Monday, November 26, 2012
Courts - "On average the Stones older than US Supreme Court"
See the AP story.
Ind. Courts - Use of Notices of Additional Authority
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
Notices of Additional Authority: Is there really no deadline?
According to Appellate Rule 48: “When pertinent and significant authorities come to the attention of a party after the party’s brief or Petition has been filed, or after oral argument but before decision, a party may promptly file with the Clerk a notice of those authorities setting forth the citations. There shall be a reference either to the page of the brief or to a point argued orally to which the citations pertain, with a parenthetical or a single sentence explaining the authority.”
The rule does not specify a deadline.
Last Wednesday’s Court of Appeals’ oral argument in Brewington v. State began with an not-all-that-uncommon scenario. One of the attorneys (a deputy attorney general) had filed a notice of additional authority one week earlier (November 14) and served opposing counsel by mail, which apparently didn’t arrive until two days before the oral argument. The oral argument began with this exchange:
APPELLANT’S COUNSEL: As a preliminary matter, we have filed a motion objecting to the additional citations filed by the State. We didn’t receive them until Monday. We believe they do not conform to the appellate rules of procedure. We have not had a chance to review them, let alone analyze them. It is my understanding that counsel for the State will rely upon those. So, we are at a disadvantage and we think this is an unfair attempt to circumvent the rules. We would like to have some direction from the Court on that point.When is Additional Authority Appropriate?: Bolstering a Claim, not Raising a New Claim
JUDGE BAKER: In that regard, sir, we will have an opportunity to discuss your objection and their submission at a later moment, at which time we will make a declaration. It is the case that we have to be mindful of whatever the status of the law, whomever gives it to us, whether it be you or the Attorney General or one of my colleagues. So--
APPELLANT’S COUNSEL: That’s true, your Honor. But we actually asked for an extended brief and we were denied because there were so many issues raised. And here, he is asking for eleven cases to be cited. They are not new cases. Some of them go back to the 90s. So--
JUDGE BAKER: We are prepared to hear your argument.
JUDGE RILEY: And we haven’t read them probably yet either, because of the late filing.
A Notice of Additional Authority simply supplements an argument with an additional case or other authority that supports an argument already briefed. In Chupp v. State, 830 N.E.2d 119, 126 (Ind. Ct. App. 2005), the court of appeals made clear that Rule 48 cannot be used to
allow a party who failed to present an issue in his appellant’s brief to bypass the general rule that un-raised issues may not be presented for the first time in a reply brief by filing a citation to additional authority. Instead, as we read the Rule, where a party has properly presented an issue, he may supplement his brief by providing citations to additional authority to support the argument previously raised.It’s unclear what was included in the notice in Brewington. The late addition of fourteen new cases, especially some decided well over a decade earlier, makes one wonder why the cases were not included in the party’s brief.
Rule 48 places no limitation on the timing of additional authority. Common sense, professional courtesy, and effective advocacy do. Ideally, counsel will file additional authority shortly after the new authority is issued by a court or discovered by counsel. Diligent appellate counsel will check the websites of the Indiana Supreme Court and Court of Appeals daily for new published opinions that may be relevant to pending cases.
If a case is set for oral argument, as in Brewington, counsel may discover one or more additional cases while preparing for oral argument. Oral arguments are usually scheduled a month or so in advance, so counsel should be able to file a notice well in advance of the argument. (The order setting the Brewington argument was issued three full months before the argument, on August 21.) As highlighted above, if the notice is not filed until a few days before the argument, opposing counsel and the judges may not have an opportunity to review the cases before the argument.
A notice filed the day before an oral argument or, worse yet, the morning of oral argument may not reach the judges before the argument, and the judges and opposing counsel may be understandably frustrated with the late filing. For example, in a 2009 “Appeals on Wheels” argument, an attorney served opposing counsel with a notice immediately before the argument. The notice had been Rotunda filed the previous evening. A member of that panel chastised the late filing because Indiana courts do not practice law by ambush. Because the Brewington notice was filed a week in advance, it did not provoke the same reaction.
Although the appellate rules generally provide for service by first-class mail or personal delivery, counsel filing a time-sensitive motion is certainly free to send a courtesy copy via email as well.
Content of the Notice
A Notice of Additional Authority cannot drone on and on about the importance of a case or other cited authority. Rather, after citing the authority, Rule 48 specifically limits the notice to “a parenthetical or single sentence explaining the authority.” There are certainly creative ways to use punctuation and other devices to craft a lengthy sentence, but it should still be one sentence.
The notice must also include “a reference either to the page of the brief or to a point argued orally to which the citations pertain.” A brief might be twenty pages or longer. It is important to let the court know precisely where and how the additional authority fits.
Ind. Courts - Governor names Tippecanoe Superior Court 3 judge, replacing J. Rush
INDIANAPOLIS (November 26, 2012) – Governor Mitch Daniels today announced the appointment of Faith Graham as judge of the Tippecanoe Superior Court 3. She succeeds Justice Loretta Rush who was appointed by the governor to the Indiana Supreme Court in September.
Graham, of West Point, earned her undergraduate degree from Marian College in 1991 and her law degree from Indiana University Robert H. McKinney School of Law in 1996. She is a juvenile magistrate for the Tippecanoe Superior Court 3. Prior to becoming a magistrate, she was a Tippecanoe County deputy public defender and an adjunct faculty instructor in the criminal justice program at Ivy Tech. Graham is a member of the Tippecanoe County Bar Association, the American Judicature Society and the National Council of Juvenile and Family Court Judges.
Her appointment is effective at a date to be determined.
Courts - "SCOTUS Gives Nod to Citizens Who Record Police, Amidst Reports of Multiple Arrests"
See this post by Martha Neil at the ABAJournal Blog.
Read it in conjunction with this ILB post from May 8, 2012, re the 7th Circuit opinion in ACLU v. Alvarez, written by Circuit Judge Sykes, joined by Judge Hamilton, with Judge Posner dissenting. The SCOTUS today rejected the State of Illinois "plea to ban taping of police in Illinois" - see this Chicago Tribune breaking news report.
Courts - Voters throw out two highly capable Ohio Supreme Court justices, replacing them with " two candidates blessed with Irish names"
Brent Larkin of the Cleveland Plain Dealer wrote in a long column on Nov. 24th that begins:
Greater Cleveland voters have a long history of making big mistakes in judicial elections.Joe Hallett, senior editor at the Columbus Dispatch, has an opinion piece titled "Voters should have more to go on than just names." Some quotes:
But in two contests decided Nov. 6, they outdid themselves.
They did it by ousting two incumbents -- one from each political party -- who were challenged by opponents with credentials so inferior that no rational person could justify the outcome.
But the losses of Cuyahoga County Common Pleas Judge Joan Synenberg and 11th Ohio District Court of Appeals Judge Mary Jane Trapp were only two of a handful of outcomes in judicial races around the state -- including two contests for the Ohio Supreme Court -- that have again intensified calls for changes in the way we select judges.
Leading that charge is none other than the biggest judicial vote-getter in recent state history: Ohio Supreme Court Chief Justice Maureen O'Connor.
To her great credit, O'Connor told me last week that she would begin to seek support for a system under which candidates with superb credentials are appointed to the state's appellate courts and later face retention elections, in which voters would decide whether or not to keep them there. Her merit-selection hybrid proposal would apply only to appellate-level court races, including the Ohio Supreme Court, not to candidates for the Common Pleas or Municipal courts.
O'Connor's idea will face stiff opposition, but critics can fall into one of only two categories: They will either be horribly misinformed or won't really care about the quality of Ohio's judiciary.
The governor, legislature and Ohio State Bar Association should do the right thing and work with the chief justice to implement her idea.
Let's look at the election carnage that led to all this:
For the first time in 40 years, two incumbent Supreme Court justices -- both highly regarded -- lost to less qualified opponents.
Republican Justice Robert Cupp was beaten by a Democrat with a far better ballot name: former appellate Judge William O'Neill. And Justice Yvette McGee Brown, a Democrat, failed to keep her seat as the high court's first black woman, losing to Butler County Common Pleas Judge Sharon Kennedy, a Republican.
Both McGee Brown and Cupp received the state bar association's highest rating of "highly recommended." Kennedy received a "not recommended" and O'Neill a "recommended."
"Both parties lost with kind of their MVPs, most valuable players, good people, good jurists," said O'Connor. "It wasn't a qualifications issue. Democrats respected Bob [Cupp] and Republicans respected Yvette [McGee Brown]. We have to take a long, hard look at how we elect, at the very least, our appellate judges."
Closer to home, what happened was even worse.
In the combined rankings of the four bar associations that rated judicial candidates in Cuyahoga County, Synenberg, a Republican, was one of only two judicial candidates in contested races to score a perfect 4.0. Her opponent, Cassandra Collier-Williams, tallied a lowly 1.75 -- one of the worst ratings of all judicial candidates on the ballot.
Nevertheless, Collier-Williams won by a comfortable margin -- not because she's even half as qualified as Synenberg, but because she has a better ballot name and was endorsed by the local Democratic Party.
[Justices] Cupp and McGee Brown received “highly recommended” ratings from the Ohio State Bar Association. They are members of arguably the best Supreme Court Ohio has had in the past 30 years.
That didn’t matter. On Nov. 6, Ohio voters replaced them with two candidates blessed with Irish names. McGee Brown was defeated by Sharon Kennedy, a Republican domestic-relations judge who was rated “not recommended” by the state bar. Cupp was beaten by Democrat William O’Neill, a former state appellate judge who had been working as an emergency-room nurse.
When the new court is seated in January, it will resemble politicians at a St. Patrick’s Day parade: O’Connor, O’Donnell, O’Neill and Kennedy.
It is unfair to prejudge O’Neill and Kennedy. We can only hope they will be fine justices. But if voters knew anything about McGee Brown and Cupp, they probably would not have replaced them.
And that’s the problem: Voters know virtually nothing about the judges they elect and are left to play the name game. The system limits judges’ ability to campaign, to raise money and even to make statements that might be construed as political. They are not permitted to be identified by party on general election ballots.
In short, we make judges politicians at election time but deny them the crucial opportunities to communicate with voters the way other politicians do.
Ind. Decisions - Court of Appeals issues 0 today (and 12 NFP)
For publication opinions today (0):
NFP civil opinions today (5):
NFP criminal opinions today (7):
Ind. Decisions - SCOTUS today hears Vance v. Ball State University
The question is, who is a supervisor? Here is how SCOTUSBlog's Lyle Denniston's lengthy argument preview begins:
At 11 a.m. [this] Monday, the Supreme Court will hold one hour of oral argument on a case seeking a clear definition of who is a workplace supervisor, under federal anti-discrimination law. The case is Vance v. Ball State University (docket 11-556). Arguing for kitchen employee Maetta Vance will be Daniel R. Ortiz of Charlottesville, Virginia, a University of Virginia law professor. He will have twenty-five minutes at the lectern. Arguing for Ball State University, and also with twenty-five minutes of time, will be Gregory G. Garre of the Washington, D.C., office of Latham & Watkins. Arguing between them with ten minutes of time will be Deputy U.S. Solicitor General Sri Srinivasan. The government supports Vance’s argument about who is a supervisor, but argues that Vance herself does not qualify to make that argument.The case link above leads to all the documents.
This morning Nini Totenberg of NPR featured the case in a story titled "Supreme Court To Look At Who Is A 'Supervisor' In Harassment Cases."
Catch-up: What did you miss over the long Thanksgiving weekend from the ILB?
Below is the answer to "What did you miss over the weekend from the ILB?
From Sunday, November 25, 2012:
- Law - "Kramer.com vs. Kramer.com"
- Courts - "PACER federal court record fees exceed system costs"
- Courts - "Decisions Open Door to Appeals of Plea Bargains "
- Ind. Decisions - More on: Supreme Court hears oral argument in school voucher challenge
- Law - History of U.S. Senate's "Long Slide to Gridwalk" along with Efforts to Remedy
From Saturday, November 24, 2012:
From Friday, November 23, 2012:
- Ind. Courts - More on: Should a highly respected Indiana trial judge, who was a star athlete for Ball State in the late 1970s, preside over a case involving the school?
- Ind. Decisions - Supreme Court hears oral argument in school voucher challenge
Ind. Decisions - Upcoming oral arguments this week and next [Corrected]
This week's oral arguments before the Supreme Court (week of (11/26/12):
- No oral arguments currently scheduled.
Next week's oral arguments before the Supreme Court (week of (12/3/12):
Friday, December 7th
- 9:00 AM - In Re: Visitation of M.L.B.; K.J.R. v. M.A.B. (41S01-1209-MI-556) - One day before granting Stepfather’s petition to adopt Child, the trial court issued an order granting Paternal Grandfather visitation rights as to Child. On Mother’s appeal of the grandparent visitation order, the Court of Appeals affirmed.Matter of Visitation of M.L.B., No. 41A01-1107-MI-285, slip op. (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a June 14, 2012 NFP COA opinion about which the ILB wrote at the time: "This is a 2-1 NFP grandparent visitation rights opinion that might have been classified as 'For Publication' (IMHO).
- 9:45 AM - Brian Scott Hartman v. State of Indiana (68A01-1106-CR-264) - Hartman made incriminating statements while in jail about his involvement with his father’s death. The Randolph Circuit denied Harman’s motion to suppress the statements. The Court of Appeals affirmed in an interlocutory appeal. Hartman v. State, 962 N.E.2d 1273 (Ind. Ct. App. 2012), trans. pending. Hartman has petitioned the Supreme Court to accept jurisdiction over the appeal.
- 10:30 AM - Commissioner of Labor ex rel. Stephen R. Shofstall, et al. v. International Union of Painters and Allied Trades AFL-CIO, CLC District Council 91 (49S02-1205-PL-269) - When three former union employees made claims seeking payment for accrued but unused vacation days, the Marion Superior Court granted the union-employer’s motion for summary judgment. The Court of Appeals reversed. Comm’r of Labor ex rel. Shofstall v. Int’l Union of Painters and Allied Trades, AFL-CIO, CLC Dist. Council 91, 962 N.E.2d 124 (Ind. Ct. App. 2011), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is a 2-1, Dec. 20, 2011 COA opinion reversing the trial court.
[From the dissent] I believe the trial court was correct in all respects and therefore respectfully dissent. I will not undertake a detailed summary of what I perceive to be the fallacies in the Majority’s analysis. It suffices to say that, other than on matters of boilerplate law, my views diverge significantly from those of the Majority on virtually all of the positions adopted in route to its conclusions, up to and including the conclusions themselves.
This week's oral arguments before the Court of Appeals (week of 11/26/12):
Monday, November 26th
- [According to the docket, on Nov. 20th the COA reschedled this oral argument for Dec. 17th at 1:30 PM.] 1:30 PM -
State of Indiana v. Gregory Lagrone ( 49A05-1203-CR-135) - Indianapolis Metropolitan Police Officers received an open parcel containing marijuana from a private parcel delivery company. The officers repackaged the marijuana with a GPS tracking device and parcel wire, affixed the original label addressed to “Michael Davis,” and then conducted a controlled delivery to the address on the shipping label, a hotel. Gregory Lagrone retrieved the parcel from the hotel, and surveillance officers followed him by car to his home. A short time later, the parcel wire activated a monitor with surveillance officers, indicating that the parcel had been opened. The officers then knocked and announced themselves. When no one answered, they entered the home without a warrant due to the risk of destruction of the marijuana. In the subsequent prosecution of Lagrone, the trial court granted his motion to suppress evidence obtained from the warrantless entry of the home. The State appeals. We ordered oral argument to ask the parties to address, in part, the relevance to this case of United States v. Jones, 132 S. Ct. 945 (2012), regarding the constitutionality of attaching a warrantless GPS tracking device to a person’s effects. The Scheduled Panel Members are: Judges Najam, Kirsch and May. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
- 11:00 AM - Secrena D. Erwin v. HSBC Mortgage Services, Inc., et al (32A01-1202-CT-80) - Appellant, Erwin, brought a civil suit against Appellee, HSBC Mortgage Services, (and others) due to the death of her 5 year old daughter in the backyard pool of a foreclosed home owned by Appellee. Appellee was allegedly on notice regarding the condition of the pool and the associated conditions. The trial court granted summary judgment on behalf of all named Appellees. This appeal ensued. The Scheduled Panel Members are: Judges Friedlander, Brown and Pyle. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
- 1:00 PM - David S. Delegrange v. State of Indiana (49A04-1203-CR-144) - David Delagrange appeals his convictions for four counts of Class C felony attempted child exploitation, contending he did not have the intent to create a digitized image of an incident of sexual conduct by a person under eighteen when he, using a camera mounted on his shoe, recorded video of the area beneath the skirt of multiple individuals under the age of eighteen. The Scheduled Panel Members are: Judges Najam, Kirsch and May. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
Monday, December 3rd
- 1:30 PM - Roche Diagnostics Operations, Inc. vs. Marsh Supermarkets, LLC. (29A02-1201-PL-4) -Appellant-Defendant, Roche Diagnostics Operations, Inc. (Roche), appeals the trial court’s denial of its cross-motion for summary judgment and its judgment in favor of Marsh Supermarkets, LLC (Marsh), awarding damages for Roche’s breach of its sublease with Marsh. Roche presents this court with three issues: (1) Whether the trial court erred by denying Roche’s cross-motion for summary judgment by a) declining to find as a matter of law that the language of the sublease granted Roche the right to terminate the sublease if it did not receive a subordination, non-disturbance and attornment agreement (SDNA) by a certain date; or, b) by determining that genuine issues of material fact regarding the parties’ cooperation in obtaining the SNDA precluded summary judgment. (2) Whether the trial court erred in granting judgment to Marsh by determining that Roche’s right to terminate the sublease required reasonable prior notice; 2) that Marsh’s delivery of the SNDA to Roche was effective; 3) that Roche had not fulfilled its obligation to cooperate regarding the SNDA; and 4) that Roche had defaulted under the terms of the sublease. (3) Whether the trial court erred in awarding Marsh damages based upon sublease payments under the entire eighteen year term of the sublease rather than awarding damages in light of Roche’s right of early termination upon the fifth anniversary of the sublease. The Scheduled Panel Members are: Judges Riley, Bailey and Crone. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
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.