Tuesday, February 12, 2013
Ind. Decisions - Supreme Court declines to compel mediation in legislative fines case
|1/10/13||APPELLEES' MOTION FOR APPELLATE ALTERNATIVE DISPUTE RESOLUTION|
|(6) CERTIFICATE OF SERVICE (6) BY MAIL 01/10/13.|
|ENTERED ON 01/10/13 MC|
|1/25/13||APPELLANTS' OPPOSITION TO MOTION FOR APPELLATE ALTERNATIVE|
|DISPUTE RESOLUTION (6) CERTIFICATE OF SERVICE (6) MAIL|
|01/25/13 ENTERED ON 01/25/13 MS|
|2/11/13||THE COURT HAS ISSUED THE ATTACHED ORDER:|
|2/11/13||BEING DULY ADVISED, THE COURT DECLINES TO COMPEL MEDIATION|
|OF THIS DISPUTE AND WE DENY THE MOTION, BUT THIS DOES NOT|
|PRECLUDE THE PARTIES FROM VOLUNTARILY ENGAGING IN MEDIATION ON|
|THEIR OWN MUTUALLY AGREEABLE TERMS.|
|BRENT E. DICKSON, CHIEF JUSTICE|
|ALL JUSTICES CONCUR.|
|(ORDER REC'D. 2/11/13 AT 3:30 PM) ENTERED 2/12/13 KM|
|2/12/13||****** ABOVE ENTRY MAILED ******|
Ind. Law - "Rockport hearing Thursday, vote next week"
The Senate Utility Committee will hold what’s expected to be an intense hearing on the future of the Rockport coal-to-gas plant at 9:15 a.m. Thursday.
But the committee’s chairman, Sen. Jim Merritt, R-Indianapolis, says there won’t be an amendment and a vote on whether to advance the bill [SB 510] on to the full chamber until the following week.
Ind. Decisions - Supreme Court decides one today
In Dennis Jack Horner v. Marcia (Horner) Carter, a 4-page, 5-0 opinion, Chief Justice Dickson writes:
When the parties' marriage was dissolved in 2005, the trial court approved a settlement agreement reached by the parties following mediation. In 2011, the husband initiated the present proceeding, seeking in part "to modify the maintenance provision in the Settlement Agreement," in order to terminate his liability for monthly housing payments to the wife after her remarriage. At the evidentiary hearing the trial court excluded from evidence the husband’s testimony regarding statements he claimed to have made to the mediator during the mediation process, and thereafter denied the husband’s request for modification of his monthly housing payment obligation. The Court of Appeals affirmed the denial of relief, but opined that the trial court’s exclusion of the husband’s testimony was in error, albeit harmless error. Horner v. Carter, 969 N.E.2d 111, 118 (Ind. Ct. App. 2012). We granted transfer thereby vacating the Court of Appeals opinion, except for those portions that are summarily affirmed herein. Ind. Appellate Rule 58(A)(2). * * *
The Court of Appeals concluded that the husband's statements during the mediation could be admitted as extrinsic evidence to aid in the construction of an ambiguous agreement. We disagree. Indiana judicial policy strongly urges the amicable resolution of disputes and thus embraces a robust policy of confidentiality of conduct and statements made during negotiation and mediation. The benefits of compromise settlement agreements outweigh the risks that such policy may on occasion impede access to otherwise admissible evidence on an issue. * * *
 The decision of the Court of Appeals, which we have vacated, expressed approval of a different approach presented in the Uniform Mediation Act ("UMA") drafted by the National Conference of Commissioners on Uniform State Laws. For the purpose of preserving traditional contract defenses, the UMA would permit disclosure and discovery of conduct and statements during mediation if not otherwise available, and subject to a cautious balancing to ascertain whether the need for such evidence substantially outweighs the interest in protecting confidentiality. * * * Indiana has not adopted the UMA, and we decline to follow its approach to mediation confidentiality at this time. The Court acknowledges that efforts are presently underway by the Alternative Dispute Resolution Section of the Indiana State Bar Association and the Alternative Dispute Resolution Committee of the Judicial Conference of Indiana to review and possibly propose modifications to the Indiana Rules for Alternative Dispute Resolution.
Ind. Courts - "Changes to merit selection commissions advance in Indiana & South Dakota"
The blog Gavel to Gavel, which reviews state legislation affecting the courts, reported today:
Merit selection commissions may very well be changed in both Indiana and South Dakota in the coming days, but the South Dakota measure change may have little to do with animusILB: Here is SB 103. It passed second reading yesterday and is eligible for 3rd reading today in the Senate.
Indiana’s SB 103 changes that state’s Judicial Nominating Commission. Presently, the Commission is made up
Under SB 103 the governor would no longer be free to pick any nonattorney from a given Court of Appeals District. Instead, the 4 legislative leaders (House: Speaker & Minority leader; Senate: President pro tempore & minority leader) would provide the governor a list of at least 2 candidates.
- the Chief Justice (as chair)
- 3 nonattorneys picked by the governor (1 per Court of Appeals district)
- 3 attorney elected by the attorneys of the state (1 per Court of Appeals District)
SB 103 was approved by the Senate Judiciary Committee on February 7 and is currently on the Senate’s Second Reading Calendar.
The ILB wonders if it is constitutional. Here is Art. 7, Sec. 9:
Section 9. Judicial Nominating Commission. There shall be oneThe question is whether SB 103 would impose additional requirements on the selection by the Governor of the citizen members of the commission, beyond those outlined in the Constitution.
judicial nominating commission for the Supreme Court and Court of
Appeals. This commission shall, in addition, be the commission on
judicial qualifications for the Supreme Court and Court of Appeals.
The judicial nominating commission shall consist of seven
members, a majority of whom shall form a quorum, one of whom shall
be the Chief Justice of the State or a Justice of the Supreme Court
whom he may designate, who shall act as chairman. Those admitted to
the practice of law shall elect three of their number to serve as
members of said commission. All elections shall be in such manner as
the General Assembly may provide. The Governor shall appoint to the
commission three citizens, not admitted to the practice of law. The
terms of office and compensation for members of a judicial nominating
commission shall be fixed by the General Assembly. No member of a
judicial nominating commission other than the Chief Justice or his
designee shall hold any other salaried public office. No member shall
hold an office in a political party or organization. No member of the
judicial nominating commission shall be eligible for appointment to a
judicial office so long as he is a member of the commission and for a
period of three years thereafter.
(History: As Amended November 8, 1960; November 3, 1970).
SB 103 would require the Governor to make his selection from "a list of recommended candidates" submitted by the House and Senate leadership.
Ind. Decisions - 7th Circuit decides two Indiana cases today
Actually, make that one. Grote v. Sebelius, posted by the Court today, was released in typescript Jan. 30th and posted by the ILB here under the heading "7th Circuit 2-1 panel reverses Judge Barker in Grote and consolidates Grote with Korte."
In Lock Realty v. U.S. Health (ND Ind., Miller), a 21-page opinion, Judge Wood writes:
These appeals represent the end of the line for a long-running dispute over a nursinghome lease between Lock Realty Corporation IX (the lessor) and U.S. Health (the lessee) and Americare (the lessee’s assignee). For simplicity, we refer to the defendants as Americare unless the context requires otherwise. Between Americare’s appeal and Lock’s crossappeal, we are presented with a potpourri of issues covering everything from the propriety of a partial summary judgment in Lock’s favor to the district court’s attorneys’ fee decision. The most complex question, however, relates to our appellate jurisdiction—a subject on which we requested supplemental briefing after oral argument. After reviewing the parties’ submissions, we are satisfied that our jurisdiction is secure. On the merits, we find no reversible error in the various rulings of the district court that the parties have highlighted, and so we affirm. * * *
It is unfortunate that this litigation spun so far out of control. The long delays that punctuated the course of proceedings, even if motivated by hopes of reaching settlement or at least an agreed way to move forward, in the end helped no one. As we said at the outset, the issues before us now represent the end of the line. The district court did not abuse its discretion in the rulings brought before us for review. We therefore AFFIRM the judgments of the district court in all three appeals. Costs are to be taxed against U.S. Health and Americare. 2
Ind. Law - Interesting commentary on SB 280 by 2 Indiana blogger/attorneys
Doug Masson points to SB 280, which permits an individual legislator to intervene as a party in an action where the constitutionality or enforcement of a state statute he authored is being challenged if he finds finds that the statute is not being adequately defended. Masson writes:
A member of the General Assembly, acting alone, is just an ordinary citizen. Absent the legislative process and requisite votes, the laws he writes are just words on a page. There is nothing magic about them absent the consent of the body. And, furthermore, there is nothing magic about the fact that an individual legislator came up with the idea and wrote those words on the page. He or she has no individual ownership in the legislation such that he or she should have standing to take control of the litigation beyond the right given to the rest of us citizens.Paul Ogden points to the same proposal and writes in part:
Acting in concert with the rest of the body, the legislator is entitled to exercise power. Outside of that body, he or she is just another person. This bill would undermine that notion.
It is easy to get distracted by the underlying immigration issue and miss the bigger issue involved, an issue that extends far beyond this particular case. Attorney General Zoeller has consistently taken the position that the Attorney General position is "unique" because of the need to "harmonize the law" among the several agencies and entities. In doing so, he has claimed he has absolute authority when it comes to deciding how legal issues involving the State of Indiana are handled. Thus, it doesn't matter if a state agency wants to settle a case, or whether the Governor wants to take a certain legal position or the General Assembly wants a law defended, the Attorney General, and only the Attorney General, gets to decide, on behalf of the State, what position will be taken. This is a position that essentially makes the Attorney General not only the attorney for the State of Indiana, but also the client.Ogden then points to the ILB post of Jan. 11th on SB 36.
Zoeller's position regarding the authority of the Attorney General is certainly not shared by everyone. In addition to the State Senators in this case, most of the attorneys I've talked to do not agree that the Attorney General has an unfettered right to decide the State of Indiana's legal position. Rather they see the Attorney General as the attorney for the State of Indiana with a duty to follow his state client's wishes as long as they are within the ethical boundaries of legal representation. As far as multiple state agencies creating a mishmash of legal approaches, there is a singular boss of those agencies, the Governor of the State of Indiana. The AG could always appeal to the Governor to bring a consistent approach to how the agencies approach litigation.
A similar dispute over who speaks for the State of Indiana at the national level appeared to be breaking out earlier this year.
Ind. Decisions - Court of Appeals issues 0 today (and 8 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
NFP criminal opinions today (6):
Ind. Law - Still more on "Bill would restrict out-of-state college students from voting"
Ind. Law - Bills of interest to the judiciary heard in committee during Week 5 of the General Assembly
Here is the fifth weekly installment of the Indiana Courts' Legislative Update for the 2013 legislative session.
Particularly interesting to the ILB is the discussion, near the end of the Judicial Administration section, of HB 1393 which would, inter alia, raise the judicial technology fee from $5 to $10 (see p. 5 of bill). Here are some ILB observations:
What is the fee (the automated recordkeeping fee) used for?
The fee is used to finance the projects of the Court's Judicial Technology and Automation Committee (“JTAC”). These projects include not only the Odyssey case management system, but a number of other projects including the electronic Citation and Warning System (eCWS), a Protection Order Registry, the INcite Marriage License system, JTAC’s Jury Management System (JMS), etc.
Who are the Indiana citizens who pay the fee that finances all these different JTAC projects?
This amount is paid out of "all civil, criminal, infraction, or ordinance actions."
But is it really "all"? Who actually pays the fee that finances all these programs?
Here is what the ILB has been able to determine. The government never pays the fee. The bulk of the automated recordkeeping fees collected come primarily those who commit traffic infractions.
Indigent defendants who are sent to prison are often not assessed court costs. Those put on probation are, and many people pay them as part of monthly fees assessed on probation.
Also assessed the fee are you and I when we go to court to enforce a contract, get a divorce or adoption, probate a will.
Here are a number of earlier ILB entries on the automated recordkeeping fee.
Ind. Gov't. - "Hospital Ass'n: Billions from Indiana Medicaid on table"
An AP story by Tom LoBianco begins:
INDIANAPOLIS (AP) — A study released Monday by the Indiana Hospital Association estimates that expanding Medicaid would generate billions of dollars in economic growth for the state, a stark contrast from the budget-busting projections cited by former Gov. Mitch Daniels.
The hospital association's study estimates that using the federal expansion to cover an additional 406,000 residents would cost Indiana less than $500,000 but pump several times that amount back into the economy over the next seven years.
An actuary hired by former Gov. Mitch Daniels' administration found the expansion would cost a budget-busting $2.6 billion over the same time frame.
Using those two vividly different analyses as markers, lawmakers in the Indiana House and Senate were set to consider measures this week on how to implement the federal health care law. Senate Health Chairwoman Pat Miller, R-Indianapolis, will be pushing a proposal to expand Medicaid using the state's health savings account programs, the Healthy Indiana Plan, while Democrats will be pushing for the full expansion under the federal law.
Democrats and supporters of an expansion, including the IHA, have argued the reports Milliman Inc. issued for the state ignore major benefits from covering more uninsured. The IHA study, conducted by researchers at the University of Nebraska Medical Center, found that the could generate $108 million in new tax collections as up to $3.4 billion is pumped into the economy each year.
Ind. Law - Constitutional right to "hunt, fish, farm" passes Senate; "Ag-gag" bill to be heard in Senate committee this morning
"Fishing, hunting [farming] shields advance: Await House passage, ballot vote." Here is Niki Kelly's brief story in the Fort Wayne Journal Gazette. Here is Eric Bradner's story in the Evansville Courier & Press. Here is Brandon Smith's story in Indiana Public Media. A quote:
“Senator Steele, I respect your need to wanting to hunt and fish,” [Senator Greg Taylor] says. “But nothing you’ve said in your presentation makes me think the United States is ever going to take away that right.”ILB: SJR 7 passed 38-10. The voting record has not been posted.
And Taylor says he’s worried the amendment will make it harder for the General Assembly to easily regulate hunting, fishing and farming in the future.
But [Senator Brent Steele] says his amendment does not rule out rules or regulations passed by the General Assembly or state agencies.
“So IDEM is still in control of such things as fertilizer and sewage from CAFOs. The Department of Natural Resources still controls all wildlife and hunting seasons of what game may be hunted,” he says.
"Senate committee to hear 'Ag gag' bill" is the heading to this story by Jason Aubry of ABC 57 News. The story begins:
SOUTH BEND, Ind. – New legislation targeting what happens on Indiana farms could have a big impact on people all across the state. The bill would prevent people from taking pictures or video of farming and industrial operations from the inside.According to the committee schedule, the bill, SB 373, is being heard at 9:30 this morning in Room 125. It appears that there is no video stream available from Room 125.
Those who support the bill say, it will protect their livelihoods while those who oppose it say the bill would prevent people from exposing the truth.
Ind. Decisions - "Prosecutors ask judge to force former Indiana Secretary of State Charlie White to serve his home-detention sentence"
Carrie Ritchie reports today in the Indianapolis Star in a story that begins:
Prosecutors are asking a Hamilton County judge to force former Indiana Secretary of State Charlie White to start serving his home-detention sentence.ILB: Many earlier ILB Charlie White entries, here.
White has remained free since he was convicted of six felonies, including theft and voter fraud, last February. He has been sentenced to a year of home detention, but Hamilton Superior Court Judge Steven Nation allowed White to postpone serving his sentence until after he appealed his case.
But last fall, White asked to halt proceedings on his appeal and pursue post-conviction relief in the trial court.
Attorney Dan Sigler, one of the special prosecutors who handled the case, said his team filed a motion last week to enforce White’s sentence. Sigler said White no longer has a right to delay serving his sentence because he has stopped his appeal.
Prosecutors said nothing significant has happened in the case since the Indiana Court of Appeals granted White’s request to stop his appeal last September.
“We assumed he was going to file the post-conviction relief petition right away,” Sigler said. “As long as it was litigated right away, I didn’t have a problem with that. Now it’s going into the fifth month and nothing has been filed.”