Monday, March 20, 2017
Ind. Decisions - 7th Circuit decides one Indiana case today
In Kenneth Collins v. Nadir Al-Shami (SD Ind., Pratt), a 14-page opinion, Judge Flaum writes:
Following an arrest for driving while intoxicated, Kenneth Collins was booked into the Jackson County Jail in Indiana. Collins later sued a jail physician and the physician’s employer (a private corporation) under 42 U.S.C. § 1983 and Indiana state law, claiming that the doc‐ tor had provided inadequate medical care to Collins during his detention. The district court awarded summary judgment to defendants, and we affirm.
Ind. Courts - "#CanITweet? Guidance to courts on the limits of Broadcast Ban"
A good article by Adrienne Meiring* in this month's publication of the Indiana courts, Indiana Court Times, addresses in detail two questions:
- Is Tweeting Broadcasting?
- Can a judge ethically ban electronics from the courtroom or place restrictions on use of electronics in the courtroom?
* It would be helpful if the position and qualifications of the authors of articles appearing in Indiana Court Times were provided to readers, perhaps in a footnote, as is the practice in other legal publications. The information is used by readers to help determine the weight and reliance to be given to an article. In this case, Ms. Meiring, an attorney employed by the Indiana Courts for a number of years now as counsel to the Indiana Commission on Judicial Qualifications, is well known to members of the judiciary, but perhaps not to all readers. ILB mentions of Ms. Meiring date back to Oct. 14, 2009.
Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 7 NFP memorandum decision(s))
For publication opinions today (0):
NFP civil decisions today (3):
NFP juvenile and criminal decisions today (4):
Vacancy on Supreme Court 2017 - Applicant’s Law Schools, Grades, and Class Ranks
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
It has become a tradition here on the ILB to report the law school grades and class rank of applicants. First on the list of statutory “considerations” for each member of the judicial nominating commission to weigh in evaluating Supreme Court applicants is “Legal education, including law schools attended and education after law school, and any academic honors and awards achieved.” Ind. Code § 33-27-3-2(a)(1).
Question 3 on the application form directed candidates: “List all law schools, graduate schools, and post-J.D. programs attended. Include the school name; dates enrolled; degree or certificate earned; class rank; and any academic honors, awards, or scholarships you received and when.” The second part of the question instructed: “Include with your original application a certified transcript from each school named in Subsection 3A, and attach copies of each transcript to each application copy.” Although the applications are posted online, the transcripts may only be reviewed in person.
Law school grades are of some but limited use. Grading practices vary from law school to law school and have generally become more lenient over time. Class rank is arguably more useful because it provides a comparison of how the applicant compares to others within their graduating class. A 3.3 at some law school in the past few decades could mean an applicant was in the top 20% of their class or may mean they are in the bottom half. Although both Indiana University law schools calculate class rank, many applicants did not include it, instead including comments like “class rank not indicated on transcript” or “not provided” — or simply ignoring the topic.
The following chart, which was compiled by reviewing both the applications and the transcripts, is sorted by GPA and offered as in the past with the caveat that grading practices at some law schools have changed over the years.
The chart excludes applicants who attended law school that did not award conventional grades or calculate GPAs on a 4.0 scale. These include Mr. Rusthoven (magna cum laude)** from Harvard Law School and Judge Graham who attended Howard University School of Law.
Do Grades Matter?
The GPAs from the four most recent selection processes are available at these links: 2010 and 2012-1 and 2012-2 and 2016. The four selected justices had GPAs ranging from 3.00 to 3.29 with class ranks in the top 15%, top 24%, top 34%, and top 59%.
An All IU Supreme Court?
Eight applicants attended IU-McKinney and five attended IU-Maurer, which gives a 65% chance that the next justice will be an Indiana University alum. Joining two McKinney graduates (Justices David and Massa) and two Maurer graduates (Chief Justice Rush and Justice Slaughter), the Indiana Supreme Court could soon be one of the few in the nation filled with graduates of the state’s law schools. (I believe New Mexico, South Carolina, and Wyoming are the others.)
Two of the other applicants attended Louisville, and the remaining five attended (in alphabetical order): Harvard, Howard, Loyola-Chicago, Ohio Northern, and Valparaiso.
** Although used differently at different institutions, summa (highest), then magna, then cum laude are honors reserved for the top percentage of graduating classes or those with a specific GPA. Here's a general description.
Ind. Courts - "State again in search of jurist for high court"
Niki Kelly of the Fort Wayne Journal Gazette has a good lengthy story today on changes to the Indiana Supreme Court. Some quotes:
With just seven years under his belt, Justice Steven David is the old-timer on the Indiana Supreme Court.ILB: This was a March 2, 2016 opinion - see ILB summary here.
In 2010 he kicked off a carousel of arrivals as he replaced former Justice Theodore Boehm.
Three more new justices followed – Mark Massa in April 2012, Loretta Rush in November 2012 and Geoffrey Slaughter in June 2016.
Now the Judicial Nominating Commission begins interviewing Monday for a fifth new justice – replacing retiring Justice Robert Rucker, whose last day is in May.
The result is a wholesale change in the Indiana Supreme Court in just seven years. * * *
The overhaul is pretty novel though muted a bit because Indiana has only five justices while 35 states have between 7 and 9.
While all the justices on the court have decades in the legal profession, their institutional knowledge of the state’s highest court is slim.
“There’s a yin and a yang to turnover. Institutional memory is a valuable commodity,” said Randall T. Shepard, who served on the court from 1985 to 2012, the majority as chief justice.
He was part of the longest-tenured group of five justices together – serving from 1999 to 2010. Court staff at the time researched the feat and had a Hershey bar made with the likeness of the five members’ faces.
“So we went from total stability to all new people. That contast is stark,” said Joel Schumm, professor of law at Indiana University’s Indianapolis campus.
“That being said I don’t think it’s made a huge difference. The fear in a court turnover in a short period of time is they will dramatically change the way they rule. That hasn’t happened.”
Rucker’s departure also brings another distinction – the first time since 1958 that all five members of the court will have been appointed by governors of the same political party.
Mitch Daniels picked three of the current members, Mike Pence had one appointment and Gov. Eric Holcomb will get his first selection in the next few months. * * *
One thing that has changed with the court is that each justice has become more involved in the administration of the court, rather than the Chief Justice carrying all the weight.
Some justices focus on technology issues; others juvenile justice, public access or pro bono work.
[Chief Justice Loretta] Rush said the court takes 90-100 cases a year, though it disposes or votes on almost 900. The vast majority are votes to not accept transfer – or keep a lower court ruling intact.
Some see a move to more family law cases rather than complex civil. But the tenor of the court has remained the same, Schumm said.
Much of its work is behind the scenes – handling attorney and judge discipline; writing rules for all Indiana courts to operate under and licensing new attorneys.
But it’s the opinions that get the attention. Generally, the Indiana Supreme Court is known to uphold state law. A few reversals recently have gotten attention though.
One moved the burden regarding bail from the defendant – making the state prove why the defendant should be denied bail.
Another was a major asbestos case in which Rush’s dissent now seems particularly poignant.
“I cannot say it is so clearly wrong or unjust to warrant upending an issue we have already settled – when nothing has changed since 2003 but a third vote for the opposing view,” she wrote. “I am particularly conscious of our changing composition, both in the recent past and in the near future. And in turn, I am particularly aware of what our actions imply when our narrowly divided Court reverses itself on an issue that, barely a decade ago, narrowly divided us in the opposite direction,” she said.
Ind. Decisions - Transfer list for week ending March 17, 2017
Here is the Clerk's transfer list for the week ending Friday, March 17, 2017. It is one page (and 1 case) long.
No transfers were granted last week. In the one case considered last week, transfer was denied by a 2-2 vote:
- CHINS: SP, et al. v. Indiana Department of Child Services - this is an 11/7/16 NFP COA decision. Transfer Denied - Rush, C.J., and David, J., vote to grant transfer. Rucker and Massa, JJ., vote to deny transfer. Slaughter, J., did not participate. Because the Court is evenly divided on whether to grant or deny transfer, the petition to transfer is deemed DENIED. See Ind. Appellate Rule 58(C).
Ind. Courts - "Future judges, U.S. attorneys in the making"
HAMMOND — Indiana's newest U.S. senator is taking a central role in making long-term changes to the face of federal courts of Indiana.As posted in the ILB Feb. 28th post, a judicial emergency declared in the Southern District of Indiana, "by virtue of an existing judicial vacancy and a weighted filing in excess of 600 per Judgeship," has caused the the Judicial Conference of the United States to announce that via a 3-month pilot agreement, "a discrete number of civil case assignments from the Indianapolis case assignment wheel" will be presided over by two judges in the Eastern District of Wisconsin.
Only months after scoring an upset victory over Evan Bayh, Republican U.S. Sen. Todd Young has taken office in time to nominate several individuals vying to be federal court judges, U.S. attorneys and U.S. marshals here and in Indianapolis.
Jay Kenworthy, a spokesman for Young, said Friday the senator and his staff are consulting with attorneys and judges before forwarding his choices to President Donald Trump for appointment and the U.S. Senate for confirmation. * * *
Indiana has or is about to have judicial vacancies in the federal courthouses in Hammond, South Bend and Fort Wayne as well as Indianapolis, and on the 7th U.S. Circuit Court of Appeals in Chicago.
The U.S. Court website indicates U.S. District Court Judge Joseph Van Bokkelen, who has been on the bench since 2007, is scheduled to attain senior status, a form of semi-retirement, Sept. 29, which likely will trigger a court vacancy.
U.S. District Court Clerk Robert Trgovich said Friday that Judge Robert Miller Jr. in South Bend, who has served since 1986, became a senior judge more than a year ago, which created a vacancy.
He said a judicial vacancy is anticipated in Fort Wayne, although no judge has yet announced plans to retire or become senior judge.
Kenworthy said Young's staff sent notices of the vacancies to the state bar association of lawyers and the prosecuting attorneys association several weeks ago.
Vacancy on Supreme Court 2017 - Interviews begins tomorrow morning to fill the Supreme Court vacancy resulting from Justice Rucker's upcoming May retirement
Beginning tomorrow morning, Tuesday, March , at 9:30, the Indiana Judicial Nominating Commission (JNC) will commence two days of interviews. At the end of this first round of interviews, the applicants will be narrowed down to an as-yet-undetermined number, who will undergo a second round of interviews on April 17-19. At the end of the second round, the Commission will forward three names to Governor Pence.
There is no audio or video feed from the interviews, but the ILB will be reporting them for readers in real-time, as it has since 2010.
As in past years, Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law, will be covering the interviews.
Who is on the Judicial Nominating Commission?
The Judicial Nominating Commission is made up of the current Chief Justice, Chief Justice Loretta H. Rush, who serves as chair, plus three lawyer members, elected by lawyers from each of the three Court of Appeals geographic districts, and three non-lawyer citizen members, appointed by the Governor, all serving three-year staggered terms. Neither the citizen nor attorney commissioners are eligible for successive reappointment or reelection.
The current citizen (non-lawyer) members are:
- Lynette Long (Indianapolis, Second District): [the ILB could locate no information about Ms. Long] Term expires: 12/31/18
- Molly Kitchell (Zionsville, First District): Ms. Kitchell also served on the JNC from 1/1/11 to 12/31/13. Term expires: 12/31/19
- Rudy Yakym III (Granger, Third District): Bradley Company, Senior Vice President. Term expires: 12/31/17
- Charles L. Berger, Esq. (Evansville, First District): Mr. Berger, personal injury attorney who who recently was awarded the David Hamacher Public Service Award, also served on the Judicial Nominating Commission in 1998-2000. Term expires: 12/31/18
- James H. Young, Esq. (Indianapolis, Second District): Mr. Young, a personal injury attorney in Indianapolis, also served on the JNC in 2005-2007. Term expires: 12/31/19
- John O. Feighner, Esq. (Fort Wayne, Third District) Mr. Feighner represents clients in personal injury, wrongful death, automobile liability, product liability, and commercial litigation in state and federal courts. This is Mr. Feighner's third term on the Commission. Term expires: 12/31/17
For more on the past history of attorney members of the JNC, see this chart.
The Interview Schedule.
The Supreme Court has made this week's schedule available here.
Names, photos, and the complete applications of all 20 candidates may be accessed here.
The 2017 interview process will not be their first rodeo for any of the commissioners. The three attorney members all have served at least one previous 3-year stint on the JNC. One of the citizen members, Ms. Kitchell, is beginning her second, non-consecutive, 3-year term. And the remaining two citizen members were part of the 2016 nominating process.
Ind. Decisions - Upcoming oral arguments this week and nextThis week's oral arguments before the Supreme Court (week of 3/20/17):
Thursday, March 23
- 9:00 AM - State of Indiana v. Tyson Timbs and a 2012 Land Rover LR2 (27S04-1702-MI-00070) 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. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal. ILB: This was a 2-1, Oct. 20, 2016 COA opinion where the majority held "that forfeiture of the Land Rover violated the Excessive Fines Clause of the Eighth Amendment."
- 9:45 AM - Charles McKeen, M.D. v. Billy Turner (53A05-1511-CT-02047) In medical malpractice litigation, the doctor moved to strike an expert’s opinion on grounds it raised a theory of malpractice the plaintiff had not presented in prior proceedings before the medical review panel. The Monroe Circuit Court denied the motion to strike. The Court of Appeals affirmed, holding a plaintiff may raise any theory of malpractice in litigation following the panel review process if the proposed complaint and evidence submitted to the panel encompassed the theory. McKeen v. Turner, 61 N.E.3d 1251 (Ind. Ct. App. 2016). The doctor has petitioned the Court to accept jurisdiction over this appeal.
ILB: This is an Oct. 4th COA opinion (and is Judge Baker's 5,000th authored majority Court of Appeals opinion).
- 10:30 AM - Jordan Jacobs v. State of Indiana (49A02-1601-CR-00019) Jacobs was arrested and charged with carrying a handgun without a license. The Marion Superior Court convicted him after a bench trial, rejecting his claim that police stopped him in violation of the Indiana and United States Constitutions. A majority of the Court of Appeals affirmed. Jacobs v. State, 62 N.E.3d 1253 (Ind. Ct. App. 2016). Jacobs has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a 2-1, Nov. 7, 2016 COA opinion (2nd case): "Jacobs contends that the trial court abused its discretion in admitting the handgun into evidence at trial because the handgun was recovered in violation of Jacob’s rights under the Fourth Amendment and Article I, Section 11. ".
- No oral arguments scheduled.
This week's oral arguments before the Court of Appeals (week of 3/20/17):
Thursday, March 23
- 11:00 AM - Wyatt Severance v. New Castle Community School Corporation (33A01-1609-CT-02088) In 2013, Wyatt Severance and Turner Melton were both enrolled in a vocational education program through New Castle Community School Corporation. A physical altercation between the two students resulted in a serious leg injury to Severance, who filed a civil complaint against the school corporation, alleging negligence. The school corporation moved for summary judgment on two grounds: first, that Severance was contributorily negligent in bringing about his injuries, thereby barring any recovery, and second, that the school did not breach its duty to Severance. During the summary judgment stage, Severance designated an expert affidavit, which the school corporation moved to strike. The trial court granted the school’s motion to strike and the school’s motion for summary judgment. Severance now appeals. The Scheduled Panel Members are: Judges Baker, Robb, and Altice. [Where: 2325 Chester Blvd., Richmond, IN]
Monday, March 27
- 1:30 PM - L.G. v. S.L., et al. (29A04-1607-AD-01756) In October 2015, L.G. (“Father”) filed a petition to establish paternity of Infant Male R. (“Child”) with a trial court in Marion County. A few weeks later, Child was born in Fishers, and S.L. and W.L. (“Adoptive Parents”) filed a petition to adopt Child with a trial court in Hamilton County. Thereafter, Father filed a motion to contest adoption. The Hamilton Superior Court consolidated the paternity and adoption cases. Following several months of discovery, on June 23, 2016, the trial court granted Adoptive Parents’ motion to dismiss Father’s motion to contest adoption, and the court concluded that Father’s consent to the adoption was implied by statute. Father appeals and presents the following issues for our review: whether the trial court erred when it concluded that his consent to the adoption was implied pursuant to Indiana Code Section 31-19-10-1.2 for failure to prosecute his motion to contest adoption without undue delay; and whether the trial court abused its discretion when it dismissed Father’s motion to contest adoption as a sanction for alleged discovery violations. The Scheduled Panel Members are: Judges Najam, Bailey, and May. [Where: Court of Appeals Courtroom (WEBCAST)]
- 1:00 PM - Melvin Wolf v. State of Indiana (10A01-1607-CR-01560) Wolf went to the race track to watch his son’s race. Another driver, Kevin Blue, beat Wolf’s son. The two racers’ cars collided on the track. After the race, Wolf approached Blue in the “weigh-in” area. Wolf called Blue names. When Blue turned around, either he grabbed Wolf and Wolf punched him or Wolf just punched him. Both men ended up on the ground, scuffling, until they were pulled apart. Later, Wolf was arrested and charged with battery. During the bench trial, Wolf claimed self-defense. The trial court found him guilty and sentenced him to six months, suspended to probation. Wolf argues the State did not refute his self-defense claim. He claims the trial court erred in finding the fact he called Blue names constituted provocation. Wolf asserts he had a constitutional right to do so. Additionally, Wolf was not in a place he was not allowed to be and he only struck Blue in self-defense after Blue grabbed Wolf’s shirt. He also claims Blue’s testimony was incredibly dubious because it differed from the original police report. The State counters the trial court was presented with sufficient evidence to find Wolf guilty. Wolf did not withdraw from the encounter; thus, a successful self-defense claim was not supported. The State the trial testimony was not incredibly dubious. The Scheduled Panel Members are: Judges Baker, May, and Altice. [Where: University of Southern Indiana, Evansville, 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.