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Friday, March 03, 2017

Ind. Courts - Twenty-one file to fill vacancy to be created by Justice Rucker's upcoming retirement [Updated]

Here is the list of applicants, just released by the Court:

The Judicial Nominating Commission received twenty-one applications for the upcoming Indiana Supreme Court vacancy. The following attorneys and judges have applied for the seat which will be available when Justice Robert D. Rucker retires in the spring of 2017 after 26 years on the bench.

· Mr. Dale W. Arnett, Winchester, Indiana

· Hon. Vicki L. Carmichael, Clark Circuit Court 4

· Mr. Stephen R. Creason, Indianapolis, Indiana

· Mr. Ralph E. Dowling, Muncie, Indiana

· Hon. Peter R. Foley, Morgan Superior Court 1

· Hon. Christopher M. Goff, Wabash Superior Court

· Hon. Clayton A. Graham, Marion Superior Court, Criminal Div. 7

· Hon. Maria D. Granger, Floyd Superior Court 3

· Ms. Elizabeth C. Green, Indianapolis, Indiana

· Mr. Lyle R. Hardman, South Bend, Indiana

· Ms. Leslie C. Henderzahs, Fishers, Indiana

· Hon. Steven L. Hostetler, St. Joseph Superior Court

· Hon. Matthew C. Kincaid, Boone Superior Court 1

· Hon. Larry W. Medlock, Washington Circuit Court

· Ms. Jaime M. Oss, La Porte, Indiana

· Mr. Bryce D. Owens, Pendleton, Indiana

· Mr. William N. Riley, Indianapolis, Indiana

· Mr. Peter J. Rusthoven, Indianapolis, Indiana

· Mr. Andrew U. D. Straw, Schaumburg, Illinois

· Rep. Thomas M. Washburne, Evansville, Indiana

· Ms. Leanna K. Weissmann, Lawrenceburg, Indiana

According to the Indiana Constitution and state statute, the seven-member Commission must recruit and select candidates to fill the vacancy on the state's highest court. To be eligible for nomination as a justice of the Supreme Court, the Indiana Constitution requires that a person be domiciled in the state, a U.S. citizen, and admitted to practice as a lawyer for 10 years or served as a Circuit or Superior Court judge for at least 5 years. The Commission will review applications, consider applicants' eligibility, legal education, writings, reputation in the practice of law, and other pertinent information to decide who to interview.

Initial interviews are March 20-22 with a second round of interviews April 17-19. They are open to the public and will take place at the Indiana State House in room 319. When the March interview schedule is made public, applications and photographs will be available online. Attachments, including writing samples and transcripts, will be available in the Supreme Court Law Library.

After interviews and deliberations in an executive session, the Commission will publicly vote to send the three most qualified names to Governor Eric Holcomb. The Governor has 60 days to select Indiana's next justice.

See also this ILB post from earlier this morning.

[Updated] Quick breakdown from Prof Schumm:

Posted by Marcia Oddi on Friday, March 03, 2017
Posted to Vacancy on Supreme Court - 2017

Ind. Decisions - Supreme Court reinstates vacated COA expungement opinion

The Supreme Court heard oral argument yesterday in T.A. v. State. Here is the ILB listing from "Upcoming Oral Arguments":Today the Supreme Court has announced: one of the justices recused (the docket indicates that J. Slaughter did not participate), there were only four justices voting and they tied, 2-2, thereby reinstating the vacated COA opinion. Here is the Order:
On February 9, 2017, the Court issued an order granting transfer of jurisdiction over this appeal from the Court of Appeals. That order vacated the decision of the Court of Appeals under Appellate Rule 58(A). After oral argument and further review, the four participating members of the Court are evenly divided on the proper disposition of the case.

This rare circumstance is anticipated in our rules, which provide that when “the Supreme Court is evenly divided after transfer has been granted, the decision of the Court of Appeals shall be reinstated.” Appellate Rule 58(C).

The Court of Appeals’ decision, T.A. v. State, 62 N.E.3d 436 (Ind. Ct. App. 2016), is hereby reinstated, and the Clerk of Courts is directed to certify that decision. Petitions for rehearing are not allowed.

Posted by Marcia Oddi on Friday, March 03, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court issues 1 today

In State of Indiana v. David Brown, a 10-page, 5-0 opinion, Justice David writes:

This case involves whether the brief detainment of defendant as part of a sobriety checkpoint is custodial so as to trigger Miranda protection. We hold that such detainment is no more custodial than a routine traffic or Terry stop, and thus, defendant was not entitled to Miranda warnings at the sobriety checkpoint. * * *

We hold that the State could properly bring its appeal in this case because the trial court granted a motion to suppress and the suppression order was so broad that it effectively precluded further prosecution. We further hold that under the facts and circumstances of this case, where the sobriety checkpoint at issue was: 1) brief and temporary in duration; and 2) public, Miranda warnings were not required because Brown was not in custody. Accordingly, we reverse the trial court’s suppression order and remand for further proceedings.

Rush, C. J., Massa and Slaughter, J.J., concur.

Rucker, J., concurs in result with separate opinion.

Because I believe a motorist detained at a sobriety checkpoint is entitled to the protection afforded by Miranda v. Arizona, 384 U.S. 436 (1966), I disagree with that portion of the majority opinion declaring otherwise. However, I acknowledge the United States Supreme Court has declined to expand Miranda’s reach to cases involving routine traffic stops and its reasoning is applicable to the case before us. Therefore, I am compelled to concur in result.

Posted by Marcia Oddi on Friday, March 03, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (1):

In Caleb Riggen v. Tammy Riggen , a 6-page opinion, Judge Bailey writes:

Caleb Riggen (“Father”) and Tammy Riggen (“Mother”) were once married, and have one child between them (“Child”). After the marriage was dissolved, Father petitioned to modify custody of Child. The trial court initially granted Father’s petition. Subsequently, the trial court granted Mother’s motion to correct error, thereby denying Father’s petition. Father now appeals, raising two issues, which we consolidate and restate as whether the trial court abused its discretion in granting Mother’s motion to correct error. We reverse and remand with instructions. * * *

The trial court abused its discretion when it granted Mother’s motion to correct error without providing a reason for doing so, contrary to Trial Rule 59(J).

NFP civil decisions today (4):

In the Matter of the Termination of the Parent-Child Relationship of D.S., Ri.S., Jr., & R.S. (Children) and K.M. (Mother); K.M. (Mother) v. The Indiana Department of Child Services (mem. dec.)

Peggy L. Sallee v. James L. Barrett and Martha A. Barrett (mem. dec.)

In re the Paternity of N.E., by Next Friend, Jody W. Elkins v. Jennifer L. Hahn, f/k/a Jennifer L. Benson (mem. dec.)

Michael Trimnell v. Teri Trimnell (mem. dec.)

NFP juvenile and criminal decisions today (3):

Michael D. Houser v. State of Indiana (mem. dec.)

Alric Bolt v. State of Indiana (mem. dec.)

Gary Gentner v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, March 03, 2017
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Pence used personal email for state business — and was hacked" [Updated]

Tony Cook reports today in a great story in the Indianapolis Star [emphasis added]:

Vice President Mike Pence routinely used a private email account to conduct public business as governor of Indiana, at times discussing sensitive matters and homeland security issues.

Emails released to IndyStar in response to a public records request show Pence communicated via his personal AOL account with top advisers on topics ranging from security gates at the governor’s residence to the state’s response to terror attacks across the globe. In one email, Pence’s top state homeland security adviser relayed an update from the FBI regarding the arrests of several men on federal terror-related charges.

Cyber-security experts say the emails raise concerns about whether such sensitive information was adequately protected from hackers, given that personal accounts like Pence's are typically less secure than government email accounts. In fact, Pence's personal account was hacked last summer.

Furthermore, advocates for open government expressed concerns about transparency because personal emails aren't immediately captured on state servers that are searched in response to public records requests.

Pence's office in Washington said in a written statement Thursday: "Similar to previous governors, during his time as Governor of Indiana, Mike Pence maintained a state email account and a personal email account. As Governor, Mr. Pence fully complied with Indiana law regarding email use and retention. Government emails involving his state and personal accounts are being archived by the state consistent with Indiana law, and are being managed according to Indiana’s Access to Public Records Act.”

Indiana Gov. Eric Holcomb's office released 29 pages of emails from Pence's AOL account, but declined to release an unspecified number of others because the state considers them confidential and too sensitive to release to the public.

More from the lengthy story:
Indiana law requires all records dealing with state business to be retained and available for public information requests. Emails exchanged on state accounts are captured on state servers, which can be searched in response to such requests. But any emails Pence sent from his AOL account to another private account likely would have been hidden from public record searches unless he took steps to make them available.

Indiana Public Access Counselor Luke Britt, who was appointed by Pence in 2013, said he advises state officials to copy or forward their emails involving state business to their government accounts to ensure the record is preserved on state servers.

But there is no indication that Pence took any such steps to preserve his AOL emails until he was leaving the governor's office. * * *

Holcomb’s office declined to disclose how many emails were withheld.

Cyber-security experts and government transparency advocates said Pence's use of a personal email account for matters of state business — including confidential ones — is surprising given his attacks on Clinton's exclusive use of a private email server. * * *

Pence’s own account was compromised in June when a hacker sent a counterfeit email to his contacts claiming Pence he and his wife had been attacked on their way back to their hotel in the Philippines, losing their money, bank cards and mobile phone.

In response, Pence sent an email to those who had received the fake communication apologizing for any inconvenience. He also set up a new AOL account.

Because the hacker appears to have gained access to Pence’s contacts, experts say it is likely that the account was actually penetrated, giving the hacker access to Pence’s inbox and sent messages.

The story also touches on the Groth v. Pence/Holcomb case, now pending transfer to the Supreme Court:
In addition to security issues, Pence's personal email account also raises new concerns about transparency, according to ethics experts and government accountability advocates.

Pence is already fighting in state court to conceal the contents of emails involving his decision to join a 2014 lawsuit challenging then-President Barack Obama's executive order on immigration. The emails are being sought by William Groth, a Democrat and labor lawyer who says he wants to expose waste in the Republican administration.

Richard Painter, former chief ethics lawyer to President George W. Bush, said it's bothersome that Pence is only now transferring his AOL emails to the state. It raises questions about whether those emails were included in previous responses to public records requests. "That’s a problem that should have been dealt with back then," he said. "The existence of the private email account should have been dealt with at the time the record requests were made."

[Updated at 10:24AM] Here, via the IndyStar, are some of Vice President Mike Pence's AOL emails.

Posted by Marcia Oddi on Friday, March 03, 2017
Posted to Indiana Government

Ind. Gov't. - More on: Former Columbus mayor files public records suit against the man she named chief of police"

A story today, with audio, from 1010 WCSI Columbus begins:

Former Columbus Mayor Kristen Brown has had four complaints against the current city office holders for violations of public records laws reviewed by the state since she left office. And most of those complaints were justified says Luke Britt, the state’s public access counselor.

Brown has filed a lawsuit against the city police Chief Jon Rohde for a request she made last year to see the reports about a police investigation involving a sheriff’s department official, his wife, and a county-owned vehicle. Britt found in Brown’s favor when that complaint was made to his office. He issued an advisory opinion saying that the police department did not provide enough information to meet the public access standard in that case, Britt said.

The story includes links to the PAC opinions.

Posted by Marcia Oddi on Friday, March 03, 2017
Posted to Indiana Government

Ind. Courts - Filling the Vacancy on the Indiana Supreme Court: What to Expect Today and Beyond

This analysis was prepared by Indiana University-Robert H. McKinney School of Law professor Joel Schumm.

Shortly after the noon deadline for applications to fill Justice Rucker’s vacancy on the Indiana Supreme Court, we can expect a press release listing the names of the applicants.

The number is expected to be low, in a process that has recently drew an average of 25 applicants.

The applicant pool this decade has been gender diverse—more than half of the applicants have been women—but the pool has been overwhelmingly (95%) Caucasian.

Some applicants will have applied in the past, a topic explored in a post from 2012. Interestingly, though, Justice Slaughter is the only justice in the merit selection era who was not appointed on his first application.

Most applicants will be Republicans. The merit selection system was established to be non-partisan, but the applicants have always skewed heavily to the political party of the Governor who will make the appointment. Three of the seven members of the Commission are appointed by the Governor, which helps ensure a strong voice for nominees preferred by the Governor—with one caveat. Because Commission members serve for three years, the terms of some will extend to the next administration. Indeed, the three lay members of the Commission (Rudy Yakym, Lynette Long, and Molly Kitchell) were appointed by Governor Pence.

The Indiana Supreme Court has a long history of unanimous, non-partisan decisions. I don’t anticipate that changing, whether Governor Holcomb appoints a Republican or Democrat, but the perception of some may change after this appointment. For the first time since merit selection was adopted in 1970, the five justices of the Indiana Supreme Court will all have been appointed by Governors of the same political party.

The ILB has provided extensive analysis and commentary (including summaries of every applicant’s interview) for the past four vacancies. The hundreds of blog posts are organized by vacancy and accessible through the links “Vacancy on Supreme Court” to the right.

We plan to provide the same coverage for this vacancy, beginning this afternoon with analysis of the list of applicants.

Posted by Marcia Oddi on Friday, March 03, 2017
Posted to Vacancy on Supreme Court - 2017