Tuesday, March 07, 2017
Ind. Decisions - Supreme Court disbars Fort Wayne attorney
In In the Matter of Donald Edward James, a 4-page, 5-0, per curiam opinion in an attorney disciplinary action, the Court writes:
We find that Respondent, Donald James, committed attorney misconduct by mismanaging his trust account, converting client funds, and failing to cooperate with the disciplinary process. For this misconduct, we conclude that Respondent should be disbarred. * * *
During 2015 Respondent significantly overdrew his attorney trust account on three occasions, regularly commingled personal funds with client funds, made unauthorized cash and check withdrawals from the trust account for his own personal purposes, and failed to maintain adequate trust account records. Respondent also invaded client funds, which resulted in the overdrafts. Respondent largely failed to cooperate with the Commission’s investigation and has failed to participate in these disciplinary proceedings. * * *
Respondent already is under suspension in two other cases for failure to cooperate with the Commission’s investigations. For Respondent’s professional misconduct, the Court disbars Respondent from the practice of law in this state effective immediately. Respondent shall fulfill all the duties of a disbarred attorney under Admission and Discipline Rule 23(26). The costs of this proceeding are assessed against Respondent, and the hearing officer appointed in this case is discharged.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 11 NFP memorandum decision(s))
For publication opinions today (1):
In Don Morris, et al. v. Brad Crain, et al. , a 17-page opinion, Judge Crone writes:
Don Morris and Randy Coakes (collectively “Plaintiffs”) appeal the trial court’s entry of summary judgment in favor of Brad Crain and Richard Redpath (“Crain”). The sole restated issue presented for our review is whether the trial court erred when it entered summary judgment for Crain. Concluding that genuine issues of material fact remain for trial, we reverse and remand for further proceedings.NFP civil decisions today (3):
NFP juvenile and criminal decisions today (8):
Ind. Courts - Motion to remand filed in Groth v. Pence/Holcomb
The ILB has just received this news from Greg Bowes, who represents William Groth in the Pence email case, Groth v. Pence:
In light of new information about Governor Mike Pence’s use of a private email account for official Indiana business, attorney Bill Groth has asked the Indiana Supreme Court to remand his case to the Marion Superior Court for consideration of whether those private email accounts contain information that Groth sought in December, 2014. Because the messages from the private email accounts were only turned over to current-Governor Holcomb on March 2, 2017, Groth worries that those private accounts were not reviewed when he made his 2014 request.Here are links to the Motion to Remand, the Reply Brief on Transfer, and the Request for Oral Argument.
Groth’s appeal to the Indiana Supreme Court is nearly complete. Yesterday, he filed a Reply Brief on Transfer, which represents the final brief allowed before the Supreme Court will decide the case. Groth also asked the Court to conduct oral argument before deciding the case.
Here is the current docket.
Ind. Law - Still more on "Could Indiana pass forfeiture reform this year?"
Updating this March 2nd ILB post on civil forfeiture, here is the current printing of Senate Bill 8, which has passed the Senate and is now in House Courts and Criminal Code, where it has not yet been set for a hearing.
Some items of interest re civil forfeiture:
- From an article by Damon Ross in Reason, dated March 6, that begins:
Today the U.S. Supreme Court declined to hear a case filed by a Texas woman who says that her due process rights were violated when the police seized over $200,000 in cash from her family despite the fact that no one has been convicted of any underlying crime associated with the money. Unfortunately, thanks to the state's sweeping civil asset forfeiture laws, the authorities were permitted to take the money of this innocent woman.
The Supreme Court offered no explanation today for its refusal to hear the case of Lisa Olivia Leonard v. Texas. But one member of the Court did speak up. In a statement respecting the denial of certiorari in the case, Justice Clarence Thomas made it clear that he believes the current state of civil asset forfeiture law is fundamentally unconstitutional.
"This system—where police can seize property with limited judicial oversight and retain it for their own use—has led to egregious and well-chronicled abuses," Thomas declared.
Furthermore, he wrote, the Supreme Court's previous rulings on the matter are starkly at odds with the Constitution, which "presumably would require the Court to align its distinct doctrine governing civil forfeiture with its doctrines governing other forms of punitive state action and property deprivation." Those other doctrines, Thomas noted, impose significant checks on the government, such as heightened standards of proof, various procedural protections, and the right to a trial by jury. Civil asset forfeiture proceedings, by contrast, offer no such constitutional safeguards for the rights of person or property.
- The Washington Post links to the 6-page "Statement of Justice Thomas." Eugene Volokh quotes from the statement.
- The Indiana Supreme Court is hearing oral argument March 23rd in State of Indiana v. Tyson Timbs and a 2012 Land Rover LR2:
The State sought forfeiture of a Land Rover owned by Timbs, who had pled guilty to Class B Felony dealing in a controlled substance and Class C Felony theft. The Grant Superior Court entered judgment for Timbs on the forfeiture complaint. A majority of the Court of Appeals affirmed on grounds forfeiture of the vehicle, worth approximately $40,000, would violate the 8th Amendment’s prohibition against excessive fines. State v. Timbs, 62 N.E.3d 472 (Ind. Ct. App. 2016), vacated.
- Civil asset forfeiture is the subject of a long article in a conservative publication, Townhall. Some quotes:
In a paper published by the Journal of Criminal Justice, California State University-San Bernardino criminal justice professor John Worrall surveyed 1,400 city and state government law enforcement officials about civil asset forfeiture, correlating the poll with data from the U.S. Department of Justice’s Bureau of Justice Systems. The results are not surprising: A plurality—nearly 40 percent—of government law enforcement officials who responded to Worrall’s survey confirmed civil asset forfeiture is financially necessary for their operations.
Worrall also found government law enforcement’s dependence on civil asset forfeiture is linked to government support for the practice. The reason for the link is as simple as it seems: Civil asset forfeiture benefits the government, and it does so at the expense of the people.
“The highly significant relationship between total proceeds received and dependence on civil forfeiture suggests, reasonably enough, that the agencies that not only engaged in comparatively more civil asset forfeitures, but also received generous revenues from such activities, throughout the past 3 years, came to depend on the practice more readily,” Worrall wrote. “That is, the more certain law enforcement agencies received in the way of forfeiture proceeds, the more likely they were to depend on such revenues.”
- The ILB has a very long list of posts on civil asset forfeiture. Some illustrative posts:
- Aug. 15, 2010 - "Ind. Law - Asset Forfeiture Laws And The Common School Fund."
- Nov. 7, 2010 - Ind. Courts - "Forfeiture Law Invites Abuse Of The System" - An outstanding, must-read investigative piece on asset forfeitures begins on the front-page of today's Indianapolis Star, reported by the team of Heather Gillers, Mark Alesia and Tim Evans.
- April 29, 2011 - Ind. Decisions - Still More On: Supreme Court Decides Civil Forfeiture Case - Wednesday's decision by the Supreme Court in Martin Serrano v. State of Indiana and the City of Fort Wayne, and particularly the dicta in footnote 3, is the focus of an Indianapolis Star a must-read story today by Heather Gillers, headed "After state high court opinion, question remains: who is entitled to forfeitures? State high court opinion casts further doubt on whether law enforcement can keep seized assets."
- Jan. 16, 2015 - AG Holder Today Barred Local And State Police From Using Federal Law To Seize Cash, Cars And Other Property Without Evidence That A Crime Occurred
- Feb. 11, 2016 - "Ind. Gov't. - More On: Institute For Justice Files Suit Challenging Indianapolis Civil Forfeiture System"
- Dec. 29, 2016 - Jeff Sessions and Civil Forfeiture.
Ind. Gov't. - "Experts say Indiana’s private university police transparency law has no teeth"
From Student Press Law Center staff writer James Hoyt, this long story from March 3rd that begins:
INDIANA—Margaret Hynds, editor in chief of the Notre Dame Observer, noticed last November that HB 1019, a law former Indiana governor Mike Pence signed, classified private university police departments as public agencies.
So, naturally, the student newspaper requested case documents from the University of Notre Dame Security Police. Notre Dame’s general counsel denied the requests. The Observer filed a complaint with a higher power, Indiana Public Access Counselor Luke Britt. Britt sided with Notre Dame, saying HB 1019’s language was in error and a bill to correct it would soon pass.
A law recently enrolled by the Indiana General Assembly, House Enrolled Act 1022, ostensibly requires private university police departments to release case documents to the public if requested. But experts say the law will still hold private departments to different standards than public ones.
“It really doesn’t make private university police departments generate or retain any kind of documentation they wouldn’t have had to before,” said Britt. Britt calls the law “transparency in name only” but asserts his responsibility to uphold it.
“Nothing’s really changed for us,” Hynds said.
The law comes in the wake of the Indiana Supreme Court’s decision that private university police don’t need to provide records to the public from ESPN’s lawsuit against the University of Notre Dame.