Thursday, October 16, 2008
Ind. Law - Yet more on: "Indy Law Firm moves beyond its nightmare"
To think that a simple "yes" to a million-dollar settlement three years ago could have saved a lot of grief for a local law firm and more than $15 million for its malpractice insurer.See also this entry from June 20, 2008, and this one from July 8th.
Insurance Commissioner Jim Atterholt closed the books on the failed Indiana Construction Industry Trust this week, returning nearly $18 million to 8,200 members of the trust. And that led to a tidy profit for attorneys Irwin Levin and Richard Shevitz, who pursued the settlements for Atterholt.
For the first time, a partner of Fillenwarth Dennerline Groth & Towe discussed the hellish three years since a jury found it liable for the trust's claims. There were a lot of bitter tears, uncertainty and raw emotions, since that 2006 verdict, partner William Groth said.
"Remarkably, everybody stuck together through what were some tough times," Groth said.
Frederick Dennerline III, who represented the trust, had wanted to settle the case for the $1 million policy limit on its malpractice insurance, but ProNational Insurance Co. refused. A convoluted legal battle ensued.
In June, Fillenwarth Dennerline settled with Atterholt for $50,000 and the right to collect whatever it could from ProNational. Settlement talks reached fruition early this week, after the insurer agreed to pay $16.5 million.
Fillenwarth Dennerline's clients were loyal throughout the ordeal, Groth said. Now that it's over, he added, "Business is as good now as it has ever been."
Guess it's true that what doesn't kill you makes you stronger.
Ind. Courts - More on: Special judge appointed in early voting case
Updating this entry from earlier today, here is the partially hand-printed, file-stamped order appointing Diana K. Schneider as special judge in the consolidated cases in Lake County.
Ind. Decisions - Court grants two transfers this week
The formal transfer list will not be out until next Monday, but the ILB has just received notice that two cases were granted transfer today. They are:
The Adoption of unborn child B.W.; Wilfrido Garcia v. Davie Heine Bos and Janea Herbst Bos - here is the ILB summary of the July 18 COA decision - 2nd case.
Byron Breaston v. State - here is the ILB summary of the Aug. 27th COA opinion - 4th case.
Ind. Courts - More on appellate judges up for retention
I have created a new ILB category, Judicial Retention. Clicking on it will lead to all the ILB entries about the 2008 judicial retention ballot. I have also placed a temporary link in the upper right hand corner of this blog -- "Check here for entries on the Appellate Judges on the Nov. Ballot" -- it will remain there until after the November election.
Ind. Courts - More re judicial evaluations
A reader has pointed me to a May 5, 2005 article by Leonard Post of The National Law Journal, headed "ABA Offers New Way to Judge the Judges: Latest guidelines are aimed at education, defusing ideological litmus tests" Some quotes:
The American Bar Association has revised its guidelines for evaluating state court judges in a move to defuse ideological litmus tests that fuel attacks on judges and could potentially threaten judicial independence.Here is a link to the guidelines. Here is the web page of the ABA Standing Committee on judicial Independence, which has a number of interesting links.
The ABA's old guidelines were meant mainly for self-improvement. They are now also aimed at educating those who re-elect or reappoint judges. The guidelines ask that judges be judged by objective criteria, including a judge's willingness to make impartial, difficult and unpopular decisions based on law and fact.
All that's left is for states to adopt the new guidelines. * * *
"We're hoping that states will look at the suggested guidelines and use them in developing their own evaluation systems," said Cesario, assistant director of the Center for Advocacy and Dispute Resolution and an adjunct professor at Chicago's John Marshall Law School.
The authority to develop and implement judicial evaluation systems should reside in each state's highest court, say the guidelines. The ABA guidelines have been referred to the Conference of Chief Justices' Professionalism and Competence of the Bar Committee, which will meet in July at the chiefs' annual meeting in Charleston, S.C., said Mary McQueen, president of the National Center for State Courts.
Six states that have judicial retention elections publicize their judicial evaluations: Alaska, Arizona, Colorado, New Mexico, Tennessee and Utah. About a dozen other states use evaluations solely for self-improvement purposes, according to the Drake University-based American Judicature Society.
But many question whether evaluations can be used in contested elections.
"No one's figured out a way to use them in competitive elections," said Malia Reddick, a political science professor at the University of Missouri-Columbia and the ABA committee reporter. "Because it puts candidates who aren't judges at a competitive advantage or disadvantage."
Ind. Decisions - Court of Appeals issues 12 today (and 4 NFP)
For publication opinions today (4):
In John D. and Stacy R. Hayes v. Robert Lee Chapman, Jr. , a 16-page, 2-1 opinion, Chief Judge Baker writes:
Appellants-defendants John D. Hayes and Stacy R. Hayes appeal the trial court’s order denying their counterclaim against appellee-plaintiff Robert Lee Chapman, Jr., and foreclosing Chapman’s mechanic’s lien on construction he performed on the Hayeses’ residence. The Hayeses argue that the trial court erroneously concluded that Chapman did not violate the Indiana Home Improvement Contract Act1 (HICA), that the mechanic’s lien was invalid because it contained mathematical errors when filed, and that the trial court erroneously awarded prejudgment interest to the Hayeses on the lien. Finding no error, we affirm. * * *In Jesus Brown v. State of Indiana , a 9-page opinion, Judge Brown writes:
CRONE, J., concurs.
KIRSCH, J., concur and dissent with opinion. [which begins] I concur with the decision of my colleagues to affirm the decision of the trial court on the plaintiff’s complaint, but I respectfully dissent from their decision affirming the trial court’s order denying relief on the defendants’ counterclaim.
Jesus Brown appeals his conviction for escape as a class D felony. Brown raises one issue, which we restate as whether the trial court committed fundamental error in failing to instruct the jury about the offense of unauthorized absence from home detention. We affirm.In Kory S. Foddrill v. Constance Crane , a 15-page opinion, Judge Bradford writes:
Appellant/Defendant Kory Foddrill appeals from a jury award of $194,100.00 in favor of Appellee/Plaintiff Constance Crane following trial on her negligence claim. Foddrill‟s arguments, partially restated, are that Crane produced insufficient evidence to sustain a negligence finding, the trial court abused its discretion in instructing the jury, and the jury award was excessive and not supported by the evidence. We affirm.In Citizens Action Coalition of Indiana, Inc., et al. v. PSI Energy, Inc., et al. , a 25-page opinion, Judge Brown writes:
Citizens Action Coalition of Indiana, Inc., Save the Valley, Inc., Valley Watch, Inc., and Sierra Club, Inc., (collectively, “Appellants”) appeal the Indiana Utility Regulatory Commission’s grant of a petition filed by PSI Energy, Inc., d/b/a Duke Energy Indiana, Inc. (“Duke”) for the construction of a powerplant. Appellants raise four issues, which we revise and restate as:NFP civil opinions today (2):
I. Whether the Commission erred by denying Appellants’ request to reopen the record;
II. Whether the applicable statutes allow Duke to recover costs while the facility is under construction;
III. Whether the Commission adequately considered all known costs and estimates of future costs of the plant; and
IV. Whether Ind. Code §§ 8-1-8.5, Ind. Code §§ 8-1-8.7, and Ind. Code §§ 8-1-8.8 violate the Commerce Clause because the statutes express a preference for Indiana coal.
In Peter A. Wilson and Natalie M. Wilson v. Paul and Sara Danger (NFP), an 8-page opinion, Judge Brown writes:
Peter and Natalie Wilson appeal the small claims court’s judgment in favor of Paul and Sara Danger. The Wilsons raise one issue, which we revise and restate as whether the conclusion of the small claims court that the parties’ Proration Agreement was unenforceable is clearly erroneous. We affirm. * * *
Here, the parties agreed to a pro-rata division of the real property tax liability for 2006. At closing, the parties then signed a Proration Agreement, the significance of which was not explained to the Dangers, stating that the Dangers would be solely responsible for any real estate taxes billed after the date of the closing. The Wilsons argue that the consideration for this agreement “is the exchange of promises to allocate liability for taxes based on the date the taxes were billed.” However, in contrast to DiMizio, under the modified agreement, the Wilsons would benefit by reducing their tax liability but would incur no detriment. The Dangers, on the other hand, while facing a greater tax liability, would receive no benefit. Accordingly, we conclude that there was no bargained-for-exchange in support of the modification, and, thus, we cannot say that the small claims court’s finding that the tax proration agreement was unenforceable for lack of consideration was clearly erroneous.
[ILB Note] Although the opinion indicates "BAKER, C. J. concurs in result with separate opinion," the attached concurring opinion of CJ Baker is to another case.]
John M. Nwannunu v. Joshua Wayne Gidley and Mary Gidley (NFP) - "Based upon this testimony, we conclude that J.G. presented evidence from which a jury could have reasonably inferred that Dr. Nwannunu’s actions proximately caused J.G.’s injuries." Affirmed.
NFP criminal opinions today (10):
Ind. Courts - Special judge appointed in early voting case
Updating this ILB entry from this morning, the Supreme Court, which is on the road today, hearing an oral argument in Bloomington (details here), has just issued an order appointing a special judge in the Lake County early voting case.
Named is Superior Court Judge Diane Kavadias-Schneider, of Civil Division 1, located in Hammond.
A link to the Order will follow.
[More] Here is the brief Gary Post-Tribune story.
Ind. Courts - "St. Joseph County Bar Association has released results from its 2008 Judicial Survey"
Jeff Parrott of the South Bend Tribune reports today in a story that begins:
The St. Joseph County Bar Association has released results from its 2008 Judicial Survey, its first attempt in 18 years to rate the performance of the county's Superior Court judges.
The bar's roughly 500 members filled out e-mailed surveys containing 20 criteria, broken down by "legal ability," "integrity and impartiality," "professionalism and temperament" and "administrative capability."
The judges received only their own scores Tuesday night. The bar Wednesday posted all of the results on its Web site.
The lawyer group plans to conduct the survey annually from now on and wanted to publicize these results in time for voters to consider them before the Nov. 4 election, when Judges John M. Marnocha, Michael P. Scopelitis, David C. Chapleau and Jane Woodward Miller are up for a "yes" or "no" retention vote.
The judges were rated on a scale from 1 to 5, with 1 being " unacceptable," 2 being "below average," 3 being "average/acceptable," 4 being "above average" and 5 being "exceptional."
No judge averaged a "1" or "5" score.
Courts - Questions posted in another jurisidction to judges up for retention
I happened this morning across some quotes from a not-longer-available story in the The Legal Intelligencer, "the oldest law journal in the United States." In May of 2007 The Legal Intelligencer sent a 32-question questionnaire to all seven state Supreme Court candidates in Pennsylvania, where all judges initially are elected on a partisan ballot, and thereafter are up for retention every 10 years on a non-partisan retention ballot.
This ILB entry from May 9th, 2007, documented the questions sent to the candidates. I'm setting them out again below because many of them have relevance in the here and now:
Questions about you and the role of a judge:
1. What makes a good judge?
2. What is the biggest trap or mistake a judge can make?
3. How would you describe your judicial philosophy?
4. Which opinion do you think represents your best work?
5. If you could, which opinion would you take back or revise? Why?
6. What in your background has prepared you best for being a judge?
7. How would your personal views and experiences influence you as a justice?
8. What separates you from the other candidates and why would you be a better addition to the Supreme Court?
9. If elected, what would be your biggest priority on the court?
Questions about the law and legal practice:
10. Is there any area of the law that you think needs a closer look or guidance from the Supreme Court?
11. When deciding a case, how do you frame the issue and conduct your analysis to reach a conclusion?
12. Do you think there is a dilemma in how Rule 1925(b) is applied? And if so, what needs to be done to fix it?
13. Is the court threatening to make the practice of law too burdensome for solo and small-firm practitioners by increasing requirements for CLE, maintaining certain types of bank accounts, moving toward effective requirements for malpractice insurance, etc.?
14. Conversely, are clients adequately protected by the aforementioned requirements?
15. What is the greatest threat to the practice of law or problem the profession faces?
16. How important is consensus - particularly unanimous consensus - in high court opinions and are there limits when a justice should only concur, or should they do it any time they feel like it?
17. How important is stare decisis and when should a court depart from it?
Openness of the courts:
18. Does the court need to improve efforts to make the courts and what they do more open and accessible to the press and public?
19. Do you favor cameras in the courtroom, particularly for oral arguments before the Supreme Court?
20. Once litigants have chosen to enter the arena of the public courts, should confidential settlements be discouraged? Or should they be encouraged as a way for the system to reach swifter resolutions?
21. Under what circumstances should judges seal the records in a case? In general, should the practice of sealing records be encouraged for discouraged?
22. Should the court make more of its dealings - including meetings with other elected officials and reasons for recusal - open to the public?
Politics and public perceptions:
23. What should be the nature of the relationship between the court and the members of the other branches of government and how should the justices, particularly the chief justice, interact with them?
24. The pay raise decision: who do you think got it right, Justice Castille or Justice Saylor? Explain your answer.
25. Since judges are elected and you are running as a member of a political party, what does your party membership say about you and how big a role does it play in your outlook on legal matters?
26. Should party membership/loyalty play any role in getting a party's nomination?
27. Would you recuse yourself if a campaign contributor were involved in litigation as a party or attorney before you?
28. In general, under what circumstances would you recuse yourself from a case?
29. To whom or what are judges accountable?
30. What does "independence of the judiciary" mean to you?
31. How would you define a "threat to judicial independence?" And where are these threats coming from?
32. What is the biggest misunderstanding between judges and the general public?
Courts - More on: Astonishing stories of collusion between Pennsylvania's legislature and its Supreme Court
The ILB had lost track of this federal lawsuit involving Common Cause and the Pennsylvania Supreme Court, first mentioned in a Feb. 7, 2006 ILB entry. There have been other suits before Pennsylvania state courts re the now notorious "midnight pay raise" in 2005 - see for example this ILB entry from Dec. 28, 2005.
Today Shannon P. Duffy of The Legal Intelligencer has an interesting story including some of the procedural aspects of the federal lawsuit. For instance:
Litigation over the controversial July 2005 pay raise for Pennsylvania judges and lawmakers returns to court next week as a special three-judge federal appeals panel hears oral arguments on the issue of whether the process used to pass the law violated the constitutional rights of citizens.Another quote from the fascinating story:
The case, Common Cause of Pennsylvania v. Commonwealth of Pennsylvania, has already been argued before the 3rd U.S. Circuit Court of Appeals in January. But the three-judge panel later announced that the entire 3rd Circuit was recused from hearing the case because Gov. Edward G. Rendell was named as an individual defendant and his wife, Marjorie Rendell, is a 3rd Circuit judge.
As a result, the case will be reargued Oct. 22 before three visiting judges -- Joel M. Flaum of the 7th Circuit; David M. Ebel of the 10th Circuit; and Pierre N. Leval of the 2nd Circuit.
The suit alleges that the leadership of Pennsylvania's General Assembly, together with Gov. Rendell and the former Chief Justice of Pennsylvania, Ralph J. Cappy, conspired to violate the plaintiffs' constitutional rights by passing the pay raise legislation in a manner that foreclosed public comment, full participation of all elected representatives and honest judicial review.
At the heart of the suit is an allegation that Cappy conspired with legislative leaders to pass the pay raise in the wee hours of the morning in order to avoid public scrutiny, and that Cappy secured the cooperation of the Legislature by promising to rule in its favor in two pending appeals.
U.S. District Judge Yvette Kane of the Middle District of Pennsylvania dismissed the suit in June 2006, ruling that none of the plaintiffs had standing to bring such claims and that, even if they did, the federal courts would not entertain them.
"Federal courts will not interfere with a state's distribution of power among its various branches of government," Kane wrote.
"Tempting though it may be, the court has no authority to dictate to the Pennsylvania General Assembly how that body must conduct itself when considering and enacting future state legislation, even to enter orders that would restrain Pennsylvania's elected officials from hypothetically engaging in future conduct that might violate the United States Constitution.
" Kane found that "longstanding constitutional principles absolutely forbid this court from dictating to Pennsylvania's current and future elected officials how to distribute power and responsibility for proposing or developing legislation going forward, much less to enjoin such officials from even discussing potential legislation or other matters of political business with one another in the course of fulfilling their official responsibilities."
On appeal, Rossi argues that Kane erred by failing to recognize the unique nature of the claim -- a conspiracy among all three branches of Pennsylvania's government -- and the futility of attempting to seek redress in the Pennsylvania courts.
Rossi argues in his brief that he will be able to prove the existence of the conspiracy if he is allowed discovery.
In its most explosive allegation, the suit charges that, in secret with legislative leaders, Cappy and other unnamed justices threatened that the high court would decide two pending cases against the legislature unless a bill was passed providing long-demanded funding for the state's unified judicial system.
Ind. Courts - Latest on Lake early voting case
We learned last evening that it would be up to the Supreme Court to name a new judge in the Lake County early votting case, after the two sides failed to agree on a judge before yesterday's 3:00 PM deadline.
Today John Byrne reports in the Gary Post-Tribune, in a long story that begins:
EAST CHICAGO -- A fifth court now will get a crack at settling Lake County's early voting fracas.Bill Dolan has this report this mornng in the NWI Times.
The Indiana Supreme Court announced Wednesday it will appoint a special judge to consider the partisan fight over in-person absentee balloting in Gary, Hammond and East Chicago, where 330 more people voted Wednesday.
The move came after litigants failed to agree Wednesday on a judge to replace Lake Superior Court Judge Calvin Hawkins in a hearing on a Republican motion to stop early voting in the Democratic bastions.
"The ping-pong match continues," said Gary Mayor Rudy Clay, who supports the early voting sites as a way to help people who would otherwise have a hard time getting to the polls.
The court's decision to appoint a special judge -- who could be named as soon as today -- comes after three weeks of jockeying between Republicans and Democrats over the satellite early-voting sites.
The issue grows in significance each day as presidential candidates Barack Obama and John McCain compete in a key battleground state. As the race tightens, whoever wins Northwest Indiana could very well take the state, observers say.
So, both parties have pulled out the stops over the early voting sites.
Ind. Decisions - Question of whether defendant should have been granted new trial argued
The case of State of Indiana v. Shannon Hollars, argued yesterday before the Supreme Court (see ILB entry here), is the subject of a story today by Sophia Voravong of the Lafayette Journal Courier, who reports:
Shannon L. Hollars, 46, is serving a 22-year prison sentence after convictions last year in Clinton Superior Court for attempted murder and dealing marijuana. * * *
A key issue raised is whether the state erred in not providing Mohler with a diagram, completed by emergency room officials, that detailed where Hollars had been shot that morning.
"We conceded that we could have gotten it. But you have to look at the fact that the state had -- the state had it and we didn't," Mohler said in response to questioning from the justices.
"It doesn't say you only have to give what you think we may not have. That's not the way discovery is set to work."
Hollars and his wife were in bed when, about 1 a.m. on Dec. 16, 2004, the Clinton County emergency response team broke into his Frankfort home to serve a search warrant.
A jury found Hollars guilty of attempted murder for firing a shot at Byron Padgett, the Kirklin town marshal. Padgett was not injured.
Mohler contends the diagram would show that Hollars was shot in the back of his bicep -- suggesting that Hollars had his back to police when he was shot.
But Deputy Attorney General Cynthia Ploughe, who presented the case Wednesday for the state, argued that Hollars' arm was extended as though he was pointing a gun. She was accompanied during the hearing by Clinton County Prosecutor Tony Sommer.
Shortly after Hollars' four-day jury trial in March 2007, Mohler had filed a motion to correct errors based on the fact that he did not receive a copy of the medical record.
It was part of the reason why Judge Kathy Smith vacated Hollars' attempted murder conviction and granted him a new trial. In her decision, Smith also noted the late timing of when the warrant was served and that she had declined during trial to provide a defendant-proposed instruction to the jury on "specific intent."
The Indiana Court of Appeals reversed her ruling this past June.
"There was no error in discovery. ... The instruction given to the jury was perfect," Ploughe told the justices Wednesday. "The appeals court, in turn, found that these were not errors.
"They were completely consistent with Indiana law and statute."
Ind. Courts - "Reactions vary to trustee's court plan"
From the Indianapolis Star today, a long story by Cathy Kightlinger, who writes:
Lawrence Township Trustee Mike Hobbs' plan to privatize some operations of the township's small claims court -- including the clerks -- produced mixed reactions this week from at least two local officials.
He says his office has studied cost-cutting measures, and he thinks some court operations -- such as clerks, paperwork and other services -- could be privatized by selling them through an auction to a high bidder.
But the court's judge doesn't think Hobbs can legally do that, and Lawrence's mayor thinks the plan is an effort to divert attention from Hobbs' legal troubles.
The trustee's annual budget is about $14 million, and court costs account for about $362,000 of that, Hobbs said.
"If we can get a high enough bidder, it would be able to offset some of the costs of poor relief," said Hobbs, whose budget also includes township fire services and cemetery maintenance.
The small claims judge and constable -- both elected positions -- would remain, he said. * * *
Judge James A. Joven, who presides over Marion County Small Claims Court in Lawrence, doesn't think Hobbs has the authority to make those changes because Indiana law governs the court's operations.
The law separates the judicial and executive branches of government, Joven said, and Hobbs' office is part of the executive.
Mayor Paul Ricketts called Hobbs' announcement Tuesday stupid and said he thought it was an effort to divert attention from the trustee's legal troubles.
Ind. Courts - "Voters will settle contested judgeship races in Clark, Floyd and Harrison counties Nov. 4th"
Harold J. Adams of the Louisville Courier Journal reports today:
Voters will settle contested judgeship races in Clark, Floyd and Harrison counties Nov. 4, including two new courts in Floyd that will open in January.
The circuit court race in Clark County pits Republican Abraham Navarro, appointed by Gov. Mitch Daniels in June after Judge Daniel Donahue retired, against Democrat Dan Moore, a veteran attorney.
The campaign got off to contentious start with charges and countercharges of procedural errors made by each party in the selection of the candidates and filing of papers with the state.
After a month of wrangling, the Indiana Election Commission ruled in August that, despite mistakes that could have disqualified both candidates, both would be allowed on the ballot.
Navarro had stirred controversy in his first week on the job when he fired two longtime Donahue staff members and attempted to replace them with Clark County Republican Chairman David Buskill and Jeremy Snelling, son of Republican Monty Snelling, a Clark County Council member who voted to approve the staff moves.
The council later reversed itself after the county's three other judges and Donahue, all Democrats, protested, in part because of higher pay proposed for the new hires compared to staff salaries in the other courts. Navarro subsequently withdrew the offer to Buskill and hired the younger Snelling at a lower salary.
"We've moved on" from that stumble, said Navarro, 37. "We now work in a spirit of cooperation here (with the other judges), and it's helped because I can go to the other judges … and ask for guidance." * * *
Moore, 56, also has made efficiency a key point of his campaign, saying it would be increased with ideas he's proposing for better coordination among the four courts.
"When a guy's got charges in three different courts, those charges ought to be transferred to one" court, he said.
Moore said his more than 20 years of legal experience give him an advantage over Navarro, who was admitted to the bar less than six years ago.
Experience is also a key theme in the race for the new Floyd Superior Court No. 3 between 39-year-old Democrat Maria Granger and 53-year-old Republican Richard "Rick" Fox.
Granger, a real-estate attorney and former deputy prosecutor in Clark and Floyd counties, points to her role as an appointed hearing officer handling cases of misconduct by fellow lawyers for the Indiana Supreme Court and making recommendations on disciplinary actions.
She is also a referee for family-law cases in Scott County.
"I feel like that I'm coming into this race with the real judge experience … and that does allow me to give voters confidence that I'm going to be the better choice," she said.
Fox said his 21 years of experience in family, personal injury, worker compensation, criminal and government law make him the better choice. Fox is the attorney for the Floyd County commissioners, the town of Greenville, and several other government boards and districts.
If elected, he said, "I intend to hire an attorney on staff who will be able to draft the opinions based upon my findings so that we can get decisions out to parties immediately" and maximize his courtroom time. * * *
Floyd Superior Court No. 2 is being formed by converting the present County Court that handles only low-level civil cases, criminal misdemeanors and Class D felonies to take on bigger cases.
County Court Judge Glenn Hancock, a Democrat, is facing Republican Chris Lane, a deputy Floyd County prosecutor.
In Harrison County, incumbent Superior Court Judge Roger Davis, a Democrat, is being challenged by Republican John Evans, an attorney with experience in criminal defense and government law.