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Tuesday, March 14, 2017

Ind. Courts - More on: Dunkirk City Court judge suspended, effective immediately, following felony battery charge

Updating this ILB post from Sept. 30, 2016, Douglas Walker of the Muncie Star-Press reports today under the heading: "Indiana judge gets suspended sentence for shoving police chief." Some quotes:

PORTLAND, Ind. – The judge of Dunkirk City Court has been placed on probation for a year for shoving the Jay County city’s police chief, who is also the judge’s nephew.

Tommy Dale “Chip” Phillips II, 62, received a one-year suspended sentence Monday from Jay Superior Court Judge Max Ludy Jr.

Ludy accepted the terms of a plea deal negotiated by Phillips’ attorney, Kelly Bryan, and Adams County Prosecutor Jeremy Brown, appointed special prosecutor in the case.

Phillips pleaded guilty to battery against a public safety official, a Level 6 felony. However, his conviction was entered as a misdemeanor.

One of the terms of his probation is that Phillips have no contact with Dunkirk Police Chief Dane Mumbower. * * *

The Indiana Supreme Court suspended Phillips – who had been Dunkirk City Court’s judge since October 2000 – after the criminal charge was filed. It later issued an order directing Ludy and Jay Circuit Court Judge Brian Hutchison to take on the Dunkirk court’s caseload for the time being.

ILB: Phillips is not an attorney.

Posted by Marcia Oddi on Tuesday, March 14, 2017
Posted to Indiana Courts

Ind. Law - Who knew? "Bill to give trucks right-of-way in roundabouts awaits governor's signature"

Scott L. Miley, Herald Bulletin CNHI Statehouse Bureau, reported yesterday (here in IED) in a story that begins:

Just when Hoosiers thought it was safe to drive into a traffic roundabout, the Indiana General Assembly throws in a curve.

Under a bill awaiting the governor’s signature, drivers of cars would yield to larger vehicles, such as a tractor-trailer or recreational vehicle, when they’re in a traffic circle. When two trucks approach a roundabout at the same time, the driver on the right would yield to the one on the left.

”Larger vehicles have a harder time maneuvering through these roundabouts,” said Sen. Michael Crider, R-Greenfield, Senate sponsor of the bill. “They (truck drivers) are also subject to sanctions if they’re involved in an accident in a roundabout.”

House Bill 1039, which passed third reading in the Senate on Monday, was authored by Rep. Jerry Torr, R-Carmel, whose district includes more than 100 roundabouts.

In a brief discussion on the Senate floor Monday, two senators questioned the feasibility of the bill, noting that there was no provision for educating drivers about the shifting of responsibility.

“I just find this very difficult for drivers to understand,” said Sen. Greg Taylor, D-Indianapolis.

Posted by Marcia Oddi on Tuesday, March 14, 2017
Posted to Indiana Law

Ind. Gov't. - "A $6,750 deposit to search the city clerk’s emails? Records retention an issue for small governments"

This story involves Colorado, but is worth studying because it looks at the issue from both sides. It is written by Jeffrey A. Roberts, Colorado Freedom of Information Coalition executive director. It begins:

Paul Houston was “stunned” when he saw Sheridan’s response to an open records request concerning his ongoing effort to ban photo radar and red-light cameras in that suburb of Denver.

On Feb. 8, he had asked for City Clerk Arlene Sagee’s emails over the previous seven months that mentioned any of 10 specific search terms, including “Houston,” a court case number or the words “initiative” or “signatures.”

Sagee’s estimated cost for filling the records request?

Nearly $20,000 with a $6,750 deposit due upfront.

“If they can get away with that, we don’t have an open records act in Colorado,” Houston said. “It’s a joke.”

Emails of public officials are open for inspection under the Colorado Open Records Act, depending on their content. Such messages can reveal important insights into how government decisions are made, but using CORA to obtain emails can be a frustrating and sometimes futile exercise because records-retention policies tend to be vague and discretionary.

The Sheridan clerk’s response to Houston’s records request highlights an all-too-common scenario: Emails can vanish with the click of a mouse, and the cost to recover them can be prohibitively expensive in some government jurisdictions, especially smaller ones with modest budgets for information technology.

More from the story:
From the city’s perspective, it wasn’t simple at all. In a Feb. 13 letter, Sagee told Houston that she deletes her email communications “shortly after I’ve read them.” And because the city “does not archive its emails,” an outside IT contractor would have to spend three hours per day to retrieve, segregate and redact 217 days’ worth of emails.

That’s 651 hours at $30 per hour after the first hour, which CORA says must be provided at no charge. Add another eight hours to establish a recovery domain, and the estimate totals $19,740.

Sheridan’s backup recovery system is designed for disasters, not email retention, said Pete Deichmann, whose company, ITProVision.NET, provides IT services to the city. Because Sagee regularly deletes her emails, Deichmann said he would need to first build the recovery domain and then restore the email database for each day going back seven months.

“We’d restore the database and then search the database, then restore the next day and search that – one day at a time all the way back to July,” he said. “It’s not impossible. It’s just very labor intensive. And you’ve got to have a skilled guy to do it.”

Sagee told the Colorado Freedom of Information Coalition that she typically keeps only those emails that pertain to CORA requests and “anything confidential’ for the city council or from the city attorney. She clears out nearly all of her electronic correspondence “as a normal thing,” she said.

CORA isn’t specific about what she should keep. A provision enacted in 1996 merely requires records custodians to “adopt a policy regarding the retention, archiving and destruction” of public records kept only in “miniaturized or digital form.” While the policy isn’t specified in the law, custodians are supposed to “take such measures as are necessary to assist the public in locating any specific public records sought … without unreasonable delay or unreasonable cost.”

Many municipalities, including Sheridan, have adopted the Colorado State Archives’ retention schedule for municipal records: Correspondence, including emails, should be kept permanently if they have “enduring long-term value” and two years if they have “routine value.” Email messages with “transitory value” don’t have to be retained after they’ve been read.

The archivist’s guidelines vest “considerable discretion in the government employee who sends or receives (emails) to determine how long they should be retained,” CFOIC President Steve Zansberg wrote in 2014. * * *

An email archiving system requires an investment on the part of governments, as well as a commitment to preserving electronic communications that might be deemed important public records.

Posted by Marcia Oddi on Tuesday, March 14, 2017
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (2):

In Michael Lindsey v. State of Indiana , a 15-page opinion, Judge Baker writes:

Michael Lindsey appeals the judgement of the post-conviction court, which denied his petition for post-conviction relief (PCR). He argues that he received the ineffective assistance of trial counsel, who advised him to reject a plea agreement with a thirty-two-year sentence on the grounds that the most he could receive with an open guilty plea was thirty years; instead, he received forty. We find that trial counsel’s performance was ineffective and that Lindsey was prejudiced thereby. Accordingly, we reverse the judgment of the PCR court and remand with instructions to adjust Lindsey’s sentence to thirty-two years. * * *

We find that Lindsey’s case falls precisely into this description [ILB: SCOTUS in Lafler]. And because of the unique circumstances of his case—where he was moments away from submitting a fully-written and signed plea agreement with a thirty-two-year sentence but was dissuaded at the last moment by the erroneous advice of his lawyer—we can measure precisely the amount of prejudice Lindsey suffered as a result of the ineffectiveness of his counsel. But for the poor advice of his attorney, Lindsey would have received a thirty-two-year sentence. Accordingly, we reverse and remand the decision of the PCR court with instructions to modify Lindsey’s sentence from forty years to thirty-two years.

In David Earl Ison v. State of Indiana, an 8-page opinion, Judge Altice writes:
David Earl Ison, pro se, appeals the denial of his post-conviction relief (PCR) petition. We find the following issue dispositive: Did the post-conviction court err in declining to address Ison’s claim of ineffective assistance of trial counsel, which incorporated a challenge to the voluntariness of his plea? We remand. * * *

In its brief order issued two days after the post-conviction hearing, the court indicated for the first time that it would not consider any of Ison’s claims raised in filings made after the original PCR petition filed in 2014. Without any explanation, the court concluded that the only petition properly before it was the original petition. This was erroneous.

On remand, we direct the post-conviction court to make specific findings of fact and conclusions of law with respect to Ison’s claims of ineffective assistance of trial counsel and involuntariness of his guilty plea. See State v. Cozart, 897 N.E.2d 478, 484 (Ind. 2008) (remanding for findings and conclusions on claims not addressed by the post-conviction court).

NFP civil decisions today (5):

Ronald Protho and Gwen Protho v. Tawanna Brown (mem. dec.)

Indiana Farmers Mutual Insurance Company v. Amber N. Yost, Gretchen L. Poehler, Mandy Shearer, and Anne K. Nania (mem. dec.)

In Re: B.W. (Minor Child), Child in Need of Services, J.W. (Father) v. The Indiana Department of Child Services (mem. dec.)

In the Termination of the Parent-Child Relationship of I.K. and L.K. (Minor Children), and K.F. (Mother) v. The Indiana Department of Child Services (mem. dec.)

In the Matter of Tiffany R. Laux: John R. Laux v. Deborah S. Mock (Wilson) (mem. dec.)

NFP juvenile and criminal decisions today (2):

Severo A. Reza v. State of Indiana (mem. dec.)

Randy Tapp v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, March 14, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Supreme Court issues 1 today

In Lt. Henry G.L. McCullough and Princess S.D. Naro-McCullough v. CitiMortgage, Inc., an 11-page, 5-0 opinion with pro se appellants, Justice Rucker writes:

Husband and wife appeal the grant of summary judgment that resulted in foreclosure of their family homestead. Concluding there are no genuine issues of material fact precluding summary disposition, we affirm the judgment of the trial court.

Lt. Henry G.L. McCullough and his wife Princess S.D. Naro-McCullough (“Homeowners”) are honorably discharged Viet Nam era military veterans against whom CitiMortgage, Inc. (“CitiMortgage”) obtained a judgment of foreclosure against their home of more than twenty years. Homeowners attempted to appeal, but as they had done before the trial court, the couple proceeded without legal representation. In doing so, they encountered difficulty navigating our appellate rules. Specifically, after filing a timely Notice of Appeal and Completion of Transcript, Homeowners tendered a woefully defective Appellant’s Brief and Appendix. The Clerk of Courts issued a letter of defect noting the numerous deficiencies in the parties’ brief. Homeowners responded with a motion asking the Court of Appeals to accept their non-conforming submissions. The Court of Appeals denied the motion. Thereafter CitiMortgage moved to dismiss the appeal on grounds that Homeowners failed to remedy the defects in their filings within the applicable time period. In response, Homeowners tendered, and moved for permission to file, a belated brief which was also defective. The Court of Appeals denied the motion and dismissed the attempted appeal with prejudice. And it acted well within its discretion in doing so. See, e.g., Miller v. Hague Ins. Agency, Inc., 871 N.E.2d 406, 407 (Ind. Ct. App. 2007) (noting, “[a]lthough we will exercise our discretion to reach the merits when violations are comparatively minor, if the parties commit flagrant violations of the Rules of Appellate Procedure we will hold issues waived, or dismiss the appeal”). Here the violations were flagrant. Homeowners filed a petition to transfer which the Court initially denied. On reconsideration, deciding to address the merits, we vacated the order denying transfer and assumed jurisdiction over this appeal. Briefing on the merits proceeded in due course. * * *

We acknowledge Homeowners have proceeded before the trial court and on appeal without counsel. But, “[a]n appellant who proceeds pro se is held to the same established rules of procedure that a trained legal counsel is bound to follow and, therefore, must be prepared to accept the consequences of his or her action.” Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003). * * *

Here, by obtaining a discharge in their Chapter 7 Bankruptcy, Homeowners protected themselves from personal liability on debts otherwise due all their creditors including CitiMortgage. Those debts can no longer be collected from Homeowners personally. But the mortgage lien survived and is enforceable as an in rem action. In this summary judgment proceeding, based upon its Complaint on Note and to Foreclose Mortgage, CitiMortgage did not seek an in personam judgment against Homeowners themselves, but rather an in rem judgment against their property for which there was an outstanding lien balance. This was altogether proper, and the trial court correctly granted summary judgment in favor of CitiMortgage.

Posted by Marcia Oddi on Tuesday, March 14, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "Soon? Holcomb's first tests on culture wars"

A good analysis piece today by Robert King in the Indianapolis Star - the long story begins:

One of the key questions about Gov. Eric Holcomb when he emerged as a candidate for governor – and after he was elected – was which of his two immediate predecessors would he most resemble when it comes to hot-button social issues.

Mitch Daniels is largely remembered for attempting to call a truce in the culture wars, although late in his term he signed a bill blocking Medicaid funding to groups that perform abortions. The legacy of Mike Pence, meanwhile, was colored by controversial eruptions over same-sex marriage and religious freedom and the court challenge to block an abortion bill he signed.

Holcomb worked for both governors. He made it clear during his campaign he is allied with social conservatives on issues such as abortion. But he also signaled a more nuanced approach. In his State of the State address, he made no mention of cultural warfare, focusing instead on meat-and-potatoes issues such as roads and bridges, workforce development and the state’s economy.

Soon, though, he could be confronted with a trio of bills that have been moving steadily through the Indiana General Assembly that deal with the kinds of culture wars issues that wind up on voter score cards.

One of the bills would ensure parents have a seat in the courtroom if their minor daughter approaches a judge seeking permission for an abortion without parental approval. A second requires abortion providers to give women seeking a medically-induced abortion information about an unproven method to stop and reverse the “abortion pill.” Finally, a school prayer bill would essentially write into law the types of religious expression courts have said are allowable in public schools.

All three bills have passed one legislative chamber, raising the prospect that they could soon land on Holcomb's desk, prompting the revival of a question that has been circulating since last summer.

The bills are HB 1128, SB 404, and HB 1024.

Posted by Marcia Oddi on Tuesday, March 14, 2017
Posted to Indiana Government

Ind. Courts - Filling vacancies in U.S. prosecutor positions [Updated]

This Feb. 13th ILB post linked to Ind. Senator Todd Young's page providing information for qualified individuals who would like to be considered for an appointment as a federal judge, U.S. Attorney, or U.S. Marshall. Included in the information:

Indiana has two U.S. Attorney vacancies: one in the Northern District and one in the Southern District. Qualified individuals can apply for these positions by downloading the application form here and returning it following the instructions on the form prior to the March 13, 2017 deadline.
Ryan Martin of the Indianapolis Star reports today:
Monday marked the last day for applications to Sen. Todd Young's office for eight federal criminal justice vacancies in Indiana, including both U.S. Attorney posts. As Indiana's only senator in President Donald Trump's party, Young is expected to make recommendations to the White House.

By the middle of the week, Young will begin looking through applications before deciding whom to interview, said Jay Kenworthy, a spokesman for Young.

"We've had several qualified applicants come in already." Kenworthy said.

After that, Young will make his recommendations to Trump. The process could take several weeks, Kenworthy said. Young's office declined to say how many applications have been submitted.

Monday's deadline came just days after the Trump administration asked for the resignation of 46 U.S. Attorneys who were appointed during prior presidential administrations. One U.S. Attorney in Indiana was asked to resign; the other was not.

ILB: Of course, one (Capp) was appointed by President Obama, one (Minkler) was appointed by the federal court to fill in after Hogsett resigned:
Josh Minkler remains U.S. Attorney in Indiana's southern district, which covers 60 counties including Marion County. A career employee, he stepped in to run the office after former U.S. Attorney Joe Hogsett resigned in 2014 before running for mayor of Indianapolis.

Minkler, a Muncie man who attended law school at Indiana University, has worked in the office for 22 years. In June 2015, Minkler was officially appointed by the federal court, which can happen in the absence of a presidential appointment. * * *

David Capp, whose district spanned 32 counties in northern Indiana, announced his resignation Saturday at Trump's request. After leading the office on an interim basis since 2007, he was nominated by President Barack Obama in 2009 and confirmed in 2010.

Capp, who worked 31 years in the office, said in a statement that he had planned to retire in June.

BuzzFeed has a story by Zoe Tillman headed "Half Of All US Attorneys Were Asked To Resign Last Week. What About The Rest?" Some quotes:
The Trump administration on Friday demanded resignations from 46 US attorneys who were holdovers from the Obama administration.
There are 93 US attorneys nationwide, though. So what happened to the other 47?

None were affected by the resignation request.

Before this past Friday’s move, 16 US attorneys had left their posts since the November election — according to information obtained by BuzzFeed News through a review of available records and discussions with US attorneys’ offices — leaving acting US attorneys heading those offices.

The other 31 US attorney’s offices have been run by acting or specially appointed US attorneys since before the election — and they’ve all kept their jobs for now
.
The US attorney positions in their districts are still officially vacant — these officials are serving as placeholders until Trump can name his nominees and get them confirmed by the US Senate.

There is a lot of useful background information in the long story, including:
When a presidentially nominated and Senate-confirmed US attorney resigns, the first assistant US attorney automatically becomes the acting US attorney under federal law. They can hold that job for up to 210 days. There were 19 acting US attorneys before Friday’s resignations.

Once there’s a vacancy, the attorney general also has the option of appointing an interim US attorney. That appointment, however, expires after 120 days. At that point, the US district court for that area can appoint a US attorney to serve indefinitely until the president fills the vacancy with a Senate-confirmed official.

Before Friday, there were 28 US attorneys appointed by an attorney general or a court. At least 21 were appointed by Lynch in 2015 or 2016, and most of them are now serving by court order because the 120-day period passed. The US attorney for Puerto Rico, Rosa Rodriguez-Velez, was appointed interim US attorney in 2006 — under the George W. Bush administration — and has been serving by court order since 2007. The appointment dates for the other six interim US attorneys couldn’t be confirmed as of Monday afternoon.

[Updated] From WANE, this story confirms that "the first assistant US attorney automatically becomes the acting US attorney."
Clifford D. Johnson replaces David Capp, who resigned Friday after U.S. Attorney General Jeff Sessions asked for the resignations of the federal prosecutors who had been appointed by the Obama Administration. Johnson, the northern district’s First Assistant since August 2007, was promoted through rules included in the Vacancies Reform Act. * * *

Johnson joined the U.S. Attorney’s office as a Civil Assistant United States Attorney in January 1986. He served as the office’s Civil Division Chief before moving on to First Assistant. He also worked as a trial attorney in the Department of Justice’s Civil Rights Division.

Johnson earned his B.A. degree from Valparaiso University in May 1976 and his law degree from Valparaiso University School of Law in May 1980.

Posted by Marcia Oddi on Tuesday, March 14, 2017
Posted to Indiana Courts