Friday, November 02, 2012
Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)
For publication opinions today (1):
In Joshua A. Bostic v. State of Indiana, an 11-page opinion, Judge Pyle writes:
[Bostic] raises only procedural issues relating to: (1) his right to discharge due to the scheduling of his jury trial more than one year after the date he was charged and arrested; and (2) the rules for appointing a special judge to preside over his jury trial. We affirm and remand. * * *NFP civil opinions today (2):
We need not calculate the number of days chargeable to each party, because here, at no point during his proceedings, did Bostic file a motion for discharge under Criminal Rule 4(C) or object to the trial court’s setting of any of his trial dates. Accordingly, he has waived his claim that Criminal Rule 4(C) was violated. * * * Since Bostic did not object or file a motion for discharge, his Criminal Rule 4(C) claim is waived. * * *
Here, Bostic did not object—either at the jury trial or the sentencing hearing—to Senior Judge Milligan presiding as special judge in his cause. Accordingly, Bostic has waived review of any challenge to the appointment of Senior Judge Milligan as special judge.
NFP criminal opinions today (3):
Ind. Courts - More on: Justice Rush to assume duties November 7th
As the ILB reported in this entry on Oct. 26th, a news release this morning from the Supreme Court announces:
Loretta Rush, a Superior Court judge in Tippecanoe County, will take the oath of office as Indiana’s 108th Supreme Court Justice on November 7th. The private oath will be administered by Chief Justice Brent E. Dickson. A public, formal swearing-in ceremony will take place December 28th.
Chief Justice Dickson explained, “My colleagues on the bench and the court staff send our warmest welcome to Justice Rush. She is widely respected for her wisdom, sound judgment, and dedication as a jurist and for being an effective and innovative administrator.”
Case work and administrative matters have been handled by a four- member Court since Justice Frank Sullivan, Jr. left the bench in August 2012. Since her appointment, Judge Rush has continued hearing and completing juvenile cases in Tippecanoe County and Hon. Loretta Rush had a full docket this week. She has continued her work on numerous pilot programs that involve her court, worked on a transition plan and finished the court’s 2013 budget. She is transitioning her court to the leadership of Judge Pro Tempore Thomas Milligan, who was appointed by the Supreme Court to temporarily serve as judge of Tippecanoe Superior Court #3. The Governor will appoint Judge Rush’s permanent successor. Justice Rush will begin working with the Supreme Court immediately upon taking the oath next week. Her first oral arguments are scheduled for November 21st.
Ind. Decisions - Tax Court posts one yesterday, a NFP
In Carolyn Gibson v. Indiana Dept. of State Revenue (NFP), a 5-page opinion by Judge Fisher in a case involving a pro se petitioner, Sr. Judge Fisher writes:
Carolyn Gibson has appealed the Indiana Department of State Revenue’s denial of her income tax refund claim for the 2007 tax year. The matter is currently before the Court on the Department’s Motion for Summary Judgment. * * *
The Department asserts that it is entitled to judgment as a matter of law because the undisputed material facts show that Ms. Gibson’s 2007 refund claim was untimely filed pursuant to Indiana Code § 6-8.1-9-1.3. Ms. Gibson, however, argues that principles of equity rather than the strict letter of the law should guide the Court in resolving this matter. Specifically, Ms. Gibson explains that she simply made an honest mistake in attempting to comply with Indiana’s ever-evolving tax laws and that she should not be penalized for that mistake. * * *
Ms. Gibson’s situation reflects some of the challenges Indiana citizens have in understanding the changes to, and complexities of, our tax system. While the Court is sympathetic to Ms. Gibson’s plight, it must apply the laws as they are written. See Scopelite v. Indiana Dep’t of Local Gov’t Fin., 939 N.E.2d 1138, 1144 (Ind. Tax Ct. 2010) (stating that the Court will not read provisions into statutes where they do not exist) (citation omitted). Furthermore, it is a well-established principle that courts of equity aid the vigilant, not those who have slept upon their rights. See SMDfund, Inc. v. Fort Wayne-Allen Cnty. Airport Auth., 831 N.E.2d 725, 729 (Ind. 2005), cert. denied. Therefore, the Court must affirm the Department’s denial of Ms. Gibson’s 2007 refund claim because Ms. Gibson has not shown that the refund claim was timely filed or that her delayed filing was excusable.
Ind. courts - Indianapolis Star endorses Justice David
Today's Indianapolis Star editorial section contains an editorial endorsing the retention of Supreme Court Justice Steven David, along with two letters that are not so enthusiastic. From the editorial:
Retention votes for Indiana appellate jurists have been ho-hum affairs over the four decades of their existence, with rare controversy and always a majority of "yes" votes.
This Tuesday may be an exception, at least in terms of the heat level.
Some residents are pushing for the ouster of Supreme Court Justice Steven David on the basis of a single act: his authorship of a 2011 ruling in which the court said, by a 3-2 vote, that there is no right to forcibly resist police who illegally enter one's home.
Seen by many as an attempt to subvert the Fourth Amendment to the U.S. Constitution, the decision sparked demonstrations, death threats against justices, a plea for reconsideration from the state attorney general and passage of a sweeping new law that some fear has put police in danger.
The anti-retention campaign, whose extent is difficult to measure, continues that fallout.
Is it justified? By no means.
First, the court clarified the ruling to the satisfaction of Attorney General Greg Zoeller, emphasizing it meant not to abridge rights but rather to define reasonable ways of redressing their violation.
Second, it's one case. As leaders in the Indiana State Bar Association point out, David has taken part in scores of cases during his two years as a justice and has been highly active in community outreach. A survey of attorneys by the association found more than 80 percent supporting his retention, a similar figure to those enjoyed by the others on the ballot, Justice Robert Rucker and four Court of Appeals judges.
In a public letter praising David as a "veritable workhorse" and a "fierce defender of the rule of law," outgoing Bar Association President C. Erik Chickedantz wrote: "Punishing a judge over a single decision . . . as opposed to looking at the whole picture of a judge's service lowers the status of the judicial process and can send a chilling message to other justices and judges. Hoosiers deserve better."
He's right. Hoosiers deserve the opportunity to hold judges accountable at the polls, but they have the obligation to know the history behind the names and the complexities of provocative decisions. In this instance, a retention vote is interesting for the wrong reasons. David merits a "yes" -- as does Justice Rucker.
Vote to retain Rucker, but not David (link)
In addition to selecting politicos, the upcoming 2012 election allows Hoosiers to decide on the retention or dismissal of two of Indiana’s Supreme Court justices. This is our chance to vote our displeasure over the controversial Indiana Supreme Court ruling in Barnes v. State of Indiana.
The first decision is to retain or dismiss Justice Steven David. David wrote the majority opinion in the case, which said Hoosiers could not physically resist warrantless searches instigated by law enforcement. Citizens were instructed not to resist the police intrusion but to seek legal recourse after the fact. This decision rewrites the Fourth Amendment to the U.S. Constitution, as well as common law dating back to the Magna Carta in 1215. I suggest we dismiss David and his way of thinking.
The second decision is to retain or dismiss Justice Robert Rucker. Rucker wrote the minority opinion that opposed unwarranted searches based on our guarantees of the Fourth Amendment and common law. I suggest we retain Justice Robert Rucker because he understands the significance of search warrants and the U.S. Bill of Rights.
T. Kim Greeman
Few lawyers responded, so results are dubious (link)
Joel Schumm’s Oct. 30 My View, “Don’t base judicial vote on a single case,” began by saying it was remarkable that 80 percent of the lawyers responding to the State Bar survey supported retention. In closing, he called this the vast majority of State Bar members.
Only 15 percent of the members responded to the survey after four attempts, representing less than 8 percent of the active lawyers in the state. About 6 percent (1,100) voted yes. One or two cheerleaders broadcasting emails might have generated that, or much of it, for a given judge.
Attorney at law, Indianapolis
Ind. Gov't. - "Measure to prevent fraud at polls worries Elkhart voters"
Angelle Barbazon and Tim Vandenack report today in the Elkhart Truth:
The Elkhart County Clerk’s Office has received several complaints in the past couple of weeks about a new step poll workers are taking to avoid voter fraud before Election Day.ILB: But you will also need identification to receive a "identification card" at the BMV. According to the BMV, the most common documents that you can use to prove your identity include an original or certified copy of your birth certificate, or a U.S. passport.
Eunice Worden, who lives in the Dunlap area, was taken aback last week at an early voting site in Elkhart when a poll worker asked for the last four digits of her social security number, adding that providing the information was optional.
“It caught me off guard because there has been so much on the news about voter suppression,” Worden said, adding that her daughter had a similar experience.
A change in legislation now requires poll workers to ask for social security number information, an extra measure county clerk Wendy Hudson said the government is taking to prevent voter fraud.
“We have to ask for it and tell voters it’s optional to answer, but the voters do not have to provide the information,” Hudson explained.
Still, Worden said the new rule does not make sense.
“My question is, if it didn’t make any difference whether you gave them your social security four-digit number or not, why ask,” Worden wonders.
At the polls, voters must present an identification card issued by the state of Indiana or the U.S. government that includes their name and photo. The card must be current or expired after Nov. 2, 2010. Other common forms of identification accepted at voting sites include military IDs, state school IDs and passports as long as they meet the four standards regarding identification cards.
Ind. Courts - More on "ACLU of Indiana Challenges Marion County Judicial Election System"
You will see 20 candidates on the ballot for Marion County judges when you vote Tuesday, but it won’t matter who you vote for — all the candidates will win.The story continues:
State law allows political parties, not voters, to determine who is selected as a Superior Court judge in Marion County before the general election occurs.
Now, that law is being challenged. * * *
The ACLU argues the law leaves most voters out of the election process.
To some legal experts and political party members, however, the law helps maintain bipartisanship and prevents voters from having to choose from 20 candidates they know little about.
The law, passed in 2006, gives Marion County a unique system for electing Superior Court judges, who hear the majority of the county’s criminal and civil cases.
During a primary election, according to the law, the Democratic and Republican parties nominate the same number of Superior Court judicial candidates (in this case, 10 each). These two groups add together to match the total number of judicial seats available in the general election (in this case, 20). In other words, because the number of candidates does not exceed the number of available seats, a candidate who wins in May can't lose in November, unless a third-party candidate runs and wins.
This essentially makes voting on Election Day irrelevant, unlike during the primary when individual votes help determine a winner.
The law is the only one of its kind in Indiana, and possibly the nation, said Joel Schumm, a professor at Indiana University’s Robert H. McKinney School of Law who teaches seminars each spring on how judges are appointed. The ACLU lawsuit raises serious questions, he said.
“Definitely, the lawsuit makes a valid point,” he said. “And it’s certainly a flawed process.”
But, Schumm added, the process in Marion County also works for several reasons. Very few voters know the judges in a county as big as Marion, as opposed to a small town where residents may know judges personally or have appeared before them. This, Schumm said, makes residents in a general election more likely to vote based on political party affiliations.
If the Democratic Party is doing well nationally, voters often are more likely to vote for Democratic judges. What it means, Schumm said, is good judges sometimes get kicked out of office, not for their performance but because voters don’t know anything about the judge and are just voting based on political party affiliations.
That’s why changing the current system could create problems, Schumm said.
“As flawed as this process may be,” he said, “there’s a possibility the cure may be worse than the disease.”
Local political party officials say the law prevents confusion among voters.
“It’s difficult for the general public to go through there and to differentiate if you have 20 candidates,” said Ed Treacy, chairman of the Marion County Democratic Party. The law also exists to limit partisanship in the court system, so judges aren’t “playing politics” with each other, Treacy said.
Judges and officials like Treacy declined to comment specifically about the lawsuit. But they admit there are pros and cons with every system.
Tim Oakes, a judge in the civil division of the Marion Superior Court, said that changing an election system always brings potential issues for one side. “One guy’s way,” he said, “is another guy’s problem.”
But by and large, he said, the current system has been successful. He said he wasn’t sure how voters could be more involved, given that they can already vote in the primary election.
“It has worked, and it’s worked very well,” Oakes said. “And probably as well as any other system.”
Another method of appointing judges involves having an independent commission, of lawyers and others, interview candidates and nominate them to a governor. The governor then determines whom he or she wants. This is how judges in the Indiana Court of Appeals are appointed.ILB: That is also how Supreme Court Justices are appointed.
Two Indiana counties, St. Joseph and Lake, have similar systems involving judicial nominating commissions for selection of their Superior Court judges. See IC 33-33-71-29 et seq. and IC 33-33-45-28 et seq.
[More] WSJ Law Blog has a story today about the law suit, unfortunately referencing what must be a 93rd Indiana county: "Merion."