Monday, November 04, 2013
Ind. Courts - A Remarkable First Year for Justice Loretta Rush
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
One year ago Thursday, Justice Loretta Rush began her service as the 108th justice of the Indiana Supreme Court. Unlike her colleagues who faced early criticism because of a controversial opinion or refusal to recuse*, Justice Rush’s first year has not simply been free of controversy. She has wowed the legal community and beyond with her thoughtfully crafted and impactful opinions, incisive questions at oral argument, and her many speaking engagements and administrative work.
Justice Rush’s opinions have tackled a wide variety of issues in both criminal and civil law. Her majority opinions (in chronological order) are as follows:
- K.W. v. State: A school liaison officer intervened in a hallway scuffle between K.W. and another student. K.W. turned away from the officer’s effort to handcuff him, and was adjudicated delinquent for resisting law enforcement. We granted transfer, and now reverse because there is insufficient evidence that K.W. acted “forcibly,” as the offense of resisting law enforcement requires. We also invite the Legislature to consider whether to bring school-resource officers — police officers privately employed by schools for school security and disciplinary purposes — within the ambit of the resisting-law-enforcement statute. The current statute applies to law-enforcement officers only when they are engaged in law-enforcement duties, which does not always apply to the different, though important, duties of a school officer. A common-law resolution of that question would risk unintended consequences, but a narrower legislative approach may be appropriate. (ILB summary)
- Sickels v. State: In this case, the trial court determined that the custodial parent was the “victim” for purposes of criminal restitution for the noncustodial parent’s failure to support his dependent children. At the time the trial court ordered restitution, the children were adults and emancipated. On direct appeal, the Court of Appeals, sua sponte, held that it was “erroneous” for the trial court to order the noncustodial parent to make restitution to the custodial parent. Specifically, the Court of Appeals held that the custodial parent was not a “victim” of the noncustodial parent’s crimes and that restitution was payable to only the children. We hold that the trial court was well within its discretion to find that the custodial parent was the “victim.” (ILB summary)
- In Re: Visitation M.L.B.: K.J.R. v. M.A.B.: A child’s relationship with his grandparents is important, and can deserve protection under the Grandparent Visitation Act. But grandparent-visitation orders necessarily impinge, to some degree, on a parent’s constitutionally protected rights. An order granting grandparent visitation must therefore include findings that address four well-settled factors for balancing parents’ rights and the child’s best interests, and must limit the visitation award to an amount that does not substantially infringe on parents’ rights to control the upbringing of their children. In this case, the trial court’s grandparent-visitation order failed to meet either requirement. To provide the trial court with an opportunity to cure those defects, we remand for new findings and conclusions consistent with this opinion. (ILB summary)
- Girl Scouts of Southern Illinois v. Vincennes Indiana Girls, Inc.: The Contracts Clause of the Indiana Constitution protects vested contract rights, including agreed contractual restrictions on land use, against retroactive impairment. Here, one Scouting organization deeded its campground to another on the condition that the Scouting use continue for 49 years, with the deed providing that ownership of the campground would revert to the original owner (the grantor) if the Scouting-use condition was breached during that time. We conclude that the Contracts Clause of the Indiana Constitution protects the enforceability of this 49-year land use limitation despite a subsequently enacted statute, Indiana Code section 32-17-10-2, that purports to limit reversionary clauses in land transactions to a maximum of 30 years. (ILB summary)
- N.L. v. State of Indiana: Sex-offender registration aims to protect innocent members of society from repeat sex offenses by formerly convicted sex offenders, while our juvenile system aims to rehabilitate juvenile offenders. To balance these competing goals in light of registration’s serious social consequences and far-reaching effects, trial courts may place a child on the sex offender registry only if they first find by clear and convincing evidence that the child is likely to repeat a sex offense. But our trial courts have struggled with how to apply that statutory requirement. Today, we clarify that a juvenile may only be ordered to register as a sex offender if, after an evidentiary hearing, the trial court expressly finds by clear and convincing evidence that the juvenile is likely to commit another sex offense. Because the trial court’s order here placing N.L. on the registry was neither issued in connection with an evidentiary hearing, nor accompanied by any findings, we reverse and remand. (ILB summary)
- In Re the Matter of the Adoption of Minor Children; C.B.M. and C.R.M.: C.A.B. v. J.D.M. and K.L.M.: The foster parents of C.B.M. and C.R.M. adopted them while their natural mother’s termination of parental rights (TPR) appeal was still pending. Our statutes specifically allow those competing processes to overlap. But choosing to do so creates the devastating possibility of jeopardizing a finalized adoption if the underlying TPR judgment is later reversed on appeal. That is exactly what happened here, and we cannot unscramble that egg. Either the adoptive family prevails in violation of the natural mother’s constitutional rights, or the natural mother prevails at the risk of pulling the children away from the only family they know. But the natural mother’s rights, both as a parent and as a litigant with an absolute right to an appeal, are constitutionally protected. We cannot cut corners on those rights, despite our concerns for the children’s undoubtedly vital interest in a speedy and permanent placement. We therefore conclude that the trial court should have set aside the adoption, because the prior TPR “judgment upon which it is based has been reversed or otherwise vacated”—making the adoption voidable under Indiana Trial Rule 60(B)(7). And since a dilemma like this ill-serves the interests of everyone involved, we also offer guidance for mitigating the harsh result in this case, and in any future cases of this type. (ILB summary)
- Ronald G. Becker v. State of Indiana: Criminal cases are prosecuted in the name of the “State of Indiana.” But as Shakespeare famously asked, “What’s in a name? that which we call a rose / By any other name would smell as sweet.” Gertrude Stein’s answer was that “Rose is a rose is a rose is a rose.” Similarly, we conclude that in this matter related to the sex offender registry, “the State is the State,” whether it acts through a deputy prosecutor or through the Department of Correction. Both entities share the same substantial interest—to maximize an offender’s registration obligations—and are therefore in privity with each other in cases involving that interest. Accordingly, we hold that when the State (via a local prosecutor) fails to appeal an adverse sex-offender registration ruling, the State (via the DOC) becomes bound by it under principles of res judicata. The DOC’s 2011 intervention in this case therefore came too late. On its face, the DOC’s motion challenged a trial court ruling issued a few weeks earlier—but in substance, it sought reconsideration of an unappealed 2008 ruling that had long since become binding against the State. We thus reverse the trial court’s order granting the DOC’s Motion to Correct Error. (ILB summary)
- Courtney L. Schwartz v. Jodi S. Heeter: We therefore face a question of contract interpretation: Does the Agreement incorporate the version of the Guidelines in effect at the time the Agreement was made, or the one in effect for each particular year’s income? The trial court interpreted the Agreement as incorporating the version that applied to a particular year’s income, and we agree. Since the Guidelines are regularly amended to fit changing economic conditions, we hold that this Agreement anticipates and incorporates those future changes, because it does not specify otherwise. (ILB summary)
- Heather N. Kesling v. Hubler Nissan, Inc.: An auto dealership’s advertisement of an inexpensive used car as a “Sporty Car at a Great Value Price,” is textbook puffery—not actionable as deception or fraud, because a reasonable buyer could not take it as a warranty about the car’s performance or safety characteristics. But when the dealer has inspected the car and should know it has serious problems, answering a buyer’s question about why it idled roughly by claiming that it “would just need a tune-up” may be actionable as fraud. We therefore hold that the buyer’s fraud claim survives summary judgment, even though her deception claims cannot. (ILB summary)
Whatever the topic, Justice Rush’s opinions are especially readable, particularly with their carefully crafted opening paragraph(s). A lawyer, local generalist newspaper reporter, or high school drop-out litigant can easily understand the Court’s rationale without investing much time or energy. As law students (and even some law professors) lament, the same cannot be said of every court opinion, some of which provoke head-scratching and confusion even after multiple readings.
Finally, all nine opinions have been unanimous. None of Justice Rush’s colleagues have seen the need to write separate concurring or dissenting opinions in any of these cases.
Two of the opinions called for a possible legislative response, and a swift response followed. In response to K.W. v. State, Senate Enrolled Act 1 added the following to the definition of law enforcement officer: "Law enforcement officer," for purposes of IC 35-44.1-3-1 and IC 35-44.1-3-2, includes a school resource officer (as defined in IC 20-26-18.2-1) and a school corporation police officer appointed under IC 20-26-16.
In response to the adoption case, the Commission on Courts has recommended legislation that would prohibit trial courts from hearing or granting a petition for adoption while a termination of parental rights appeal is pending.
An Independent Voice
The newest Justice often aligns most frequently with the Chief Justice. Many expected the same of Justice Rush, especially in light of her long-standing professional relationship with Chief Justice Dickson. Although the Court has had an unusually high number of unanimous opinions since Justice Rush joined the Court, she has shown her independence, dissenting from the denial of transfer in this criminal case in late March and most notably in the legislative fines case in June, where she joined Justice Rucker in dissent.
Since the retirement of Justice Sullivan, questioning during oral argument falls fairly equally among the justices. Justice Rush’s questions generally cut to the heart of the case, probing the important weaknesses of each side. Like her opinions, her questions are carefully crafted and precise.
The Many Other Functions
Although writing opinions and questioning lawyers are two of the most notable things a justice does, they also spend much of their week on administrative tasks and speaking with various groups.
Justice Rush’s work includes chairing the Commission on Improving the Status of Children, something she has been advocating for years to allow “better coordination of services for children who ended up in the court system.”
She has spoken at numerous bar functions and public events, impressing people who are not easily impressed. She is engaging, genuine, and clearly enjoys what she is doing (but humble in reminding audiences she is still learning). It’s difficult to imagine how much better she will become when her first year has been so remarkable.
The Next Chief Justice?
I will gladly be the first to write what some others have been saying privately. In light of everything discussed above, Justice Rush would be an exceptional choice as Indiana’s next Chief Justice when Chief Justice Dickson retires within the next few years.
*Questions about Justice Massa’s possible recusal in the Rockport Coal Gasification plant began to surface in early May of 2013, a little beyond his first year on the bench.
Posted by Marcia Oddi on November 4, 2013 02:55 PM
Posted to Schumm - Commentary