Monday, February 04, 2013
Ind. Law - Lucrative Offices: "Confusing sets of rules govern those with dual public roles"
A long editorial in the Sunday Fort Wayne Journal Gazette, written by Tracy Warner, looks at:
... Indiana’s law on conflicts of interest, holding two government jobs and “double dipping” by government employees. The state’s legal approach is at best contradictory and confusing, and at worst – at least to a layperson – seemingly haphazard and nonsensical.More:
[W]hile the Hatch Act is fairly clear for federal employees, Indiana’s law for local government employees is confusing, starting with the state’s constitutional ban, continuing with the convoluted and – to many Hoosiers – non-understandable definition of “lucrative office” and ending with hit-and-miss state laws.The editorial looks at the reasons behind the prohibition: concerns about consolidating power in too few hands and creating conflicts of interest is one, and double dipping is another. Sometimes the two rationales merge, such as when a legislator is also on the payroll of a state university. The article concludes:
For example, public school teachers are prohibited from serving on the school boards that govern the districts where they work (good policy), while legislators have conveniently allowed themselves to work for state-financed universities (bad policy). Ivy Tech, in particular, has taken great advantage of this giant loophole by liberally employing state legislators who, conveniently, have been quite generous in awarding tax dollars to the state college.
Think about it. The more money legislators give Ivy Tech, the better Ivy Tech can pay its employees, some of whom are legislators.
But conflict of interest is only one of the reasons the state constitution bans workers from holding more than one “lucrative office.”
“The concerns over fear of corruption in government as well as a fear of too much power and control falling into the hands of too few led the Framers to include” the ban on dual offices, Indiana Attorney General Greg Zoeller, then chief counsel to the A.G., wrote in an extensive Indiana Law Review article on the issue in 2004.
The framers were also concerned about the separation of powers among the legislative, executive and judicial branches. If one person serves in two branches, that can undermine the separation.
A helpful “Dual Officeholding Guide” the Indiana attorney general’s office issues cautions officeholders to consult with an attorney before taking a second government job, noting it can be a felony to hold two “lucrative offices.”
But just defining “office” and “lucrative” can be tortuous. Holding a government job isn’t the same as holding government office, and “lucrative” in this case doesn’t hold the common definition.
“An office is considered ‘lucrative’ when there is attached compensation for services rendered,” the guide explains, and “does not depend on the amount of compensation affixed to the office.”
Per diem payments are considered compensation, even though they are usually intended to cover expenses. * * *
Generally, a 1911 court opinion explains, a public officeholder in Indiana is someone “charged with duties delegated to them under the state government, with duties imposed upon them by statute, and are subject to legislative control.”
A long list of court decisions and state laws leaves much up to interpretation, and some of the inconsistencies can be difficult to explain. For example, a 1969 court ruling declares a city clerk-treasurer (the position in smaller cities) a “lucrative” office, but an 1876 ruling says a city clerk is not. The county highway engineer is lucrative, but a city civil engineer is not. Members of alcohol beverage boards hold lucrative positions, but city Board of Public Works members do not.
To eliminate potential conflict, violations of separation of powers and double dipping, Indiana legislators could pass a simple law: Only one government job per person.A sidebar gives a few examples of double-dipping public officials, but certainly does not list all the legislators engaging in this practice.
If they won’t go that far, legislators at the very least should recognize that a number of Hoosiers – university officials among them – clearly believe those lawmakers should not be working for institutions they finance with tax dollars. Credit Republican Rep. Bill Davis of Portland for authoring a bill (HB 1088) to prohibit the practice, though it is destined to go nowhere. The perception among some Hoosiers is that Ivy Tech “owns” legislators. It’s appalling.
Ind. Decisions - Court of Appeals issues 1 today (and 5 NFP)
For publication opinions today (1):
In Connie S. Landers v. Wabash Center, Inc., an 11-page opinion, Sr. Judge Shepard writes:
Stephen McAninch stole over $4 million from his employer, Wabash Center, Inc., during and after his marriage to Connie Landers. After Wabash discovered the theft, it determined that Landers had received a portion of these ill-gotten gains and sued her for return of its money. The trial court entered judgment for Wabash.NFP civil opinions today (0):
Landers says the court’s decision must be reversed because Wabash’s claim is barred by the statute of limitation and because there is insufficient evidence to support the judgment. We affirm. * * *
This evidence of McAninch’s elaborate scheme and Wabash’s consistent monitoring of its financial procedures adequately supports the trial court’s conclusion that Wabash acted with ordinary diligence in managing its finances and could not have reasonably been expected to discover McAninch’s theft prior to his suicide. Within a few months after McAninch’s suicide in October 2009, the forensic accounting firm hired to determine the scope of the theft and determine what McAninch did with the money submitted a report that concluded, “[F]unds were used by McAninch to pay for personal purchases, pay personal debt, purchase a new home, and provide funds to family members including . . . Connie Landers.” Wabash filed suit against Landers in 2011, well within six years of the date Wabash discovered McAninch’s theft and transfer of funds to Landers.
We find no clear error in the trial court’s conclusion that the statute of limitation did not bar Wabash’s suit.
NFP criminal opinions today (5):
Ind. Law - "The bill’s critics argue that it is a violation of students’ First Amendment rights and a burden to already-busy teachers and principals."
The bill takes aim at cyberbullies by allowing school administrators to punish students for out-of-school activities that interfere with school purposes or educational function. * * *
As the law stands now, schools can discipline students for “unlawful” out-of-school activities against other students or teachers. HB 1015 would broaden that to any “delinquent, criminal or tortious” act.
Supporters of the bill say it would provide school administrators with the legal support they need to properly discipline online bullies. The bill’s critics argue that it is a violation of students’ First Amendment rights and a burden to already-busy teachers and principals. * * *
By giving the school permission to punish for acts that are “tortious,” students can be disciplined for defamation, or intentionally saying something false about a person to harm his or her reputation.
The bill also allows students to be penalized for “juvenile” acts. Indiana University law professor Daniel Conkle said since the word juvenile is not specifically defined in Indiana law, administrators would have more leeway to determine what to punish someone for.
Indiana already has a cyberbullying law, but it is limited. It makes it illegal to harass another person using a computer network or other form of electronic communication. But the communication must be “with a person” or transmitted to the person through an “obscene message.”
Ind. Decisions - Transfer list for week ending February 1, 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, February 1, 2013. It is two pages (and 16 cases) long.
Transfer was vacated in one earlier grant, Ohio Farmers Insurance Company and S.C. Nestel, Inc. v. Indiana Drywall & Acoustics, Inc. - see this Jan. 29th ILB post for more info.
Four transfers were granted last week:
- Jeremiah Cline v. State of Indiana - This 2-1 COA opinion (ILB summary here, 3rd case) from July 26, 2012 contains the dissent from CJ Robb that begins: "This is a case about whether a person who should not have had to but was erroneously required to add his name and information to the registry in the first place is entitled to relief in the form of having his name and information removed." For more, see this Oct. 25, 2012 ILB post, which includes a link to the 7th Circuit opinion in Schepers.
- Heather N. Kesling v. Hubler Nissan, Inc. - This is a 2-1 Sept. 4, 2012 COA opinion, where the dissent writes: "Unlike the Majority, I cannot agree that 'Sporty Car at a Great Value Price' says anything at all about the car’s drivability – much less that it warrants that the vehicle is in a condition such that it may be safely operated."
- Wells Fargo Bank, N.A., successor in interest to The Money Store Investment Corp., f/d/b/a First Union Small Business Capital v. Neal A. Summers, et al. - This is a March 12, 2012 NFP opinion, where the COA wrote: "We find one issue dispositive, which is whether Wells Fargo's notice of appeal is untimely. We dismiss."
- Ann L. Miller and Richard A. Miller v. Glenn L. Dobbs, D.O., and Partners In Health - This is a Sept. 13, 2012 2-1 COA opinion, with three different interpretations of when a complaint is timely filed under the Medical Malpractice Act.
Ind. Courts - "Little-understood grand jury system under debate"
That is the heading to this lengthy story by Virginia Black in the Sunday, Feb. 3rd South Bend Tribune. Some quotes:
In Indiana, a prosecutor or a judge can convene a grand jury of six people and an alternate to vet a troublesome criminal case.ILB: This is a very long story and those quotes are just a sample.
Typically, it's a tool for prosecutors, who are granted a fair amount of leeway in issuing subpoenas to reluctant witnesses, compelling them to testify when they might not have been willing to speak with investigators.
Grand jurors can question witnesses themselves. Although the standard of a regular jury's unanimous guilty verdict is based on "beyond a reasonable doubt," a grand jury returning an indictment is asked to determine only whether it is more likely than not a defendant is guilty.
Everything surrounding a grand jury -- the subjects, the testimony and even the grand jurors' identities -- is considered secret, with violators of those secrets facing potential misdemeanor criminal charges. If a grand jury does not return an indictment in a case, the public might never learn one was even seated.
That, and the fact that grand jury operation is weighted heavily in the prosecution's favor, has compelled state Sen. Mike Delph, R-Carmel, to introduce a bill to the General Assembly for the second year in a row that would eliminate the use of grand juries.
Delph, a business attorney, said last week he thinks the bill will be tabled in favor of language creating a legislative study committee on the topic this summer, which would examine how grand juries and special prosecutors might be better used, or whether they're necessary.
Delph said that over the years, he's heard a growing concern over what he calls abuses of the system, where a prosecutor might call a grand jury instead of making a politically difficult decision.
"I think we're shining the light on the grand jury system, which is a good thing," Delph said.
If a grand jury chooses to pass down indictments -- which, because the prosecution has so much leeway, often happens, he said -- it can put more pressure on a defendant to plead guilty, and then the public is kept in the dark about what the facts of the case are.
"If you're a target, or a prosecutor has their sights on you, it's a very, very different, almost undemocratic situation, that you're almost guilty until proven innocent," Delph said. "We should allow public juries to rule the day."
The state senator said he does not consider himself soft on crime.
"An individual charged with breaking the law should be charged with breaking the law," Delph said, "but it should be done in an honest, forthright way."
Larry Landis, executive director of the Indiana Public Defenders Council, said his organization supports abolishing grand juries or at least shoring up the rights of defendants in the process.
A defendant can bring an attorney to grand jury proceedings, Landis said, but the attorney has no right to present evidence or make any arguments on the defendant's behalf.
And if someone is indicted, that defendant has no right to transcripts from the grand jury unless a judge orders them unsealed, he said, although the prosecutor has access to them.
The standard of proof is lower for a grand jury indictment than for a verdict in open court, but "for the public, it looks like, 'Well, he must be guilty,' " Landis said. "The name itself (grand jury) has status, prestige."
Grand juries have some legitimate uses, Landis acknowledges, such as an investigative tool when there's difficulty in persuading witnesses to talk or in judging their credibility, and when a prosecutor feels the need to gauge a community's sense of justice.
The bill to eliminate grand juries, SB 55, has been assigned to the Committee on Rules and Legislative Procedure.
Grand juries are mentioned in the Indiana Constitution, at Art. 7, Sec. 17:
Section 17. Grand Jury. The General Assembly may modify, or abolish, the grand jury system.
(History: As Amended November 3, 1970)
Ind. Courts - Two Justices Ask, “Why is This a Supreme Court Case?,” at Recent Oral Argument Involving an NFP Decision
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
Appellate Rule 57(H) makes clear that a “grant of transfer is a matter of judicial discretion” and lists a number of “principal considerations” that suggest an issue has broad, state-wide significance. Under Appellate Rule 65(D), a not-for-publication memorandum decision from the Court of Appeals cannot be cited as precedent in any Indiana court, which suggests it will seldom be worthy of transfer. Nevertheless, the Supreme Court granted petitions to transfer in 3.6% of the NFP cases reviewed here.
Some questions during one of the Thursday, January 31st oral arguments suggest the two most senior members of the Court —- Chief Justice Dickson and Justice Rucker —- may be the most skeptical of granting transfer in NFP cases.
The argument was Darrell Lawrence v. State, a case involving the reversal of a Class A misdemeanor conviction for resisting law enforcement in a not-for-publication memorandum decision. Beginning at the 22:45 mark, the justices engaged in the following discussion with the Deputy Attorney General arguing on behalf of the State:
JUSTICE RUCKER: Counsel, this is an unpublished memorandum decision, concerning a misdemeanor, with no precedential value. Why is this a Supreme Court case?Not all NFP cases are created equal. As discussed here, the Court recently granted petitions to transfer filed by the State in two sentencing cases. Those opinions made a real difference; defendants must now serve more time in prison than they would have if the Court of Appeals’ opinions were the last word. In Lawrence, though, the Defendant had already served his sentence, and a grant of transfer would at most preserve an A misdemeanor conviction.
COUNSEL: Well, it’s only considering …uh, the Class A resisting law enforcement misdemeanor because the trial court excluded the Class B felony possession of cocaine in what the State still contends was a lawful stop.
JUSTICE RUCKER: I understand you have a cross-appeal. But that aside for the moment, referring specifically to this A misdemeanor not-for-publication opinion with no precedential value, why is this a Supreme Court case?
COUNSEL: Because even assuming that the trial court ruled correctly, this case presents dangers to law enforcement if defendants feel they can commit new crimes whether they are assaults, whether they are bribery, whether they are ID theft by giving officers the wrong name. It presents a problem in that defendants can then commit new crimes with impunity and not be subject--
CHIEF JUSTICE DICKSON: Now, wait. You’re not responding to Justice Rucker’s question. This is a memorandum decision; it cannot be cited as authority or precedent. Why is this a threat to the State?
COUNSEL: It is a threat to the State because, even though it is memorandum, it, it sanctions what Lawrence did here by committing the assault against the police officer.
JUSTICE RUCKER: But it has no broader application. He served his time. He was sentenced to a year. He served his time. I mean it has no broader application that’s why to get to Chief Justice Dickson’s question, why is this a threat to the State?
COUNSEL: It’s a threat to the State because of, well, it’s a threat to police officers, to Lawrence here, because we have a person here whose cocaine was excluded. Umm, he was facing a Class B felony cocaine conviction, if this Court were to adopt the State’s position, that, that would send a message to the trial courts as well as to defendants that that was improper.
JUSTICE RUCKER: Thank you.
When a criminal defendant is seeking transfer, the stakes are arguably always significant. Regardless of a period of incarceration, a 2011 dissenting opinion from Justice Rucker aptly notes that some misdemeanor convictions “carry devastating collateral consequences ranging from deportation, to eviction from public housing, to barriers in employment.”
Moreover, in civil cases, the consequences of an unpublished opinion may be every bit as life-altering for the litigants, such as recent cases involving grandparent visitation rights or parenting time issues.
In other cases, such as the honest sales disclosure case being argued on February 14, the NFP decision seems to have established, modified, or clarified a rule of law, suggesting it should have been published under Rule 65(A).
In sum, although Mr. Lawrence’s attorney made a strong argument for the Court to vacate its grant of transfer of the NFP decision, as of this post the grant of transfer stands. At least three of the justices appear to believe that even a non-precedential decision involving a misdemeanor sentence that has been served is worthy of Supreme Court review. Therefore, appellate lawyers drafting petitions to transfer on any range of issues in the future can remain hopeful that their petitions, too, may have a shot at transfer.
Catch-up: What did you miss over the weekend from the ILB?
From Sunday, February 3, 2013:
- Ind. Law - "Utility users: Watch legislature carefully"
- Environment - "Environmental protection? It gets cold reception in Statehouse"
From Saturday, February 2, 2013:
- Ind. Courts - Gary-based child support court move to Crown Point reignites controversy
- Courts - "Should a US Attorney take pride in helping to 'have produced the longest average prison sentences in the country'"?
- Law - "Crop of New Law Schools Opens Amid a Lawyer Glut"
Ind. Decisions - Upcoming oral arguments this week and next
This 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.
Next week's oral arguments before the Supreme Court (week of (2/11/13):
Thursday, February 14th
- 9:00 AM - Barbara Johnson, et al. v. Joseph Wysocki, et al. (45S04-1211-CT-634) - The Lake Superior Court entered judgment in favor of the homebuyers on their claim of fraudulent misrepresentation against the sellers. The Court of Appeals reversed in an unpublished memorandum decision, holding that the evidence was insufficient to support finding of fraudulent misrepresentation. Johnson v. Wysocki, 45A04-1111-CT-610 (Ind. Ct. App. July 30, 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
- 9:45 AM - M & M Investment Group, LLC v. Ahlemeyer Farms, Inc. (03S04-1211-CC-645) - The Bartholomew Circuit Court entered an order denying M & M Investment Group’s petition for issuance of a tax deed. The Court of Appeals affirmed, concluding that Indiana’s pre-tax-sale notice statute, Indiana Code Section 6-1.1-24-3, “violates the Due Process Clause of the Fourteenth Amendment because it does not require the government to provide sufficient notice prior to the tax sale either by mail or by personal service to mortgagees who have publicly recorded mortgages, even if such notice is not requested by the mortgagees, and because it provides that, even if the government fails to mail the requested notice or the notice is undeliverable for some reason, the validity of the tax sale will not be affected.” M & M Investment Group, LLC v. Ahlemeyer Farms, Inc., 972 N.E.2d 889, 896 (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 16, 2012 COA opinion.
- 10:30 AM - Mary E. Santelli v. Abu M. Rahmatullah (49S04-1212-CT-667) - The Marion Superior Court entered judgment on a jury verdict in this negligence case, in which the jury allocated fault (1% to the murdered motel guest, 2% to the motel owner, and 97% to the killer) and assessed 2% of total damages against the motel owner. The Court of Appeals reversed and remanded for a new trial on fault allocation after it concluded that the trial court erred by not instructing the jury on the motel owner’s liability under the “very duty doctrine.” Santelli v. Rahmatullah, 966 N.E.2d 661 (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 an March 29, 2012 NFP COA opinion
This 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)]
Wednesday, February 13th
- 1:30 PM - Charles Meriwether vs. State of Indiana (49A02-1208-CR-676) Charles Meriwether appeals his conviction of Class A misdemeanor possession of marijuana and Class D felony possession of paraphernalia, arguing his Fifth Amendment and Article 1, Section 14 rights to be free from self-incrimination were violated when police detained and questioned him without first giving him a Miranda warning. The Scheduled Panel Members are: Judges Riley, May and, Vaidik. [Where: Supreme Court 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.