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Friday, February 15, 2013

Ind. Courts - "Senior judge program sparks many objections"

That is a headline from a 2007 story in the Louisville Courier Journal, about Kentucky senior judges, reported by Andrew Wolfson and Jason Riley. Most of the story is now only available from the paper's paid archive, but the beginning is still accessible:

Lawyers routinely gave her by far the worst marks in bar surveys. And in November, Jefferson County voters removed her from office after eight years in District Court.

But Paula Fitzgerald is back -- as a senior judge, one of 42 retired judges statewide who work part time to help handle the Kentucky courts' growing caseload.

To Fitzgerald's critics, her appointment undermines the voters' will and points out the lack of merit screening that other states have in place for selecting senior judges. ...

Later in the story, as reproduced in this ILB post from Jan. 14, 2007:
Unlike some states, Kentucky has no merit screening of appointments for senior judges, who are assigned to fill vacancies around the state and agree to serve 120 days a year for five years. In exchange, they receive enhanced retirement benefits usually worth several thousand dollars a year.

In Indiana, applicants must apply to a commission and submit the names of three lawyers who appeared in their court. In Tennessee, the Supreme Court must determine that an applicant's service "would promote the effective administration of justice."

In Indiana, IC 33-27-4 deals with the appointment of senior judges, as does IC 33-23-3, and IC 33-24-3-7:
Sec. 7. (a) The supreme court may appoint a judge who is certified as a senior judge by the judicial nominating commission to serve a circuit court, a superior court, a probate court, the tax court, or the court of appeals if the court requests the services of a senior judge.
(b) The supreme court may adopt rules concerning:
(1) certification by the judicial nominating commission; and
(2) appointment by the supreme court;
of senior judges.
As added by P.L.98-2004, SEC.3. Amended by P.L.32-2005, SEC.4; P.L.201-2011, SEC.21.
Here is the Senior Judge Handbook. And here is Administrative Rule 5 (B)(3), which discusses the qualifications for senior judge status.

However, despite the screening process in Indiana, several county judges who were defeated by the voters, and at least one who was disciplined by the Supreme Court, are on the 2013 Order Appointing and Continuing Senior Judges.

Posted by Marcia Oddi on Friday, February 15, 2013
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 3 today (and 13 NFP)

For publication opinions today (3):

In Amy Jean Kristoff v. Centier Bank , a 9-page opinion, Judge Mathias writes:

Amy Jean Kristoff (“Amy”) appeals the Lake Circuit Court’s grant of summary judgment in favor of Centier Bank (“the Bank”), the trustee of the Amy Jean Kristoff Exempt Trust, in Amy’s action to modify the terms of a trust established by her late mother. We affirm. * * *

The terms of the trust document are clear and unambiguous, and the primary purpose of the trust was not for the benefit of the beneficiaries’ children. Nor was the beneficiaries’ failure to have children an unforeseen circumstance. Amy has identified no genuine issue of material fact, and the Bank has demonstrated that it is entitled to judgment as a matter of law.

In South Shore Baseball, LLC d/b/a Gary South Shore Railcats, and Northwest Sports Venture, LLC v. Juanita DeJesus , a 14-page opinion, Judge Bradford writes:
On May 23, 2009, Juanita DeJesus was injured when she was hit on the head by a foul ball at a Gary South Shore Railcats minor league professional baseball game. DeJesus subsequently filed suit against South Shore Baseball, LLC d/b/a Gary South Shore Railcats and Northwest Sports Venture, LLC (collectively, “Appellants”), alleging that the Appellants were liable for her injuries under a theory of premises liability and for negligently failing to place protective screening continuously from first to third base. Appellants filed a motion for summary judgment, claiming that, under both Indiana law and the nationwide majority rule, they could not be held liable for DeJesus’s injuries. The trial court denied the Appellants’ motion for summary judgment. Soon thereafter, Appellants sought and were granted permission to bring this interlocutory appeal. Concluding that, as a matter of law, Appellants cannot be held liable for DeJesus’s injuries, we reverse the judgment of the trial court and remand with instructions for the trial court to issue an order granting summary judgment in favor of the Appellants. * * *

With respect to DeJesus’s claim that Appellants were liable for her injuries under the theory of premises liability, we apply the Indiana Supreme Court’s holding in Pfenning to the instant matter and conclude that the undisputed designated evidence conclusively establishes that crucial aspects of two of the elements of premises liability are not satisfied. Pfenning, 947 N.E.2d at 407. There is no showing that (a) the Appellants should have reasonably expected that their invitees would fail to discover or realize the danger of foul balls entering the stands, and (b) the risk of being struck by a foul ball involved an unreasonable risk of harm. With respect to DeJesus’s negligence claim, we adopt the majority rule that the operator of a baseball stadium does not have a duty to place protective screening continuously from first to third base, but rather only in the most dangerous area, i.e., the area directly behind home plate. For these reasons, we conclude that DeJesus cannot prevail on her claims against the Appellants. As such, we reverse the judgment of the trial court and remand with instructions for the trial court to grant the Appellants’ motion for summary judgment.

The judgment of the trial court is reversed and the matter remanded with instructions.

In Amanda Vaughn v. State of Indiana , a 10-page, 2-1 opinion, Judge Barnes writes:
Amanda Vaughn appeals the trial court’s sentence for her conviction of Class A misdemeanor criminal trespass. We reverse and remand.

Vaughn raises one issue, which we restate as whether the trial court abused its discretion when it ordered her to serve forty hours of community service in lieu of fines and costs. * * *

Given the lack of statutory authority for the trial court to impose a community service requirement in lieu of costs and fees, we must reverse the trial court’s order. We remand for the trial court to address the imposition of costs and fees in this case. In doing so, we note that, our supreme court has held, “when fines or costs are imposed upon an indigent defendant, such a person may not be imprisoned for failure to pay the fines or costs.” Whedon, 765 N.E.2d at 1279. * * *

RILEY, J., concurs.
BAKER, J., dissents with opinion. [that begins] I respectfully dissent and part ways with the majority’s determination that the trial court erred in ordering Vaughn to serve forty hours of community service in lieu of paying fines and costs.

First, I would note that a trial court may exercise its discretion by suspending fines and costs, and “may impose any reasonable condition it deems appropriate when it does so.” Campbell v. State, 551 N.E.2d 1164, 1169 (Ind. Ct. App. 1990). In my view, ordering Vaughn to perform community service in lieu of fines and costs was reasonable.

NFP civil opinions today (5):

VFW Post 2953, et al. v. City of Evansville and Evansville Common Council (NFP)

Larry J. Briski v. Peoples Bank (NFP)

In Re: The Paternity of K.D.; M.G. v. S.D. (NFP)

Pie Kitchen, LLC d/b/a Homemade Ice Cream and Pie Kitchen v. Merchant, LLC (NFP)

Paul Stieler Enterprises, Inc. d/b/a Harbor Bay, et al. v. City of Evansville and Evansville Common Council (NFP)

NFP criminal opinions today (8):

Shawn J. Lee v. State of Indiana (NFP)

Misty DeMoss v. State of Indiana (NFP)

Tasha Parsons v. State of Indiana (NFP)

Courtney A. Wuethrich v. State of Indiana (NFP)

Dennis White v. State of Indiana (NFP)

Clarence E. Smith v. State of Indiana (NFP)

Brian Williams v. State of Indiana (NFP)

Jesse L. Rose v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, February 15, 2013
Posted to Ind. App.Ct. Decisions

Law - "After ‘Anonymous’ Attack, Sentencing Body Seeks Blogger’s Help"

Really, this post at the WSJ Law Blog left me shaking my head in wonder!

The short version: (1) official U.S. Sentencing Commission website hacked by the group Anonymous three weeks ago; (2) the site has been unavailable since; (3) now the Commission is asking a law professor to post its most recent thousands of pages long report on his blog, the Sentencing Law Blog.

Posted by Marcia Oddi on Friday, February 15, 2013
Posted to General Law Related

Ind. Courts - Fort Wayne "Divorce attorneys come up with unique concept to handle divorces"

WANE.com Ft. Wayne has this story today about:

Destination Divorces ... a new way to go through a divorce. Skipping the court proceedings, this process goes straight to the mediation part of it, but the unique part about it is you can go on a vacation resort with your soon-to-be ex-spouse, in separate rooms, to hammer out the details.

Posted by Marcia Oddi on Friday, February 15, 2013
Posted to Indiana Courts

Ind. Decisions - "Judge rules against Purdue on hiding report from former IPFW Chancellor Michael Wartell"

Interesting story by Rebecca S. Green of the Fort Wayne Journal Gazette. Some quotes:

Purdue University cannot claim attorney-client privilege as a reason to prevent disclosure of information related to a complaint filed by former IPFW Chancellor Michael Wartell.

In an order issued late last month, Tippecanoe Circuit Judge Donald Daniel said Purdue University cannot claim that information uncovered by John C. Trimble was exempt from public disclosure because it was protected by attorney-client privilege or work product.

Wartell was forced out at IPFW in 2011 because Purdue University requires university executives to retire at age 65. Requests from IPFW that he be allowed to stay were denied.

Wartell filed a complaint against the university, claiming discrimination and harassment. Purdue hired Trimble as an independent investigator. The investigation was completed last February and reported to a group of Purdue board members, which found no discrimination had taken place.

But nothing was ever made public, not even to Wartell, who filed requests with Purdue officials and the state’s public access counselor to see the report. * * *

Purdue claimed Trimble served appropriately as both the school’s attorney and third-party investigator. * * *

After dueling motions and multiple hearings, Judge Daniel’s ruling ordered Purdue to answer questions asked of Trimble and Alyssa Rollock, the school’s vice president for ethics and compliance.

Posted by Marcia Oddi on Friday, February 15, 2013
Posted to Ind. Trial Ct. Decisions

Ind. Law - "Legislature great at dealing with problems we don't have"

NWI Times columnist Phil Wieland writes today about the proposed hunt/fish/farm amendment.

Posted by Marcia Oddi on Friday, February 15, 2013
Posted to Indiana Law

Ind. Courts - Bisard trial moving to Fort Wayne, Judge Hawkins withdraws

Tim Evans reports in the Indianapolis Star:

[At a hearing Thursday morning] Marion Superior Court Judge Grant Hawkins announced Bisard’s trial is being moved to Allen County. It was a move, the judge said, that was necessitated by the extensive publicity that continues to swirl around the case 30 months after the crash.

Hawkins and attorneys involved in the case hope Allen County — about 120 miles northeast of Indianapolis — will provide a pool of potential jurors who know nothing about the allegation that Bisard was driving drunk or the controversy surrounding the blood test. * * *

The new trial location announced Thursday was expected.

In December, Hawkins approved a defense request to move the trial because extensive media coverage could make it difficult to find jurors in Marion County unfamiliar with the controversial case.

“It appears clear,” Hawkins wrote in an order issued Thursday, “this case must be brought to trial a distance away from the Marion County media ‘footprint.’”

But there was a bit of a surprise at the hearing. Hawkins announced that he is withdrawing from the case and has selected Allen Superior Court Judge John Surbeck Jr. to take jurisdiction.

Hawkins noted in his order that “it is not feasible to be away from Marion County for the time necessary to preside over this trial,” which is expected to last three to four weeks. * * *

The first hearing in Allen County will be a case conference in front of Surbeck at 1:30 p.m. March 8. Deputy Prosecutor Denise Robinson said she hopes a trial date will be set at that time.

[More] Charles Wilson of the AP has a long story today, here in the Fort Wayne Journal Gazette, about the move.

Posted by Marcia Oddi on Friday, February 15, 2013
Posted to Indiana Courts