The Indiana Law Blog: December 31, 2012 Archives

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Monday, December 31, 2012

Ind. Decisions - "Justices weigh walkout fines levied on Democrats"

The Supreme Court oral argument set for 9 AM on Thursday, Jan. 3rd in the case of Tim Berry, et al. v. William Crawford, et al. (see ILB entry here) is the subject of a brief editorial this morning in the Fort Wayne Journal Gazette:

On Thursday, the Indiana Supreme Court will hear arguments in a case involving the fines Indiana House Speaker Brian Bosma levied on Democrats during an extended 2011 walkout and a shorter walkout in 2012.

The court faces an interesting legal challenge.

Mark GiaQuinta, the Fort Wayne attorney who has represented Democrats, argues that Bosma has no legal authority to order pay to be withheld from lawmakers. Money cannot be withheld, he argues, without a court’s direction.

And he has a good argument.

For example, a debtor cannot simply tell an employer to withhold money from a check; the debtor must go to court and obtain an order to garnishee wages.

Bosma and the state argue that because the legislature and judiciary are separate branches of government, the courts cannot intervene in a legislative matter.

You will be able to watch the oral argument Thursday morning via this link.

Posted by Marcia Oddi on Monday, December 31, 2012
Posted to Upcoming Oral Arguments

Law - More on "Do Rapists Have the Right to Parent Children Conceived in Rape?"

Updating this ILB entry from Dec. 16th, here is Part 2 of Prof. Sherry F. Colb's two-part series in Justica's Verdict.

Posted by Marcia Oddi on Monday, December 31, 2012
Posted to General Law Related

Ind. Courts - "Benjamin Diener, a first-time judge, has taken the bench on Carroll County Circuit Court"

That is the headline from this story yesterday by Caitlin Huston in the Logansport Pharos-Tribune. The long story begins:

DELPHI — After about a week in his new job, Carroll County Circuit Court Judge Benjamin Diener is still getting used to the title of “Your Honor.”

The 32-year-old Republican candidate has been on the bench since Dec. 18 after he won the local primary against an incumbent judge and beat an independent candidate in the general election. A first-time judge, Diener acknowledges that he’ll have to do some learning on the job and work to prove the critics of his young age wrong.

Diener grew up in Monticello and earned his bachelor’s degree from Indiana University and a law degree from Barry University in Florida. He’s been in private practice since 2007 and is licensed in Texas, where he worked for as assistant attorney general for one year, as well as Indiana. He brought his private practice to Monticello in 2009 and later moved to Delphi.

Although he said his time as a private attorney did help, Diener said he feels that there’s not a direct correlation for the skills used as an attorney and as a judge.

“I don’t think anyone is ever fully prepared to change from attorney to judge,” Diener said.

Diener also didn’t have as much time for preparation as he expected. His term was supposed to begin in January, but former Carroll County Circuit Court Judge Donald Currie was called to serve as a Judge Advocate shortly after the primary. Since that time the circuit court has been using senior judges, but the last senior judge wasn’t able to finish out December and agreed to let Diener step in on Dec. 18.

“So that I can kind of get my feet wet,” Diener said.

At the end of January, Diener will attend a judges’ school for all newly elected judges in Indiana. But before then, Diener said he will preside over at least two jury trials and any matters that come up in circuit court, which includes class A, B and C felonies, divorce cases, some juvenile cases and civil filings.

“Between now and then it’s sort of a trial by fire,” Diener said.

Posted by Marcia Oddi on Monday, December 31, 2012
Posted to Indiana Courts

Catch-up: What did you miss over the weekend from the ILB?

Below is the answer to "What did you miss over the weekend from the ILB?

From Sunday, December 30, 2012:

Nothing

From Saturday, December 29, 2012:

Posted by Marcia Oddi on Monday, December 31, 2012
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of (12/31/12):

Thursday, January 3rd

9:00 AM - Tim Berry, et al. v. William Crawford, et al. (49S00-1201-PL-53 & 49S00-1202-PL-76) - This is a consolidated appeal from the trial court’s interlocutory ruling of December 6, 2011, and final judgment of February 6, 2012, pertaining to fines levied by the House of Representatives against members of the House Minority Caucus who absented themselves on certain days during the 2011 and 2012 sessions of the General Assembly. The Supreme Court assumed jurisdiction over these appeals while they were pending in the Court of Appeals, pursuant to Indiana Appellate Rule 56(A).
ILB: The Supreme Court granted transfer on Feb. 8, 2012 and Jan. 27, 2012. For more, see this Jan. 31, 2012 ILB entry.
9:45 AM - Anthony Wade v. Terex-Telelect, Inc. (29S05-1209-CT-557) - Wade was injured in a fall from a utility truck’s aerial passenger bucket and filed this product liability claim against the bucket’s maker, Terex-Telelect; a jury returned a verdict for Terex-Telelect, and the Hamilton Superior Court entered judgment on the verdict. The Court of Appeals reversed and remanded for retrial after concluding that the evidence did not support the trial court’s instruction telling jurors they could presume a defendant is not liable if the defendant proves its product was “state of the art” or complied with applicable governmental regulations. Wade v. Terex-Telelect, Inc. , 966 N.E.2d 186 (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 2-1 April 11, 2012 COA opinion reversing the trial court on a jury instruction in a products liability case.
10:30 AM - Andrew McWhorter v. State of Indiana (33A01-1202-PC-72) - After McWhorter killed a woman and was convicted of voluntary manslaughter, the Henry Superior Court denied post-conviction relief. The Court of Appeals concluded McWhorter’s attorney had been ineffective for failing to object to the voluntary manslaughter instruction, and that double jeopardy considerations precluded McWhorter from being retried for murder or involuntary manslaughter. McWhorter v. State, 970 N.E.2d 770 (Ind. Ct. App. 2012), trans. pending. The State of Indiana has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: See this July 12, 2012 ILB summary of the 12-page COA opinion; the case has not yet been granted transfer.

Next week's oral arguments before the Supreme Court (week of (1/7/13):

Thursday, January 10th

9:00 AM - K.W. v. State of Indiana (49A02-1201-JV-9) - Based on an in-school encounter with a police officer serving as a school liaison officer, K.W. was adjudicated delinquent for an act that would be resisting law enforcement if committed by an adult. The Court of Appeals reversed, holding the officer was not engaged in the execution of the officer’s duties as a law enforcement officer at the time of the encounter. K.W. v. State 976 N.E.2d 61 (Ind. Ct. App. Aug. 28, 2012), trans. pending. The State has petitioned the Supreme Court to accept jurisdiction over the appeal.
9:45 AM - Brad W. Passwater v. State of Indiana (48S05-1210-PC-583) - A jury instruction on the insanity defense, given without objection at Passwater’s 2004 murder trial, stated in part that the defendant could be committed to a facility for a period of “not more than ninety (90) days.” The jury found Passwater guilty but mentally ill and he was sentenced to fifty-five years. The Madison Circuit Court later denied post-conviction relief with respect to the instruction. The Court of Appeals affirmed, citing Georgopolus v. State, 735 N.E.2d 1138 (Ind. 2000), in a memorandum decision, Passwater v. State, No. 48A05-1201-PC-17, slip op. (Ind. Ct. App., Jul. 25, 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a 10-page, July 25, 2012 NFP COA opinion involving PCR, concluding: "Indeed, it would seem that his defense counsel chose a sound strategy in requesting the instruction given the apparent misunderstanding of the consequences expressed by a juror during voir dire. Passwater has not shown any deficient performance by his defense counsel, and, therefore, his claim of ineffective assistance of counsel is unavailing."
10:30 AM - Dennis Jack Horner v. Marcia (Horner) Carter (34S02-1210-DR-582) - Following a hearing on post-dissolution matters, the trial court held among other things that a provision of the parties’ mediated settlement agreement requiring monthly housing payments was in the nature of a property settlement, as opposed to maintenance. In affirming, the Court of Appeals held in part that the trial court erred in excluding evidence of communications made during mediation, which had been offered to prove that a mistake occurred in drafting the agreement, but held further that the exclusion of this evidence was harmless. Horner v. Carter, 969 N.E.2d 111 (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 12-page, June 13, 2012 COA opinion:
Seven years after Dennis Jack Horner (“Husband”) and Marcia (Horner) Carter (“Wife”) reached a mediated settlement agreement during dissolution proceedings, Husband sought to modify the terms of that agreement on the basis of mistake. The trial court denied his request. Husband now appeals, contending that the trial court should have allowed him to offer extrinsic evidence—specifically, communications that occurred during mediation—to show that there was a mistake in the drafting of the agreement. We conclude that Alternative Dispute Resolution Rule 2.11 and Indiana Evidence Rule 408 allow the introduction of mediation communications to establish traditional contract defenses. We also find that the trial court correctly determined that the agreement in this case provided for a property settlement that survived Wife’s remarriage. We affirm.

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 12/31/12):

No oral arguments currently scheduled

Next week's oral arguments before the Court of Appeals (week of 1/7/123):

Wednesday, January 9th

11:00 AM - Virginia E. Alldredge, et al, v. The Good Samaritan Home (82A01-1206-CT-249) Nearly three years after being told that Venita Hargis died from complications of a fall at a nursing home owned and operated by appellee-defendant, The Good Samaritan Home, Inc. (“Good Samaritan”), appellants-plaintiffs Virginia E. Alldredge and Julia A Luker learned that Hargis’s death had actually resulted from another patient attacking her. Twenty-three months later, Alldredge and Luker, as co-personal representatives of Hargis’s estate, filed an action against Good Samaritan under Indiana’s Wrongful Death Statute, Indiana Code section 34-23-1-1. Treating Good Samaritan’s motion to dismiss as a motion for summary judgment, the trial court found that Good Samaritan’s fraudulent concealment had equitably tolled the time by which the complaint needed to be filed, but that the action was nonetheless barred because Alldredge and Luker had failed to file their complaint within a reasonable time. On appeal, Alldredge and Luker argue that the two-year timeframe required by Indiana’s Wrongful Death Statute for the filing of claims is a statute of limitations, not a condition precedent, and that Indiana Code section 34-11-5-1 applies to toll the statute of limitations such that the two years begins when the fraudulent concealment is discovered. Furthermore, Alldredge and Luker argue that public policy considerations require this interpretation because the reasonable time standard used by the trial court violates equal protection. The Scheduled Panel Members are: Judges Baker, Riley and Barnes. [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.