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Thursday, March 16, 2017

Vacancy on Supreme Court 2017 - Age of Indiana Supreme Court Applicants

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

Previous posts have summarized the age of Indiana Supreme Court applicants. As discussed in this 2012 post, Article 7, Section 11 of the Indiana Constitution provides that justices “shall retire at the age specified by statute in effect at the commencement of his current term,” which remains 75, although the mandatory retirement age for trial court judges was removed in 2011.

The average applicant age since 2010 has been 53, and this year is similar with an average age of 52 and a range from 38 to 68.

Here are the applicants’ ages as of the March 3 deadline:

Applicant Current Age
Oss38
Green39
Creason41
Goff44
Foley46
Kincaid46
Weissmann46
Granger47
Hardman51
Henderzahs52
Riley53
Washburne53
Carmichael54
Owens57
Hostetler58
Medlock59
Dowling60
Graham61
Rusthoven65
Arnett68

The four justices appointed since 2010 were between 51 (Justice Massa) and 54 (Chief Justice Rush); Justice David and Justice Massa Slaughter were both 53. (see list at the end of this 2016 post)

Posted by Marcia Oddi on Thursday, March 16, 2017
Posted to Vacancy on Supreme Court - 2017

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 9 NFP memorandum decision(s))

For publication opinions today (3):

In Admiral Insurance Company v. Joseph Banasiak, et al. , a 22-page opinion, Judge Brown writes:

Admiral Insurance Company (“Admiral”) appeals the trial court’s denial of its motion for summary judgment and its grant of declaratory judgment. Admiral raises one issue which we revise and restate as whether the trial court erred in denying its motion for summary judgment or in entering declaratory judgment in favor of the Estate of Dr. Habib Zadeh. We reverse. * * *

Admiral argues that Dr. Zadeh’s undisputed failure to provide notice of a claim to it excludes Muehlman’s claim from coverage, and asserts that the clear and unambiguous terms of the Policy required written notice with specific information to be timely filed within the policy period. * * *

The focus of this statute is cancellation and the protection of a patient following the early cancellation of a policy which is not reported to the insurance commissioner. We cannot say that Ind. Code § 34-18-13-4 applies to this situation given that the Policy was still in effect at the time of the filing of Muehlman’s complaint and the Policy had not yet been terminated by cancellation. Specifically, the initial policy period was from September 21, 2008, to September 21, 2009, with a “Retroactive Date” of September 21, 2005. Thus, at the point at which Muehlman filed her complaint against Dr. Zadeh on October 6, 2008, the Policy was in effect. We also note that the Policy terminated/expired by its own terms prior to Admiral receiving notice of Muehlman’s claim. Under these circumstances, we cannot say that Ind. Code § 34-18-13-4 requires coverage of Muehlman’s claim.

Conclusion. For the foregoing reasons, we reverse the trial court’s denial of Admiral’s motion for summary judgment and its entry of declaratory judgment in favor of the Estate.

In S.R. v. M.J., a 16-page opinion, Judge Riley writes:
[Issue] Whether Mother knowingly and voluntarily waived her right to counsel at the adoption hearing, where the trial court failed to impress upon her the serious consequences she faced if she represented herself. * * *

Based on the foregoing, we conclude that Mother’s due process rights were violated by the adoption court’s failure to, at the beginning of the consent hearing, either afford Mother with her right to counsel or otherwise ensure that Mother’s waiver of the right to counsel was knowing and voluntary. Reversed and remanded.

In Keenan J.P. Mardis v. State of Indiana, a 6-page opinion, Judge Najam concludes:
Mardis misunderstands McCowan. The court in McCowan was unambiguous: the defendant is entitled “to request” an instruction that the presumption of innocence continues in his favor throughout the trial, and the trial court must give that instruction “if requested.” 27 N.E.3d at 766. But Mardis made no such request. * * * Mardis’ argument is contrary to McCowan. Accordingly, we cannot say that the trial court committed fundamental error when it instructed the jury, and we affirm Mardis’ conviction for murder.
NFP civil decisions today (2):

Eric Kennedy v. Michelle M. Wade (mem. dec.)

Termination: SMH v. Indiana Department of Child Services (mem. dec.)

NFP juvenile and criminal decisions today (7):

U.J. v. State of Indiana (mem. dec.)

Donald Ray Ross v. State of Indiana (mem. dec.)

Clay P. Manvilla v. State of Indiana (mem. dec.)

Marilyn M. Clontz v. State of Indiana (mem. dec.)

Michael W. Simpson v. State of Indiana (mem. dec.)

Raul Gonzalez v. State of Indiana (mem. dec.)

Jonathan D. Harness v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, March 16, 2017
Posted to Ind. App.Ct. Decisions

Courts - Personal attacks against the court by the parties

Yesterday the 9th Circuit rejected the suggestion that the Court hear the case involving Trump’s immigration order en banc. This final passage from Judge Bybee’s lengthy dissent is noteworthy:

Finally, I wish to comment on the public discourse that has surrounded these proceedings. The panel addressed the government's request for a stay under the worst conditions imaginable, including extraordinarily compressed briefing and argument schedules and the most intense public scrutiny of our court that I can remember. Even as I dissent from our decision not to vacate the panel's flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.
[h/t to ILB reader Bill Groth]

Posted by Marcia Oddi on Thursday, March 16, 2017
Posted to Courts in general

Vacancy on Supreme Court 2017 - Looking Ahead: Round One Interviews Begin Next Tuesday

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

As noted in this post, twenty applicants for the upcoming vacancy on the Indiana Supreme Court will be interviewed next Tuesday and Wednesday. As has become a tradition since the 2010 vacancy, the ILB will provide summaries of the interviews and extensive commentary throughout the process.

Coverage of the Supreme Court selection process has always been intended to provide greater transparency and objective insight into what is already a fairly public process. Unlike the current federal vacancies, the public knows not only the number of applicants but can view the bulk of their applications online and even attend their interviews at the Statehouse.

Part II of the Application

The posted application includes most of the requested information, but a few answers do not appear on the posted application, such as health, including treatment for mental illness, and the contact information for references.

The title of the writing samples appears on the public application but the samples themselves require a trip to the Supreme Court library to view. Some educational information is available on the online application, but grade transcripts and grade point averages are not part of the posted application. Finally, letters of recommendation are similarly only available for in-person viewing.

I spent some time Friday afternoon looking through the paper applications. Each was submitted in a binder (most black, some white, and one wood), sometimes with helpful tabs to locate information. The binders fill two banker’s boxes:

Letters of Recommendation

As summarized in this post from 2016 and earlier, the JNC will consider a “reasonable number of letters of recommendation.” A few applicants included letters as part of their binder, but the vast majority of letters are sent directly to Judicial Nominating Commission members or staff. A separate binder includes letters of recommendation organized alphabetically. Letters are still arriving—and several were added literally while I was looking at the binder. For now, suffice it to say that the letters are various degrees of positive, if not glowing, and the number of letters varies considerably among applicants. As noted in the 2016 post, the three finalists each had between 8 and 10 letters.

Physician’s Letter

Question 3 of the non-public part of the Application instructs applicants: “Attach a recent statement from your physician describing your general physical condition.” Most included short letters noting the date of their most recent physical examination and a general statement to the effect of their excellent health and ability to perform the duties of a justice of the Indiana Supreme Court. One letter included detail of specific ailments while another included a multi-page report of highly personal information. Even if not posted online, that information is a public record available to the press and public, as the application instructions make clear.

Looking Ahead

Watch for posts on a variety of related subjects today and tomorrow. Topics include the age of applicants, their law school grades, and the odds of success of the finalists from previous vacancies.

Posted by Marcia Oddi on Thursday, March 16, 2017
Posted to Vacancy on Supreme Court - 2017