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Monday, April 02, 2012

Vacancy on Supreme Court 2012 - "The Court will go from one with more than 91 years of combined service and experience among its five justices in 2010 to much less than half of that this summer"

Thanks to Robert H. McKinney Law Professor Joel Schumm for the following analysis:

On February 24, 2008, the five justices of the Indiana Supreme Court (Chief Justice Shepard and Justices Dickson, Sullivan, Boehm, and Rucker) celebrated 3040 consecutive days together—an Indiana Supreme Court record. The image below is from a wrapper on Hershey’s candy bars, which were distributed at the time.

Those five justices would remain together for more than two and half additional years until Justice Boehm’s retirement in September of 2010. That period of nearly eleven years of unchanged membership was marked by collegiality, stability, and predictability.

With the announcement today of Justice Sullivan’s retirement, the Court will soon go from one with more than 91 years of combined service and experience among its five justices in 2010 to much less than half of that this summer. With Justice Sullivan’s departure the Court will have lost nearly sixty years of institutional knowledge and experience from the three recently retired justices:

  • Chief Justice Shepard: September 1985-March 2012
  • Justice Sullivan: November 1993-August 2012
  • Justice Boehm: August 1996-September 2010
(And another retirement will happen in the not-too-distant future: Acting Chief Justice Dickson, who has served for more than 26 years, must retire no later than 2016 when he turns 75.)

The timing of the three retirements (all well before mandatory retirement age of 75) suggests trust and confidence in Governor Daniels’ judgment in appointing replacements. His two appointees have been in their early 50s, which will likely leave a legacy for two decades or longer. It remains to be seen whether that legacy will include the appointment of a female justice; this will likely be his third and final opportunity.

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Vacancy on Supreme Court 2012

Vacancy on Supreme Court 2012 - J. Dickson pays tribute to J. Sullivan

BTW, I was about to retire the "Vacancy on the Supreme Court 2012" heading today, with the swearing in of Justice Massa ...

Here is a brief "Statement by Acting Chief Justice Brent E. Dickson on the Retirement of Justice Frank Sullivan, Jr."

Chris Sikich of the IndYStar is interviewing Sullivan. Some tweets, strung together: Sullivan says he had reached an age where he could do one more big thing. He approached the law school last September. Sullivan says he interviewed in January. Sullivan says chief justice Shepard retirement was a shock; but still decided to go forward w interview. And of course he was hired.

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Vacancy on Supreme Court 2012

2nd 2012 Vacancy on the Supreme Court - Justice Sullivan to resign

Just released from the Robert H. McKinney School of Law:

Indiana Supreme Court Justice Frank Sullivan, Jr. to Join Indiana University McKinney School of Law Faculty

Indianapolis -- Indiana Supreme Court Justice Frank Sullivan, Jr., has been appointed to the faculty of the Indiana University Robert H. McKinney School of Law, Dean Gary R. Roberts announced today. Sullivan’s appointment takes effect at the start of the Fall Semester.

“Having Frank Sullivan join our faculty is an exciting and extraordinary opportunity to bring in someone with a great mind and academic temperament to teach our students both theory and practice and to add to our scholarly culture,” said Dean Roberts. “At the same time Justice (soon to be Professor) Sullivan can connect the school more firmly with the practicing bar and bench through his extraordinary reputation and his extensive experience as a practicing lawyer, state budget director and Supreme Court justice. This is truly a unique and special hire for the IU McKinney School of Law.”

“I am honored to join the faculty at the Indiana University McKinney School of Law,” Sullivan said. “I have long admired the faculty of the law school and its commitment to the school’s students and to community service. I very much hope I can make my own contributions in those regards.”

Sullivan served as an Adjunct Professor of Law at the school of law from 2007-2009, teaching a class in public finance law. Dean Roberts said that he expects Sullivan to teach classes in business law and corporate finance. Sullivan said that he will continue to serve as a member of the Court until near the start of the fall semester at the law school. He said he will notify the Clerk of the Court and the Judicial Nominating Commission as soon as a definite date for his departure from the Court is determined.

Sullivan has been a member of the Indiana Supreme Court since 1993 when he was appointed by former Governor Evan Bayh. During his tenure on the Court, he has authored approximately 500 majority opinions addressing a wide range of criminal, civil, and tax law issues. Several of his decisions have been selected for publication in law school casebooks.

Prior to his appointment to the Court, Sullivan served as State Budget Director (1989-1992) and Executive Assistant for Fiscal Policy to Governor Bayh (1993) during which time he directed the preparation of the Bayh administration’s budget proposals and oversaw implementation of state budgets passed by the Legislature. Prior to state service, he practiced corporate finance and securities law in the Indianapolis office of Barnes & Thornburg, Indiana’s largest law firm. Sullivan served on the staff of former U.S. Rep. John Brademas from 1974 to 1979, ultimately assuming the position of staff director.

Sullivan has been active in national judicial and law reform organizations. He is a past chair of the ABA Appellate Judges Conference and the Appellate Judges Education Institute Board of Directors. He has been a leader of the ABA’s Judicial Clerkship Program that encourages minority law students to seek judicial clerkships and is the recipient of several awards for advancing opportunities for minority lawyers in the legal profession. And he is a member of the American Law Institute and has been selected as an Adviser to two of its Projects: “Restatement Third, Torts: Liability for Economic Harm” and “Principles of Election Law: Resolution of Election Disputes.”

Sullivan graduated from Dartmouth College (A.B., cum laude, 1972) and the Indiana University Maurer School of Law—Bloomington (J.D., magna cum laude, 1982; Order of the Coif). He also holds an LL.M. from the University of Virginia School of Law (2001). He is married to Cheryl G. Sullivan; they are the parents of three adult sons. An avid runner, Sullivan has qualified for and competed in the Boston Marathon three times in the last decade.

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Vacancy on Supreme Court 2012

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

In Arnett v. Astrue, SS Comm. (ND Ind., Miller), a 16-page opinion, Circuit Judge Wood writes:

Laenise Arnett suffers from a number of medical problems, including peripheral vascular disease, chronic obstructive pulmonary disease, osteoarthritis, obesity, vascular dementia, depression, panic disorder, and anxiety. As a result, she sought Disability Insurance Benefits (“DIB”) from the Social Security Administration (“SSA”), but she was unsuccessful before the agency. After the Appeals Council denied review of the Administrative Law Judge’s adverse decision, she sought review in the district court pursuant to 42 U.S.C. § 405(g). Once again, she did not prevail. She now appeals to this court, seeking to persuade us that the Administrative Law Judge (“ALJ”) failed properly to assess her residual functional capacity. We agree with her, and so we remand her case to the agency for further proceedings.

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 0 today (and 3 NFP)

For publication opinions today (0):

NFP civil opinions today (0):

NFP criminal opinions today (3):

Robert Huskey v. State of Indiana (NFP)

Austin Harmon v. State of Indiana (NFP)

Steffan Solomon v. State of Indiana (NFP)

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending March 30, 2012

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the Feb. 24, 2012 list.]

Here is the Clerk's transfer list for the week ending Friday, March 30, 2012. It is one page (and 11 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Indiana Transfer Lists

Ind. Law - ILB's Legislative Research Shortcuts updated

The Indiana Law Blog's Legislative Research Shortcuts, a dashboard for doing online research on the laws passed by the General Assembly, has been updated to include the 2012 session.

I rely on this resource for quickly tracking bill histories; I hope some of you have found it useful too. It can save you from clicking through endless screens to locate the information you need.

The shortcuts page may always be accessed from the right-hand column of the ILB, under the heading "Indiana Legal Resources."

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Indiana Law

Vacancy on Supreme Court 2012 - Photo: Swearing in of Justice Massa

Photo: Swearing in of Justice Massa.

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Vacancy on Supreme Court 2012

Courts - "Police Are Using Phone Tracking as a Routine Tool"

This long story by Eric Lichblau was on the front-page of Sunday's NY Times. It begins:

WASHINGTON — Law enforcement tracking of cellphones, once the province mainly of federal agents, has become a powerful and widely used surveillance tool for local police officials, with hundreds of departments, large and small, often using it aggressively with little or no court oversight, documents show.

The practice has become big business for cellphone companies, too, with a handful of carriers marketing a catalog of “surveillance fees” to police departments to determine a suspect’s location, trace phone calls and texts or provide other services. Some departments log dozens of traces a month for both emergencies and routine investigations.

With cellphones ubiquitous, the police call phone tracing a valuable weapon in emergencies like child abductions and suicide calls and investigations in drug cases and murders. One police training manual describes cellphones as “the virtual biographer of our daily activities,” providing a hunting ground for learning contacts and travels.

But civil liberties advocates say the wider use of cell tracking raises legal and constitutional questions, particularly when the police act without judicial orders. While many departments require warrants to use phone tracking in nonemergencies, others claim broad discretion to get the records on their own, according to 5,500 pages of internal records obtained by the American Civil Liberties Union from 205 police departments nationwide.

The internal documents, which were provided to The New York Times, open a window into a cloak-and-dagger practice that police officials are wary about discussing publicly. While cell tracking by local police departments has received some limited public attention in the last few years, the A.C.L.U. documents show that the practice is in much wider use — with far looser safeguards — than officials have previously acknowledged.

The story includes a link to a 189-page training manual for tracking cellphones, apparently part of a California District Attorneys Assoc. CLE course. It also links to this ACLU report, "Cell Phone Location Tracking Public Records Request ," which includes this quote:
The government should have to obtain a warrant based upon probable cause before tracking cell phones. That is what is necessary to protect Americans' privacy, and it is also what is required under the Constitution. In United States v. Jones, a majority of the Supreme Court recently concluded that the government conducts a search under the Fourth Amendment when it attaches a GPS device to a car and tracks its movements. The conclusion should be no different when the government tracks people through their cell phones, and in both cases a warrant and probable cause should be required.

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Courts in general

Ind. Decisions - "Court upholds judge's decision to let molest victim testify via TV"

The case of Hane C. Harris v. State of Indiana, decided March 27th by the COA (ILB entry here), is the subject of this story today by Douglas Walker in the Muncie Star-Press. A quote:

In an appeal of his convictions, Harris argued that prosecutors had failed to prove the girl would be seriously harmed if required to testify in the courtroom, and said her televised testimony violated his constitutional rights.

In a 3-0 ruling, the appeals panel last week ruled the evidence was "more than sufficient" that the child "could not reasonably communicate to the jury in the physical presence of Harris."

The judges also noted that Harris' accuser was subjected to a lengthy cross-examination, and through the video link, the defendant could see the girl, and she could see him and the jury.

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Ind. App.Ct. Decisions

Vacancy on Supreme Court 2012 - "Newest state justice cites early lessons in the rule of law" [Updated]

As noted in this March 28th ILB entry, Justice-Designate Mark Massa will take the oath of office as Indiana’s 107th Justice privately today.

Maureen Hayden of CNHI has a lengthy biographical story about Massa, published here today in the New Albany News & Tribune.

"Ind. justice's swearing-in highlights state's merit selection" is the headline to a long story in the NWI Times reported by Dan Carden.

"Justice Mark Massa's ascension shows path of government servant" is the headline to an opinion piece by John Krull is director of Franklin College's Pulliam School of Journalism, published yesterday in the Evansville Courier & Press. Here is a sample:

Daniels' decision to keep the Indiana Supreme Court a males-only club doubtless will ratchet up the pressure on the next governor to name a woman.

Daniels said that he would have loved to name a woman, but that gender had to be a "tiebreaker." He also, curiously, suggested that women in the legal profession are partly to blame for not bringing forth the strongest candidates for Supreme Court service. * * *

The places where affirmative action works are the places that — aggressively, even relentlessly — search for and recruit the best women and minority candidates.

Thus, if Mitch Daniels argues that not enough qualified women are applying to serve on the Indiana Supreme Court, then he's really indicting himself and the rest of state government for not doing effective outreach.

The column also attempts a second point, but I could not follow it.

[Updated at 1:15 PM] The "second point" mentioned above perhaps is made more directly in this post today on the appointment by IU-Indy SPEA prof Sheila Kennedy, who discusses cronyism. The heading "…With A Little Help from My Friends."

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Vacancy on Supreme Court 2012

Catch-up: What did you miss over the weekend from the ILB?

Below is the answer to "What did you miss over the weekend from the ILB?

But first, didn't you check the ILB a lot last week? Then please make the move to supporting the ILB, today!

From Sunday, April 1, 2012:

From Saturday, March 31, 2012:

From Friday afternoon, March 30, 2012:

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 4/2/12):

Next week's oral arguments before the Supreme Court (week of 4/9/12):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 4/2/12):

Monday, April 2nd

Next week's oral arguments before the Court of Appeals (week of 4/9/12):

Monday, April 9th

Tuesday, April 10th

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

The past COA webcasts which have been webcast are accessible here.


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.

Posted by Marcia Oddi on Monday, April 02, 2012
Posted to Upcoming Oral Arguments