« January 28, 2013 | Main | January 30, 2013 »

Tuesday, January 29, 2013

Ind. Courts - "Reflecting on Forty Years of Merit Selection in Indiana"

The most recent issue (Vol. 46, No. 1) of The Indiana Law Review is now online. It covers the presentations at the Indiana Law Review Symposium held earlier this spring at the Robert H. McKinney School of Law: "Reflecting on Forty Years of Merit Selection."

As Prof. Joel Schumm writes in the introductory article:

On April 5, 2012, nearly 200 people gathered in the Wynne Courtroom for a remarkable symposium reflecting on the merit selection 1 of Indiana Supreme Court justices and Court of Appeals’ judges that began with voter approval of a constitutional amendment in 1970. The symposium brought together national and local presenters and attendees from the judiciary, academia, advocacy groups, and the broader bar.

The symposium explored successes and concerns in the initial selection of judges, subsequent retention elections, and the impact of merit selection on the tenure of those judges.

There is much to read here.

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Courts in general | Indiana Courts

Ind. Gov't. - "Bloomington mayor to preside at same-sex weddings as protest" [Updated]

This story, written by Jill Disis, was posted this morning on the IndyStar site. Some quotes:

Bloomington Mayor Mark Kruzan is conducting a wedding ceremony Thursday for more than a dozen LGBT couples, in a move meant to protest a proposed constitutional amendment that would ban same-sex marriage. * * *

Indiana does not currently recognize same-sex unions. A proposal for a constitutional amendment banning such marriages passed both Indiana's House and Senate in 2011.

Some readers may remember that Gavin Newsom, currently Lt. Gov. of California, did something similar in 2004. From Wikipedia:
In 2004, [when he was mayor of San Francisco,] Newsom gained national attention when he directed the San Francisco city-county clerk to issue marriage licenses to same-sex couples, in violation of the current state law. In August 2004, the Supreme Court of California annulled the marriages that Newsom had authorized, as they conflicted with state law at that time. Still, Newsom's unexpected move brought national attention to the issues of gay marriage, solidifying political support for Newsom in San Francisco and in the gay community.
No mention in the Star story of marriage licenses, however.

[Updated at 7:12 PM]
The Bloomington Herald-Times has a longer, more informative story, reported by Jon Blau. A few quotes:
Mayor Mark Kruzan will officiate a symbolic marriage of dozens of gay couples during Bloomington’s PRIDE LGBTQ Film Festival, according to Adam Wason, a spokesperson for the mayor. The event, which will follow film presentations at the Buskirk-Chumley Theater, begins at 10 p.m. Thursday during the opening night of the festival.

“I’m sad that this has to be done symbolically,” Kruzan said. “Years in the future we will look back on this time in our history and this issue and wonder why we would be against equality.”

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Indiana Government

Ind. Decisions - Three interesting opinions today from COA

One, in an issue of first impression, attempts to define what suffices as “reasonably particularity” in a request for public records submitted under the Access to Public Records Act (APRA).

A second affirms the trial court’s denial of Appellant's petition to reduce his Class D felony conviction for operating while intoxicated to a Class A misdemeanor, ruling that "the language used in the statute does not create a right to the reduction of one’s Class D felony conviction to a misdemeanor."

The third is a case where Appellant, who pleaded guilty to selling pirated movies out of his truck, successfully argued that seizure of his truck was not authorized by the forfeiture statute because the pirated movies he sold did not constitute stolen property because copyright infringement is not theft.

Read more in this earlier post.

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 today (and 10 NFP)

For publication opinions today (3):

In Seth Anderson v. Huntington County Board of Commissioners, a 12-page opinion, Judge Baker writes:

In this case, we are presented with an issue of first impression, namely, what suffices as “reasonably particular” in a request for public records submitted under the Access to Public Records Act (APRA). Here, appellant-plaintiff, Seth Anderson, submitted four requests for emails pursuant to the APRA. Each request was identical – all seeking the emails sent or received within a four and one-half month time span – the only difference between the requests was that each named a different employee.

About one week later, appellee-defendant, the Huntington County Board of Commissioners (the “Commissioners”), sent a letter through counsel to Anderson, requesting further clarification and assuring Anderson that once clarification was received, the appropriate records would be provided. Instead, Anderson filed a formal complaint with the Public Access Counselor, who upheld the Commissioners’ decision, insofar as Anderson’s request was not “reasonably particular” as required by the APRA.

Anderson filed a complaint to compel access to the public records, seeking a court order to compel the Commissioners to supply the records as originally requested and for attorney fees and costs. The Commissioners informed Anderson that they intended to comply with his requests as written. Anderson concedes that he has received all requested information but not before a hearing was held after which, the trial court concluded that the Commissioners did not improperly deny Anderson’s requests because they were not “reasonably particular” and denied his request for attorney fees and costs.

We conclude that, inasmuch as a county employee spent ten hours and purchased new software to retrieve 9500 emails that then had to be turned over to human resources for further redaction, we agree with the Public Access Counselor and the trial court that Anderson’s requests were not reasonably particular. Likewise, we conclude that Anderson has not substantially prevailed under the APRA and is, therefore, not entitled to attorney fees, court costs, and reasonable expenses * * *

It is noteworthy that while the Commissioners agree with Anderson that the Public Access Counselor’s decision is not binding on the trial court or this Court, in the absence of case law or adequate statutory authority, this Court should give considerable deference to the opinions of the Public Access Counselor. The Commissioners point out that in other areas of administrative law, “with respect to an agency’s interpretation of statutes and regulations that [it] is charged with enforcing, such interpretation is entitled to great weight . . . .” Austin v. Ind. Family & Soc. Servs. Admin., 947 N.E.2d 979, 982 (Ind. Ct. App. 2011). Nevertheless, the Commissioners concur with Anderson that unlike other cases under the Administrative Orders and Procedures Act, the trial court reviews an opinion of the Public Access Counselor de novo. I.C. § 5-14-3-9. * * *

Although the Commissioners ultimately spent the time and expense compiling and reviewing 9500 emails, they did not necessarily have a legal obligation to do so, and, as argued above, the Public Access Counselor’s opinions state the opposite. To be sure, the fact that the Commissioners provided the information exactly as Anderson requested it does not define the APRA. Indeed, we agree with the Public Access Counselor’s opinion that Anderson’s requests were not reasonably particular under the APRA, and the Commissioners were under no legal obligation to provide to him the information as he requested. Consequently, this argument fails.

In John Alden v. State of Indiana , a 7-page opinion, Judge Pyle writes:
John Alden (“Alden”) appeals the trial court’s denial of his petition to reduce his Class D felony conviction for operating while intoxicated to a Class A misdemeanor. We affirm. * * *

Alden argues that his petition should have been granted because there was sufficient evidence to show that he met all of the statutory requirements for reduction of his felony conviction to a misdemeanor. The State argues that the statute in question grants the trial court discretion in deciding whether or not to grant this type of petition. * * *

It seems clear that the General Assembly has adopted a policy wherein trial courts can reward good behavior by removing the stigma of certain Class D felony convictions. See State v. Brunner, 947 N.E.2d 411 (Ind. 2011) (modification of conviction for good behavior may be equitable and desirable, but only after legislature grants authority to courts). However, the language used in the statute does not create a right to the reduction of one’s Class D felony conviction to a misdemeanor. The word “may” shows an intent by the legislature to give trial courts the discretion to grant or deny a petition, even if all of the statutory requirements have been met by the Petitioner. While it is best for trial courts to keep in mind the policy preference of rewarding good behavior with a reduction of a Class D felony conviction to a Class A misdemeanor, trial courts are free to deny a petition as long as the denial is supported by the logic and effect of the facts.

In Michael L. Curtis v. State of Indiana , a 7-page opinion in a pro se appeal, Sr. Judge Sharpnack writes:
Michael Curtis appeals the denial of his Indiana Trial Rule 60(B) motion for relief from judgment following the forfeiture of his truck. We reverse. * * *

In his 60(B) motion, Curtis stated that his attorney failed to inform him of the forfeiture order and argued that seizure of his truck was not authorized by the forfeiture statute because the pirated movies he sold did not constitute stolen property. Assuming the truth of his claim that his attorney did not inform him of the final judgment, Curtis may have been unable to file a timely notice of appeal. He did, however, file a motion for a belated appeal, in which he notified the trial court for the first time that his attorney did not inform him of the forfeiture order and argued that the copyright infringement was not theft, but the trial court did not rule on the motion. * * *

Here, the forfeiture of Curtis’s truck was based on the assumption that the content of the pirated movies sold out of the truck constituted “stolen . . . or converted property.” Ind. Code § 34-24-1-1(a)(1)(B). We must disagree. As noted in Dowling, “the property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple goods, wares, or merchandise.” 473 U.S. at 217 (quotation omitted). Moreover, Section 34-24-1-1(a)(1)(B) clearly allows forfeiture in cases of theft or conversion but says nothing about copyright infringement or even fraud, the crime to which Curtis pleaded guilty. See Chan v. State, 969 N.E.2d 619, 621 (Ind. Ct. App. 2012) (“[F]orfeitures are not favored in the law, and statutes authorizing forfeitures are strictly construed.”).

The State nonetheless asks us to affirm the trial court on two alternative grounds. First, it argues that Curtis has waived any arguments on appeal for failure to present a cogent argument. In his brief, Curtis argues that the trial court abused its discretion by denying his Rule 60(B) motion and further cites relevant portions of Dowling. This is sufficient to avoid waiver. Second, the State argues that Curtis cannot challenge the forfeiture inasmuch as he already pleaded guilty to committing the underlying crime with his truck. The crime to which Curtis pleaded guilty, however, was not theft or conversion, and the forfeiture provision here allows seizure only in cases of stolen or converted property.

As the forfeiture of the truck was not authorized by statute, we conclude that Curtis has established extraordinary circumstances justifying relief.

NFP civil opinions today (4):

In Re: The Paternity of K.G.; J.G. and S.S. and A.S. (NFP)

Accessabilities, Inc. v. Review Board of the Indiana Dept. of Workforce Development (NFP)

Denise Polak and Dianne Rose and Dianne Rose, Lake County Trust Co., as Trustee for Trust #6041, and Jeanne Collins Living Trust, Dianne Rose, Trustee v. Tiffiny Jordan (NFP)

Ray Ortega v. Susko Corp., Inc., d/b/a Our Place (NFP)

NFP criminal opinions today (6):

Jeffrey A. Booth v. State of Indiana (NFP)

Kelly Coots v. State of Indiana (NFP)

Rudy J. Smith v. State of Indiana (NFP)

Clarence Johnson v. Juana Johnson (NFP)

Madelyn Smith v. State of Indiana (NFP)

Lanard E. Foster v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Transfer Statistics From the Chief Justice Dickson-Led Indiana Supreme Court"

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

This post from July 9 and this November 7 post analyzed transfer statistics in civil and criminal cases broken down by published or NFP status. The following table does the same for transfer dispositions from Justice Rush’s November 7 appointment to the Court through the end of the year.

Indiana Supreme Court Transfer Dispositions: Nov. 7, 2012-Dec. 31, 2012
  FP cases NFP cases FP & NFP
CIVIL 3/14 (21.4%) 1/19 (5.3%) 4/33 (12.1%)
CRIMINAL 3/19 (15.8%) 3/64 (4.7%) 6/83 (7.2%)
ALL CASES 6/33 (18.2%) 4/83 (4.8%) 10/116 (8.6%)

Because of the short time period and relatively few cases, any conclusions about the “new” Indiana Supreme Court that include Justice Rush must be tempered. The categorical numbers are fairly consistent with earlier periods: transfer grants were more likely in civil (12.1%) than criminal (7.2%) cases, and the overall grant rate (8.6%) was fairly close to recent historic averages.

The odds for a grant of transfer from an NFP opinion, though, were considerably higher (4.8%) in the final two months of the year than in the August to November 1 period when transfer was granted in only 1.8% of NFP cases, provoking this post titled “A Grant of Transfer is Nine Times More Likely From a Published Court of Appeals’ Opinion.”

Perhaps most surprising, though, are the NFP cases in which transfer was granted. Two of the three criminal cases were petitions from the State in which the Court of Appeals had reduced a sentence. The Supreme Court vacated the reduction in Kimbrough because the defendant had not raised an Appellate Rule 7(B) challenge for a reduced sentence but simply alleged the trial court abused its discretion in its sentencing statement. And in Kucholick the Court essentially split the difference in reducing a sentence from the one imposed by the trial court but above the reduction ordered by the Court of Appeals. Oral argument was not heard in either case.

Oral argument is scheduled in March in the other NFP criminal case, which is from a defendant’s petition and involves whether Indiana Code section 35-50-2-8(b)(3) limits application of the general habitual offender rule when the instant offense is a “drug offense.” The NFP civil case involves honest home sale disclosures, which generated some media coverage, and will be argued next month.

Although Justice Rush has not yet issued an opinion or written a separate concurring or dissenting opinion this early in her tenure, her votes to grant transfer in cases in which transfer was denied suggests she is taking a hard look at both FP and NFP opinions and is more likely than her colleagues to grant transfer. Of those divided cases in which transfer was denied in 2012, Justice Rush voted to grant transfer primarily in FP cases: Palilonis and Gracia, both FP criminal, and Peniel Group and Houser, both FP civil cases. The exception was Tice, an NFP criminal opinion where she and Justice David voted to grant transfer. In the early weeks of this year, however, she had voted to grant in three other NFP criminal cases (Tompkins, Lopez, and App) as well as two FP criminal cases (R.W. and Semenick).

Finally, combining all three time periods yields the following statistics for the Chief Dickson-led Indiana Supreme Court.

Transfer Dispositions April 1, 2012-December 31, 2012*
  FP cases NFP cases FP & NFP
CIVIL 22/111 (19.8%) 3/92 (3.3%) 25/203 (12.3%)
CRIMINAL 13/99 (13.1%) 11/292 (3.8%) 24/391 (6.1%)
ALL CASES 35/210 (16.7%) 14/384 (3.6%) 49/594 (8.24%)

*This data is slightly different from the aggregate of the tables from the three separate time periods because it was updated to include the recent order vacating transfer as improvidently granted in Ohio Farmer’s Insurance v. Indiana Drywall & Acoustics, Inc. from yesterday.

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Indiana Courts | Schumm - Commentary

Law - More on "Pa. home sellers can keep murders, suicides secret" But what about Indiana?

Updating this ILB entry from Jan. 6th, Susanna Kim of ABC News has a long Jan. 28th story headed "Homebuyer Appeals to Pa. Supreme Court on Her Home's Bloody Past."

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to General Law Related

Ind. Law - "Ind. highway funds in jeopardy unless stricter drunken driving laws passed"

That is the heading to Norman Cox's WRTV6 story with video, last evening. It begins:

Indiana is fighting to preserve more than $40 million in federal highway money that it could lose over a disagreement on the strength of its drunken driving laws.

State leaders say Washington is being arbitrary and unreasonable.

The dispute is over a revised federal interpretation of Indiana's laws on open containers and repeat drunk driving offenders.

When the laws were enacted eight years ago, Indiana received written certification that they met federal standards.

Now, even though neither federal nor state laws have changed, Washington officials have reinterpreted Indiana's statutes and say they don't measure up.

"It gets very specific very quickly," said INDOT spokesperson Will Wingfield. "But it relates to open container laws and the hours of community service that someone who's a repeat intoxicated offender would have to do. And Indiana already has strict laws in that regard."

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Indiana Law

Ind. Law - "Washington agreement on immigration reform put Indiana debate on hold"?

This post from Jim Shella's Blog includes:

Just two years ago Indiana passed one of the toughest immigration laws in the country in a fight led by state Senator Mike Delph (R-Carmel.) Much of that law was struck down by a federal judge in a case that is still tied up in the federal courts.

In 2011 there were protests, including one that led to the arrests of college students who objected to one provision in particular. “Targeting us,” said Karla Lopez Owens at the time, “and then making it so we can’t pursue a higher education because we can’t afford it.” And Monday GOP House Speaker Brian Bosma said, if anything, lawmakers should go back to undo that provision. “A high school student that graduates here from Indiana schools that was brought here by their parents is subject to out of state tuition,” he said. “That has caused me to think just a little bit. Certainly we want these people to be productive.”

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Indiana Law

Ind. Courts - Remarkable Unanimity at the Indiana Supreme: August-December 2012

This analysis is from Ind. University-Robert H. McKinney School of Law professor Joel Schumm.

The last five months of 2012, following the July 31 retirement of Justice Sullivan, have been a period of extraordinary unanimity at the Indiana Supreme Court. Of the Court’s nineteen opinions, a whopping 95% (18/19) have been unanimous.* The sole exception was a per curiam opinion in a criminal case where the Court essentially split the difference in reducing a sentence from the one imposed by the trial court but above the reduction ordered by the Court of Appeals. Chief Justice dissented “believing that, while it is correct to grant transfer, the judgment of the trial court should be affirmed.”

The 95% rate stands in stark contrast to the 50% unanimity rate from this August 31 post that summarized vote alignments between the retirements of Chief Justice Shepard and Justice Sullivan. One would expect less unanimity, though, as the Court cleared its docket of long-pending cases upon the retirement of one of its members. In contrast, one would not expect as many divided opinions in the weeks after Justice Rush’s appointment. Uncontroversial cases in which all justices agree with the outcome and reasoning are more likely to be decided quickly. If two or more justices have separate opinions in circulation, however, the case is likely to take longer to decide, and we will surely see some of these in the coming weeks and months. The average rate of unanimity over the past three years has been 66%.

Nevertheless, I wouldn’t be surprised to see a unanimous opinion in two of the Court’s highest profile pending cases. I continue to believe the Court is likely to uphold the constitutionality of the Choice Scholarship (school voucher) program. The legislative fines case seems less clear cut, as the justices expressed serious concerns at oral argument with the notion that courts are powerless to intervene in any and every legislative branch squabble. That argument also included the unusual closing comments from the Chief Justice encouraging the parties to find a compromise. Although the Indiana Supreme Court is certainly deferential to other branches of government, Berry seems in some ways similar to A.B., where the Court put a limit on what would otherwise have been unrestricted and unreviewable power of another branch of government. Although that opinion included two separate concurring opinions debating deeper issues about Single Subject Clause of Article 4, Section 19, the justices were unanimous in placing limits on the DCS’s director’s authority. I suspect they will strive for a unanimous opinion in resolving the legislative fines dispute as well.
*I consider the Court’s Farmer disciplinary opinion unanimous because Justice David concurred in the result without writing a separate opinion.

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Indiana Courts

Ind. Decisions - After oral argument Supreme Court withdraws transfer grant and reinstates COA opinion

The Supreme Court held oral argument in Ohio Farmers Ins. Co., et al. v. Indiana Drywall & Acoustics, Inc. on Jan. 17th.

In a 4-1 Order filed Jan. 28th, the Court rules:

By order dated October 19, 2012, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, including considering the points presented by counsel at oral argument and discussion among the Justices in conference after the oral argument, the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion reported as Ohio Farmers Ins. Co. v. Indiana Drywall & Acoustics, Inc., 970 N.E.2d 674 (Ind. Ct. App. 2012), should be reinstated as Court of Appeals precedent. Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end. * * *

All Justices concur except Rush, J., who votes to grant transfer.

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - "Standards Governing Electronic Media, Still Photography, and Personal Computing Devices at Supreme Court Oral Arguments"

The Supreme Court has posted an order, filed Jan. 23, headed "Standards Governing Electronic Media, Still Photography, and Personal Computing Devices at Supreme Court Oral Arguments." The 4-page order details permissible use of cameras and other electronic devices for press coverage of its arguments.

Paragraph 5, however, appears to move beyond press coverage:

5. Impermissible Use of Media Material.
(a) None of the film, video tape, still photographs or audio reproductions developed during or by virtue of coverage of a Supreme Court proceeding shall be admissible as evidence in the matter out of which it arose or any matter subsequent or collateral thereto, whether involving the same or different parties.
[BTW, there is no "(b)"]

A reader writes:

Para. 5(a) is interesting, but what does it mean? May I cite to a justice's concern expressed on a topic in making an argument to the Court of Appeals? That is simply illustrative; I'm not asking that it be admitted into evidence.

I understand I could not admit it into evidence in a trial court, but could I not cite it in a brief there as illustrative support?
Additionally, as the ILB has pointed out in several posts, the Supreme Court recently has begun citing statements in the oral argument video in its opinions.

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Indiana Courts

Ind. Courts - "Nominating Commission Names Five Finalists To St. Joseph County Superior Court"

From an INCourts news release:

The St. Joseph County Superior Court Judicial Nominating Commission announced five finalists to fill an upcoming judicial vacancy. Commission Chairman and Indiana Supreme Court Justice Mark Massa announced the finalists Monday. “The Commission members were impressed by the high quality of all of the applicants,” Massa said. “The five individuals we are recommending to Governor Pence represent the best of an impressive pool of talent.”

The nominees are:

  • Mary Catherine Andres, deputy prosecuting attorney in St. Joseph County
  • Scott Duerring, a general practice attorney in South Bend
  • Andre B. Gammage, managing partner at Berger & Gammage in South Bend
  • Elizabeth C. Hurley, Magistrate for the St. Joseph Circuit Court
  • Jeffrey Lane Sanford, sole practitioner, deputy public defender for St. Joseph County, and deputy city attorney in South Bend
A vacancy on the St. Joseph Superior Court will occur March 31, 2013, when Judge Roland W. Chamblee, Jr., retires. In December 2012, the Commission announced applications for the position were available online and should be submitted to the St. Joseph County Clerk by January 18. On January 25, the Commission interviewed thirteen candidates and then met in executive session to deliberate.

Governor Mike Pence will name a Superior Court judge from among the five finalists submitted by the nominating commission. * * *

The [St. Joseph County Superior Court Judicial] Nominating Commission was established by the Indiana General Assembly in 1973.

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Indiana Courts

Ind. Law - More on: Daniels replaces long-time Purdue attorneys with his former chief counsel [Updated]

Today's story by Eric Weddle in the Lafayette Journal Courier adds more information to yesterday's post. Some quotes:

Daniels, now Purdue’s president, said Purdue was the only Big Ten school without in-house legal counsel that can act as a clearinghouse to decide which matters require outside assistance. It remains to be seen how much the change reduces the university’s legal fees, Daniels said. In the past three years, Purdue paid Stuart & Branigin $6.77 million for services, in addition to hiring other law firms. * * *

According to a memo from Daniels, Schultz will manage legal functions and oversee delivery of legal services to the university, as well as perform professional services and provide proactive advice on operations and programs. Schultz will be paid $240,000 per year. * * *

J. Paul Robinson, professor and chairman of the faculty senate, decried the amount of university legal bills for faculty investigations and other issues Monday at the regular University Senate meeting.

Between April 2011 and December 2012, $1.58 million was paid to Stuart & Branigin for “legal issues resulting from administration action against any staff or faculty member,” according to documents obtained through an open records request by Robinson and provided to the Journal & Courier. An additional $330,000 was paid to other law firms. What those issues are were not included in the request.

[Updated at 8:44 AM] A reader has just noted:
Stuart & Branigin will need to update their entire section on education practice or just disband it.
Fourteen partners currently are listed on their Purdue/General Counsel webpage.

Posted by Marcia Oddi on Tuesday, January 29, 2013
Posted to Indiana Law