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Monday, March 06, 2017

Ind. Courts - "A former Henry County judge is enjoying her new career at the Statehouse"

That is the lede to this story by Kevin Green in the New Castle Courier-Times. Some quotes:

Judge Mary Willis was elected a Henry County Circuit Court Judge in 2002. When she left the local bench, she was judge of Henry Circuit Court 1 and the county’s juvenile court. She continued to serve as a local judge until last summer when she accepted a position as the chief administrative officer (CAO) of the Indiana Supreme Court, a position created earlier in the year. She began her duties as CAO July 23, 2016.

In addressing the Henry County Republican Club Thursday, Willis explained that her new role basically translates into being the chief of staff for the Indiana Supreme Court. She oversees approximately 250 people, which allows the Indiana Supreme Court judges to focus on writing opinions and hearing cases.

“My job is to basically lift the administrative responsibilities off the judges,” she said. “I don’t hear cases, I have an administrative role as a judge now. I qualify as a senior judge, but I’m not hearing any cases.”

The judge said the thing she misses most about being a local judge is seeing and dealing with the citizens of Henry County.

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Indiana Courts

Ind. Gov't. - Legislative Services Agency turns 50 tomorrow

I received an invitation a few weeks back - the LSA is having a reception tomorrow, March 7, 2017, celebrating 50 years of nonpartisan service.

Unfortunately, a long-scheduled appointment will keep me from attending.

Congratulations to the LSA!

And I can't resist a little history.

I was "present at the creation." In 1965, after my first semester at what was then IU-Indianapolis Law School, entirely a night school, located at the Maennerchor Building, I sought a "law-related" job. Dean Kent Frandsen (father of Kent Frandsen) told me the General Assembly was looking for a couple interns. I went over and interviewed with several legislators, including Jim Plaskett, and got a job. There were a two or three other interns, I remember Mel Richards from Noblesville, who showed me the ropes. The staffing entity was called the Legislative Advisory Committee, and was headed by an executive secretary, Mary Lausch.

Separate from the LAC was the Public Law office, run by Sam Lesh. Bills were drafted and typed there. Big heavy duty manual typewriters pounded out the originals and seven copies (using carbon paper). Xerox had not yet been invented, and neither had the Selectric typewriter.

Some time after I began working at LAC, the staff was expanded greatly with the addition of about a dozen Ford Foundation scholars. The General Assembly met only every other year back then. In 1967, the LSA was created, replacing the LAC and Public Law.

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending March 3, 2017

Here is the Clerk's transfer list for the week ending Friday, March 3, 2017. It is two pages (and 25 cases) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Indiana Transfer Lists

Ind. Decisions - Supreme Court issues 1 today, re presumption in favor of a tenancy by the entirety between spouses

In Cheryl L. Underwood v. Thomas Bunger, in his capacity as the personal representative of the estate of Kenneth K. Kinney; Judith M. Fulford; and Sheree Demming, a 10-page, 5-0 opinion, Justice Slaughter writes:

Indiana has a longstanding legal presumption, recognized by statute and at common law, that spouses owning real property hold their interests as tenants by the entirety. This presumption, which is rebuttable upon a showing the parties intended another form of ownership, applies even if the couple owns the property with one or more additional parties. We hold this presumption is rebutted on the record before us. The deed conveying the property specifies that the three grantees, two of whom are married, shall take the property “all as Tenants-in-Common”. We reverse and remand with instructions. * * *

The Deed overcomes the statutory and common-law presumption in favor of a tenancy by the entirety between spouses by specifying that the three grantees own the property “all as Tenantsin-Common”. We reverse the trial court’s contrary judgment and remand for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - Some notable ILB posts on officials' use of private emails

A quick look through the ILB archives shows earlier examples of public officials' use of private emails. For example:

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Indiana Government

Ind. Decisions - Tax Court posts one from Friday

In 6787 Steelworkers Hall, Inc. v. Jon M. Snyder, Assessor of Porter County, a 12-page, 3/3/17 opinion, Judge Wentworth writes:

6787 Steelworkers Hall, Inc. (“Local 6787”) appeals the Indiana Board of Tax Review’s denial of its applications for a charitable or educational purposes property tax exemption for the 2008 and 2010 tax years (the “periods at issue”). Upon review, the Court affirms the Indiana Board. * * *

Here, the certified administrative record shows that Local 6787’s activities primarily benefitted its members and that its property was not used like a benevolent corporation during the periods at issue. Accordingly, the Court finds that the Indiana Board’s factual findings are supported by substantial evidence.

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 1 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (1):

Angela Locker v. Roger Locker (mem. dec.)

NFP juvenile and criminal decisions today (0):

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Ind. App.Ct. Decisions

Courts - "Calif Supreme Court: No, you can’t hide public records on a private account"

On Feb. 2 the ILB posted: "Cal's top court to decide whether emails and texts sent on personal devices are public record."

Late last week Cyrus Farivar reported in ArsTechnica:

The California Supreme Court ruled Thursday that state and local officials must disclose public records even if those "writings" are held on private devices or accounts. The City of San Jose and the County of Santa Clara had argued that such records could be exempted from the California Public Records Act.

The case dates back to 2009, when Ted Smith, a local environment activist, filed a public records request about various San Jose officials' requests concerning local development efforts. When records came back that did not include materials from personal devices or accounts, he sued.

The state Supreme Court was unequivocal in its conclusion:

CPRA and the Constitution strike a careful balance between public access and personal privacy. This case concerns how that balance is served when documents concerning official business are created or stored outside the workplace. The issue is a narrow one: Are writings concerning the conduct of public business beyond CPRA's reach merely because they were sent or received using a non governmental account? Considering the statute's language and the important policy interests it serves, the answer is no. Employees' communications about official agency business may be subject to CPRA regardless of the type of account used in their preparation or transmission.
According to the Associated Press, 26 states have laws that explicitly make such private communications related to government business officially part of public records — however, that list does not include California.

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Courts in general | Indiana Government

Ind. Gov't. - More on "Pence used personal email for state business — and was hacked"

Updating this ILB post from March 3rd, which quoted Tony Cook's initial IndyStar story, that story was followed by this one later on the same day, detailing "IndyStar's long-running effort to obtain the Pence emails." Some quotes:

In 2014, IndyStar was investigating a possible conflict of interest involving Seema Verma, a powerful state health care consultant who was simultaneously working for one of the state’s largest Medicaid contractors. Verma is now President Donald Trump’s pick to run the Centers for Medicare and Medicaid Services.

In conjunction with that investigation, IndyStar requested emails involving Verma and one of Pence’s cabinet members with whom she butted heads.

About nine months later — well after IndyStar published its report on Verma — the Pence administration provided nearly 1,500 pages of emails.

Tucked among them was an email to Pence’s personal AOL account from a low-level Pence staffer who was forwarding a news clip from the local business journal.

At that time, it was unknown whether he used the personal email address routinely for state business or to discuss sensitive issues.

The use of private emails to conduct public business later exploded as a major 2016 presidential campaign issue. That’s when IndyStar filed a public records request seeking emails from Pence’s personal account.

What ensued was a monthslong effort to access those records.

In September, IndyStar requested all emails between Pence’s AOL account and any state government account, but his administration declined to fulfill that request, arguing it was too broad. IndyStar narrowed its request, but the administration again argued it was too broad.

In a third public records query, IndyStar narrowed its request to meet the administration’s parameters that it name a specific sender and recipient and include a date range of no more than six months and search terms.

Pence’s office accepted that request. Shelley Triol, Pence’s communications director, said on Oct. 27, “we will send responsive records on a rolling basis as they are located and reviewed for confidential material.”

But Pence’s office never did provide any records.

In the weeks before he left the governor’s office, IndyStar filed a complaint with the public access counselor, arguing that the administration had failed to provide the records in a timely manner and expressing concerns about how the records request would be fulfilled since the incoming administration would have no access to Pence’s personal email account.

The access counselor decided in the state’s favor, arguing that Pence’s transition to the White House presented extenuating circumstances.

Despite the setback, IndyStar continued to pursue the records under the new administration of Gov. Eric Holcomb.

Late this past week, Holcomb's office released 29 pages of emails, but withheld an unknown number of others, arguing they are exempt from Indiana's records laws.

IndyStar continues to pursue additional records, as well as more information about those the Holcomb administration is withholding.

That evening, and updated Sat. morning, reporter Cook reported in a new story, headed "Pence turns over to state 13 boxes of emails amid controversy." The long story begins:
Attorneys for Vice President Mike Pence delivered 13 boxes of state-related emails to the Indiana Statehouse on Thursday in an effort to make sure they are archived as required by law.

The move came the same day IndyStar revealed that Pence used a personal AOL account to conduct public business as Indiana governor, raising questions about whether all of his emails regarding state matters were within public reach during his time in office.

“Yesterday we received a large delivery of paper documents,” said Stephanie Wilson, a spokeswoman for Gov. Eric Holcomb, who succeeded Pence in January. "And we understand there is more to come."

She said state officials have not fully reviewed the contents yet.

"It’s been expressed to us that a lot of what’s in those boxes, if not everything, we already have," she said. "But we haven’t verified that."

Pence spokesman Marc Lotter said the records contain emails to and from government accounts, as well as emails between Pence's AOL email account and other non-state government email accounts. He declined to characterize the emails beyond that.

Although he did not mention it during an interview earlier in the day, Lotter said Friday night that Pence's attorneys first attempted to deliver boxes of emails Jan. 9, Pence's last day in office. But Lotter said that amid Holcomb's inauguration activities, there was a "lack of clarity (about) what to do with them," so the attorneys brought the records back to the law firm's offices.

When Pence learned this week that the emails hadn't been delivered, he directed the attorneys to take them to Holcomb's office.

In his first public response Friday, Pence said he has "fully complied with Indiana's laws."

"We had outside counsel review all of my previous email records to identify any that ever mentioned or referenced state business," he said at an event in Janesville, Wis.

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.

Lotter said any emails Pence sent to or from a state government account have always been available for public record searches. But he said he couldn't say whether exchanges about state matters between Pence's AOL account and other private accounts were made available for review in response to public record searches throughout his term as governor.

Pence's office said Thursday that his campaign hired the Indianapolis law firm of Barnes & Thornburg to review his emails during his time as governor to ensure compliance with Indiana law. That review began as he was leaving the governor's office and is ongoing, his office said.

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Indiana Government

Ind. Courts - "21 apply to succeed Rucker on Indiana Supreme Court"

Here is the NWI Time's Dan Carden's story from last Friday on the applications. Some quotes:

INDIANAPOLIS — Only one person currently residing in Northwest Indiana was among the 21 lawyers and judges who applied by Friday's deadline to replace retiring Justice Robert Rucker, a Gary native, on the Indiana Supreme Court.

Attorney Jaime Oss, of LaPorte, is trying a second time to win one of the five seats on the state's high court, after not making the final cut for the 2016 vacancy that went to Justice Geoffrey Slaughter, a Crown Point native.

She is in good company.

Twelve of this year's applicants previously have submitted their names for prior Supreme Court openings, including last year's other two finalists: St. Joseph Superior Judge Steven Hostetler; and Boone Superior Judge Matthew Kincaid.

In total, 15 men and six women applied to succeed Rucker.

Eight are judges and 13 are lawyers, including state Rep. Thomas Washburne, R-Evansville, chairman of the House Courts and Criminal Code Committee.

One applicant, Andrew U.D. Straw, likely will be scratched from the list since he lives in Schaumburg, Illinois, and his Indiana law license was suspended last month by the Supreme Court for repeatedly filing what the court deemed to be "frivolous" lawsuits.

Mark Wilson of the Evansville Courier & Press had a story mentioning State Rep. Thomas Washburne's application, noting that:
This is the second time that Washburne, who was re-elected District 64 representative in November, has sought a seat on the state's highest court. He also was one of 15 finalists interviewed to replace Justice Brent Dickson, who retired in 2016.

Washburne is employed as corporate counsel for Old National Bank and has been a state representative since 2012.

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Vacancy on Supreme Court - 2017

Ind. Gov't. - "Taxes, marriage, pensions, ransomware among topics"

Niki Kelly of the Fort Wayne Journal Gazette has a good survey of "bills on topics from strokes and pensions to ransomware and marriage ... coming out of northeast Indiana House and Senate members at the mid-point of the General Assembly."

Rod Spaw of the Bloomington Herald-Times reports in a $$ story headed "Democratic lawmakers offer bleak view of General Assembly":

[Sen. Mark] Stoops told a nearly full council chamber that any optimism he entertained in January at the beginning of the session quickly eroded under a flood of “anti-” proposals from Republican legislators — anti-abortion, anti-environment, anti-labor — as well as a number of bills overriding local government control on a number of issues, from affordable housing incentives to logging on steep slopes around Lake Monroe.

“Although they hate the federal government telling them what to do, they’re very happy to tell local governments what to do because they know better,” he said. * * *

In response to questions from the audience about how to change the system so that it is more responsive to the public, Pierce and Stoops said there was not much an individual could do against the special interests that pump money into the political campaigns of legislators.

Pierce said lawmakers all over the state need to feel the pressure from constituents before things will change. He and Stoops encouraged Hoosiers to network with people they know in other districts, particularly those of key committee chairs, to press their case on particular pieces of legislation.

The lawmakers also suggested that people support consumer organizations, such as the Citizens Action Coalition or the Hoosier Environmental Council, that advocate for the public interest at the Statehouse. In addition, Stoops and [Rep. Matt] Pierce said another option would be to find a political action committee, or PAC, that represents their point of view and support it monetarily.

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Indiana Government

Ind. Decisions - "COA Finds Compliance With Industry Standards Not Relevant"

The Court of Appeals opinions in Terex-Telelect, Inc. v. Anthony Wade (8/29/16) are the subject of an article by Kyle LeClere, Barnes & Thornburg in National Law Review that begins:

In a recent decision, the Indiana Court of Appeals held that evidence of a manufacturer’s compliance with industry standards was not relevant in a case alleging negligent design. Terex-Telelect v. Wade, 59 N.E.3d 298 (Ind. Ct. App. 2016).

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 3/6/17):

Thursday, March 9

Next week's oral arguments before the Supreme Court (week of 3/13/17):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 3/6/17):

Tuesday, March 7

Thursday, March 9

Friday, March 10

Next week's oral arguments before the Court of Appeals (week of 3/13/17):

Tuesday, March 14

Thursday, March 16 ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms generally will be accessible via videocast.

Past Court of Appeals oral arguments 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.

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Upcoming Oral Arguments