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Tuesday, February 21, 2012

Ind. Courts - Chief Justice Shepard honored in House

ILB sometime-stringer Ed Feigenabaum sends this note:

Are you watching the CJ tribute on the floor? Rep. Truitt just revealed that the CJ was delivered on December 24, 1946 by Truitt's grandfather, a family practice doc in Lafayette -- the same doc who delivered your man, Brian Lamb!*

Truitt gave both a copy of his grandfather's record of the birth. Speaker Bosma made a good joke about ignoring HIPAA violations!

*ILB disclosure, C-SPAN-founder Brian Lamb is my personal hero, despite his being a Purdue grad.

Posted by Marcia Oddi on Tuesday, February 21, 2012
Posted to Indiana Courts

Vacancy on Supreme Court - More on: Where are the Women Justices?

Thanks to David Pippen, former general counsel to Governor Daniels, who has accepted the ILB's invitation to address the issues raised in this morning's ILB entry:

Diversity is an issue which is and should be considered. As you noted yesterday, gender diversity was openly discussed with one applicant in the first round of this vacancy. The issue does not, however, trump all the other important considerations which go into choosing the “most qualified” jurists – however that is determined by each individual.

The JNC and Governor Daniels have encouraged as many qualified persons to apply for the Court as could be recruited. We need many applicants to have a diversity of qualities brought to the applicant pool as no single issue or quality has gotten a candidate through interviews. A composite of qualities for each applicant must be reviewed to determine/guess who would best serve the State.

Also, it really isn’t fair to reduce the applicants to simple numbers of male/female as those I have seen represent the profession well and are accomplished judges and lawyers regardless of whether they are male or female. When choosing among those accomplished applicants, it requires consideration of much more than simply gender to preserve the quality of Indiana’s judiciary. That said, the governor has appointed two women and two men (Judges Brown and Wentworth and Judge Bradford and Justice David) as the “most qualified” applicants from the panels presented to him by the JNC.

Posted by Marcia Oddi on Tuesday, February 21, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)

For publication opinions today (4):

In In Re: Indiana Newspapers, Inc. d/b/a The Indianapolis Star, Jeffrey M. Miller & Cynthia S. Miller v. Junior Achievement of Central Indiana, Inc.; Jennifer Burk; et al. , a 33-page opinion, Judge Vaidik writes:

In keeping up with the proliferation of the internet and social media, news organizations allow readers to both read and comment on their stories online. While this practice facilitates discourse between readers and interaction with their online news products, it also opens the door to potentially objectionable material, as readers are allowed to post comments anonymously, hiding behind a pseudonym. This case addresses whether a non-party news organization can be compelled to disclose to a plaintiff who has filed a defamation lawsuit the identity of one such anonymous commenter. In order to analyze this issue of first impression in our state, we consider Indiana’s Shield Law, which provides an absolute privilege to the news media not to disclose the source of any information obtained in the course of employment, the First Amendment, which has a celebrated history of vigorously protecting anonymous speech, and the Indiana Constitution, which more jealously protects freedom of speech guarantees than the United States Constitution.

Under our Shield Law, we hold that an anonymous person who comments on an already-published online story and whose comment was not used by the news organization in carrying out its newsgathering and reporting function cannot be considered “the source of any information procured or obtained in the course of the person’s employment or representation of a newspaper” according to Indiana Code section 34-46-4-2. Under the United States Constitution, to strike a balance between protecting anonymous speech and preventing defamatory speech, we adopt a modified version of the Dendrite test, requiring the plaintiff to produce prima facie evidence of every element of his defamation claim that does not depend on the commenter’s identity before the news organization is compelled to disclose that identity. With this test being called the most speech-protective standard that has been articulated and neither party advocating a different test, we adopt the modified version of the Dendrite test under the Indiana Constitution as well.

In Paul K. Ogden v. Stephen Robertson, et al., a 19-page opinion, a state employment case, Judge Riley concludes:
Based on the foregoing, we conclude that (1) Ogden’s memorandum was not protected speech under the Indiana Constitution; (2) Ogden was not entitled to due process protections under State personnel policy and EO 05-14; and (3) the trial court did not have subject matter jurisdiction over Ogden’s claim that he was wrongfully terminated from his employment. Affirmed.
In Herbert Yanez v. State of Indiana, a 9-page opinion, Sr. Judge Barteau writes:
Yanez contends that his rights under both the Fourth Amendment to the United States Constitution and article I, section 11 of the Indiana Constitution were violated when Special Agent Rodriguez stopped him and questioned him at the flea market. Essentially, Yanez asserts that the trial court erred by admitting evidence of the marijuana at trial because it was obtained as a result of the unconstitutional investigatory stop and therefore should have been excluded. Because it is dispositive in this case, we need only address the issue on state constitutional grounds. * * *

Here, there was absolutely no evidence of a concern or suspicion that a violation of law had occurred. * * *

The State did not carry its burden under Article I, Section 11 of the Indiana Constitution to establish the reasonableness of its actions. We therefore reverse Yanez’s conviction and remand for further proceedings consistent with this opinion. Reversed and remanded.

RILEY, J., concurs.
BARNES, J., concurring in result with separate opinion.

In State of Indiana v. Christopher Vickers , a 12-page opinion, Judge Riley writes:
Appellant-Respondent, State of Indiana (State), appeals the post-conviction court’s grant of post-conviction relief to Appellee-Petitioner, Christopher Vickers (Vickers). We reverse. * * *

The State argues that, contrary to the trial court’s decision, the record demonstrates that Vickers knowingly and voluntarily waived his right to counsel prior to or at his guilty plea hearing. * * *

Absent a clear requirement that all waivers of counsel be supported by an audio recording, we are unable to conclude that Vickers met his burden of proof to establish that he did not validly waived his right to counsel or that he asserted his right to self-representation. Accordingly, the State has shown that the post-conviction court committed clear error by granting Vickers post-conviction relief. * * *

Based on the foregoing, we find that the trial court erred in granting post-conviction relief to Vickers. We reverse the judgment of the post-conviction court and direct that the conviction be reinstated.

NFP civil opinions today (3):

Term. of Parent-Child Rel. of K.C. and K.M., Jr.; J.C. (Mother), B.D.T. (Father of K.C.) and K.M., Sr. (Father of K.M., Jr.) v. Indiana Dept. of Child Services (NFP)

Dixie Diana Schulz and Joseph Schulz v. The Kroger Co., Kroger Limited Partnership I, Seven-Up American Bottling Co., The American Bottling Co., Dr. Pepper/Seven-Up Inc., et al. (NFP)

Fayazz Chowdhry v. Estate of Mustansar L. Chaudhry (NFP)

NFP criminal opinions today (6):

Charles Duncan v. State of Indiana (NFP)

John Q. Lloyd v. State of Indiana (NFP)

Michael Lee Larry v. State of Indiana (NFP)

Tony V. Hawkins v. State of Indiana (NFP)

Willie Joseph v. State of Indiana (NFP)

Jay Wallace v. State of Indiana (NFP)

Trina Stover Thorstenson v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, February 21, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Elkhart judge reverses himself on fine against bicyclist"

This story by South Bend Tribune columnist Nancy J. Sulok was first published in 2002, and republished today. It begins:

ELKHART -- Elkhart City Judge Charles Grodnik gasped in dismay.

I had just pointed out to him that he had made a mistake in a ruling last month involving a man who had passed a school bus -- on a bicycle.

The good judge had started out by citing the Indiana law that prohibits a vehicle from passing a stopped school bus. But I countered by citing another part of the law that specifically excludes "devices moved by human power'' from the definition of "vehicle.'

"Well, gracious, goodness me,'' the judge exclaimed. "I'm going to make a new finding on this case."

That should be good news for Elkhart resident Steven Carey, 52, the man who got the ticket and paid a $100 fine last month for riding his bike past the stopped bus.

Grodnik reversed himself Monday after I pointed out that it's not illegal to do so.

Today, ten years later, the headline to the new story is "Police ID bicyclist who was killed Sunday."

Posted by Marcia Oddi on Tuesday, February 21, 2012
Posted to Indiana Courts

Vacancy on Supreme Court - Where are the Women Justices?

Maureen Hayden reported yesterday for CNHI in a story headed "Daniels may face gender issue again with Supreme Court pick: Three of seven semifinalists are women, but governor picked a man last time." Some quotes:

INDIANAPOLIS — For the second time in less than a year, Gov. Mitch Daniels may have the chance to consider appointing a woman to the state’s all-male top court.

But to do so, the three women still in the running for the seat must get through another round of interviews with a judicial nominating committee charged with vetting candidates for the Indiana Supreme Court.

On Thursday, the seven-member commission begins its second round of interviews with the seven semifinalists to fill the seat to be vacated in March by retiring Chief Justice Randall Shepard.

Gender isn’t on the list of criteria that state statute requires the nominating commission to consider when assessing those candidates.

But it may still be factor. Of the 106 justices who’ve sat on the Indiana Supreme Court, only one has been a woman.

“There’s some catching up to do,” said Joel Schumm, a longtime court observer and a professor at Indiana University’s Robert H. McKinney School of Law in Indianapolis.

How much pressure either the commission or the governor feels to “catch up” that history remains to be seen. The commission must pick three names to send to the governor, who filled the last court opening with a man. Daniels picked former Boone County judge Steven David from a field of three that included one woman.

At the time, Daniels said gender could be used as “tiebreaker” if two judicial candidates were equal.

Brian Howey, a political analyst and publisher of Howey Politics Indiana, said he doubts Daniels will see things differently this time.

“I don’t think he feels a need to make a decision based on gender,” Howey said.

Schumm, who sat through the first round of applicant interviews in what’s becoming an increasingly public vetting process, said the seven semifinalists had impressive legal credentials.

“It’s quite possible the three names could all be men,” Schumm said.

Shepard chairs the commission that will be picking the person to fill his seat. He’s said in the past that women, including some of his own family members, have pushed him to help change the gender make-up of the court. But he’s also said the commission’s first duty is to identify the most highly qualified candidates for the job.

ILB observations:

Two years ago I wrote that Justice Boehm's retirement had created the first opportunity in (what was then) nearly eleven years for a woman to become a member of the Court. Indiana was then one of only two states with no women on their Supreme Courts.

There was anticipation in the air in the summer of 2010. Of the applications submitted, a majority, 19 of 34, were women, each of them highly qualified.

But when the list was reduced to 9, 5 of the 9 were male. And only one woman made the final cut, the three names submitted to the Governor.

The Governor ultimately named Steven H. David to the Court, saying: "I might have used (gender diversity) as a tie-breaker. But this was not a tie ... My task was to find the best person on the merits, and I’m sure I did. Now the state is going to benefit from that for years to come."

So this time I would be very surprised to see Gov. Daniels appoint a woman to the Supreme Court. I suspect the Governor's comment in 2010 dissuaded many women from applying for this vacancy, and few this year are even discussing the importance of appointing a woman to the Court. Publicly, the Governor has done nothing since 2010 to express any discontent that there are no women on the Court or to signal his interest in remedying that.

Rather, I have heard comments like this, from a Republican attorney, who says he doesn't think that the Governor will care at all about appointing a woman if she is not "the best" of the three individuals the nominating commission sends to him, just like last time. He says the Governor is blind, in a good way, to "quota"-type stuff, and more concerned with getting the best people in appropriate posts.

That might sound good at first reading. However, I have been hearing that same justification used all my life -- "sure a woman will be appointed, if one is 'qualified.'" But look again at the phrases I've highlighted: "identify the most highly qualified candidates"; "find the best person on the merits"; "getting the best people." What do they mean, really?

What are the criteria? IC 33-27-3-2 provides in part:

Sec. 2. (a) The judicial nominating commission shall submit to the governor, from those names the commission considers for a vacancy, the names of only the three (3) most highly qualified candidates. In determining which candidates are most highly qualified each commission member shall evaluate each candidate, in writing, on the following considerations:
(1) Legal education, including law schools attended and education after law school, and any academic honors and awards achieved.

(2) Legal writings, including legislative draftings, legal briefs, and contributions to legal journals and publications.

(3) Reputation in the practice of law, as evaluated by attorneys and judges with whom the candidate has had professional contact, and the type of legal practice, including experience and reputation as a trial lawyer or trial judge.

(4) Physical condition, including general health, stamina, vigor, and age.

(5) Financial interests, including any interest that might conflict with the performance of judicial responsibilities.

(6) Activities in public service, including writings and speeches concerning public affairs and contemporary problems, and efforts and achievements in improving the administration of justice.

(7) Any other pertinent information that the commission feels is important in selecting the most highly qualified individuals for judicial office. * * *

(f) The commission shall submit with the list of three (3) nominees to the governor its written evaluation of each nominee, based on the considerations set forth in subsection (a). The list of names submitted to the governor and the written evaluation of each nominee shall be publicly disclosed by the commission.
It looks to me like gender is a consideration to be taken into account for finding "the most highly qualified" under the current evaluation criteria. When half of the population and a third of the practicing bar are women, gender should be “pertinent” to filling a vacancy on a five-member all-male Court. Political party affiliation, which is not listed in the statute, has certainly taken on a prominent role in merit appointments.

And if it isn't clear from the current law that gender should be taken into account in identifying the best candidates to fill a particular vacancy on the Court, perhaps the law should be amended. Consider the merit selection panel in Lake County, for example, where the General Assembly has specifically required, at IC 33-33-45-35(5):

(5) In determining which eligible candidates are recommended to the governor, the commission shall consider that racial and gender diversity enhances the quality of the judiciary.
I’ve not heard anyone asking for a “quota” that women fill a certain number of seats on the Supreme Court. But the grade school girls who visit the Statehouse and see the pictures on the Courtroom wall, and the female law students who watch an oral argument in this, the 21st century, still can only wonder, "Where are the women justices?"

Posted by Marcia Oddi on Tuesday, February 21, 2012
Posted to Vacancy on Supreme Court 2012

Ind. Law - "Barnes" bill may face changes in House (or may be dead)

"Indiana bill on right to resist police faces overhaul" is the headline to a long story today by Tom Davies of the AP. Some quotes:

INDIANAPOLIS - A proposal aimed at assuring Indiana residents they sometimes can resist police officers entering their homes could see a key change sought by law enforcement groups, the House sponsor said today.

Prosecutor and police groups have objected to a list of limited situations of when officers can legally enter a private home, which was included in the bill the Senate approved 45-5 last month. * * *

Republican Rep. Jud McMillin of Brookville, who is sponsoring the bill, said he is working with law enforcement officials on a new version to be considered by a House committee on Wednesday.

Changes from what the Senate approved would specify that residents are protected by the state's self-defense law if they resist police officers who are acting illegally, McMillin said.

"We also want to make sure that it does not create the incentive for people to think that it's OK to go out and use force against law enforcement officers," he said.

The Senate version would allow residents to resist if the police officer wasn't identified or on official duty. Officers would be allowed to enter homes when they have court warrants, are chasing a criminal suspect, believe someone inside is in danger or have permission from the residents. * * *

Republican Sen. Michael Young of Indianapolis, who sponsored the bill in the Senate, said he worried the changes would leave too much potential gray area for both residents and police officers about what they could do.

ILB: The bill is SB 1. It is assigned, in the House, to Courts and Criminal Code Committee. That Committee currently is not scheduled for a meeting this week, the final week for committee meetings.

Posted by Marcia Oddi on Tuesday, February 21, 2012
Posted to Indiana Law

Ind. Courts - Justice Rucker's son runs for Ohio Supreme Court

From a story by Julie Carr Smyth in the Dayton Daily News:

COLUMBUS, Ohio — Two experienced judges from far-flung corners of the state are facing off in the Democratic primary for a chance at unseating Ohio Supreme Court Justice Robert Cupp this fall. * * *

Hamilton County Municipal Court Judge Fanon A. Rucker, the son of an Indiana Supreme Court justice, is making his first attempt at the seat. Then-Gov. Ted Strickland appointed him to the bench in 2007 and he was subsequently elected.

Posted by Marcia Oddi on Tuesday, February 21, 2012
Posted to Indiana Courts

Ind. Courts - "Convicted sex offender challenges lifetime Facebook ban: Federal lawsuit seeks access to social media for sex offenders"

Russ McQuaid has the Fox59 story here. Some quotes (there is also a video):

An Indianapolis sex offender has filed a federal lawsuit challenging his lifetime ban from social media sites like Facebook.

The offender, named anonymously as John Doe, was convicted of two counts of child exploitation in 2002. He was incarcerated through 2003 and released in 2004.

The suit claims John Doe is suffering socially and professionally because of the ban.

"He is a businessperson and as a businessperson he would like to participate in the business networks that allow you to get your name out and network with other people," said Ken Falk, American Civil Liberties Union. "Is that person going to be bared [ILB - sic. An alert reader noticed this] from communicating in the 21st Century? That seems to be a significant price to pay to violate the First Amendment." * * *

On Tuesday, a federal magistrate will hear a motion for John Doe to keep his identity secret while fighting the First Amendment access case. The suit also seeks class action status to represent more than 1,100 registered sex offenders in Marion County.

Here is a copy of the 9-page complaint, filed Jan. 17, 2012, which begins:
Indiana Code § 35-42-4-12(e) makes it a crime for celiain sex offenders required to register on Indiana's sex and violent offender registry to knowingly or intentionally use a social networking web site or an instant messaging or chat room program if persons under the age of 18 have access to, or can use, the site or program. To the extent that the sex offenders are not under any supervised release, but are free from parole, probation, or similar restrictions, the statute is unconstitutional as violating the First Amendment. John Doe, a sex offender was released from probation in 2004. However, he is required to register as a sex offender for life and is subject to the prohibition and penalties of Indiana Code § 3S-42-4-12(e) for his entire life. He seeks appropriate injunctive and declaratory relief on his own behalf and on behalf of a class of those similarly situated.

Posted by Marcia Oddi on Tuesday, February 21, 2012
Posted to Indiana Courts

Stage Collapse - "Sugarland Responds To State Fair Collapse Lawsuit"

WRTV6 reported in this story last evening that:

FISHERS, Ind. -- Sugarland is responding to claims of negligence in a lawsuit filed on behalf of 51 people connected to the Indiana State Fair collapse.
The story includes a link to the 40-page response. This ILB entry from Nov. 22, 2011 includes links to the original complaint.

Posted by Marcia Oddi on Tuesday, February 21, 2012
Posted to Stage Collapse