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Thursday, November 01, 2012

Ind. Courts - "ACLU of Indiana Challenges Marion County Judicial Election System" [Link to complaint repaired]

From a just-issued news release:

Indianapolis - Marion County voters have less influence than they may think about which judges are chosen for the Marion Superior Court. Today the ACLU of Indiana, on behalf of Common Cause Indiana, filed a lawsuit challenging state law governing that process to ensure voters of every political stripe can cast meaningful votes for all judgeships to be filled in Marion County.

"The system for electing judges in Marion County is unique in Indiana, and possibly the nation," said ACLU of Indiana Legal Director Ken Falk. "It is imperative that we ensure that when the State opts to fill positions through the ballot box, it does so in a manner that allows Hoosiers' votes to matter."

Under Indiana law, each of the major political parties conducts a primary election at which it selects exactly half of the seats to be filled, which renders the general election a mere formality. Voters in Marion County who do not cast a ballot in the primary election, therefore, have absolutely no say in electing judges to the Marion Superior Court. This process means that even people who do vote in the primary election have a say in only half of the judgeships to be filled.

The U.S. Supreme Court has long held that the right of suffrage is a fundamental matter in a free and democratic society, and that exercising voting rights in an unimpaired manner is preservative of other basic civil and political rights, such as those guaranteed by the First Amendment.

ACLU of Indiana Executive Director Jane Henegar said, "We are especially mindful this close to the General Election that the right to vote is precious. Our democracy is premised on the right of each citizen to have a meaningful vote. Americans should never be forced to muffle their voices in our government for anyone's convenience, least of all for political parties."

Julia Vaughn, policy director for Common Cause Indiana, said change is needed, and her organization hopes that today's action will make that happen: "For too long the party bosses have controlled the judicial selection process in Marion County and denied voters any meaningful role in it. Marion County voters deserve the same opportunities as voters in other counties to elect judges of their choice. The judicial branch, as arbiters of the law, must be above reproach." Common Cause Indiana is the statewide affiliate of a national nonprofit organization dedicated to promoting good government and voting rights.

The case, Common Cause Indiana v. Indiana Secretary of State, was entered in the U.S. District Court for the Southern District of Indiana in Indianapolis under cause number 1:12-cv-01603-RLY-DML.

ILB: Here is my communicaton recently with neighbors who wanted input on the judges on their ballot:
Question: Do you have advice about how to answer the "should __________ be retained" questions on the ballot? Or about the long list of judges to vote for?

Answer: I am voting yes to retain both Supreme Court justices who are up, David and Rucker.

One Court of Appeals judge is on our ballot, Nancy Vaidik, and she is excellent.

There is a long list of Marion Co. Superior Court judges on our ballot, half R and half D. Our votes don't matter. The two parties have agreed in advance (through slating conventions) to these names, and the number of names on the ballot is equal to the number of seats up for election! So it is a done deal.

Yes, many of us have been trying to get this changed for years ... Marion is the only county with this arrangement.

Here is a copy of today's 7-page complaint.

Posted by Marcia Oddi on Thursday, November 01, 2012
Posted to Indiana Courts

Ind. Law - $25 for 6 legal ethics CLE on Nov. 27th

Sponsored by the Indiana Inspector General, details here.

Posted by Marcia Oddi on Thursday, November 01, 2012
Posted to Indiana Law

Ind. Decisions - A news story on "Driving For Miles With Blinker On is Not a Crime"

Scott Smith, Staff Writer, Kokomo Tribune, has pointed the ILB to his story reported in the Oct. 24th Kokomo Tribune. Smith is putting together a followup. The current story (see also the reader comments) begins:

The Indiana Court of Appeals has thrown out a Kokomo man’s marijuana conviction, ruling police had no reason to search his car.

Rodney Killebrew II was arrested March 3, 2011, after Kokomo Police Officer Chad VanCamp pulled Killebrew over on North Apperson Way.

According to court documents, VanCamp said Killebrew drove straight through an intersection without turning, despite the fact Killebrew’s turn signal was flashing.

VanCamp claimed Killebrew’s failure to turn created a suspicion of impairment, which in turn justified pulling over Killebrew’s vehicle.

In a 14-page ruling, the appeals court disagreed, saying driving around with an activated turn signal is “equally common” among unimpaired drivers.

During a February bench trial, VanCamp testified it was common for people who aren’t impaired to go through intersections with their turn signals activated.

“Common for old people too, have you seen them?” Killebrew’s attorney asked during the trial.

“Absolutely, I’ve stopped them for it too,” VanCamp responded.

Stopping drivers for that reason “would be ripe for abuse and would not strike a reasonable balance between the government’s legitimate interest in traffic safety and an individual’s reasonable expectation of privacy,” the ruling states.

The three-judge panel unanimously agreed it isn’t illegal, under Indiana law, for a driver to fail to turn, even if they have a turn signal flashing.

They also ruled those circumstances weren’t enough to create a reasonable suspicion of impairment.

With no legal reason to pull Killebrew over, VanCamp’s subsequent search violated Killebrew’s constitutional right against illegal search and seizure.

Posted by Marcia Oddi on Thursday, November 01, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - "2012 WOMAN OF INFLUENCE: Judge Margret G. Robb"

Very nice article by Marc and Matha Allen in the Indianapolis Business Journal. A sample:

As the first woman judge to be elected as chief judge of the Indiana Court of Appeals, Margret Robb is aware of its significance, but is not caught up in it.

“I would like to think that my colleagues voted for me because they thought I would do a good job,” said Robb. * * *

“I’m enormously proud to be a woman on the court, to be a woman as chief; someone had to be the first.”

It’s also important that someday a second and third woman be appointed to head the court, until it’s no longer a big deal, she said.

That may take a while, however, as just eight women have served on the appellate court in its 112-year history, and five of those are serving now.

The chief judge is elected by the 15 judges who serve on the appellate court. “It’s really the face of the court,” Robb said of her position, which is for a three-year term and began in 2011. “When someone needs to speak, I address the issues that the court has made decisions on.” * * *

There is more to being a judge than hearing cases, of course.

“Mentoring is one of the reasons that I hire a new law clerk every year,” said Robb, who studied law at the Indiana University Robert H. McKinney School of Law in Indianapolis. “I think part of my obligation is to mentor new lawyers.” She and other judges on the court also host “externs,” law students who volunteer in their chambers for school credit—and learn what appellate court is like.

“I was mentored by both men and women, and I think that’s what makes a really good bar.”

Posted by Marcia Oddi on Thursday, November 01, 2012
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 1 today (and 9 NFP)

For publication opinions today (1):

In Leslie Bridges v. Veolia Water Indianapolis, LLC, Veolia Water North America Operating Service, LLC, and The City of Indianapolis, Dept. of Waterworks, a 17-page opinion, Judge Bradford writes:

After Veolia Water twice turned her water off for non-payment, appellant Leslie Bridges filed a class action seeking return of her $25 reconnection fee and other unspecified damages and attorney’s fees. The trial court dismissed, concluding that Bridges had failed to exhaust the administrative remedies available at the Indiana Utilities Regulatory Commission. We conclude that the trial court was correct to hold that Bridges was obliged to seek those remedies before seeking judicial relief. * * *

In arguing that the trial court abused its discretion by denying her motion to correct error, Bridges claims that the IURC did not have exclusive jurisdiction over her claim. Alternatively, Bridges claims that even if the IURC did have exclusive jurisdiction over her claim, her failure to exhaust the available administrative remedies should be excused because the exhaustion of said remedies would have been futile. For their part, the Appellees argue that the IURC did have exclusive jurisdiction over Bridges’s claim. Appellees further argue that exhaustion of the available administrative remedies would not have been futile, and, as such, Bridges’s failure to exhaust said remedies should not be excused. * * *

Having concluded that the IURC has exclusive jurisdiction over Bridges’s claim against the Appellees, we must next consider whether Bridges’s failure to exhaust the available administrative remedies should be excused. Again, Bridges argues that even if the IURC did have exclusive jurisdiction over her claim against the Appellees, she should be excused from exhausting the available administrative remedies because the exhaustion of the available administrative remedies would have been futile. Appellees, for their part, argue that exhaustion of the available administrative remedies would not have been futile. * * *

In the instant matter, Bridges sought damages, attorneys’ fees, costs, and an injunction prohibiting the Appellees from continuing to disconnect residential water service without following the terms of the Tariff. The request for the injunction is moot, however, because the Department sold the waterworks assets in 2011 and Veolia is no longer involved in the administration of waterworks assets. The damages sought by Bridges appear to be merely the recovery of the $25 re-connect fee that she incurred after one instance when she claims he residential water service was disconnected in violation of the terms of the Tariff. * * *

Thus, because the IURC would have the authority to order the Appellees to refund the damages allegedly suffered by Bridges, it would not have been futile for Bridges to exhaust the administrative remedies available to her.

Furthermore, even if Bridges were to be unsuccessful in an administrative challenge, resort to the IURC may produce a reasoned explanation of the lawfulness of the Appellees’ actions, and that, in and of itself, could be of value before resorting to the courts to resolve such an issue. * * *

In sum, having concluded that Bridges’s claim falls within the exclusive jurisdiction of the IURC and that exhaustion of the available administrative remedies would not have been futile, we conclude that the trial court acted within its discretion in denying Bridges’s motion to correct error because the trial court did not have subject matter jurisdiction over Bridges’s claim.

NFP civil opinions today (3):

Bryan Jann v. Review Board of the Indiana Dept. of Workforce Development and C&B Custom Modular, Inc. (NFP)

Kenneth Hawkins v. Debra Hawkins (NFP)

David J. Bogolia and Nikki Schafer v. John Danielson, M.D. (NFP)

NFP criminal opinions today (6):

Joshua Shipley v. State of Indiana (NFP)

Jeffrey S. Heironimus v. State of Indiana (NFP)

Angela R. Elliott v. State of Indiana (NFP)

Brian S. Fleming v. State of Indiana (NFP)

Stephen L. Reed v. State of Indiana (NFP)

Darrius Woods v. State of Indiana (NFP)

Posted by Marcia Oddi on Thursday, November 01, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Yet more on "Driving For Miles With Blinker On is Not a Crime"

Updating this ILB entry from Oct. 29th, the “attorney who works with law enforcement” has sent this note in response:

Thanks for your thoughts on my comments regarding the Killibrew decision. I would respond in the following way, obviously leaving to you the decision whether to post my response or not.

I read the two statutes, IC 9-21-7-11 and IC 9-21-8-25, in conjunction with each other. A person is allowed to activate a turn signal (a flashing light) for the purpose of indicating a left or right turn under 9-21-7-11, and must do so at the minimum distances required in 9-21-8-25 before actually making the turn. Certainly, there is some room for differing judgments in individual cases. A person who is in the right lane of a city street and signals a right turn 400 feet away, when only 200 feet are required, is not likely to violate the flashing light statute--the officer is going to have a hard time articulating his "belief in good faith" (the standard necessary to make a traffic stop, see IC 34-28-5-3) that the person wasn't attempting to indicate an intention to turn with the short distance observed.

However, I think the State would likely meet its burden in a case where a person drove his vehicle for a substantial distance (say a quarter of a mile) with a turn signal on while passing several intersections, or if a person had his left turn signal on for a substantial distance where there were no location to actually turn left, such as on an interstate highway. I think in these examples, a law enforcement officer would have a "belief in good faith" that the signal is not being used to indicate an intention to turn right or left, and therefore the statute would be violated.

I realize that this is not a black and white rule, but the traffic code is full of examples where discretion is left to the officer to decide whether a violation is occurring based on the circumstances he observes. See, for example, the "following too closely" statute, which simply says, "A person who drives a motor vehicle may not follow another vehicle more closely than is reasonable and prudent ..."

The ILB also received this response:
I think I'd prefer if I be cited as an "attorney working with law enforcement" on this topic as well.

In XXX County, we prosecute OWIs at a per capita rate as high or higher than anywhere in the State. I'm one of the point people for that effort.

From my professional chair, Killebrew beautifully illustrates bad facts making bad law.

The fact pattern is poor for a couple reasons - first, the arresting officer's testimony clearly shows a mistaken belief that signalling without turning was a traffic infraction. Second, the officer testified that based on that conduct he suspected Killebrew of impaired driving.

The deputy prosecutor in the trial court should have elicited testimony from his/her officer that "Signal inconsistent with action" is listed by the Nat'l Highway Traffic Safety Administration as a sign of impairment in their OWI SFST training manual(s) and has been listed as such for over twenty years. In this, both the trial and appellate levels have missed the boat. More to the point though - our office and I personally have always implored our local LEOs to always make traffic stops on more than just one piece of impairment.

Even if the State prevails at the suppression level on such a thin set of facts, our juries have been singularly underwhelmed by those same facts. They probably should be.

Further, because there is only one driving behavior the Appellate Court was offered -- the opportunity to make a finding that this driving behavior as a matter of law is not a sign of impairment. They failed to resist the opportunity, and got it wrong in the result.

All of that said, on a personal note I'm pleased with this result - that one sign of impairment listed by NHTSA is one of twenty-three different signs of impairment included by NHTSA in their manuals.

LEOs will continue to have absolutely no problem pulling over motorists when they feel the need.

I don't know if this will reassure you or alarm you, but I'm convinced 90% of Hoosier drivers (myself included) can't drive their vehicles more than 5 miles in our city and not merit a traffic stop based on some infraction or violation.

Thanks for all your hard work. Your law blog rocks.

The ILB thanks both writers for their responses!

Posted by Marcia Oddi on Thursday, November 01, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - "A troubling effort to politicize courts"

That is the headline to an article by Ruth V. McGregor, retired chief justice of the Arizona Supreme Court, and Randall T. Shepard, retired chief justice of the Indiana Supreme Court, published Oct. 22nd in The National Law Journal. Some quotes:

In states as dissimilar as Florida and Iowa, interest groups are seeking to oust judges because they disagree with a few rulings in controversial cases. By focusing on retention elections — a historically low-key vote focusing on judges' professional qualifications — these groups have threatened to puncture a protective shield that keeps politics outside the courthouse.

In recent months, political party leaders have joined the assault in these states, breaking with local tradition and calling for removal of state supreme court justices. These party leaders, with their partisan declarations in a nonpartisan realm, threaten to utterly destroy the protective shield.

As lifetime jurists and former chief justices of the supreme courts of Arizona and Indiana, we believe citizens should be concerned. If judges cannot make hard calls based on the law, without looking over their shoulder for threats of retaliation, it will become harder for our justice system to fulfill its traditional responsibility to uphold the Constitution and protect Americans' rights.

In retention elections, only the incumbent judge appears on the ballot, and voters choose "yes" or "no" to decide whether to grant the judge another term. This model, used at least some of the time for 20 state supreme courts, is based upon the principle that we should give voters a check on professional wrongdoing, while keeping politics and campaign spending to a minimum.

Unfortunately, that ideal is gravely at risk. When national political stars barnstorm Iowa to pillory a judge, and when political leaders in two presidential swing states publicly endorse the removal of qualified justices for partisan ends, they have crossed the line.

The threat is growing. Two years ago, five states saw retention-election challenges of a scope rarely seen before and in Iowa, three supreme court justices were denied retention over a single ruling. This year, political partisans have escalated the attacks by publicly joining the fight, with out-of-state funders at their side.

To ensure that strategies to politicize our courts don't become the wave of the future, we must stand up to halt them now. * * *

Voters in Iowa and Florida adopted retention elections to give citizens a way to consider removing a judge in the rare instance he or she is unfit for office, whether for ethical lapses, for exhibiting general incompetence, or lacking the temperament to hear and decide cases fairly and impartially.

But the new tactics in retention elections undermine those goals. The tactics of the special-interest groups and partisan leaders are aimed at intimidating judges over decisions made on the bench. If they succeed, this country's proud history of a fair and independent judiciary is placed at risk.

We were initially appointed by Republican governors to our respective supreme courts. Voters granted us retention multiple times. We have no political agenda in speaking out. Rather, we fear that our courts are under fire for doing their job — and that political attacks today threaten to interfere with judges fairly and impartially following the rule of law tomorrow.

Transforming judicial elections into referenda on a few rulings in controversial cases threatens this impartiality. It creates a profound risk that Americans seeking a fair day in court will instead get caught up in the nation's political wars.

ILB: The article argues that the citizen's vote should not be based on "a few rulings in controversial cases." It asserts instead that:
Voters in Iowa and Florida adopted retention elections to give citizens a way to consider removing a judge in the rare instance he or she is unfit for office, whether for ethical lapses, for exhibiting general incompetence, or lacking the temperament to hear and decide cases fairly and impartially.
In Indiana, however, it appears that Art. 7, Sec. 11 of the Constitution gives this responsibility for getting rid of unfit judges to the Court itself. It provides in part:
"On recommendation of the commission on judicial qualifications the Supreme Court may (1) retire such justice or judge for disability that seriously interferes with the performance of his duties and is or is likely to become permanent, and (2) censure or remove such justice or judge, for action occurring not more than six years prior to the commencement of his current term, when such action constitutes willful misconduct in office, willful and persistent failure to perform his duties, habitual intemperance, or conduct prejudicial to the administration of justice that brings the judicial office into disrepute."

Posted by Marcia Oddi on Thursday, November 01, 2012
Posted to Indiana Courts

Ind. Courts - "State court judges may be least known candidates on the ballot "

That is the heading of an Oct. 31st story by CNHI Statehouse Bureau chief Maureen Hayden that begins:

INDIANAPOLIS — Most voters may not know a state Supreme Court justice up for retention election next Tuesday wrote the opinion in a landmark ruling that cleared the way for the maker of some “copycat” toy machine guns to be criminally prosecuted.

That ruling – along with more than 600 votes cast or opinions written by Justice Robert D. Rucker since he was appointed to the bench in 1999 – is on an easy-to-access public website created to give voters more information about candidates they may know the least about: the judges who sit on the state’s appellate courts.

For most voters, visiting the website, courts.IN.gov/retention, may be one of the only ways to learn about the two state Supreme Court justices and four state Court of Appeals judges who are on the November ballot.

One of them, Supreme Court Justice Steven David, has his own website, prompted by critics who want to oust him for a decision he wrote that said citizens don’t have a right to forcibly resist police. But that’s a rarity: In Indiana, appellate judges up for retention typically may not campaign unless they face active, organized opposition. It’s been that way since 1970, when Indiana voters amended the constitution to do away with direct election of the state’s appellate court judges and into place a “merit selection” process intended to keep partisanship and political pressures at bay.

Posted by Marcia Oddi on Thursday, November 01, 2012
Posted to Indiana Courts

Ind. Courts - Column argues in favor of the federal (lifetime) model for appointment of Indiana appellate judges

SPEA professor Sheila Kennedy's blog post this morning is headed: "THIS is Why Judges Shouldn’t be Elected." It begins by noting that because of Justice David's opinion in Barnes, "the Tea Partiers are out for his blood." From the conclusion:

When the states established their own courts, however, they didn’t always follow the federal model.

When judges are on the ballot, bad things happen. They have to raise money to run for office, and that money often comes from people who have business before the courts. * * * They have to be wary of interest groups that may mobilize to defeat them if they rule in ways inimical to the desires of those groups.

Even in “semi” elections like Indiana’s, where all that appears on the ballot is a retention question, asking voters to say yea or nay to the continued service of a judge makes members of the judiciary vulnerable to small but passionate interest groups like the Tea Party that’s gunning for Judge David. (No pun intended.)

Most voters have no idea what the judges have or haven’t done, whether they are competent or not, whether they are hard-working or lazy. A significant number don’t even vote on retention questions. Because that’s the case, small numbers of zealots can mount successful campaigns to defeat a judge they dislike. Once that happens in a state, even a couple of times, the result can be a judiciary too timid to rule against public opinion in controversial cases, no matter what justice and the law require.

That isn’t the system the Founders established, and it isn’t a system capable of upholding the rule of law against the passions of the mob.

See also yesterday's ILB post, headed "Indianapolis Tea Party takes to air with anti-Justice David ad."

Posted by Marcia Oddi on Thursday, November 01, 2012
Posted to Indiana Courts