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Tuesday, November 29, 2005

Ind. Decisions - Supreme Court issues 4 opinions, dealing with attorney discipline, prescriptive easements, and two criminal law cases

In the Matter of Dorothy J. Thomsen is a 3-page per curiam decision. Some quotes:

The parties in this case have filed a Statement of Circumstances and Conditional Agree-ment for Discipline acknowledging that respondent violated Ind. Professional Conduct Rule 8.4(g), which prohibits a lawyer from engaging in conduct in a professional capacity manifest-ing, by words or conduct, bias or prejudice based upon race. The parties’ agreement calls for a public reprimand, which we approve. Because this case is the first to arise under this section of our Rules of Professional Conduct, we write today for the benefit of the bar and the public. * * *

Because, as stipulated by the parties, respondent neither made nor substantiated any ar-gument to the court that the man’s race was relevant to the dissolution, her comments were un-necessary and inappropriate. Respondent’s comments do not met the standards for good manners and common courtesy, much less the professional behavior we expect from those admitted to the bar. Interjecting race into proceedings where it is not relevant is offensive, unprofessional and tarnishes the image of the profession as a whole.

Legitimate advocacy respecting race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors does not violate Prof.Cond.R. 8.4(g), but our decision here is based upon the parties’ agreement that race was not relevant in this case; there was no legitimate reason underlying the comments made by respondent. Respondent’s misconduct is a significant violation and cannot be taken lightly.

Respondent’s comments only serve to fester wounds caused by past discrimination and encourage future intolerance. Unfortunately, we know that conduct of the type exhibited by respondent here is not an isolated occurrence. Our Commission on Race and Gender Fairness reported in 2002, that a significant minority of those surveyed had “… observed courtroom harassment and disparagement on the basis of gender, ethnicity or race, …” Indiana Supreme Court Commission of Race and Gender Fairness, Executive Report and Recommendations, p.6, (2002). There is no place for such conduct in our courts.

We find that a public reprimand is appropriate under the circumstances presented by the parties. The respondent, Dorothy J. Thomsen, is publicly reprimanded for her misconduct. Costs of this proceeding are assessed against the respondent.

In Paul Wilfong v. Cessna Corporation, a 7-page opinion, Justice Sullivan writes:
Paul Wilfong claims to have a prescriptive easement permitting him to use a private roadway across Cessna Corporation’s property. While there was evidence that previous owners of Wilfong’s property used the roadway, there was also evidence at trial that the prior use had been only with the permission of the owner and not “hostile or under any claim of right.” This latter evidence was sufficient to support the trial court’s rejection of Wilfong’s claim.
In Rodney D. Kling v. State of Indiana, a 9-page opinioon, Justice Sullivan begins:
Our decision last year in Collins v. State, 817 N.E.2d 230, 231 (Ind. 2004), held that an individual who pleads guilty to an offense in an “open plea” and who challenges the sentence imposed must do so on direct appeal and not by means of a petition for post-conviction relief. Collins has given rise to questions concerning the relative roles and responsibilities of county appellate public defenders and the State Public Defender in handling belated appeals of sen-tences imposed following open pleas. We address those questions in this opinion.
In Joseph Kincaid v. State of Indiana the opinion, written by Justice Sullivan, deals with when Blakely claims must be raised.

Posted by Marcia Oddi on November 29, 2005 12:18 PM
Posted to Ind. Sup.Ct. Decisions