The Indiana Law Blog: January 28, 2013 Archives

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Monday, January 28, 2013

Ind. Decisions - Transfer list for week ending January 25, 2013

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the January 11, 2013 list.]

Here is the Clerk's transfer list for the week ending Friday, January 25, 2013. It is one page (and 12 cases) long.

One transfer was granted last week:

Carlin Iltzsch v. State of Indiana - transfer was granted, with opinion, on Jan. 24, 2013. See the ILB post.

Posted by Marcia Oddi on Monday, January 28, 2013
Posted to Indiana Transfer Lists

Ind. Law - Daniels replaces long-time Purdue attorneys with his former chief counsel

Posted a few minutes ago by the online Lafayette Journal Courier:

Purdue President Mitch Daniels today announced changes to the university’s legal counsel.

Starting Feb. 1, Steve Schultz will join Purdue in the position of legal counsel. He will manage the legal function and oversee the delivery of legal services to the university, as well as perform such professional services as may be requested by the president and the board of trustees, according to a memo from Daniels.

Schultz will report directly to the president and to the board of trustees. His appointment will be formally ratified by trustees at the Feb. 8 meeting.

Schultz is an Indianapolis native and was Daniels’ first chief counsel when he was governor. * * *

The role of lead counsel to the university has historically been filled by members of the firm of Stuart & Branigin. * * *

Daniels thanked Stuart & Branigin for their longstanding service to the university.

Posted by Marcia Oddi on Monday, January 28, 2013
Posted to Indiana Law

Ind. Law - Bills of interest to the judiciary heard in committee during Week 3 of the General Assembly

Here is the third weekly installment of the Indiana Courts' Legislative Update for the 2013 legislative session. A number of bills of interest were considered in committee last week ...

Posted by Marcia Oddi on Monday, January 28, 2013
Posted to Indiana Courts

Ind. Courts - Kansas legislature may consider changes to its Missouri Plan-type method of judicial selection

John Hanna of the AP has a long analysis today, here as published in the Columbus Republic, headed "GOP conservatives push for overhaul of Kan. judicial selection but face big obstacle." A few quotes from the lengthy report:

TOPEKA, Kansas — Conservative Republican legislators are pushing aggressively for an overhaul of how Kansas fills vacancies on its two highest courts, but they face significant obstacles in getting a proposed amendment to the state constitution on the ballot.

Some GOP lawmakers have argued for almost a decade that the current system of having an attorney-led nominating commission screen applications for the state Court of Appeals and Supreme Court is biased against conservatives. They've been frustrated with court decisions ordering the state to increase spending on public schools, and abortion opponents view the courts as too liberal on that issue. Conservative Republican Gov. Sam Brownback also is pushing for change.

What about Indiana? In Indiana two proposed constitutional amendments, SJR 6 (Sen. Delph) and SJR 19 (Sen. Young), have been introduced.

SJR 6 Digest: Supreme court and court of appeals judges. Provides that the governor fills vacancies on the supreme court and the court of appeals, subject to the approval of the senate. Provides that a justice of the supreme court or judge of the court of appeals is retained in office only if the justice or judge receives at least 67% of the total number of votes cast on the question of retention of the justice or judge. Provides that a law, judicial rule, decree, or order may not abridge the freedom of a judge, lawyer, candidate for judicial office, or any other person from: (1) speaking, writing, or otherwise expressing the person's views freely regarding a political issue, political party, or candidate for office, including a candidate for a judicial office; or (2) making a donation of money, services, or property to a political party or a candidate for office, including a candidate for a judicial office. Makes stylistic changes.

SJR 19 Digest: Selection of justices and appellate court judges. Renames the judicial nominating commission as the commission on judicial nominations and qualifications. Provides that one commission member is selected by attorneys licensed in Indiana, one commission member is appointed by the speaker of the house of representatives, and one commission member is appointed by the president pro tempore of the senate. Requires that at least one commission member appointed by the governor must be an attorney. Prohibits a person who is a lobbyist from serving on the commission. Provides for the governor to fill a vacancy on the supreme court or the court of appeals from nominees recommended by the commission, subject to confirmation by the senate. Provides that a justice of the supreme court and a judge of the court of appeals serves until July 1 of the tenth year after the justice's or judge's appointment is confirmed by the senate or the justice's or judge's retention in office is confirmed by the senate. Provides that if a justice or judge wants to serve a new term, the justice or judge must apply to the senate for retention. Specifies that a judge or justice will be retained, unless: (1) the judge or justice does not apply to the senate for retention; or (2) at least 60% of the members of the senate vote against retention. Amends the provisions concerning impeachment proceedings for a justice or judge. Provides a transition for justices and judges serving at the time of the adoption of these amendments to the constitution. This proposed amendment has not been previously agreed to by a general assembly.

Posted by Marcia Oddi on Monday, January 28, 2013
Posted to Indiana Courts

Law - "R-Rated Saginaw Case Raises Question Of Efficacy Of Sealing Record In The Age of Internet Search Engines"

Good question raised by this post in the SBMBlog.

Posted by Marcia Oddi on Monday, January 28, 2013
Posted to General Law Related

Ind. Gov't. - Replace "Regulated Occupations Evaluation Committee" (ROEC) with "Eliminate, Reduce, and Streamline Employee Regulation Committee" (ERASER)?

The ILB had a number of posts last year under the heading "Hairdressers may have killed bill that would eliminate licensing." From the Jan. 29, 2012 entry:

This Jan. 26th 2012 ILB entry pointed out that this review group is not an interim committee, but an independent, permanent, staffed, Regulated Occupations Evaluation Committee (ROEC), created by the General Assembly in 2010 to review and evaluate each regulated occupation at least every seven years.

In the past the General Assembly has enacted similar laws providing that not only state agency rules, but state agency programs and even the agencies themselves will expire unless they are readopted every seven years. These laws are generally impractical to implement in practice (for instance, many environmental rules are amended continually, so how do you determine review dates?) and review quickly becomes cursory, pushed-forward, or worse.

"Or worse" happened last year with the state's massive FSSA, which was allowed to go out of existence by oversight. There were many stories about that at the time. But as the ILB pointed in this July 10, 2011 entry:
Four years ago, at the end of 2007, the very same FSSA laws expired and apparently no one noticed! There was no statutory basis for the FSSA for months, until the laws were restored, retroactively, by actions of the 2008 General Assembly.
With this newest, 2010 law, at least the agencies do not expire automatically. But the legislature has already lost interest, while the law will continue to require review and action. Next year, the committee's recommendations re real estate, auctioneer, and plumbing occupation requirements, to name only a few, will be before the General Assembly. And the following year, a new group, etc. As the FWJG opines today: "[L]awmakers really need to decide whether the committee it created should continue evaluating all of the state’s 35 licensing boards." Or is the 2010 review law itself a waste of time and money?

This year a bill has been introduced (SB 520) to repeal IC 25-1-16, the current "Regulated Occupations Evaluation Committee" (ROEC), and replace it with the "Eliminate, Reduce, and Streamline Employee Regulation Committee" (ERASER).

Here is the current committee's webpage, and its schedule of upcoming meetings. These minutes from its most recent meeting give a good idea of what it is about.

Posted by Marcia Oddi on Monday, January 28, 2013
Posted to Indiana Government

Ind. Courts - A Spike in Supreme Court Oral Arguments on Whether to Grant Transfer (But Only in Criminal Cases)

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

In recent months the Court’s oral argument schedule seems especially full, usually with three arguments scheduled each Thursday. The increase is explained in large part by a spike in oral arguments in criminal cases in which the Court has not yet decided whether to grant transfer.

For those who do criminal appellate work, the odds of appearing before the Indiana Supreme Court for oral argument have increased considerably in recent months. During the three-year period from July 1, 2008 to June 30, 2011 — the most recent period addressed in the Court’s annual reports - the Court heard oral argument in a total of only seven criminal cases in which transfer is pending.

In contrast, in just a four-month period, from December 2012 through March 2013, the Court heard or will hear oral argument in eight criminal cases in which a petition to transfer is pending:

Hartman (12/7): No decision yet on Defendant’s petition to transfer
Palilonis (12/20): Defendant’s petition denied 3-2, with CJ Dickson and Justice Rush voting to grant
McWhorter (1/3): State’s petition granted
K.W. (1/10): State’s petition granted
McCullough (2/7)
Peters (2/7)
Gulzar (3/14)
Adams (3/28)

In contrast, the Court heard oral argument regarding a pending civil transfer petition an average of five times each year during the same three-year period, but in the most recent four months scheduled argument in just one civil case: Pine v. Stirling Clinic, which was argued January 17. (Transfer was denied 3-2, with CJ Dickson and Justice Rucker voting to grant.)

Transfer pending cases are — or at least have been — a small part of the Court’s oral argument docket. The Indiana Supreme Court generally discusses petitions to transfer in its weekly conference, denies transfer by order in about 90% of cases, issues an order granting transfer in just under 10% of cases , and schedules oral argument in the vast majority of those granted cases.* (A few seemingly straightforward cases are decided without oral argument, such as the recent per curiam opinions in Iltzsch and Kucholick, and Justice Rucker’s opinion in Kimbrough.)

Scheduling cases for oral argument before deciding whether to grant transfer offers some distinct advantages. First, the additional time and scrutiny from oral argument on the front end will likely reduce the number of cases requiring a post-argument order finding that transfer was improvidently granted.

Second, by waiting to grant transfer, Court of Appeals’ precedent of broad state-wide impact can remain intact. In Joey Jennings v. State, the most important misdemeanor sentencing case in memory, I included the following in an amicus brief filed on behalf of the Marion County Public Defender Agency:

II. Transfer is more appropriately addressed after hearing oral argument and in conjunction with an opinion on the merits.
Although trial courts are not uniformly following the Court of Appeals’ opinion in Jennings, many have changed their practices to conform. A grant of transfer will likely lead most, if not all, to return immediately to the pre-Jennings approach, even though the ultimate resolution of the issue will not be known until an opinion is issued by this Court.
Concerns for judicial economy and continuity of precedent counsel against an immediate grant of transfer. Postponing the grant of transfer until oral argument is held or an opinion is issued will minimize the inconsistency of courts flipping back and forth between approaches and mitigate the number of appeals pursued until the issue is ultimately resolved.

There, the Court scheduled the case for oral argument without granting transfer but then promptly granted transfer after the argument, suggesting the issue will not end well for defendants.

In short, the increased number of arguments in transfer pending cases strikes me as a positive trend. The stark contrast between arguments in criminal and civil cases, however, remains a bit of a surprise and mystery.
_____________________
*Indiana Supreme Court practice differs from U.S. Supreme Court practice. Although both courts consider petitions for discretionary review at a weekly conference, the similarity ends there. When the U.S. Supreme Court grants certiorari, parties are required to file briefs on the merits in the intervening months before oral argument is held. In contrast, no additional merits briefing is sought or permitted by the Indiana Supreme Court. Moreover, a grant of transfer immediately and automatically vacates a Court of Appeals’ opinion under Appellate Rule 58(A), and thus the timing of the grant is more significant than the timing of a certiorari grant. Transfer is granted after the conference discussion in most cases, although grants may also occur after oral argument in cases like those discussed above or simultaneously with the issuance of an opinion, likely where the justices were initially divided about whether to take the case or how to resolve it.

Posted by Marcia Oddi on Monday, January 28, 2013
Posted to Indiana Courts | Schumm - Commentary

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

From Sunday, January 27, 2013:

From Saturday, January 26, 2013:

Posted by Marcia Oddi on Monday, January 28, 2013
Posted to Catch-up

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of (1/28/13):

Thursday, January 31st

9:00 AM - John W. Schoettmer, et al. v. Jolene Wright, et al. (49S04-1210-CT-607) - Following an automobile collision between Schoettmer and an employee of South Central Community Action Program, Inc., Schoettmer and the defendants’ insurer engaged in settlement negotiations that ultimately proved unsuccessful. Schoettmer did not separately provide notice of his claim to the defendants. After Schoettmer filed suit, the defendants moved for summary judgment based on Schoettmer’s noncompliance with the notice provisions of the Tort Claims Act. The trial court granted summary judgment to the defendants, and a divided panel of the Court of Appeals affirmed. Schoettmer v. Wright, 971 N.E.2d 118 (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 July 13, 2012, 2-1 COA opinion, where the majority wrote: "It is undisputed that, as a designated community action agency, South Central is a political subdivision pursuant to the ITCA. See IC 34-13-3-22. The ITCA bars tort claims against a political subdivision unless notice of the claim is filed with the governing body of that political subdivision within 180 days after the loss occurs.".
9:45 AM - State of Indiana v. Russell Oney (49S05-1212-CR-668) - In 2002, Oney pleaded guilty to being an habitual traffic violator (“HTV”). Later, one of the three underlying convictions was set aside. In post-conviction proceedings relating to the 2002 HTV guilty plea, the Marion Superior Court granted Oney’s request to withdraw the guilty plea and set aside the conviction. The Court of Appeals reversed in State v. Oney, 974N.E.2d 1054 (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 is a Sept. 24, 2012 COA opinion where the State presented a single issue for review: whether the trial court erred when it vacated Oney’s 2002 guilty plea to the HTV conviction on the ground that one of the predicate offenses to the HTV conviction had been reversed in post-conviction proceedings with the agreement of the State.
10:30 AM - Darrell Lawrence v. State of Indiana (49S02-1211-CR-620) - Lawrence was charged with possession of cocaine and resisting law enforcement. The Marion Superior Court ruled that the cocaine taken from Lawrence was inadmissible because the police search had been improper, and the trial court dismissed the drug charge. The trial court denied Lawrence’s motion to exclude, as “fruit of the poisonous tree,” evidence of Lawrence’s actions during the search that led to the charge of resisting law enforcement. Lawrence was convicted of resisting, and both sides appealed. The Court of Appeals reversed the conviction in a not-for-publication opinion, concluding that the evidence of resisting should not have been admitted. Lawrence v. State, No. 49A02-1110-CR-938, slip op. (Ind. Ct. App. Aug. 7, 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This is an Aug. 7, 2012 NFP COA opinion, concluding that "the evidence presented by the State to support his conviction for resisting law enforcement was improperly admitted as fruit of the poisonous tree."

Next week's oral arguments before the Supreme Court (week of (2/4/13):

Thursday, February 7th

9:00 AM - Ronnie Jamel Rice v. State of Indiana (45S00-1206-CR-343) - Rice pled guilty to murder, felony murder and robbery. The Lake Superior Court sentenced him to life imprisonment without the possibility of parole for the murder. In this direct appeal, Rice argues the trial court erred when it considered non-statutory aggravators and that the LWOP sentence should be revised pursuant to Appellate Rule 7(B).
9:45 AM - Ian McCullough v. State of Indiana (49A02-1106-PC-571) - After McCullough’s convictions for child molesting were affirmed on direct appeal in McCullough v. State, No. 49A02-0805-CR-411, slip op. (Ind. Ct. App. Jan. 13, 2009), the Marion Superior Court denied post-conviction relief. A divided Court of Appeals affirmed in McCullough v. State, 973 N.E.2d 62 (Ind. Ct. App. 2012), trans. pending. McCullough has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is an August 27, 2012, 2-1 COA opinion.
10:30 AM - Joseph Peters v. State of Indiana (59A01-1108-CR-330) - Peters filed a motion to dismiss child molesting charges on grounds the State had failed to bring him to trial in a timely manner. The Orange Circuit Court denied the motion. The Court of Appeals affirmed on interlocutory appeal in an unpublished decision. Peters v. State, No. 59A01-1108-CR-330, slip op. (Ind. Ct. App. Jul. 31, 2012), trans. pending. Peters has petitioned the Supreme Court to accept jurisdiction over the appeal, asserting that the Court of Appeals erred in its analysis of his rights to a speedy trial under the Sixth Amendment to the U.S. Constitution and Article 1, Section 12 of the Indiana Constitution and Barker v. Wingo, 407 U.S. 514 (1972).
ILB: This is a July 31, 2012, NFP COA opinion.

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 1/28/13):

Wednesday, January 30th

1:30 PM - State of Indiana vs. I. T. (20A03-1202-JV-76) In April 2006, I.T. was adjudicated a delinquent child for committing an act that would constitute class B felony child molesting if committed by an adult. As part of its dispositional order, the juvenile court ordered I.T. to participate in an outpatient juvenile sex-offender treatment program and to undergo polygraph examinations to ensure his compliance with the rules of probation and the treatment program. During one of these polygraph examinations, I.T. admitted to sexually abusing two additional children. Based on these disclosures, police conducted an investigation and obtained a statement from one of the alleged victims implicating I.T. Police also conducted an interview of I.T., during which I.T. again confessed. Based on this information, the State filed an additional delinquency petition against I.T. alleging that he had committed acts that would be class B and class C felony child molesting if committed by an adult. I.T. successfully moved to dismiss the petition on the basis that his statements during the polygraph examination and all evidence derived therefrom were inadmissible. The State now appeals. The Scheduled Panel Members are: Judges Friedlander, Brown and Pyle. [Where: Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 2/4/13):

Thursday, February 7th

11:00 AM - Jerome Kleber vs. Carla (Kleber) Butorac ( 02A03-1207-DR-321) Jerome Kleber and Carla Butorac divorced in 1994, at which time the trial court approved the parties’ marital settlement agreement. Included in the agreement was a provision stating the parties’ intent to provide for their four children’s post-high school education. In 2009, various motions were filed, and the trial court ultimately ordered Kleber to pay Butorac for one-third of the cost of their children’s post-high school education, offset by a retroactive decrease in his child support obligation, and attorney’s fees. On appeal, Kleber argues the trial court erred in ordering him to pay Butorac for one-third of their children’s post-high school education and for her attorney’s fees. The Scheduled Panel Members are: Chief Judge Robb, Judges May and Pyle. [Where: 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.

Posted by Marcia Oddi on Monday, January 28, 2013
Posted to Upcoming Oral Arguments

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