in its own lane.
In response to a question about what he would tell his children about personal responsibility (if a statute does not impose liability for something they have done), Mr. Rusthoven would talk with children about how they will make it right with the person.
In response to a question about his lack of experience in the criminal realm and what he has done to prepare, Mr. Rusthoven said he has kept up on reading and has talked to a couple trial judges about their views on bail. In response to a follow up question, Mr. Rusthoven said he could not walk into a criminal defense case and handle it properly. The Constitution guarantees the right to “liberty,” which is crucial. We have lost something if people believe the system is a machine they get lost in.
In response to a question about the Rooney rule, Mr. Rusthoven said racism is a cancer of American life and we are behind where we should be. He mentioned the importance of ICLEO and his commitment to further the goals of diversity.
In response to a question from Mr. Yakym about his op-eds for the IBJ and how to handle issues where the legislature is silent, Mr. Rusthoven drew a contrast between statutory and common law issues. When dealing with a statute, many times the text provides a clear answer, and other times ambiguity will need to be addressed. Courts then must “reach the best result we can without stepping out of bounds.” When dealing with common law, judges have more latitude to make changes, and something that made sense hundreds of years ago in England may not today. Following up about the possibility of absurd results, Mr. Rusthoven cited the canon and noted there is a body law. A number of things may seem dumb to some, but courts must be careful about invoking the absurdity of results as a reason to look beyond text.
Mr. Feighner commented on proposed changes to the merit selection system, which would have had legislative leaders appoint lawyer members instead of electing them. Mr. Rusthoven said the process has worked fairly well over the years. The process includes different perspectives, and he thinks he has been treated fairly by the elected lawyer members. Commission members bring their own points of view, and the general consensus of the bar is that the system has worked well.
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #8, Hon. Matthew C. Kincaid
This is Prof. Joel Schumm's report on the 8th interview of Round 2
In response to an opening question about lessons he learned from his dad, a long-time Boone County judge, Judge Kincaid emphasized not holding a grudge and the importance of poor long-time memory, always treating people with respect. When he drops his daughter off at school, his advice is to “work hard and be nice to everybody.”
In response to a question about the Court responding to changes in society, Judge Kincaid said the Court must decide the cases before it. The legislature is best positioned to respond to those changes, in statutes which the Court applies.
In response to a question about his work on judicial committees, Judge Kincaid discussed his work on the criminal instructions committee, which requires them to stay on top of the law. He has also been on the civil instructions committee and Benchbook Committee, all of which have enriched him as a judge and exposed him to judges who care deeply about the issues.
In response to a question about who he is besides a judge, Judge Kincaid noted he is a “father” and “thinker” and sometimes sits in judgment of himself - and also a “confident person.”
Responding to a question about judicial restraint, Judge Kincaid said judges need to interpret statutes and contracts as they are written. If judges are not restrained, they can do a lot more damage. He cited the importance of judicial restraint from Federalist paper 78.
In response to a case about an adoption case discussed in his application, Judge Kincaid said the father’s consent could be dispensed with and either litigating party (foster parents or grandparents) would have been a good parent. He concluded the foster parents who had cared for the child for years should continue to raise the child.
In response to a question about a time he was on the opposite side of issues from Justice David, Judge Kincaid said he seldom had disagreements, although they may handle some things differently in court. To laughter, Judge Kincaid said he tries to sneak into his seat before everyone in the Courtroom stands up. He briefly discussed an administrative issue demanding certain things of the Sheriff.
Mr. Yakym read from the preamble of the Indiana Constitution and asked if the judiciary was working to meet the objectives. Judge Kincaid said judges approach issues with humility and stick with the issues before them.
In response to a question about how he would like to be remembered in 25 years, Judge Kincaid responded that he “worked hard and was nice to everyone” and was “personally restrained and thoughtful.”
In response to a question about going outside his comfort zone, Judge Kincaid noted his involvement in community theater. He said many woman auditioned for an early production but no men did. He ended up with a role, which was fun and challenging. In the legal realm, he noted it is a challenge to maintain expertise in the wide array of areas of law.
In response to a question about preparing for the interview, Judge Kincaid said he spent an hour on Monday reviewing his materials and thought about the topics he needed to be sure to convey. He did not read the Federalist papers on the beach during spring break.
In response to a question about the loss of “visible diversity” on the Court and holding an oral argument in a place like Gary, Judge Kincaid said people view judges about how they treat lawyers and litigants. Judges “earn their stripes” by what they do.
In response to a question about getting out in the community, Judge Kincaid said he was given advice as a young lawyer that he should go somewhere if invited. He noted the importance of accessibility, commenting that Justice David often gives his cellphone number out.
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #7, Hon. Peter R. Foley
This is Prof. Joel Schumm's report on the 7th interview of Round 2
In response to an opening question about judicial selection for the appellate bench and what he would tell the legislature at a Committee, Judge Foley commented on the hard work of the JNC and the quality and scrutiny of the applicants. The process does not need fixing.
When asked about pros and cons of an elected appellate judiciary, Judge Foley noted the difficulty of running for election and worries about the politicization of the process.
In response to a question from Mr. Young about the “tremendous sense of humanity” of Justice Rucker , Judge Foley pointed to his background, representing “real people” and being on the trial bench. He appreciates the impact of rulings on everyday Hoosiers. From a small community, he has been active in his church and in Habitat for Humanity, which exposes him to a variety of people.
In response to a question from Mr. Berger about an “inspirational” justice, Judge Foley said he draws inspiration from many: remarking on the civility of Justice Dickson, the personal story of Justice Thomas, and the character and approach of Justice Rucker.
In response to a question from Mr. Yakym about the Court responding to changes in society, Judge Foley commented that the judicial branch is the slowest to change. The executive is the quickest to respond, and the legislature is next. It should be this way.
In response to a question from Mr. Feighner about the legacy he hopes to leave, Judge Foley said legacy is up to others to decide. His goal would be to issue clear, concise opinions. The Court must provide leadership for trial courts and the state’s 18,000 attorneys.
In response to a question from Ms. Kitchell about being “pushed outside his comfort zone,” Judge Foley said it happens frequently in law, commenting on his first jury trial.
In response to a question about his commitment to judicial restraint, Judge Foley said he would be slow to respond to societal shifts because the Court must follow the rule of law. Let the legislature write the statutes; the Court should interpret them.
In response to a question about promoting diversity, Judge Foley said it was important to give people an opportunity they might not otherwise have. He said diversity extends beyond race and gender to a broad spectrum of things.
In response to a question from Chief Justice Rush about Criminal Rule 26, Judge Foley said the issue has been discussed at judges’ meetings and he is open to it. In response to a follow-up question about people in the county jail who cannot afford bail, Judge Foley said he did not know a specific percentage and emphasized the importance of using other sorts of programming and monitoring (like home detention).
In response to a question from Mr. Berger about the potential of an all-white bench at an oral argument at a high school in Gary, Judge Foley said his approach would be same at any high school in Indiana where folks feel disaffected and emphasized how he would convey himself.
In response to a question about increasing the size of the Court, Judge Foley said he is not an advocate of change for the sake of change. He does not believe it is something that is broken and needs fixed.
Mr. Feighner followed up about the implementation of Criminal Rule 26 by local officials, Judge Foley said his approach would be to provide leadership and the county is beginning the process of initial discussions, looking at the results from pilot counties. In response to a follow up, Judge Kincaid said the judges reach decisions collectively with input from others.
In response to a question about a career path other than law, Judge Foley said he enjoys history and has an interest in teaching and has always been interested in public service.
In response to a question about his preparation for the interview, Judge Foley said he has reached out to some folks who have been through the process and mock interview type questions. He has tried to study up on significant Indiana Supreme Court opinions and learn more about the administrative role of the Court.
In response to a question about significant decisions, Judge Foley discussed the recent ESPN case and noted his experience with public record requests from his practice as a county attorney. He also discussed the forfeiture of appeal from the 2014 Adoption of O.R. case.
In response to a question about experience as a judge, Judge Foley said one is not prepared for it until you do it, and sometimes it will be brought home with you.
Vacancy On Supreme Court 2017 - Interviews for Supreme Court finalists begin at 9:00 this morning
Here is today's schedule:
- 9:00 a.m. – 9:30 a.m. – Hon. Peter R. Foley
- 9:30 a.m. – 10:00 a.m. – Hon. Matthew C. Kincaid
- 10:00 a.m. – 10:30 a.m. – Mr. Peter J. Rusthoven
- 10:45 a.m. – 11:15 a.m. – Ms. Leslie C. Henderzahs
- 11:15 a.m. – 11:45 a.m. – Hon. Steven L. Hostetler
- 12:00 p.m. Lunch and deliberations in executive session followed by public vote to select nominees
Tuesday, April 18, 2017
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #6, Ms. Elizabeth C. Green
This is Prof. Joel Schumm's report on the 6th interview of Round 2 (and today's final interview)
In response to an opening question from Chief Justice Rush about she would deal with an issue of a litigant not being provided an interpreter, Ms. Green said she would begin with the Indiana Constitution and the importance of the open access. When asked about the “biggest learning curve,” Ms. Green said she has not dealt with criminal law or constitutional law since law school. She has “learned how to learn” throughout life and would continue to do so.
In response to a question from Mr. Berger about her opinion on the difference between the federal and Indiana summary judgment rule, Ms. Green said access to the Courts is essential, citing that Jarboe and Hughley guarantee the right to court when there is any doubt, which she believes “works just fine.”
In response to a question about replacing Justice Rucker, reading a description of him, Ms. Green said her letters of recommendation give insight into her as a person and attorney. She can be cognizant and aware of a person’s situation even if she has not been there herself. She cited examples of representing “the little guy” and discussed the importance of teaching empathy to her children.
In response to a question about supporting a legal position contrary to her beliefs, Ms. Green said she may sometimes think she does not have a winning case or may not agree with their course of conduct but does the best she can with the facts and law.
In response to a question about obstacles to justice, Ms. Green discussed the challenges of and for pro se litigants, noting the importance of a statewide assessment for ways to address it.
In response to Mr. Feighner’s question about the variety of legal issues the Court decided last year and ways she would contribute, Ms. Green said she would bring her experience and knowledge, remarking specifically on commercial cases. In response to a follow-up question about the differences between transactional and ligation practice, Ms. Green said a lot of her time is spent advising clients.
In response to a question from Mr. Berger about how she would weigh the interests of business or individuals under Article 1, Section 23, Ms. Green said she took Indiana constitutional law in law school with Justice Dickson and learned about Collins v. Day. She believes commercial courts help speed up litigation for businesses, but she does not believe businesses should be treated differently.
When asked by Chief Justice Rush when the standard of review should trump deciding cases on their merits, Ms. Green mentioned the importance of deferring to jury verdicts
In response to a question about opinions of Justice Rucker that have spoken to her, Ms. Green discussed the recent mortgage foreclosure case involving a veteran. Giving voice to the voiceless may not carry the day, but it is much easier to live with the decision if people know they were heard.
In response to a question about her preparation for the interview, Ms. Green said she had talked to a lot of different people and had read and reflected on cases and law review articles.
In response to a question about the most radical action she has taken, Ms. Green discussed studying abroad, which opened the door to a different style of teaching and learning.
In response to a question about what she would like the JNC to know that is not in her application, Ms. Green said her application discusses her involvement with the IndyBar Professionalism Committee. She noted how much the “five C’s” apply to her application for this position: commitment (to the law, justice, and the job), character (integrity, impartiality, humility), competency (wide range of experience), courtesy (the importance of how others are treated), and community involvement.
In response to a follow-up from Mr. Berger about Justice Scalia’s dissents, Ms. Green said a message could be lost in how it was presented, and she would not take the approach of Justice Scalia.
In response to a question about expanding the size of the Indiana Supreme Court, Ms. Green said she does not have a strong opinion either way. Increasing the size would bring more voices, which usually leads to a better result.
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #5, Hon. Maria D. Granger
This is Prof. Joel Schumm's report on the 5th interview of Round 2
In response to a question about what can be done with the low bar passage rate, Judge Granger said she would want to look at where there were gaps in education, which she has done through her participation in ICLEO.
In response to a question about free speech guarantees in the Indiana Constitution and the current climate on college campuses and elsewhere, Judge Granger said she would want to make sure any law had reverence to that important guarantee.
In response to a question from Mr. Berger about better understanding her as a person, Judge Granger discussed the importance of public service and her work with St. Elizabeth Catholic Charities, with which she became involved early as a lawyer.
In response to a question from Mr. Young, who read from a list of her extensive administrative/committee work, Judge Granger explained some of the important work that directly impacts citizens, discussing commercial courts, case management, and protecting information, among other things.
In response to a question about preparing for her interview, Judge Granger said her entire career has been preparation, noting the importance of innovation. She has read many cases to help prepare her for her work as judge and this interview.
In response to a question about a procedural rule she would change, Judge Granger mentioned the challenge for prosecutors who become judges and cannot hear criminal cases, forcing other judges (often not elected in that county) to hear cases.
In response to a question from Mr. Feighner about the “vanishing jury trial” in civil cases, Judge Granger said alternative dispute is important.
In response to a question from Mr. Yakym about a letter she had signed regarding funding for humanities, Judge Granger said she signed onto a letter because she believes it is important for people to understand more about each other.
In response to a question from Mr. Berger about demonstrating diversity on and outside the Court, Judge Granger emphasizes she does a lot of public speaking and a lot can be gleaned when people in a leadership role reach out to the community. Interaction increased public trust and understanding. Her recent speech focused on building consensus.
In response to a question from Chief Justice Rush about the possibility of changing the prohibition on citing unpublished/memorandum decisions, Judge Granger said she does not have a strong opinion but believes the law should be useable. If changing the rule further that, she supports it.
In response to a question about cameras in the courtroom, Judge Granger has seen footage from Kentucky courtrooms, which can spread through social media. Although transparency is important, televising proceedings could backfire.
When asked about mentors, Judge Granger cited another judge who is smart and prepared. What is “extra special” is the “level of kindness” he brings to cases.
In response to a question from Ms. Long about her core values, Judge Granger said she was raised by strong parents, told “actions speak louder than words.” She was one of only a few minority families in rural Indiana, which taught her not to get stuck on differences and the importance of relating to others.
The “most radical action” Judge Granger has taken might make her “sound boring.” She is a conscientious person and wants to plan actions before she takes them. She thinks running for office when she did was radical. She was not born in the community where she ran, but sheer will and belief drove the bold move. In response to a follow-up question about her campaign from Mr. Feighner, Judge Granger said she “started small,” talking to people about how the court could better help the community.
In response to a question about her work on American Law Institute (ALI), Judge Granger said the group is committed to clarifying and modernizing the law. She goes the annual meeting each year and noted the Court had cited the work of ALI, through the Restatements, many times.
Ind. Decisions - Still more on "Wis. Supreme Court to Rule on Predictive Algorithms Used in Sentencing"
Algorithms pervade our lives today, from music recommendations to credit scores to now, bail and sentencing decisions. But there is little oversight and transparency regarding how they work. Nowhere is this lack of oversight more stark than in the criminal justice system. Without proper safeguards, these tools risk eroding the rule of law and diminishing individual rights.
Currently, courts and corrections departments around the US use algorithms to determine a defendant’s “risk”, which ranges from the probability that an individual will commit another crime to the likelihood a defendant will appear for his or her court date. These algorithmic outputs inform decisions about bail, sentencing, and parole. Each tool aspires to improve on the accuracy of human decision-making that allows for a better allocation of finite resources.
Typically, government agencies do not write their own algorithms; they buy them from private businesses. This often means the algorithm is proprietary or “black boxed”, meaning only the owners, and to a limited degree the purchaser, can see how the software makes decisions. Currently, there is no federal law that sets standards or requires the inspection of these tools, the way the FDA does with new drugs.
This lack of transparency has real consequences. In the case of Wisconsin v. Loomis, defendant Eric Loomis was found guilty for his role in a drive-by shooting. During intake, Loomis answered a series of questions that were then entered into Compas, a risk-assessment tool developed by a privately held company and used by the Wisconsin Department of Corrections. The trial judge gave Loomis a long sentence partially because of the “high risk” score the defendant received from this black box risk-assessment tool. Loomis challenged his sentence, because he was not allowed to assess the algorithm. Last summer, the state supreme court ruled against Loomis, reasoning that knowledge of the algorithm’s output was a sufficient level of transparency. * * *
The legal community has never fully discussed the implications of algorithmic risk assessments. Now, attorneys and judges are grappling with the lack of oversight and impact of these tools after their proliferation.
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #4, Mr. William N. Riley
This is Prof. Joel Schumm's report on the 4th interview of Round 2
When asked about why he applied, Mr. Riley mentioned comments made by the Chief Justice at a conference and that he has long known Judge Nation. Mr. Riley feels “called to serve.”
When asked about a holding he would defend, Mr. Riley cited a recent termination of parental rights case and that we should seek to preserve the rights of parents whenever possible.
In response to a question from Mr. Young about his role as a trial lawyer and how that translates to the work of a justice, Mr. Riley said whenever he approaches a case there is “fear” that he does not want to let the client down. He would bring the same fear that he does not want to let the citizens of Indiana or his colleague down.
In response to a question from Ms. Long about what he did to prepare for the interview, Mr. Riley said he reviewed the annual reports since 2000, tried to get a handle on the Court’s administrative role, started reading the Scalia book on interpreting texts, read the last 34 opinions of the Court, and read Appellate Rule 7(B) that he was asked about last interview. The most surprising thing he learned was that Indiana was about 74 judicial officer short of what it needs.
In response to a question from Ms. Kitchell about a procedural rule he would like to be changed, Mr. Riley said we could “borrow” initial disclosures from federal court, which could expedite discovery and reduce disputes.
In response to a question from Mr. Feighner about impressive letters of recommendation from adversaries, reading from one of them about Mr. Riley’s “genuine respect for the law and each person” he encounters in a case, Mr. Riley said the law is what holds our society together. Although his father was not a lawyer, he inherited his father’s respect of lawyers. Opposing counsel is doing their job, and there is no reason to be disagreeable. He calls many of them friends.
Mr. Yakym asked which of the 34 opinions Mr. Riley had read that stand out. Mr. Yakym discussed cases that deal with his practice, like the collateral source rule. He has not dealt with criminal cases since law school,
Mr. Berger read Article 1, Section 23, and asked how many occasions the General Assembly has violated that provision by special legislation. Mr. Riley said he would want to know how many times the issue had been brought to this Court and would want to consider those opinions. Mr. Riley would want to consider the text of that provision in bearing on what the legislature had done. He said he would not want to prejudge anything, if the issue comes before the Court.
In response to a question about the importance of stare decisis, Mr. Riley said stare decisis is especially important but sometimes the Court needs to overrule it, citing Brown v. Board overruling Plessy v. Ferguson.
In response to a question from Mr. Young about things Mr. Riley has done to promote diversity, Mr. Riley said he always wants to hire the best person for the job and always he looks at all applicants. He noted that he has mentored and worked with a lot of female associates in his firm.
In response to a question about his commitment to judicial restraint, Mr. Riley said it is not the position of judges to impose their views. Judges must apply what the law says and let the legislature correct it if there is an error.
In response to a question about his most radical action, Mr. Riley said he took up golf a year ago and wanted to have something to do with his son who is now fourteen.
In response to a question from Mr. Feighner about what clients who had lost a case would say about him, Mr. Riley said he helped them tell their story, which is cathartic.
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 5 NFP memorandum decision(s))
For publication opinions today (2):
In Wanda Roberts, et al. v. Anthony W. Henson , a 19-page opinion, Judges Barnes writes:
Wanda and Ray Roberts, along with seventeen of their neighbors (collectively “the Appellants”), appeal the trial court’s grant of summary judgment in favor of Anthony Henson and the denial of their motion for summary judgment. We reverse and remand.In Luther T. Collins v. Metro Real Estate Services, LLC , a 20-page opinion, Judge Barnes writes:
The restated issue before us is whether the trial court correctly concluded as a matter of law that a structure built by Henson in the Appellants’ neighborhood did not violate the neighborhood’s restrictive covenants. * * *
We reverse the grant of summary judgment in Henson’s favor with respect to the covenant provisions regarding story height and two-car garages and remand for further proceedings with respect to those provisions. However, we agree that, as a matter of law, Henson’s structure is not a “barn” or “pole barn” that is prohibited by the covenants.
Luther Collins challenges the trial court’s order finding an easement exists across Collins’s property for the benefit of adjacent property owned by Metro Real Estate Services, LLC (“Metro”). We affirm. * * *NFP civil decisions today (2):
[Issues] I. whether there is an easement by grant over Collins’s property; and II. whether there is an easement by implication over Collins’s property. * * *
The trial court did not abuse its discretion by concluding an easement exists for Metro’s benefit over Collins’s property. We affirm.
NFP juvenile and criminal decisions today (3):
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #3, Hon. Christopher M. Goff
This is Prof. Joel Schumm's report on the 3rd interview of Round 2
In response to an opening question about ways the Indiana Constitution is greater than the federal constitution, Judge Goff noted some of these could be hot button issues and discussed religion liberties (City Chapel) and commented that he sees more frequently things like search and seizure (Section 11) challenges.
Mr. Goff brought his family, whom Chief Justice Rush asked him to introduce. He said he has been married since he was 21, and she is his life partner. He noted how richly they had been blessed since then.
In response to a question about the greatest obstacles to justice, Judge Goff emphasized providing equal access to justice. He noted that supervision of low-level felonies, for example, had shifted from the state to county, which requires innovation. Confidence in the judicial could erode if we don’t ensure equal opportunities.
In response to a question from Mr. Feighner about his age of 45, about 10 years younger than his colleagues, and the long tenure, Judge Goff said he was not ready as a 22-year-old dad or 32-year-old judge, but when he finds himself at his weakest he reaches out for resources to get the job done. He could contribute on day one, remarking on his work on domestic violence and judicial education. He would work on writing good, clear opinions.
Judge Yakym read the preamble of the Indiana Constitution and asked if the judiciary was working to achieve those goals. Judge Goff emphasized the importance of county judges in addressing problems. Regarding public safety, he believes more needs to be done to extend or regionalize problem-solving courts.
In response to a question from Mr. Berger about the ability of the court to have diversity, specifically the Rooney rule, e which Judge Goff said he could not address. (Mr. Feighner later explained the rule but did not pose a question.)
Following up about the two U.S. Supreme Court justices, Judge Goff said he would first want to be Chris Goff, and remarked on his unique familial background. He will “never look like one of those guys,” which is important, but he adopted an African-American child when he was 22, and he can see discrimination in his treatment. Judge Goff was an African-American studies minor at Ball State and had planned to study in Tanzania but his wife decided they should instead get married. Although he comes from a place without much diversity, he believes it is important to get a broader perspective.
In response to a question about the low bar passage rate, after $100,000 in debt for many students, Judge Goff discussed his attendance of the 2015 AJEI in which Justice Massa presented about challenges to legal education and noted the importance of attracting better students to law school. He also discussed doing a better job promoting civility.
In response to a question from Ms. Long about the power and bounds of the judiciary, Judge Goff discussed the importance of unanimity in opinions and said he is most passionate about ways the judiciary can improve people’s lives and be a good ambassador.
When asked about a life lesson he hoped his children learned from him, Judge Goff said “jump in with both feet and don’t be afraid to try something.”
In response to a question from Mr. Feighner about his work as a judge in a rural county, Judge Goff emphasized the importance of the perspective of small towns, which have different needs. Most of Indiana looks like Wabash and not Indianapolis. If he knows he will have to house all his Level 6 felons in the county jail, he will need problem-solving courts.
In response to a question from Mr. Yakym about expanding the size of the Indiana Supreme Court (the Indiana Constitution allows it and neighboring states have seven justices), Judge Goff said more members give more voices and perspectives, although each may be diluted. Judge Goff said he sometimes gets tired of change and thinks five is probably the right size for Indiana and merit selection has worked well in selecting justices.
In response to a question about things that keeps him awake at night, Judge Goff said his mother doesn’t have health insurance. When deciding cases, he worries about how a supervised visit will work and other issues. He worries about the struggles people have, and that would not change if he was on the Indiana Supreme Court.
Chief Justice Rush asked which of the three cases on the docket for next week Judge Goff would want to write if he was on the Court, and he said tax is the area in which he has the least experience, and he would want to jump in and do that one.
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #2, Rep. Thomas W. Washburne
This is Prof. Joel Schumm's report on the 2nd interview of Round 2
In response to a question from Chief Justice Rush about one case holding he would defend for the rest of his life, Rep. Washburne paused and said he was drawing a blank. Chief Justice Rush followed up, asking about a case that affects what he does as a legislator, he discussed the importance of medical malpractice cases as well as the ESPN cases dealing with university police forces.
In response to a question from Ms. Kitchell about one change he could make to the Indiana Constitution, Rep. Washburne said nothing jumps out as “defective” but that issues could be clarified.
When asked what Judge Dillin (for whom he clerked) would write in a letter of recommendation for him, Rep. Washburne said Judge Dillin cared about accessibility and was skilled at explaining the law. Rep. Washburne commented on his skill at explaining complex matters to non-lawyers - Judge Dillin’s opinions were short but informative.
In response to a question from Mr. Berger about replacing Justice Rucker, the only African-American on the Court, and his views of the two African-American justices on the U.S. Supreme Court, Rep. Washburne said he admired the “courage and challenge” of Justice Marshall but his judicial philosophy is similar to Justice Thomas.
In response to a question from Ms. Long about confronting a legal issue that conflicted with his personal beliefs, Rep. Washburne said as corporate counsel he is sometimes asked to handle matters differently than he might want to personally address them. When lawyers are working for someone, they need to accept that. In the context of government, we need to be loyal to our Constitution and statutes.
In response to a question from Chief Justice Rush about reviewing administrative decisions (mentioned federal Chevron deference), Rep. Washburne said agencies are executive branch officers and entitled to deference. When asked if more or less deference should be given, Rep. Washburne said when due process or constitutional rights are at stake deference is less appropriate. Rep. Washburne said many perceive that ALJs are too cozy with the agencies, a topic of hearings last year. He said the issue was postponed because there was a new administration, but the issue would come back.
When asked about the greatest obstacle to justice, Rep. Washburne said “people are people.” He said we cannot all be as magnificent as the buildings we occupy, and checks and balances are essential.
Mr. Feighner read from the recent Indiana Law Review survey article of types of cases heard by the Court last year and asked how Rep. Washburne would approach such a wide variety of issues, Rep. Washburne discussed the preparation of his background and said our system accounts for the inability of justices to be experts in all areas by requiring briefs.
In response to a question about the Indiana Constitutional provision that says penal laws should be founded on provisions of rehabilitation and not retribution, Rep. Washburne discussed the importance of HEA 1006, which helped bring more proportionate sentences, which included lower penalties for some drug offenses.
In response to a question about the diversity that will be lost with Justice Rucker’s retirement and how he viewed the Black Lives Matter movement, Rep. Washburne said “who could dispute” that black lives matter and applauds the tenacity of the movement. He may not agree with all their principles but hopes they will be more patient in waiting for some of the investigations. Even when he disagrees with activists, he applauds them.
When asked by Mr. Young about his last “random act of kindness,” he said he encouraged his daughter to give the food she took out of a restaurant to someone outside who said he was hungry. He emphasized the importance of treating people with kindness and respect.
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #1, Hon. Vicki L. Carmichael
This is Prof. Joel Schumm's report on the 1st interview of Round 2
In response to the opening question from the Chief Justice, why does she want to be on the Indiana Supreme Court, Judge Carmichael said decisions are made that affect all of Indiana, and she wants a seat at the table. She explained the important role of the Court, including its opinions (often unanimous) and rule-making. She also discussed protecting criminal defendant’s rights, including the early appointment of counsel, which was discussed at the April 7 Indiana Law Review symposium at which she was a panelist.
In response to a question from Ms. Kitchell about the most radical position she has taken in her professional life, Judge Carmichael discussed a local ordinance regarding sex offenders that she believed was unconstitutional. She met with parties in chambers and asked them to fix it before holding a hearing. A new ordinance was enacted but ultimately found unconstitutional by the Court of Appeals.
In response to a question from Mr. Feighner about Clark County becoming a unified court, Judge Carmichael emphasized the utility of administration through one budget and ease in transferring cases between judges.
In response to a question from Mr. Berger about learning more about applicants as a “person” by understanding “what keeps them up at night,” Judge Carmichael responded cases involving children (CHINS and delinquency) and struggles with issues regarding heroin in her county.
In response to a question from Mr. Young about replacing Justice Rucker, who had “courage and fortitude to protect rights” of the voiceless, Judge Carmichael said she has compassion and brings that to the bench. She was a public defender for twelve years—working with the good, bad, and ugly. She believes it is important to help others and focus on the needs of litigants at the time.
In response to a question from Ms. Long about commitment to judicial restraint, Judge Carmichael said she will listen to disputes and make tough decisions — not overstepping her bounds. She noted the difficulty of balancing when one party is self-represented and other is represented by counsel.
When asked by Chief Justice Rush about overturning precedent, Judge Carmichael emphasized the importance of giving predictability and stability. She said new issues — like Internet solicitation of police officers pretending to be children — present challenges when society and technology changes.
In response to a question from Ms. Kitchell about changing the Constitution, Judge Carmichael said she did not believe the Constitution did need to be changed but some rules may need to be changed to make the criminal process and perhaps the civil process more fair.
In response to a question from Mr. Feighner about cases with political aspects (two are included on her application, one was a special judge appointment), she said she talked with the parties and they agreed she could be fair. She does not look at politics in making decisions; she believes judges should be apolitical and impartial. Following up about the case she would make the Governor (as a Democrat) if a finalist, Judge Carmichael said she does not view the JNC as political but instead committed to sending the best three applicants who won’t embarrass. Her background is fair, impartial, and unbiased. She believes judicial elections should be non-partisan. She is a person of integrity and character. She will bring gender and geographic diversity.
Mr. Yakym asked about a 2013 article in which Judge Carmichael said her least favorite part of the job was the administrative tasks, she explained the challenges of asking the Council for money and personnel issues. Even if her least favorite part of the job, she enjoys working with other judges and on committees and would bring that enthusiasm to the Court.
Mr. Berger asked about diversity, noting that the Court’s most recent roadshow argument was in Gary and the significance to students if the Court returned and was “all white people.” Judge Carmichael discussed looking beyond race, noting that she goes to a high school in Jeffersonville, sometimes with a white staff, and believes the students are receptive because she approaches all people with an open mind. She has been a featured speaker at the NAACP, where they see her as Judge Carmichael.
When asked about mentors, Judge Carmichael mentioned a prominent criminal defense attorney in Kentucky who taught her the importance of being prepared, and an “incredibly active” justice of the Kentucky Supreme Court for whom she clerked and who read cases every night.
In response to a question from Ms. Long about the role of the judicial branch, Judge Carmichael emphasized the importance of interpreting laws and not interfering with the legislative or executive branch.
Ind. Law - Golars Environmental Engineering hires former AG Zoeller as general counsel
From a news release:
INDIANAPOLIS, Ind., April 18, 2017 – Golars Environmental Engineering today announced the hiring of former two-term Indiana attorney general Greg Zoeller as general counsel for the Noblesville-based firm.
Golars is an environmental engineering and consulting firm providing integrated services in several disciplines, including site investigation, brownfield redevelopment, remediation services, contaminated sediment services, and waste management services.
Vacancy On Supreme Court 2017 - Waiting for the interviews to begin ...
Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law, demonstrates upgraded seating for reporters at today's interviews:
Vacancy On Supreme Court 2017 - Interviews for Supreme Court finalists begin at 9:30 this morning
Here is today's schedule:
- 9:30 a.m. – 10:00 a.m. – Hon. Vicki L. Carmichael
- 10:00 a.m. – 10:30 a.m. – Rep. Thomas W. Washburne
- 10:30 a.m. – 11:00 a.m. – Hon. Christopher M. Goff
- 11:15 a.m. – 11:45 a.m. – Mr. William N. Riley
- 11:45 a.m. – 12:15 a.m. – Hon. Maria D. Granger
- 12:15 a.m. – 12:45 p.m. – Ms. Elizabeth C. Green
- 1:00 p.m. – 4:30 p.m. – JNC: Lunch and executive session to consider applications
While you are waiting, you may want to review earlier ILB posts on the 2017 vacancy, and particularly this March 22nd post by Prof. Schumm headed "Vacancy On Supreme Court 2017 - Thoughts on the First Round."
Monday, April 17, 2017
Ind. Courts - Conference Committee meeting on Marion Superior Court judicial selection is this afternoon
The ILB's most recent post on HB 1036, the Marion Superior Court judicial selection, was on March 30th, headed "Senate Committee amends HB 1036, intended to replace Marion County judicial selection law declared unconstitutional by the 7th Circuit."
The House dissented in the Senate amendments and the bill now is in conference committee. The conference committee is meeting this afternoon, at 3:00 PM. You will be able to watch it live.
The following article by Theodore R. Boehm will appear in the center spread of The Indiana Lawyer this week. I'm told Justice Boehm's views are in agreement with the IndyBar’s, those given by the Marion Superior Court’s lobbyist, and the House bill authors:
Perspectives on House Bill 1036
By Theodore R. Boehm, Hoover Hull Turner LLP
From 1975 through 2014, with a few minor tweaks, half of Marion County judges were elected in the Republican primary and half in the Democratic primary. No party was allowed to nominate more than half the number of seats up for election. This system initially allowed for one loser in the general election, but in the twenty‐first century the parties’ two monopolies, each on half the Superior Court bench, were cemented and the general election became a complete farce.
This shared monopoly worked pretty well in terms of the quality of the bench. So most of us were reasonably satisfied with an undemocratic system that produced, with few exceptions, capable hard working judges. Challenges to this bipartisan accommodation came not from concern about the judges it was producing, but about the pressure put on the legal system by the parties’ demands for ever escalating “slating fees” required for the party’s blessing in the primary that had become the gateway to the bench. When the parties came to see the bench as a cash machine exploiting the willingness of lawyers to support judicial candidates, it was time to challenge a system that turned judicial selection into a private for profit enterprise.
The ACLU challenged this judicial selection system as incompatible with basic democratic principles, and the Seventh Circuit ultimately affirmed Chief Judge Young’s opinion finding it a violation of the Federal Constitution. There were no judicial seats up for election in 2016, so the General Assembly elected to pass on filling the void. Now, however, if nothing is done by the legislature, presumably the courts will design a process for us before the 2018 election.
The Indianapolis Bar Association has endorsed the House version of House Bill 1036 which would fill this gap by creating a new Marion County Judicial Selection Committee. In that version of the bill, the committee is to propose three nominees to the Governor to fill any vacancy. The Governor is constrained by the requirement that no more than fifty‐two percent of the Marion County bench are to be of the same party. The committee’s processes are similar to the seven‐member Judicial Nominating Commission (JNC) that has chosen three candidates to fill any vacancy on the Indiana Supreme Court or the Court of Appeals since 1970.
The Marion County Committee differs from the JNC in its size (14 members) and composition. The JNC is chaired by the Chief Justice of Indiana, and has three members elected by the lawyers of the state and three appointed by the Governor. The Marion County Committee proposed by the House version of H.B. 1036 has four members appointed by leaders of the Indiana House and Senate, four attorneys appointed by the presidents of the Indianapolis Bar Association, the Marion County Bar Association, the Indiana Trial Lawyers Association, and the Defense Trial Counsel of Indiana, four appointed by the Marion County chairs of the two major political parties, and two appellate judges chosen by the Chief Justice and the Chief Judge of the Court of Appeals.
Some have complained that giving appointments of eight of 14 seats on the committee to officeholders or party officials injects “politics on steroids” into the process. But the political appointing officials are equally divided between the two major parties. And H.B. 1036 has two major benefits: it removes the judges from fundraising and assures careful review of candidates’ qualifications and character. In the judgment of those closest to the legislative pulse, giving politicians right to appoint members of the committee is necessary to make the bill palatable to the General Assembly. H.B 1036 isn’t perfect, but it’s the best we can do.
There have been concerns voiced by some members of minority communities that this bill is antidemocratic because it denies the voters a voice in the process. But if the real concern is that the committee will produce a less diverse bench, the experience with the JNC and other commissions shows otherwise. And lawyers in the two counties—Lake and St. Joseph— with nominating commissions report they are pleased with the bench they get from their nominating commissions.
Selecting a judge requires evaluation of professional skills, patience, hard work and integrity. History has shown time and time again that in major metropolitan areas, the vast majority of the general voting public does not know the judicial candidates, and does not have the interest or access to information to make an informed decision. Support H.B 1036 as the best practical hope to confine fundraising to the political branches and ensure proper vetting of candidates.
Boehm served as Associate Justice of the Indiana Supreme Court from 1996 to 2010, authoring the most majority opinions for the court in that span.
Ind. Courts - February 2017 bar exam results listed
The list of applicants who passed the Indiana Bar Exam in February 2017.
Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 5 NFP memorandum decision(s))
For publication opinions today (0):
NFP civil decisions today (2):
NFP juvenile and criminal decisions today (3):
Ind. Gov't. - IBJ EDITORIAL: Don’t price public out of public records
From the April 15th IBJ editorial:
[HB 1523] would allow government agencies to charge the public and the media up to $20 an hour to fill public-information requests that take longer than two hours to retrieve.
That’s right: $20 an hour for an employee paid by taxpayers to search for records funded by taxpayers to provide to those taxpayers.
The fee is an affront to those members of the public and the media who want to try to understand and sometimes keep an eye on the elected officials and their staffs who are spending public money.
Supporters of the bill argue that government agencies can be deluged with public-records requests that pull them away from the work of governing. And at a time when those government agencies face increasingly difficult financial pressures, that concern is easy to understand.
But the problem with the argument is that it implies providing records to the public is not part of elected officials’ jobs. Actually, it’s one of their most essential roles.
After all, an informed electorate is key to a working democracy.
The ability of a city resident—or a TV station or an opposing candidate or whoever—to dig into procurement records that determine which local companies get lucrative government contracts can help keep a city council honest.
A newspaper reporter’s determination to pore through thousands of emails sent and received by elected officials to ferret out whether they are following rules that separate campaigns from official government business can give voters essential information—and might even uncover criminal activity.
And the ability to do that kind of research should not be hampered by an individual’s ability to pay.
Former Gov. Mike Pence—the current vice president—knows that. He actually faced a much more difficult decision in 2015 when a bill with a similar provision reached his desk. In that case, the bill also included several provisions that would have meant positive changes in public transparency.
Still, Pence did not let those better provisions outweigh what was wrong with the legislation. He said when he vetoed the bill that “the cost of public records should never be a barrier to the public’s right to know.”
We urge Holcomb to reach the same conclusion.
Ind. Gov't. - "Indiana legislative session set to end Friday"
Dan Carden reports in the NWI Times in a story that begins:
Hoosier lawmakers are planning to end the four-month annual meeting of the Indiana General Assembly on Friday — eight days ahead of the April 29 mandatory adjournment deadline.
It's not that there isn't legislative work still to be done, but next week, representatives and senators would have nowhere to sleep in Indianapolis as an international firefighters convention is set to take over all the hotel rooms in the state's capital city.
That means the usual end-of-session pressure and deal-making at the Statehouse will be taken to the next level, as lawmakers try to hash out compromise versions of proposals that already have passed the Republican-controlled House and Senate with varying provisions.
Senate President David Long, R-Fort Wayne, said he's expecting "a very, very busy final week that will require a lot of patience, diligence and long hours — and that's the way it should be.
"The pressure to get things done is one of the things that makes Indiana's Legislature unique, and I think it makes us work better," Long said.
House Speaker Brian Bosma, R-Indianapolis, is advising his members not to let perfect be the enemy of the good, as they strive to blend conflicting provisions in their legislative proposals.
"I've encouraged members of conference committees to get their work done, and get it done as quickly as possible, because once we get an agreement on roads, the budget and liquor, we're getting out of here," Bosma said.
Of course, talking about an agreement on those issues always is easier than actually coming to an agreement.
Ind. Gov't. - "Micromanagement could spread to Indiana: Home-rule helicoptering"
The Wall Street Journal reported last week that states are trying a new approach to curbing the powers of local governments.
Florida, Texas and Pennsylvania, the Journal reported, are considering “broad-based approaches to block city ordinances, rather than fighting cities on specific issues like minimum-wage rules. Arizona has already enacted such a rule.”
Given the general legislative hostility toward what used to be known as “home rule,” it's not too early to worry about whether Indiana could be far behind.
“Proponents say these wide-ranging bills are a way to get ahead of a flurry of local actions around the country, such as a plastic-bag levy in New York City, a paid sick-leave requirement in Philadelphia and ride-sharing regulations affecting companies such as Uber,” the Journal reported. Advocates say the new omnibus approach will help states smooth the regulatory environment for businesses. Detractors say it's about power and politics.
The lure of interceding on decisions better left to municipalities is a temptation to which Hoosier legislators frequently succumb.
Last year, the legislature turned aside from weightier matters to head off an effort by environmental activists to ban plastic bags in Bloomington. Now, cities in Indiana are forbidden even to limit or tax the use of such bags. Also in 2016, Rep. Matt Lehman, R-Berne, shepherded through a bill to smooth the way for Uber and other ride-sharing services. That the measure overrode local ordinances in places such as Fort Wayne didn't seem to matter.
This year, the Senate and House are working to finalize a bill that would stop municipalities from prohibiting Airbnb-style short-term rentals and sent a proposal to prevent localities from regulating the size and placement of cellphone companies' transmission towers to a summer study committee. * * *
Win Moses Jr., a Democrat who's seen the issue as a Fort Wayne mayor and as a state representative, said Friday it's been at least two decades since the legislature routinely honored the home-rule concept. Since then, finding compromise between the need for statewide predictability and the rights of communities to determine their own rules has been difficult.