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Wednesday, November 07, 2012

Ind. Courts - Election results for county judicial races

These are from the Secretary of State, and are not officially final. Right now the ones I'm looking at are current as of 3:39 PM.

The Superior Court list includes Marion County. Although none of the Marion County candidates had opposition, there is an interesting variation between the number of votes each candidate received. Right now, for instance, Brown, Linda E. (Democratic) is on top with 194,417 votes; Joven, James A. (Republican) is lowest with 111,288 votes.

Posted by Marcia Oddi on Wednesday, November 07, 2012
Posted to Indiana Courts

Ind. Courts - When will Justice Rush be on the ballot for retention?

The Indiana Constitution provides in part at Art. 7, Sec. 11:

Section 11. Tenure of Justices of Supreme Court and Judges of the Court of Appeals.

A justice of the Supreme Court or Judge of the Court of Appeals shall serve until the next general election following the expiration of two years from the date of appointment, and subject to approval or rejection by the electorate, shall continue to serve for terms of ten years, so long as he retains his office.

Here is the sequence:Or is the "date of appointment" the date she was named to the Court by the Governor? See Art. 7, Section 10:
Section 10. Selection of Justices of the Supreme Court and Judges of the Court of Appeals.

A vacancy in a judicial office in the Supreme Court or Court of Appeals shall be filled by the Governor, without regard to political affiliation, from a list of three nominees presented to him by the judicial nominating commission. If the Governor shall fail to make an appointment from the list within sixty days from the day it is presented to him, the appointment shall be made by the Chief Justice or the acting Chief Justice from the same list.

The ILB is asking because of this note received this morning from a reader, which assumes the former, and writes:
A question.

Justice Rush joins the court in a private ceremony today, Nov. 7. She is then up for retention at the first election two years after her taking her seat. Does the date someone chose to seat her automatically give her a four year term before standing for her first retention vote? The 2014 election date will be Nov. 4. The 2016 election day is Nov. 8.

Nice timing and calendar reading by someone at the Supremes.

[More] From Wikipedia:
Election Day in the United States is the day set by law for the general elections of public officials. It occurs on the Tuesday after the first Monday in November. The earliest possible date is November 2 and the latest possible date is November 8.

Posted by Marcia Oddi on Wednesday, November 07, 2012
Posted to Indiana Courts

Courts - "Efforts to Oust State Supreme Court Justices Fail"

Supplementing this ILB post from earlier today on Iowa, Ashby Jones of the WSJ Law Blog surveys all the major judicial elections. The article begins:

Voting not to retain state Supreme Court justices might someday become a common way that voters showcase their disagreement with justices’ decisions.

But Tuesday’s election results indicate that that day has yet to arrive.

Posted by Marcia Oddi on Wednesday, November 07, 2012
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 2 today (and 13 NFP)

For publication opinions today (2):

In Dennis Larson, Rose Real Estate, Inc., and Diversified Commercial Real Estate v. Peter N. Karagan, a 13-page opinion, Judge May writes:

Peter Karagan sued Dennis Larson, Rose Real Estate, and Diversified Commercial Real Estate (collectively, “Larson”) for breach of contract and conversion. Karagan moved for summary judgment and, after Larson did not respond to the motion, the court granted summary judgment for Karagan. On appeal, Larson argues genuine issues of fact precluded summary judgment and Karagan was not entitled to treble damages. On cross-appeal, Karagan argues he was entitled to prejudgment interest. We affirm in part, reverse in part, and remand. * * *

While a party who does not respond to a motion for summary judgment may be limited to the facts established by the movant’s submissions, such failure to respond does not preclude argument of the relevant law on appeal. Murphy, 930 N.E.2d at 1234.

We must therefore determine whether Karagan’s own designated evidence gives rise to a genuine issue of material fact that precludes summary judgment. It does not. * * *

Larson did not respond and the requests were deemed admitted. In light of those admissions we cannot find error to the extent the trial court determined there was no genuine issue of fact as to the interpretation of the parties’ oral agreement. Summary judgment for Karagan was not error. * * *

As Karagan demonstrated Larson was aware of a high probability its control over Karagan’s property was unauthorized, we cannot say the trial court erred in determining Karagan was entitled to treble damages. * * *

In the case before us the evidence, including Larson’s admissions, established what Karagan’s commission agreement was, the transactions for which he was entitled to commissions, and the amount of the commissions. The trial court therefore should have awarded Karagan prejudgment interest, see, e.g., Noble Roman’s, Inc. v. Ward, 760 N.E.2d 1132, 1140-41 (Ind. Ct. App. 2002) * * * We remand for it to do so.

In Fred C. Feitler, Mary Anna Feitler, and the Feitler Family Trust v. Springfield Enterprises, Inc., J. Laurie Commercial Floors, LLC, d/b/a Jack Lauries Floor Designs, JM Woodworking Co., an 18-page opinion, Judge Bradford writes:
At some point in mid-2010, Fred and Mary Anna Feitler, who were the sole beneficiaries of a land trust that owned real estate in DeKalb County, contracted with Cedar Creek Homes (“CCH”) to build a house on the property. Among other things, the Feitlers and CCH agreed that no mechanic’s lien could attach to the property in the event of nonpayment. CCH engaged several subcontractors, including Springfield Enterprises, J. Laurie Commercial Floors, LLC, and JM Woodworking Company, to work on the house. In February of 2011, before the house was completed, CCH informed all concerned that it was ceasing operations and would not be completing the house. When the dust settled, it appears that all subcontractors except Springfield, J. Laurie, and JM were paid off, and all three ultimately became involved in litigation against the Feitlers and the land trust. J. Laurie and JM argued that they should be able to hold mechanic’s liens against the property in question, while all three former subcontractors contended that they should be able to secure money judgments against the Feitlers. The trial court agreed with all of these arguments and entered summary judgment in favor of all three subcontractors on each of these claims.

On appeal, the Feitlers and the land trust contend that neither J. Laurie nor JM should be able to hold a mechanic’s lien against the real estate and also that the trial court erred in entering summary judgment in favor of the subcontractors on the question of personal liability. We agree that neither J. Laurie nor JM can hold a mechanic’s lien against the real estate and also conclude that the question of the Feitlers’ personal liability to the subcontractors should go to trial. * * *

We conclude that the trial court erred in concluding that JM and J. Laurie could hold mechanic’s liens against the property. In JM’s case, JM failed to issue the mandatory pre-lien notice, and in J. Laurie’s case, J. Laurie is bound by the Agreement. Consequently, we remand with instructions to enter summary judgment in favor of Appellants on these points. We further conclude that the trial court erred in entering summary judgment in favor of all three Appellees on the question of personal liability pursuant to the PLN statute. Concluding that there exists a genuine issue of material fact on whether the Feitlers satisfied the construction contract with CCH before Appellees sent notices of personal liability, we remand for trial on this question.

NFP civil opinions today (5):

In the Matter of C.C., (Minor Child), a Child in Need of Services; M.W., Mother v. Indiana Dept. of Child Services, Child Advocates, Inc. (NFP)

In the Matter of the Parent-Child Rel. of: K.E.G.-H. and D.G. v. The Indiana Dept. of Child Services (NFP)

Cherie Solms v. Michael Solms (NFP)

Brian Gale Waters v. Indiana Real Estate Commission, et al. (NFP)

Thomas Dudley and Barbara Dudley v. The Estate of Earl Studtmann (NFP)

NFP criminal opinions today (8):

Cornelius Hooten v. State of Indiana (NFP)

Cameron Williams v. State of Indiana (NFP)

John Salter v. State of Indiana (NFP)

LaQuinton Leonard v. State of Indiana (NFP)

Brandon Price v. State of Indiana (NFP)

Vincent O. Dates v. State of Indiana (NFP)

James S. Shidler v. State of Indiana (NFP)

Adrian Lotaki v. State of Indiana (NFP)

Posted by Marcia Oddi on Wednesday, November 07, 2012
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court decides one today

In Michael Kucholick v. State of Indiana, a 3-page, 3-1, per curiam opinion which is best read in full for the ratioanle, the Court writes:

After David Lawler obtained a $2,500 civil judgment against Michael Kucholick’s girlfriend for unpaid rent, Kucholick drove by Lawler’s rural home and fired two shots into the home.

Kucholick was charged with one count of criminal recklessness (a Class C felony), Ind. Code § 35-42-2-2, and one count of criminal mischief (a Class B misdemeanor), id. § 35-43-1-2. A jury found Kucholick guilty as charged, and the trial court sentenced Kucholick to an enhanced term of seven years for criminal recklessness (consisting of four years executed in the Department of Correction and three years suspended to probation) and six months for criminal mischief, to be served concurrently. * * *

{T]he Court of Appeals concluded that Kucholick had met his burden of establishing that his sentence was inappropriate. The majority held that Kucholick’s sentence should be revised to an aggregate sentence of four years, consisting of two years executed in a community corrections program and two years suspended to probation. * * *

We grant transfer of jurisdiction and direct revision of Kucholick’s aggregate sentence to an advisory term of four years, all executed. The decision of the Court of Appeals is summarily affirmed in all other respects. See Ind. Appellate Rule 58(A).

Rucker, David and Massa, JJ., concur.
Dickson, C.J., dissents, believing that, while it is correct to grant transfer, the judgment of the trial court should be affirmed.

Posted by Marcia Oddi on Wednesday, November 07, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - A Grant of Transfer is Nine Times More Likely from A Published Court of Appeals’ Opinion

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

One of the Court’s most important functions is deciding which of the approximately 900 Court of Appeals’ cases that come before it each year are worthy of further review. As Justice Rush joins the Court today, its third new member in two years, it is worth considering whether the changing Court membership could include a change in approach to transfer petitions.

As noted in this July 9, 2012 post, the conventional wisdom among Indiana appellate practitioners has long been that it is very unlikely the Indiana Supreme Court will grant transfer in a not-for-publication opinion from the Court of Appeals. Appellate Rule 65(D) makes clear that NFP opinions cannot be cited as precedent in any court, so there is little reason for the Supreme Court to find a compelling reason of state-wide significance worthy of a grant of transfer. See generally App. R. 57(H). The new membership of the Court may mean a shift in that view. During the first three months following the departure of Chief Justice Shepard and appointment of Justice Massa, the Court granted transfer in 21.1% of FP civil cases, 14% of FP criminal cases, 2.4% of NFP civil cases, and 6.2% of NFP criminal cases.

The table below updates that information with data from the beginning of July to November 1, 2012

Indiana Supreme Court Transfer Grants:
July 1-November 1 2012*
  FP Cases NFP Cases FP & NFP
CIVIL 20.7% (12/58) 3.1% (1/32) 14.4% (13/90)
CRIMINAL 10.8% (4/37) 1.5% (2/131) 3.6% (6/168)
ALL CASES 16.8% (16/95) 1.8% (3/163) 7.4% (19/258)

The overall 7.4% grant rate was lower than the 9.6% rate from the previous three months and the three-year average. The disparity between FP and NFP opinions was especially stark. A grant of transfer was nine times more likely from a FP opinion than an NFP opinion.

Within the categories, odds were especially long for NFP criminal cases at 1.5%, which is four times lower than the 6.2% rate from the previous three months. The State sought transfer in one of those cases. The other was a post-conviction case in which the defendant sought transfer. The sole civil NFP transfer case involved grandparent visitation rights.
*Transfer dispositions from Court of Appeals’ cases in which an appeal was dismissed or otherwise resolved by order have been omitted from this analysis. Tax Court cases were also been omitted. This published case was erroneously listed on the transfer list as NFP. Although initially issued as NFP, a motion to publish was granted before transfer proceedings.

Posted by Marcia Oddi on Wednesday, November 07, 2012
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions

Courts - "Voters retain Iowa Justice David Wiggins" [Updated]

From the DesMoines Register, Jeff Eckhoff reports:

Voters retained Justice David Wiggins on the Iowa Supreme Court, following a heated campaign to remove him from the bench.

Wiggins, 61, needed a simple majority of votes to stay on high court. With 83 percent of Iowa’s 1,689 precincts reported, Wiggins had 54 percent. * * *

A narrow victory for Wiggins immediately raises questions about what will happen in four years when the final three participants in a landmark 2009 court case will face voters. Chief Justice Mark Cady and Justices Daryl Hecht and Brent Appel are up for retention votes in 2016.

Wiggins’ supporters had hoped for a decisive victory that would end political challenges to Iowa judges.

Wiggins was the fourth Iowa Supreme Court justice to stand for a retention vote since seven justices unanimously ruled to legalize same-sex marriage in 2009.

The three former justices — Marsha Ternus, David Baker and Michael Streit — were ousted in 2010 after socially conservative Iowans, backed by cash from out-of-state conservative groups, successfully convinced voters that the same-sex marriage decision was grounds for dismissal. It was the first time since 1962, when Iowa adopted the merit-selection process, that a justice was not retained.

ILB observation: The clue to the answer to "what will happen in four years when the final three participants in a landmark 2009 court case will face voters" may perhaps be found in these Huffington Post interactive results from four states where gay marriage was on the ballot yesterday. They include another midwest state, Minnesota, where voters failed to enact a constitutional amendment to deny same-sex couples the right to marry. By 2016 perhaps this attitudinal change will have reached even Indiana.

[Updated at 10:45 AM] See also this long WSJ article by Geoffrey A. Fowler this morning headed "Gay Marriage Gets First Ballot Wins." A few quotes:

Americans for the first time approved gay marriage at the ballot box on Tuesday, pointing to changing attitudes on the divisive issue.

In Maine and Maryland, voters approved ballot initiatives to begin allowing same-sex unions. Those wins mark a first for a cause that had previously been rejected by voters in more than 30 states, including as recently as 2009 in Maine.

And in Minnesota, where gay marriage is already not allowed, voters declined to back an initiative that would enshrine in the state's constitution a definition of marriage permitting only a union between a man and woman.

In Washington state, where voters also weighed an initiative to legalize gay marriage, the vote count was expected to stretch on for days. With half of the vote counted as of 3 a.m. Eastern time, nearly 52% supported the idea.

Posted by Marcia Oddi on Wednesday, November 07, 2012
Posted to Courts in general

Vacancy #2 on Supreme Court 2012 - Loretta Rush to join Supreme Court today [Updated]

From the AP:

Tippecanoe County Judge Loretta Rush is scheduled to take the oath of office Wednesday during a private ceremony administered by Chief Justice Brent Dickson. She'll become Indiana's first female Supreme Court justice since Myra Selby stepped down in 1999 after five years on the court. Selby was Indiana's first woman justice.
[Updated] "Outgoing Tippecanoe judge to be sworn in today as Indiana Supreme Court justice," was the headline to this story by Sophia Voravong this morning in the Lafayette Journal Courier.

Posted by Marcia Oddi on Wednesday, November 07, 2012
Posted to Vacancy #2 on Supreme Court 2012

Ind. Decisions - Supreme Court decided a second case late on Monday, Nov. 5th

In Elmer J. Bailey v. State of Indiana, an 18-page, 4-0 opinion, Justice Massa writes:

When a husband shoves his wife and pokes her in the forehead repeatedly, causing her pain, is that pain alone sufficient evidence to prove the “bodily injury” element of the husband’s conviction for domestic battery? One panel of the Indiana Court of Appeals thought not, but we disagree. * * *

At his bench trial, the only evidence put forth by the State in support of either charge was Farrenquai’s testimony. Elmer denied putting his hands on Farrenquai in any way and specifically denied poking her in the forehead and shoving her. The judge found Elmer guilty of domestic battery and sentenced him to two years in prison.

Elmer appealed, and the Court of Appeals reversed in an unpublished decision. Bailey v. State (Ind. Ct. App. Feb. 3, 2012). The court first held that, in order for Farrenquai to have suffered “bodily injury” sufficient to justify Elmer’s conviction, her pain “must be sufficient to rise to a level of ‘impairment of physical condition.’” Id. at 7 (quoting Ind. Code § 35-41-1-4 (2008) (recodified at § 35-31.5-2-29) (2012)).Id. It then found that Farrenquai’s testimony was insufficient evidence of this requirement. Id. at 9.5

Six days later, a different panel of the Court of Appeals presented a different view of what level of pain constitutes “bodily injury” under Indiana’s criminal provisions, this time in a published decision. Toney v. State, 961 N.E.2d 57, 59 (Ind. Ct. App. 2012). Because “bodily injury” is a concept that arises in a number of ways throughout Indiana’s criminal code, we granted transfer in Bailey to clarify its meaning, thereby vacating the unpublished decision of the Court of Appeals. * * *

Our holding today settles a question of statutory interpretation about which reasonable minds can differ. We choose this approach, in part, because we believe the alternative—requiring physical pain to rise to a particular level of severity before it constitutes an impairment of physical condition—could bring uncertainty to our relatively straightforward statutory structure. Indeed, the holding below does not define the level of pain needed to support the enhancement; instead, it surveys other Indiana cases where the pain was more obviously severe and finds Farrenquai’s lacking in comparison. Bailey, slip op. at 8–9. We think engaging in a case-by-case comparison to determine whether a victim’s pain is sufficiently significant creates unnecessary challenges not required by the statute. * * *

We do acknowledge that our approach—that a defendant commits a battery at his peril; that any degree of physical pain may constitute a bodily injury and thus enhance punishment—may raise the specter of witness coaching, whereby a victim is encouraged to say “it hurt” when, in actuality, it did not. Or that a victim may simply claim pain to enhance a charge against a defendant—a particular danger in the arena of domestic violence, where there often can only be two witnesses (the accused and the accuser), the disputes are emotionally charged and deeply personal, and trials can thus literally boil down to a heated “he said/she said.” But those are challenges of witness credibility, not statutory construction, and they are not new to criminal litigation. They are largely addressed through zealous advocacy and effective cross-examination.

Posted by Marcia Oddi on Wednesday, November 07, 2012
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Unofficial results of Supreme and Appellate retention votes

Here are the results from the SOS site, last updated November 7, 2012 (02:31 AM).

District Question Yes No
Statewide Shall Justice Steven H. David be retained in office? 1019186   459691  
Shall Justice Robert D. Rucker be retained in office? 1044525   418296  

Total vote for J. David - 1,478,877. % YES = 68.9%

Total vote for J. Rucker - 1,462,821. % YES = 71.4%

Compare these with this Table of Indiana Supreme Court Retention Votes from prior years. J. Rucker's 71.4% is topped only by J. Sullivan's 72.6% in 2006. J. David's 68.9% bests CJ Shepard's 68.2% in 2008.

In the Court of Appeals table that follows, remember that the 5th District encompasses the entire state.

District Question Yes No
First District Shall Judge John G. Baker be retained in office? 371245   143814  
Third District Shall Judge Michael P. Barnes be retained in office? 311698   114582  
Shall Judge Paul D. Mathias be retained in office? 312352   112576  
Fifth District Shall Judge Nancy H. Vaidik be retained in office? 1082600   386626  

Posted by Marcia Oddi on Wednesday, November 07, 2012
Posted to Indiana Courts