Wednesday, April 19, 2017
Vacancy on Supreme Court 2017 - Here are the three names to be sent to the Governor
Sec. 10 of ARTICLE 7 of the Constitution of the State of Indiana provides in part:
Section 10. Selection of Justices of the Supreme Court and Judges of the Court of Appeals.This evening the Judicial Nominating Commission has announced it will be submitting the following list of three nominees to Governor Holcomb:
A vacancy in a judicial office in the Supreme Court or Court of Appeals shall be filled by the Governor, without regard to political affiliation, from a list of three nominees presented to him by the judicial nominating commission. If the Governor shall fail to make an appointment from the list within sixty days from the day it is presented to him, the appointment shall be made by the Chief Justice or the acting Chief Justice from the same list.
- Hon. Vicki L. Carmichael, Clark Circuit Court 4 (detailed info here)
- Hon. Christopher M. Goff, Wabash Superior Court (detailed info here)
- Hon. Matthew C. Kincaid - Boone Superior Court 1, Lebanon (detailed info here)
Vacancy on Supreme Court 2017 - JNC announcement to take place shortly
Indiana Courts just tweeted:
In 10 mins the JNC will announce 3 finalists for Sup Ct. Enter SH at west entrance, room 319.
Ind. Courts - Gov. Holcomb Announces Judicial Appointment for Noble County Superior Court 2 Vacancy
From the news release:
INDIANAPOLIS – Gov. Eric J. Holcomb today announced Mr. Steven Clark Hagen as his appointment to the Noble County Superior Court II. Mr. Hagan succeeds Judge Michael J. Kramer, who was elected to serve as judge of the Noble County Circuit Court in November 2016.
Mr. Hagen is a longstanding resident and attorney in Noble County with extensive experience in both civil and criminal law. During his career, Mr. Hagen has served as a deputy prosecutor for Noble County, city attorney for the city of Ligonier.
Ind. Courts - "Chris Wrede appointed judge of Terre Haute City Court"
So reports the Times Sentinel today. Some quotes:
Long-time deputy prosecutor Chris Alan Wrede has been appointed as the new judge of Terre Haute City Court by Gov. Eric Holcomb.
Wrede, 43, of Terre Haute, succeeds Judge Sarah Mullican, who was elected to serve as judge of the Vigo County Circuit Court in November 2016.
A news release from Gov. Holcomb's office said Wrede has extensive experience in both civil and criminal law. He has served as a deputy prosecutor with the Vigo County Prosecutor’s Office for the last 10 years. He was previously in private practice of law for seven years.
Vacancy on Supreme Court 2017 - Now for the waiting
The Judicial Nominating Commission will now lunch and conduct deliberations in executive session. If past history is any indication, it will be late this afternoon before we receive an announcement that they will be reconvening in usually 15 minutes for a public vote and announcement of the three names that will be sent to the Governor. The ILB will be waiting ...
Ind. Courts - IU-MCKinney hosting May 24th CLE and reception honoring Justice Rucker
The law school is hosting a free CLE program and reception to honor Justice Rucker beginning at 2:00 p.m. on Wednesday, May 24. You may register via this link. Here is the agenda:
2:00 - Welcome: Dean Andrew Klein
2:05 - Justice Rucker’s Criminal Law Jurisprudence
2:50 - Justice Rucker’s Civil Law Jurisprudence
- Hattie Harman, Indiana Supreme Court, Indianapolis (Law Clerk to Justice Rucker, 2010-14)
- Ellen H. Meilaender, Office of the Attorney General, Indianapolis
- Leanna K. Weissmann, Lawrenceburg (Law Clerk to then-Judge Rucker, 1994-95)
- Moderator: Professor Joel Schumm (Law Clerk to Justice Boehm, 1998-2000)
3:35 - Break
- Bryan H. Babb, Bose McKinney & Evans, Indianapolis (Law Clerk to Justice Sullivan 1999-2000)
- Abigail T. Rom, Office of the Indiana Attorney General, Indianapolis (Law Clerk to Justice Rucker 2010-2012)
- Tony Walker, The Walker Law Group, Gary, Indiana (Law Clerk to then-Judge Rucker 1995-1997)
- Moderator: Dino L. Pollock (Law Clerk to Justice Rucker 2008-2010)
3:45 - Conference ReunionChief Justice Randall T. Shepard and Justices Brent E. Dickson, Frank Sullivan, Jr., Theodore R. Boehm, and Robert D. Rucker served together on the Indiana Supreme Court from November 19, 1999, until September 30, 2010, by far the longest the Court has ever gone with a change in membership. Justice Rucker’s former colleagues will re-join him in “conference” for the first time since September 30, 2010, to reminisce and respond to questions.4:30 - Reception in the Atrium
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #11, Hon. Steven L. Hostetler
This is Prof. Joel Schumm's report on the 11th (and final) interview of Round 2
In response to a question about how he dispenses justice, Judge Hostetler said he remembers the Golden Rule and keeps in mind the principles of Article 1, Section 1, that all power belongs to the people, and keeping mind we are dealing with real people.
In response to a question about the Rooney Rule and diversity, Judge Hostetler said it is important to reach out to others, noting an upcoming speaking engagement where he will encourage people from diverse backgrounds to apply to be judges and provide them his phone number and future assistance, noting his experience with merit selection both at the county and state level.
In response to a question about whether the preamble to the Indiana Constitution was being achieved, Judge Hostetler noted “we can always do more” and the challenges of the “big five”: domestic violence, child abuse, mental health, veterans, and substance abuse.
When asked about legacy, Judge Hostetler would like to be remembered as someone cared about the big problems facing Indiana and came up with innovative ways to address them.
In response to a question about a procedural rule he would like to see changed, Judge Hostetler mentioned the “lazy judge rule” (Trial Rule 53) but then suggested discovery rules should be examined to “right-size” cases and make sure they are on the right path.
In response to a question about judicial restraint, Judge Hostler said it is a “fundamental pillar” of his philosophy and cited his opinion in the ESPN case. Judicial restraint does not mean abdicating the judicial role to decide cases and interpret statutes.
Judge Young commented on the inclusion of the Article 1, Section 12, as the first page of Judge Hostetler’s application. Judge Hostetler said it is a big part of the commitment when he took the bench and had a larger version posted outside his courtroom.
In response to a question about reviewing administrative decisions, Judge Hostetler said he agreed it should not be applied when a fundamental principle is involved but judges must provide appropriate oversight.
Judge Hostetler said two types of cases keep him up at night: (1) those involving child abuse and (2) cases from his Veteran’s Court, discussing challenges of dual diagnosis.
In response to a question about unified county courts and the possibility of regional courts, Judge Hostetler emphasized competing interests: a balanced caseload and helping citizens on one hand and ensuring those who elect their judges are served by their judges. He does not find fault in the way other counties elect their judges and noted the importance of flexibility in addressing uneven caseloads.
In response to a question about professional regrets, Judge Hostetler said he wife commented he could have pursued a judicial career earlier but he has no regrets.
When asked about his preparation, Judge Hostetler noted this was his “fourth” and he is a very prepared person. He did not review cases in preparation of this interview; he reviews them every week. He tries to be himself and understand things that are going to be important to the Commission and convey his thoughts in a way relevant to their concerns.
Mr. Young read from Ponce v. State (Ind. 2014), noting the importance of interpreters and asked about Judge Hostetler learning Spanish. Judge Hostetler’s goal is not to be able to carry on a conversation in court in Spanish but should know enough to understand something was wrong in that case. He said the opinion is “so wonderful” as an example of legal writing by using “unassailable logic to reach the morally irresistible conclusion” in only fourteen paragraphs.
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #10, Ms. Leslie C. Henderzahs
This is Prof. Joel Schumm's report on the 10th interview of Round 2
In response to an opening question about the influence of social media on legal issues, Ms. Henderzahs said her firm has a policy because people in the community view lawyers as leaders. The firm has a Twitter account to promote events. Her advice to younger lawyers is not to post things that their grandmothers would not be proud of.
In response to a question about obstacles to justice, Ms. Henderzahs said we must continue to provide access to those who do not speak English. It is important to recognize that each of those lives matters, and we are going to serve those people.
In response to a question about judicial restraint, Ms. Henderzahs said “the law must be stable but cannot stand still,” quoting Roscoe Pound. When the Constitution was written, the framers could not have anticipated things like artificial intelligence.
In response to a question about a random act of kindness to someone she did not know, Ms. Henderzahs said she helped someone this morning who did not know where they were going.
In response to a question about Criminal Rule 26, Ms. Henderzahs said she likes that the power remains with the local judiciary. The focus has shifted from incarceration to rehabilitation during her time in practice, which she appreciates.
In response to a question about expanding the size of the Indiana Supreme Court, Ms. Henderzahs said she would support it if the Chief and other justices believed expansion was necessary to get the work done and noted the heavy administrative workload. She noted the ten-year anniversary of the “New Way Forward,” which provides an opportunity to consider its strategic plan.
In response to a question about her preparation for the role of a justice other than her “exemplary practice,” Ms. Henderzahs discussed the nature of the cases she has taken, starting in personal injury and more recently a number of high-profile, high-stakes cases that cannot be discussed in a publicly-posted application. Her clients in those cases have prepared her because of the commitment, discretion, and decorum required. Her clients might require a meeting at 5:30 in the morning or 10:30 at night, which she has done. In addition to the high-profile cases, she has had cases with “rooms, not boxes” of discovery. She has also handled commercial litigation cases, which she also discussed at some length.
When asked what she would do if not a lawyer, Ms. Henderzahs said she would help the elderly with exercise.
In response to a question about her preparation for the interview, Ms. Henderzahs said she had reviewed constitutional landmark opinions, read about justices, and met with each current justice. She has reviewed case law outside her practice area and met with judges to ask what they thought would be valuable. She found the application process incredibly rewarding and educational.
In response to a question about solutions to the low bar passage rate, Ms. Henderzahs said she did not see it as a problem. If law students are not putting sufficient time into preparing and understanding important legal skills, they should not be lawyers. No client wants a lawyer who does not do the job well. She also discussed placing students in job or opportunities to help them develop skills.
In response to a question from the Chief Justice about cases being heard next week (a CHINS, tax, and criminal case), Ms. Henderzahs said “on a personal basis” she would “welcome the opportunity to learn more” about the area of law in the criminal case. On an Indiana basis, she would take the CHINS case because of its broad impact, but would defer to the others on the Court.
About the ILB - The opportunity for your organization to become the ILB's exclusive sponsor is still out there ...
The ILB is still 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.
Although the opportunity for your organization to become the ILB's sponsor is still out there, the end of April is fast approaching. Right now, the ILB is intensively covering the Supreme Court interviews, as it has over past years, and the blog will continue to follow appellate opinions and related matters through the end of the month...
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.
Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 13 NFP memorandum decision(s))
For publication opinions today (5):
In Constantinos P. Angelopoulos v. Theodore P. Angelopoulos, Neptunia Inc., Transmar Corp., Didiac Establishment, Beta Steel Corp., and Top Gun Investment Corp. II, a 16-page opinion, Judge Mathias writes:
On remand from this court, the Porter Superior Court issued an order denying the motion of Constantinos P. Angelopoulos (“Constantinos”) seeking to modify a protective order preventing him from using certain materials obtained during discovery and designated as confidential by Appellees-Defendants Beta Steel Corp. (“Beta Steel”) and Top Gun Investments Corp. II (“Top Gun”) under the protective order, in future litigation in Greece between Constantinos and his brother Theodore P. Angelopoulos (“Theodore”). The trial court’s order also concluded that, pursuant to Administrative Rule 9, portions of Theodore’s deposition testimony should be excluded from the public record. Constantinos appeals and presents two issues, which we reorder and restate as (1) whether the trial court erred under Administrative Rule 9 by excluding from the public record portions of Theodore’s deposition testimony, and (2) whether the trial court abused its discretion by failing to modify the protective order. * * *In Citizens Action Coalition of Indiana, Inc. v. Northern Indiana Public Service Company; NIPSCO Industrial Group; and United States Steel Corporation, a 25-page opinion, Judge Baker writes:
Given the evidence before the trial court that release of personal information regarding Theodore and his family could lead to an increased risk of crime and terrorism against the family, we cannot say that the trial court abused its discretion in denying Constantinos’s motion to modify the protective order. Indeed, Constantinos merely desires to use Indiana’s generous discovery process to discover information that would apparently not be permitted in Greece and be allowed to use these materials in Greece. Unless and until a Greek court decides that such materials would be admissible in the proceedings before the Greek court, a decision to which our courts would afford comity, we cannot say that the trial court abused its discretion by declining Constantinos’s request to modify the protective order.
Conclusion. The trial court did not abuse its discretion when it found that Theodore had met his burden of establishing, by clear and convincing evidence, that the portions of his deposition previously designated as confidential, but submitted in court, should be part of the public record. Nor did the trial court abuse its discretion when it denied Constantinos’s motion to modify the Protective Order to permit Constantinos to use, in Greek litigation, the discovery materials designated as confidential discovery in the Indiana action.
Northern Indiana Public Service Company (NIPSCO) filed a petition with the Indiana Utility Regulatory Commission (IURC) seeking to implement a new rate design, pursuant to which certain rates would increase. NIPSCO and other entities, including NIPSCO Industrial Group (Industrial Group) and United States Steel Corporation (US Steel), engaged in settlement negotiations and reached an agreement. Citizens Action Coalition of Indiana, Inc. (CAC), had intervened in the proceeding and objected to the agreement. The IURC ultimately approved the settlement agreement, and CAC now appeals, arguing that there is not substantial evidence supporting the IURC’s order and that the IURC should have required the inclusion of a low-income payment assistance plan and the collection and reporting of customer data by NIPSCO. Finding substantial evidence and no other error, we affirm.Matthew L. Johnson v. State of Indiana
NFP civil decisions today (5):
NFP juvenile and criminal decisions today (8):
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #9, Mr. Peter J. Rusthoven
This is Prof. Joel Schumm's report on the 9th interview of Round 2
In response to an opening question about collegiality and if he had one regret from his professional experience, Peter Rusthoven said he has never had difficulty viewing opposing counsel as someone doing their job. In one particularly heated case, he responded to a lawyer “chatting him up” that they were not friends.
In response to a question from Mr. Feighner about measuring up the example of former justices (Powell, O’Connor, Dickson, and Rucker), Mr. Rusthoven said they did their homework and treated individuals well. He appreciates the way Justice Rucker grasps the issue and gets to the heart of it in his questions at oral argument.
In response to a question about a life lesson he hopes his children would learn from him, Mr. Rusthoven discussed the importance of honesty, not sacrificing integrity for any reason, and not giving up.
In response to a question about his commitment to judicial restraint, Mr. Rusthoven said he is as committed as one can be. It is vital that each branch of government “stay in its own lane.” The executive and legislative branches can be booted if they step out of line. Judges should be umpires, following and enforcing the rules, not being philosopher kings and queens. One of the reasons the U.S. Supreme Court nominations have become so contentious is because the Court decides issues based on considerations other than text, and the process is now viewed as “one of nine votes for a super-legislature.”
Mr. Rusthoven went to law school with Merrick Garland, who would have been confirmed in a different era — as would Robert Bork. He appreciates that this Court has instead stayed in its own lane.
In response to a question about what he would tell his children about personal responsibility (if a statute does not impose liability for something they have done), Mr. Rusthoven would talk with children about how they will make it right with the person.
In response to a question about his lack of experience in the criminal realm and what he has done to prepare, Mr. Rusthoven said he has kept up on reading and has talked to a couple trial judges about their views on bail. In response to a follow up question, Mr. Rusthoven said he could not walk into a criminal defense case and handle it properly. The Constitution guarantees the right to “liberty,” which is crucial. We have lost something if people believe the system is a machine they get lost in.
In response to a question about the Rooney rule, Mr. Rusthoven said racism is a cancer of American life and we are behind where we should be. He mentioned the importance of ICLEO and his commitment to further the goals of diversity.
In response to a question from Mr. Yakym about his op-eds for the IBJ and how to handle issues where the legislature is silent, Mr. Rusthoven drew a contrast between statutory and common law issues. When dealing with a statute, many times the text provides a clear answer, and other times ambiguity will need to be addressed. Courts then must “reach the best result we can without stepping out of bounds.” When dealing with common law, judges have more latitude to make changes, and something that made sense hundreds of years ago in England may not today. Following up about the possibility of absurd results, Mr. Rusthoven cited the canon and noted there is a body law. A number of things may seem dumb to some, but courts must be careful about invoking the absurdity of results as a reason to look beyond text.
Mr. Feighner commented on proposed changes to the merit selection system, which would have had legislative leaders appoint lawyer members instead of electing them. Mr. Rusthoven said the process has worked fairly well over the years. The process includes different perspectives, and he thinks he has been treated fairly by the elected lawyer members. Commission members bring their own points of view, and the general consensus of the bar is that the system has worked well.
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #8, Hon. Matthew C. Kincaid
This is Prof. Joel Schumm's report on the 8th interview of Round 2
In response to an opening question about lessons he learned from his dad, a long-time Boone County judge, Judge Kincaid emphasized not holding a grudge and the importance of poor long-time memory, always treating people with respect. When he drops his daughter off at school, his advice is to “work hard and be nice to everybody.”
In response to a question about the Court responding to changes in society, Judge Kincaid said the Court must decide the cases before it. The legislature is best positioned to respond to those changes, in statutes which the Court applies.
In response to a question about his work on judicial committees, Judge Kincaid discussed his work on the criminal instructions committee, which requires them to stay on top of the law. He has also been on the civil instructions committee and Benchbook Committee, all of which have enriched him as a judge and exposed him to judges who care deeply about the issues.
In response to a question about who he is besides a judge, Judge Kincaid noted he is a “father” and “thinker” and sometimes sits in judgment of himself - and also a “confident person.”
Responding to a question about judicial restraint, Judge Kincaid said judges need to interpret statutes and contracts as they are written. If judges are not restrained, they can do a lot more damage. He cited the importance of judicial restraint from Federalist paper 78.
In response to a case about an adoption case discussed in his application, Judge Kincaid said the father’s consent could be dispensed with and either litigating party (foster parents or grandparents) would have been a good parent. He concluded the foster parents who had cared for the child for years should continue to raise the child.
In response to a question about a time he was on the opposite side of issues from Justice David, Judge Kincaid said he seldom had disagreements, although they may handle some things differently in court. To laughter, Judge Kincaid said he tries to sneak into his seat before everyone in the Courtroom stands up. He briefly discussed an administrative issue demanding certain things of the Sheriff.
Mr. Yakym read from the preamble of the Indiana Constitution and asked if the judiciary was working to meet the objectives. Judge Kincaid said judges approach issues with humility and stick with the issues before them.
In response to a question about how he would like to be remembered in 25 years, Judge Kincaid responded that he “worked hard and was nice to everyone” and was “personally restrained and thoughtful.”
In response to a question about going outside his comfort zone, Judge Kincaid noted his involvement in community theater. He said many woman auditioned for an early production but no men did. He ended up with a role, which was fun and challenging. In the legal realm, he noted it is a challenge to maintain expertise in the wide array of areas of law.
In response to a question about preparing for the interview, Judge Kincaid said he spent an hour on Monday reviewing his materials and thought about the topics he needed to be sure to convey. He did not read the Federalist papers on the beach during spring break.
In response to a question about the loss of “visible diversity” on the Court and holding an oral argument in a place like Gary, Judge Kincaid said people view judges about how they treat lawyers and litigants. Judges “earn their stripes” by what they do.
In response to a question about getting out in the community, Judge Kincaid said he was given advice as a young lawyer that he should go somewhere if invited. He noted the importance of accessibility, commenting that Justice David often gives his cellphone number out.
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #7, Hon. Peter R. Foley
This is Prof. Joel Schumm's report on the 7th interview of Round 2
In response to an opening question about judicial selection for the appellate bench and what he would tell the legislature at a Committee, Judge Foley commented on the hard work of the JNC and the quality and scrutiny of the applicants. The process does not need fixing.
When asked about pros and cons of an elected appellate judiciary, Judge Foley noted the difficulty of running for election and worries about the politicization of the process.
In response to a question from Mr. Young about the “tremendous sense of humanity” of Justice Rucker , Judge Foley pointed to his background, representing “real people” and being on the trial bench. He appreciates the impact of rulings on everyday Hoosiers. From a small community, he has been active in his church and in Habitat for Humanity, which exposes him to a variety of people.
In response to a question from Mr. Berger about an “inspirational” justice, Judge Foley said he draws inspiration from many: remarking on the civility of Justice Dickson, the personal story of Justice Thomas, and the character and approach of Justice Rucker.
In response to a question from Mr. Yakym about the Court responding to changes in society, Judge Foley commented that the judicial branch is the slowest to change. The executive is the quickest to respond, and the legislature is next. It should be this way.
In response to a question from Mr. Feighner about the legacy he hopes to leave, Judge Foley said legacy is up to others to decide. His goal would be to issue clear, concise opinions. The Court must provide leadership for trial courts and the state’s 18,000 attorneys.
In response to a question from Ms. Kitchell about being “pushed outside his comfort zone,” Judge Foley said it happens frequently in law, commenting on his first jury trial.
In response to a question about his commitment to judicial restraint, Judge Foley said he would be slow to respond to societal shifts because the Court must follow the rule of law. Let the legislature write the statutes; the Court should interpret them.
In response to a question about promoting diversity, Judge Foley said it was important to give people an opportunity they might not otherwise have. He said diversity extends beyond race and gender to a broad spectrum of things.
In response to a question from Chief Justice Rush about Criminal Rule 26, Judge Foley said the issue has been discussed at judges’ meetings and he is open to it. In response to a follow-up question about people in the county jail who cannot afford bail, Judge Foley said he did not know a specific percentage and emphasized the importance of using other sorts of programming and monitoring (like home detention).
In response to a question from Mr. Berger about the potential of an all-white bench at an oral argument at a high school in Gary, Judge Foley said his approach would be same at any high school in Indiana where folks feel disaffected and emphasized how he would convey himself.
In response to a question about increasing the size of the Court, Judge Foley said he is not an advocate of change for the sake of change. He does not believe it is something that is broken and needs fixed.
Mr. Feighner followed up about the implementation of Criminal Rule 26 by local officials, Judge Foley said his approach would be to provide leadership and the county is beginning the process of initial discussions, looking at the results from pilot counties. In response to a follow up, Judge Kincaid said the judges reach decisions collectively with input from others.
In response to a question about a career path other than law, Judge Foley said he enjoys history and has an interest in teaching and has always been interested in public service.
In response to a question about his preparation for the interview, Judge Foley said he has reached out to some folks who have been through the process and mock interview type questions. He has tried to study up on significant Indiana Supreme Court opinions and learn more about the administrative role of the Court.
In response to a question about significant decisions, Judge Foley discussed the recent ESPN case and noted his experience with public record requests from his practice as a county attorney. He also discussed the forfeiture of appeal from the 2014 Adoption of O.R. case.
In response to a question about experience as a judge, Judge Foley said one is not prepared for it until you do it, and sometimes it will be brought home with you.
Vacancy On Supreme Court 2017 - Interviews for Supreme Court finalists begin at 9:00 this morning
Here is today's schedule:
- 9:00 a.m. – 9:30 a.m. – Hon. Peter R. Foley
- 9:30 a.m. – 10:00 a.m. – Hon. Matthew C. Kincaid
- 10:00 a.m. – 10:30 a.m. – Mr. Peter J. Rusthoven
- 10:45 a.m. – 11:15 a.m. – Ms. Leslie C. Henderzahs
- 11:15 a.m. – 11:45 a.m. – Hon. Steven L. Hostetler
- 12:00 p.m. Lunch and deliberations in executive session followed by public vote to select nominees