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Friday, May 04, 2012

Ind. Law - "Middlebury man injured in motorized barstool crash"

A very brief story from Ashley Henderson of WSBT South Bend. A quote:

MIDDLEBURY, Ind. -- An Elkhart County man was injured Wednesday afternoon after police say he lost control of his motorized barstool.

According to the release, 53-year-old James Kleckner of Middlebury was riding a bar stool that had a small engine attached to it on Rachael Court, north of York Hills Drive, five miles east of Bristol.

Police say after Kleckner completed a curve on Rachael Court, he accelerated on a straight section of the road. He then lost control of the barstool and fell.

ILB Question: Do we need a law to regulate the use of motorized bar stools on city streets and highways?

Posted by Marcia Oddi on Friday, May 04, 2012
Posted to Indiana Law

Ind. Courts - Re: Payment of Marion County Judicial Slating Fees

Here is a letter dated April 23, 2012 from Adrienne L. Meiring, Counsel to the Indiana Commission on Judicial Qualifications, written in response to a request from Attorney Paul K. Ogden.

The 3-page letter begins:

The Indiana Commission on Judicial Qualifications has received and considered your letter dated January 11, 2012. In the letter, you request that the Commission revisit Advisory Opinion #1-92 in light of the twenty-year history since its enactment. You further request that the Indiana Supreme Court consider such opinion and make it binding and that the Supreme Court order any slating fees received by the chairs of the Republican and Democratic Parties pursuant to the 2012 election be returned to the judicial candidate's committee from which it was received.

In 1992, the Commission issued Advisory Opinion #1-92 [ILB: Here is 8-page Advisory Opinion #1-92.] to address whether the Commission believed a judge could contribute financially to a political candidate, party, or organization, consistent with the Code of Judicial Conduct, and whether payments in the form of assessments, slating fees, or other mandatory political payments were proper. The question required an analysis of Canon 7 A(2)'s language which permitted a judge who holds office filled by public election between competing candidates to contribute to a party or organization.

The letter distinguishes between a voluntary contribution vs. an assessment or slating fee. The letter continues:
[M]aking a voluntary contribution to a political party is consistent with the Code of Judicial Conduct, but paying an assessment or slating fee is not.
The letter closes:
Assessments or slating fees overwhelmingly tip this balance by suggesting to the public that a judicial candidate had to buy favor with the political party in order to obtain his/her judicial seat. Political parties certainly are allowed to decide whom to support and most likely want to give that support to active and contributing members of the party; nonetheless, this support cannot be conditioned on payment of an assessment or slating fee without undermining the very heart of what Canon 4 attempts to protect. In these situations, it is not unreasonable to expect that members of the public will view the judge as beholden to the party. Preventing such an impression and preserving public confidence in the judiciary are items that the Commission views as compelling interests.

Further, the Commission would emphasize that the crucial inquiry regarding contributions to political parties is not how they are labeled but whether the contribution is voluntary. Calling a payment a "mandatory contribution," as opposed to a "slating fee" does not make the payment any less inconsistent with Rule 4.1(A)(4). While not an exhaustive list, some of the factors the Commission believes are important to evaluate when considering whether a payment is voluntary include the timing of the payment, particularly if it must be paid by a certain time, such as before a slating convention; whether anyone from the political party communicated to the judicial candidate that the payment is expected; and whether the amount contributed by all judicial candidates during an election cycle is the same (assuming no further explanation for the coincidence).

As to your other requests, the Commission has no jurisdiction to require the political parties to return slating fees paid, nor does it have any specific means to request that the Supreme Court make the Commission's advisory opinions binding.

Posted by Marcia Oddi on Friday, May 04, 2012
Posted to Indiana Courts

Ind. Law - "Marion County Superior Court Judge Carol Orbison protests Wheat's early release" [Updated]

Updating the second part of this ILB from May 2nd, Dan McFeely reports today in the Indianapolis Star:

The judge who sentenced former Lawrence swim coach Chris Wheat to prison has told the Indiana Department of Corrections that allowing Wheat to leave prison early -- by using old college credits toward a new degree that cut his prison term -- is a violation of the spirit, if not the letter, of state law.

Marion County Superior Court Judge Carol Orbison exchanged e-mails with a DOC attorney on Wednesday and Thursday in which she said she was "deeply concerned" with the way state law was being interpreted for prisoners.

In essence she objects to the DOC's practice of allowing prisoners to apply old college credits as a way to get out of prison more quickly, as was the case with Wheat, who served less than two years of an eight-year sentence for sexual misconduct with a minor.

Wheat was released from state prison Thursday, according to Doug Garrison, a spokesman for the DOC.

In addition to the judge, the victim's family and a state lawmaker are hoping to work on strengthening the law next year to prevent this from happening again.

Citing an Appeals Court case (Miller v. Bryant), Orbison said the application of educational credits should be limited to those obtained "while incarcerated." In Wheat's case, his credits were from a previous degree earned in 1995 and applied to a new degree obtained by Oakland City University.

"This award of credit violates the intended purpose of the law as enunciated in the Miller case, if not the letter of the law," she wrote in the e-mail, which she shared with The Star. The law, she said, "contemplates that the work for which the credit time is awarded is work completed while confined by the Department of Corrections."

The DOC response, which she also shared with The Star, argued that the Miller case involved a person who had earned all of his credits prior to incarceration.

Wheat's case is not unique, a DOC attorney told the judge. Many offenders since the law was enacted in 1993 have achieved college degrees by incorporating college credits earned in the past. The law has never been modified to mandate anything different.

"We have treated Mr. Wheat in a manner consistent with thousands of similarly situated offenders. He has been dealt with no better, and no worse, than other persons who have earned college degrees," the DOC response said. "To single him out for disparate methodology for calculating earned credit time would seem to be inappropriate, and would subject this agency to a risk of substantial liability."

The ILB has located Miller v. Bryant, a 1995 COA opinion.

In Part II of the opinion, the Court quotes IC 35-50-6-3.3(c), which read:

(c) A person does not earn credit time under subsection (a) unless the person completes at least a portion of the degree requirements after June 30, 1993.
The opinion concluded:
The legislature imposed a temporal requirement to qualify for reduction which would ensure that attainment of the degree may have been motivated, at least in part, by I.C. 35-50-6-3.3. We therefore conclude that the statute was intended to provide incentive to further one's education while incarcerated. Mindful of the legislative intent and purpose underlying I.C. 35-50-6-3.3, we next address whether receiving a degree is "completing a portion of a degree" within the meaning of I.C. 35-50-6-3.3.

The term "completing" focuses on the actions of the prisoner. The statute was intended to provide incentive to prisoners to affirmatively act, i.e., to complete requirements for attaining a degree. Conferring an associate's decree upon Bryant, which occurred on July 23, 1993, was a ministerial act on the part of Ball State University, not Bryant, and required no action on Bryant's part. Presenting the degree to Bryant merely signified that Bryant had completed all portions of his degree requirements. Unfortunately for Bryant, he completed all tasks required of him which were necessary to earn his degree before the effective date of I.C. 35-50-6-3.3. There remained nothing for Bryant to do, i.e., no portion of the degree to complete, after the effective date of the statute.

We hold that, consistent with the legislature's intent in enacting I.C. 35-50-6-3.3, receiving a diploma does not constitute "completing a portion of a degree" within the meaning of the statute. We therefore reverse the trial court's determination that Bryant was entitled to a one-year sentence reduction. Reversed.

IC 35-50-6-3.3 has been amended several times since 1995. The language in effect now (scroll down to version b, eff. July 1, 2011 ) contains a similar provision at both subsections (f) and (g).

[Update] IC 35-50-6-3.3 was amended again this year, by HEA 1200-2012, SECTION 11. The changes are effective July 1, 2012. The change is to subection (j). But a reading of the entire section may be instructive.

Posted by Marcia Oddi on Friday, May 04, 2012
Posted to Indiana Law

Ind. Courts - "GOP Chairman Kyle Walker Sends Out Contemptible Mailer Attacking Republican Judicial Candidates "

That is the heading to this post this morning from Paul Odgen, one of the several unslated candidates running for the Marion County judgeship in next week's primary election. It begins (accompanied by photos of the brochure):

At least my [Ogden's] criticism of the slating process, where phony judicial endorsements are decided by county chairman and handed out for $12,000 apiece, is 100% true. GOP County Chairman Kyle Walker, however, doesn't have any problem misrepresenting details to slander an opponent. Witness the slam piece on Judge Orbison and myself. If there needs to be any more evidence that the Supreme Court should step in and put an end to Marion County Party Chairmen hand picking local judges, Walker provides it with this piece.
The unslated candidates have also been denied voter registration data equivalent to that provided to the slated candidates and brought a lawsuit. See this list of earlier ILB entries headed "Unslated judicial candidates file lawsuit against Marion County election boards."

Now, as a result of a massmailing this week, they have issued this press release announcing a press conference this afternoon. It begins:

Unslated Candidates Will Demand that the Marion County Election Board Force the Voter Registration Board to Follow Its Policy to Protect Voters’ Data

INDIANAPOLIS – Greg Bowes, former Marion County Assessor and current Democratic candidate for Marion County Superior Court Judge, along with four other candidates, Mark King, Paul Ogden, Zach Mulholland, and Brian Cooper, will hold a press conference on May 4, 2012, at 2:00 p.m. in front of the office of the Marion County Clerk at 200 Washington Street, Room W122, Indianapolis, IN 46204.

The candidates will demand that the Marion County Election Board enforce a new policy that prohibits the Marion County Board of Voter Registration from giving out most voter registration data. This follows a mass mailing of postcards by Voter Registration to all voters to confirm their registration and tell them where their polling place is. The postcard includes either the voter’s date of birth plus the last four digits of the voter’s Social Security Number or the voter’s driver’s license number, in violation of the new policy.

The five candidates, who filed a lawsuit against Voter Registration and the Election Board to gain access to voter registration data provided to endorsed candidates, had their request for an emergency injunction denied after the Election Board adopted a policy to restrict voters’ data. That policy prevents all voter registration information from being released other than the voter’s name and address. The policy specifically prohibits the release of a voter’s identification number, date of birth, or Social Security Number, even if that number only contains the last four digits. The policy was adopted on April 20, 2012.

The members of the Election Board defended the restrictive policy by saying that they wanted to protect private information that might create opportunities for identity theft. Voter Registration has just sent this private information through the mail on a postcard that anyone could read. The five candidates are very unhappy about this mistake.

Posted by Marcia Oddi on Friday, May 04, 2012
Posted to Indiana Courts

Ind. Gov't. - Still more on "Statewide electronic records policy in the works"

Updating two ILB entries from April 25th (here and here), the Fort Wayne Journal Gazette editorializes today (emphasis from ILB):

The Indiana Commission on Public Records is creating a statewide policy for retaining electronic records. Setting a clear and consistent policy for all government agencies to follow serves the best interest of the public, and commission members ought to start with the idea that most electronic records need to be kept.

State lawmakers made two changes to Indiana’s public records laws in the last legislative session:

•They confirmed that the commission has oversight responsibilities for electronic records.

•And they asked the commission to create the statewide policy on retaining electronic records.

The policy will determine which electronic records and communications that counties, cities and other public agencies need to save and for how long. The commission is scheduled to meet in July to discuss the policy. If it is adopted in July, the statewide rules would go into effect in August.

“Thirty days after we’ve approved it, it’s in effect. There is no longer any local adoption needed. It will be the law, the rules in every county,” said Jim Corridan, director of the Indiana Commission on Public Records.

Currently, when Hoosiers request an electronic record, they face the possibility of 92 different sets of rules, he said. “That was the problem we’re addressing.”

The statewide policy requires each government agency to identify the person responsible for keeping the agency’s electronic records. For some agencies it will likely be an IT leader and for others, such as a city or town, it may be the clerk-treasurer.

One of the objectives of the statewide policy is to distinguish between emails that discuss public business and need to be preserved and those that are “transitory” and may be discarded.

A post on the Indiana Law Blog last week asked an excellent question: “How would the emails that played such an important role in the Duke (Energy) /IURC scandal have been classified under this scheme?”

The scandal, which resulted in Gov. Mitch Daniels’ firing David Lott Hardy, a Fort Wayne attorney, as chairman of the Indiana Utility Regulatory Commission in October 2010, first came to light after the Indianapolis Star published emails between Hardy and former Duke Energy Vice President James Turner. Some of the e-mails did not discuss pertinent public IURC business. But they did serve as evidence of the inappropriate relationship between company leaders and public officials responsible for regulating the energy company.

“We are going to try to craft a policy that makes it very clear,” Corridan said. “But the reality is there is no way to force compliance at every level of government.” To encourage compliance, he said the commission is also stepping up education efforts.

Commission members should keep the Duke Energy scandal in mind as they create the statewide policy. And they should err on the side of the public’s right for access to electronic records when there is doubt.

Posted by Marcia Oddi on Friday, May 04, 2012
Posted to Indiana Government

Ind. Law - More on "Lawmakers didn’t foresee EACS dilemma"

Supplementing this ILB entry from yesterday, WANE Fort Wayne's Randy Spieth has this story:

A state law passed last year is preventing East Allen County Schools from selling Monroeville Elementary to the Catholic Diocese of Fort Wayne-South Bend.

The law, part of the 2011 Indiana General Assembly, is House Bill 1002 .

"The law is fairly clear," Russ Simnick, the president of the Indiana Public Charter Schools Association, said. "If a school district closes down a building, then it should remain on this list to make it available to charter schools for 48 months."

EACS closed Monroeville Elementary at the end of the last school year. * * *

Simnick said the association has had to reference the law to a school, and the school's potential buyer twice. Both situations took place in Allen County.

ILB: The other situation involved a lawsuit filed to stop a transfer of title of a vacant school building to the Fort Wayne-Allen County Airport Authority, as noted in yesterday's ILB post.

The 48-month provision may be found at IC 20-26-7-1(i). Subsections (d) through (i) were added by SECTION 27 of PL 1002-2011.

Posted by Marcia Oddi on Friday, May 04, 2012
Posted to Indiana Law