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.
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.
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:
- Bellwether Properties, LLC v. Duke Energy
Indiana, LLC - this was a 2-1, Sept. 16, 2016 COA opinion (ILB summary here, 2nd case), where the majority concluded:
We conclude that the court erred when it ruled that the six-year statute of limitations on Bellwether’s Complaint had expired, and we reverse the court’s ruling and remand for further proceedings.
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.
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:
- Jan. 16, 2014 - "Private e-mail accounts: state and federal officials, regardless of political party, have sidestepped public records laws meant to keep government activities transparent" and "Christie aide is latest to use private emails."
- Feb. 19, 2014 - "Unsealed email ties Wisconsin Gov. Scott Walker to secret email system."
- Oct. 13, 2015 - "Chicago Tribune sues Mayor Emanuel over use of private email."
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.
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):
NFP juvenile and criminal decisions today (0):
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.
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.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:
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.
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.
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.Mark Wilson of the Evansville Courier & Press had a story mentioning State Rep. Thomas Washburne's application, noting that:
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.
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.
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.
Ind. Decisions - "COA Finds Compliance With Industry Standards Not Relevant"
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).
Ind. Decisions - Upcoming oral arguments this week and nextThis week's oral arguments before the Supreme Court (week of 3/6/17):
Thursday, March 9
- 10:30 AM (CST) - Danny Sims v. Andrew Pappas and Melissa Pappas (45S03-1701-CT-00026) Andrew Pappas was injured in a car accident with Danny Sims, who was drunk. Pappas and his wife sued Sims for negligence. Over Sims’ objection, the Lake Superior Court admitted evidence that he had prior alcohol-related driving convictions in 1983 and 1996. A jury awarded the Pappases $2.0 million in damages. The Court of Appeals reversed and remanded for a new trial, finding evidence of Sims’ prior convictions should not have been admitted. Sims v. Pappas, 61 N.E.3d 1285 (Ind. Ct. App. 2016), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
Note: This oral argument will be held in the auditorium on the second floor of the Theodore Roosevelt College and Career Academy, 730 West 25th Avenue, Gary, Indiana at 10:30 a.m. CST.ILB: This was a 2-1, 10/13/16 COA opinion authored by J.Shepard. From the dissent: "I cannot agree, however, with the majority’s ultimate conclusion, based on an Ind. Evidence Rule 403 analysis, that the trial court abused its discretion by admitting evidence of Sims’s 1983 and 1996 prior alcohol-related offenses."
- No oral arguments scheduled.
This week's oral arguments before the Court of Appeals (week of 3/6/17):
Tuesday, March 7
- 1:00 PM - City of Indianapolis, et al. v. Richard Kaler (49A04-1604-CT-00865) This case stems from Richard Kaler’s (Kaler) bicycle crash while riding a wooden berm, constructed by the Hoosier Mountain Bike Association (HMBA), at the Town Run Trail Park, which is owned and operated by the City of Indianapolis (the City). The trial court denied HMBA’s and the City’s respective motions for summary judgment. On appeal, the HMBA and the City present the following issues for review: Whether the trial court erred in denying summary judgment in light of Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011) and its progeny; Whether Kaler failed to exercise the necessary degree of care and admitted to his contributory negligence as a matter of law; and Whether Kaler designated proper and sufficient evidence in opposition to the motions for summary judgment. The Scheduled Panel Members are: Judges Riley, Crone and Altice. [Where: Court of Appeals Courtroom (WEBCAST)]
- 10:00 AM - Roy A. DeFries, et al. v. Board of COmmissioners of Posey County, et al. (65A05-1508-MI-01249) This case involves a challenge to the Posey County Board of Commissioners’ decision to vacate a public road. On appeal, a group of remonstrators argue that the decision must be set aside because the Commissioners failed to hold a hearing within thirty days as required by statute and because the decision was arbitrary, capricious, and unsupported by the evidence. The Scheduled Panel Members are: Judges Robb, Crone and Altice. [Where: DePauw University, Greencastle]
- 10:30 AM - Town of Clear Lake v. Hoagland Family Limited Partnership (76A05-1606-PL-01241) This case involves the Town of Clear Lake attempting to compel Dan Hoagland to connect three of his properties to its sewer system. The Town points to Indiana statutes that give municipalities the authority to compel connection and punish a failure to connect (the Town’s municipal code sets the penalty at $500 per day per property, which at the time of the trial court’s last hearing amounted to $2.9 million). Hoagland responds that the municipality is only authorized to compel his connection if there is an “available” sewer, and several town officials testified that no one could connect to the sewer until after the Town had installed a grinder pump on the property. In turn, the Town argues that Hoagland should have submitted a plan for how he would connect to the sewer, and only then could the Town know where to put the grinder pump. The Scheduled Panel Members are: Judges Baker, Mathias and Pyle. [Where: Supreme Court Courtroom (WEBCAST)]
Tuesday, March 14
- 1:00 PM - Joseph Lee Pierson v. State of Indiana (89A05-1306-CR-00311) On February 5, 2012, four-month-old K.H.—Joseph Pierson’s son—passed away due to severe malnutrition. Pierson suffers from severe mental retardation. Pierson was ultimately convicted of and sentenced for class A felony neglect of a dependent resulting in death. On appeal, Pierson asks that this conviction be reversed and that a conviction for reckless homicide (which the jury also found him guilty of, but was vacated out of double jeopardy concerns) should be entered instead. Pierson argues that he could not have the requisite intent for neglect of a dependent because of his mental handicap, and that someone with his handicap cannot be legally obligated to take care of another person. Pierson also challenges the use of a video deposition of a State witness, which violated the jury’s right to ask that witness questions. Finally, Pierson argues that a State expert witness should not have been allowed to testify that an insanity defense can only be proven by demonstrating “psychosis.” The Scheduled Panel Members are: Judges Baker, Najam, and Altice. [Where: Vincennes University, Vincennes, IN]
- 6:30 PM - Thomas M. Clark v. State of Indiana (45A03-1610-CR-02300) Thomas Clark challenges his conviction for resisting law enforcement. He argues that the State failed to present sufficient evidence to prove beyond a reasonable doubt that the police ordered him to stop or that he fled from police when he was driving his car. The Scheduled Panel Members are: Judges Baker, Kirsch, and Bradford. [Where: Culver Academies, Culver, IN ]
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.