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Monday, April 17, 2017

Ind. Courts - Conference Committee meeting on Marion Superior Court judicial selection is this afternoon

The ILB's most recent post on HB 1036, the Marion Superior Court judicial selection, was on March 30th, headed "Senate Committee amends HB 1036, intended to replace Marion County judicial selection law declared unconstitutional by the 7th Circuit."

The House dissented in the Senate amendments and the bill now is in conference committee. The conference committee is meeting this afternoon, at 3:00 PM. You will be able to watch it live.

The following article by Theodore R. Boehm will appear in the center spread of The Indiana Lawyer this week. I'm told Justice Boehm's views are in agreement with the IndyBar’s, those given by the Marion Superior Court’s lobbyist, and the House bill authors:

Perspectives on House Bill 1036
By Theodore R. Boehm, Hoover Hull Turner LLP

From 1975 through 2014, with a few minor tweaks, half of Marion County judges were elected in the Republican primary and half in the Democratic primary. No party was allowed to nominate more than half the number of seats up for election. This system initially allowed for one loser in the general election, but in the twenty‐first century the parties’ two monopolies, each on half the Superior Court bench, were cemented and the general election became a complete farce.

This shared monopoly worked pretty well in terms of the quality of the bench. So most of us were reasonably satisfied with an undemocratic system that produced, with few exceptions, capable hard working judges. Challenges to this bipartisan accommodation came not from concern about the judges it was producing, but about the pressure put on the legal system by the parties’ demands for ever escalating “slating fees” required for the party’s blessing in the primary that had become the gateway to the bench. When the parties came to see the bench as a cash machine exploiting the willingness of lawyers to support judicial candidates, it was time to challenge a system that turned judicial selection into a private for profit enterprise.

The ACLU challenged this judicial selection system as incompatible with basic democratic principles, and the Seventh Circuit ultimately affirmed Chief Judge Young’s opinion finding it a violation of the Federal Constitution. There were no judicial seats up for election in 2016, so the General Assembly elected to pass on filling the void. Now, however, if nothing is done by the legislature, presumably the courts will design a process for us before the 2018 election.

The Indianapolis Bar Association has endorsed the House version of House Bill 1036 which would fill this gap by creating a new Marion County Judicial Selection Committee. In that version of the bill, the committee is to propose three nominees to the Governor to fill any vacancy. The Governor is constrained by the requirement that no more than fifty‐two percent of the Marion County bench are to be of the same party. The committee’s processes are similar to the seven‐member Judicial Nominating Commission (JNC) that has chosen three candidates to fill any vacancy on the Indiana Supreme Court or the Court of Appeals since 1970.

The Marion County Committee differs from the JNC in its size (14 members) and composition. The JNC is chaired by the Chief Justice of Indiana, and has three members elected by the lawyers of the state and three appointed by the Governor. The Marion County Committee proposed by the House version of H.B. 1036 has four members appointed by leaders of the Indiana House and Senate, four attorneys appointed by the presidents of the Indianapolis Bar Association, the Marion County Bar Association, the Indiana Trial Lawyers Association, and the Defense Trial Counsel of Indiana, four appointed by the Marion County chairs of the two major political parties, and two appellate judges chosen by the Chief Justice and the Chief Judge of the Court of Appeals.

Some have complained that giving appointments of eight of 14 seats on the committee to officeholders or party officials injects “politics on steroids” into the process. But the political appointing officials are equally divided between the two major parties. And H.B. 1036 has two major benefits: it removes the judges from fundraising and assures careful review of candidates’ qualifications and character. In the judgment of those closest to the legislative pulse, giving politicians right to appoint members of the committee is necessary to make the bill palatable to the General Assembly. H.B 1036 isn’t perfect, but it’s the best we can do.

There have been concerns voiced by some members of minority communities that this bill is antidemocratic because it denies the voters a voice in the process. But if the real concern is that the committee will produce a less diverse bench, the experience with the JNC and other commissions shows otherwise. And lawyers in the two counties—Lake and St. Joseph— with nominating commissions report they are pleased with the bench they get from their nominating commissions.

Selecting a judge requires evaluation of professional skills, patience, hard work and integrity. History has shown time and time again that in major metropolitan areas, the vast majority of the general voting public does not know the judicial candidates, and does not have the interest or access to information to make an informed decision. Support H.B 1036 as the best practical hope to confine fundraising to the political branches and ensure proper vetting of candidates.

Boehm served as Associate Justice of the Indiana Supreme Court from 1996 to 2010, authoring the most majority opinions for the court in that span.

Posted by Marcia Oddi on Monday, April 17, 2017
Posted to Indiana Courts

Ind. Courts - February 2017 bar exam results listed

The list of applicants who passed the Indiana Bar Exam in February 2017.

Posted by Marcia Oddi on Monday, April 17, 2017
Posted to Indiana Courts

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (2):

Rueth Development Company and Rueth Development Company d/b/a Superior Lumber Company v. H&H Rueth, Inc. (mem. dec.)

In re the Paternity of D.J. b/n/f: Desiree Jennings v. Leewayne Johnson (mem. dec.)

NFP juvenile and criminal decisions today (3):

Eaphram Lincey v. State of Indiana (mem. dec.)

Chad M. Sutton v. State of Indiana (mem. dec.)

Harsco Corporation v. Francisco Orta (mem. dec.)

Posted by Marcia Oddi on Monday, April 17, 2017
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - IBJ EDITORIAL: Don’t price public out of public records

From the April 15th IBJ editorial:

[HB 1523] would allow government agencies to charge the public and the media up to $20 an hour to fill public-information requests that take longer than two hours to retrieve.

That’s right: $20 an hour for an employee paid by taxpayers to search for records funded by taxpayers to provide to those taxpayers.

The fee is an affront to those members of the public and the media who want to try to understand and sometimes keep an eye on the elected officials and their staffs who are spending public money.

Supporters of the bill argue that government agencies can be deluged with public-records requests that pull them away from the work of governing. And at a time when those government agencies face increasingly difficult financial pressures, that concern is easy to understand.

But the problem with the argument is that it implies providing records to the public is not part of elected officials’ jobs. Actually, it’s one of their most essential roles.

After all, an informed electorate is key to a working democracy.

The ability of a city resident—or a TV station or an opposing candidate or whoever—to dig into procurement records that determine which local companies get lucrative government contracts can help keep a city council honest.

A newspaper reporter’s determination to pore through thousands of emails sent and received by elected officials to ferret out whether they are following rules that separate campaigns from official government business can give voters essential information—and might even uncover criminal activity.

And the ability to do that kind of research should not be hampered by an individual’s ability to pay.

Former Gov. Mike Pence—the current vice president—knows that. He actually faced a much more difficult decision in 2015 when a bill with a similar provision reached his desk. In that case, the bill also included several provisions that would have meant positive changes in public transparency.

Still, Pence did not let those better provisions outweigh what was wrong with the legislation. He said when he vetoed the bill that “the cost of public records should never be a barrier to the public’s right to know.”

We urge Holcomb to reach the same conclusion.

Posted by Marcia Oddi on Monday, April 17, 2017
Posted to Indiana Government

Ind. Gov't. - "Indiana legislative session set to end Friday"

Dan Carden reports in the NWI Times in a story that begins:

Hoosier lawmakers are planning to end the four-month annual meeting of the Indiana General Assembly on Friday — eight days ahead of the April 29 mandatory adjournment deadline.

It's not that there isn't legislative work still to be done, but next week, representatives and senators would have nowhere to sleep in Indianapolis as an international firefighters convention is set to take over all the hotel rooms in the state's capital city.

That means the usual end-of-session pressure and deal-making at the Statehouse will be taken to the next level, as lawmakers try to hash out compromise versions of proposals that already have passed the Republican-controlled House and Senate with varying provisions.

Senate President David Long, R-Fort Wayne, said he's expecting "a very, very busy final week that will require a lot of patience, diligence and long hours — and that's the way it should be.

"The pressure to get things done is one of the things that makes Indiana's Legislature unique, and I think it makes us work better," Long said.

House Speaker Brian Bosma, R-Indianapolis, is advising his members not to let perfect be the enemy of the good, as they strive to blend conflicting provisions in their legislative proposals.

"I've encouraged members of conference committees to get their work done, and get it done as quickly as possible, because once we get an agreement on roads, the budget and liquor, we're getting out of here," Bosma said.

Of course, talking about an agreement on those issues always is easier than actually coming to an agreement.

Posted by Marcia Oddi on Monday, April 17, 2017
Posted to Indiana Government

Ind. Gov't. - "Micromanagement could spread to Indiana: Home-rule helicoptering"

Supplementing this ILB post from April 13th, some quotes from a long Fort Wayne Journal Gazette editorial today:

The Wall Street Journal reported last week that states are trying a new approach to curbing the powers of local governments.

Florida, Texas and Pennsylvania, the Journal reported, are considering “broad-based approaches to block city ordinances, rather than fighting cities on specific issues like minimum-wage rules. Arizona has already enacted such a rule.”

Given the general legislative hostility toward what used to be known as “home rule,” it's not too early to worry about whether Indiana could be far behind.

“Proponents say these wide-ranging bills are a way to get ahead of a flurry of local actions around the country, such as a plastic-bag levy in New York City, a paid sick-leave requirement in Philadelphia and ride-sharing regulations affecting companies such as Uber,” the Journal reported. Advocates say the new omnibus approach will help states smooth the regulatory environment for businesses. Detractors say it's about power and politics.

The lure of interceding on decisions better left to municipalities is a temptation to which Hoosier legislators frequently succumb.

Last year, the legislature turned aside from weightier matters to head off an effort by environmental activists to ban plastic bags in Bloomington. Now, cities in Indiana are forbidden even to limit or tax the use of such bags. Also in 2016, Rep. Matt Lehman, R-Berne, shepherded through a bill to smooth the way for Uber and other ride-sharing services. That the measure overrode local ordinances in places such as Fort Wayne didn't seem to matter.

This year, the Senate and House are working to finalize a bill that would stop municipalities from prohibiting Airbnb-style short-term rentals and sent a proposal to prevent localities from regulating the size and placement of cellphone companies' transmission towers to a summer study committee. * * *

Win Moses Jr., a Democrat who's seen the issue as a Fort Wayne mayor and as a state representative, said Friday it's been at least two decades since the legislature routinely honored the home-rule concept. Since then, finding compromise between the need for statewide predictability and the rights of communities to determine their own rules has been difficult.

Posted by Marcia Oddi on Monday, April 17, 2017
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending April 14, 2017

There were no transfer dispositions last week, and hence, there is no transfer list.

Posted by Marcia Oddi on Monday, April 17, 2017
Posted to Indiana Transfer Lists

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 4/17/17):

Next week's oral arguments before the Supreme Court (week of 4/24/17):

Thursday, April 27

Webcasts of Supreme Court oral arguments are available here.

This week's oral arguments before the Court of Appeals (week of 4/17/17):

Monday, April 17

Tuesday, April 18

Thursday, April 20

Friday, April 21

Next week's oral arguments before the Court of Appeals (week of 4/24/17):

Monday, April 24

Wednesday, April 26

Thursday, April 27

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, April 17, 2017
Posted to Upcoming Oral Arguments

Ind. Decisions - Tax Court ruling from last Thursday

In Zimmer, Inc. v. Indiana Department of State Revenue, a 10-page opinion dated April 13, 2017, Judge Wentworth writes:

Zimmer, Inc. has challenged the Indiana Department of State Revenue’s assessments of use tax for the 2009, 2010, and 2011 tax years (the “years at issue”). The matter is currently before the Court on the parties’ cross-motions for summary judgment. The dispositive issue is whether Zimmer’s Indiana activities regarding its exhibition booth components constituted a taxable use or non-taxable storage for use outside the state during the years at issue. * * *

The undisputed material facts establish that Zimmer stored its exhibition booth components in Indiana for subsequent use solely at out-of-state trade shows, but that it repaired some exhibition booth components in its Indiana warehouse on an as-needed basis. Accordingly, the Court GRANTS summary judgment in favor of Zimmer on those exhibition booth components that were stored in Indiana for subsequent use solely outside Indiana. The Court GRANTS summary judgment in favor of the Department, however, on those exhibition booth components that were repaired in Indiana during the years at issue.

Posted by Marcia Oddi on Monday, April 17, 2017
Posted to Ind. Tax Ct. Decisions