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Saturday, March 25, 2017

Ind. Courts - Still more on: Complaint filed against Johnson County prosecutor

Updating this ILB post from Oct. 6, 2016, and this one from Sept. 27, 2016, sometime late yesterday (Friday), the Supreme Court posted its disciplinary ruling in the case of Johnson County Prosecutor.

In In the Matter of: Bradley D. Cooper, a one-page, 5-0 order signed by Robert D. Rucker, Acting Chief Justice of Indiana, the Court writes:

Facts: In 2000, Michael Dean Overstreet was convicted of murder and other charges in Johnson County and sentenced to death. Respondent was one of the deputy prosecutors involved with the case at the trial and sentencing phases. In 2013, this Court authorized the filing of a successive petition for post-conviction relief. The matter initially was before Judge Cynthia Emkes, who presided over Overstreet’s trial and sentencing. However, Judge Emkes filed a notice of recusal, and this Court appointed St. Joseph Superior Court Judge Jane Woodward Miller as special judge to hear the case. Overstreet’s successive PCR petition was litigated in St. Joseph County in 2014, and in November 2014 Judge Miller granted the petition. Respondent, now the elected Johnson County Prosecutor, did not participate in the successive PCR litigation.

After Judge Miller granted the petition, Respondent provided a statement to the Indianapolis Star for public dissemination. In that statement, Respondent indicated he was “suspicious” of the transfer of the case to Judge Miller and then offered as purported support for that suspicion additional commentary that was false, misleading, and inflammatory in nature. In considering the statement itself, and the surrounding circumstances in which it was made, we agree with the hearing officer that the statement attacked Judge Miller’s qualifications or integrity and that Respondent made the statement with reckless disregard as to its truth or falsity.

Violation: The Court finds that Respondent violated Professional Conduct Rule 8.2(a), which prohibits making a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.

Discipline: For Respondent’s professional misconduct, the Court imposes a public reprimand.

Holly V. Hays of the Indianapolis Star caught the story and reported it late last evening. From the story:
Cooper told IndyStar via text message Friday night that the ruling reaffirmed a hearing judge's January recommendation for reprimand.

"I printed out the now official 'reprimand,' placed it in an 8.5"x11" frame I bought from Big Lots and have hung it next to the sentencing order of death which hangs on my office wall," he said.

He declined to comment further on the reprimand.

A complaint was filed following comments he made to IndyStar and the Associated Press questioning the decision to bypass the death penalty for Michael Dean Overstreet, who was convicted of the 1997 rape and murder of 18-year-old Franklin College student Kelly Eckart. Cooper was a deputy prosecutor on the team that won Overstreet's conviction in 2000.

The Indiana Supreme Court moved the Overstreet case to St. Joseph County after Johnson Superior Court Judge Cynthia Emkes recused herself for health reasons. The new judge, Jane Woodward Miller, later ruled Overstreet was not competent to be executed.

"I was angry and suspicious when this case was sent to a distant judge who is not accountable to the Johnson County citizenry or a grieving mother who couldn't even afford to drive up for the hearing," Cooper told IndyStar via text message in 2014. "The idea that this convicted rapist murdering monster is too sick to be executed is nothing short of outrageous and is an injustice to the victim, her mother, the jury and the hundreds of people who worked to convict this animal."

Posted by Marcia Oddi on Saturday, March 25, 2017
Posted to Ind. Sup.Ct. Decisions

Friday, March 24, 2017

Ind. Decisions - 7th Circuit's Judge Hamilton issues strong opinion in Illinois case

In Sherry Anicich v. Home Depot U.S.A., Inc., a 22-page ND Illionois, ED opinion, Judge Hamilton writes:

This tragic case tests the scope of Illinois employers’ tort liability for intentional torts commit‐ ted by their supervisory employees against other employees where the employer has been negligent. Plaintiff’s complaint alleges that the defendants jointly employed as a supervisor a man with a known history of sexually harassing, verbally abusing, and physically intimidating his female subordinates. The complaint also alleges that the joint employers failed to take reasonable steps in response to female employees’ com‐ plaints and to misbehavior that more senior managers ob‐ served.

The supervisor’s treatment of one subordinate, Alisha Bromfield, included verbally abusing her while throwing things, controlling and monitoring her both during and out‐ side her work hours, and requiring her to come with him on business trips. After five years of that treatment, he used his supervisory authority to require Alisha to come on a personal trip with him—to an out‐of‐state family wedding—by threat‐ ening to fire her or cut her hours if she refused. She went. Af‐ ter the wedding, he killed and raped her. 

  Alisha’s mother, acting as the administrator of the estates of Alisha and Alisha’s unborn daughter, has sued the employ‐ ers. The defendant‐employers persuaded the district court that they had no duty to control this supervisor’s behavior. We respectfully disagree. Illinois law permits recovery from employers whose negligent hiring, supervision, or retention of their employees causes injury. The unusually detailed com‐ plaint plausibly states such claims. We believe the Illinois courts would apply this general principle to the claims arising from Alisha’s murder. * * *

The defendants and the district court emphasize that Cooper never made explicit threats and never physically harmed anyone before his fatal attack on Alisha. The district court’s opinion all but requires such a history to support an inference of reasonable foreseeability. * * *

The defendants’ argument also assumes that none of Cooper’s alleged behavior was implicitly threatening. That is incorrect. Anyone who saw Cooper, for example, “throwing and slamming items in the garden center and … parking lot while screaming obscenities,” Am. Compl. ¶ 39, could have easily concluded that Cooper either was dangerous because he had lost control of himself or was trying to frighten Alisha.

Every life lost to brutality is unique, each family’s hell a private one. We do not diminish that truth when we repeat that Alisha’s story is an old story that has been told too many times.8 Its ending is both shocking and predictable. Alisha’s family is entitled to try to prove its truth.

For these reasons, we REVERSE the judgment of the dis‐ trict court in favor of defendants and REMAND for further proceedings consistent with this opinion.

Posted by Marcia Oddi on Friday, March 24, 2017
Posted to Ind. (7th Cir.) Decisions

Environment - "People in Pittsburgh can report odors to authorities using a smartphone app"

James Bruggers reports today in the Louisville Courier-Journal:

Pittsburgh's got an app for them.

It's called Smell PGH.

And there's a case to be made that Louisvillians should have a Smell LOU app on their iPhones.

The smartphone app allows people in Pittsburgh to report and describe any pungent emanations as they are being detected, with the information going to public health officials charged with investigating such complaints. People reporting the odors can also see on a map what other people are experiencing, and where.

"There is an empowerment in that," said M. Beatrice Dias, project director of the CREATE Lab at Carnegie Mellon University, which developed the app with support from the Heinz Endowments. * * *

Odors can be a nuisance, sometimes minor, sometimes serious. They can indicate the presence of pollution that could be harmful and in a localized area not detected by regional air quality monitoring.

The app came out of work CREATE Lab did to help connect and empower – with cameras and shared Google spreadsheets – a neighborhood that was having difficulty with pollution from a coke works industrial plant, Dias said. Carnegie Mellon rolled it out last fall and it's available for anyone to use.

Posted by Marcia Oddi on Friday, March 24, 2017
Posted to Environment | Indiana Government

Ind. Gov't. - More on "Bills that allow police to take DNA upon arrest advance"

Updating this ILB post from Feb. 21st, Madeline Buckley reported March 22nd for the Indianapolis Star - some quotes from the long story:

If an individual is arrested, and DNA is collected — but prosecutors do not immediately file charges — how long should the government be able to hold on to the DNA sample?

Is 30 days enough time? What about six months?

Or should the government be allowed to keep a person's DNA for a year, even if he or she has not been formally charged with a crime?

Lawmakers on Wednesday debated the question during a committee hearing for a bill that would allow police to take a DNA sample upon arrest, broadening the scope of the state's DNA database, which currently only takes samples from those who have been convicted of a crime.

Versions of the bill have passed both the House and the Senate, signaling support for the measure, which proponents say will help police solve crimes and could exonerate innocent people. But the proposal also has generated vigorous debate about privacy rights and the potential for government overreach.

Now, the bills are back in committee hearings as lawmakers hash out details about how the measure would actually work, if enacted. * * *

In the version of House Bill 1577, which passed the Indiana House of Representatives, a person could remove a DNA sample from the system if no charge was filed within 30 days. But as lawmakers are working to align that bill with the similar Senate Bill 322, which passed the Senate, they altered the provision so that prosecutors now have a full year to file charges before an individual can remove a DNA sample from the system.

Posted by Marcia Oddi on Friday, March 24, 2017
Posted to Indiana Government

Ind. Gov't. - "Can you hear us? Public deserves say in 'small cell' placement"

From a long Fort Wayne Journal Gazette editorial yesterday on SB 213:

Jim Sack was not happy when a new utility tower popped up along his beloved Rudisill Boulevard.

“I called the city and acted like a spoiled brat,” he said, “That boulevard is my baby. I was jumping up and down and insisting they move it, so it went from the north side of the road to the south side. I called again and it finally got moved to Bluffton Road and Broadway.”

But the city wasn’t behind the new pole. It was Verizon Wireless, which is installing small towers across the city as part of its new 5G network expansion. Last June, The Journal Gazette’s Frank Gray reported on a Wallen Road resident who had a similar experience, with a pole originally planted in the right of way in front of his home.

If Senate Bill 213 passes the Indiana General Assembly in its current form, there will be many unhappy property owners, and local elected officials will have no authority to intervene when a telecommunications company decides a spot outside a home, business or church is the best place for its tower. The legislation makes placement of a “small cell facility” exempt from local zoning review.

Make no mistake: A 5G network is a good thing to have. It delivers data at up to 10 times the speed of the current LTE network, so video streams smoothly; websites load instantly. As with most new technology, consumers will demand it once it’s available.

But for now, the technology requires many smaller towers – ideally about every 500 feet – in addition to the large towers. With five wireless carriers in Indiana, it could mean thousands of new towers in densely populated areas.

The House Utilities, Energy and Telecommunications Committee last week heard representatives for the industry extol the benefits of 5G, suggesting Indiana needs to pass the bill to support economic development.

Posted by Marcia Oddi on Friday, March 24, 2017
Posted to Indiana Government

Ind. Gov't. - "Emails reveal problems and fears with state asbestos investigation"

Sandra Chapman reported for 13 WTHR last evening in a story that began:

INDIANAPOLIS (WTHR) - A new legal team for the Indiana Attorney General is releasing critical emails in response to a lawsuit.

The emails were originally "blacked out" by the state's top environmental agency.

13 Investigates now has copies of the correspondence too, showing what IDEM was hiding as contamination piled up in an Indiana neighborhood.

Entire pages of emails once "blacked out" are now filled in.

No more hiding what the Indiana Department of Environmental Management knew about the removal of asbestos and asbestos-laced debris left blowing in the wind in Goshen.

In a move toward transparency, the Indiana Attorney General's office released 28 emails to 13 Investigates.

Key emails came from an IDEM inspector who is under scrutiny for issuing "no violations" for improper asbestos removal at the old Johnson Controls site, despite confirmed asbestos samples in hand.

Homeowners living near the site close to Goshen High School took IDEM to court to demand the agency come clean.

Instead of fighting to keep the records confidential, the Indiana Attorney General's Office decided to turn over un-redacted copies to a federal court.

ILB: The ILB does not yet have the name of the federal lawsuit ...

Posted by Marcia Oddi on Friday, March 24, 2017
Posted to Environment | Indiana Government

Thursday, March 23, 2017

About the ILB - An opportunity for your firm or company to become the ILB's exclusive sponsor

Over Tuesday and Wednesday, the ILB had 12,876 page views - 5,474 on March 21st and 7,402 on March 22nd.

The ILB is looking for a new sponsor (or group of several sponsors) to step forward to support its mission, which began in 2003, of collecting and reporting on the news that matters to lawyers, judges and citizens across Indiana.

Contact me with serious inquiries. Thank you.

Posted by Marcia Oddi on Thursday, March 23, 2017
Posted to About the Indiana Law Blog

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

For publication opinions today (2):

In John E. Warner, Jr.; Rick Clay; Sam Early; Brian Goeglein; Mike Campbell; Brad Wilson; and John Zimmerman v. Chauffeurs, Teamsters, and Helpers Local Union No. 414 and Speedway Redi Mix, Inc. , a 14-page opinion, Judge Bradford concludes:

We conclude that the Drivers’ claim that the Union and Employer have required them to remain members of the Union in violation of the Act is a claim upon which relief can be granted. Consequently, we reverse the trial court’s grant of the Union’s motion to dismiss this claim. However, we conclude that the Drivers’ claim based on the Dues Checkoffs is a claim over which Indiana courts have no jurisdiction. We affirm the trial court’s dismissal of that claim and its associated claim of money had and received. We affirm the judgment of the trial court in part, reverse in part, and remand for further proceedings consistent with this opinion.
In Hoosier Mountain Bike Association, Inc., City of Indianapolis, and Indy Parks and Recreation v. Richard Kaler , a 14-page opinion, Judge Riley writes:
Appellants-Defendants, the City of Indianapolis and Indy Parks and Recreation (the City),3 appeal the trial court’s denial of their motion for summary judgment with respect to Appellee-Plaintiff’s, Richard Kaler (Kaler), claims of negligence after Kaler sustained injuries in riding the City’s mountain bike trail at Town Run Trail Park.

The City presents us with four issues on appeal, which we consolidate and restate as follows: (1) Whether a genuine issue of material fact precluded the entry of summary judgment on Kaler’s claim of premises liability; and (2) Whether a genuine issue of material fact precluded the entry of summary judgment based on the City’s claim that Kaler was contributorily negligent. * * *

Based on the foregoing, we hold that there is no genuine issue of material fact that precludes the entry of summary judgment in the City’s favor on Kaler’s claim of premises liability; and Kaler was contributorily negligent when riding the City’s mountain bike trail at Town Run. Reversed.

NFP civil decisions today (0):

NFP juvenile and criminal decisions today (2):

Bradly Paul Canter v. State of Indiana (mem. dec.)

Jabril Scruggs v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, March 23, 2017
Posted to Ind. App.Ct. Decisions

Ind. Courts - " Body-cam videos play key role in local cases: New technology working its way into legal system"

That is the headline to a long March 20th story in the $$ Bloomington Herald-Times, reported by Laura Lane. [Some of the story may be accessed via the Indiana Economic Digest.] Some quotes:

Police body cameras have become part of the uniform, a safety accessory along with the service revolver, pepper spray, riot baton and bullet-proof vest.

Video and audio footage from cameras clipped to officers’ shirts is finding its way into courtrooms, used as evidence in criminal cases.

“We believe that it is now a ‘best practice,’ as well as good public policy, for all police to be equipped with body-cam technology,” said Bob Miller, chief deputy prosecutor in Monroe County. “There is simply no better evidence of what occurs during a police-citizen encounter than video of the event.”

In October 2014, a body camera clipped to BPD Officer William Abram’s uniform recorded the sounds of gunshots from inside a dark residence where two women were being raped at gunpoint. The video shows two men escaping from a bedroom window and one turning and firing toward Abram, who shot back.

It documents just what happened and backed up the officer’s account.

It’s evidence. Strong evidence.

During a trial this month in Monroe Circuit Court in which a man was convicted of causing his 2-month-old daughter’s death, deputy prosecutor David Gohn played for jurors a video and audio recording. It came from a Bloomington police officer’s body camera that was on when the parents of the battered infant were told that despite efforts to revive her, Kenya Rose Smith-Barton had died. * * *

Video from the cameras is downloaded at the end of each officer’s shift and preserved on a server. Video not related to criminal cases is generally kept for six months, he said. Video involving arrests and circumstances where criminal charges are filed is passed along to the prosecutor’s office and kept until the case is over.

What is pertinent and allowed as evidence for a trial is determined by rules of evidence and a judge’s interpretation. Miller said body-cam evidence is available to both the prosecution and the defense.

“The rules governing its admissibility are no different than any other photographic or video exhibits,” he said. “Clearly, it must be relevant to the issues before the court, and it must be properly maintained to avoid any risk of tampering.”

He said that before such evidence can be used in an attorney’s closing statement, as it was in McNeil’s trial, it must first be admitted as an exhibit through a witness, most often the officer who was wearing it. “We believe that this kind of ‘real time’ evidence is helpful to jurors in many cases,” Miller said. Sometimes, it helps determine a verdict.

Posted by Marcia Oddi on Thursday, March 23, 2017
Posted to Indiana Courts

Ind. Courts - "Indiana police digitally transform the search warrant process"

That is the headline to this company news release issued March 20th. Some quotes:

Marion County Superior Court in Indiana wanted to speed and streamline the search warrant process. By digitally transforming systems, the county could handle its annual 4,000 warrants better by reacting faster and more accurately.

Working with BerkOne and using Kofax software, Marion County deployed an electronic warrants system to request and receive approval for search warrants digitally from their vehicles’ computers. * * *

If a submission in a clerk’s queue is not processed within 10 minutes of receipt, the clerk receives another email alert. Similarly, judges are given 25 minutes to review and approve or deny a warrant. Once that time has elapsed, the job is automatically assigned to a secondary judge, who is notified by email and given 10 minutes to complete the review.

In Marion County, the new electronic warrants system has reduced approval time from hours to an average of 18 minutes,

Posted by Marcia Oddi on Thursday, March 23, 2017
Posted to Indiana Courts

Courts - Big box/dark box in other states: Wisconsin, Kentucky

Updating a long list of earlier ILB posts, here is a March 19th AP a story from Wisconsin, headed "Big Box Stores Gird for Battle with Wisconsin Cities."

And yesterday Valarie Honeycutt Spears of the Lexington Herald-Leader reported "Walgreens loses tax lawsuit that could have cost Kentucky schools millions." This seems a lot like the big box/dark box issue in other states, but the ILB can't say for sure. Some quotes from the lengthy story:

The Kentucky Supreme Court declined this month to hear an appeal brought by Walgreens Co., presumably ending a longstanding legal battle between the pharmacy chain and Fayette County officials that threatened to strip hundreds of millions of dollars from Kentucky’s school districts. * * *

In its lawsuit, Walgreens contended that Kentucky PVAs use the wrong methodology to determine the value of its stores, resulting in inflated values and unfairly high tax bills. Statewide, Walgreens had appealed the valuation on most of its approximately 94 stores to the state board of tax appeals, O’Neill said. * * *

O’Neill said his office and Fayette County Attorney Larry Roberts’ office “stepped up to take this case on behalf of the entire state.”

“It’s far-more reaching than Walgreens,” O’Neill said. “It’s any number of national chains.”

The 2015 ruling in Fayette Circuit Court said the method O’Neill used to value the property “was not arbitrary or capricious, nor was it clearly erroneous.”

The appeals court concurred, saying, “While Walgreens demonstrated an alternative method for assessing the property, it failed to present convincing evidence that the PVA’s assessment overvalued the property.”

There are three accepted practices for determining a property’s value:

▪ For a residential property, PVAs usually base their estimates on comparable sales in a given neighborhood.

▪ For a new commercial property, PVAs sometimes look at the cost of construction.

▪ For an existing commercial property, PVAs usually determine a value by calculating how much income it can generate. In other words, what could a real estate holding company collect by renting the property over time to a corporation, such as Walgreens?

Walgreens contended that its stores should be assessed based on the sales price of comparable properties, not its cost to lease the stores.

Posted by Marcia Oddi on Thursday, March 23, 2017
Posted to Courts in general

Ind. Gov't. - More on "Wrong statements by lawmaker on solar energy stir backlash"

Updating this ILB post from Feb. 27, and a long list of other posts on net metering, Robert King of the Indianapolis Star reported March 21 in a long story headed "Solar energy at crossroads in Indiana" that begins:

To hear solar energy enthusiasts tell it, the future of a growing Indiana industry is at stake, one that benefits homeowners, small businesses, churches and schools; that provides good jobs and, yes, helps the planet.

To hear big utilities describe it, the solar industry is well enough established in Indiana that it should be able to stand without the incentives that got it off the ground, and that could someday become costly to other power customers.

Perspectives aside, there’s little argument that the bill being debated Wednesday [yesterday] in the Indiana House could be a pivot point for the state’s community of small-scale power generators — be they from solar, wind or other forms.

The pivot point, both sides agree, is Senate Bill 309, which has generated as much energy as any other issue in the legislature this year. It pits the well-financed utility industry — which has spent more than $1 million on campaign contributions to legislators in the past year — against a collection of grassroots groups whose members have crowded town hall meetings and Statehouse hearing rooms.

At stake with SB 309 is the financial incentive that helps offset the considerable installation costs of solar panels, wind turbines and other equipment for small producers, through a process called net metering. The incentive allowed them to sell any surplus power back to the utility companies at retail rates, currently around 11 cents a kilowatt hour. The bill would eventually lower the credit for the surplus to the wholesale rate, currently about of 3.5 cents a kilowatt hour.

Posted by Marcia Oddi on Thursday, March 23, 2017
Posted to Indiana Government

Ind. Gov't. - Update on forfeiture bills

"Forfeiture bill faces almost certain death this session" reports Fatima Hussein, in an Indianapolis Star story. Rep. Washburne, R-Evansville, chairman of House Courts & Criminal Code committe, "said in an email to IndyStar that the House is not likely to hear Senate Bill 8." (Yes, the same Washburne who was yesterday named a semi-finalist for the Supreme Court). The story reports that instead, House Bill 1123, "which assigns a study committee on the topic of civil forfeiture laws ... has passed through the House and Senate and now awaits a signature from Gov. Eric Holcomb." The story continues:

Several lawsuits challenging the constitutionality of seizure are being litigated from the county to state levels. Attorneys say there is more at stake, especially if Senate Bill 8 dies.

Cardella at IU filed a class-action lawsuit in federal court against Marion County's prosecutor, Indianapolis' mayor and the chief of police for civil forfeiture practices that he says violate criminal defendants' constitutional right to due process.

"If the legislature isn't going to fix the problem, the fix is going to have to come from the courts," he said.

Cardella's suit [Jeff Cardella, an Indianapolis criminal law attorney and professor at Indiana University's Robert H. McKinney School of Law] has endured despite the state's attempts to dismiss the lawsuit. Federal Judge Magnus-Stinson issued a ruling earlier this month denying Marion County's motion to dismiss Leroy Washington v. Marion County Prosecutor.

In the event Cardella is not successful, "we will appeal," he said.

Later this week [ILB: today at 9 am], Indiana's Supreme Court will hear State v. Timbs, Landrover, a case where the state sought forfeiture of a Land Rover owned by Tyson Timbs, an Indiana man who had pleaded guilty to a multiple felonies dealing in a controlled substance and theft.

Timbs used the vehicle to drive from Marion, Indiana to Richmond, Indiana for the purposes of purchasing heroin. He alleges that the seizure of the vehicle, worth approximately $40,000, violates the 8th Amendment’s prohibition against excessive fines.

The Grant Superior Court entered judgment for Timbs on the forfeiture complaint. A majority of the Court of Appeals affirmed on grounds that the forfeiture would constitute excessive fines.

The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

ILB: More on forfeiture bills via this list.

Posted by Marcia Oddi on Thursday, March 23, 2017
Posted to Indiana Government

Wednesday, March 22, 2017

Vacancy On Supreme Court 2017 - Thoughts on the First Round

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

For those who have asked, yes, the questions were more difficult yesterday and today than in earlier first rounds. There were no standard opening question(s), and many of the questions were the type of questions (or actual questions) asked in the second round in the past. As Commission members fairly noted, this is a second or third interview for many of the applicants, most of whom have interviewed in the past. I jokingly asked on a break if the second round this year would be a cage match.

The questions were certainly fair and the Commission (and citizens and lawyers of the state) should expect applicants to discuss a variety of legal issues in a cogent and hopefully thoughtful way. This is not an easy process, but we should expect a lot before someone receives a lifetime job (retention elections have never been close in Indiana) on the state’s highest court.

Today’s deliberations should have been easier than the deliberations will be after the second round in April. The Commission was not limited in the number of applicants it could advance. In recent selection processes, about half advanced, although a much smaller percentage advanced when 34 applicants applied in 2010. Today’s vote of eleven names (or 55%) is a bit higher than the past.

I am not surprised with the list of eleven. I created a list of nine names earlier this afternoon that I thought would (that’s “would” not necessarily “should”) advance. All nine did indeed. The interview surely matters, but a less-than-stellar interview is not necessarily disqualifying, as today’s list shows. Some applicants come to the interview with an especially strong application or support on the Commission. Although today’s public vote was unanimous (after Mr. Feighner made a motion seconded by Mr. Yakym), applicants certainly had varying degrees of support among the members, as the four-plus hours of deliberation would suggest.

For what it’s worth, as I have written in the past, trial judges excelled in the interviews — Judges Foley, Carmichael, Goff, and Hostetler were especially strong. Although practice or familiarity with the process surely helps, first-time applicant Judge Foley made most of his shots, some from three-point range (to continue with the basketball reference from earlier today).

These and other applicants with strong interviews generally answered questions directly and succinctly while demonstrating a nuanced and thoughtful understanding of the role of an Indiana Supreme Court justice. One could envision them sitting at the conference table discussing cases, asking questions in an oral argument, chairing an important meeting, or speaking to a group of lawyers or schoolchildren.

Those who struggled with parts of the interview may have not adequately prepared or may have over-prepared, to the point of offering non-responsive and seemingly canned answers to questions. The Commission’s questions expected familiarity with the work of the Indiana Supreme Court, including its opinions and administrative work. Many answers demonstrated a sufficient understanding, while others sometimes went into territory likely to alienate at least some members of the Commission, like a discussion of a recent 3-2 opinion.

All that said, I hope those reading this will both congratulate those who advanced and thank those who did not. I remain a big proponent of Indiana’s merit selection system, which only works when individuals agree to step forward and apply as part of a public and something challenging process.

Posted by Marcia Oddi on Wednesday, March 22, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Commission selects 11 finalists for second interview

Here is the official news release:

The Judicial Nominating Commission named 11 finalists for the 110th Supreme Court judicial position. The Commission conducted public interviews of twenty applicants March 21-22. The following applicants will be invited to second interviews with the JNC in April:

Hon. Vicki L. Carmichael, Clark Circuit Court 4
Hon. Peter R. Foley, Morgan Superior Court 1
Hon. Christopher M. Goff, Wabash Superior Court
Hon. Maria D. Granger, Floyd Superior Court 3
Ms. Elizabeth C. Green, Indianapolis, Indiana
Ms. Leslie C. Henderzahs, Fishers, Indiana
Hon. Steven L. Hostetler, St. Joseph Superior Court
Hon. Matthew C. Kincaid, Boone Superior Court 1
Mr. William N. Riley, Indianapolis, Indiana
Mr. Peter J. Rusthoven, Indianapolis, Indiana
Rep. Thomas W. Washburne, Evansville, Indiana

On May 12, 2017 Justice Robert D. Rucker will retire from the five-member Supreme Court. According to the Indiana Constitution and state statute, the seven-member Commission must recruit and select candidates to fill the vacancy on the state’s highest court. Applications and photographs of judges and lawyers who were interviewed for the position are available online. The Commission considers applicants’ legal education, writings, reputation in the practice of law, and other pertinent information.

The Commission will interview the 11 finalists April 17-19. The Commission will then publicly vote to send three nominees to the Governor who has 60 days to select Indiana's next justice.

Posted by Marcia Oddi on Wednesday, March 22, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - JNC names semi-finalists

Here are the names, announced slightly after 5 pm this afternoon:

Carmichael
Foley
Goff
Granger
Green
Henderzahs
Hostetler
Kincaid
Riley
Rusthoven
Washburne

Posted by Marcia Oddi on Wednesday, March 22, 2017
Posted to Vacancy on Supreme Court - 2017

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 12 NFP memorandum decision(s))

For publication opinions today (2):

In Lisa Gill, et al. v. Jeffrey B. Gill, et al. , an 11-page opinion,. Judge Bradford concludes:

In sum, we are bound by the Indiana Supreme Court’s decision with regard to the constitutionality of statutory authority allowing a trial court to order a divorced parent to contribute to their child’s post-secondary educational expenses. In addition, with respect to Jasen Simcox, the trial court did not abuse its discretion in (1) crediting him for nonconforming child support payments made to Amy Likes or (2) basing his financial obligation for T.S.’s post-secondary education on the cost of a public university rather than a private university. In this consolidated appeal, the judgments of the trial courts are affirmed.
In Corey A. McAlpin v. State of Indiana, an 11-page, 2-1 opinion, Chief Judge Vaidik writes:
The State charged Corey A. McAlpin with Level 4 felony dealing in methamphetamine (manufacturing), alleging that he was found to be manufacturing the drug around 10 a.m. on August 21, 2014. The State enhanced the offense from a Level 5 felony to a Level 4 felony because it claimed that McAlpin committed the offense in a drug-free zone, that is, in, on, or within 500 feet of Bicentennial Park in Madison, Indiana, “while a person under eighteen (18) years of age was reasonably expected to be present.” Given that August 21 was a school day for public and private schools in the Madison area and the unique status of Bicentennial Park as having an outdoor amphitheater but no playground equipment, benches, or shade trees, we conclude that the State has failed to prove beyond a reasonable doubt that it was reasonably expected that children would be present at the park at the time of the offense. We therefore vacate McAlpin’s conviction for Level 4 felony dealing in methamphetamine and remand with instructions for the trial court to enter judgment of conviction for Level 5 felony dealing in methamphetamine and to resentence him accordingly. * * *

Reversed and remanded.
Brown, J., concurs.
Bradford, J., dissents with separate opinion. [that begins, at p. 8] Because I disagree with the majority’s conclusion that the State failed to prove beyond a reasonable doubt that children were reasonably expected to be present at Bicentennial Park at 10 a.m. that day, I respectfully dissent.

NFP civil decisions today (0):

NFP juvenile and criminal decisions today (12):

Robert A. Ellington, III v. State of Indiana (mem. dec.)

John Edward Williams v. State of Indiana (mem. dec.)

Stephen Roberts v. State of Indiana (mem. dec.)

Michael Jurell Jones v. State of Indiana (mem. dec.)

Kenneth Scott v. State of Indiana (mem. dec.)

Ronald Tolliver v. State of Indiana (mem. dec.)

Trevor J. Laughman v. State of Indiana (mem. dec.)

Latosha Price v. State of Indiana (mem. dec.)

Billy Neeley v. State of Indiana (mem. dec.)

Austin Jay Huffman v. State of Indiana (mem. dec.)

John F.M. Shaw v. State of Indiana (mem. dec.)

William Harvey Ellis, Sr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, March 22, 2017
Posted to Ind. App.Ct. Decisions

Vacancy On Supreme Court 2017 - Day 18: Report On Interview #20, Mr. Bryce D. Owens

This is Prof. Joel Schumm's report on the 20th, and final, interview of the first round

Mr. Bryce D. Owens, Pendleton (photo) (application)

In response to a question about filling the shoes of Justice Rucker, Mr. Owens said he does not pretend he could fill Justice Rucker’s shoes. Mr. Owens said he has “basically twelve years left,” which he would like to spend as a sprint to help get the work of the Court done.

In response to a question about improving the court system, Mr. Owens noted the need for the Court to be a leader. He said it is important to bring more people into the process so they understand the process, which is being done with traveling oral arguments. He noted concern about individuals with minor injuries being able to bring their cases because of the cost of experts. He suggested for cases under $25,000 that individuals might be allowed to present their medical bills to seek compensation.

In response to a question about a justice he would emulate, Mr. Owens cited Justice Douglas, who advocated for the small person, which he said it important because the Court is the last arbiter.

Mr. Owens said he would stay in his current residence, about one hour from the Court, if selected. His application noted that he lives “on a small farm. We have llamas, alpacas and a variety of other animals.”

In response to a question about the duties of the Court, Mr. Owens said he is reflective, contemplative, and a good listener.

Mr. Owens believes a dissent can be important and is written for the benefit of the bar. The purpose is not to get at anybody but it is important to illustrate the difference of opinion on an issue.

Mr. Feighner returned to the Justice Douglas response, and asked about the right to privacy and role of the Indiana Supreme Court. He noted the importance of protecting some sphere of privacy, even in an era when many people expose a great deal of information on social media.

In response to a question about a significant case, Mr. Owens recited Brown v. Board of Education. He noted it took many years to get to the point that separate is not equal. The case is important because it advances society and incorporates everyone.

Posted by Marcia Oddi on Wednesday, March 22, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 2: Report On Interview #19, Hon. Christopher M. Goff

This is Prof. Joel Schumm's report on the 19th interview of Day 2

Hon. Christopher M. Goff, Wabash Superior Court (photo) (application)

In response to a question about transitioning from a small county trial court judge to the court of last resort, Judge Goff noted that people may underestimate him. He is confident is ability to get the job done. He has become accustomed to being a judge and would enjoy the opportunity to contemplate decisions more and in collaboration with four other people.

In response to a question about professional regrets, Judge Goff said he is a decider and focuses on the applicable rules when he makes decisions. He regrets that he does not have more time to thank his staff who are ones who allow him to look good and do his job well.

In response to a question about his experience as a rural county judge, Judge Goff noted the way his county has adjusted to changes in the law, like criminal justice reform, is a model for other counties.

In response to taking cases under advisement, Judge Goff said speedy justice is important and he has a list of cases he will decide each week. Complex matters may take longer. He believes he has two cases under advisement, the longest of which since February 27.

In response to a question from Mr. Young, Judge Goff discussed his work with problem-solving courts, which seek to hold people accountable while working to resolve the root causes. They are especially important in rural counties.

In response to a question about what he would ask the founding fathers, he recounted a family trip to Williamsburg and the way the country has changes since its founding. He then said, to laughter, he would ask them sometimes, “what did they mean?”

In response to a question about how he would approach a case, Judge Goff would begin with a thorough review of the record, consult with as many people as possible, and have a discussion to make sure he was reaching the correct decision. He would consult amicus brief if they were available. Following up, Mr. Feighner noted Judge Goff was the first applicant to mention amicus briefs. When asked about the weight to be given to amicus briefs, Judge Goff said the facts of the case are most important, but amicus brief could provide useful information.
In response to a question about treatment of a little person in a case with a corporation, Judge Goff responded that everyone is equal under the law.

In response to a question about administrative work and working with others, Judge Goff said he would want to take on big projects, citing his recent work on a domestic violence project, working with state court administration, SPEA, and others.

Posted by Marcia Oddi on Wednesday, March 22, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 18: Report On Interview #18, Ms. Leanna K. Weissmann

This is Prof. Joel Schumm's report on the 18th interview of Day 2

Ms. Leanna K. Weissmann, Lawrenceburg (photo) (application)

Chief Justice Rush began by noting the Ms. Weissmann is “quite a powerhouse,” and Ms. Weissmann responded that she had done sixteen oral arguments.

In response to a question about the application of Article 1, Ms. Weissmann said one would need to ensure the person was in the country legally.

In response to the question about Justice Sullivan’s eulogy of Justice DeBruler, Ms. Weissmann discussed the greater protections of the Indiana Constitution, such as Article 1, Section 11 and trash searches. She noted Justice Sullivan was one of her favorite justices before whom she always enjoyed arguing.

Ms. Weissmann said her judicial philosophy was cemented through her work with Justice Rucker. She discussed researching a case that required going back to the 1600s. She would ensure that every case is treated equally; everyone has the equal right to have every judge look at their case in the same way.

When asked about filling Justice Rucker’s seat, Ms. Weissmann explained the Court works well because five different people bring different perspectives. She has spent her career largely as a public defender, giving a voice to the voiceless.

In the past year, Ms. Weissmann noted the lengthy, non-typical application and said she has immersed herself in the study of Indiana law and history as well as doing more civil work.

In response to a question about interpreting the Constitution, Ms. Weissmann said the language and intent are important but that it is not “either or” because the Constitution can build and grow in the future.

In response to question about where she would have been in 1896 in Plessey v. Ferguson, Ms. Weissmann said she did not know, although she hoped she would have been a vocal advocate against anything contrary to basic human rights.

In response to a question about her work as a solo practitioner, Ms. Weissmann said she had staff that work remotely. As a justice, Ms. Weissmann said she is a consensus-builder, noting her work on the Disciplinary Commission. When noting she had visited many jails and asked if judges should, Ms. Weissmann said it’s a “reality check” and they should.

In response to a question from Mr. Young about an important opinion from Justice Rucker, Ms. Weissmann identified the Holden opinion on jury nullification, which stands out as well-written and deep.

When asked about anything beyond her application, Ms. Weissmann discussed her teaching at Ivy Tech, which involves many students who will become police officers. She recently heard from one of her students who was accepted to law school and said she was the reason he wanted to be an attorney.

Posted by Marcia Oddi on Wednesday, March 22, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 2: Report On Interview #17, Ms. Elizabeth C. Green

This is Prof. Joel Schumm's report on the 17th interview of Day 2

Ms. Elizabeth C. Green, Indianapolis (photo) (application)

In response to a question about her reasons for applying, Ms. Green noted the “unique time” in which we live and the opportunity to help lead the judiciary for decades to come. She believed one of the biggest challenges would be to learn other areas of law, like criminal law, although she has a broad range of experience from her practice thus far.

In response to a question about areas for improvement, Ms. Green discussed efiling, noting some hiccups that could be improved. She also discussed the importance of access for unrepresented litigants.

In response to a question about what has changed in the past year and her preparation, Ms. Green discussed her increased participation, in such things as “We the People” and the upcoming state bar moot court competition, as well as reading more cases and law review articles.

In response to a question about recent cases that have caught her eye, Ms. Green discussed two summary judgment cases as well as the Myers asbestos case, including a discussion of the dissenting opinions as well.

In response to a question about recusal if cases from her firm made it to the Court, Ms. Green said she would need to review the rules and surely any case in which she had been involved would require her recusal.

In response to a question about administrative work, Ms. Green noted she had read recent annual reports and State of the Judiciary speeches, she said she was particularly interested in education, working with younger attorneys, and the unauthorized practice of law.

In response to a question about her young age, Ms. Green said she has packed a lot into her years of practice and “did not feel young” as she approaches 40. She noted the job is not one she would perform alone, and the importance of bringing someone to the bench who will still be there in ten or twenty years.

In response to a question about influences on her ethics, Ms. Green discussed the influence of her parents. She said she has a high ethical code for herself, which she follows every day at work and outside work.

In response to a question about dissenting opinions, Ms. Green said she would dissent if she thought the majority was wrong after carefully listening to all the views of the other justices. The audience would be the majority, which may change its opinion as a result. Mr. Feighner followed up about the dissenting opinions in the Myers case, and Ms. Green noted it spoke to both the majority and the public.

In response to a question about the justice she admired most, Ms. Green pointed to Chief Justice Roberts, who keeps a cool and calm demeanor and builds a consensus on the Court.

Posted by Marcia Oddi on Wednesday, March 22, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 2: Report On Interview #16, Hon. Vicki L. Carmichael

This is Prof. Joel Schumm's report on the 16th interview of Day 2

Hon. Vicki L. Carmichael, Clark Circuit Court 4 (photo) (application)

In response to a question from Chief Justice Rush about why only twenty people out of thousands would apply for this vacancy, Judge Carmichael said she was surprised. She had no suggestions for changing the process, which she said was very open , that she had an opportunity to meet with the Commissioners, and the application was easy to complete.

In response to a question from Mr. Feighner about the experience she would bring to the bench, Judge Carmichael noted her experience as a mediator and as a public defender and in private practice doing criminal defense work. She said people from different parts of the state approach issues differently, and in Southern Indiana there hasn’t been a civil jury trial in a few years. People are more likely to settle cases, which she said is not a bad thing.

In response to a question about interpreting statutes, Judge Carmichael emphasized the importance of the plain meaning of the words, citing two recent Indiana Supreme Court opinions.

In response to a question from Mr. Berger, Judge Carmichael responded that Article 1 applies both to citizens and non-citizens while in the state.

Judge Carmichael discussed the importance of giving people their day in court, approaching cases with compassion, and noted the way Justice Rucker has shown a genuine care for the people of Indiana.

Judge Carmichael said she teaches her students at Ivy Tech that the law isn’t black or white; it’s gray.

In response to a question about an opinion that has shaped her legal philosophy, Judge Carmichael said she cited the Justice Scalia’s Second Amendment opinion in Heller, which relies not just on text but also precedent and the views of legal scholars.

In response to a question from Mr. Berger about the importance diversity, Judge Carmichael said diversity extends beyond race and ethnicity, noting her practice and judicial experience in criminal, family law, and other areas of law. (Mr. Berger’s noted the desire to be “more politically correct” in the wording of his question.)

In response to a question about a rule that needs to be changed, Judge Carmichael mentioned Criminal Rule 26. She said the rule was correct but it imposes a financial burden on counties to have the risk assessments done. The county attorney told Judge Carmichael he believed the rule was only a suggestion. Although she agrees with the rule, she is concerned about the funding.

In response to a question about demeanor, Judge Carmichael noted her fairness and even-tempered nature. She noted that a prosecutor recently told her she would sentence someone to sixty years, who left with a smile on their face.

She noted, having watched parts of the Gorsuch hearing yesterday, that judges are not “Republicans or Democrats.”

Posted by Marcia Oddi on Wednesday, March 22, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 2: Report On Interview #15, Mr. Dale W. Arnett

This is Prof. Joel Schumm's report on the 15th interview of Day 2

Mr. Dale W. Arnett, Winchester (photo) (application)

Mr. Arnett fell in love with the Constitution in law school, and 50% of his practice since has been as a public defender. Someone recently told him he was as qualified as anyone to apply for the Court because of his work with constitutional law. He said the biggest challenge would be “to get it right every time.”

Mr. Arnett described his judicial philosophy was that the laws at all levels need to be as “fair” as possible to everyone. He said judges need to be open-minded and listen to everyone on every side. We are a nation of laws and need to follow laws, and he is not a big fan of judicial activism.

Mr. Arnett recounted that Justice Scalia was appointed to the Court while he was in law school, and his legal fraternity was named after him. Although he did not always agree with Justice Scalia, his opinions were well-written. When Mr. Feighner mentioned watching Justice Scalia’s funeral, Mr. Arnett said he cried.

In response to a question about interpreting the constitution, he would be guided by plain language and stare decisis.

In response to a question from Mr. Berger, Mr. Arnett said Article 1 of the Indiana Constitution would apply to non-citizens in addition of citizens.

In response to a question about administrative work, Mr. Arnett conceded he did not know much about the administrative arm of the Court. He has seen Justice David at seminars and knows the justices are the face of the Court.

In response to a question about people skills, Mr. Arnett discussed his ability to listen and empathize with people. He said needs to keep working on his public speaking.

When asked what he would ask the founding fathers, Mr. Arnett said he would ask if they thought it was really going to last.

In response to the final question from Ms. Kitchell, Mr. Arnett returned to Justice Scalia, who he said “hit a home run” in his opinion in the “gay marriage” case.

Posted by Marcia Oddi on Wednesday, March 22, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 2: Report On Interview #14, Hon. Maria D. Granger

This is Prof. Joel Schumm's report on the 14th interview of Day 2

Hon. Maria D. Granger, Floyd Superior Court 3 (photo) (application)

Chief Justice Rush began by asking about the opinion-writing function of the Court. Judge Granger said she would take an originalist approach. She would have a strong commitment to stare decisis.

In response to a question about a case from history that helped shape her philosophy, Judge Granger discussed a case of hers involving sports injury and decided last month by the Indiana Supreme Court.

In response to a question about the importance of diversity, Judge Granger said diversity and inclusion are important. She cited the inspirational value to young lawyers, among other reasons for a diversity on the bench and within the bar.

In response to a question about the importance of juries, Judge Granger discussed the Indiana summary judgment standard and precedent as well as the importance of a jury of citizens deciding cases.

In response to a question about unclear statutes, Judge Granger discussed the importance of text and said she has been studying the Scalia/Garner book on interpreting legal texts.

Mr. Feighner mentioned question 5(c), important cases, in which Judge Granger used the phrase “personal and business injury.” Judge Granger discussed the work of the commercial court, which she said can have a profound impact on the communities that rely on those businesses.

Mr. Berger pointed out that Justice Scalia’s dissents were often harsh, and Judge Granger said she would emulate Justice Rucker who is “kind and gentle” in his approach.

Chief Justice Rush posed a hypothetical case about areas in which Judge Granger would like to write if a justice on the Court, noting upcoming oral arguments on medical malpractice, tax, and the Fourth Amendment. She briefly discussed her interest in and importance of medical malpractice.

Posted by Marcia Oddi on Wednesday, March 22, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 2: Report On Interview #13, Hon. Peter R. Foley

This is Prof. Joel Schumm's report on the 13th interview of Day 2

Hon. Peter R. Foley, Morgan Superior Court 1 (photo) (application)

Chief Justice Rush began by asking about the longest case Judge Foley had under advisement. He said he has one under advisement in which he is waiting on submissions from the parties next week. He agreed with the premise of the question that justice delay is sometimes justice denied; litigation hangs over people like a cloud. He discussed family law and custody cases in particular, in which he often rules from the bench.

In response to a question about mental health and drug problems, Judge Foley discussed a mental health diversion program. He said the opiate problem is not unique to his county and impacts all parts of the court’s docket.

Ms. Long asked about Judge Foley’s legacy at his retirement if he was selected as a justice. Judge Foley said instead of getting caught up in legacy it is important to do the job well every day, and legacy would take care of itself.

In response to a question from Ms. Kitchell about statutory interpretation that leads to an absurd result, Judge Foley emphasized the importance of relying on the text of the statute and the danger of trying to figure out what was meant. In response to a later question, he explained the importance of applying the common meaning of definition of terms. Mr. Berger later asked if Judge Foley would have any hesitation about looking to Article 1 of the Indiana Constitution if a statute led to an absurd result. Judge Foley said the constitutionality of a statute raises a different question and should be raised by the parties.

In response to a question about his experience, Judge Foley discussed his work as a county attorney as well as private practice where he represented everyday folks. He has been on the bench for more than two years with a mix of criminal and civil cases.

Chief Justice Rush asked what advice Judge Foley would give to newly admitted lawyers. Judge Foley discussed the importance of character and treating other parties and litigants with “dignity and respect.”
In response to a question from Ms. Long, Judge Foley discussed his love of travel and the enrichment that comes from going off the beaten path.

Although questions are something difficult to hear, Judge Foley apparently played basketball against Damon Bailey. Regarding himself, Judge Foley said a basketball “career wasn’t going to work out.”

Posted by Marcia Oddi on Wednesday, March 22, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 2 Interviews begin at 9:30

Here is today's interview schedule:

March 22 (Wednesday)

9:30 a.m. – 9:50 a.m. – Hon. Peter R. Foley
9:50 a.m. – 10:10 a.m. – Hon. Maria D. Granger
10:10 a.m. – 10:30 a.m. – Mr. Dale W. Arnett

(Break)

10:45 a.m. – 11:05 a.m. – Hon. Vicki L. Carmichael
11:05 a.m. – 11:25 a.m. – Ms. Elizabeth C. Green
11:25 a.m. – 11:45 a.m. – Ms. Leanna K. Weissmann

(Break)

12:00 p.m. – 12:20 p.m. – Hon. Christopher M. Goff
12:20 p.m. – 12:40 p.m. – Mr. Bryce D. Owens

12:55 p.m. – Lunch and deliberations in Executive Session, followed by public vote to select semi-finalists

The applications of each of the candidates are linked on this page.

Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law, will be covering the interviews.

Disclaimer: The goal of ILB coverage of the Supreme Court selection process is to provide a window into an important public process in an objective and thoughtful manner. That ILB correspondents may have assisted applicants in various stages of the process does not alter the commitment to present interview summaries, application details, and other commentary to ILB readers objectively.

Note that a list of all the ILB posts on the 2017 Supreme Court vacancy may be accessed via this link.

Posted by Marcia Oddi on Wednesday, March 22, 2017
Posted to Vacancy on Supreme Court - 2017

Tuesday, March 21, 2017

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #12, Mr. Lyle R. Hardman

This is Prof. Joel Schumm's report on the 12th, and final, interview of Day 1

Mr. Lyle R. Hardman, South Bend (photo) (application)

In response to a question about meeting unmet needs of civil litigants, Mr. Hardman emphasized the importance of lawyers doing pro bono work. He is on a panel to provide appellate pro bono representation, but most cases do not sall within his area of expertise.

In response to the question about what he would ask the founding fathers, Mr. Hardman would ask what their intention was in drafting such a general document.

In response to a question from Mr. Young about a recent decision the Supreme Court did especially well, Mr. Hardman first mentioned a 2009 opinion, Williams v. Tharp. He then mentioned the recent Patchett v. Lee opinion, noting that some of the JNC members might disagree with him.

In response to a question about the difference in the federal and Indiana summary judgment standards, Mr. Hardman said he recognizes the distinction and had no problem following Indiana’s standard.

In response to a question by Mr. Yakym about a recent case that has shaped his judicial philosophy, Mr. Hardman instead pointed to the Scalia/Garner book about interpreting legal texts. He expressed concern with judges substituting their views for the legislature.

When asked about an area of Indiana law that could be improved, Mr. Hardman noted funding problems. He represents counties and county jails but many inmates are not getting adequate mental health treatment before and during their incarceration.

When asked about filling Justice Rucker’s shoes, Mr. Hardman said he did not know he could fill his shoes but would bring collegiality (he served on both governing committees of his firm) and enjoys the more complex/weird cases.

When asked what someone might say negatively about him, Mr. Hardman said his wife might say he works too much.

Posted by Marcia Oddi on Tuesday, March 21, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #11, Hon. Matthew C. Kincaid

This is Prof. Joel Schumm's report on the 11th interview of Day 1

Hon. Matthew C. Kincaid, Boone Superior Court 1 (photo) (application)

In response to a question from Chief Justice Rush about a situation when his oath conflicted with his personal opinion, Judge Kincaid recited a case involving attorney fees that exceeded damages in a case. He followed the law but did not feel good about it; the decision was affirmed on appeal.

In response to a question from Mr. Feighner about learning from reversals, Judge Kincaid referred about a case where he granted summary judgment against someone who had backed into a retention pond. Judge Kincaid said he agrees with Indiana’s summary judgment jurisprudence.

In response to a new question from Ms. Kitchell about areas where Indiana courts could improve, Judge Kincaid said it would be helpful to develop law in the commercial realm to help provide more guidance to businesses. Although Indiana has a great business environment, it could be improved by more predictability.

He would ask the founding fathers if they liked each other or not, noting the current division in the country.

Mr. Berger asked about appellate review under 7(B), and Judge Kincaid pointed to Justice Rucker’s opinion in Anglemyer, which clarified the law and set forth the responsibility of trial court judges and role of appellate review. Judge Kincaid said trial judges cannot take it personally when their sentences are revised, and it is important for trial court judges to give reasons the appellate court can consider.

In response to a question about dissenting opinions, Judge Kincaid said he would dissent if he believed the majority was wrong. He discussed some recent concurring opinions by Justice Rucker in cases involving Miranda rights and Stanley v. Walker. He concluded dissents make “good reading.”

Posted by Marcia Oddi on Tuesday, March 21, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #10, Mr. William N. Riley

This is Prof. Joel Schumm's report on the 10th interview of Day 1

Mr. William N. Riley, Indianapolis (photo) (application)

In response to a question about his background that would lead citizens to believe he would be a good and fair justice, Mr. Riley emphasized his ability to listen. He would work with other justices to craft opinions and not be driven by ego.

In response to question about judicial philosophy, Mr. Riley said judges must rely on the text of the Constitution or statute.

In response to a question about his involvement in the Federalist Society, Mr. Riley said he first became involved as a law student. The emphasis then was the “sovereignty of the people,” and justices should apply laws as enacted by the people. On the local level, he believes most members feel the same way.

In response to a question about a recent opinion outside of his area of practice, he mentioned an opinion by Justice Scalia involving marriage of a non-citizen, which he believed posed an interesting question.

In response to a question about replacing Justice Rucker, Mr. Riley noted that Justice Rucker understands the “common man” and he would seek to emulate protecting their rights.

In response to a question about his lack of experience in criminal cases, Mr. Riley said he was not familiar with the power to revise sentences under Rule 7(B). Mr. Riley said he met with Judge Nation on a number of occasions and observed cases of his to familiarize him with criminal law and procedures.

In response to Mr. Berger’s question, Mr. Riley said he would seek to emulate Judge John Daniel Tinder. One of his first trials was before Judge Tinder, and Mr. Riley was impressed with his humanity and kindness, which put lawyers at ease.

When asked about constitutional rights of non-citizens, Mr. Riley said our rights are given to us by enabling documents. Mr. Yakym followed up for a specific answer, and Mr. Riley said if he were in DC today, referring to the Gorsuch hearing, he would not be able to answer that question because it could come before him as a justice. He concluded he believed the constitution was pretty clear about who is a citizen.

Posted by Marcia Oddi on Tuesday, March 21, 2017
Posted to Vacancy on Supreme Court - 2017

Ind. Decisions - Supreme Court issues one today

In Consumer Attorney Services, P.A., The McCann Law Group LLP, and Brenda L. McCann, Individually and as Owner and/or Officer of Consumer Attorney Services, P.A., et al. v. State of Indiana, a 10-page, 4-0 opinion, Justice Massa writes:

Consumer Attorney Services, P.A., The McCann Law Group, LLP, and Brenda McCann (collectively “Defendants”) appeal the trial court’s denial of their motion for summary judgment, claiming they are all expressly or impliedly exempt from liability under each of the four statutes cited by the State in this civil suit. Finding that none of the Defendants properly fit within these statutory exemptions, we affirm. * * *

Neither the CSOA, the MRPFA, the HLPA, Nor the DCSA Provides an Exemption for Law Firms.

Posted by Marcia Oddi on Tuesday, March 21, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - Four apply to replace Johnson County Superior 2 Judge Cynthia Emkes

The Johnson County Daily Journal has two stories on the vacancy. This one from March 20 is headed "Who wants to be judge? 4 seeking judicial opening in county." The story begins:

Four Johnson County men want to be the next judge of a superior court that oversees felony criminal trials or issues or approves sentences in hundreds of cases each year, makes decisions about evidence and witness statements and administers the county’s alcohol and drug services programs to offenders.

The job of judge of Johnson Superior Court 2 will be open at the end of April when longtime Judge Cynthia Emkes retires. The candidates so far are Johnson County judge Magistrate Doug Cummins, longtime attorney and former judge Jeff Eggers, Greenwood City Court Judge Lewis Gregory and attorney Peter Nugent.

Each candidate has more than 10 years of experience as an attorney, and three of them have had previous roles or are currently working as a judge.

The second story, from March 21st, is headed "Detailed vetting process awaits judge candidates." The story, which links to the 16-page application, begins:
The person chosen as a superior court judge in Johnson County will have gone through an intense vetting process and answered questions about his or her community service, role in any controversial public issues and who might not want them to be a judge.

The candidates must disclose information about their health and should be prepared for the state’s legal team to contact whomever they want, including other judges or attorneys or residents, to ask questions about whether they are qualified and what kind of judge he or she would be.

Ultimately, Gov. Eric Holcomb will select a candidate to replace Judge Cynthia Emkes, who is retiring at the end of April after 30 years in Johnson Superior Court 2.

Each candidate for the Johnson County position will have an in-person interview with Joe Heerens, general counsel for Holcomb, and Heeren’s office will conduct a background check, including talking to judges, attorneys and other residents to learn about the personality of each candidate, his or her level of qualifications and what kind of judge he or she would be, Heerens said.

Posted by Marcia Oddi on Tuesday, March 21, 2017
Posted to Indiana Courts

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #9, Hon. Steven L. Hostetler

This is Prof. Joel Schumm's report on the 9th interview of Day 1

Hon. Steven L. Hostetler, St. Joseph Superior Court (photo) (application)

Chief Justice Rush began with the final sentence of the oath of attorneys, asking for a recent example of advancing the cause of the defenseless. Judge Hostetler said he did a recent presentation to the bar association about the importance of Lincoln as a role model. He has encouraged pro bono work. He posts notices of needs around the courthouse and calls lawyers personally to thank them for their service.

In response to a question from Ms. Kitchell about shaping his ethical views, Judge Hostetler again pointed to Lincoln, noting how similar Lincoln’s law practice was to some practices today, noting he had used examples from Lincoln’s practice in his recent presentation.

He would ask the founding fathers how best to heal the divisions in our country, noting they were required to heal tremendous divisions in forming the United States.

In response to a question about traits of Justice Rucker that he would emulate, Judge Hostetler recounted that he had received two calls from Justice Rucker about appointments as a special judge, noting his courtesy and respect.

In response to Mr. Berger’s question about diversity, Judge Hostetler said it weighed in his decision whether to apply. He believes in diversity and said there are multiple ways to encourage diversity on the bench. He said he would strive to do his best.

In response to a question from Mr. Yakym, Judge Hostetler believes the Indiana Constitution guarantees rights, discussing specifically the independent vitality in the double jeopardy and search and seizure realms. In response to a follow-up question, Judge Hostetler said it’s not an “either or” between the state and federal constitution, emphasizing our citizens are entitled to both protections.

In response to a question about class actions, Judge Hostetler noted that sometimes such suits provide little benefit to individuals but may lead to important changes in behavior.

In response to a question about dissenting opinions, Judge Hostetler said the audience would be members of the Court. He noted the dissent in Plessey v. Ferguson in 1896, which was ahead of its time. He also mentioned dissents in cases that failed to provide political speech. He said dissenting opinions can be important, and he would respectfully dissent when appropriate.

When asked if his oath as an attorney or judge ever came into conflict with his personal feelings, he said he has not experienced it. He said the law is generally helpful in making decisions, noting the statutory factors for child custody, which lead him to the correct result.

Posted by Marcia Oddi on Tuesday, March 21, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #8, Mr. Stephen R. Creason

This is Prof. Joel Schumm's report on the 8th interview of Day 1

Mr. Stephen R. Creason, Indianapolis (photo) (application)

Noting the number of lawyers from the AG’s office in the conference room for the interview, Chief Justice Rush began by asking to laughter if any work being done at the AG’s office.

Mr. Creason said he agreed with the recent proposed court rule requiring technological competence and emphasized that lawyers cannot continue to use an electric typewriter or outdated technology.

When asked if he would have done anything different in his career, Mr. Creason said he would definitely handle some cases and administrative work differently. He said he would have worked harder in college. Athough he worked hard in law school, he did not do well on law school exams but did well writing papers.

In response to a question about the DeBruler eulogy, Mr. Creason said Indiana courts should strive for excellence. He pointed to Criminal Rule 24 and the competency and training of defense counsel in death penalty cases, which he said has made a dramatic difference from other states. He also said the text of the Indiana Constitution is sometimes different and should be given meaning when appropriate. He briefly discussed both Article 1, Section 11 and special legislation as examples.

When asked about a former judge he most admires, he identified Judge Patricia Gifford who “kept him in check” in a bench trial. He always learned something when he appeared before her. He said she was tough but never harsh.

In response to a question from Mr. Yakym about cases where he had to appeal when he disagreed, Mr. Creason noted the broad and sometimes conflicting interests at stake. He said he sits down with people and works through it. He emphasized separating his own opinions and doing what is best for the institutions and people involved. Finally, he noted he is the deputy—not an officeholder—and does what he is instructed to do.

In response to a question from Mr. Feighner about assurances to defense counsel that he could be fair in criminal cases, Mr. Creason said he and his colleagues work hard to ensure they are taking the right position in a case, not just the expedient one. They strive to be fair and lead the Court to the right result. He also pointed to his work on the e-filing and other committees, which bring lawyers from different perspectives together.

Posted by Marcia Oddi on Tuesday, March 21, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #7, Ms. Leslie C. Henderzahs

This is Prof. Joel Schumm's report on the 7th interview of Day 1

Ms. Leslie C. Henderzahs, Fishers (photo) (application)

Chief Justice Rush returned to the Socrates question and asked Ms. Henderzahs which virtues would be her strong suit and which she would struggle most with. She went through each of the four. She said for 25 years she has been representing families in many different legal situations and roles. It would be most challenging to answer wisely because it would require careful consideration of the law and public policy.

In response to a question about negative things adversaries may say about her, she said one of her biggest adversaries is now of counsel at her firm. He was so angry by her preparation that he literally broke a pencil in his hand. Thus, the attribute would be that she over-prepares.

In interpreting a statute, she would consider the law, the policy behind it, and any debates behind it (then referencing the 1850 constitutional debates).

In response to a question about mediation, Ms. Henderzahs discussed the importance of better understanding a person’s background and life experience to be effective. She said the Supreme Court could highlight the benefits of mediation and perhaps requiring some pre-mediation conferences.

In response to a new question from Ms. Kitchell, prior to your application when is the last time you read a Court opinion outside your practice area. She identified the Evansville smoking ban case.

She would ask the founding fathers if they could summarize the rule of law in a single word. She would hope their answer would be “service.”

She said her most important people skill is “cohesion.” She emphasized the importance of helping people understand the other side.

In response to Mr. Berger’s question, she said the most difficult task of the JNC was to find someone who is well-rounded and would supply what the Court most needs to fill the void created by Justice Rucker. When asked how a “white person” could fill that void, Ms. Herderzahs said it was important to consider the perspective and cultures of others, identifying geographic and other forms of diversity.

In response to Mr. Yakym’s question about interpreting the constitution, she emphasized the importance of judicial restraint and the intent of the framers. She identified the Indianapolis-Marion County redistricting case as an example of judicial independence, where the Court devised its own plan and rejected the partisan ones before it.

In response to a question about law firm culture, Ms. Henderzahs discussed the importance of consensus. Although the lawyers recognize differences, they emphasize commonalities. They have grown from six to forty lawyers. They work to the strengths of each individual while working as a team. She would enjoy the roundtable discussions at the Court.

Posted by Marcia Oddi on Tuesday, March 21, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #6, Mr. Peter J. Rusthoven

This is Prof. Joel Schumm's report on the 6th interview of Day 1

Mr. Peter J. Rusthoven, Indianapolis (photo) (application)

Chief Justice Rush opened with a question about the final line of the oath of attorneys, asking for an example of Mr. Rusthoven advancing the cause of the defenseless. He noted an ongoing case with many complexities but was not able to delve into a lot of details because it was pending.

In response to a question about recent books he has read, Mr. Rusthoven recited a couple of children’s books (he has young children) as well as biographies of Earl Warren and others.

In response to a question from Mr. Yakym about considering legislative committee testimony in determining legislative intent (used in federal courts but not Indiana), Mr. Rusthoven said he is skeptical of legislative history. The words have objective meaning and should control. In cases where uncertainty exists, other information may be helpful but committee testimony is often interest group driven.

In response to question from Mr. Feighner about opposing counsel listed on the application, Mr. Rusthoven discussed a case in which he was involved with now-Justice Slaughter.

In response to a question from Ms. Kitchell about areas he could bring to the table different from the remaining four justices, Mr. Rusthoven discussed his corporate, regulatory, and legislative work. He also noted he had gone to school out of state where he was surrounded by talented people from around the country and world, which adds perspective. He also discussed his experience in Washington, with the press, and finally his experience working with Democrats, noting letters he had received from some.

In response to Ms. Long’s question, he would ask the founding fathers if they would ever, in their wildest dreams, imagined it would have turned out as it did. He discussed the competing visions of Jefferson and Hamilton as well as American exceptionalism.

In response to a question from Mr. Young about Justice Sullivan’s eulogy of Justice DeBruler—that Hoosiers enjoy greater rights than others—Mr. Rusthoven noted that Justice DeBruler was appointed at a young age and was often in dissent but always respectful. Many of Justice DeBruler’s views have since become majority ones. Mr. Rusthoven does not believe the Indiana Constitution should be interpreted lockstep with different federal language. The founders believed it was important to protect individual liberty from government.

Posted by Marcia Oddi on Tuesday, March 21, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #5, Rep. Thomas W. Washburne

This is Prof. Joel Schumm's report on the 5th interview of Day 1

Rep. Thomas W. Washburne, Evansville (photo) (application)

Chief Justice Rush began by asking if Rep. Washburne would be able to declare a statute unconstitutional—and what would be the guiding principles. He responded that he does not see the role of the Court to expand the Constitution and judges must focus on the text and what it meant at the time drafted and ratified.

When asked about his experience as a legislator, Rep. Washburne noted that 83% of Court opinions are unanimous, and that he similarly works in the legislature to develop a consensus. He also discussed his varied practice experience in a small firm and as a corporate lawyer.

In response to Ms. Long’s question, Rep. Washburne would ask the founding fathers what they meant by the establishment of religion.

When asked by Mr. Young about his view of common law, Rep. Washburne said he prefers the general applicability in criminal cases instead of creating a lot of new statutes to various situations.

Mr. Berger noted that he was on the JNC that sent Justice Rucker’s name to the Governor in 1999 and asked what the JNC should consider this time. Rep. Washburne said it was important to understand the role of the Court. Diversity is important but comes in many forms, including practice and geography.

When asked by Mr. Yakym about making the transition from the legislative to judicial branch, Rep. Washburne noted that he makes a transition every Friday from legislator to corporate lawyer. He noted the role of the Court is determine what the law is. (Mr. Feighner noted that Justice O’Connor was a state legislator and Chief Justice Warren was a Governor.)

In response to a question from Mr. Feighner about funding legal services for indigent people, Rep. Washburne discussed efforts for Public Defender Commission reimbursement for misdemeanors and increasing funding from 40% to 50%. He believes a fundamental purpose of government is to fund services that are constitutionally required.

In response to the question about business climate, Rep. Washburne said the same principles apply universally to all litigants: to be fair, be timely, and be accurate.

When asked what he was most proud of, he discussed his family, pointing out he had brought four of his five children with him to the interview.

Rep. Washburne discussed his effort to provide law clerk support for trial courts in Indiana, growing out of his experience as a law clerk for Judge Dillin. Judges may now secure the assistance of senior judges and third-year law students to assist with complex motions.

Posted by Marcia Oddi on Tuesday, March 21, 2017
Posted to Vacancy on Supreme Court - 2017

About the ILB - An opportunity for your firm or company to become the ILB's exclusive sponsor

The Indianapolis law firm of Hoover Hull Turner has been the exclusive sponsor of the Indiana Law Blog since the spring of 2016. Its financial arrangement will end on April 30, 2017. HHT writes that it continues to be grateful for Marcia Oddi's tireless work in the name of public service, adding intelligent insight into coverage of new court decisions and legislative developments.

And the ILB, as I know do many you, thanks HHT for its strong and generous support over the past year.

The ILB is now looking for a new sponsor (or group of several sponsors) to step forward to support its mission, which began in 2003, of collecting and reporting on the news that matters to lawyers, judges and citizens across Indiana.

Contact me with serious inquiries. Thank you.

Posted by Marcia Oddi on Tuesday, March 21, 2017
Posted to About the Indiana Law Blog | Vacancy on Supreme Court - 2017

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 14 NFP memorandum decision(s))

For publication opinions today (2):

In In the Matter of: N.C. (Minor Child), Child in Need of Services and J.M. (Father) v. The Indiana Department of Child Services , a 17-page opinion, Judge Robb writes:

J.M. (“Father”) appeals the juvenile court’s finding that his son, N.C., is a child in need of services (“CHINS”) and the juvenile court’s corresponding dispositional order giving wardship of N.C. to the Indiana Department of Child Services (“DCS”) and ordering Father to comply with the terms of a Parent Participation Plan. Father raises two issues for our review, of which we find the following dispositive: whether the juvenile court erred in finding N.C. to be a CHINS. Concluding DCS did not prove by a preponderance of the evidence that the coercive intervention of the court was necessary to ensure N.C.’s care and therefore the juvenile court clearly erred in adjudicating N.C. a CHINS, we reverse.
In In the Matter of M.O., A Child in Need of Services, M.O., Child v. Indiana Department of Child Services, N.M., Mother, and Mi.O., Father, and Child Advocates, Inc., a 13-page opinion, Judge Kirsch writes:
M.O. (“Child”) appeals the juvenile court’s adjudication, finding her to be a Child in Need of Services (“CHINS”). We consolidate and restate the issues raised by the parties as: I. Whether the juvenile court erred in adjudicating Child as a CHINS on grounds different than those set forth in the CHINS petition; and II. Whether there was sufficient evidence presented to support the CHINS adjudication. We affirm.
NFP civil decisions today (2):

In the Termination of the Parent-Child Relationship of: A.S.C. & A.J.C., C.C. v. Indiana Department of Child Services (mem. dec.)

In the Termination of the Parent-Child Relationship of: Ce.S. & Ch.S. (Minor Children), and C.R. v. The Indiana Department of Child Services (mem. dec.)

NFP juvenile and criminal decisions today (12):

Aaron J. King v. State of Indiana (mem. dec.)

Jeffrey A. Rader v. State of Indiana (mem. dec.)

Tony W. Heroy v. State of Indiana (mem. dec.)

Linda K. Hamilton v. State of Indiana (mem. dec.)

Devon Delshaun Dokes v. State of Indiana (mem. dec.)

Kevin Hoffman v. State of Indiana (mem. dec.)

Everett Wade v. State of Indiana (mem. dec.)

James F. Morris v. State of Indiana (mem. dec.)

Christopher Schafer v. State of Indiana (mem. dec.)

Bruce Morgan v. State of Indiana (mem. dec.)

Tony L. Brown v. State of Indiana (mem. dec.)

Sanchez Dupree Martin v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, March 21, 2017
Posted to Ind. App.Ct. Decisions

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #4, Hon. Larry W. Medlock

This is Prof. Joel Schumm's report on the 4th interview of Day 1

Hon. Larry W. Medlock, Washington Circuit Court (photo) (application)

When asked about qualities a trial court would bring to the Indiana Supreme Court, Judge Medlock discussed understanding how a case originates, plays out, and the split-second decisions that need to be made. He pointed to a recent jury trial in January, in which he took a recess to research an issue of first impression involving a recently enacted statute.

In response to a question about interpreting statutes, Judge Medlock said he would focus on the plain language and meaning while also discussing statutes in derogation of common law.

In response to a question from Mr. Feighner about the justice he would emulate, he paused and pointed to the Chief Justice, to much laughter. He then discussed Justice David, whom he identified as a friend and mentor.

In response to a question about dissenting, Judge Medlock said he is “generally a team player” and is not opposed to taking a dissenting position. “We are not all the same” and should not be expected to have the same feelings and interpretation about the law. This lets the lawyers and litigants know the Court is not rubber-stamping cases.

In response to a question about where to take a roadshow argument, he said it has been a long time the Court has been in Southern Indiana, except for Corydon. He would like to see the Court go to his Courthouse in Salem, which is being retired.

In response to a question about “why he wants the job,” he discussed the thousands of files from his private practice, public defender, and as a judge—probably more than 25,000—and said he had seen a wide range of issue and could bring that experience to the Court.

In response to a question about the administrative work of the Court, Judge Medlock said he would be willing to do anything asked of him. He pointed to the cost savings of e-filing, and said the fees could be increased to allow for better technology. The money could also be used to create databases to promote public safety in areas like protective orders and mental health cases.

In response to a question about a case that involves creation of a new right, Judge Medlock said he is not one who “creates something out of nothing” and would not create new rights. The duty of judges is to apply the law fairly and interpret statutes.

In response to a question about his background, Judge Medlock pointed to his unique and varied job experience as well as his master’s degree from School of Public and Environmental Affairs.

Posted by Marcia Oddi on Tuesday, March 21, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #3, Ms. Jaime M. Oss

This is Prof. Joel Schumm's report on the 3rd interview of Day 1

Ms. Jaime M. Oss, La Porte (photo) (application)

Chief Justice Rush opened by asking about experience, and Ms. Oss discussed her experience with insurance coverage and civil litigation over the past thirteen and a half years. Although she does not have much experience in criminal law, her civil experience would carry over. Chief Justice Rush asked about the Court’s unique Rule 7(B) authority to revise sentences, and Ms. Oss said she had not looked at it.

In response to a question from Mr. Feighner about learning from past experience, Ms. Oss discussed a wrongful death case that included issues of paternity. She said she was not upset that she lost after having the unfortunate task of arguing that paternity was not properly established. She learned that we do not always get to pick our clients, and it is sometimes not bad to lose.

In response to a question from Ms. Kitchell about absurd results from interpreting a statute, Ms. Oss said we need to follow the legislature’s intent, which might require looking at other public policy considerations. The Court’s job is not to change something that is straightforward. Mr. Berger later followed up, and Ms. Oss said she would look at such things as committee reports to try to find support for an interpretation that avoids an absurd result. Mr. Yakym and Mr. Feighner also followed up with questions regarding statutory interpretation. When asked if the Supreme Court could raise a constitutional issue sua sponte, Ms. Oss said she believed the challenge needed to begin in the trial court.

In response to Ms. Long’s query about a question Ms. Oss would ask the founding fathers, Ms. Oss said she did not have one because they were brilliant in creating a government that allows each branch limited authority.

In response to a question from Mr. Young about the role of the jury, Ms. Oss said the jury system was a hallmark of our system and jury verdicts should be entitled to great deference.

In response to a question from Chief Justice Rush about mandatory pro bono, Ms. Oss said it was a “tough question” and that one option might be to allow those in areas difficult for pro bono work to instead contribute to fund legal services.

In response to a question about business climate, Ms. Oss identified the importance of commercial courts.

When asked about something not in her binder that she’s proud of, Ms. Oss identified her children, who are growing up to be wonderful people. She’s also very proud of her professional work and reputation of getting along well with everyone.

In response to a hypothetical question about her first year on the Court and best day ever, Ms. Oss pointed to the Court’s important administrative work and identified Adoption Day, which was highlighted in the Court’s annual report.

Posted by Marcia Oddi on Tuesday, March 21, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #2, Hon. Clayton A. Graham

This is Prof. Joel Schumm's report on the 2nd interview of Day 1

Hon. Clayton A. Graham, Marion Superior Court, Criminal Div. 7 (photo) (application)

In response to a question from Chief Justice Rush about an area that would most benefit from improvement, Judge Graham cited more traveling arguments, which would bring the Court to more communities.

In response to a question about Ms. Kitchell about temperament, Judge Graham said he believes it is important that each person be heard. If things get out of hand, he may call a recess and talk to lawyers in chambers.

In response to a question from Ms. Long about things beyond his application, his great-great grandfather was a slave. His father served in WWII under General McArthur and received a Purple Heart. He was later shot and killed when Judge Graham was seven years old. His mother raised several children and did not let them make any excuses.

In response to a question from Mr. Young about Justice Rucker, Judge Graham said he admired Justice Rucker’s compassion for humanity and the common man.

In response to a question from Chief Justice Rush about significant Supreme Court opinions for his work on the bench, Judge Graham cited an opinion in a domestic violence regarding Evidence Rule 803(4). He also cited Hitch v. State, which involved a domestic violence determination that he had made in a case and was affirmed on appeal. He viewed it as non-punitive.

In response to a question from Mr. Berger about what drew him to Indiana, Judge Graham said he received a fellowship to work for Legal Services, initially for Indianapolis but ultimately in New Jersey, and he fell in love with the city of Indianapolis and knew he wanted to return.

In response to a question from Mr. Yakym about a case where the decision was not clear, Judge Graham said he approaches cases with an open mind. He does not consider ethnicity, gender, or sexual preference. He will do further research, talk to his colleagues, or take the decision under advisement when necessary.

In response to a question from Mr. Feighner about a case where he was reversed and what he learned from it, Judge Graham said people “learn from their failures.” He said was reversed in a case where he did not allow the defendant his right to allocution. [Owens is the case.]

In response to the question about business climate, Judge Graham said commercial courts have been one of the best things for the state, allowing more expeditious resolution of cases.

In response to a question from Ms. Long about traveling oral arguments, Judge Graham said he would recommend areas that have not had an opportunity for oral arguments.

In response to a question about collegiality and team work, Judge Graham said he believes it important that judges leave their egos outside and come together to resolve a case. If they disagree, they should disagree respectfully.

In response to questions about changes over the past ten years, Judge Graham said mediation was used more. In looking to the future, Judge Graham said the biggest changes would come in technology and discussed the importance of efiling.

In response to a question about a judge he most admired, Judge Graham pointed to Justice Thurgood Marshall, a legal giant who he was able to meet. He discussed Marshall’s significant work as a lawyer arguing for the important rights of voting an education.

In response to a question about clarity of statutes, Judge Graham discussed Fry v. State, which involved bail in murder cases and overruled 150 years of precedent.

Posted by Marcia Oddi on Tuesday, March 21, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Day 1: Report On Interview #1, Mr. Ralph E. Dowling

This is Prof. Joel Schumm's report on the 1st interview of Day 1

Mr. Ralph E. Dowling, Muncie (photo) (application)

There is no set opening question. Chief Justice Rush quoted Socrates’ four characteristics of being a judge: listen courteously, answer wisely, consider soberly, decide impartially. Mr. Dowling said he would be strongest at listening courteously and has done so in his professional life.

Mr. Berger asked what about the most significant decision of the Indiana Supreme Court in the past twelve months. Mr. Dowling said the decision in Yeakle was especially important for those who do personal injury. He summarized the case’s reasoning at some length and said it clarified the law.

In response to a question from Mr. Yakym, Mr. Dowling said in interpreting a statute he would start with the language and punctuation of the statute, which is evidence of legislative intent. Only if ambiguous would he look to other statutes and whether the interpretation is a sensible one. Courts can also point out ambiguities that can be addressed in a later legislative session.

In response to a question from Mr. Feighner, Mr. Dowling said he would most want to emulate former Justice Dickson, who taught him state constitutional law in law school and judged him in a moot court final. He also discussed a case he later argued to the Court and Justice Dickson’s approach to it.

In response to a question from Ms. Kitchell about court’s influencing the business climate in the state, he emphasized the importance of stability to ensure businesses would stay and move to the state.

In response to a question from Ms. Long about road show arguments, Mr. Dowling said Anderson would be an excellent place because there is a university, where students would attend and learn.

In response to a question from Mr. Young about a case on his application, Mr. Dowling discussed multi-state litigation regarding safety switches to protect people from injuries.

In response to a question about Chief Justice Rush about technology and the recent proposed rule amendment, Mr. Dowling said he had not read the recent proposed rule amendment but was very competent with computers, beginning in 1984 as a professor at Ball State. He has e-filed extensively in federal court and in some state trial courts who recently began requiring it. When pressed about the proposed rule, he said it is mandatory that lawyers understand how to use technology in creating documents and persuading jurors.

In response to a question about Mr. Berger about negative qualities someone might point out if they wrote a letter about him, Mr. Dowling said he tends to be a perfectionist and spend more time on things than he needs to. He said he thinks it would be fun to be on the Supreme Court because he would have time to be a perfectionist and carefully craft opinions.

In response to a question from Mr. Yakym about skill set for the position, Mr. Dowling explained he graduated from law school at 37 after he had written and taught about communication and debate. He has a great appreciation for every written word.

In response to a question from Mr. Feighner about dissents, Mr. Dowling said if a justice thinks the majority is wrong it should be communicated, sometimes in an opinion or more silently but always respectfully. When asked about the audience for a dissent, Mr. Dowling mentioned that some dissents will become majority opinions in the future.

Posted by Marcia Oddi on Tuesday, March 21, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy on Supreme Court 2017 - Interviews begin

Here is a photo inside the interview room, all the commissioners look bright and cheery! (Photo via Indiana Courts)

Posted by Marcia Oddi on Tuesday, March 21, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy on Supreme Court 2017 - Interviews begin at 9:30 AM

Here is today's interview schedule:

March 21, 2017 (Tuesday)

9:30 a.m. – 9:50 a.m. – Mr. Ralph E. Dowling
9:50 a.m. – 10:10 a.m. – Hon. Clayton A. Graham
10:10 a.m. – 10:30 a.m. – Ms. Jaime M. Oss

(Break)

10:45 a.m. – 11:05 a.m. – Hon. Larry W. Medlock
11:05 a.m. – 11:25 a.m. – Rep. Thomas W. Washburne
11:25 a.m. – 11:45 a.m. – Mr. Peter J. Rusthoven

(Lunch – Executive Session to consider applications)

1:30 p.m. – 1:50 p.m. – Ms. Leslie C. Henderzahs
1:50 p.m. – 2:10 p.m. – Mr. Stephen R. Creason
2:10 p.m. – 2:30 p.m. – Hon. Steven L. Hostetler

(Break)

2:45 p.m. – 3:05 p.m. – Mr. William N. Riley
3:05 p.m. – 3:25 p.m. – Hon. Matthew C. Kincaid
3:25 p.m. – 3:45 p.m. – Mr. Lyle R. Hardman

(Break)

4:00 p.m. – 5:00 p.m. - Executive Session to consider applications

The applications of each of the candidates are linked on this page.

Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law, will be covering the interviews.

Disclaimer: The goal of ILB coverage of the Supreme Court selection process is to provide a window into an important public process in an objective and thoughtful manner. That ILB correspondents may have assisted applicants in various stages of the process does not alter the commitment to present interview summaries, application details, and other commentary to ILB readers objectively.

Note that a list of all the ILB posts on the 2017 Supreme Court vacancy may be accessed via this link.

Posted by Marcia Oddi on Tuesday, March 21, 2017
Posted to Vacancy on Supreme Court - 2017

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.

Posted by Marcia Oddi on Monday, March 20, 2017
Posted to Ind. (7th Cir.) Decisions

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:

Reference is made to Advisory Opinion #1-17, issued by the Indiana Commission on Judicial Qualifications.
_______
* 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.

Posted by Marcia Oddi on Monday, March 20, 2017
Posted to Indiana Courts

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):

RW v. GB (mem. dec.)

CHINS: Child Advocates, Inc., Guardian Ad Litem v. DT, et al. (mem. dec.)

Termination: RW, et al. v. Indiana Department of Child Services (mem. dec.)

NFP juvenile and criminal decisions today (4):

William Ryan v. State of Indiana (mem. dec.)

James Michael Cox v. State of Indiana (mem. dec.)

Kenneth Leon Wilson, Jr. v. State of Indiana (mem. dec.)

Brandon L. Jones v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, March 20, 2017
Posted to Ind. App.Ct. Decisions

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.

Posted by Marcia Oddi on Monday, March 20, 2017
Posted to Vacancy on Supreme Court - 2017

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.

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.

ILB: This was a March 2, 2016 opinion - see ILB summary here.

Posted by Marcia Oddi on Monday, March 20, 2017
Posted to Indiana Courts | Vacancy on Supreme Court - 2017

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:

Posted by Marcia Oddi on Monday, March 20, 2017
Posted to Indiana Transfer Lists

Ind. Courts - "Future judges, U.S. attorneys in the making"

That is the headline of Bill Dolan's NWI Times story today, which supplements this ILB post of March 14th. Some quotes from reporter Dolan's story:

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.

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.

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.

Posted by Marcia Oddi on Monday, March 20, 2017
Posted to Indiana Courts

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:

The current attorney members are:

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.

In Sum

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.

Posted by Marcia Oddi on Monday, March 20, 2017
Posted to Vacancy on Supreme Court - 2017

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 3/20/17):

Thursday, March 23

Next week's oral arguments before the Supreme Court (week of 3/27/17):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 3/20/17):

Thursday, March 23

Next week's oral arguments before the Court of Appeals (week of 3/27/17):

Monday, March 27

Wednesday, March 29 ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms generally will be accessible via videocast.

Past Court of Appeals oral arguments which have been webcast are accessible here.


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.

Posted by Marcia Oddi on Monday, March 20, 2017
Posted to Upcoming Oral Arguments

Saturday, March 18, 2017

Ind. Decisions - 7th Circuit decided, 2-1, an Indiana case yesterday (3/17/17)

In USA v. Jeffrey Rothbard (SD Ind., Young), a 16-page, 2-1 opinion, Chief Judge WOOD writes:

Jeffrey Rothbard pleaded guilty to one count of wire fraud in connection with his participation in a scheme to defraud companies that were interested in obtaining loans for environmentally friendly upgrades to their facilities. He committed this offense, which yielded more than $200,000 for him, while he was on probation for a felony forgery conviction in Indiana. The district court sentenced him to 24 months’ imprisonment, despite the fact that Rothbard is an older man with serious health problems and the Probation Office thought that incarceration was not necessary. On appeal, Rothbard urges us to find that his sentence is substantively unreasonable, both because he has stayed out of trouble for nearly three years and because he fears that the Bureau of Prisons (BOP) may be unable to furnish the medication on which his health critically depends.

Perhaps, had we been the sentencing judges, we would have accepted his arguments. But the district court here gave sound reasons for its chosen sentence. In addition, both the evidence in the record before the district court, and supplemental information that we requested about BOP’s ability to provide appropriate care, satisfy us that the nominal 24- month sentence will not, in reality, spell doom for Rothbard. We therefore affirm the district court’s judgment. * * *

We close, however, with a caveat. If Rothbard shows up at a BOP facility and discovers that the responsible people are dragging their feet in a way that deprives him for any significant time of his nilotinib, or if the BOP evaluator (contrary to all of the evidence we have seen) takes the position that a medically suitable alternative from the formulary exists, Rothbard is free to use the BOP’s grievance procedures to complain about any such problem. On that understanding, we AFFIRM the judgment of the district court.

[p. 10] POSNER, Circuit Judge, dissenting. * * *

I am mindful that if Rothbard is denied nilotinib in prison he can invoke the BOP’s grievance process. But how long will that take? We’re not told, and Dr. Cripe, Rothbard’s physician, warns that any “prolonged interruption” in Rothbard’s access to nilotinib will endanger his health.

To conclude, my inclination would be to reverse the judgment of the district court with directions to impose the sentence recommended by the probation service. But I would be content to reverse and remand with instructions that the district judge appoint neutral expert witnesses drawn both from the medical profession and from academic analysis of prison practices and conditions, with particular emphasis on the federal prison system, and that the judge reconsider his sentence in light of evidence presented by these witnesses as well as any witnesses that the government or the defendant may care to call.

What is clear is that Jeffrey Rothbard is entitled to a more informed and compassionate judicial response to his physical and mental illnesses than he has received from the district court and this court.

Posted by Marcia Oddi on Saturday, March 18, 2017
Posted to Ind. (7th Cir.) Decisions

Friday, March 17, 2017

Ind. Decisions - Supreme Court issues 1 today, reversing trial ruling

In Marvin Beville v. State of Indiana, an 11-page, 5-0 opinion, Chief Justice Rush writes:

The State told Marvin Beville it had a video recording of a controlled drug buy between him and a confidential informant. But while the State offered Beville’s public defender the opportunity to review the recording in the prosecutor’s office, it would not allow Beville himself to see the video. Beville accordingly requested a copy of the recording, to no avail. His counsel then filed a motion to compel and argued that Beville’s personal review of the video was fundamental to preparing a defense. The State responded that the informer’s privilege entitled it to withhold disclosing the recording. The trial court agreed with the State, and Beville took this interlocutory appeal.

We acknowledge that when the informer’s privilege is properly invoked, the defendant bears the burden to demonstrate an exception to the privilege—otherwise, disclosure of the requested discovery is not warranted. But it is incumbent on the State to establish that the informer’s privilege applies in the first instance. We conclude the State failed to make that threshold showing because it is unclear whether the video would actually reveal the informant’s identity. And even if the State had made the threshold showing, we find that Beville carried his burden of proving an exception to the privilege because his review of the video was relevant and helpful to his defense. We thus reverse the trial court. * * *

Because the State did not carry its threshold burden in establishing that the informer’s privilege applied to Beville’s discovery request, the State was not entitled to withhold disclosing the video recording. Accordingly, we reverse the trial court’s denial of Beville’s motion to compel.

Posted by Marcia Oddi on Friday, March 17, 2017
Posted to Ind. Sup.Ct. Decisions

Vacancy on Supreme Court 2017 - Odds Against Finalists from Previous Vacancies

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

As mentioned in this post, Judges Hostetler and Kincaid were finalists for the 2016 vacancy that was filled by Justice Slaughter. Both judges have applied again. If earlier selection processes are predictive of this one, the odds are not in their favor as finalists for this vacancy.

Thus, seven of the eight non-selected finalists from the past four vacancies have applied again for the next available vacancy. Just one of five (a mere 20%) were finalists on their subsequent application. Whether Judge Hostetler and Judge Kincaid outperform those odds will be known in a little over a month.

One would expect finalists from a previous vacancy to do well as a subsequent applicant. They will have familiarity with the process and have not only met some (or all) of the members of the Judicial Nominating Commission but impressed them enough to make the final cut. This would seem especially true in 2012 when the JNC membership was the same for both vacancies (except for the change of Chief Justice).

This year, five of the seven JNC members will have previously interviewed Judges Hostetler and Kincaid; the new members are Molly Kitchell (who replaced David Tinkey) and James Young (who replaced Lee Christie).

Posted by Marcia Oddi on Friday, March 17, 2017
Posted to Vacancy on Supreme Court - 2017

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (1):

In Michael Miller v. State of Indiana, a 29-page opinion, Judge Barnes writes:

Michael Miller appeals his conviction for attempted murder. We reverse and remand.

The issues we address today are: I. whether Miller was denied his right to a speedy trial under Indiana Criminal Rule 4(B); II. whether the trial court properly rejected his insanity defense; and III. whether the trial court applied an incorrect standard in convicting Miller of attempted murder. * * *

Miller’s speedy trial rights were not violated by the trial court’s granting of the State’s continuance motion. There was sufficient evidence as a matter of law to reject Miller’s insanity defense. However, it is apparent the trial court as fact finder applied the incorrect standard of a “knowing” mens rea rather than “specific intent to kill” in deciding to convict Miller of attempted murder. We reverse and remand for a new trial in accordance with this opinion.

NFP civil decisions today (4):

Sally Witherspoon v. Tawanna Brown (mem. dec.)

Sanders Development Group, Inc. v. Willow Properties, LLC (mem. dec.)

Don Niemeyer, Jon Niemeyer, Brent Hegerfeld, Stanley Hegerfeld, Hoagland Holdings, LLC, et al. v. The Board of Trustees of Allen County Regional Water & Sewer District (mem. dec.)

In Re: The Matter of Joyce Hall Incapacitated Adult, Barbara Rich and Donald Rich v. Imogene Suzann Fischman (mem. dec.)

NFP juvenile and criminal decisions today (3):

Garit Tuggle v. State of Indiana (mem. dec.)

Miguel A. Garcia-Cheverez v. State of Indiana (mem. dec.)

Samuel Jacob Fies v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, March 17, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: The email attachment that is the object of Groth v. Pence is now public

Updating this ILB blog from March 15th, which linked to the document at issue, Fatima Hussein of the Indianapolis Star reports this morning in a story headed "Pence document shows Republican strategy for fighting Obama immigration plan." Some quotes:

After the administration of former Gov. Mike Pence, who is now vice president, fought the release of a political white paper for two years, the contents of the document were released by officials from another state.

The six-page document discusses legal precedents that could be used to challenge former President Barack Obama's 2014 decision to defer enforcement of certain immigration laws.

"The focus of the proposed litigation is not immigration," said the document, written by Texas Gov. Greg Abbott, who was then attorney general. "Rather, it is the scope of executive authority." * * *

Wednesday, the white paper obtained from another state was released by a website called Rewire, dedicated to women's reproductive rights. Just hours later, attorneys representing the governor's office sent Groth's attorney, Greg Bowes, a copy of the white paper and filed a motion "Regarding Change in Circumstances," in an attempt to moot the case.

"Because the document is now in the public domain for the first time, it is now subject to disclosure under APRA," wrote attorney Joseph Chapelle to Bowes. Chapelle originally represented Pence, but under rules of civil procedure now works on behalf of current Indiana governor Eric Holcomb.

The white paper focuses on how "the unchecked expansion of executive authority wielded by President Obama threatens the constitutional balance of power."

Ironically, the Groth v. Pence case also touches on a question of executive authority. After Groth filed suit in Marion County Superior Court, a judge ruled in favor of Pence, saying the redactions the administration made to the public record were "proper."

The ruling left open the possibility that the executive branch could claim that its redactions were nonjusticiable, a legal term that means not for the court to decide. That finding was based on an earlier Supreme Court ruling in Citizens Action Coalition, et al. v. Indiana House Rep. about redactions made by the legislature.

Groth appealed the decision in April. This January, the Indiana Court of Appeals ruled that Groth does not have the right to view the political white paper, but disagreed with the governor's contention that it would violate the separation of powers doctrine for the judiciary to second guess the redactions.

That was an important finding to advocates of government transparency, who feared a Pence victory in the suit could set a broader precedent that would embolden future governors to refuse to disclose or heavily redact public documents with no court oversight.

Earlier this year, Groth petitioned the Indiana Supreme Court to take up the case, then attempted to remand the case back to the trial court in light of an IndyStar investigation revealing that Pence used a private email account to conduct government business and was hacked.

Bowes said the revelation of the white paper may affect how the court proceeds, "but this does not moot our case," he said.

"The revelation just supports our argument that we made to the Supreme Court that Texas was obviously seeking other states to join the lawsuit," Bowes said. "We feel an obligation for the case to continue."

ILB: Here are copies of:

Posted by Marcia Oddi on Friday, March 17, 2017
Posted to Indiana Government

Ind. Decisions - 7th Circuit decided one Indiana application yesterday [Updated]

In McKinley Kelly v. Richard Brown, an 8-page, 2-1 ruling involving an Indiana prisoner, Judge Manion writes:

McKinley Kelly has filed an application pursuant to 28 U.S.C. § 2244(b)(3), seeking authoriza‐ tion to file a second or successive petition for a writ of habeas corpus under § 2254. Kelly is serving a 110‐year sentence (two consecutive terms of 55 years) for two murders he committed when he was 16 years old. He will first be eligible for parole on February 1, 2050, when he will be 70 years old. Kelly wants to challenge his sentence under Miller v. Alabama, 132 S. Ct. 2455 (2012) (mandatory life sentences for juvenile offenders is unconstitutional), which was made retroactive by Montgom‐ ery v. Louisiana, 136 S. Ct. 718 (2016). Miller applies not just to sentences of natural life, but also to sentences so long that, alt‐ hough set out as a term of years, they are in reality a life sen‐ tence. McKinley v. Butler, 809 F.3d 908 (7th Cir. 2016).  

Because Kelly stated a possible claim to relief under Mil‐ ler, we invited the State to respond, which it has done. It ar‐ gues that Kelly cannot state a claim to relief under Miller be‐ cause his sentencing judge was afforded significant discretion by the Indiana Code to fashion an appropriate sentence and, in fact, considered Kelly’s age at the time of the offense in mit‐ igation. * * *

We agree with the State: Kelly was afforded all he was entitled to under Miller. The sentencing court had considera‐ ble leeway in fashioning Kelly’s sentence and in fact consid‐ ered his age when deciding on the appropriate term. Accord‐ ingly, we DENY authorization and DISMISS his application.

[p. 5] POSNER, Circuit Judge, dissenting. When McKinley Kelly was 16 years old, he shot and killed two people. Tried and convicted in an Indiana state court of the two murders, he was sentenced to 110 years in prison. Even if, as the State says, Kelly will be eligible for parole when he is 70, he never‐ theless is effectively serving a life sentence. * * *

We should allow him to pursue his Miller claim in the district court, which should conduct a hearing to determine whether he is or is not incorrigible.

[Updated at 10:21 AM] Or, as Zoe Tillman of @Buzzfeed tweets:
7th Circuit: man sentenced to 110 years for murders he committed at age 16 can't challenge sentence; Posner dissents

Posted by Marcia Oddi on Friday, March 17, 2017
Posted to Ind. (7th Cir.) Decisions

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 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

Wednesday, March 15, 2017

Ind. Courts - Rule changes proposed, would impose duty of technological competence on Indiana lawyers and judges

Lawyer and media consultant Robert J. Ambrogi wrote October 2012 for the MassBar Association:

The legal profession underwent a sea change last month, but few lawyers even knew about it. In a historic but little-heralded move, the American Bar Association said that lawyers must be competent not only in the law and its practice, but also in technology.

The ABA's House of Delegates, meeting in August, voted to amend the comment to its Model Rule of Professional Conduct governing lawyer competence to make clear that a lawyer's skill set must include technology. * * *

There are some who argue that this urging of technological competence is too little, too late. It is hard to argue with that position. Although the 20/20 Commission's report alluded to "the sometimes bewildering pace of technological change," the fact is that lawyers have been using PCs since the late 1970s and the Internet for at least two decades.

From July 10, 2015, a must-read article at Lawyerist.com, by Megan Zavieh, headed "Luddite Lawyers Are Ethical Violations Waiting To Happen." The long story concludes:
New rules and comments on attorneys’ need to keep up with technology have begun to propagate, and more will follow. With substantive rules come ethical obligations and malpractice standards. The age of the law firm partner who can’t remember what Facebook is called, or who asks his secretary to print out his emails, or who goofs up a video conference during trial, is past. Technology is integral to the practice of law, from both a practical and ethical perspective.
From the Texas Lawyer, a January 1, 2017 article by Stave Thomas, headed "Legal Tech Skills Are No Longer Optional."

Robert Ambrogi reported December 28, 2016, at his blog Law Sites, that "Another State Adopts Duty of Technology Competence; Makes it 26."

Posted for comment this month by the Indiana Supreme Court Committee on Rules of Practice and Procedure, two proposed rule amendments, re Technology relevant to attorneys, and Technology relevant to judicial officials. The changes appears to conform to the 2012 ABA recommendation:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Posted by Marcia Oddi on Wednesday, March 15, 2017
Posted to Indiana Courts

Ind. Decisions - The email attachment that is the object of Groth v. Pence is now public

Sofia Resnick & Amy Littlefield of Rewire News are reporting this afternoon - some quotes from the long story that should be read in full:

Rewire has obtained a political white paper that Vice President Mike Pence has spent more than two years fighting to keep secret.

This white paper details legal strategy shared with Republican governors in a 2014 email about the best way to challenge former President Barack Obama’s order to provide temporary deportation relief to certain undocumented immigrants. The paper has become a matter of public fascination, as it is the subject of a separate lawsuit filed against Pence in December 2014, when he was governor of Indiana. * * *

Rewire shared with Groth the white paper, which we obtained by filing records requests to other states who received Hodge’s email. As of publication time, public records officials in Idaho, North Carolina, and Wyoming sent us the white paper. Groth told Rewire in a phone interview he was ultimately surprised that Pence had been hiding what amounts to many of the same legal arguments made in Texas’ challenge to Obama’s immigration order.

“It really is baffling why the governor would choose to fight so hard to keep this document secret after all these years,” Groth said.

But the white paper, drafted by former Texas Deputy Solicitor General Andy Oldham, by itself reveals what immigration legal experts told Rewire are inherent contradictions between the arguments Pence and his fellow governors made in opposing Obama’s executive action, and the arguments Pence and the Trump administration are making in defending Trump’s recently revised Muslim ban. * * *

Groth told Rewire that he needs to confer with his attorney to figure out how to proceed with his legal challenge. He said that now seeing the white paper, he believes Pence was wrong to keep this document secret.

The white paper “openly is couched as an invitation to other states to join the anticipated Texas lawsuit against Pres. Obama’s humanitarian immigration actions,” Groth said in a follow-up email. “Because the document solicits Indiana’s involvement in that proposed lawsuit, it cannot be protected under the attorney-client exception to our public records law. … Pence has still failed to show there was an attorney-client relationship at the time Texas sent the white paper to him.”

Pence’s attorney in the public records lawsuit, Joseph Chapelle [of BT], confirmed with Rewire that the white paper we obtained is the same that is the subject of Groth’s public-records lawsuit.

“Mr. Pence is not the one seeking this appeal and is no longer a party to this lawsuit under court rules,” Chapelle told Rewire in an email. “It is the other party, Mr. Groth, who wants to keep this case alive. This development is yet another reason why the Indiana Supreme Court should not take this case and let it end now.” * * *

In addition to Groth’s lawsuit, Pence is facing scrutiny about his use of a private email account while he was the governor of Indiana.

The Indianapolis Star recently reported that Pence used the account to conduct state business; yet during the presidential election Pence criticized his running mate’s opponent, Hillary Clinton, for her use of a private email server while she was secretary of state.

ILB: Here is long list of prior ILB posts on Groth v. Pence.

Posted by Marcia Oddi on Wednesday, March 15, 2017
Posted to Indiana Government

Law - NACDL Issues Groundbreaking Report and Recommendations on Police Body Cameras

A few quotes from the long news release, issued today (the the involvement of IU-McKinney's Prof. Schumm):

Washington, DC (Mar. 15, 2017) -- The National Association of Criminal Defense Lawyers (NACDL), with support from the Foundation for Criminal Justice (FCJ), today releases Policing Body Cameras: Policies and Procedures to Safeguard the Rights of the Accused. This report is the product of more than two years of careful research and deliberation. In this report, NACDL endorses the continued and wider use of body cameras as long as they are implemented with NACDL's policy recommendations, which are set forth below and in the report. With these protections in place, body cameras have the potential to better document encounters between police officers and civilians while mitigating competing concerns about their potential for misuse or abuse. The report and recommendations represent an important contribution to critical conversations and policymaking taking place throughout the country. * * *

The recommendations set forth in detail in this report will maximize cameras' use in protecting the public and the police alike, and in generating reliable criminal justice outcomes. Those recommendations are summarized below. * * *

NACDL thanks the Foundation for Criminal Justice for its support of the task force and Joel M. Schumm, Clinical Professor of Law at Indiana University Robert H. McKinney School of Law, for drafting this report.

Posted by Marcia Oddi on Wednesday, March 15, 2017
Posted to General Law Related

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 13 NFP memorandum decision(s))

For publication opinions today (2):

In Virginia E. Mourning v. Allison Transmission, Inc. , a 16-page opinion, Chief Judge Vaidik writes:

This case involves the interplay between Indiana Trial Rules 12(C) and 12(B). A Trial Rule 12(C) motion for judgment on the pleadings is typically directed toward a determination of the substantive merits of the controversy. A Trial Rule 12(B) motion to dismiss, in contrast, is directed solely toward procedural defects or the statement of the plaintiff’s claim for relief and does not seek to determine the substantive merits of the controversy. However, a defense of failure to state a claim upon which relief can be granted can be raised under either Trial Rule 12(B)(6) or Trial Rule 12(C). When raised in a Trial Rule 12(C) motion, the court must treat the motion pursuant to Trial Rule 12(B)(6) and, if granted, give the plaintiff ten days to amend the complaint once as of right.

Here, Virginia Mourning sued Allison Transmission, Inc. claiming that it played a role in getting her fired from her long-time employer, Ternes Packaging. Mourning alleged tortious interference with an employment contract and defamation. Allison Transmission then filed an ambiguously worded “12(C) Motion to Dismiss” alleging that Mourning “failed to state a claim upon which relief may be granted” and that her claims failed “as a matter of law.” The trial court granted Allison Transmission’s motion and entered final judgment in its favor. Applying the above principles here, we find that Mourning sufficiently pled her defamation claim but not her tortious interference claim. We therefore reverse and remand this case to the trial court to give Mourning an opportunity to amend her complaint once as of right.

In Gary Hanks v. State of Indiana, a 22-page opinion, Judges Mathias writes:
Gary Hanks (“Hanks”) pleaded guilty in Clark Circuit Court to one count of Class A felony child molesting. Hanks collaterally attacks his plea as the product of the ineffective assistance of his trial counsel and as not knowingly, intelligently, and voluntarily made. Hanks’s petition for post-conviction relief on those grounds was denied by the court below.

When a defendant is deciding whether to expose himself to a sentencing judge’s absolute discretion, is local defense counsel constitutionally required to advise his client of the local judge’s sentencing practices in cases like his client’s? Because Hanks has not persuaded us that, as applied to the facts of his case, counsel was required to do so, we affirm as to the ineffective assistance claim. We remand for judgment on the voluntariness claim because it was raised but not resolved below.

NFP civil decisions today (7):

Larry W. Hollerbach and Jerri A. Hollerbach v. Kerri English and Steven English (mem. dec.)

Kimberly D. Hickman v. City of Austin (mem. dec.)

Daniel Hoagland v. Town of Clear Lake (mem. dec.)

In re the Termination of the Parent-Child Relationship of: K.Y. and G.Y. (Minor Children) and D.Y. (Father) v. The Indiana Department of Child Services (mem. dec.)

In re the Termination of the Parent-Child Relationship of: Co.S., E.S., Cl.S., P.S., and M.S. (minor children) and D.S. (Father) v. The Indiana Department of Child Services (mem. dec.)

In re the Matter of the Termination of the Parent-Child Relationship of S.N. (Minor Child) and J.F. (Father) v. Indiana Department of Child Services (mem. dec.)

In the Matter of: K.M. and D.M., (Minor Children) Children in Need of Services and L.H. (Mother) v. The Indiana Department of Child Services (mem. dec.)

NFP juvenile and criminal decisions today (6):

Charmae L. Lesiewicz v. State of Indiana (mem. dec.)

Charlene Renier v. State of Indiana (mem. dec.)

Maurice E. Hilliard v. State of Indiana (mem. dec.)

Justice K. Kiama v. State of Indiana (mem.dec.)

Edward Smith v. State of Indiana (mem. dec.)

Terrell A. Dodd v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, March 15, 2017
Posted to Ind. App.Ct. Decisions

Ind. Courts - Indiana Board of Law Examiners Portal is down

An applicant for the July bar has sent the ILB this note, which I've edited slightly:

I am emailing about the outage of the Indiana Bar Examiners website that allows individuals to work on and submit their applications to sit for the Indiana State Bar. I am a 3L at XXX. The application for the July bar, recently, opened at the beginning of March. It is due April 1, 2017.

I hoped to begin working on the online application this week, but when I went to the site I was greeted with "We're sorry...The Indiana Board of Law Examiners Portal is currently unavailable. Please try again later." The link to the site is http://www.in.gov/judiciary/ble/portal.html

This occurred all day long, yesterday. This morning, I tried to access the site again and received the same message. I just called the Bar Examiners office and they gave no explanation as to why the site was down.

They said they hoped the site would be up again soon, but would not indicate a timeframe. I asked if they would be extending the bar application deadline if the outage continued and they indicated that there were no plans for that as of now.

Right now, I can't even view the application to anticipate what information to gather. I am sure this would be of interest to others, as well, as many students are on pins and needles to get the application done.

Posted by Marcia Oddi on Wednesday, March 15, 2017
Posted to Indiana Courts

Ind. Courts - Women head Indiana courts [Updated]

A reader has sent this message:

Ms. Oddi,

In honor of Women's History Month, I thought I would pass along an interesting fact that I have not heard highlighted. The highest judicial officers in and over the State of Indiana are now almost all women (the exception being the Chief Justice of the United States):

  • Justice Kagan (circuit justice for the Seventh Circuit)
  • Chief Judge Wood (CA 7)
  • Chief Justice Rush (Ind.)
  • Chief Judge Vaidik (Ind. Ct. App.)
  • Chief Judge Magnus-Stinson (S.D. Ind.)
  • Chief Judge Springmann (N.D. Ind.)
That is an impressive list. And it must surely be the first time in Indiana's history that all of these offices have been held by women at the same time.

I am a pretty loyal reader of law blog but haven't seen this noted anywhere. I apologize if I missed it. I just thought it was something worth pointing out.

ILB: Pretty remarkable, I certainly hadn't noticed! Thanks to the reader, who prefers anonymity.

[Updated almost immediately] A tweet from @Legallyageek: "@indianalawblog and of course, don't forget Chief Judge Robyn Moberly in the SD Bankruptcy Court

Posted by Marcia Oddi on Wednesday, March 15, 2017
Posted to Indiana Courts

About the ILB - An opportunity for your firm or company to become the ILB's exclusive sponsor

The Indianapolis law firm of Hoover Hull Turner has been the exclusive sponsor of the Indiana Law Blog since the spring of 2016. Its financial arrangement will end on April 30, 2017. HHT writes that it continues to be grateful for Marcia Oddi's tireless work in the name of public service, adding intelligent insight into coverage of new court decisions and legislative developments.

And the ILB, as I know do many you, thanks HHT for its strong and generous support over the past year.

The ILB is now looking for a new sponsor (or group of several sponsors) to step forward to support its mission, which began in 2003, of collecting and reporting on the news that matters to lawyers, judges and citizens across Indiana.

Contact me with serious inquiries. Thank you.

Posted by Marcia Oddi on Wednesday, March 15, 2017
Posted to About the Indiana Law Blog

Ind. Gov't. - Ticket bought in Tippecanoe County won the $435.3 million Powerball jackpot - local tax implications

Supplementing the earlier ILB posts re "Should Hoosiers be allowed to claim lottery winnings anonymously?", Jillian Ellison has this interesting story today in the Lafayette Journal-Courier. Some quotes:

LAFAYETTE, Ind. — When an anonymous winner from Tippecanoe County won the $435.3 million Powerball jackpot, the state and federal government took out $246.2 million in taxes.

But the county may not see its share — in the form of its 1.1 percent income tax — because the big winner claimed his jackpot as Bohemian Financial LLC.

From a taxation standpoint, that changed everything.

The winner walked away with $189.1 million in earnings. Had local income tax been paid on that, Tippecanoe County Treasurer Jennifer Weston said the county's coffers would have swelled by over $2 million.

Of the county's 1.1 percent income tax:

  • 0.6 percent goes toward economic development
  • 0.4 percent goes toward local libraries and townships
  • 0.1 percent goes to homestead credits
But due to the winner's formation of an LLC — short for "limited liability company" — that breakdown is moot. * * *

Larry DeBoer, professor of agricultural economics at Purdue University, said the formation of an LLC is not only a way of protecting the winner, but a way of avoiding income tax, as well.

"What this is, is sophisticated tax stuff," DeBoer said. "The money would go into a fund the winner doesn't touch, but then draws income out of."

Though the Powerball jackpot winner could move away from Tippecanoe County with his winnings, DeBoer said ultimately all of the taxes will have to be paid in the end, whether that's to his current county or another.

"With the LLC, he might find himself in a lower tax bracket as a corporation," he said. "This could be a way of putting it into an account to draw interest, but it will all be accounted for in the end."

The creation of the LLC by the winner, however, was a smart financial move, DeBoer said.

"I'm sure he is getting excellent tax advice on this," he said. "With those kinds of winnings, you couldn't afford not to."

ILB: Likely the tax impact from creation of the LLC would have been the same, whether or not the winner had elected to keep his/her name private. Additionally, the $435.3 would be decreased by about half if the winner elected, as most do, to take the lump sum.

Posted by Marcia Oddi on Wednesday, March 15, 2017
Posted to Indiana Government

Ind. Gov't. - "Bill would send adoption notice to grandparents"

Shelby Mullis of TheStatehouseFile reports in a brief story in the Greensburg Daily News. Some quotes:

Some Indiana grandparents could soon receive notification of a child’s adoption if one lawmaker’s bill continues to make strides.

The idea for House Bill 1245 came to Rep. Mike Karickhoff, R-Kokomo, after what he calls a tragic case.

“There was a positive relationship between grandparents and the parent remarried after the grandparents’ daughter had passed, and visitation was cut off,” Karickhoff said. “The grandparent did not realize at the time of the adoption her visitation would be cut off.”

Karickhoff said had the grandparent been notified, she would have had the opportunity to choose whether she wanted to petition the court for visitation.

HB 1245 is an effort to prevent similar cases, ultimately granting a notification of adoption to grandparents with existing rights to petition for visitation of their grandchild.

The notice would make grandparents aware of possible visitation termination if they choose to not go to court through a separate action to seek a visitation order.

ILB: The story then quotes Court of Appeals Judge Margret Robb. It is unclear from the story whether Judge Robb provided testimony on the bill at the committee hearing or was interviewed by the reporter:
[Judge] Robb said the bill only serves as a “notice bill,” specifically for grandparents who, if they previously obtained a court order setting out their visitation rights, would continue to have those rights after an adoption.

“In summary, this bill is a piece of legislation designed to ensure fairness to grandparents so they know what their rights are with respect to their grandchildren,” she said. “It does not increase, decrease, alter or change those rights.”

Robb said notice would not be required in “stranger” adoptions, but only in adoptions through a stepparent and biologically related people, such as a sibling, aunt, uncle, niece or nephew.

Posted by Marcia Oddi on Wednesday, March 15, 2017
Posted to Indiana Government

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

Monday, March 13, 2017

Ind. Courts - 11th Circuit panel rules: Discrimination against gay workers not prohibited

From WHIO (Dayton, OH), this AP story by Kate Brumback:

ATLANTA — In a setback for gay rights advocates hoping for an expansion of workplace discrimination protections, a federal appeals court in Atlanta has ruled that employers aren't prohibited from discriminating against employees because of sexual orientation.

A three-judge panel of the 11th U.S. Circuit Court of Appeals on Friday ruled 2-1 that Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination based on a variety of factors, doesn't protect against workplace discrimination based on sexual orientation.

The case was one of two that Lambda Legal had pending before federal appeals courts — along with an Indiana case at the 7th U.S. Circuit Court of Appeals in Chicago — that the LGBT rights group had hoped would mark a significant step forward for gay rights. [ILB: That would be Hively] * * *

In a similar case, a three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago in July upheld a lower court's dismissal of a 2014 lawsuit filed by Kimberly Hively of South Bend, Indiana, a former part-time instructor who said Ivy Tech Community College in her hometown didn't hire her full time because she is a lesbian.

The full 7th Circuit vacated that panel's decision, and all 11 of the court's judges reheard the case in November. The ruling has not yet been announced, but several of the judges seemed to signal during oral arguments that they were ready to broaden the scope of the 53-year-old civil rights law.

Lambda Legal attorneys said they plan to ask the 11th Circuit to vacate the Evans ruling and have the full 11-judge court rehear the case, like the 7th Circuit did in the Hively case.

"This is not the end of the road for us and certainly not for Jameka," attorney Greg Nevins said in an emailed statement. "There is no way to draw a line between sexual orientation discrimination and discrimination based on gender nonconformity because not being straight is gender-nonconforming, period."

And here is a long report by Bill Rankin of the Atlanta Journal-Constitution. Some quotes:
Federal law does not prohibit employers from discriminating against workers because they are lesbian or gay, an Atlanta appeals court has ruled.

The 11th U.S. Circuit Court of Appeals, in a 2-1 ruling issued Friday, denied the LGBT community what could have been a landmark court victory. Instead, the court declined to expand workplace protections to gays and lesbians under Title VII of the Civil Rights Act of 1964, which already prohibits discrimination on the basis of race, sex, religion and national origin.

The decision sparked pointed exchanges between dissenting Judge Robin Rosenbaum, an appointee of President Barack Obama, and Judge Bill Pryor, the former Alabama attorney general who was recently on President Donald Trump’s short list to fill a U.S. Supreme Court vacancy. In his concurring opinion, Pryor drew a distinction between being gay and behaving as a gay person might. That is, homosexuals are not a protected class under the law, but they may not be discriminated against because of the way they dress or the way they behave. In her dissent, Rosenbaum ridiculed that argument as a “defiance of logic.” * * *

In her dissent, Rosenbaum wrote: “There is no way to draw a line between sexual orientation discrimination and discrimination based on gender nonconformity, because not being straight is gender-nonconforming, period.”

ILB: The case is Jameka Evans v. Georgia Regional Hospital. Here is the 55-page opinion, issued 3/10/17.

Posted by Marcia Oddi on Monday, March 13, 2017
Posted to Ind. (7th Cir.) Decisions

Ind. Courts - More on "Newburgh attorney pleads guilty to impersonating public servant"

Supplementing this May 20, 2015 ILB post, quoting a story from that date by Mike Wilson of the Evansville Courier & Press that ended [ILB emphasis]:

A second felony charge of impersonating a public servant is still pending in Warrick County for what officials say was a similar incident there two weeks after Oberst’s Gibson County traffic stop. He is next scheduled to appear in court there at 9 a.m. June 15.
Reporter Wilson writes today:
A Newburgh attorney who falsely claimed to be a deputy prosecutor to escape a speeding ticket has been convicted of a felony after a bench trial in Warrick County.

Warrick County Circuit Court Judge Greg Granger issued his ruling, convicting attorney Brian J. Oberst of the level 6 felony on Friday, according to court records.

The ruling came two weeks after Granger listened to arguments from both sides in a bench trial because Oberst opted not to be tried by jury. * * *

"This is the only criminal conviction Oberst has ever had," [attorney Douglas Walton, who represents Oberst] said.

An arrest in a similar incident involving Oberst in Gibson County did not result in a conviction. Instead, the charge was dismissed in May 2016 after Oberst successfully completed a year of probation.

With no criminal convictions on his record, Oberst has continued to practice law in good standing. * * *

The Warrick County incident happened two weeks after a similar incident when a Gibson County Sheriff’s deputy stopped Oberst for speeding on U.S. 41. Oberst reportedly also claimed to be a current deputy prosecutor in that case.

Oberst's record on the Indiana Roll of Attorneys indicates "active in good standing," and "no disciplinary history."

Posted by Marcia Oddi on Monday, March 13, 2017
Posted to Indiana Courts

Ind. Decisions - Transfer list for week ending March 10, 2017

Here is the Clerk's transfer list for the week ending Friday, March 10, 2017. It is one page (and 1 case) long.

One transfer was granted last week, with opinion:

Posted by Marcia Oddi on Monday, March 13, 2017
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (3):

In Termination: KC, et al. v. Indiana Department of Child Services, a 20-page opinion, Judge May writes:

M.M. (“Mother”) and K.C. (“Father”) (collectively, “Parents”) appeal the involuntary termination of their parental rights to G.M. (“Child”). Mother challenges a number of the juvenile court’s findings and argues the Department of Child Services (“DCS”) did not present sufficient evidence the conditions under which Child was removed would not be remedied and termination was in the best interests of Child. Father makes similar arguments, but we find dispositive his argument the juvenile court could not terminate his rights when it had never issued a dispositional decree as to Father. We affirm in part, reverse in part, and remand. * * *

The juvenile court erred when it terminated Father’s parental rights to Child because Child had not been removed from Father under a dispositional decree for at least six months as required by Indiana Code Section 31-35-2- 4(b)(2)(A)(i). However, DCS presented sufficient evidence to support the juvenile court’s findings regarding Mother, including the juvenile court’s conclusions the circumstances under which Child was removed would not be remedied and termination was in Child’s best interests. Therefore, we reverse the termination of Father’s parental rights to Child, affirm the termination of Mother’s parental rights to Child, and remand to the juvenile court for proceedings consistent with this opinion.

In Derrian N. Hampton v. State of Indiana, a 19-page opinion, Judge Kirsch writes:
After the State filed a petition for revocation of Derrian Hampton’s (“Hampton”) suspended sentence, alleging probation violations, Hampton and the State entered into an Agreement on Petition to Revoke Suspended Sentence (“the Agreement”). In the agreement, Hampton admitted to a probation violation and was ordered to serve the balance of a previously-suspended sentence, and the State agreed to stay execution of the sentence for approximately six months. At the end of such time a review hearing would be held and, if Hampton had completed all terms and conditions of probation, the petition for revocation of suspended sentence would be dismissed. The trial court accepted the Agreement and entered an order. Following the review hearing, the trial court issued an Order on Violation of Probation, ordering Hampton to serve the previously-suspended sentence. The trial court denied Hampton’s Motion to Correct Error Alternatively Motion to Reconsider (“Motion to Reconsider”), and Hampton now appeals, raising three issues that we consolidate and restate as: Whether the trial court abused its discretion when it denied Hampton’s Motion to Reconsider. * * *

Following our Supreme Court’s direction in Woods and our colleagues’ application of that reasoning in Sullivan, we reverse the 550-day sanction and remand the matter to the trial court for it to determine the appropriate sanction to impose for Hampton’s violations of its order.

We affirm the trial court’s determination that Hampton violated the terms and conditions of her probation, and we remand the matter to the trial court for it to determine the appropriate sanction to impose for Hampton’s violations.

In Argumedo Alvarez-Madrigal v. State of Indiana, a 24-page opinion with a separate concurring opinion, Judge Kirsch writes:
Following a jury trial, Argumedo Alvarez-Madrigal (“Alvarez-Madrigal”) was convicted of four counts of Class A felony child molesting1 and two counts of Class C felony child molesting. He appeals, contending that a statement by a State’s witness constituted impermissible vouching evidence and that it was reversible error to admit it. * * *

The record before us indicates that there was substantial independent evidence of guilt supporting Alvarez-Madrigal’s convictions. We do not find that Dr. Thompson’s isolated factual statistic, which was not elicited and was spontaneously offered, likely had substantial influence on the verdict. * * *

Robb, J., concurs.
Barnes, J., concurs in result with separate opinion. [that begins, at p. 18] I concur in result here. I do not believe Alvarez-Madrigal adequately preserved his claim on appeal that Dr. Thompson gave impermissible vouching testimony. He objected to the testimony on the basis that it was “speculation” and “not relevant . . . .” A party cannot object on one basis at trial and seek reversal on appeal on a different ground.

NFP civil decisions today (2):

John E. Roberts, Jr. v. Nichole Roberts (mem. dec.)

Termination: MB v. Indiana Deparment of Child Services (mem. dec.)

NFP juvenile and criminal decisions today (5):

Michael Kilburn v. State of Indiana (mem. dec.)

Terry Delane McNary v. State of Indiana (mem. dec.)

Darrell Lewis v. State of Indiana (mem. dec.)

Lamarr T. Crittenden v. State of Indiana (mem. dec.)

Francisco Garcia v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, March 13, 2017
Posted to Ind. App.Ct. Decisions

Ind. Law - Even more on "Could Indiana pass forfeiture reform this year?"

Updating this March 7th ILB post (which mentions the Supreme Court oral argument coming this Thursday in State of Indiana v. Tyson Timbs and a 2012 Land Rover LR2, federal Judge Magnus-Stinson (SD Ind.) issued a ruling of interest March 7th denying Marion County's motion to dismiss in a lawsuit challenging Indiana's forfeiture statute. Some quotes from the 6-page Order in Leroy Washington v. Marion County Prosecutor:

Plaintiff Leroy Washington’s car was seized and held for forfeiture following his arrest, pursuant to Ind.Code 34-24-1-2(a)(1). Mr. Washington commenced this action against Defendants the Marion County Prosecutor (the “Prosecutor”), the Mayor of the Consolidated City of Indianapolis/Marion County (the “Mayor”), and the Chief of the Indianapolis Metropolitan Police Department (the “Chief”) in their official capacities, challenging the forfeiture statute (and the Defendants’ enforcement of it) as unconstitutional. Presently pending before the Court is the Defendants’ Motion to Dismiss Mr. Washington’s Complaint. For the reasons that follow, the Court denies the Defendants’ Motion. * * *

On November 2, 2016, Mr. Washington filed a Complaint in this Court, on behalf of himself and other putative class members. Mr. Washington alleges that Ind.Code 34-24-1-2(a)(1) violates the Due Process Clause of the United States Constitution, and is therefore illegal, because “it allows the executive branch to seize and hold the vehicle of an owner for several months without affording the owner the right to a postseizure hearing to challenge the seizure.” * * *

The Defendants argue that because Mr. Washington’s vehicle is being released to him, “no relief can be granted to [Mr.] Washington under the claims asserted in this lawsuit.” They contend that “this matter is now moot and must be dismissed.” Mr. Washington responds that the “inherently transitory” doctrine and the “capable of repetition” doctrine both apply in this case, and that those doctrines make clear that his claims have not been mooted by the Defendants’ actions. * * *

The Court therefore concludes that Mr. Washington’s claim has not been mooted, and a class certification will “relate back” to the filing of the complaint.

Posted by Marcia Oddi on Monday, March 13, 2017
Posted to Ind Fed D.Ct. Decisions | Indiana Law

Environment - Ruckelshaus on his return to U.S. EPA in 1983

This Jan. 31st ILB post related Indiana's Williasm Ruckelshaus' taking the job of U.S. EPA head a second time, in 1983, after Reagan's dismissal of Anne Gorsuch Burford, who (quoting the Denver Post):

... was Environmental Protection Agency director for the Reagan administration for 22 months. She slashed the agency’s budget and resigned under fire in 1983 during a scandal over mismanagement of a $1.6 billion program to clean up hazardous waste dumps.
Last week Mr. Ruckelshaus, in a long op-ed the NY Times, wrote of "A Lesson Trump and the E.P.A. Should Heed." Some quotes:
In March 1983, President Ronald Reagan asked me to return to Washington to run the Environmental Protection Agency. I had been the E.P.A.’s first administrator, from 1970 to 1973, and over the agency’s first 10 years, it made enormous progress in bringing the country’s worst pollution problems under control despite resistance from polluting industries and their lobbyists. A worried and outraged public had demanded action, and the government responded.

Yet the agency and its central mission came under attack during the 1980 presidential campaign. The Clean Air Act was criticized as an obstacle to growth. The agency was seen as bloated, inefficient, exceeding its congressional mandates and costing jobs. The Reagan administration and its new administrator were going to fix that. Sound familiar?

The E.P.A. I returned to in the spring of 1983, some 28 months into President Reagan’s first term, was dispirited and in turmoil. Its administrator, Anne M. Gorsuch, had been cited for contempt of Congress. Its budget had been reduced by almost 25 percent, with more cuts promised. Staffing had been slashed. * * *

While I awaited Senate confirmation hearings that April, several chemical industry chief executives asked to meet with me. I expected to hear complaints that over-regulation was stifling economic growth, just as I had heard 10 years earlier.

Instead, I was stunned by their message. The public, they told me, was spooked about the turmoil at E.P.A. Americans didn’t believe anything was being done to protect their health and the environment. They didn’t believe the E.P.A., and they didn’t believe the chemical industry. These executives had concluded that they needed a confident, fair and independent E.P.A. They knew that an environmental agency trusted by the public to do its job gave their businesses a public license to operate. * * *

Our collective freedom and well-being depends on a set of restraints that govern society and how it operates. Those restraints need to be clear and effective. They were not in 1983.

The E.P.A.’s new administrator, Scott Pruitt, comes to his job with this historical backdrop. Are there changes that can be made to improve how the agency operates? Certainly. But those changes can never be seen as undercutting or abandoning the E.P.A.’s basic mission. That was the mistake made during the early Reagan years and why I was asked to return.

One of the factors leading to the creation of E.P.A. was the recognition that without a set of federal standards to protect public health from environmental pollution, states would continue to compete for industrial development by taking short cuts on environmental protection. The laws that the E.P.A. administers create a strong federal-state partnership that has worked well for over 40 years. The federal government sets the standards and the states enforce them, with the E.P.A. stepping in only if the states default on their responsibilities.

In contrast, see this March 9th Washington Post story by Chris Mooney and Brady Dennis, headed "On climate change, Scott Pruitt causes an uproar — and contradicts the EPA’s own website." It begins:
Scott Pruitt, the nation’s top environmental official, strongly rejected the established science of climate change on Thursday, outraging scientists, environmentalists, and even his immediate predecessor at the Environmental Protection Agency.

“I think that measuring with precision human activity on the climate is something very challenging to do and there’s tremendous disagreement about the degree of impact, so no, I would not agree that it’s a primary contributor to the global warming that we see,” Pruitt, the newly installed EPA administrator, said on the CNBC program “Squawk Box.”

“But we don’t know that yet,” he continued. “We need to continue the debate and continue the review and the analysis.”

His comments represented a startling statement for an official so high in the U.S. government, putting him at odds not only with other countries around the globe but also with the official scientific findings of the agency he now leads. President Trump in the past has called the notion of human-fueled climate change a hoax. And other cabinet members, including Secretary of Energy Rick Perry, have previously questioned the scientific basis for combating global warming.

Posted by Marcia Oddi on Monday, March 13, 2017
Posted to Environment

Ind. Gov't. - "Did Noblesville break the law with secret meeting?"

John Tuohy of the Indianapolis Star reported this weekend in a lengthy story:

Noblesville's mayor admitted the city likely violated Indiana’s public access law when it held a secret meeting to discuss the sale of park land to a developer, a practice critics say limits exposure to controversial proposals.

John Ditslear had defended the March 1 meeting for days, saying the private parks board meeting was needed so officials could review a proposal to sell part of Seminary Park before making it public. But two experts on the state's “open door” law said the city's justification for holding the closed door meeting did not pass muster.

In response to inquires from IndyStar, Ditslear released a statement Friday afternoon, saying, "we have reviewed the statute and a strict interpretation could mean this was not a permitted use of executive session.” * * *

City attorney Michael Howard said Wednesday that executive sessions are often used to “run something up the flag pole” to measure what kind of initial response it gets from councilors before making a formal introduction in an open setting.

But Stephen Key, executive director of the Hoosier State Press Association, said the mayor’s comments revealed a fundamental lack of understanding about the purpose of executive sessions. Issues of with high public interest such as the sale of park land should be debated in the open through committees, planning boards, commissions other public forums.

Secret meetings are reserved for sensitive legal, personal or bargaining matters that could harm the government if they were revealed, experts said.

“What it does is delay the point at when the public is aware that this is happening and someone can jump up and say, ‘Hey. I object to this,’” Key said. “The presentation of ideas is not subject matter for an executive session. "Secrecy by city officials (puts) the city in a bad light, not the public airing of innovative ideas.”

Unlike public meetings, executive sessions are closed to citizens and a record of what is discussed is kept secret. But the topics are limited by the Indiana Open Door and Open Records Law to a relatively narrow and sensitive handful: employee contracts and litigation, job interviews and performance evaluations and the purchase or lease of property by the government. * * *

Indiana public access counselor Luke Britt called it “a real stretch” to conclude that selling city property or discussing a residential project could qualify for an executive session.

“I don't buy that, on either point," Britt said. "There is a clear legal difference between what is commercial and industrial and what is residential. And I don't see how submitting development plans qualifies as an interview or negotiation." * * *

The substance of the meeting was revealed by third-term Councilor Mary Sue Rowland, who served eight years as mayor. Rowland, who opposed the plan to sell the park land, told a reporter for the Times of Noblesville details of the meeting and project. Rowland told IndyStar she had no qualms about revealing what the meeting was about because she didn’t think it should have been behind closed doors.

Posted by Marcia Oddi on Monday, March 13, 2017
Posted to Indiana Government

Ind. Courts - Trump announcement sweeps out U.S. Prosecutor for N.D. Indiana

The AP is reporting:

HAMMOND. - The federal prosecutor for northern Indiana has resigned after President Donald Trump sought the dismissals of dozens of U.S. attorneys nationwide who were holdovers from the Obama administration.

The U.S. attorney’s office in Hammond said David Capp resigned after 31 years as a federal prosecutor. * * *

Trump’s Friday request for resignations didn’t include Indianapolis U.S. Attorney Josh Minkler. He’s a career prosecutor appointed by the district’s federal judges after Obama appointee Joe Hogsett resigned in 2014 to start his successful campaign for Indianapolis mayor.

Here is a longer story, with photos, from the Gary Post-Tribune.

The NY Times yesterday had a major story on the resignation/firing of Preet Bharara, the very visible United States attorney in Manhattan.

Posted by Marcia Oddi on Monday, March 13, 2017
Posted to Indiana Courts

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 3/13/17):

Next week's oral arguments before the Supreme Court (week of 3/20/17):

Thursday, March 9

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 3/13/17):

Tuesday, March 14

Thursday, March 16 Next week's oral arguments before the Court of Appeals (week of 3/20/17):

Thursday, March 23

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms generally will be accessible via videocast.

Past Court of Appeals oral arguments which have been webcast are accessible here.


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.

Posted by Marcia Oddi on Monday, March 13, 2017
Posted to Upcoming Oral Arguments

Friday, March 10, 2017

Ind. Decisions - 7th Circuit decides one Indiana case today

In Henry C. Wedemeyer v. CSX Transportation, Inc. (SD Ind., McKinney), a 15-page opinion, Judge Flaum writes:

In 1989, CSX Transportation successfully petitioned the Interstate Commerce Commission (the “ICC”) to end CSX’s obligation to provide common-carrier rail service on a portion of track in Putnam County, Indiana. The following year, CSX notified the ICC that it had abandoned that segment. Shortly thereafter, CSX leased a portion of its track, including the abandoned segment, for use by a grain-shipping company.

The Wedemeyers own property adjoining the abandoned track segment. They sued CSX seeking removal of the tracks and possession of the real property underlying the rail line. CSX moved for summary judgment, and the district court granted its motion, finding that the Wedemeyers’ claims were preempted under the Interstate Commerce Commission Termination Act (“ICCTA”), 49 U.S.C. § 10501(b). We affirm.

Posted by Marcia Oddi on Friday, March 10, 2017
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 6 NFP memorandum decision(s))

For publication opinions today (3):

In James E. Manley v. Keith Butts , a 9-page opinion, Judge Pyle writes:

James E. Manley (“Manley”), pro se, appeals the Henry Circuit Court’s order dismissing his petition for writ of state habeas corpus as an unauthorized successive petition for post-conviction relief. Manley contends that his petition was not an unauthorized successive petition for post-conviction relief and that, even if it were, the Henry Circuit Court should have transferred it to his court of conviction in Monroe County. Because Manley’s habeas petition is challenging the validity of his convictions and sentence and because Indiana PostConviction Rule 1(1)(c) requires that, under such circumstances, a trial court is required to transfer the petition to the court where the petitioner was convicted, we reverse the Henry Circuit Court’s dismissal of Manley’s petition and instruct the trial court to transfer the petition to Manley’s conviction court, the Monroe Circuit Court, where it shall be treated as a post-conviction petition. * * *

It seems that the State is putting the cart before the horse. The plain language of Post-Conviction Rule 1(1)(c) rule provides that a trial court, upon receiving a habeas petition challenging a conviction or sentence, “shall transfer the cause to the court in which the conviction took place[.]” P-C.R. 1(1)(c). Thereafter, when the conviction court receives the petition, that court “shall treat it as a petition for relief under [Post-Conviction Rule 1].” Id. Thus, it is up to the conviction court—not the habeas court—to apply Post-Conviction Rule 1(12) to the petition and make a determination of its applicability. See Martin, 901 N.E.2d at 647 n.2 (noting that, where the petitioner’s habeas petition indicated that he had already filed a post-conviction petition, “the court where [the petitioner] was convicted and sentenced may ultimately determine that Ind. Post-Conviction Rule 1(12), which governs successive petitions for postconviction relief, is applicable”). Accordingly, we reverse the Henry Circuit Court and remand with instructions to transfer Manley’s petition to the Monroe Circuit Court.

In The Estate of Robert Curtis, Sr., by its Personal Representative Theresa Brady v. Geico Geneeral Insurance Company , an 11-page opinion, Judge Baker writes:
Drake Matovich and Robert Curtis engaged in a physical altercation in a grocery store parking lot. Curtis was severely injured and eventually died, allegedly as a result of the altercation. Matovich and Curtis’s estate entered into an agreed judgment, pursuant to which Matovich admitted liability and assigned his claims against his automobile insurer, GEICO General Insurance Company (GEICO), to Curtis. GEICO filed a declaratory judgment action against Curtis, seeking a declaration that the altercation was not covered under GEICO’s insurance policy with Matovich because Matovich was not “using” the covered vehicle at the time of the incident. The trial court granted GEICO’s summary judgment motion. On appeal, both parties make multiple arguments, but we find one dispositive—whether this altercation was covered by the policy as a matter of law. Finding that it was not, we affirm. * * *

Here, in contrast [to Argonaut], when Matovich exited his vehicle to confront Curtis, engaging in a protracted and physical confrontation with the other man, he no longer had an active relationship with his vehicle. His vehicle no longer played a role in the incident; instead, it was merely an altercation between the two men. Furthermore, we cannot conclude that the reasonable expectations of the parties at the time they entered into the Policy would have included coverage for a physical altercation that merely happened to occur near the covered vehicle. As a result, we find that the trial court properly granted summary judgment in favor of GEICO based on a conclusion that, as a matter of law, Matovich was not “using” his vehicle at the time of the altercation with Curtis. Because no coverage exists under the Policy, Curtis is not entitled to relief.

In Imre L. Falatovics v. Amy L. Falatovics, a 5-page opinion, Judge Crone writes:
For the third time, this matter comes before us for review. Imre L. Falatovics (“Husband”) and Amy L. Falatovics (“Wife”) were divorced. Following the issuance of the dissolution decree, Wife filed an appeal and Husband filed an Indiana Trial Rule 60(B) motion (“Trial Rule 60(B) Motion”) to set aside the dissolution decree. After this Court reversed a portion of the dissolution decree and remanded, another appeal ensued. Once this Court’s opinion was certified, Wife moved to dismiss Husband’s Trial Rule 60(B) Motion and his addendum to his Trial Rule 60(B) Motion (“Addendum”) (sometimes collectively referred to as “Trial Rule 60(B) Motions”). The trial court granted Wife’s motion and dismissed Husband’s Trial Rule 60(B) Motions.

Husband now appeals the dismissal of his Trial Rule 60(B) Motions. He argues that the trial court erred in finding that he failed to follow the proper procedure for bringing his Trial Rule 60(B) Motions. He also asserts that Wife is barred by the doctrines of laches and/or invited error from arguing that he failed to follow the proper procedure. Finally, he also contends that his constitutional rights were violated because he did not receive an evidentiary hearing on his motions. Wife contends that Husband’s appeal is frivolous and in bad faith and

We conclude that trial court did not err in finding that Husband failed to follow the proper procedure. We further conclude that neither laches nor invited error applies and that Husband was not deprived of his constitutional rights. We affirm the judgment and deny Wife’s request for attorney’s fees.

NFP civil decisions today (0):

NFP juvenile and criminal decisions today (6):

Scott A. Estep v. State of Indiana (mem. dec.)

Charles Carlos Chatman v. State of Indiana (mem. dec.)

Gerald Donaldson v. State of Indiana (mem. dec.)

Jeremy Perry v. State of Indiana (mem. dec.)

Darren Dwayne Langdon v. State of Indiana

Lacie K. Hall v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, March 10, 2017
Posted to Ind. App.Ct. Decisions

Courts - Challenge to Odyssey case management software fails hurdle in Calif.

The ILB has had several posts on this isssue:

Courts - "Calif. court officials blame software for wrongful arrests, other legal mishaps"

That is the headline to this Dec. 20th Washington Post story reported by Karen Turner. It begins:Wrongful arrests, delayed prison releases and other legal mishaps have been caused by inaccurate records processed by a new court management software system installed...

Posted in The Indiana Law Blog on December 26, 2016 11:26 AM

Courts - "New court software is so awful it’s getting people wrongly arrested: Problematic Odyssey Case Manager software package is used nationwide"

That is the headline to a story today by Cyrus Farivar of ArsTechnica. The lengthy story begins:OAKLAND, Calif.—Most pieces of software don’t have the power to get someone arrested—but Tyler Technologies’ Odyssey Case Manager does. This is the case management...

Posted in The Indiana Law Blog on December 2, 2016 09:40 AM

Today Cyrus Farivar of ArsTechnia has a new story, headed: Judge won't halt court software that still causes mistaken arrests: 'Clerical errors… will occur regardless of the case management system used by the court.'" Some quotes from today's story:
OAKLAND, Calif.—A local judge has ruled against the Alameda County Public Defender’s demands to revise, and possibly even halt, usage of a flawed case management software that is in use here and in many other counties nationwide.
As Ars reported in December 2016, the Alameda County Superior Court switched from a decades-old courtroom management software to a much more modern one on August 1, 2016. Known as Odyssey Court Manager, the new management software is made by Tyler Technologies.

However, since then, the public defender’s office has filed approximately 2,000 motions informing the court that, due to its buggy software, many of its clients have been forced to serve unnecessary jail time, be improperly arrested, or even wrongly registered as sex offenders. As recently as this month, the Portland Press Herald reported on similar difficulties in Maine.

In a 13-page ruling issued last week, which Ars was only made aware of on Thursday, Judge Morris Jacobson denied the public defender’s office's insistence that the court provide accurate records within 24 hours and accurately mark, by the end of the business day, whether someone should be arrested. If the court was unable to meet those requirements, Public Defender Brendon Woods argued, it should halt its use of Odyssey entirely and return to its old system.

Posted by Marcia Oddi on Friday, March 10, 2017
Posted to Courts in general

Courts - "U.S' House GOP quietly advances key elements of tort reform"

Kimberly Kindy's story today in the Washington Post - a few quotes from the long story:

House Republicans are advancing a series of bills that would make changes to the civil justice system long sought by doctors and U.S. corporations, including a cap on some medical malpractice awards and new roadblocks for classes of people seeking to sue jointly to address harm.

The U.S. Chamber of Commerce and other business groups are promoting the measures, arguing that courts have grown overly tolerant of frivolous and fraudulent claims. Civil rights and consumer groups oppose the measures, saying they would severely limit the ability of average Americans to pursue legal remedies from powerful institutions. * * *

Most Democrats oppose the measures, arguing that they would slam shut the courthouse doors to deserving plaintiffs. Many also complained that GOP leaders were moving the bills through the Capitol at breakneck speed, without the close analysis and public debate typically afforded major legislation.

None of the four proposals has been aired in a congressional hearing. The House Judiciary Committee quietly voted along party lines to approve them over the past several weeks.

House leaders “are turning the legislative process into a kind of subterranean operation,” said Rep. Jamie B. Raskin (D-Md.), a leading opponent of the bills. “While the populace is spellbound by [Trump], the conservatives in Congress are dismantling access to justice and our tort civil liability system.”

Posted by Marcia Oddi on Friday, March 10, 2017
Posted to Courts in general

Ind. Courts - "Judges sue Lake to raise pay for court employees"

Bill Dolan reports this morning in the NWI Times:

CROWN POINT — Local judges are suing Lake County to win salary increases for their court employees.

Some 14 Superior Court judges on Feb. 21 filed an "Order for Mandate of Funds" seeking thousands of dollars in raises for each of more than 350 secretaries, bailiffs, office managers, stenographers and other court administrators listed on their payroll.

They are suing the Lake County Council, which would have to find the money from tax revenues. * * *

Indianapolis attorney William J. Barkimer, who represents the judges, referred all comment to fellow attorney Jeffrey McDermott, also of Indianapolis, who couldn't be reached for comment.

The attorneys state in court papers that the 14 judges have lost valuable employees and have trouble replacing them because of county government's low pay scale, which ranges from less than $28,000 for secretaries to less than $62,000 for the Superior Court administrator. The courts' annual payroll exceeds $6.3 million.

The judges argue Lake County pays below the state average, according to a 2015 statewide judicial branch salary analysis, including courts in Porter County, Indianapolis, Fort Wayne, South Bend and Lafayette, Indiana.

Posted by Marcia Oddi on Friday, March 10, 2017
Posted to Indiana Courts

Ind. Decisions - 7th Circuit decided one Indiana case Thursday

In Telamon Corporation v. Charter Oak Fire Insurance Co (SD Ind., Young), a 13-page opinion, Chief Judge Wood writes:

Underlying this insurance dispute is a regrettably common tale of greed and dishonesty. Telamon, an Indiana telecommunications firm, engaged Juanita Berry to work for it from 2005 to 2011 as its Vice President of Major Accounts. Berry used that position to steal over $5 million from the firm. Upon discovering this loss, Telamon then turned to two insurance policies in an effort to recover its money: a crime insurance policy with Travelers Casualty & Surety (Travelers), and a commercial property policy with Charter Oak Fire Insurance (Charter Oak). At that point, Telamon crashed into a brick wall. Travelers denied coverage because Berry was not, legally speaking, an employee. And Charter Oak refused to pay because, in practice, she was.

Telamon cried foul and filed a lawsuit in which it argued that Berry’s actions were covered under both policies and that the insurers had breached their duty of good faith. At the eleventh hour, it tried to add St. Paul Fire and Marine Insurance (St. Paul) as a defendant. The court rejected the amendment, at which point Telamon filed a new action against St. Paul and Charter Oak. That case promptly found its way back to the same court and was dismissed as an impermissible effort to split the claim. Telamon appealed (case 16-1205). Later the court granted summary judgment in favor of the defendants in the original case. Again, Telamon appealed (case 16-1815). We consolidated the appeals for disposition. Finding no error in either of the district court’s decisions, we affirm. * * *

Berry’s theft was not covered under either the Travelers or the Charter Oak policy. In addition, Telamon has not stated a claim for a breach of the duty of good faith. Finally, it was not entitled to bring a new lawsuit that did no more than add a few additional insurers and policies to its basic case. The judgments of the district court are AFFIRMED.

Posted by Marcia Oddi on Friday, March 10, 2017
Posted to Ind. (7th Cir.) Decisions

Law - "How Big Is Your House? That Depends"

That is the headline to an interesting $$ WSJ story today, subheaded "There is no national standard when calculating a home’s square footage. That means buyers may not know exactly what they’re getting for their money." Co9mplete with diagrams, the long story begins:

Two properties go on the market, each measuring 2,500 square feet, according to the real-estate listings.

The first property is a two-story, single-family house. The measurements in the listing, however, don’t include a 1,200-square-foot finished basement. So the house actually has 3,700 square feet of living space.

The second property is a 2,500-square-foot condominium. But these measurements include 500 square feet of terrace and garage space. So the house actually has only 2,000 feet of living space.

The 1,700-square-foot discrepancy between the single-family home and the condo apartment is substantial.

Posted by Marcia Oddi on Friday, March 10, 2017
Posted to General Law Related

Ind. Gov't. - Still more on "Bill to reduce regulations on livestock operations raising concerns"

Complementing Niki Kelly's story from yesterday (ILB post here), the Fort Wayne Journal Gazette editorializes today: "CAFO confusion: 'Bad legislation' is best left to die in the Senate." The long opinion piece begins:

Indiana doesn’t need to make it easier to start or expand a controlled animal feeding operation. The state has about 2,000 such farms, where cattle, hogs, sheep or poultry are raised in close quarters. If not managed carefully, the enormous amounts of waste that those operations generate can cause significant air and water pollution and make life nearly unbearable for people living nearby.

So it’s good news that Indiana Senate President Pro Tem David Long has sidelined a bill that environmentalists say could undermine the public’s ability to have a say in the expansion of CAFOs. The Fort Wayne Republican told The Journal Gazette’s Niki Kelly this week that House Bill 1494 is “just bad legislation” and may remain parked in the Senate’s Rules and Legislative Procedure Committee for the rest of the legislative session.

Posted by Marcia Oddi on Friday, March 10, 2017
Posted to Indiana Government

Ind. Courts - Justice Rucker holds court yesterday in hometown Gary

From the Gary Post-Tribune, a report by Javonte Anderson. Some quotes from the long story:

Nearly 50 years after crossing the stage as a high school graduate, Robert Rucker returned to Roosevelt High School, but this time as a member of the Indiana Supreme Court. Instead of wearing a cap and gown and carrying a diploma, he wore his judicial robe and carried a gavel.

Sitting on the stage in the Gary high school's auditorium with his colleagues, looking out in the audience replete with judges and high school students from across Northwest Indiana, Rucker had to get something off of his chest. "Go Panthers!" Rucker said paying tribute to his alma mater's mascot.

For Rucker, 70, the event at Roosevelt – the justices heard oral arguments in a case – had special meaning.

Rucker is a part of Roosevelt's laundry list of notable alumni, which ranges from members of The Jackson 5 to several former professional athletes to Mayor Karen Freeman-Wilson. * * *

Rucker spent nearly 15 years as a deputy prosecutor and a city attorney for Gary before becoming the first African-American judge to be appointed to the Indiana Court of Appeals.

In 1999, Rucker became only the second African-American appointed to the Indiana Supreme Court.

"In some ways I had to pinch myself," Rucker said, referring to when he first heard about his selection to the Supreme Court. "There's absolutely nothing in my background that could've anticipated that result. I was from a family that had no political clout. There were no professionals in my family."

But it was Rucker's legal career and childhood, when he began working at age 11 selling fruits and vegetables out of the back of a truck, that prepared him for the unforgiving work ethic that is required to sit on the bench of state's highest court, he said.

"There's no such thing as a 9-to-5 day," Rucker said. "As my grandmother would say, 'We work from can to can't, which means we work from the time you can see in the morning to when you can't see at night.'"

Throughout his storied career, Rucker's ability to influence those around him transcended the courtroom.

"Justice Rucker is one of the great figures in the history of the state of Indiana," Justice Mark Massa said. "I think it really needs to be said. Particularly after we celebrated our bicentennial. You think about what he's accomplished, from where he came, he's one of the great figures in the 200-year history."

"Lake County pays homage to native son" is the heading to this story today in the NWI Times, reported by Carmen McCollum. The story begins:
GARY — High school students from public and private schools across Lake County peppered retiring Indiana Supreme Court Justice Robert Rucker with questions about his life, his career and fond memories of his alma mater, Gary Roosevelt High School.

The Indiana Supreme Court traveled to Roosevelt Thursday to hear oral arguments in the case of Danny Sims v. Andrew Pappas and Melissa Pappas. The justices did not issue a decision but said the case would be taken under advisement and a legal opinion will be forthcoming.

About 300 high school students from nine high schools had an opportunity to hear the case. * * *

Schererville attorney Cordell Funk said he came to hear Rucker, and has previously practiced with Rucker and assisted when Rucker was on the Appellate Court.

"I'm here to pay homage to him," Funk said. "I think all of the people are here to pay homage to him. He's from Lake County and well respected in Lake County. We all knew him when he practiced here."

Posted by Marcia Oddi on Friday, March 10, 2017
Posted to Indiana Courts | Vacancy on Supreme Court - 2017

Thursday, March 09, 2017

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 18 NFP memorandum decision(s))

For publication opinions today (2):

In Jay Garrison v. Pamela Garrison, an 8-page opinion, Sr. Judge Shepard writes:

When someone on his deathbed transfers his property under circumstances where competence may be in question, how should the burden of proof concerning the transfer be applied?g the transfer be applied? * * *

Jay argues that 1) the trial court erroneously concluded it was a gift causa mortis as opposed to a gift inter vivos, 2) applied the wrong standard of review, and 3) based its decision on insufficient evidence.

Pamela raised a straight claim of incompetence in her petition to recover assets. A review of a variety of standards of review, burdens of proof, and burdens of going forward, will aid in resolving this appeal. * * *

Certain transfers are viewed differently based on the relationship of the donor and donee. * * *

Inasmuch as Thomas and Jay were father and son, the presumption of undue influence arose with respect to the transfer. Jay presented testimony that Thomas was competent at the time of the transfer, and that Jay possessed certificates of title to the two vehicles dated July 30, 2015. Pamela, however, presented testimonial evidence of Thomas’ incompetency before and at the time of transfer. The trial court found the evidence of competency was evenly split. Jay, therefore, has not rebutted the presumption of undue influence, and the estate is entitled to recovery of the vehicles.

Conclusion. For the foregoing reasons, we affirm the decision of the trial court.

In Fazia Deen-Bacchus v. Harold M. Bacchus, Jr., a 10-page opinion, Judge Najam writes:
Fazia Deen-Bacchus (“Wife”) appeals the dissolution court’s February 2016 order in which the court directed Harold M. Bacchus, Jr. (“Husband”) to promptly transfer certain amounts from three investment accounts (“the investment accounts”) to Wife. Wife raises a single issue for our review, which we restate as follows: whether the dissolution court erroneously interpreted its January 2011 property distribution order, in which the court had set aside the investment accounts to Wife as “her property,” when the court ordered Husband in February of 2016 to transfer only the January 2011 value of the investment accounts to Wife. We reverse and remand with instructions. * * *

In sum, the parties and the dissolution court had the opportunity to clarify any ambiguities in the January 2011 order within the time prior to the court’s judgment on the motions to correct error that were filed on that order, yet neither the parties nor the court suggested that the language of the January 2011 order to distribute the investment accounts to Wife was ambiguous. And it was not ambiguous; the order plainly and unmistakably identifies the investment accounts, not a certain value of the accounts, as Wife’s property. Accordingly, the dissolution court’s February 2016 order to the contrary is erroneous. We reverse the February 2016 order on this issue and remand with instructions that the dissolution court order Husband transfer ownership of the investment accounts to Wife and to enter any other findings and conclusions the court deems appropriate that are not inconsistent with this opinion.

NFP civil decisions today (6):

Gasser Chair Company, Inc. v. Marlene J. Nordengreen (mem. dec.)

Neidlinger Trust #0801, by John P. Neidlinger and Casey Neidlinger, Trustees v. Michael S. Lewallen and JMJ Farms, LLC (mem. dec.)

Elizabeth (Newman) Lewis v. David Newman (mem. dec.)

In the Matter of: V.G. (Minor Child), Child in Need of Services and R.G. (Mother) v. The Indiana Department of Child Services (mem. dec.)

In the Matter of R.Y. and B.H. (Minor Children) Children in Need of Services, S.H. v. Indiana Department of Child Services (mem. dec.)

In the Termination of the Parent Child Relationship of: A.P. & D.P. (Minor Children) and, J.P. (Father) and A.M. (Mother) (mem. dec.)

NFP juvenile and criminal decisions today (12):

Darrell Berry v. State of Indiana (mem.dec.)

Robin Dalekilgore Peppers v. State of Indiana (mem. dec.)

Alan Ponce-Gomez v. State of Indiana (mem. dec.)

Carl Hughes v. State of Indiana (mem. dec.)

Rodrick Osborn Sheron v. State of Indiana (mem. dec.)

Justin Rhymer v. State of Indiana (mem. dec.)

Calvin McGregory v. State of Indiana (mem. dec.)

Devon R. Rush v. State of Indiana (mem. dec.)

Juan Escatel-Flores v. State of Indiana (mem. dec.)

Kevin Chadwick v. State of Indiana (mem. dec.)

Ira Steven Link v. State of Indiana (mem. dec.)

Devon L. Hunter v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, March 09, 2017
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Pence's history with transparency

Kristine Phillips of the Washington Post had an analysis piece March 8 headed "Mike Pence says he advocates for a free press. Here’s his shaky history with transparency." Some quotes:

Pence sponsored versions of the legislation a few times when he was in Congress. Although the Free Flow of Information Act never became law, Pence's advocacy for the news media earned him praise from journalists, including an award from a newspaper association.

But while Pence does have a track record of supporting a free press and the First Amendment, that record is tainted and his stance on the public's right to know has become muddled, critics say.

During his time as Indiana governor, for instance, Pence found himself rebuked by free speech and open-government advocates — once because of a widely criticized plan to create a taxpayer-funded news service, and again when his staff deleted Facebook comments that disagreed with his stance on same-sex marriage.

Posted by Marcia Oddi on Thursday, March 09, 2017
Posted to Indiana Government

Ind. Gov't. - More on "Bill to reduce regulations on livestock operations raising concerns"

Updating this ILB post from Feb. 23rd, Niki Kelly of the Fort Wayne Journal Gazette reported yesterday:

A controversial confined animal feeding bill has hit a wall in the state Senate.

Fort Wayne Republican Senate President Pro Tem David Long assigned the measure to the Rules Committee – a place where legislation generally is sent to die.

“It’s where I parked it for now. It may stay there,” he said. “I think it’s just bad legislation.”

Rep. Dave Wolkins, R-Warsaw, authored House Bill 1494 and has called it a streamlining of the regulatory process for factory farms raising hundreds or thousands of animals.

But confusion reigned in committee and on the House floor about what the bill actually does. It just passed the House chamber 66-25.

Opponents argue it limits notice to neighbors for expansions of a confined animal feeding operation, as well as other changes.

“I don’t see the value in that at all,” Long said, noting neighbors deserve notice and the chance to be heard during the permit process.

He referenced a CAFO in Whitley County, saying he has heard from constituents.

Several Whitley County residents testified against Wolkins’ bill and generally support efforts to help neighbors instead of the CAFOs.

The Whitley County Board of Zoning Appeals approved a new operation consisting of 2,200 finishing hogs and 880 animal units after hundreds of people attended a meeting. Brent and Liza Emerick also have a permit pending with the Indiana Department of Environmental Management for the operation, according to local news reports.

High-profile Roanoke businessman Pete Eshelman said about 1,000 residents live near the proposed farm, and the state’s one-size-fits-all approach doesn’t work for more populated areas.

Posted by Marcia Oddi on Thursday, March 09, 2017
Posted to Indiana Government

Ind. Decisions - 7th Circuit denies class action status to law firm in self-renewing contract case

CAFFERTY, CLOBES, MERIWETHER & SPRENGEL, LLP, on behalf of itself and all others similarly situated, Plaintiff-Appellant, v. XO COMMUNICATIONS SERVICES, LLC, an interesting to read, 5-page opinion yesterday from Judge Posner on a case out of Illinois. A few quotes:

The plaintiff, a law firm, seeks both individual and class relief against XO Communications, a large provider of telecommunications services to business customers, such as the plaintiff, and wholesalers. The plaintiff’s contract with XO provided that the contract would be automatically renewed at the end of the customer’s current service term “for a similar term and at the same rates” set forth in the contract. A customer who didn’t want to renew was required to so notify XO at least 30 days prior to the expiration date in the contract; if it failed to do so, the contract would renew automatically. The contract also provided that XO would notify the customer of the automatic-renewal feature of the contract (which it did from time to time), thus reminding the customer that if it decided not to renew the contract it would have to so notify XO at least 30 days before expiration. The contract further stated that if the customer terminated the contract after the deadline it would have to pay XO a termination fee based on the revenue that XO would have received from the customer over the remaining months of the contract had it not been terminated prematurely and thus in violation of the contract. XO’s monthly invoices contain a prominent reminder of the automaticrenewal feature of the contract. * * *

It’s not as if the plaintiff were some hapless consumer bamboozled by a huge company. According to the plaintiff’s website (www.caffertyclobes.com/home, visited March 3, 2017), “Cafferty Clobes Meriwether & Sprengel LLP, which has offices in Chicago, Philadelphia, and Ann Arbor, combines the diverse talents of attorneys with a wide range of litigation experience. Since its founding in 1992, the firm has focused on representing plaintiffs, such as investors, employees, consumers and companies, in complex civil litigation throughout the country. The firm and its attorneys have helped recover billions of dollars for the benefit of represented plaintiffs and classes, and in some cases, have secured the reform of corporate practices alleged to be unlawful or abusive. The skill and experience of our attorneys has been recognized on repeated occasions by courts that have appointed these attorneys to leadership positions in complex multidistrict or consolidated litigation.” Had this substantial enterprise kept track of the date of its contract with XO (more precisely the date of its latest renewal of the contract), it would not have incurred the modest termination fee that it seeks to recover by this suit.

Of course its real aim, doubtless, was, in the words of its website, to “recover billions of dollars for the benefit of represented plaintiffs and classes.” It can’t have brought this suit just to recover a $9,000 termination fee (less, actually, because it hadn’t paid the entire fee); it must have hoped that a class would be certified, although a different law firm—Lite DePalma Greenberg, LLC—would be representing the class in the litigation.

Posted by Marcia Oddi on Thursday, March 09, 2017
Posted to Ind. (7th Cir.) Decisions

Courts - "SCOTUS: Racial bias in the jury room can violate a defendant’s right to a fair trial"

Robert Barnes of the Washington Post reports on the March 6th SCOTUS opinion in Peña-Rodriguez v. Colorado (SCOTUSblog page here) - the story begins:

Accusations that a juror made racially biased statements about a defendant may require judges to break through the usual secrecy that surrounds jury deliberations, the Supreme Court ruled Monday.

“A constitutional rule that racial bias in the justice system must be addressed — including, in some instances, after the verdict has been entered — is necessary to prevent a systemic loss of confidence in jury verdicts,” Justice Anthony M. Kennedy wrote in a 5-to-3 decision.

“The Nation must continue to make strides to overcome race-based discrimination,” wrote Kennedy, who sided with the court’s four liberal members. “The progress that has already been made underlies the Court’s insistence that blatant racial prejudice is antithetical to the functioning of the jury system.”

The court’s decision came in the case of Coloradan Miguel Angel Peña Rodriguez, who found out after his 2007 conviction that a juror said he thought that Peña Rodriguez was guilty of sexual assault because he was Mexican and that “Mexican men take whatever they want.”

Posted by Marcia Oddi on Thursday, March 09, 2017
Posted to Courts in general

Wednesday, March 08, 2017

Ind. Courts - Supreme Court interviews announced, now start a week from Tuesday

First, here is the Supreme Court page with the photos and applications.

And here are the interview dates and times:

March 21 (Tuesday)

9:30 a.m. – 9:50 a.m. – Mr. Ralph E. Dowling
9:50 a.m. – 10:10 a.m. – Hon. Clayton A. Graham
10:10 a.m. – 10:30 a.m. – Ms. Jaime M. Oss
(Break)
10:45 a.m. – 11:05 a.m. – Hon. Larry W. Medlock
11:05 a.m. – 11:25 a.m. – Rep. Thomas W. Washburne
11:25 a.m. – 11:45 a.m. – Mr. Peter J. Rusthoven
(Lunch – Executive Session to consider applications)
1:30 p.m. – 1:50 p.m. – Ms. Leslie C. Henderzahs
1:50 p.m. – 2:10 p.m. – Mr. Stephen R. Creason
2:10 p.m. – 2:30 p.m. – Hon. Steven L. Hostetler
(Break)
2:45 p.m. – 3:05 p.m. – Mr. William N. Riley
3:05 p.m. – 3:25 p.m. – Hon. Matthew C. Kincaid
3:25 p.m. – 3:45 p.m. – Mr. Lyle R. Hardman
(Break)
4:00 p.m. – 5:00 p.m. - Executive Session to consider applications

March 22 (Wednesday)

9:30 a.m. – 9:50 a.m. – Hon. Peter R. Foley
9:50 a.m. – 10:10 a.m. – Hon. Maria D. Granger
10:10 a.m. – 10:30 a.m. – Mr. Dale W. Arnett
(Break)
10:45 a.m. – 11:05 a.m. – Hon. Vicki L. Carmichael
11:05 a.m. – 11:25 a.m. – Ms. Elizabeth C. Green
11:25 a.m. – 11:45 a.m. – Ms. Leanna K. Weissmann
(Break)
12:00 p.m. – 12:20 p.m. – Hon. Christopher M. Goff
12:20 p.m. – 12:40 p.m. – Mr. Bryce D. Owens
12:55 p.m. – Lunch and deliberations in Executive Session, followed by public vote to select semi-finalists

Note: "During an executive session, the Commission determined one applicant did not meet the eligibility requirements, as defined by the Indiana Constitution, and would not be interviewed."

Dan Carden of the NWI Times reported last Friday:

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.

Posted by Marcia Oddi on Wednesday, March 08, 2017
Posted to Vacancy on Supreme Court - 2017

Ind. Courts - Supreme Court interviews start a week from Monday ...

Readers have been asking when the applications and photos will be available online. According to the news release sent out March 3:

The [Judicial Nominating] Commission will review applications, consider applicants' eligibility, legal education, writings, reputation in the practice of law, and other pertinent information to decide who to interview.

Initial interviews are March 20-22
with a second round of interviews April 17-19. They are open to the public and will take place at the Indiana State House in room 319.

When the March interview schedule is made public, applications and photographs will be available online. Attachments, including writing samples and transcripts, will be available in the Supreme Court Law Library.

After interviews and deliberations in an executive session, the Commission will publicly vote to send the three most qualified names to Governor Eric Holcomb. The Governor has 60 days to select Indiana's next justice.

So, hopefully, any day now.

Posted by Marcia Oddi on Wednesday, March 08, 2017
Posted to Vacancy on Supreme Court - 2017

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 4 NFP memorandum decision(s))

For publication opinions today (1):

In Magic Circle Corp., D/B/A Dixie Chopper, Arthur Evans, Wesley Evans, and Jeffrey Haltom v. Crowe Horwath, LLP, a 16-page opinion, Judge Bailey writes:

Magic Circle Corporation d/b/a Dixie Chopper (“Magic Circle”) and several of its shareholders filed a multi-count complaint against numerous parties, including Magic Circle’s former auditing firm, Crowe Horwath LLP (“Crowe”). The trial court dismissed several counts, and this Court affirmed that decision on appeal, leaving only two counts against Crowe. Subsequent to the appeal, Crowe filed a motion to dismiss the remaining counts against it, and the trial court granted Crowe’s motion on the grounds that the claims were barred by the economic loss rule and several exculpatory provisions. Magic Circle now appeals the trial court’s order. * * *

Magic Circle raises two issues for our review, which we restate as whether the trial court erred when it dismissed the complaint because:

1. The economic loss rule is inapplicable in this case; and

2. The exculpatory provisions in the engagement agreements between Magic Circle and Crowe do not operate to relieve Crowe of all liability for the professional malpractice as alleged in the Second Amended Complaint. * * *

The economic loss rule does not have the effect of barring an accountant malpractice claim at tort. The exculpatory and limitation of liability clauses did not operate to preclude a recovery such that Magic Circle failed to plead a claim upon which, based upon the facts as pled in the complaint, relief could be granted. Thus the trial court erred in dismissing the Second Amended Complaint as to negligence through accountant malpractice. Reversed and remanded.

NFP civil decisions today (3):

In Zena D. Crenshaw-Logal, Personally and as Relator for the State of Indiana, et al. v. Lake Superior Court, Small Claims Division III, the Honorable Julie N. Cantrell as its Judge, et al. (mem. dec.), a 13-page opinion, Judge Brown writes:

Zena Crenshaw-Logal appeals the trial court’s dismissal of her action for mandate. We find one issue dispositive, which is whether Crenshaw-Logal’s notice of appeal is untimely. We dismiss.
Bruce R. VandeZande v. Market Ready (mem. dec.)

J.W. v. T.M. (mem. dec.)

NFP juvenile and criminal decisions today (1):

Margie Rene Mayhill v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, March 08, 2017
Posted to Ind. App.Ct. Decisions

Ind. Law - Even more on "Could Indiana pass forfeiture reform this year?"

Supplementing this ILB post from yesterday (and its links to many past posts), see this lengthy story today by Marilyn Odendahl of the Indiana Lawyer, headed "Indiana’s civil forfeiture laws under scrutiny."

Posted by Marcia Oddi on Wednesday, March 08, 2017
Posted to Indiana Law

Ind. Gov't. - "Suit over emails takes turn: Asked to return to trial court to ensure AOL was included"

Supplementing this ILB post from yesterday (which includes links to the documents), and this long list of earlier ILB posts, see this story today in the Fort Wayne Journal Gazette. Niki Kelly reports:[ILB emphasis]

INDIANAPOLIS – Revelations that former Gov. Mike Pence used a private email account to conduct state business are complicating a public records dispute.

An Indianapolis lawyer who sued Pence – now vice president – filed an appeal last month asking the Indiana Supreme Court to review the case and asking for oral arguments to be set.

But on Monday, William Groth asked instead that the case be sent back to the trial court to evaluate whether Groth’s original 2014 public records request included the private AOL account.

“With these new disclosures, Mr. Groth believes Governor Pence’s private email accounts may not have been reviewed as part the governor’s response to his public records request, and is concerned some of those messages may have been responsive to his request,” court filings said.

One email recipient – “MRP” – was identified as Pence but his office redacted the email address. The office of the governor then took the position that the disclosure of the confidential email address may jeopardize internal security if disclosed to the public.

Groth’s latest court filing said the Indianapolis Star reported Pence turned over 13 boxes just a few days ago containing emails from his private email account to current Gov. Eric Holcomb to comply with Indiana’s requirement that private email messages be preserved under the state public records act.

Posted by Marcia Oddi on Wednesday, March 08, 2017
Posted to Indiana Government

Law - Latest US News Law School Rankings leaked

As it seems they do every year, Above the Law has a post this morning headed "Leaked: Are These The 2018 U.S. News Law School Rankings?"

Interesting changes in Indiana school rankings:

Here is last year's ILB post.

Posted by Marcia Oddi on Wednesday, March 08, 2017
Posted to General Law Related

Ind. Courts - "Indiana Senate honors retiring Gary justice"

Dan Carden reported yesterday in the NWI Times:

INDIANAPOLIS — The accomplishments of retiring Indiana Supreme Court Justice Robert Rucker were recognized Tuesday by the state's 50 senators.

The Gary native was praised for his trailblazing legal career, the wisdom of his judicial rulings and for his nearly 18 years of service on the state's high court and eight years as a judge on the Indiana Court of Appeals.

State Sens. Lonnie Randolph, D-East Chicago; Frank Mrvan, D-Hammond; and Eddie Melton, D-Merrillville, all declared that Rucker's record and legacy is a credit to Lake County and will serve as an inspiration for generations to come.


In response, the 70-year-old justice said he was humbled and honored by the "incredible tribute" in the unanimously approved Senate Resolution 38.

"I still consider myself a small-town lawyer, without political clout or portfolio, upon whom history and fate have shined," Rucker said.

"By virtue of my appointment and retention to this prestigious court, I have been given much. And I trust, by your resolution and gracious remarks, you're satisfied that I have fulfilled that which was required."

As of this writing, Senate Resolution 38 does not yet seem to be available, but should be later.

Be sure to check the NWI Times story today for the great photos of Justice Rucker.

Posted by Marcia Oddi on Wednesday, March 08, 2017
Posted to Indiana Courts

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.

Posted by Marcia Oddi on Tuesday, March 07, 2017
Posted to Ind. Sup.Ct. Decisions

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):

Southern Indiana Gas & Electric Company v. Indiana Utility Regulatory Commission, et al. (mem. dec.)

Michael Kelley v. Wendy Kelley (mem. dec.)

Michael D. Fox v. Melissa J. Fox (mem. dec.)

NFP juvenile and criminal decisions today (8):

Ivan Juhan Jones v. State of Indiana (mem. dec.)

Roman Allen v. State of Indiana (mem. dec.)

Warren Curtis III v. State of Indiana (mem. dec.)

Deborah June Harris v. State of Indiana (mem. dec.)

Robert B. Scoggins v. State of Indiana (mem. dec.)

Angela M. Jewell v. State of Indiana (mem. dec.)

Nyesha Lashay Crockett v. State of Indiana (mem. dec.)

Michael Neil Gann v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, March 07, 2017
Posted to Ind. App.Ct. Decisions

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.

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 are links to the Motion to Remand, the Reply Brief on Transfer, and the Request for Oral Argument.

Here is the current docket.

Posted by Marcia Oddi on Tuesday, March 07, 2017
Posted to Indiana Courts

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:

Posted by Marcia Oddi on Tuesday, March 07, 2017
Posted to Indiana Law

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.

Posted by Marcia Oddi on Tuesday, March 07, 2017
Posted to Indiana Government

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.

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Indiana Courts

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.

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Indiana Government

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:

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Indiana Transfer Lists

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.

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Ind. Sup.Ct. Decisions

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:

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Indiana Government

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.

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Ind. Tax Ct. Decisions

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):

Angela Locker v. Roger Locker (mem. dec.)

NFP juvenile and criminal decisions today (0):

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Ind. App.Ct. Decisions

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.

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Courts in general | Indiana Government

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.

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.

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:
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.

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Indiana Government

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.

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.

Mark Wilson of the Evansville Courier & Press had a story mentioning State Rep. Thomas Washburne's application, noting that:
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.

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Vacancy on Supreme Court - 2017

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.

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Indiana Government

Ind. Decisions - "COA Finds Compliance With Industry Standards Not Relevant"

The Court of Appeals opinions in Terex-Telelect, Inc. v. Anthony Wade (8/29/16) are the subject of an article by Kyle LeClere, Barnes & Thornburg in National Law Review that begins:

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).

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 3/6/17):

Thursday, March 9

Next week's oral arguments before the Supreme Court (week of 3/13/17):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 3/6/17):

Tuesday, March 7

Thursday, March 9

Friday, March 10

Next week's oral arguments before the Court of Appeals (week of 3/13/17):

Tuesday, March 14

Thursday, March 16 ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms generally will be accessible via videocast.

Past Court of Appeals oral arguments which have been webcast are accessible here.


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.

Posted by Marcia Oddi on Monday, March 06, 2017
Posted to Upcoming Oral Arguments

Friday, March 03, 2017

Ind. Courts - Twenty-one file to fill vacancy to be created by Justice Rucker's upcoming retirement [Updated]

Here is the list of applicants, just released by the Court:

The Judicial Nominating Commission received twenty-one applications for the upcoming Indiana Supreme Court vacancy. The following attorneys and judges have applied for the seat which will be available when Justice Robert D. Rucker retires in the spring of 2017 after 26 years on the bench.

· Mr. Dale W. Arnett, Winchester, Indiana

· Hon. Vicki L. Carmichael, Clark Circuit Court 4

· Mr. Stephen R. Creason, Indianapolis, Indiana

· Mr. Ralph E. Dowling, Muncie, Indiana

· Hon. Peter R. Foley, Morgan Superior Court 1

· Hon. Christopher M. Goff, Wabash Superior Court

· Hon. Clayton A. Graham, Marion Superior Court, Criminal Div. 7

· Hon. Maria D. Granger, Floyd Superior Court 3

· Ms. Elizabeth C. Green, Indianapolis, Indiana

· Mr. Lyle R. Hardman, South Bend, Indiana

· Ms. Leslie C. Henderzahs, Fishers, Indiana

· Hon. Steven L. Hostetler, St. Joseph Superior Court

· Hon. Matthew C. Kincaid, Boone Superior Court 1

· Hon. Larry W. Medlock, Washington Circuit Court

· Ms. Jaime M. Oss, La Porte, Indiana

· Mr. Bryce D. Owens, Pendleton, Indiana

· Mr. William N. Riley, Indianapolis, Indiana

· Mr. Peter J. Rusthoven, Indianapolis, Indiana

· Mr. Andrew U. D. Straw, Schaumburg, Illinois

· Rep. Thomas M. Washburne, Evansville, Indiana

· Ms. Leanna K. Weissmann, Lawrenceburg, Indiana

According to the Indiana Constitution and state statute, the seven-member Commission must recruit and select candidates to fill the vacancy on the state's highest court. To be eligible for nomination as a justice of the Supreme Court, the Indiana Constitution requires that a person be domiciled in the state, a U.S. citizen, and admitted to practice as a lawyer for 10 years or served as a Circuit or Superior Court judge for at least 5 years. The Commission will review applications, consider applicants' eligibility, legal education, writings, reputation in the practice of law, and other pertinent information to decide who to interview.

Initial interviews are March 20-22 with a second round of interviews April 17-19. They are open to the public and will take place at the Indiana State House in room 319. When the March interview schedule is made public, applications and photographs will be available online. Attachments, including writing samples and transcripts, will be available in the Supreme Court Law Library.

After interviews and deliberations in an executive session, the Commission will publicly vote to send the three most qualified names to Governor Eric Holcomb. The Governor has 60 days to select Indiana's next justice.

See also this ILB post from earlier this morning.

[Updated] Quick breakdown from Prof Schumm:

Posted by Marcia Oddi on Friday, March 03, 2017
Posted to Vacancy on Supreme Court - 2017

Ind. Decisions - Supreme Court reinstates vacated COA expungement opinion

The Supreme Court heard oral argument yesterday in T.A. v. State. Here is the ILB listing from "Upcoming Oral Arguments":Today the Supreme Court has announced: one of the justices recused (the docket indicates that J. Slaughter did not participate), there were only four justices voting and they tied, 2-2, thereby reinstating the vacated COA opinion. Here is the Order:
On February 9, 2017, the Court issued an order granting transfer of jurisdiction over this appeal from the Court of Appeals. That order vacated the decision of the Court of Appeals under Appellate Rule 58(A). After oral argument and further review, the four participating members of the Court are evenly divided on the proper disposition of the case.

This rare circumstance is anticipated in our rules, which provide that when “the Supreme Court is evenly divided after transfer has been granted, the decision of the Court of Appeals shall be reinstated.” Appellate Rule 58(C).

The Court of Appeals’ decision, T.A. v. State, 62 N.E.3d 436 (Ind. Ct. App. 2016), is hereby reinstated, and the Clerk of Courts is directed to certify that decision. Petitions for rehearing are not allowed.

Posted by Marcia Oddi on Friday, March 03, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court issues 1 today

In State of Indiana v. David Brown, a 10-page, 5-0 opinion, Justice David writes:

This case involves whether the brief detainment of defendant as part of a sobriety checkpoint is custodial so as to trigger Miranda protection. We hold that such detainment is no more custodial than a routine traffic or Terry stop, and thus, defendant was not entitled to Miranda warnings at the sobriety checkpoint. * * *

We hold that the State could properly bring its appeal in this case because the trial court granted a motion to suppress and the suppression order was so broad that it effectively precluded further prosecution. We further hold that under the facts and circumstances of this case, where the sobriety checkpoint at issue was: 1) brief and temporary in duration; and 2) public, Miranda warnings were not required because Brown was not in custody. Accordingly, we reverse the trial court’s suppression order and remand for further proceedings.

Rush, C. J., Massa and Slaughter, J.J., concur.

Rucker, J., concurs in result with separate opinion.

Because I believe a motorist detained at a sobriety checkpoint is entitled to the protection afforded by Miranda v. Arizona, 384 U.S. 436 (1966), I disagree with that portion of the majority opinion declaring otherwise. However, I acknowledge the United States Supreme Court has declined to expand Miranda’s reach to cases involving routine traffic stops and its reasoning is applicable to the case before us. Therefore, I am compelled to concur in result.

Posted by Marcia Oddi on Friday, March 03, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (1):

In Caleb Riggen v. Tammy Riggen , a 6-page opinion, Judge Bailey writes:

Caleb Riggen (“Father”) and Tammy Riggen (“Mother”) were once married, and have one child between them (“Child”). After the marriage was dissolved, Father petitioned to modify custody of Child. The trial court initially granted Father’s petition. Subsequently, the trial court granted Mother’s motion to correct error, thereby denying Father’s petition. Father now appeals, raising two issues, which we consolidate and restate as whether the trial court abused its discretion in granting Mother’s motion to correct error. We reverse and remand with instructions. * * *

The trial court abused its discretion when it granted Mother’s motion to correct error without providing a reason for doing so, contrary to Trial Rule 59(J).

NFP civil decisions today (4):

In the Matter of the Termination of the Parent-Child Relationship of D.S., Ri.S., Jr., & R.S. (Children) and K.M. (Mother); K.M. (Mother) v. The Indiana Department of Child Services (mem. dec.)

Peggy L. Sallee v. James L. Barrett and Martha A. Barrett (mem. dec.)

In re the Paternity of N.E., by Next Friend, Jody W. Elkins v. Jennifer L. Hahn, f/k/a Jennifer L. Benson (mem. dec.)

Michael Trimnell v. Teri Trimnell (mem. dec.)

NFP juvenile and criminal decisions today (3):

Michael D. Houser v. State of Indiana (mem. dec.)

Alric Bolt v. State of Indiana (mem. dec.)

Gary Gentner v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, March 03, 2017
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Pence used personal email for state business — and was hacked" [Updated]

Tony Cook reports today in a great story in the Indianapolis Star [emphasis added]:

Vice President Mike Pence routinely used a private email account to conduct public business as governor of Indiana, at times discussing sensitive matters and homeland security issues.

Emails released to IndyStar in response to a public records request show Pence communicated via his personal AOL account with top advisers on topics ranging from security gates at the governor’s residence to the state’s response to terror attacks across the globe. In one email, Pence’s top state homeland security adviser relayed an update from the FBI regarding the arrests of several men on federal terror-related charges.

Cyber-security experts say the emails raise concerns about whether such sensitive information was adequately protected from hackers, given that personal accounts like Pence's are typically less secure than government email accounts. In fact, Pence's personal account was hacked last summer.

Furthermore, advocates for open government expressed concerns about transparency because personal emails aren't immediately captured on state servers that are searched in response to public records requests.

Pence's office in Washington said in a written statement Thursday: "Similar to previous governors, during his time as Governor of Indiana, Mike Pence maintained a state email account and a personal email account. As Governor, Mr. Pence fully complied with Indiana law regarding email use and retention. Government emails involving his state and personal accounts are being archived by the state consistent with Indiana law, and are being managed according to Indiana’s Access to Public Records Act.”

Indiana Gov. Eric Holcomb's office released 29 pages of emails from Pence's AOL account, but declined to release an unspecified number of others because the state considers them confidential and too sensitive to release to the public.

More from the lengthy story:
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.

Indiana Public Access Counselor Luke Britt, who was appointed by Pence in 2013, said he advises state officials to copy or forward their emails involving state business to their government accounts to ensure the record is preserved on state servers.

But there is no indication that Pence took any such steps to preserve his AOL emails until he was leaving the governor's office. * * *

Holcomb’s office declined to disclose how many emails were withheld.

Cyber-security experts and government transparency advocates said Pence's use of a personal email account for matters of state business — including confidential ones — is surprising given his attacks on Clinton's exclusive use of a private email server. * * *

Pence’s own account was compromised in June when a hacker sent a counterfeit email to his contacts claiming Pence he and his wife had been attacked on their way back to their hotel in the Philippines, losing their money, bank cards and mobile phone.

In response, Pence sent an email to those who had received the fake communication apologizing for any inconvenience. He also set up a new AOL account.

Because the hacker appears to have gained access to Pence’s contacts, experts say it is likely that the account was actually penetrated, giving the hacker access to Pence’s inbox and sent messages.

The story also touches on the Groth v. Pence/Holcomb case, now pending transfer to the Supreme Court:
In addition to security issues, Pence's personal email account also raises new concerns about transparency, according to ethics experts and government accountability advocates.

Pence is already fighting in state court to conceal the contents of emails involving his decision to join a 2014 lawsuit challenging then-President Barack Obama's executive order on immigration. The emails are being sought by William Groth, a Democrat and labor lawyer who says he wants to expose waste in the Republican administration.

Richard Painter, former chief ethics lawyer to President George W. Bush, said it's bothersome that Pence is only now transferring his AOL emails to the state. It raises questions about whether those emails were included in previous responses to public records requests. "That’s a problem that should have been dealt with back then," he said. "The existence of the private email account should have been dealt with at the time the record requests were made."

[Updated at 10:24AM] Here, via the IndyStar, are some of Vice President Mike Pence's AOL emails.

Posted by Marcia Oddi on Friday, March 03, 2017
Posted to Indiana Government

Ind. Gov't. - More on: Former Columbus mayor files public records suit against the man she named chief of police"

A story today, with audio, from 1010 WCSI Columbus begins:

Former Columbus Mayor Kristen Brown has had four complaints against the current city office holders for violations of public records laws reviewed by the state since she left office. And most of those complaints were justified says Luke Britt, the state’s public access counselor.

Brown has filed a lawsuit against the city police Chief Jon Rohde for a request she made last year to see the reports about a police investigation involving a sheriff’s department official, his wife, and a county-owned vehicle. Britt found in Brown’s favor when that complaint was made to his office. He issued an advisory opinion saying that the police department did not provide enough information to meet the public access standard in that case, Britt said.

The story includes links to the PAC opinions.

Posted by Marcia Oddi on Friday, March 03, 2017
Posted to Indiana Government

Ind. Courts - Filling the Vacancy on the Indiana Supreme Court: What to Expect Today and Beyond

This analysis was prepared by Indiana University-Robert H. McKinney School of Law professor Joel Schumm.

Shortly after the noon deadline for applications to fill Justice Rucker’s vacancy on the Indiana Supreme Court, we can expect a press release listing the names of the applicants.

The number is expected to be low, in a process that has recently drew an average of 25 applicants.

The applicant pool this decade has been gender diverse—more than half of the applicants have been women—but the pool has been overwhelmingly (95%) Caucasian.

Some applicants will have applied in the past, a topic explored in a post from 2012. Interestingly, though, Justice Slaughter is the only justice in the merit selection era who was not appointed on his first application.

Most applicants will be Republicans. The merit selection system was established to be non-partisan, but the applicants have always skewed heavily to the political party of the Governor who will make the appointment. Three of the seven members of the Commission are appointed by the Governor, which helps ensure a strong voice for nominees preferred by the Governor—with one caveat. Because Commission members serve for three years, the terms of some will extend to the next administration. Indeed, the three lay members of the Commission (Rudy Yakym, Lynette Long, and Molly Kitchell) were appointed by Governor Pence.

The Indiana Supreme Court has a long history of unanimous, non-partisan decisions. I don’t anticipate that changing, whether Governor Holcomb appoints a Republican or Democrat, but the perception of some may change after this appointment. For the first time since merit selection was adopted in 1970, the five justices of the Indiana Supreme Court will all have been appointed by Governors of the same political party.

The ILB has provided extensive analysis and commentary (including summaries of every applicant’s interview) for the past four vacancies. The hundreds of blog posts are organized by vacancy and accessible through the links “Vacancy on Supreme Court” to the right.

We plan to provide the same coverage for this vacancy, beginning this afternoon with analysis of the list of applicants.

Posted by Marcia Oddi on Friday, March 03, 2017
Posted to Vacancy on Supreme Court - 2017

Thursday, March 02, 2017

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (3):

In Central Indiana Podiatry, P.C., Northwest Surgery Center, LLC, d/b/a Foot & Ankle Surgery Center, f/k/a Foot & Ankle Surgery Center, LLC and Anthony E. Miller, D.P.M. v. Barnes & Thornburg, LLP, an 11-page opinion on rehearing, Judge May writes:

We grant rehearing to acknowledge and adopt our Indiana Supreme Court’s holding in Nichols v. Amax Coal Co., 490 N.E.2d 754, 755 (Ind. 1986), reh’g denied, and affirm the trial court’s grant of summary judgment on grounds different than those expressed in our earlier opinion. * * *

Conclusion. As there is no evidence creating a genuine issue of material fact from which a reasonable jury could conclude B&T concealed information from the Miller Parties, and as Miller’s contradictory testimony in two different lawsuits cannot create an issue of material fact, we conclude the trial court did not err when it granted summary judgment in favor of B&T. We grant rehearing to acknowledge, adopt, and apply our Indiana Supreme Court’s holding in Nichols; vacate our prior opinion, Podiatry, 62 N.E.3d 440 (Ind. Ct. App. 2016); and affirm the trial court’s grant of summary judgment for B&T.

Bailey, J., concurs.
Crone, J., concurs with separate opinion. [that reads in full] I agree with the granting of rehearing in this case. I write separately to reiterate my concerns about “allowing attorneys to prospectively insulate themselves from liability for future acts of legal malpractice” under Indiana Rule of Professional Conduct 1.8(h), which, in my view, “subverts the very nature of the attorney-client relationship.” Cent. Ind. Podiatry, 62 N.E.3d at 449, 450.

In Michael R. Pilkington v. Karen A. Pilkington, a 13-page opinion, Sr. Judge Shepard writes:
Michael Pilkington sued his stepmother, alleging she breached her duties as trustee of a trust created by her late husband, Michael’s father. The trial court dismissed the complaint with prejudice for lack of subject matter jurisdiction. We conclude that the court has authority to adjudicate Michael’s complaint, and reverse. * * *

The trial court did err in dismissing the complaint with prejudice. This cause is remanded for further proceedings on whether Michael’s beneficiary interest in the trust survived the bankruptcy. In all other respects, the trial court’s decision is affirmed without prejudice to Michael refiling his complaint once the dispositive question regarding his remainder interest has been decided.

In Larenda Jones v. State of Indiana, a 15-page opinion, Judge Mathias writes:
Larenda Jones (“Jones”) appeals the order of the Marion Superior Court revoking her placement in community correction and sentencing her to serve the remainder of her executed sentence at the Department of Corrections (“DOC”). On appeal, Jones presents two issues, which we reorder and restate as: (1) whether the trial court erred by failing to inform Jones of her release date, and (2) whether the trial court denied Jones the right to speak in allocution. Concluding that the trial court did not err in failing to inform Jones of her release date but that the trial court did err by refusing to let Jones speak in allocution, we reverse and remand. * * *

Pyle, J., concurs.

Baker, J., concurs with a separate opinion. [that begins on p. 14] I fully concur with the majority opinion. I write separately to urge our Supreme Court to revisit its interpretation of the right of allocution as codified in Indiana Code section 35-38-1-5. For two reasons, I believe that a broader interpretation of “sentencing” would be the best practice. First, the right of allocution, in my view, is a fundamental right of every criminal defendant who faces a potential loss of freedom. Furthermore, every trial judge who is about to order said loss of freedom is aided when a defendant is permitted to explain to the court the potential consequences of a prison term. This is no less true in the context of a revocation of probation than it is in the context of the original pronouncement of the defendant’s sentence. I believe that a broader interpretation of “sentencing” should encompass probation revocation proceedings so that this fundamental right is secure during each point in time when the defendant faces a loss of freedom.

Second, I believe that a consistent rule will be easier for trial judges to manage. * * * For these two reasons, I hope that our Supreme Court will revisit this issue, holding that Indiana Code section 35-38-1-5 does, in fact, apply to probation revocation proceedings.

NFP civil decisions today (3):

In the Termination of the Parent-Child Relationship of: Ic.G. and Ib.G. (Minor Children) and M.G. (Mother) and B.G. (Father) v. The Indiana Department of Child Services (mem. dec.)

Kevin L. King v. Mary E. King (mem. dec.)

Karen Fielder v. Hamilton Southeastern Schools (mem. dec.)

NFP juvenile and criminal decisions today (2):

Joetta S. Sells v. State of Indiana (mem. dec.)

Martin A. Davis, Jr. v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, March 02, 2017
Posted to Ind. App.Ct. Decisions

Ind. Courts - Applications for Supreme Court due by noon tomorrow

From the January 17th announcement [emphasis added]:

Submission

The deadline for the 11 completed hard-copy applications is 12:00 p.m. on March 3, 2017. Applications must be delivered to the Commission’s Office at 30 S. Meridian Street, Suite 500, Indianapolis, Indiana 46204. Please retain proof of delivery. The electronic copy of the application should be submitted to Commission’s Counsel at adrienne.meiring@courts.in.gov by 3:00 p.m. on March 3, 2017.

Upon the Commission’s receipt of 11 complete applications and an electronic copy, the candidate’s name will be made public. I.C. § 33-27-3-2(d).

Interviews

The Nominating Commission will conduct public interviews in Indianapolis on a date to be determined in the future, after which the Commission will select a number of candidates for second interviews. Upon the conclusion of the second round of interviews, the Nominating Commission will deliberate in executive session, then vote in a public session to nominate to the Governor the three most highly qualified candidates. I.C. § 33-27-3-2.

Candidates must be available on the interview dates, including evening hours.

After the Commission has evaluated each application and determines whether to interview all or some of the applicants, the applications of the candidates to be interviewed become public records and may be posted on the Indiana Supreme Court’s website. I.C. § 33-27-3-2(d)(1).

Posted by Marcia Oddi on Thursday, March 02, 2017
Posted to Vacancy on Supreme Court - 2017

Environment - "Cut EPA? Remember Louisville before the EPA"

From James Bruggers' story today in the Louisville Courier Journal:

[N]ew President Donald Trump has made it clear he's no fan of the nation's environmental bureaucracy or safety net. During the campaign, he promised to restore lost Appalachian coal jobs – and he revisited that theme during his address to Congress Tuesday night.

Climate change never came up, as it would with Obama. And the environment was mentioned only in passing, a short clause in a longer sentence that strung together several policy goals: "My administration wants to work with members in both parties to make childcare accessible and affordable, to help ensure new parents have paid family leave, to invest in women's health, and to promote clean air and clear water, and to rebuild our military and our infrastructure."

He has said he wants to get rid of the U.S. Environmental Protection Agency, and U.S. Rep. Thomas Massie, R-Kentucky, has co-sponsored legislation to do just that.

It all makes one ponder what life was like in Kentucky before the EPA was established by President Richard Nixon in 1970.

I spent some time on Wednesday looking through Courier-Journal archive photos and stories to refresh my understanding of the past. Air pollution was so thick it was measured by yardsticks in buckets. There was open dumping of toxic wastes at places like the Valley of the Drums and the Lees Lane landfill.

Nobody is suggesting we go back to those days. And the president is going to find himself constrained by what he can do when it comes to the environment – unless Congress can do what other Congresses have been unable to do, and roll back powerful and popular laws such as the Clean Water Act and the Clean Air Act.

But with the EPA under such a strong attack, it's good to look back to remember a past when rivers burned.

The story is accompanied by a video, including many shots of Louisville before the air and water was cleaned up.

Posted by Marcia Oddi on Thursday, March 02, 2017
Posted to Environment

Ind. Law - More on "Could Indiana pass forfeiture reform this year?"

Updating this ILB post from Jan. 17th, and adding to this very long list of ILB posts on the issue, Senate Bill 8 passed the first house Feb. 28th.

The Institute for Justice issued this news release yesterday. Some quotes:

The Indiana Senate overwhelmingly passed SB 8 yesterday, an important overhaul of the state’s civil forfeiture laws. Currently, Hoosiers do not have to be convicted of a crime, much less charged with one, for the government to take their property through civil forfeiture.

Under the bill, the government would first need to secure a criminal conviction before forfeiture could occur. SB 8 would also shift the burden of proof from innocent third-party owners onto the government—where it belongs—and require “clear and convincing evidence” to forfeit property.

“SB 8 would go a long way toward securing the property rights of all Hoosiers,” said Institute for Justice Attorney Sam Gedge. “At the same time, the bill would still allow law enforcement agencies to ‘reimburse’ themselves using forfeited property. Indiana police and prosecutors have exploited this sort of loophole for years to funnel millions of dollars into their own budgets.”

To challenge this type of “policing for profit,” the Institute for Justice filed a lawsuit in 2016 on behalf of forfeiture victims and concerned Hoosier families. That case is still ongoing.

Posted by Marcia Oddi on Thursday, March 02, 2017
Posted to Indiana Government

Wednesday, March 01, 2017

Ind. Courts - Supreme Court to hold oral argument in Lake County March 9

From a news release:

The Indiana Supreme Court will travel to Theodore Roosevelt College and Career Academy in Lake County on Thursday, March 9. The Court will hold oral argument in a civil negligence case. The argument is in the case of Danny Sims v. Andrew Pappas and Melissa Pappas (45S03-1701-CT-26).

Justice Robert D. Rucker graduated from Gary Roosevelt High School in 1964 and went on to a distinguished legal career including practicing as an attorney in Lake County and 26 years as an appellate court judge. He recently announced he will retire in spring 2017. While a specific retirement date is not set, the argument at his former high school will be one of the final arguments he hears as a Supreme Court Justice.

Posted by Marcia Oddi on Wednesday, March 01, 2017
Posted to Upcoming Oral Arguments

Ind. Decisions - More on "COA upholds Rush County wind decision"

Updating this ILB post from Feb. 15th, on the COA opinion Feb. 14 in Flat Rock Wind, LLC v. Rush County Area Board of Zoning Appeals, et al, Mary Solada and Andrew M. Pendexter of Bingham Greenebaum Doll LLP have posted an analysis titled "Indiana Court Of Appeals Affirms Expanded Authority Of Local Zoning Boards To Interpret Zoning Ordinances."

Posted by Marcia Oddi on Wednesday, March 01, 2017
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "Law enforcement’s love-hate relationship with social media: Cops and courts examine pros, cons of online platform"

This is a very good, and long story in the Feb. 28th Mt. Vernon Democrat, reported by Rachel Christian. Some quotes:

Social media has changed the way people communicate, share news and stay connected.

It has also had a surprising impact on how law enforcement officials solve crimes.

Last month, two Mount Vernon suspects were arrested in conjunction with three local church break-ins. There were less than 48 hours between when the first burglary report came in to the Posey County Sheriff’s Office and when the arrests were made.

Why was the police’s work so swift? It turns out that social media played a major role.

“Once members of the churches started posting about the break-ins on Facebook, a lot of folks in the community wanted to help,” said Posey County Deputy Sheriff Tom Latham, who assisted in the case. “They wanted the people who committed the crimes to be brought to justice.”

The information online prompted several citizens to call in helpful tips to the Sheriff’s Office. The tips – as well as good old fashion police and detective work – helped lead authorities straight to the suspected criminals.

Latham said he is glad social media had a positive impact, but noted that isn’t always the case.

“The relationship between social networking and law enforcement is like many things – it can be a blessing, and it can be a curse,” he said.

Leaking sensitive information

Latham said it is now common for victims of a burglary, robbery or theft to post information about the on-going investigation on Facebook. The victims do so to vent about the stressful incident, but in the process, they also end up sharing sensitive details that can hinder a case.

Law enforcement officials say that sharing things like how their home or car was broken into, as well as listing the specific items that were stolen, can actually make it more difficult for authorities to catch the culprit.

“If that post or information gets back to the criminal, they can ditch those items before we even get to them,” Latham said. “They can throw the tool they used during a forced entry into the Ohio River. Those are crucial pieces of evidence that we simply can’t trace back to them now.” * * *

When criminals catch themselves

Criminals can use social media to their advantage, but they can incriminate themselves, too.

Latham said many people might not realize that things they share online can be used to build a case against them, and even become evidence if the case goes to court.

“We’ve had convicted felons post pictures of themselves holding guns, and teenagers driving past cops while smoking a joint,” the deputy said. “There have been people holding stolen items, and they brag about how they obtained those items.”

The false sense of security that comes with sharing information behind a screen is just that – an illusion. More frequently, law enforcement officers and courts in Indiana are using these items as evidence.

In 2014, the Indiana Court of Appeals broadened the admissibility of social media content as evidence in the case of Wilson v. State of Indiana. If a witness can verify that the suspect posted an incriminating photo, video or status, those things can be used as a piece of supporting evidence in the case.

ILB: The opinion is Donnell D. Wilson v. State, April 30, 2015. ILB summary here, 3rd case.

Posted by Marcia Oddi on Wednesday, March 01, 2017
Posted to Indiana Government

Ind. Decisions - More on: Plaintiffs file petition for transfer in Pence/Holcomb redacted emails case

Updating this comprehensive ILB post from Feb. 7, 2017, re the petition to transfer filed in the case of Groth v. State, which sought certain emails from then-Governor Pence, here is the "Corrected Response of Appellee Mike Pence, as Governor of the State of Indiana, in Opposition to Petition for Transfer of Appellant William Groth," [response to transfer petition] which the docket indicates was filed Feb. 24th. From the response:

The Court of Appeals’ majority affirmed the trial court’s decision based on its conclusions that the Governor acted within his discretion in declining to turn over the white paper under the deliberative materials exemption in APRA, Opinion at 30-31, and that the Governor has properly withheld the white paper because it is subject to the attorney-client privilege, id. at 23-30.

However, the Court rejected the Governor’s argument that his decision to withhold the white paper was nonjusticiable under the separation of powers provision of the Indiana Constitution, Opinion 9-18. The Governor has not sought transfer of that issue, but it would be presented for resolution if transfer is granted. Ind. App. R. 58(A). * * *

For the reasons set forth in sections I and II, supra, this Court should deny transfer. If this Court does grant transfer, it should consider addressing the issue discussed in section III, supra.

The "issue discussed in section III" was summarized in a Fort Wayne Journal Gazette editorial:
[But the governor also argued that under the separation of powers, the open records law did not apply to him.] “The governor’s argument would, in effect, render APRA meaningless as applied to him and his staff,” Najam wrote. “APRA does not provide for any such absolute privilege, and the separation of powers doctrine does not require it. We reject the Governor’s assertion that his ‘own determinations’ regarding whether to disclose public records are not subject to judicial review.”
That portion of the Court of Appeals ruling may now be at risk if the Supreme Court grants transfer, even though it is not the portion of the opinion that petitioner Groth is appealing. The ILB asked Groth attorney Greg Bowes about the decision to petition for transfer to the Supreme Court:
We pursued the petition for transfer, because we believe the Court of Appeals decision improperly expanded the common interest doctrine and the interpretation of deliberative materials. Even the Public Access Counselor has written that the deliberative materials exception only applies when the information comes from within the government. We knew the governor could reassert the separation of powers issue, but felt the Supreme Court had very narrowly decided the Koch case, and hoped it would not allow the idea to be extended to the executive branch.

I believe there has been a dangerous pendulum swing away from government transparency, and hope this appeal will provide some pressure to push the pendulum in the opposite direction.
Re whether Pence is still involved in this case, presumably the automatic substitution rule of Ind. App. Rule 17(C)(1) applies:
C. Substitution Of Parties.

(1) Automatic Substitution for Public Officers in Official Capacities. When a public officer who is sued in an official capacity dies, resigns or otherwise no longer holds public office, the officer's successor is automatically substituted as a party.

Next scheduled to be filed is a Reply Argument on Transfer.

Posted by Marcia Oddi on Wednesday, March 01, 2017
Posted to Ind. App.Ct. Decisions | Indiana Decisions | Indiana Government

Ind. Gov't. - Abortion bill that "completely undermines" judicial bypass passes Senate

Niki Kelly reports today in the Fort Wayne Journal Gazette:

An abortion bill [SB 404] that requires parents to be notified when their daughter pursues an abortion without their consent cleared the Indiana Senate on Tuesday.

“This is a bill about parental rights,” said Sen. Erin Houchin, R-Salem. “When speaking of abortions under these circumstances, these are not women seeking abortions. These are children seeking abortions.”

Indiana law currently requires girls under 18 to get permission from at least one parent before an abortion. But if they can’t or don’t want to, they can file a petition for a judicial bypass, in which a judge considers whether the girl is mature enough to make the decision on her own. Parents are not notified in these cases now.

Under the bill, parental notification could come in a variety of ways – giving the petition to the parent or legal guardian; leaving it at their home; sending it by certified mail; or running an ad in the newspaper.

Sen. Karen Tallian, D-LaPorte, said there are some situations in which notifying parents is not a good thing – such as if a girl is afraid she will be physically harmed by a parent for getting pregnant.

“The point of the judicial bypass is that she doesn’t want her parents to know for some good reason,” she said. “The bill completely undermines that.”

In 2015, fewer than 250 girls under the age of 18 had abortions in the state. According to testimony in committee, about 20 girls use the judicial bypass procedure annually.

Here are some other things the bill does:

• Requires an adult who gives consent for a girl’s abortion to prove to the abortion provider that he or she is the parent or legal guardian through birth records, court orders and identification.

• Requires a judge in bypass cases to use a higher burden of proof – clear and convincing evidence the girl is mature enough – before waiving the requirement of parental consent.

• Creates a right for parents of a minor to sue another adult, not immediate family, who “aids or assists” a minor in obtaining an unlawful abortion.

Four Republicans voted against the measure, including Sen. Sue Glick, R-LaGrange. House Speaker Brian Bosma has already said the bill will likely get a hearing.

Posted by Marcia Oddi on Wednesday, March 01, 2017
Posted to Indiana Government

Ind. Gov't. - More on "Governor Holcomb declares disaster emergency at East Chicago Superfund site"

Updating this ILB post from Feb. 10th, the Indiana Housing and Community Development Authority (IHCDA) now has a comprehensive web page "to provide status updates, progress reports, and other important information from State, Federal and local partners can be posted."

Posted by Marcia Oddi on Wednesday, March 01, 2017
Posted to Indiana Government

Ind. Courts - NW Ind. community discusses judicial system inequality

A long story this morning by Javonte Anderson of the Gary Post-Tribune - some quotes:

The Indiana Supreme Court's Commission on Race & Gender Fairness hosted the first of five forums statewide Monday in Gary to find potential solutions to the barriers that women and people of color encounter in the Indiana judicial system.

Residents, judges, lawyers and politicians, including an unexpected visit from Gary Mayor Karen Freeman-Wilson, gathered to discuss inequality issues in the state's judicial system and potential ways to remedy said problems. * * *

Lake County Superior Court Judge Bruce Parent said the judicial system is fundamentally flawed. "The system was designed by old white men to protect what they had," he said.

Parent said the statistics are showing that there's more diversity among lawyers and judges, but that they still aren't representative of the population.

"Even if we look at it on a micro-level, I was the third white male in a row chosen to be a judge in Lake County," he said. "I'm happy I was selected but something's not right about that."

Sheila Moss, the first African-American female judge in Lake County, said over her 24 years on the bench she's seen a little progress in terms of more minority lawyers, but there's more work to do.

"It's more diverse now than it ever has been but the demographics of the county have changed, too, so we need to keep pace with that," she said. * * *

After hosting four other forums throughout the state, the commission will deliberate before presenting a formal written report to the Indiana Supreme Court, said Myra Selby, the commission's president and former Indiana Supreme Court judge. * * *

Gilbert King, a black attorney in Gary, said he's pleased that the Supreme Court is willing to hear ways to address the racial and gender disparities that exist, but he hopes that people "aren't here just talking to talk."

"I hope we implement some of these suggestions and not here just talking or we're here just wasting time."

ILB: Here is the membership of the Commission on Race and Gender Fairness and here is its directive.

Here is the schedule of community forums in five cities throughout Indiana. Evansville is next up, tonight, March 1.

Posted by Marcia Oddi on Wednesday, March 01, 2017
Posted to Indiana Courts