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Thursday, January 03, 2013

Ind. Courts - Here is how CJ Dickson closed the oral argument this morning

As I promised this morning, I now have Chief Justice Dickson's closing words at the conclusion of the oral argument in Berry v. Crawford:

If it would be at all possible for the political parties in Indiana to set a national example of cooperation this might be an ideal opportunity for you, both sides, to solve this matter by compromise and we encourage that to be considered.
Earlier I posted the response of House Speaker Bosma (here). I thought I'd also posted the response of Rep. Pelath, but apparently I didn't. Here it is:
Indiana House Democratic Leader Scott Pelath from Michigan City has issued the following statement on today's events in the Indiana Supreme Court:

"We're always open to discussing what is best for the institution not just for today, but for twenty years in the future or a hundred years in the future. The structure of government and limitations of its power must endure the political winds and transcend the passions of the moment."

See also Mary Beth Schneider's nearly instantaneous IndyStar summary.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Indiana Courts

Ind. Courts - Even more on: Supreme Court hears legislative pay case this morning

In addition to this official response from House Speaker Bosma, Indiana House Democratic Leader Scott Pelath from Michigan City has issued the following statement on today's events in the Indiana Supreme Court:

"We're always open to discussing what is best for the institution not just for today, but for twenty years in the future or a hundred years in the future. The structure of government and limitations of its power must endure the political winds and transcend the passions of the moment."
See this ILB post from immediately after this morning's oral argument.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Indiana Courts

Ind. Courts - Still more on: Details about the video transcripts project; ILB call for attorney reactions

I've received several good responses already from attorneys who have had experience with one of the three approaches either here or in other states. When I get a couple more, I'll post them.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Indiana Courts

Law - "Highlights From Pa. Gov. Corbett’s Suit Against the NCAA"

Jacob Gershman of the WSJ Law Blog has not only highlights, but a link to the 43-page complaint.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to General Law Related

Ind. Courts - "Price of justice for David Camm: $3.3 million and rising fast"

Really eye-opening story today, illustrating the high costs of the death penalty to one Indiana county, by Grace Schneider of the Louisville Courier-Journal. The lengthy story begins:

The cost of trying David Camm in the murders of his wife and two children already totals $3.3 million — and Floyd County officials estimate a third trial, planned in 2013, could bump up that price tag by another $1 million.

It’s a commitment, they say, that has exacted a heavy toll on the cash-strapped county.

“You lay out a hundred thousand here and a hundred thousand there ... and it’s gone over $3 million plus,” said Ted Heavrin, Floyd’s police chief and the county council president who left office Monday. “That’s a big impact.”

Already, the county, which has a $15.3 million annual budget, has been unable to give raises to employees, except police and firefighters, for six years. And every bridge and road repair “has to be done on an emergency basis,” Heavrin said.

To pay the steady stream of bills, Heavrin said the county has drawn money from riverboat revenue sharing, economic-development income taxes and a rainy-day fund, where $1 million in reserves has been drained to nothing in the last year.

Despite receiving an average of $210,000 annually in payments since 2002 from a state program that reimburses counties for public-defender costs, including Camm-related expenses, it’s nothing compared with the costs incurred through Camm and all of the other criminal cases.

County Commissioner President Steve Bush said this month that his panel may approach Special Judge Jonathan Dartt, who is overseeing the case, to ask for help keeping costs in line.

“You can track back to when this county started to go downhill” financially, Heavrin said. “It started with the Camm trials.”

Later in the story:
With each trial, the price has ticked higher. Floyd spent about $900,000 for the first trial and $1 million for Camm’s second trial. Boney’s trial cost about $80,100, according to county auditor’s records.

The total surged beyond $3 million because of appeals by Camm and Boney and a successful effort in 2011 by Camm’s defense team, led by Indianapolis-based Richard Kammen, to have Henderson removed from the case, according to Floyd records.

The state appeals court ruled that Henderson’s decision to sign a book deal about the case before the appeals were exhausted posed a conflict of interest that warranted his removal. That will only add to the tab for Floyd taxpayers.

For example, the county has paid $27,500 to Indianapolis law firm Frost Brown Todd to defend Henderson against a state ethics complaint filed by Camm’s defense team. Floyd’s commissioners have defended the expense, saying the complaint was a tactic by Camm’s lawyers to remove Henderson.

There is much, much more. Great story.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decides one Indiana case today

In US v. Ramirez-Fuentes (ND Ind., Simon), a 22-page opinion, Circuit Judge Flaum writes:

In August 2010, Juan Ramirez- Fuentes confessed to being responsible for a bag containing 3.1 kilograms of methamphetamine and for two firearms agents found in his brother’s apartment. Ramirez-Fuentes was charged with one count of possession with the intent to distribute five hundred grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and one count of possessing firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). A jury convicted Ramirez-Fuentes of committing the charged crimes, and the district court sentenced him to 295 months’ imprisonment. On appeal, Ramirez-Fuentes argues that the district court erred in admitting testimony from a government expert witness who described the recovered substance as “Mexican methamphetamine,” which he noted is produced by “Mexican nationals,” and who addressed the violence associated with drug trafficking. Ramirez- Fuentes also argues that the district court did not meaningfully consider his argument at sentencing that he would be deported after his release from prison and that the sentence imposed by the district court is substantively unreasonable. For the reasons set forth below, we affirm.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - More on: Details about the video transcripts project; ILB call for attorney reactions

This ILB entry from Sept. 27, 2012 compiled all the information then available to the ILB on the Supreme Court's video transcript pilot project.

Now we have some more information, via this Dec. 20, 2012 article by James Maguire in Indiana Court Times.

The article reports that a study has been conducted:

... to determine the time that transpired between filing of notices of appeal at the trial court level and submission of appellate briefs and transcripts with the appellate courts clerk’s office.

In 2010, there were 2,276 appeals in which a transcript was filed. In those cases, the average number of days was 151 between the filing of a notice of appeal locally and the filing of the briefs and transcript with the appellate clerk. The fewest number of days was 86, and the longest was 229.

Procedures used in other states to help expedite the appellate process and improve record-keeping were reviewed and and three approaches were selected for pilot projects:
  1. in selected courtrooms, use audio/visual recordings on appeal as the record of trial court proceedings in lieu of paper transcripts;
  2. in selected counties, use outside transcript preparation services to expedite transcript preparation for appeals; and
  3. in limited cases, require parties on appeal to file in digital format only their appellate briefs and transcript of proceedings.
Phase 1 is currently being implemented, via the court order discussed in this Sept. 27th ILB entry. From the Court Times article:
All three judges involved in this project have reported favorable responses on this technology from the lawyers appearing before them.

Judge Nancy Boyer presided over a 5-day medical malpractice trial and both plaintiff and defense counsel downloaded each day’s proceedings onto their flash drives. This process took about fifteen minutes. Defense counsel even included parts of their doctor’s videotaped testimony in the presentation software used in final argument.

Judge Mark Stoner also gave high marks on the use of the equipment in his courtroom, with the Public Defender’s Office considering the potential use of the recorded court proceedings for attorney training purposes. Judge Stoner was the first to issue a Notice of Designation of Case as an Audio/Visual Recording Pilot Project Case on September 21, 2012 when a Notice of Appeal was filed in his court.

Justice Loretta Rush reports that none of the attorneys who appeared before her have complained about the system interfering with either their trial preparation or courtroom conduct. She and her court staff are happy with the equipment, and she assigned the primary responsibility to her court administrator for exercising control over the A/V equipment.

Phase 2 of the pilot projects:
The Supreme Court on November 8, 2012 issued its second Order of this three-phase pilot project. The second phase of the pilot project involves using professional transcription providers to prepare expedited (within thirty days) transcripts. AVTRANZ and eScribers are two firms that provide transcription services for courts in Connecticut, Florida, New Hampshire, New York and Vermont. Representatives from these two firms made presentations to Appellate Court Judges, Appellate Court and Clerk staff, and Division staff. Those involved made a unanimous recommendation to use the services of both companies, in selected counties, and in a limited number of cases.

The counties chosen to participate in this phase of the pilot project are Hamilton, Lake, Madison, Tippecanoe, and Vanderburgh. The judges in these counties, or their court administrators, working with the Division, will select four (4) cases on appeal and will assign two (2) cases to each firm for expedited transcript preparation. This effort was designated as the Indiana Court Reporting Pilot Project by Using Professional Transcription Experts on Appeal.

Here is the Nov. 8, 2012 Order.

Phase 3 of the pilot projects:

The third phase of the pilot project concerns reducing the amount of paper involved in each appeal. This will be accomplished by requiring: 1) court reporters to submit transcripts electronically or on CD; 2) parties to submit briefs electronically or on CD; and 3) Clerks to submit records electronically or on CD. The Division will select a trial court from which a small number of appeals will be digitally transmitted to the Indiana Court of Appeals.
The ILB would like to post reactions from attorneys actually impacted by one of these pilot projects. What do you like and what could be improved? I won't post your names, but you will need to let me know who you are. Here is one I've received, for starters:
I love the [proposed] changes. I somehow found myself on the CJA panel in federal court on the [stricken] case, so I am learning all about electronic filing. And I love it.

I just spent $13 and way too much time collating, copying, and sending out a Notice of Appeal that would have taken 15 minutes and zero money to file electronically.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Indiana Courts

Ind. Courts - Still more on: Supreme Court hears legislative pay case this morning

Apparently Rep. Bosma is not considering compomise. Here is his news release:

Speaker Brian C. Bosma (R-Indianapolis) sent out the following statement today regarding the Indiana Supreme Court hearing the arguments of the legislative fines case.

STATEHOUSE – “I appreciate the Attorney General’s continued defense of the separation of powers doctrine clearly mandated by our state’s Constitution, and continue to hold that our court system has no jurisdiction to review or overturn the internal workings of the Indiana General Assembly. While some of our Democrat colleagues remain focused on defending their actions in absenting themselves from their constitutional obligations in 2011 and 2012, I am fully focused on the priorities that lie before us in 2013: continued budget integrity, workforce development for 21st century jobs and strong education opportunities for every Hoosier family.

“I look forward to the Supreme Court confirming the limitation of judicial authority over the legislative branch, and to getting the activities of the 2013 session underway.”

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Indiana Courts

A teaching moment - Even more on: "Is it usual to use 'big poster/charts' in oral arguments?"

Updating the ILB entry from earlier this morning noting that the buckets had been used as physical exhibits in this morning's argument, here now is the answer.

The Supreme Court issued a second order on the buckets, dated Jan. 2, 2013. The order provides:

Oral argument is sct in this appeal for January 3, 20 13. On December 27, 20 12, the appellee, Terex-Telelect, Inc., fi led "Appellee's Motion To Prevent Use of Oversized Exhibits at Oral Argumenl." On December 31, 20l2, the Court issued an order granting that motion and directing the parties not to bring any physical exhibits to the oral argument.

After the issuance of that order, the appellant, Anthony Wade, filed his "Appellant's Response to Motion to Prevent Use of Oversized Exhibits." Pursuant to Appellate Rule 34(8 ), "A response filed after ruling on the motion will automatically be treated as a motion to reconsider[.]"

After further consideration, including review of the appellant's response, which the Court treats as a motion to reconsider, the Court GRANTS reconsideration and DENIES "Appellee's Motion To Prevent Use of Oversized Exhibits at Oral Argument." The Court makes this ruling out of deference to the allegation made in the appellant's reshponse that a complete understanding or the inter-relationship between the exhibits is "absolutely critical to resolution of the specific legal issues before this Court." (Response, p. 2.)

The parties may use physical exhibits during oral argument, consistent with Appellate Rule 53(F), so long as their set-up and removal does not interfere with the other oral arguments being heard on January 3, 2013.

Indeed, a teaching moment.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to A teaching moment

Ind. Decisions - Still more on: District Court issues decision following bench trial in 8th Amendment case

Updating earlier ILB entries, Charles Wilson of the AP reports in a long story that begins:

Indiana has been “deliberately indifferent” to the plight of mentally ill inmates in its state prisons, who amount to nearly a quarter of the system’s population, a federal judge has ruled.

U.S. District Judge Tanya Walton Pratt ruled that the Indiana Department of Correction violated mentally ill prisoners’ constitutional right against cruel and unusual punishment by keeping them separate from other inmates and failing to provide them with adequate treatment.

“The court finds that mentally ill prisoners within the IDOC segregation units are not receiving minimally adequate mental health care in terms of scope, intensity, and duration and the IDOC has been deliberately indifferent,” Pratt wrote.

Pratt did not mandate a remedy in her ruling Monday. Lawyers for both sides are supposed to meet within 45 days to discuss how to correct the problem.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Ind Fed D.Ct. Decisions

Ind. Courts - More on: Supreme Court hears legislative pay case this morning

Updating this ILB entry from earlier this morning re CJ Dickson's call for compromise, Mary Beth Schneider of the Indianapolis Star has now filed a story headed "Chief justice asks compromise in pay fight over Indiana House Democrats' walkout." Some quotes:

After 45 minutes of listening to attorneys argue whether the legislature had the power to seize the pay of lawmakers to collect fines, Chief Justice Brent Dickson had a suggestion: Compromise. * * *

This morning, Solicitor General Tom Fisher began the state’s case by saying that “this case is about hardball politics, pure and simple.”

But Dickson concluded the hearing by saying that if this is about politics, the court is not a political institution.

He suggested that this “might be an ideal opportunity for both sides to get their heads together and resolve this matter” by finding compromise.

Afterward, Mark GiaQuinta, the Fort Wayne attorney representing the House Democratic lawmakers, said that may happen.

“I would never fail to take the advice of the chief justice of the Supreme Court of the State of Indiana,” GiaQuinta said after the hearing.

“I’m going to go right now to discuss with my clients what Chief Justice Dickson just said and I expect I’ll be calling my colleague Mr. Fisher or perhaps (Indiana Attorney General Greg) Zoeller to see if they are of a mind to take Chief Justice Dickson up on his suggestion,” GiaQuinta said. “I didn’t see it coming but I think it was a very appropriate thing for the chief justice to say.”

Fisher said there is “always hope” that the two sides will come together to compromise.

“Certainly you want your elected officials to work together and courts always have an interest in getting parties to come together to resolve their issues amicably,” he said.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Indiana Courts

Environment - "Head of state's environmental agency faces criticism for relationship with coal industry"

That is the headline of a story this morning in the Indianapolis Star, reported by Ryan Sabalow. Some quotes from the very long story:

The top official at Indiana's environmental regulatory agency is again facing criticism for being too chummy with the industry groups he is responsible for policing.

This time, the criticism of Indiana Department of Environmental Management Commissioner Thomas Easterly stems from a presentation he gave in November in Washington, D.C., to policymakers at a conservative lobbying group's forum heavily sponsored by the coal industry.

During his talk, Easterly decried federal air-quality regulations as being overly expensive, impractical and ineffective and said they would all but block the creation of new coal-fired power plants. Environmentalist critics say that during his talk he also appeared to offer pointers on how to sway public opinion, draft legislation and file legal challenges to combat the regulations.

Easterly has defended his actions as being in the best interest of Hoosiers and the environment, but both Indiana and national environmentalists say they are appalled he would advocate so fiercely against the very laws his office is tasked to enforce. * * *

The Indianapolis Star requested an interview with Easterly to discuss his presentation to the American Legislative Exchange Council's "States and Nation Policy Summit." Instead, IDEM forwarded a response Easterly provided to a citizen who contacted the agency, concerned about the speech.

"I want to assure you that whenever I speak on an issue it is to protect both Hoosiers and our environment," Easterly wrote. "In this case, I was talking about three current regulatory efforts that do virtually nothing for the environment but will add a lot of cost to electricity that people use. This cost will reduce people's ability to use their income for important Indiana issues such as education and health care." * * *

Easterly's PowerPoint became fodder for critics last month when it was posted along with other handouts from the presentation on Greenpeace's blog and later on The Nation's website. The Nation is a liberal national news magazine.

Greenpeace described the ALEC forum as an "anti-environmental jamboree" that had been "inundated with coal money."

"Easterly's suggestion of burdening EPA with tasks beyond its responsibility is concerning," Greenpeace wrote, "as is his ongoing campaign to discredit the science of global warming -- something he doesn't have the scientific qualifications to do. To this end, the Indiana regulator fits nicely into the coal industry's long history of denying problems they don't want to be held accountable for and delaying solutions to those problems."

The story links to the ALEC PowerPoint presentation and to this Greenpeace press release. Gov. Pence recently reappointed Easterly to head IDEM, a position he has held for 8 years under Gov. Daniels. Here is a list of earlier ILB entries re ALEC.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Environment | Indiana Government

Courts - "Forced out by age, Justice Marilyn Kelly retiring from Michigan Supreme Court"

Ed White of the AP had this story Dec. 31 in the Detroit Free Press. Several items caught my eye re the differences between the Michigan and Indiana courts:

Michigan Supreme Court Justice Marilyn Kelly leaves office Tuesday after 16 years on the state's top court, much of that time in the minority responding to opinions set by the conservative majority. * * *

Kelly, 74, is not hanging up her black robe by choice. The state Constitution bars judicial candidates over the age of 70 from running for office. That rule was part of the 1908 document and was retained in 1963.

"I would have run again because I'm in good health and I love the job," said Kelly, who was elected in 1996 and re-elected in 2004. "I don't know what conversations took place at the (1961-62) constitutional convention. There wasn't the keen awareness then as there is today about age discrimination."

Indiana appellate judges and justices must retire when they attain the age of 75. All age limits on Indiana trial court judges have been eliminated by the General Assembly in recent years.

Michigan appears to be a political court. For instance, this quote from the story:

Kelly was chief justice from 2009 through 2010, a two-year period when election results temporarily put conservative Republicans in the minority. During that stretch, the court opened the door for more lawsuits by people who were injured in car accidents.

She also was in the majority when the court threw out a 2004 decision that had greatly restricted lawsuits in environmental disputes. But that ruling stood for only four months; Republican justices regained control in the 2010 election and restored the earlier ruling. The GOP still maintains a 4-3 edge.

Of related interest is this article available on SSRN, titled "The Politics of Judicial Selection: The Case of the Michigan Supreme Court." The abstract:
As the debate rages between those who argue that judicial elections are bad for legal justice vis-a-vis those who argue that they are good for democracy, there remains the singularly unique system of judicial selection in Michigan. For its Supreme Court justices, Michigan employs a hybrid electoral system, where candidates are first nominated at political party conventions, after which those candidates run in non-partisan general elections. Moreover, vacancies are filled by interim appointments made by the governor with no outside input or oversight. How did Michigan come to utilize this system which is different from all other states in the country?

In this study we discuss the history behind Michigan’s judicial selection system. We show how Michigan transformed from an appointive system to one that employed partisan elections, and finally to the current hybrid system. The accounts behind the manner in which Michigan selects its Supreme Court justices provide a glimpse into the political forces among political and legal elites, interest groups, and the electorate that have shaped judicial politics within the state. We thus illustrate how the form of judicial selection that is unique to Michigan evolved and has been sustained over time.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Courts in general

A teaching moment - Still more on: "Is it usual to use 'big poster/charts' in oral arguments?"

Updating yesterday's ILB entry, which quoted the Supreme Court's Dec. 31st order:

Both parties are directed not to bring any physical exhibits to the oral argument.
I'm watching the oral argument in Wade v. Terex-Telelect right now. Surprisingly it began with attorney Scott Montross displaying a large chart, and then directing the Court's attention to his law partner Mr. Townsend, who was at the side of the chamber with the actual large bucket liners. Montross explains that for 15 years he has been trying to explain how this bucket setup works.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to A teaching moment

Ind. Courts - Supreme Court hears legislative pay case this morning

At the close of oral argument this morning in the case of Tim Berry, et al. v. William Crawford, re the walkout fines levied on Democrats in 2011 and 2012, where the question involves the separation of powers, Chief Justice Dickson encouraged compromise to the parties, in lieu of pursing hardball politics. I'll try to get his exact words once the archived argument has been posted.

Posted by Marcia Oddi on Thursday, January 03, 2013
Posted to Ind. Sup.Ct. Decisions