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Monday, April 24, 2017

Ind. Decisions - Supreme Court decides one today, re liability of firearms seller

In KS&E Sports and Edward J. Ellis v. Dwayne H. Runnels, a 19-page, 3-2 opinion, Justice Slaughter writes:

Under Indiana law, “a person may not bring an action against a firearms … seller for … recovery of damages resulting from the criminal or unlawful misuse of a firearm … by a third party.” We agree with the parties that this statute is unambiguous. By its plain terms, the statute immunizes a firearms seller from a damages suit for injuries caused by another person’s misuse of a firearm, regardless of whether the sale was lawful. Having previously granted transfer, we hold that Plaintiff’s claims for damages must be dismissed, but his claim seeking a non-damages remedy survives. We affirm in part and reverse in part. * * *

The parties agree that Section 34-12-3-3(2), which lies at the heart of this litigation, is unambiguous, but they disagree on its meaning. We conclude as follows: Section 34-12-3-3(2) unambiguously bestows immunity on KS&E to the extent Runnels seeks damages resulting from Martin’s misuse of a firearm; Runnels’s negligence, piercing-the-corporate-veil, and civil- conspiracy claims fail Rule 12(C) review because they seek only money damages; and Runnels’s public-nuisance claim survives to the extent it seeks equitable relief. Finally, we hold that federal law does not preempt this statute and reject Runnels’s constitutional claims. * * *

We hold that Indiana Code section 34-12-3-3(2) is unambiguous and functions as a limited immunity statute that insulates KS&E from suits for “recovery of damages resulting from the criminal or unlawful misuse of a firearm . . . by a third party.” Thus, Runnels’s negligence, piercingthe-corporate-veil, and civil-conspiracy claims, which demand only money damages, must be dismissed. Section 34-12-3-3(2), however, does not immunize KS&E from Runnels’s publicnuisance claim seeking equitable relief. That claim survives and may proceed. Finally, we conclude the statute is not preempted by federal law and does not violate either state or federal Constitution. We affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.

David and Massa, JJ., concur.
Rucker, J., concurs in part and dissents in part with separate opinion in which Rush, C.J., concurs.

I part company with my colleagues on their expansive reading of the statute. Consider the following hypothetical: Two men walk into a gun store. Person #1 tells the proprietor, “I am wanting to buy a firearm for my friend here who is a convicted felon who cannot lawfully purchase a firearm. My record is clean.” Person #2 confirms he is a convicted felon and tells the store owner, “I intend to go on a shooting spree.” The purchase is consummated and the next day the convicted felon goes out and wreaks havoc on an elementary school and wounds first responders in the process.

In the majority’s view the gun store would be immune from civil liability and not accountable in civil court to the victims of the shooting. This is so, according to the majority, because “[t]he unambiguous statute operates as a limited immunity provision insulating a firearmsseller from a suit for damages caused by a third party’s misuse of a firearm, regardless of the seller’s culpability.” Slip op. at 6 (emphasis added).

I am not persuaded and cannot believe the legislature intended immunity under the facts posed by the hypothetical. It appears to me the statute was designed to protect innocent and unknowing gun sellers from the acts of third parties. The legislature could not have intended to protect gun sellers from their own illegal acts. On this point, I respectfully dissent.

Posted by Marcia Oddi on Monday, April 24, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "St. Joseph County files lawsuit to seize farmland by power plant"

This April 23rd story in the South Bend Tribune, by Ted Booker, is pretty much the same as the still interesting Feb. 27th story by the same reporter - see this earlier ILB post.

Posted by Marcia Oddi on Monday, April 24, 2017
Posted to Indiana Government

Ind. Gov't. - News & Trib series on opioid epidemic

The series, "CROSSROADS OF CRISIS: Southern Indiana courts, jails forced to respond to opioid epidemic," by Elizabeth DePompei, has been appearing in the New Albany/Jeffersonville News & Tribune. Here is the schedule:

Here is the long April 22nd story, headed "Can jails and judges be a part of the solution?." A sample:
The rise of heroin use across Southern Indiana and the rest of the country has made the revolving door between addiction and the criminal justice system rotate even faster, leaving courts overburdened and jails overcrowded. Despite efforts to address the epidemic from inside the system, many of the people being helped continue to live in a cycle of addiction.

It’s not the kind of problem the system was built for, but those in a position to make a difference say they’re confronting it anyway.

Clark County Circuit Court No. 2 Judge Brad Jacobs saw 1,200 new felony cases filed in his court last year. He estimates that roughly half his caseload involves heroin in one way or another. And it’s not uncommon for Jacobs to see the same person on new charges within the month.

“It seems like the people who are on heroin, who get arrested for heroin, are coming back more frequently,” Jacobs said. “They just pick up another case and another case, and so they’re clogging up the system more than they’re moving through.”
In Floyd County, Superior Court Judge Susan Orth sees cases related to opioid abuse almost daily, whether it’s a possession case or a theft somehow connected to drugs.

“We’ll have days when people are actually actively high standing in front of us,” Orth said. * * *

This story is the third in a five-part series examining the opioid epidemic in Clark and Floyd County.

NEXT SATURDAY: Businesses are losing billions as their employees battle substance abuse. Also, meet the owner of a local restaurant who is giving recovering addicts a second chance.

Posted by Marcia Oddi on Monday, April 24, 2017
Posted to Indiana Government

Vacancy On Supreme Court 2017 - "Supreme Court set to be all-white, all-GOP appointed"

That is the headline to the AP's Rick Callahan's story this weekend. Some quotes:

Indiana’s next state Supreme Court justice will complete the remaking of the bench, as all five justices will be white and will have been appointed since 2010 by Republican governors.

The state’s Judicial Nominating Commission on Wednesday chose three finalists to succeed Justice Robert Rucker, who is retiring May 12. Once the names of the finalists — Judges Vicki Carmichael, Christopher Goff and Matthew Kincaid — are sent to Gov. Eric Holcomb, he’ll have 60 days in which to choose one to succeed Rucker.

Here is some background on the finalists, Rucker and the court. * * *

When Rucker’s replacement is named, all five members of the state’s highest court will have been appointed by Republican governors. Indiana University law professor Joel Schumm said that’s the first time that’s happened since Indiana voters approved a constitutional amendment in 1970 creating a commission to pick finalists for the governor to choose from. He said he doesn’t think the change will be particularly significant because Indiana justices have a long tradition of not being politically ideological in their rulings. The governor’s pick will join Rush, Justice Steven David, Justice Mark Massa and Justice Geoffrey Slaughter on the court. Given the ages of the justices, Schumm says they could be together on the court for about 15 years.

Posted by Marcia Oddi on Monday, April 24, 2017
Posted to Vacancy on Supreme Court - 2017

Ind. Decisions - More on: Attorney suspended in 2008 reinstated after lengthy process

Updating this ILB post from April 6th, Mark Wilson of the Evansville Courier & Press has a lengthy, definitely worth-reading "story behind the story" today, headed "10 years after meth addiction, attorney's license reinstated." Just a few quotes:

Attorney Scott Danks represented her during the various stages of the disciplinary process and at the hearing to reinstate her license.

"Trying her case was like watching a movie with a really happy ending. I had to fight back tears the whole time," Danks said. "Sometimes we make mistakes and get knocked off our saddle and are too bruised to get back up. Teresa not only got back on her saddle but won the Triple Crown. She has become a leader in the recovery community, has married and has two beautiful children and has her career back."

It started with her own recovery. McKeethen recalled that her own involvement in drugs was gradual. Growing up in what she described as an upper-middle class family with no exposure to alcohol or drugs. Through her first husband, she became acquainted with a different lifestyle and eventually began to meet other professionals who used drugs. Somehow, it made it seem more acceptable at the time.

During the hearing to reinstate her license in February, McKeethen described it: "They were professional, successful people, so in my mind I justified it a little bit; it made me feel like it was okay because I was doing it with them. It is crazy thinking, I know."

Vanderburgh Superior Court Judge Wayne Trockman, who oversees many of the county's treatment courts, said McKeethen has become a sought-after mentor.

"I think this is an example of the fact that drug or alcohol addiction can hit anyone at anytime," he said.

Posted by Marcia Oddi on Monday, April 24, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Courts - List of judicial vacancies and application forms

Pursuant to Article 5, Section 18 of the Indiana Constitution and Indiana Code, the Governor of the State of Indiana has the authority to fill judicial vacancies as they occur in the state.

Governor Holcomb has a special page for posting current judicial vacancies. Access it here.

Posted by Marcia Oddi on Monday, April 24, 2017
Posted to Indiana Courts

Law - Finer points of storage of police body cam video

Brian Sharp reports in a detailed story at the Rochester NY Democrat & Chronicle that:

Roll out of the city's $1.7 million program began last August, starting with a few dozen cameras being issued to members of the Clinton Section in the city's northeast neighborhoods. Cameras are to be worn by all patrol officers, sergeants and lieutenants. Perkowski is one of three people RPD has assigned to the manage the camera program full-time.

The voluminous video being generated is stored onsite, and is not a concern — at least not yet. But it is highlighting the need for clarity about how long digital files must be kept for evidentiary or other purposes. The department has 11 different retention periods, depending on the incident involved, ranging from months, to decades; if not indefinitely.

But, Perkowski explained, "There's not a lot of statutes on how long we should be keeping digital evidence versus paper evidence."

If you are wondering about the city's surveillance or blue-light cameras, those operate on a 30-day loop with video only retained if it is specifically extracted and saved by request.

A model policy for body cameras, issued by the New York state Municipal Police Training Council, sets minimum retention periods at six months, regardless of evidentiary worth. The policy also suggests that recordings might be kept for officer training, something Perkowski expressed unease over given privacy expectations of citizens involved.

When it comes to access, the Monroe County District Attorney can pull and copy files remotely from RPD's files. Other requests, including those from parole, probation and the public, are answered upon request. Most of the public requests have come from insurance companies looking for footage of motor vehicle accidents, Perkowski said. But the total number of requests has been less than anticipated, so far.

"We deal with, on average, five to 10 video requests a week. That has gone up substantially," Perkowski said. "We were at one or two the beginning of March. I only see that going up."

Over at the DA's office, the video has been helpful in removing ambiguity from some situations.

"There is no gray area. It's black and white, as to what a person said, or how a person looked," Duckles said. "It's adding clarity to the (police and witness) reports."

Video also allows officers to refresh their own memories in preparing for trial, he said, calling it "an invaluable tool." The Leadership Conference on Civil and Human Rights has advised that officer recollection and body-camera footage be kept as independent records, and certainly early on so that reports do not reflect what the cameras recorded but what the officer experienced.

As for the effect on cases, it is still too soon to tell, officials said. Courts have had to adjust rules to allow the body cameras into the courtrooms but otherwise have been able to accommodate with minor adjustments.

Here are some recent earlier ILB posts on body cams, from March 15th and March 23rd.

Posted by Marcia Oddi on Monday, April 24, 2017
Posted to General Law Related

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 (1):

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

NFP juvenile and criminal decisions today (6):

Willie Dixon v. State of Indiana (mem. dec.)

Frank E. Suggs, Jr. v. State of Indiana (mem. dec.)

David Lyons v. State of Indiana (mem. dec.)

Dennis James Draper, III v. State of Indiana (mem. dec.)

Mark D. Speer v. State of Indiana (mem. dec.)

William G. Culler v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, April 24, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Transfer list for week ending April 21, 2017

Here is the Clerk's transfer list for the week ending Friday, April 21, 2017. It is one page (and 19 cases) long.

One transfer was granted last week:

Posted by Marcia Oddi on Monday, April 24, 2017
Posted to Indiana Transfer Lists

Ind. Courts - "Tax-case ruling to have far-reaching consequences"

The Fort Wayne Journal Gazette "big box/dark box" editorial today:

You can be forgiven if the tax bill for the Kokomo Kohl's store isn't foremost in your mind these days. But arguments before the Indiana Supreme Court Thursday could have a major effect on your pocketbook, your neighborhood schools, your library and local government services.

If the state's highest court declines to review and leaves in place an Indiana Tax Court ruling, the state could see a loss of $3.5 billion in assessed property value.

About $50 million in property tax liabilities could be shifted from commercial property owners, and nearly $70 million in local revenues will go uncollected.

You'll pay more if you haven't hit the property tax cap; you'll lose services even if you have. And some commercial property owners stand to reap nearly $121 million in tax savings.

Howard County Assessor v. Kohl's is much more than a disagreement between a county assessor and a single retailer. It represents an industry-wide push by major retailers to cut their tax bills by arguing their stores should be assessed as if they were vacant.

The implications go beyond the so-called “big box” stores like Kohl's, Meijer and CVS. Allowing major retailers to use an assessment methodology – with vacant “dark stores” for a sales comparison – could extend to thousands of other properties – factories, supermarkets, shopping malls and more.

“It's the No. 1 issue assessors are watching,” said Stacey O'Day, Allen County assessor and vice president of the Indiana County Assessors Association. “All of the sudden we have a particular property class that's been allowed to compare itself to vacant, abandoned properties. If one property class is allowed to do this, this could change the way we're looking at all properties.”

Also at stake are infrastructure projects supported by revenue from tax-increment financing districts – projectsundertaken with the expectation of all taxpayers paying their fair share, not paying tax bills based on assessments reduced by as much as 45 percent.

“It carries with it the potential of unraveling the whole system,” said Fort Wayne attorney Mark GiaQuinta, who will argue for a review on behalf of Howard County, the Association of Indiana Counties, county assessors and other interested parties.

The “system” is one the Indiana Supreme Court itself put in place with the St. John case in 1998, which declared the state's assessment procedures unconstitutional.

It called for assessments based on market value, so property owners know that the value of their homes and other property is based on sales of similar properties.

But recent tax court decisions involving big-box stores contradict that ruling in allowing sales comparisons for vacant buildings.

“The (Howard County) decision is one of several from the Tax Court which has redefined the market value-in-use standard to the detriment of each county in the State of Indiana,” argues a friend-of-the-court brief filed by GiaQuinta and attorney Sarah L. Schreiber.

The ruling “violates the spirit of the landmark valuation standard set forth by this Court in Tax Commissioners v. Town of St. John,” they write.

Since the Supreme Court's 1998 decision, Hoosiers have benefited from tax-assessment procedures meeting the court's call for a system that is “substantially uniform and equal based on property wealth.”

It is more fair; it is more transparent. It now hangs in the balance.

Posted by Marcia Oddi on Monday, April 24, 2017
Posted to Ind. Tax Ct. Decisions | Indiana Courts | Indiana Government

Ind. Decisions - Upcoming oral arguments this week and next

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

Thursday, April 27

Next week's oral arguments before the Supreme Court (week of 5/1/17):

Tuesday, May 2

Webcasts of Supreme Court oral arguments are available here.


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

Monday, April 24

Wednesday, April 26

Thursday, April 27

Next week's oral arguments before the Court of Appeals (week of 5/1/17):

Thursday, May 4

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 24, 2017
Posted to Upcoming Oral Arguments

Saturday, April 22, 2017

Ind. Courts - HB 1036, the Marion Superior Court judicial selection bill, goes to Gov.

A conference committee report was adopted yesterday by both houses, by a vote of 28-22 in the Senate and 69-30 in the House.

Here is the final, enrolled version, which will go to the governor.

But to better understand what was adopted, here is the conference committee report. The highlighted portions of the digest show the changes made to the version that passed the Senate.

Posted by Marcia Oddi on Saturday, April 22, 2017
Posted to Indiana Courts

Friday, April 21, 2017

Ind. Decisions - Supreme Court decides one today

In Corey Middleton v. State of Indiana, involving a petition for post-conviction relief alleging several claims of
ineffective assistance of trial counsel, the Court writes in a 2-page per curium opinion:

[W]e grant transfer and summarily affirm the Court of Appeals opinion [ILB: available here] pursuant to Indiana Appellate Rule 58(A), with the exception of its misstatement of Strickland’s prejudice standard.

Posted by Marcia Oddi on Friday, April 21, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - No Ind. federal or state appellate opinions posted again today

It looks like nothing since the 19th...

Posted by Marcia Oddi on Friday, April 21, 2017
Posted to Ind. (7th Cir.) Decisions

Vacancy On Supreme Court 2017 - More news coverage

Zoie Richey of The Statehouse File writes:

The Judicial Nominating Commission has selected three nominees to fill the Indiana Supreme Court justice vacancy.

Justice Robert Rucker is retiring on May 12 after serving for 26 years.

The commission narrowed down the field from 21 applicants to the final three: Vicki Carmichael, Christopher Goff and Matthew Kincaid.

“I think all three of the finalists are very well qualified. The governor can’t go wrong in selecting any one of the three,” said Joel Schumm, clinical professor of law at Indiana University Robert H. McKinney School of Law. “They have distinguished backgrounds as trial judges and as lawyers before that.”

Schumm sat in on the finalist interviews, and said the process allowed people to learn a lot about the court system.

"Judge Vicki Carmichael closer than ever to dream job: Clark County judge a finalist for Indiana Supreme Court" is the headline to Elizabeth DePompei's story today in the Clark County News & Tribune. Some quotes (the story also has a great photo):
JEFFERSONVILLE — This isn't the first time Clark County Circuit Court No. 4 Judge Vicki Carmichael has vied for a seat on the Indiana Supreme Court, but as one of three finalists, it's the closest she's ever been to realizing her dream.

"It's like wow, OK, this could really happen," Carmichael said by phone Thursday morning.

The day before, Carmichael, 54, sat in front of a seven-person Judicial Nominating Commission and made her case for why she should become the next justice for the state's highest court. She is one of 21 people who applied last month.

The pool of candidates was whittled down to 11 and on Wednesday, three candidates were chosen. They are: Carmichael, Boone County Superior Court I Judge Matthew Kincaid and Wabash County Superior Court Judge Christopher Goff.

Carmichael applied for a vacancy in 2009 and again in 2016 when Justice Brent Dickson retired. She said this time, Chief Justice Loretta Rush asked her why she keeps coming back.

"And I said because this is what I really want. I want a seat at the table. I want to be able to affect the judiciary and the citizens of Indiana," she said.

The commission will submit a report to Gov. Eric Holcomb in the coming days. Holcomb then has 60 days to appoint one of the nominees. In this case, because all of the finalists are sitting trial court judges, Holcomb will also be tasked with appointing a replacement judge in that county. * * *

The Circuit Court No. 4 judge's seat is up for election in 2018. Carmichael, a Democrat, was first elected to the court in 2007 and she intends to run again if not selected for the Indiana Supreme Court.

But Carmichael is hoping to convince Holcomb, a Republican, that she is the right person for the job. She knows politics are a part of the equation, but she doesn't think it will be the deciding factor.

"I think the commission and the governor both will look at the best qualified candidate," she said. "I've long been an advocate for non-partisan judicial elections. I don't think politics should play a role in being a judge at any level, and so that's what I hope to convince the governor's office."

Instead, it's her philosophy that Carmichael hopes seals the deal. The Bloomington native described herself as fair, impartial and unbiased.

"I'm not an activist judge where I try to go create new law and make new decisions that are going to change the way we've done things forever" she said.

"... Our role as judges, even at the trial court level, is to look at the facts before us, to look at the law that applies to that and make a decision. And it's not to create new law, it's not to create new precedent. We have to look at what was decided before and my philosophy has always been if somebody has had this issue before, let's look at how it was decided."

Carmichael said she expects a call from the governor's office in the next few days. Until then, and until Holcomb makes his choice, she and the other candidates are in a welcomed state of limbo.

"I am honored to be part of the three names going to the governor," she said.

Posted by Marcia Oddi on Friday, April 21, 2017
Posted to Vacancy on Supreme Court - 2017

Thursday, April 20, 2017

Ind. Decisions - No Ind. federal or state appellate opinions posted today

Nada.

Posted by Marcia Oddi on Thursday, April 20, 2017
Posted to Ind. (7th Cir.) Decisions | Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Decisions

Ind. Gov't. - Update on: List of enrolled acts received by Gov. Holcomb

The Governor's Bill Watch page shows a number of new enrolled acts have been delivered and await his action.

Among them is HEA 1369:

Unnecessary, unused law reports. Requires every state agency to compile and report to the legislative council a list of all state laws administered by the state agency that the state agency considers to be in need of change because the laws are no longer necessary or used.
ILB: I wonder if this includes laws made unconstitutional by various federal court rulings that remain on the books?

Posted by Marcia Oddi on Thursday, April 20, 2017
Posted to Indiana Government

Environment - The importance of US EPA and IDEM

"East Chicago residents lay out demands ahead of visit by EPA head Scott Pruitt" isd the headline to this lengthy story yesterday in the NWI Times (via IED) reported by Sarah Reese.

A later story, by Sarah Reese and Lauren Cross, is headed "UPDATE: EPA's Pruitt visits East Chicago; agency denies regional office closure." It begins [ILB emphasis added]:

EAST CHICAGO — EPA Administrator Scott Pruitt’s visit Wednesday to the city’s contaminated Superfund site was marked with rallying cries from protesters denouncing proposed budget cuts under President Donald Trump’s administration and demanding better protections from polluted air, dirt and drinking water.

But Pruitt said he hoped his visit to East Chicago’s USS Lead Superfund site — his first to any Superfund site in the country — would be the first step of many in “restoring confidence” in a community grappling with a legacy of toxic industry.

“Please know that it is the EPA’s objection, my objective as the administrator of the EPA, to come in and make sure people’s health is protected here in East Chicago, and that they can have the confidence that their land, their health is going to be secured for the long term,” Pruitt said during a brief media statement outside of the former Carrie Gosch Elementary School — shuttered last summer amid fears of lead contamination.

The U.S. Environmental Protection Agency is “committed to doing that … in a very efficient and effective way,” Pruitt said.

Pruitt did not offer any details as to how EPA’s federal headquarters would restore such confidence during his 90-second speech, after which he refused to take questions from reporters.
The briefing, held inside the elementary school gates, was closed to the general public, and reporters were required to RSVP ahead of time or show proper identification to enter.

From the Fort Wayne Journal Gazette's editorial yesterday:
Thanks to Indiana Gov. Eric Holcomb and U.S. Sens. Joe Donnelly and Todd Young, the environmental woes of East Chicago residents are getting the heightened attention they deserve.

The site of a former lead-smelting plant was declared a federal Superfund cleanup project in 2009, but last year the government discovered that lead and arsenic poisoning were still imperiling hundreds of nearby residents. Holcomb declared the area an emergency site and earlier this year offered state help in relocating residents.

Thursday, U.S. Environmental Protection Agency Administrator Scott Pruitt is scheduled to visit, and Housing and Urban Development Secretary Ben Carson has accepted an invitation from Donnelly to visit the site, as well.

East Chicago is also dealing with elevated lead levels in its water related to aging lead pipelines.

The northwest Indiana city's problems are vivid reminders of why the state's anti-pollution watchdog, the Indiana Department of Environmental Management, needs to be robustly funded and staffed.

Environmentalists have long expressed concern that IDEM's staff and budget are inadequate to its task. According to the Hoosier Environmental Council, staffing levels and appropriations for the agency have shrunk by 17 percent over the past decade.

Now, as the Trump administration prepares to make deep cuts in the EPA's resources and regulatory authority, it's important that IDEM have adequate support.

Posted by Marcia Oddi on Thursday, April 20, 2017
Posted to Environment

Vacancy On Supreme Court 2017 - Press coverage of yesterday's JNC nominations [Updated]

"Three judges recommended to replace Rucker on Indiana Supreme Court" reports Dan Carden in this NWI Times story. Some quotes:

INDIANAPOLIS — Justice Robert Rucker, a Gary native, will be succeeded on the Indiana Supreme Court by a county judge hailing from either the northeast, central or southeast region of the state.

On Wednesday, the Indiana Judicial Nominating Commission unanimously recommended to Republican Gov. Eric Holcomb the three candidates it believes are best suited to serve on the five-member high court.

They are: Clark Circuit Judge Vicki Carmichael, 54, of Jeffersonville; Wabash Superior Judge Christopher Goff, 44, of Wabash; and Boone Superior Judge Matthew Kincaid, 46, of Lebanon.

Kincaid was a finalist last year for the Supreme Court seat that went to Justice Geoffrey Slaughter, a Crown Point native. Kincaid also is a law school graduate of Loyola University Chicago.

This year's other two finalists did not list any connections to Northwest Indiana in their applications.

"Boone County judge among 3 Indiana Supreme Court nominees" is the heading to this very brief Indianapolis Star story.

"Three Finalists Chosen For Supreme Court Opening" is the heading to Brandon Smith's WBOI NPR story.

"Carmichael selected as Indiana Supreme Court judge nominee" reports the Clark County News & Tribune.

"Kincaid among three finalists for Supreme Court seat" write Elizabeth Pearl for the Lebanon Reporter. The story begins:

For the second time in a little over a year, Boone County Superior Court I Judge Matthew Kincaid is one of the three finalists for a seat on the Indiana Supreme Court.

Kincaid, along with Wabash County Superior Court Judge Christopher Goff and Clark County Circuit Court Judge Vicki Carmichael were chosen from 11 candidates by a Judicial Nominating Commission. The commission will forward the final three candidates' names to Gov. Eric Holcomb, who will have 60 days to make an official appointment for the seat.

Kincaid, who also made it to the final three in March 2016, said the consideration is an honor.

[Updated at 10:55 am] "Rep. Washburne not chosen as Indiana Supreme Court nominee," reports Kaitlin L Lange in a story for the Evansville Courier & Press.

Posted by Marcia Oddi on Thursday, April 20, 2017
Posted to Vacancy on Supreme Court - 2017

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.

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.

This evening the Judicial Nominating Commission has announced it will be submitting the following list of three nominees to Governor Holcomb:

Posted by Marcia Oddi on Wednesday, April 19, 2017
Posted to Vacancy on Supreme Court - 2017

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.

Posted by Marcia Oddi on Wednesday, April 19, 2017
Posted to Vacancy on Supreme Court - 2017

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.

Posted by Marcia Oddi on Wednesday, April 19, 2017
Posted to Indiana Courts

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.

Posted by Marcia Oddi on Wednesday, April 19, 2017
Posted to Indiana Courts

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 ...

Posted by Marcia Oddi on Wednesday, April 19, 2017
Posted to Vacancy on Supreme Court - 2017

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

  • 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)
2:50 - Justice Rucker’s Civil Law Jurisprudence
  • 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)
3:35 - Break

3:45 - Conference Reunion

Chief 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​

Posted by Marcia Oddi on Wednesday, April 19, 2017
Posted to Indiana Courts

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

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

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.

Posted by Marcia Oddi on Wednesday, April 19, 2017
Posted to Vacancy on Supreme Court - 2017

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

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

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.

Posted by Marcia Oddi on Wednesday, April 19, 2017
Posted to Vacancy on Supreme Court - 2017

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.

Posted by Marcia Oddi on Wednesday, April 19, 2017
Posted to About the Indiana Law Blog | Vacancy on Supreme Court - 2017

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. * * *

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.

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:
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

Wendy Burnett v. State of Indiana

Philip R. Davis v. State of Indiana

NFP civil decisions today (5):

Madison County Board of Commissioners and Madison County Highway Department v. American Federation of State County and Municipal Employees Local 3609 (mem. dec.)

Jeffrey Lambert v. Jill Fox (mem. dec.)

Rohrman Automotive Group v. Paul Pratico and Joy DenHouter (mem. dec.)

Michael Fancis and Carmen Jay Francis v. EMC Mortgage, LLC, successor by merger to EMC Mortgage Corporation (mem. dec.)

In the Matter of A.A. (Minor Child) Child in Need of Services, C.A. v. Indiana Department of Child Services (mem. dec.)

NFP juvenile and criminal decisions today (8):

David Garden v. State of Indiana (mem. dec.)

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

Tony David Mitchell v. State of Indiana (mem. dec.)

Alicia Patrice Cleveland v. State of Indiana (mem. dec.)

Bryan Tate v. State of Indiana (mem. dec.)

Debra L. Myer v. Michael A. Myer (mem. dec.)

Darion Cook v. State of Indiana (mem. dec.)

Carlos D. Staten v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, April 19, 2017
Posted to Ind. App.Ct. Decisions

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

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

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.

Posted by Marcia Oddi on Wednesday, April 19, 2017
Posted to Vacancy on Supreme Court - 2017

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

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

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.

Posted by Marcia Oddi on Wednesday, April 19, 2017
Posted to Vacancy on Supreme Court - 2017

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

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

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.

Posted by Marcia Oddi on Wednesday, April 19, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Interviews for Supreme Court finalists begin at 9:00 this morning

Here is today's schedule:

After today's deliberation in executive session, the Commission will publicly vote to send three nominees to the Governor. The Governor has 60 days to select Indiana's next justice once the formal submission is provided by the Commission.

Posted by Marcia Oddi on Wednesday, April 19, 2017
Posted to Vacancy on Supreme Court - 2017

Tuesday, April 18, 2017

Vacancy On Supreme Court 2017 - Round 2: Report On Interview #6, Ms. Elizabeth C. Green

This is Prof. Joel Schumm's report on the 6th interview of Round 2 (and today's final interview)

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

In response to an opening question from Chief Justice Rush about she would deal with an issue of a litigant not being provided an interpreter, Ms. Green said she would begin with the Indiana Constitution and the importance of the open access. When asked about the “biggest learning curve,” Ms. Green said she has not dealt with criminal law or constitutional law since law school. She has “learned how to learn” throughout life and would continue to do so.

In response to a question from Mr. Berger about her opinion on the difference between the federal and Indiana summary judgment rule, Ms. Green said access to the Courts is essential, citing that Jarboe and Hughley guarantee the right to court when there is any doubt, which she believes “works just fine.”

In response to a question about replacing Justice Rucker, reading a description of him, Ms. Green said her letters of recommendation give insight into her as a person and attorney. She can be cognizant and aware of a person’s situation even if she has not been there herself. She cited examples of representing “the little guy” and discussed the importance of teaching empathy to her children.

In response to a question about supporting a legal position contrary to her beliefs, Ms. Green said she may sometimes think she does not have a winning case or may not agree with their course of conduct but does the best she can with the facts and law.

In response to a question about obstacles to justice, Ms. Green discussed the challenges of and for pro se litigants, noting the importance of a statewide assessment for ways to address it.

In response to Mr. Feighner’s question about the variety of legal issues the Court decided last year and ways she would contribute, Ms. Green said she would bring her experience and knowledge, remarking specifically on commercial cases. In response to a follow-up question about the differences between transactional and ligation practice, Ms. Green said a lot of her time is spent advising clients.

In response to a question from Mr. Berger about how she would weigh the interests of business or individuals under Article 1, Section 23, Ms. Green said she took Indiana constitutional law in law school with Justice Dickson and learned about Collins v. Day. She believes commercial courts help speed up litigation for businesses, but she does not believe businesses should be treated differently.

When asked by Chief Justice Rush when the standard of review should trump deciding cases on their merits, Ms. Green mentioned the importance of deferring to jury verdicts
.
In response to a question about opinions of Justice Rucker that have spoken to her, Ms. Green discussed the recent mortgage foreclosure case involving a veteran. Giving voice to the voiceless may not carry the day, but it is much easier to live with the decision if people know they were heard.

In response to a question about her preparation for the interview, Ms. Green said she had talked to a lot of different people and had read and reflected on cases and law review articles.

In response to a question about the most radical action she has taken, Ms. Green discussed studying abroad, which opened the door to a different style of teaching and learning.

In response to a question about what she would like the JNC to know that is not in her application, Ms. Green said her application discusses her involvement with the IndyBar Professionalism Committee. She noted how much the “five C’s” apply to her application for this position: commitment (to the law, justice, and the job), character (integrity, impartiality, humility), competency (wide range of experience), courtesy (the importance of how others are treated), and community involvement.

In response to a follow-up from Mr. Berger about Justice Scalia’s dissents, Ms. Green said a message could be lost in how it was presented, and she would not take the approach of Justice Scalia.

In response to a question about expanding the size of the Indiana Supreme Court, Ms. Green said she does not have a strong opinion either way. Increasing the size would bring more voices, which usually leads to a better result.

Posted by Marcia Oddi on Tuesday, April 18, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Round 2: Report On Interview #5, Hon. Maria D. Granger

This is Prof. Joel Schumm's report on the 5th interview of Round 2

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

In response to a question about what can be done with the low bar passage rate, Judge Granger said she would want to look at where there were gaps in education, which she has done through her participation in ICLEO.

In response to a question about free speech guarantees in the Indiana Constitution and the current climate on college campuses and elsewhere, Judge Granger said she would want to make sure any law had reverence to that important guarantee.

In response to a question from Mr. Berger about better understanding her as a person, Judge Granger discussed the importance of public service and her work with St. Elizabeth Catholic Charities, with which she became involved early as a lawyer.

In response to a question from Mr. Young, who read from a list of her extensive administrative/committee work, Judge Granger explained some of the important work that directly impacts citizens, discussing commercial courts, case management, and protecting information, among other things.

In response to a question about preparing for her interview, Judge Granger said her entire career has been preparation, noting the importance of innovation. She has read many cases to help prepare her for her work as judge and this interview.

In response to a question about a procedural rule she would change, Judge Granger mentioned the challenge for prosecutors who become judges and cannot hear criminal cases, forcing other judges (often not elected in that county) to hear cases.

In response to a question from Mr. Feighner about the “vanishing jury trial” in civil cases, Judge Granger said alternative dispute is important.

In response to a question from Mr. Yakym about a letter she had signed regarding funding for humanities, Judge Granger said she signed onto a letter because she believes it is important for people to understand more about each other.

In response to a question from Mr. Berger about demonstrating diversity on and outside the Court, Judge Granger emphasizes she does a lot of public speaking and a lot can be gleaned when people in a leadership role reach out to the community. Interaction increased public trust and understanding. Her recent speech focused on building consensus.

In response to a question from Chief Justice Rush about the possibility of changing the prohibition on citing unpublished/memorandum decisions, Judge Granger said she does not have a strong opinion but believes the law should be useable. If changing the rule further that, she supports it.

In response to a question about cameras in the courtroom, Judge Granger has seen footage from Kentucky courtrooms, which can spread through social media. Although transparency is important, televising proceedings could backfire.

When asked about mentors, Judge Granger cited another judge who is smart and prepared. What is “extra special” is the “level of kindness” he brings to cases.

In response to a question from Ms. Long about her core values, Judge Granger said she was raised by strong parents, told “actions speak louder than words.” She was one of only a few minority families in rural Indiana, which taught her not to get stuck on differences and the importance of relating to others.

The “most radical action” Judge Granger has taken might make her “sound boring.” She is a conscientious person and wants to plan actions before she takes them. She thinks running for office when she did was radical. She was not born in the community where she ran, but sheer will and belief drove the bold move. In response to a follow-up question about her campaign from Mr. Feighner, Judge Granger said she “started small,” talking to people about how the court could better help the community.

In response to a question about her work on American Law Institute (ALI), Judge Granger said the group is committed to clarifying and modernizing the law. She goes the annual meeting each year and noted the Court had cited the work of ALI, through the Restatements, many times.

Posted by Marcia Oddi on Tuesday, April 18, 2017
Posted to Vacancy on Supreme Court - 2017

Ind. Decisions - Still more on "Wis. Supreme Court to Rule on Predictive Algorithms Used in Sentencing"

Updating this July 14, 2016 ILB post, WIRED has an April 17th article by Jason Tashea headed "Courts Are Using AI to Sentence Criminals. That Must Stop Now." Some quotes:

Algorithms pervade our lives today, from music recommendations to credit scores to now, bail and sentencing decisions. But there is little oversight and transparency regarding how they work. Nowhere is this lack of oversight more stark than in the criminal justice system. Without proper safeguards, these tools risk eroding the rule of law and diminishing individual rights.

Currently, courts and corrections departments around the US use algorithms to determine a defendant’s “risk”, which ranges from the probability that an individual will commit another crime to the likelihood a defendant will appear for his or her court date. These algorithmic outputs inform decisions about bail, sentencing, and parole. Each tool aspires to improve on the accuracy of human decision-making that allows for a better allocation of finite resources.

Typically, government agencies do not write their own algorithms; they buy them from private businesses. This often means the algorithm is proprietary or “black boxed”, meaning only the owners, and to a limited degree the purchaser, can see how the software makes decisions. Currently, there is no federal law that sets standards or requires the inspection of these tools, the way the FDA does with new drugs.

This lack of transparency has real consequences. In the case of Wisconsin v. Loomis, defendant Eric Loomis was found guilty for his role in a drive-by shooting. During intake, Loomis answered a series of questions that were then entered into Compas, a risk-assessment tool developed by a privately held company and used by the Wisconsin Department of Corrections. The trial judge gave Loomis a long sentence partially because of the “high risk” score the defendant received from this black box risk-assessment tool. Loomis challenged his sentence, because he was not allowed to assess the algorithm. Last summer, the state supreme court ruled against Loomis, reasoning that knowledge of the algorithm’s output was a sufficient level of transparency. * * *

The legal community has never fully discussed the implications of algorithmic risk assessments. Now, attorneys and judges are grappling with the lack of oversight and impact of these tools after their proliferation.

Posted by Marcia Oddi on Tuesday, April 18, 2017
Posted to Ind. Sup.Ct. Decisions

Vacancy On Supreme Court 2017 - Round 2: Report On Interview #4, Mr. William N. Riley

This is Prof. Joel Schumm's report on the 4th interview of Round 2

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

When asked about why he applied, Mr. Riley mentioned comments made by the Chief Justice at a conference and that he has long known Judge Nation. Mr. Riley feels “called to serve.”

When asked about a holding he would defend, Mr. Riley cited a recent termination of parental rights case and that we should seek to preserve the rights of parents whenever possible.

In response to a question from Mr. Young about his role as a trial lawyer and how that translates to the work of a justice, Mr. Riley said whenever he approaches a case there is “fear” that he does not want to let the client down. He would bring the same fear that he does not want to let the citizens of Indiana or his colleague down.

In response to a question from Ms. Long about what he did to prepare for the interview, Mr. Riley said he reviewed the annual reports since 2000, tried to get a handle on the Court’s administrative role, started reading the Scalia book on interpreting texts, read the last 34 opinions of the Court, and read Appellate Rule 7(B) that he was asked about last interview. The most surprising thing he learned was that Indiana was about 74 judicial officer short of what it needs.

In response to a question from Ms. Kitchell about a procedural rule he would like to be changed, Mr. Riley said we could “borrow” initial disclosures from federal court, which could expedite discovery and reduce disputes.

In response to a question from Mr. Feighner about impressive letters of recommendation from adversaries, reading from one of them about Mr. Riley’s “genuine respect for the law and each person” he encounters in a case, Mr. Riley said the law is what holds our society together. Although his father was not a lawyer, he inherited his father’s respect of lawyers. Opposing counsel is doing their job, and there is no reason to be disagreeable. He calls many of them friends.

Mr. Yakym asked which of the 34 opinions Mr. Riley had read that stand out. Mr. Yakym discussed cases that deal with his practice, like the collateral source rule. He has not dealt with criminal cases since law school,

Mr. Berger read Article 1, Section 23, and asked how many occasions the General Assembly has violated that provision by special legislation. Mr. Riley said he would want to know how many times the issue had been brought to this Court and would want to consider those opinions. Mr. Riley would want to consider the text of that provision in bearing on what the legislature had done. He said he would not want to prejudge anything, if the issue comes before the Court.

In response to a question about the importance of stare decisis, Mr. Riley said stare decisis is especially important but sometimes the Court needs to overrule it, citing Brown v. Board overruling Plessy v. Ferguson.

In response to a question from Mr. Young about things Mr. Riley has done to promote diversity, Mr. Riley said he always wants to hire the best person for the job and always he looks at all applicants. He noted that he has mentored and worked with a lot of female associates in his firm.

In response to a question about his commitment to judicial restraint, Mr. Riley said it is not the position of judges to impose their views. Judges must apply what the law says and let the legislature correct it if there is an error.

In response to a question about his most radical action, Mr. Riley said he took up golf a year ago and wanted to have something to do with his son who is now fourteen.

In response to a question from Mr. Feighner about what clients who had lost a case would say about him, Mr. Riley said he helped them tell their story, which is cathartic.

Posted by Marcia Oddi on Tuesday, April 18, 2017
Posted to Vacancy on Supreme Court - 2017

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (2):

In Wanda Roberts, et al. v. Anthony W. Henson , a 19-page opinion, Judges Barnes writes:

Wanda and Ray Roberts, along with seventeen of their neighbors (collectively “the Appellants”), appeal the trial court’s grant of summary judgment in favor of Anthony Henson and the denial of their motion for summary judgment. We reverse and remand.

The restated issue before us is whether the trial court correctly concluded as a matter of law that a structure built by Henson in the Appellants’ neighborhood did not violate the neighborhood’s restrictive covenants. * * *

We reverse the grant of summary judgment in Henson’s favor with respect to the covenant provisions regarding story height and two-car garages and remand for further proceedings with respect to those provisions. However, we agree that, as a matter of law, Henson’s structure is not a “barn” or “pole barn” that is prohibited by the covenants.

In Luther T. Collins v. Metro Real Estate Services, LLC , a 20-page opinion, Judge Barnes writes:
Luther Collins challenges the trial court’s order finding an easement exists across Collins’s property for the benefit of adjacent property owned by Metro Real Estate Services, LLC (“Metro”). We affirm. * * *

[Issues] I. whether there is an easement by grant over Collins’s property; and II. whether there is an easement by implication over Collins’s property. * * *

The trial court did not abuse its discretion by concluding an easement exists for Metro’s benefit over Collins’s property. We affirm.

NFP civil decisions today (2):

HK v. SC (mem. dec.)

CHINS: SS v. Indiana Department of Child Services, et al. (mem. dec.)

NFP juvenile and criminal decisions today (3):

William D. Wyatt, Jr. v. State of Indiana (mem. dec.)

Lynn Kohne v. State of Indiana (mem. dec.)

Le Gia Hoang v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, April 18, 2017
Posted to Ind. App.Ct. Decisions

Vacancy On Supreme Court 2017 - Round 2: Report On Interview #3, Hon. Christopher M. Goff

This is Prof. Joel Schumm's report on the 3rd interview of Round 2

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

In response to an opening question about ways the Indiana Constitution is greater than the federal constitution, Judge Goff noted some of these could be hot button issues and discussed religion liberties (City Chapel) and commented that he sees more frequently things like search and seizure (Section 11) challenges.

Mr. Goff brought his family, whom Chief Justice Rush asked him to introduce. He said he has been married since he was 21, and she is his life partner. He noted how richly they had been blessed since then.

In response to a question about the greatest obstacles to justice, Judge Goff emphasized providing equal access to justice. He noted that supervision of low-level felonies, for example, had shifted from the state to county, which requires innovation. Confidence in the judicial could erode if we don’t ensure equal opportunities.

In response to a question from Mr. Feighner about his age of 45, about 10 years younger than his colleagues, and the long tenure, Judge Goff said he was not ready as a 22-year-old dad or 32-year-old judge, but when he finds himself at his weakest he reaches out for resources to get the job done. He could contribute on day one, remarking on his work on domestic violence and judicial education. He would work on writing good, clear opinions.

Judge Yakym read the preamble of the Indiana Constitution and asked if the judiciary was working to achieve those goals. Judge Goff emphasized the importance of county judges in addressing problems. Regarding public safety, he believes more needs to be done to extend or regionalize problem-solving courts.

In response to a question from Mr. Berger about the ability of the court to have diversity, specifically the Rooney rule, e which Judge Goff said he could not address. (Mr. Feighner later explained the rule but did not pose a question.)

Following up about the two U.S. Supreme Court justices, Judge Goff said he would first want to be Chris Goff, and remarked on his unique familial background. He will “never look like one of those guys,” which is important, but he adopted an African-American child when he was 22, and he can see discrimination in his treatment. Judge Goff was an African-American studies minor at Ball State and had planned to study in Tanzania but his wife decided they should instead get married. Although he comes from a place without much diversity, he believes it is important to get a broader perspective.

In response to a question about the low bar passage rate, after $100,000 in debt for many students, Judge Goff discussed his attendance of the 2015 AJEI in which Justice Massa presented about challenges to legal education and noted the importance of attracting better students to law school. He also discussed doing a better job promoting civility.

In response to a question from Ms. Long about the power and bounds of the judiciary, Judge Goff discussed the importance of unanimity in opinions and said he is most passionate about ways the judiciary can improve people’s lives and be a good ambassador.

When asked about a life lesson he hoped his children learned from him, Judge Goff said “jump in with both feet and don’t be afraid to try something.”

In response to a question from Mr. Feighner about his work as a judge in a rural county, Judge Goff emphasized the importance of the perspective of small towns, which have different needs. Most of Indiana looks like Wabash and not Indianapolis. If he knows he will have to house all his Level 6 felons in the county jail, he will need problem-solving courts.

In response to a question from Mr. Yakym about expanding the size of the Indiana Supreme Court (the Indiana Constitution allows it and neighboring states have seven justices), Judge Goff said more members give more voices and perspectives, although each may be diluted. Judge Goff said he sometimes gets tired of change and thinks five is probably the right size for Indiana and merit selection has worked well in selecting justices.

In response to a question about things that keeps him awake at night, Judge Goff said his mother doesn’t have health insurance. When deciding cases, he worries about how a supervised visit will work and other issues. He worries about the struggles people have, and that would not change if he was on the Indiana Supreme Court.

Chief Justice Rush asked which of the three cases on the docket for next week Judge Goff would want to write if he was on the Court, and he said tax is the area in which he has the least experience, and he would want to jump in and do that one.

Posted by Marcia Oddi on Tuesday, April 18, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Round 2: Report On Interview #2, Rep. Thomas W. Washburne

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

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

In response to a question from Chief Justice Rush about one case holding he would defend for the rest of his life, Rep. Washburne paused and said he was drawing a blank. Chief Justice Rush followed up, asking about a case that affects what he does as a legislator, he discussed the importance of medical malpractice cases as well as the ESPN cases dealing with university police forces.

In response to a question from Ms. Kitchell about one change he could make to the Indiana Constitution, Rep. Washburne said nothing jumps out as “defective” but that issues could be clarified.

When asked what Judge Dillin (for whom he clerked) would write in a letter of recommendation for him, Rep. Washburne said Judge Dillin cared about accessibility and was skilled at explaining the law. Rep. Washburne commented on his skill at explaining complex matters to non-lawyers - Judge Dillin’s opinions were short but informative.

In response to a question from Mr. Berger about replacing Justice Rucker, the only African-American on the Court, and his views of the two African-American justices on the U.S. Supreme Court, Rep. Washburne said he admired the “courage and challenge” of Justice Marshall but his judicial philosophy is similar to Justice Thomas.

In response to a question from Ms. Long about confronting a legal issue that conflicted with his personal beliefs, Rep. Washburne said as corporate counsel he is sometimes asked to handle matters differently than he might want to personally address them. When lawyers are working for someone, they need to accept that. In the context of government, we need to be loyal to our Constitution and statutes.

In response to a question from Chief Justice Rush about reviewing administrative decisions (mentioned federal Chevron deference), Rep. Washburne said agencies are executive branch officers and entitled to deference. When asked if more or less deference should be given, Rep. Washburne said when due process or constitutional rights are at stake deference is less appropriate. Rep. Washburne said many perceive that ALJs are too cozy with the agencies, a topic of hearings last year. He said the issue was postponed because there was a new administration, but the issue would come back.

When asked about the greatest obstacle to justice, Rep. Washburne said “people are people.” He said we cannot all be as magnificent as the buildings we occupy, and checks and balances are essential.

Mr. Feighner read from the recent Indiana Law Review survey article of types of cases heard by the Court last year and asked how Rep. Washburne would approach such a wide variety of issues, Rep. Washburne discussed the preparation of his background and said our system accounts for the inability of justices to be experts in all areas by requiring briefs.

In response to a question about the Indiana Constitutional provision that says penal laws should be founded on provisions of rehabilitation and not retribution, Rep. Washburne discussed the importance of HEA 1006, which helped bring more proportionate sentences, which included lower penalties for some drug offenses.

In response to a question about the diversity that will be lost with Justice Rucker’s retirement and how he viewed the Black Lives Matter movement, Rep. Washburne said “who could dispute” that black lives matter and applauds the tenacity of the movement. He may not agree with all their principles but hopes they will be more patient in waiting for some of the investigations. Even when he disagrees with activists, he applauds them.

When asked by Mr. Young about his last “random act of kindness,” he said he encouraged his daughter to give the food she took out of a restaurant to someone outside who said he was hungry. He emphasized the importance of treating people with kindness and respect.

Posted by Marcia Oddi on Tuesday, April 18, 2017
Posted to Vacancy on Supreme Court - 2017

Vacancy On Supreme Court 2017 - Round 2: Report On Interview #1, Hon. Vicki L. Carmichael

This is Prof. Joel Schumm's report on the 1st interview of Round 2

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

In response to the opening question from the Chief Justice, why does she want to be on the Indiana Supreme Court, Judge Carmichael said decisions are made that affect all of Indiana, and she wants a seat at the table. She explained the important role of the Court, including its opinions (often unanimous) and rule-making. She also discussed protecting criminal defendant’s rights, including the early appointment of counsel, which was discussed at the April 7 Indiana Law Review symposium at which she was a panelist.

In response to a question from Ms. Kitchell about the most radical position she has taken in her professional life, Judge Carmichael discussed a local ordinance regarding sex offenders that she believed was unconstitutional. She met with parties in chambers and asked them to fix it before holding a hearing. A new ordinance was enacted but ultimately found unconstitutional by the Court of Appeals.

In response to a question from Mr. Feighner about Clark County becoming a unified court, Judge Carmichael emphasized the utility of administration through one budget and ease in transferring cases between judges.

In response to a question from Mr. Berger about learning more about applicants as a “person” by understanding “what keeps them up at night,” Judge Carmichael responded cases involving children (CHINS and delinquency) and struggles with issues regarding heroin in her county.

In response to a question from Mr. Young about replacing Justice Rucker, who had “courage and fortitude to protect rights” of the voiceless, Judge Carmichael said she has compassion and brings that to the bench. She was a public defender for twelve years—working with the good, bad, and ugly. She believes it is important to help others and focus on the needs of litigants at the time.

In response to a question from Ms. Long about commitment to judicial restraint, Judge Carmichael said she will listen to disputes and make tough decisions — not overstepping her bounds. She noted the difficulty of balancing when one party is self-represented and other is represented by counsel.

When asked by Chief Justice Rush about overturning precedent, Judge Carmichael emphasized the importance of giving predictability and stability. She said new issues — like Internet solicitation of police officers pretending to be children — present challenges when society and technology changes.

In response to a question from Ms. Kitchell about changing the Constitution, Judge Carmichael said she did not believe the Constitution did need to be changed but some rules may need to be changed to make the criminal process and perhaps the civil process more fair.

In response to a question from Mr. Feighner about cases with political aspects (two are included on her application, one was a special judge appointment), she said she talked with the parties and they agreed she could be fair. She does not look at politics in making decisions; she believes judges should be apolitical and impartial. Following up about the case she would make the Governor (as a Democrat) if a finalist, Judge Carmichael said she does not view the JNC as political but instead committed to sending the best three applicants who won’t embarrass. Her background is fair, impartial, and unbiased. She believes judicial elections should be non-partisan. She is a person of integrity and character. She will bring gender and geographic diversity.

Mr. Yakym asked about a 2013 article in which Judge Carmichael said her least favorite part of the job was the administrative tasks, she explained the challenges of asking the Council for money and personnel issues. Even if her least favorite part of the job, she enjoys working with other judges and on committees and would bring that enthusiasm to the Court.

Mr. Berger asked about diversity, noting that the Court’s most recent roadshow argument was in Gary and the significance to students if the Court returned and was “all white people.” Judge Carmichael discussed looking beyond race, noting that she goes to a high school in Jeffersonville, sometimes with a white staff, and believes the students are receptive because she approaches all people with an open mind. She has been a featured speaker at the NAACP, where they see her as Judge Carmichael.

When asked about mentors, Judge Carmichael mentioned a prominent criminal defense attorney in Kentucky who taught her the importance of being prepared, and an “incredibly active” justice of the Kentucky Supreme Court for whom she clerked and who read cases every night.

In response to a question from Ms. Long about the role of the judicial branch, Judge Carmichael emphasized the importance of interpreting laws and not interfering with the legislative or executive branch.

Posted by Marcia Oddi on Tuesday, April 18, 2017
Posted to Vacancy on Supreme Court - 2017

Ind. Law - Golars Environmental Engineering hires former AG Zoeller as general counsel

From a news release:

INDIANAPOLIS, Ind., April 18, 2017 – Golars Environmental Engineering today announced the hiring of former two-term Indiana attorney general Greg Zoeller as general counsel for the Noblesville-based firm.

Golars is an environmental engineering and consulting firm providing integrated services in several disciplines, including site investigation, brownfield redevelopment, remediation services, contaminated sediment services, and waste management services.

Posted by Marcia Oddi on Tuesday, April 18, 2017
Posted to Indiana Law

Vacancy On Supreme Court 2017 - Waiting for the interviews to begin ...

Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law, demonstrates upgraded seating for reporters at today's interviews:

Posted by Marcia Oddi on Tuesday, April 18, 2017
Posted to Ind. Sup.Ct. Decisions

Vacancy On Supreme Court 2017 - Interviews for Supreme Court finalists begin at 9:30 this morning

Here is today's schedule:

As always, Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law, will be in the interview room reporting on each interview.

While you are waiting, you may want to review earlier ILB posts on the 2017 vacancy, and particularly this March 22nd post by Prof. Schumm headed "Vacancy On Supreme Court 2017 - Thoughts on the First Round."

Posted by Marcia Oddi on Tuesday, April 18, 2017
Posted to Vacancy on Supreme Court - 2017

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

Sunday, April 16, 2017

Ind. Gov't. - "Secretive investment group sought Indiana marijuana business" [Updated]

That is the headline to Tony Cook's lengthy Indianapolis Star story this Sunday. Today's story, which follows on a Sunday, March 28th story by reporter Cook that was headed "What smells about Indiana's vaping law? Could it be marijuana?" (ILB quotes here), begins:

Some of Indiana’s most influential lobbyists and political operatives joined a secretive investment company that several partners say has worked for years to cash in on the potential legalization of marijuana in Indiana.

The company, Hoosier Emerging Technologies, was created in late 2012 and is registered to Jim Purucker, one of the state's most prominent alcohol and gaming lobbyists. Two investors in the company told IndyStar the primary aim was to influence legislation that would enable it to secure a place in the lucrative marijuana market.

The people Purucker recruited to invest in the company are a veritable who’s-who of top Indiana powerbrokers — Democrats and Republicans — an IndyStar investigation has found. * * *

It does not appear the company and its investors broke any laws. Still, government accountability advocates worry that such a secretive alliance of insiders with undisclosed financial interests in legislation could undermine an already cynical public's faith in state government.

“It’s everything you don’t want in government," said Zachary Baiel, president of the Indiana Coalition for Open Government.

He and other government watchdogs said the situation reinforces their calls for more transparency and disclosure in state government. * * *

The company was such a closely held secret that leaders of the General Assembly said they were unaware of its existence, even as some with an interest in the company advocated for language that found its way into bills and, in some cases, into law.

That legislation included the state’s controversial vaping law that took effect last year. It effectively made a single Indiana security company, Lafayette-based Mulhaupt’s Inc., the sole gatekeeper of the vaping industry. The regulatory framework established in the vaping law could eventually be used if marijuana was legalized in Indiana, according to two investors who requested anonymity. * * *

The involvement of so many Statehouse influencers made it difficult for some opponents of the vaping legislation to find representation at the Statehouse, said Evan McMahon, whose group Hoosier Vapers fought against the legislation, but was unaware of Hoosier Emerging Technologies until recently.

"In 2015, when this first came up, we tried to find a lobbyist to represent our industry and every single person we talked to said they had a conflict," he said.

At that time, McMahon said, he did not know there was what he described as "a shadow cabal working together for years."

Re the vaping law, from near the end of the lengthy story (ILB emphasis added):
Lawmakers are now in the midst of overhauling that law. Senate Bill 1 would get rid of the security firm requirements and other portions of the law that a federal court found to be an unconstitutional barrier to interstate trade.

The House and Senate passed slightly different versions of the bill and must work out their differences before the 2017 legislative session ends Friday.

But fixing the vaping law is only the beginning of the work lawmakers need to do if they want to restore public faith in the General Assembly, said Julia Vaughn, policy director for Common Cause Indiana, a government accountability group.

"We are at a point in time when the public is cynical, and things like this confirms their belief that there is a small group of insiders who inflict their will on the General Assembly and usually with a profit motive behind it," she said. "This is another example of why we need sweeping reform."

The secretive nature of the company was enabled in part because of what some open government experts say is a gap in Indiana's ethics rules. Lobbyists in Indiana do not have to disclose which lawmakers they lobby or any of their communications with those lawmakers. In fact, they are only required to list the general topic of their lobbying, not the specific piece of legislation they are trying to influence.

At least 13 other states require lobbyists to disclose more specific information about their activities, according to the Sunlight Foundation, a Washington, D.C.-based nonprofit group that advocates for transparency in government.

Lawmakers had an opportunity earlier this year to make interactions between lobbyists and lawmakers more transparent, but took a pass.

Senate Bill 289, authored by Sen. Mike Delph, R-Carmel, would have required lobbyists to keep a log of all communication with lawmakers, making their emails, texts and social media correspondence a matter of public record. The bill also would have made it illegal for lawmakers to accept gifts from lobbyists.

The measure never got a hearing.

"If the public needed another reason to have access to their legislator's e-mails, this would be one to add to the ever growing list," said Baiel, president the Indiana Coalition for Open Government. "Public policy should be made in the light of day and on the record. For posterity. If we cannot reconstruct how bills are made, how can we trust the outcomes of the legislation?"

ILB: Public access to legislators' emails with lobbyists was denied by our Supreme Court in its decision nearly a year ago in CAC v. Koch. See followup ILB posts here, here, and here.

[Updated at 1:24 PM] An April 12th tweet ("Wow. We can barely get emails here depending on the branch. In other states they get emails and texts easily.") by @nkellyatJG pointed to this April 8, 2017 story in the Wisconsin State Journal, which begins:

Tensions between Gov. Scott Walker and Assembly Speaker Robin Vos are evident in personal text messages between the two, newly released under Wisconsin’s open records law, in which they spar over the state’s next budget.

The texts were released by Walker’s office Friday. They came in response to a Wisconsin State Journal request for text messages between Walker and Vos relating to state business between March 29 and March 31.

See also this note from an August 12, 2015 ILB post:
BTW, from Wisconsin stories the ILB reported on earlier in this series, it appears that all communications on legislative drafts in Wisconsin are to be maintained in a drafting file by their legislative agency open to the public after the session.

Posted by Marcia Oddi on Sunday, April 16, 2017
Posted to GA and APRA | Indiana Government

Friday, April 14, 2017

Environment - Wild deer herds reported dwindling in Indiana; DNR bonus antlerless deer rule an issue

"Group forms to address Dubois County's dwindling deer herd" is the headline to this long story by Leann Burke in the Jasper Herald (here as republished in the Indiana Economic Digest). A few quotes:

HUNTINGBURG — Jason Messmer of Pike County remembers seeing 10 deer a day on his land prior to 2008. Now, he said, he barely sees one.

Messmer, who deer hunts in both Dubois and Pike counties, attributes the population drop to the epizootic hemorrhagic disease that hit the deer herd in 2008 and to the bonus antlerless deer the Indiana Department of Natural Resources allows hunters to kill each year. Messmer and several other hunters gathered Wednesday for the first Dubois County Deer Advisory Council meeting to voice their concerns about the shrinking deer population in the area.

“These (bonus antlerless deer quotas) are in my opinion out of this world high and need to be dropped,” Messmer said. * * *

The council is focusing on managing the deer herd through the bonus antlerless quotas that allow additional does above regular quotas to be killed during the hunting season. Under 2016 quotas, hunters were allowed to kill one antlered deer — or buck — throughout the entire hunting season, up to two antlerless deer during archery season and one antlerless deer during muzzleloader season. Hunters could kill up to three antlerless deer total over the entire hunting season. The bonus antlerless deer quota allows each hunter to kill additional does during the season, and the quota varies county to county. In 2016, each hunter with a Dubois County license was allowed an additional four does. The majority of attendees at the Dubois County Deer Advisory Council agreed that an additional four is too many. According to an online survey the council is running and an in-person vote at the meeting last night, 141 of the 151 respondents favored lowering the bonus antlerless deer quota, with the majority of those in favor of only one bonus deer allowed. * * *

Indiana Whitetail Deer Herd Management got the idea for the county councils from Wisconsin. Barton said Wisconsin has had an advisory council in each county for years and has seen success. The organization got permission to set up a pilot program in Indiana this year. So far, the group has set up 10 county deer advisory councils.

Gary Walters with Indiana Whitetail Deer Herd Management encouraged attendees of Wednesday’s meeting to contact legislators and share their opinion on county deer advisory councils. Right now, he said, IWDHM is fighting for the councils to exist and for the DNR to take input from the councils seriously.

“Whether you like it or not,” he said, “this is a political problem.”

Posted by Marcia Oddi on Friday, April 14, 2017
Posted to Environment

Ind. Law - "Hammond police nab man after introducing new technology"

Sarah Reese reported yesterday in the NWI Times:

HAMMOND — Police began using a new technology intended to target possible criminal activity and within an hour arrested a man carrying a loaded gun on drug charges, according to a news release.

Two Hammond police cars equipped with license plate readers hit the streets Friday. LPRs scan passing license plates and alert officers of any potential violations.

The car-mounted LPRs are the first to arrive in Hammond, which plans to install more than 30 additional pole-mounted cameras later this spring, officials said.

On Friday, within the first hour on the road, an LPRs automated system alerted police that the registered owner of a vehicle near them had a suspended driver's license, according to a statement from Mayor Thomas McDermott Jr.

Police completed a manual check, confirming the information, and noticed the description of the owner matched the driver of the vehicle. Police stopped the vehicle in the 6500 block of Indianapolis Boulevard.

Police smelled marijuana after approaching the driver and saw a bag of suspected marijuana near him, the release said.

The driver was arrested, and police found a loaded pistol in his waistband with an extended magazine with 22 rounds of ammunition and laser-sighting device, officials said.

Here is a 2012 NWI Times story about when Portage got the same equipment.

Posted by Marcia Oddi on Friday, April 14, 2017
Posted to Indiana Law

Ind. Gov't. - New PAC opinion on access to county records on a law firm engagement; how would the $20/hour fee have impacted this request?

Here are quotes from a 2-page opinion of the Public Access Counselor from March 27, 2017:

Killbuck Concerned Citizens Association (“KCCA”) since 2006 has made multiple requests to the Board for documentation regarding the representation of the law firm now known as Bingham, Greenebaum, Doll, LLP (“Firm”). The most recent request dated November 17, 2016 requests the following: “Any and all meeting minutes in which discussion and/or approval of the retention of the firm dated prior to December 31, 2006 with original signatures of parties approving.”

This search for documentation of the Firm’s retention extends back to 2006. It culminated with a May 24, 2016 response from The Board’s attorney stating, “I have closely reviewed all Commissioners minutes from 2006 until this date, and find no reference to the authorization of hiring [Firm].” The Complainant therefore contends the retention of the Firm was unlawful and that minutes would have to exist memorializing a final action of the Board authorization the retention. * * *

Engagement letters between public agencies and law firms are typical documents which exist when a contractual agreement for representation is executed. Nothing in the law mandates this documentation, however, it is best practice and more often than not, it is indeed created. Likewise, when a public agency hires a firm, final action in the form of a vote at a public meeting is standard practice. It stands to reason documents exist memorializing this transaction and therefore I share the Complainant’s skepticism no such record was ever created and a large firm would commence representation without an engagement letter.

It appears as if the Board’s current county counsel has searched the Board’s meeting minute archives and can find no indication of such an authorization. The Board did invite the Complainants to manually inspect the meeting minutes for themselves, which is best practice when a request is generally too broad. The Board’s argument the original requests lacked reasonable particularity is well received. Some of the requests made since 2006 are merely requests for information and not a specific document. Based on the facts provided, however, the Complainants have provided sufficient information to pinpoint the document(s) they are seeking: an authorization from the Board to hire a law Firm (an engagement letter, fee agreement, contract etc.); and/or a meeting minute from 2006 indicating final action was taken by the Board to procure the Firm’s services. These are typical documents housed by public agencies in the ordinary course of business. Therefore, I am not compelled by the reasonable particularity argument in this case.

To the extent the Complainant asks this Office to find a violation based upon the non-existence of a record, I cannot do so. There is an inference documentation should exist, however, the law does not allow this Office to mandate the creation of this kind of record. Similarly, there is an inference a meeting minute should reflect a vote to hire the Firm on a fee-for-services arrangement. But again, if such an action was taken to retain the firm by a single Board member or another county attorney (as the Complainants suggest), such matters of procurement are beyond the scope of this Office’s jurisdiction. If authorization documentation does exist, poor record keeping and retention is not an issue unique to this situation.

One step that has not been taken to my knowledge, however, is for either party to ask the Firm for its records of engagement, invoices, or fee arrangements likely housed in its own files in-house. Copies of these documents would be public record albeit maintained by a third-party private contractor. Knightstown Banner v. Town of Knightstown, 838 N.E.2d 1127 (Ind. Ct. App. 2005). Based on prior experience, I am confident this particular Firm is well-versed in good record keeping principles and accounting best practices during the course of representing public entities.

RECOMMENDATIONS. To the extent that the Madison County Board of Commissioners truly does not have any documentation from the 2006 retention of the Firm in its files, it should request those records from that Firm and provide them to the Complainant within a reasonable time.

ILB: So this group has been trying since 2006 to obtain a public record, the contract between the Board of Commissioners and its outside law firm, or evidence of the contract's approval in the Board's minutes. The Board's counsel claims no such documents can be found. "The Complainant therefore contends the retention of the Firm was unlawful and that minutes would have to exist memorializing a final action of the Board authorization the retention." The PAC concludes that the Board: "should request those records from that Firm and provide them to the Complainant within a reasonable time."

My thought as I read this account of a very reasonable request for public records, that has been outstanding since 2006 and remains unfulfilled: How much would the concerned citizens group have been billed, at the rate of $20 per hour, to finally secure these engagement records?

Posted by Marcia Oddi on Friday, April 14, 2017
Posted to Indiana Government

Thursday, April 13, 2017

Ind. Gov't. - List of enrolled acts received by Gov. Holcomb

According to a news release from the Gov.'s office late this afternoon, the Governor received 44 bills today, and signed them all. From the release:

Governor Holcomb signed 44 bills today. Here are some quick facts about the final passage votes for these bills in both chambers:

· Unanimous – 27
· One vote against – 4
· Two votes against – 2
· Three votes against – 1
· Four votes against -2
· Five votes against – 1
· More than five votes against - 7

The governor offered the following statement regarding his bill signings today and progress this legislative session:

“More than half of the bills I signed today earned unanimous support by our state lawmakers. I am proud of the Hoosier spirit of collaboration and civility we’ve seen so far—as well as our combined focus on the most important issues facing our state.”
Here is Gov. Holcomb's "Bill Watch" page for 2017. Notice that in addition to the bills received today, the Gov. received a number of bills earlier this month, another group in late March, and two in February.

All the bills the Governor has received thus far this session have been signed into law by the Governor, none are shown as having been received but still awaiting his action, and none have been vetoed.

Note that the bill numbers on the "Bill Watch" page are live links to each bill's page on the General Assembly's site.

Remember that it may take a number of days after a bill has been passed by the General Assembly for it to be processed and delivered to the Governor's office.

Posted by Marcia Oddi on Thursday, April 13, 2017
Posted to Indiana Government

Ind. Decisions - "Indiana Supreme Court rejects AK Steel appeal"

Among the cases denied transfer, as reported on the April 7th transfer list, was Spencer County Assessor v. AK Steel Corporation, where transfer was denied 4-0 with J.Slaughter not participating. This is an Oct. 5, 2016 Tax Court ruling by Sr. Judge Fisher (ILB summary here, 2nd case).

Don Steen of the Spencer County Journal Democrat reports today on the denial. Some quotes:

SPENCER COUNTY – Spencer County saw a considerable victory last week in its legal battle with AK Steel over property-tax assessments.

The Indiana Supreme Court has rejected the company’s appeal of an Oct. 5 ruling from the Indiana Tax Court, which ruled in the county’s favor.

The years-long case centers on AK Steel’s 2008 attempt to claim a Pool 5 deduction, which allows company’s operating a blast furnace in Indiana to substantially reduce their assessed values and overall tax bills.

The county rejected this claim, arguing that the Rockport facility does not house a blast furnace, nor one in the state and, as such, should not be entitled to such a deduction.

Last year’s decision was the latest in a long line of legal proceedings on this matter, and when the Indiana Supreme Court rejected AK Steel’s appeal in an order issued April 4, it meant the tax court’s ruling will likely stand. * * *

The company could appeal the decision to the U.S. Seventh Circuit Court of Appeals, [County attorney Jeff Lindsey cautioned]. * * *

Still, the decision was undeniably favorable to the county. Without a Pool 5 deduction, AK Steel’s property-tax assessments will be considerably higher than otherwise, yielding more tax revenue for local coffers.

Posted by Marcia Oddi on Thursday, April 13, 2017
Posted to Ind. Sup.Ct. Decisions | Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 1 NFP memorandum decision(s))

For publication opinions today (3):

In Wyatt Severance v. New Castle Community School Corporation a/k/a New Castle Career Center, and Turner Melton, a 13-page opinion, Judge Baker writes:

In 2013, Wyatt Severance and Turner Melton were both enrolled in a vocational education program operated by the New Castle Career Center, which is administered through the New Castle Community School Corporation (the “School”). A physical altercation between the two students resulted in a serious leg injury to Severance, who filed a civil complaint against the School, alleging negligence. The School moved for summary judgment on two grounds: first, that Severance was contributorily negligent in bringing about his injuries, thereby barring any recovery, and second, that the School did not breach its duty to Severance. During the summary judgment stage, Severance designated an expert affidavit, which the School moved to strike. The trial court granted the School’s motion to strike and the School’s motion for summary judgment. Finding that the trial court erred in granting the School’s motion to strike and that there are genuine issues of material fact as to whether the School breached its duty and whether Severance was contributorily negligent precluding summary judgment, we reverse and remand. * * *

Dr. Peterson’s affidavit relates to a dispositive issue in this case. Further, genuine issues of material fact exist as to whether the School breached its duty to protect Severance and whether Severance was contributorily negligent in a manner which proximately caused his injuries. The judgment of the trial court is reversed and remanded for further proceedings.

In Charles Cannon v. Kristy A. Caldwell , an 8-page opinion, Judge Crone writes:
Charles Cannon (“Father”) appeals the trial court’s order modifying his child support. Although Father’s notice of appeal was untimely, we conclude that an extraordinarily compelling reason exists to restore his forfeited right to appeal and decide his appeal based on the merits. In this case, the child support modification order is in clear violation of the Indiana Child Support Guidelines. This manifest injustice constitutes an extraordinarily compelling reason to restore Father’s right to appeal and requires the reversal of the child support modification order. Accordingly, we reverse and remand. * * *

Here, the scant record before us shows that Father receives SSI of $733 per month. However, the Indiana Child Support Guidelines specifically provide that means-tested public assistance programs, including SSI, are excluded from the definition of weekly gross income used to determine a parent’s child support obligation. Ind. Child Support Guideline 3(A)(1). “‘SSI is a federal social welfare program designed to assure that the recipient’s income is maintained at a level viewed by Congress as the minimum necessary for the subsistence of that individual.’” McGill v. McGill, 801 N.E.2d 1249, 1252 (Ind. Ct. App. 2004) (quoting Cox v. Cox, 654 N.E.2d 275, 277 (Ind. Ct. App. 1995)). “As a matter of law, SSI recipients lack the money or means to satisfy child support obligations.” Id. (citing Cox, 654 N.E.2d at 277); see also Ward v. Ward, 763 N.E.2d 480, 482 (Ind. Ct. App. 2002) (“[T]his court has consistently held that SSI recipients, as a matter of law, cannot be held in contempt for failure to comply with child support orders.”). Thus, the child support modification order setting Father’s child support at $35 per week is on its face in clear violation of the Child Support Guidelines. We conclude that this obvious injustice is an extraordinarily compelling reason to restore Father’s forfeited right to appeal and decide the appeal on the merits. Unless and until our supreme court further defines extraordinarily compelling reasons and we can discern its actual elements rather than merely looking at the result, we must conclude that a manifestly unjust result constitutes an extraordinarily compelling reason to reach the merits of an otherwise forfeited appeal.

As for the merits of Father’s appeal, we have already concluded that the child support modification order is in violation of the Indiana Child Support Guidelines. Accordingly, we reverse and remand for proceedings consistent with this opinion.

In S.M. v. State of Indiana , a 10-page opinion, Judge Mathias writes:
S.M., a teenaged girl, was adjudicated a delinquent child for helping H.J., a teenaged boy, steal Lashawn Rogers’s (“Rogers”) car. She appeals from the true finding in Marion Superior Court that she committed what would be Level 6 felony theft and Class A misdemeanor criminal trespass if done by an adult. Because the true finding was supported by sufficient evidence, we affirm. * * *

S.M. challenges only her identification by Rogers as the girl at the gas station on December 6, 2015. See Appellant’s Br. at 16, Appellee’s Br. at 7. Rogers had three distinct occasions to observe the girl: once as Rogers pulled into the gas station parking space and worried that the girl would ask her for money, once when she tripped outside the gas station and addressed the boy’s offer to help her, and finally when she saw the girl sitting in the passenger’s seat of her car as it backed out of the parking space and drove away. The impression produced by those observations was clear and distinct enough that Rogers, without prompting or suggestion by the State’s agents, was able to pick out S.M. from a collection of ten to twenty pictures showing two to three different teenaged girls. Rogers then identified S.M. at the delinquency hearing as the girl at the gas station. If believed, Rogers’s testimony established S.M.’s guilt beyond a reasonable doubt. We will not re-evaluate Rogers’s credibility on appeal. * * *

As the prosecutor repeated no fewer than four times in his 150-word closing argument, “This case is about whether you believe [Mrs.] Rogers or not.” Tr. p. 142. The trial court believed her, and we cannot say that no reasonable trier of fact could have done the same. Its judgment is therefore affirmed.

NFP civil decisions today (0):

NFP juvenile and criminal decisions today (1):

Mauricio D. Sharp v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, April 13, 2017
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - "States and Cities in Power Struggle Over Local Laws"

That is the headline of a long $$$ story today in the WSJ, reported by Jon Kamp and Joe Palazzolo, about a national move from state legislatures usurping local ordinances one by one (i.e. plastic bags, Airb&b regulation) to states adopting an "overriding policy." A few quotes:

States are stepping up a push to rein in the power of local governments to make laws.

Politicians in Florida, Texas and Pennsylvania are backing broad-based approaches to block city ordinances, rather than fighting cities on specific issues like minimum-wage rules. Arizona passed such a law last year that is currently being tested in the courts.

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. * * *

Supporters of state-level pre-emption measures say they are needed to assert states’ authority and stop cities from creating uneven regulations that scare off businesses. The states are reacting to increasingly aggressive pushes for local rules, said Ben Wilterdink, director of the commerce, insurance and economic-development task force at the American Legislative Exchange Council [ALEC], which says it is dedicated to limited government, free markets and federalism.

Posted by Marcia Oddi on Thursday, April 13, 2017
Posted to Indiana Government

Wednesday, April 12, 2017

Ind. Decisions - Tax Court posts one today, decided yesterday

In Mary K. Fisher v. Carroll County Assessor, a 14-page opinion, Sr. Judge Fisher writes:

Mary K. Fisher challenges the final determination of the Indiana Board of Tax Review that established the assessed value of her real property for the 2012 and 2014 tax years. Upon review, the Court affirms the Indiana Board’s final determination. * * *

While these are all “pearls” of information relevant to performing an income approach, it was Fisher’s responsibility – not the Indiana Board’s – to string them together and actually form the necklace (i.e., to do an income approach). Given that there is no necklace, the Court will not craft one for her now. See, e.g., Clark v. Dep’t of Local Gov’t Fin., 779 N.E.2d 1277, 1282 n. 4 (Ind. Tax Ct. 2002) (explaining that litigants must walk both the Indiana Board and the Court through every element of their analyses; it is not enough for litigants to claim they made their case by simply citing to portions of the record as though they speak for themselves).

CONCLUSION. The final determination in this case reveals that the Indiana Board, as an impartial adjudicator, considered the parties’ evidentiary presentations, weighed their probative value, and concluded that the Assessor's appraisal corroborated her assessment by best reflecting the market value-in-use of Fisher’s lot. The Court finds no basis for reversing the Indiana Board’s conclusion and, therefore, its final determination is AFFIRMED.

Posted by Marcia Oddi on Wednesday, April 12, 2017
Posted to Ind. Tax Ct. Decisions

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 18 NFP memorandum decision(s))

For publication opinions today (3):

In CH v. AR , a 10-page opinion, Judge Bailey concludes:

There was sufficient evidence adduced to sustain the trial court’s finding of “true” as to a single count of Child Molesting. There was no fundamental error associated with S.B.’s competence to testify at trial.
In State of Indiana v. Amber E. McHenry , an 8-page opinion, Judge Friedlander writes:
The State of Indiana appeals the trial court’s grant of Amber McHenry’s motion to dismiss her Level 2 felony charge of burglary while armed with a deadly weapon, in which the trial court essentially determined that a handgun obtained in the course of a burglary cannot support the elevated charge of burglary while armed with a deadly weapon under IC 35-43-2-1(3)(A). We affirm. * * *

Having concluded that IC 35-43-2-1(3)(A) does not fairly encompass within its language McHenry’s taking of the handgun from the burglary of Stoffel’s residence, we affirm the trial court’s grant of her motion to dismiss the Level 2 felony charge of burglary while armed with a deadly weapon.

In Tipton County Board of Commissioners, et al. v. Gayle Prather, et al., a 9-page opinion, Judge Barnes writes:
The Tipton County Board of Commissioners and the City of Tipton (collectively, “Commissioners”) appeal the trial court’s denial of their motion for a bond in a judicial review action brought by Robert and Gayle Prather. We affirm and remand.

The Commissioners raise several issues, which we consolidate and restate as whether the trial court properly found that the Indiana Public Lawsuit Statute was inapplicable to the Prather’s petition for judicial review. * * *

As in Buse, although some of the Prathers’ claims, such as the traffic issues, have public importance, the main basis of the Prathers’ action is the protection of their own private interests. We conclude that this action is more like the circumstances in Dible and Buse than those in Pepinsky. Consequently, the Public Lawsuit Statute is inapplicable, and the trial court properly denied the Commissioners’ motion for a bond.

Conclusion. The trial court properly denied the motion for a bond. We affirm and remand for further proceedings.

NFP civil decisions today (4):

Foncannon Tax & Financial Services, LLC v. Stephen C. Gubler, et al. (mem. dec.)

Roy Defries, et al. v. Board of Commissioners of Posey County, et al. (mem. dec.)

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

CHINS: DC v. Indiana Department of Child Services (mem. dec.)

NFP juvenile and criminal decisions today (14):

CC v. State of Indiana (mem. dec.)

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

Marcus Hardy v. State of Indiana (mem. dec.)

Gerald Lynn West v. State of Indiana (mem. dec.)

Gerald Doll v. Robert Guy, et al. (mem. dec.)

Bruce W. Shaw v. Sheri E. Shaw (mem. dec.)

Melanie Marie Thinnes v. State of Indiana (mem. dec.)

Jermaine Davis v. State of Indiana (mem. dec.)

John P. Jones v. State of Indiana (mem. dec.)

Destin Dean Jones v. State of Indiana (mem. dec.)

Marilyn K. Viers v. State of Indiana (mem. dec.)

Mike Harmon v. State of Indiana (mem. dec.)

Damaris A. Smith v. State of Indiana (mem. dec.)

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

Posted by Marcia Oddi on Wednesday, April 12, 2017
Posted to Ind. App.Ct. Decisions

Tuesday, April 11, 2017

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 4 NFP memorandum decision(s))

For publication opinions today (3):

In Indiana Bureau of Motor Vehicles, et al. v. Daniel N. Newlin , a 6-page opinion, Judge Bradford writes:

On January 25, 2016, as the result of a case out of Kosciusko County, Daniel Newlin’s driving privileges were suspended by Appellant-Respondent the Indiana Bureau of Motor Vehicles (“BMV”) for two years due to his refusal to submit to a chemical test. On June 24, 2016, Newlin filed a verified petition for specialized driving privileges in Lake County. The trial court granted his motion. The BMV filed a motion to correct error arguing that Newlin was ineligible for specialized driving privileges pursuant to Indiana Code subsection 9-30-16-1(a)(2). The trial court denied the BMV’s motion.

The BMV argues that the trial court’s grant of specialized driving privileges to Newlin with respect to this two-year suspension for refusing to submit to a chemical test was not supported by sufficient evidence and was contrary to law. We agree that the grant of specialize driving privileges to Newlin was contrary to law and not supported by the evidence. Consequently, we reverse and remand with instructions.

In Jalen Lee, A Minor Child, by and through his Next Friend, Crystal Estes and Crystal Estes, Individually v. Bartholomew Consolidated School Corporation, City of Columbus, et al., a 37-page, 2-1 opinion, Judge Riley writes:
Appellants-Plaintiffs, Jalen Lee (Lee)—by his next friend, Crystal Estes—and Crystal Estes individually, appeal the trial court’s summary judgment in favor of Appellee-Defendant, City of Columbus (City). We reverse and remand.

Lee raises four issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court erred in granting the City’s motion for summary judgment. * * *

Conclusion. Based on the foregoing, we conclude that the trial court erred in granting summary judgment on the basis of contributory negligence. We further conclude that the City is entitled to statutory immunity with respect to its plans for improvements to the crosswalk and its decision to enact a certain speed limit and to not erect a stop sign or station crossing guards at the crosswalk. Nevertheless, we conclude that summary judgment is improper because there are genuine issues of material fact as to whether the City breached its duty of reasonable care by installing conflicting speed limit signs and whether such a breach, if any, proximately caused the accident. Therefore, we remand this case for further proceedings.

Altice, J. concurs
Crone, J. dissents with separate opinion [which begins, at p. 35] I respectfully dissent. If a plaintiff who files a tort claim against a governmental entity, such as the City, “is negligent to even a small degree and that negligence proximately contributes to his claimed damages, contributory negligence will operate as a complete bar to his action.” Hill, 54 N.E.3d at 406. Although generally a question of fact, contributory negligence may be “a question of law appropriate for summary judgment if the facts are undisputed and only a single inference can be drawn therefrom.” Id. at 406-07. The relevant facts here are undisputed, and I believe that the only inference that can be drawn from them is that Lee was contributorily negligent and therefore the City is entitled to summary judgment as a matter of law. * * *

I would also affirm on the basis that any negligence on the City’s part with respect to the speed limit signs did not proximately cause Lee’s injuries as a matter of law. The majority acknowledges that “McLeod did not see Lee until after the impact; thus, this is not a situation where the speed limit affected McLeod’s ability to apply his brakes fast enough.” Id. at 32. McLeod did not know precisely how fast he was going when he hit Lee, and the notion that he would have driven more slowly and not hit Lee if the posted speed limit had been twenty miles per hour is mere speculation, which cannot create a question of fact on summary judgment. Beatty v. LaFountaine, 896 N.E.2d 16, 20 (Ind. Ct. App. 2008), trans. denied (2009).

In C.J. v. State of Indiana , a 10-page opinion, Judge Najam writes:
C.J. appeals from the juvenile court’s order modifying a dispositional decree following his adjudication as a delinquent child for battery, as a Class A misdemeanor when committed by an adult. C.J. presents a single issue for our review, namely, whether the juvenile court abused its discretion when it placed him with the Department of Correction (“DOC”). However, because C.J. has been released from the DOC since he initiated this appeal, we dismiss the appeal as moot. * * *

C.J. has been released from the DOC, and, were we to review the merits of this appeal, we would be unable to grant C.J. the relief he requests if we agreed with his arguments. As such, his appeal is moot, and C.J. does not allege that this appeal presents a question of great public interest to justify consideration of the merits of his appeal. We reject C.J.’s contentions that his appeal is not moot in light of possible negative collateral consequences. We dismiss his appeal as moot.

NFP civil decisions today (1):

Maria Linstrom v. Golden Living Center - Woodlands (mem. dec.)

NFP juvenile and criminal decisions today (3):

David Howard v. State of Indiana (mem. dec.)

Alacia Johnson v. State of Indiana (mem. dec.)

Dusty R. Owens v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, April 11, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still more on: En banc 7th Circuit reverses Hively v. Ivy Tech

Updating this ILB post from April 5th, I've pulled quotes from several analyses that highlight the significance of Ivy Tech's decisions not to appeal the 7th Circuit decision in Hively.

From JDSupra Business Advisor, an April 7th article by Allison Sues of SmithAmundsen LLC headed "Seventh Circuit Issues Landmark Decision Holding that Title VII Prohibits Discrimination Based on Sexual Orientation":

On April 4, 2017, the United States Court of Appeals for the Seventh Circuit, sitting en banc, held that discrimination based on sexual orientation is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.

The seventh circuit decision is significant as the first of its kind. The United States Supreme Court has never ruled whether Title VII prohibits discrimination based on sexual orientation, and the seventh circuit, as well as the other United States Circuit Courts of Appeals had previously established a long line of precedent holding that claims alleging sexual orientation discrimination fail to state a claim under Title VII. * * *

Ivy Tech has indicated that it will not appeal the decision to the Supreme Court and instead plans to defend the case on its merits following the remand to the trial court. Therefore, Hively will be the law of Illinois, Indiana, and Wisconsin until a different sexual orientation discrimination case makes it way to the Supreme Court – an event likely to happen now that there is clear division between the circuit courts on this issue.

Employers in Illinois and Wisconsin should already maintain policies prohibiting discrimination based on sexual orientation because Illinois and Wisconsin state law prohibit this type of discrimination. Nevertheless, all employers, especially private employers in Indiana who are not currently bound by a state sexual orientation non-discrimination law, should ensure that all employee handbooks, non-discrimination policies, and job application forms explicitly state that the company will not discriminate based on sexual orientation, and should train management and human resources personnel on the same. Following the reasoning of Hively, employers should be cautious to guard against discrimination or harassment based not only on sexual orientation, but also sexual identity.

From Lexology, an article by Laura B. Bacon, Brittany A. Bogaerts and Brian V. Alcala of Nixon Peabody LLP headed "Seventh Circuit extends Title VII protections to sexual orientation discrimination: what employers need to know":
The Seventh Circuit Court of Appeals became the first federal appeals court to hold that Title VII of the Civil Rights Act of 1964 protects against workplace discrimination on the basis of sexual orientation. Here’s what employers need to know about the landmark ruling. * * *

The immediate legal impact of this ruling will vary state-by-state. Of the three states falling within the Seventh Circuit’s jurisdiction (Illinois, Wisconsin, Indiana), Indiana is the only state that does not already offer state law protection for sexual orientation discrimination. In both Illinois and Wisconsin, state law has long prohibited employers from engaging in discrimination on the basis of sexual orientation. In 1981, the Wisconsin legislature added protection for sexual orientation discrimination to its Fair Employment Law. In 2005, the Illinois legislature followed suit, adding sexual orientation as a protected class to the Illinois Human Rights Act.

As a result, the Hively decision will most directly affect employers in Indiana, adding legal protection for sexual orientation discrimination that their employees did not have previously. For employers in other states, however, the Seventh Circuit’s decision does not automatically create federal protection for sexual orientation discrimination across the country. The prohibition of sexual orientation discrimination will continue to primarily be governed by state and local law.

Posted by Marcia Oddi on Tuesday, April 11, 2017
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Controversial bill to cut solar incentive heads to Gov. Eric Holcomb's desk"

That is the headline to Stephanie Wang's story this morning in the Indianapolis Star. Some quotes:

One of the most heated, most talked-about pieces of legislation this year imposes new regulations on the small but burgeoning niche of renewable energy producers — while benefiting big utility companies.

With a 37-11 vote Monday, the Indiana Senate sent Senate Bill 309 to Gov. Eric Holcomb.

Holcomb's office declined to comment on his stance, but a spokeswoman said he has been watching the legislation.

The legislation reduces the rate that utility companies pay for excess energy that homeowners, schools and small businesses with solar panels or wind turbines sell back to the grid, an exchange known as net metering. * * *

The original proposal had sought to eliminate net metering credits, which would require homeowners to sell their energy to the grid and buy back what they needed. But lawmakers amended it to expand the cap on net metering but provide a smaller financial incentive, postponing the rate change for existing customers, those who install renewable energy technology by the end of the year, and those who might buy those participating properties before the grandfathering provision ends.

Supporters and opponents bickered over "misconceptions" of the proposal, unable to agree, for example, on whether other utility customers shoulder the price of net metering (as utility companies argue), or whether the legislation will encourage or discourage solar energy in the state.

"The bill recognizes solar is an increasingly competitive means of generation," said state Sen. Brent Hershman, R-Buck Creek, who authored SB 309.

The Senate yesterday concurred in House amendments, so this March 31st printing is the final version; it will be enrolled before sending to the governor.

For background, start with this ILB post from March 23rd.

Posted by Marcia Oddi on Tuesday, April 11, 2017
Posted to Indiana Government

Ind. Law - On Friday, future of U.S. Constitution at Indiana University symposium in Bloomington

"[L]eading scholars who will participate in the Indiana University Maurer School of Law's symposium on constitutional issues." See the news release here. More:

"The Future of the U.S. Constitution" will begin at 9 a.m. April 14 at Baier Hall on the IU Bloomington campus. Convened by the Maurer School of Law, the American Constitution Society and the Indiana Law Journal, the symposium will bring together 16 of the nation's premier authorities on the U.S. Constitution and the challenges facing the country with Donald Trump as president. The public is invited to attend. * * *

The symposium will be livestreamed on the Maurer School's YouTube channel, and participants will be blogging in advance of the event on the American Constitution Society and Indiana Law Journal blogs, where a full schedule of events is available.

Note that the symposium appears to offer 5 CLEs at no charge.

Posted by Marcia Oddi on Tuesday, April 11, 2017
Posted to Indiana Law

Monday, April 10, 2017

Law - Pulitzer for editorial writing goes to editor of rural Iowa 3,000 circulation paper

Art Cullen of The Storm Lake Times, Storm Lake, IA, "co-owner with his older brother John of The Storm Lake Times, a 3,000-ciculation twice-weekly newspaper in Storm Lake, Iowa, pop. 10,000, in rural Northwest Iowa," was awarded the 2017 Pulitzer in Editorial Writing today:

For editorials fueled by tenacious reporting, impressive expertise and engaging writing that successfully challenged powerful corporate agricultural interests in Iowa.
Here is a Pultizer page with a list (with links) of the 10 winning editorials. I've only read one so far, and I've become a fan. It is called "Unveiling the hidden truth", from March 3, 2016. A few quotes:
We are proud to stand with the Iowa Freedom of Information Council in seeking the release of public records from Buena Vista, Calhoun and Sac counties that would tell us how the counties are financing their defense of a lawsuit filed by the Des Moines Water Works over nitrate pollution of the Raccoon River. Regardless of your opinion about the merits of the water works’ lawsuit, the public deserves to know who is paying law firms in Des Moines and Washington, DC, and under what terms. * * *

Finally, we got the beginnings of an answer. Credit Buena Vista County Supervisor Paul Merten, D-Storm Lake, for telling us the nubbin of the truth: that there is a gigantic account funded by Farm Bureau and virtually every commodity group (corn growers, pork producers, soybean association, etc.) presumably using checkoff funds.

That’s fine, so far as it goes. That is all we are truly asking: How much is the bill and who is paying it? * * *

Ultimately, we believe, those bills are a BV County liability, not just of the drainage districts.

It is good to know for a few reasons.

First, you always follow the paymaster. If Farm Bureau is signing the check, then you know who is really calling the shots on our behalf. We elected a board of supervisors and a county attorney to direct the policies and protectthe taxpayers ofthis county. We did not elect the Farm Bureau or any other interest group to set our course.

Second, you always have friends when you are winning. Not so much when you are losing. We don’t know what the terms are among the slush fund donor(s), the boards of supervisors and the attorneys. But it could be open-ended. If, say,the counties lose during a side appeal to the Iowa Supreme Court, the agribusiness donors may decide to take their bets off the BV nag. Then we are left holding the bag for the rest of the federal trial. That certainly can happen.

Third, the public deserves to know all it can about how this defense is shaped since we believe the county, and its drainage districts, could be on the hook for more than $100 million in damages or, at least, could be subject to violations under the Clean Water Act. This is of the gravest importance. The public deserves to know how its property might be leveraged by the lawsuit, and the contributions to the legal defense add context and could color the outcome.

Fourth, Iowa law requires disclosure of this information. It is illegal to hide it as the supervisors are. There is no question that the information is being hidden. We have asked repeatedly. We do not know why this elaborate secret is being kept. If agribusiness concerns are paying the bills to protect their way of doing business, and the supervisors believe that voters agree and endorse the idea, then there is no reason to keep the truth under wraps.

Seldom have we been stonewalled like this. Obviously, the legal arrangements among the counties and the law firms are complex by design to shield the truth. It will not be easy to penetrate.

Posted by Marcia Oddi on Monday, April 10, 2017
Posted to General Law Related

Ind. Gov't. - A thought on: "Should you have to pay $20 an hour for a public records search?"

As the ILB wrote earlier:

There is no evidence, other than anecdotal, that a bill like this is needed to prevent perceived abuses by the public of their right to access governmental records.

Perhaps there should be some sort of research done before a law like this is enacted, such as requiring governmental officials to track the time it takes them now to fill public records requests. This might reveal where governmental processes currently are operating inefficiently, bottlenecks, duplication, etc.

Alternatively, the proposal should include a way for the public to challenge the amount assessed for a public records request. Under this bill there is no requirement, or indeed, any encouragement for a public official to fill a records request in the most efficient way possible.

It strikes me that digging into the perceived need for this bill, gathering any evidence, would be a great project for a group of young journalism students ...

Posted by Marcia Oddi on Monday, April 10, 2017
Posted to Indiana Government

Ind. Gov't. - Still more on "Should you have to pay $20 an hour for a public records search?"

Updating this ILB post from Feb. 27th, and this one from Feb. 20th, the Indiana Professional Chapter of the Society of Professional Journalists posted April 3rd:

The Indiana Professional Chapter of the Society of Professional Journalists calls upon state lawmakers to reject HB 1523, a bill that would let state and local government agencies charge up to $20 per hour to fulfill requests for public records that take more than two hours to find.

This legislation goes against the idea that government is supposed to serve the people, would undermine government transparency and could easily be abused to hide public records from the public view.

It is not hard to imagine local governments exploiting such a law to make it cost-prohibitive for journalists and concerned citizens to find out what their elected representatives are doing, and how their tax dollars are being put to use. Some citizens may not be able to afford such search fees and could be denied access to government records that are supposed to be available to all.

Government employees could deliberately drag their feet on such requests, racking up exorbitant charges to produce records the taxpaying public already paid for in the first place, either to shut down requests or deter them in the future.

If anything, the state legislature should be working to make public records more accessible, and available to anyone online. Local officials should not be given the tool of search fees to hide documents that belong to the public and should be open to the scrutiny of all taxpayers and voters.

The bill defeats the entire purpose of Indiana’s public access laws, and should be defeated. It has the potential to be an obstacle to the reporting of a free press and an impediment to finding out the truth that could shroud government doings in secrecy. This legislation is simply not in keeping with the values of Hoosiers or an open, democratic society.

If government agencies are actually struggling with the burden of providing the public with public records, it should be addressed in another way — perhaps by automatically publishing everything on the government agency’s website so journalists and citizens can execute such searches themselves, freeing up government workers for whatever other tasks.
Ironically, as reported in the SB Tribune editorial:
The Hoosier State Press Association, which traditionally advocates for open records, supports the bill, emphasizing the importance of the electronic records provision. This will be beneficial as “more and more records are collected electronically,” said HSPA Executive Director Steve Key.
Clearly, the IHSPA and the public's interests diverge here. The IHSPA also appears to be at odds with the Society of Professional Journalists...

Posted by Marcia Oddi on Monday, April 10, 2017
Posted to Indiana Government

Ind. Gov't. - "Student journalist protections die in Indiana Senate"

Dakota Connell-Ledwon of the South Bend Tribune reported Sunday in a story that begins:

A bill meant to protect student journalists’ First Amendment rights died in the Indiana Senate on Friday.

Rep. Edward Clere, author of House Bill 1130, intended the bill to roll back the restrictions imposed by the 1988 Hazelwood Supreme Court decision.

The Hazelwood decision created a precedent that allows school administrators to censor public high school and college publications almost at will.

Clere grew up in Floyd County and attended Floyd Central High School, where he was a student journalist himself. The issue hits particularly close to home for him — his 15-year-old daughter is an assistant news editor at the same school newspaper where he first ventured into journalism.

“Student journalists play a vital role in a school setting in the same way that professional journalists play a vital role in a community at the state or national level,” Clere said. “They foster accountability and transparency, they carry on important conversations, they bring issues and interest to light, and beyond all that, student journalism is a hands-on civics lesson for the entire school community.”

Hazelwood had created a fuzzy standard for where administrators could step in and censor material,” said Stephen Key, executive director of the Hoosier State Press Association.

He noted that House Bill 1130 wouldn’t have given students the freedom to write just anything and everything.

School administrations "will still have power, but they won’t be able to step in just because they think the story puts them in an unfavorable light or touches on a sensitive topic,” he said. “The administration can still step in if they review the publication and it’s inciting someone to break the law, or if it’s obscene or libelous.”

And as the ILB wrote April 7th, the Kansas story ("These high school journalists investigated a new principal’s credentials. Days later, she resigned.") apparently played a role. Again from the SB Tribune story:
[Rep. Edward Clere, author of House Bill 1130] claims McCormick misinterpreted a recent instance of student journalism to frighten lawmakers into opposing the bill. While speaking against the bill on Friday, she brought up a group of high school journalists in Kansas whose research uncovered problems with the credentials of their newly hired principal. The principal resigned a few days later.

According to Clere, McCormick used this story as evidence that the bill would result in student journalists getting principals fired.

“We’re going to have to go back to a lot of senators, help them understand that they have been misled and provide them with correct information and the facts which support this legislation,” Clere said. “There’s nothing here for anybody to be scared of.”

Posted by Marcia Oddi on Monday, April 10, 2017
Posted to Indiana Government

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

In Thom Howell v. Shawn Smith (ND Ind., Moody), a 14-page opinion, Judge Ripple writes:

On May 15, 2011, Officer Shawn Smith of the Highland, Indiana Police Department received a call from his dispatcher, alerting him to a road rage incident involving the discharge of a firearm. He later came upon a car matching the description and conducted a “high‐risk traffic stop.” Officer Smith placed Mr. Howell, the occupant of the car, in handcuffs and detained him until other officers brought the alleged victim to the scene.2 The victim positively identified Mr. Howell and his vehicle as involved in the road rage incident. Nonetheless, the officers found no weapon and decided to release Mr. Howell. The whole episode lasted approximately thirty minutes.

Mr. Howell initially brought this action in state court, alleging that the officers’ treatment had aggravated a preexisting shoulder condition, which became worse with time and required multiple surgeries. Following the transfer of the proceedings from state to federal district court, Officer Smith moved for summary judgment on the ground of qualified immunity. The district court denied the motion, and Officer Smith filed this interlocutory appeal.

We respectfully disagree with the district court’s decision to deny Officer Smith’s immunity claim. In our view, Officer Smith’s decision to place Mr. Howell, then implicated in a serious crime involving the discharge of a weapon, in handcuffs and to keep him in handcuffs until satisfied that he was not a threat did not violate the Fourth Amendment. Therefore, under the doctrine of qualified immunity, the federal count in the complaint must be dismissed. Accordingly, we reverse the judgment of the district court and remand the case for further proceedings.

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

Ind. Decisions - Transfer list for week ending April 7, 2017

Here is the Clerk's transfer list for the week ending Friday, April 7, 2017. It is two pages (and 18 cases) long.

Four transfers were granted last week:

In addition, there was one case last week where transfer was denied by a 3-2 vote, and one case where transfer failed because of a 2-2- split:

Posted by Marcia Oddi on Monday, April 10, 2017
Posted to Indiana Transfer Lists

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

For publication opinions today (1):

In Jacob Maciaszek v. State of Indiana, a 12-page opinion, Judge May writes:

The trial could did not err when it denied Maciaszek’s request for presentence credit for actual time served or for good time credit based on the time he spent incarcerated in Florida and New Hampshire prior to his extradition to Indiana. However, the trial court should have granted Maciaszek’s request for presentence credit for actual time served and good time credit for the time he spent in Indiana awaiting trial on the Indiana charges. Accordingly, we affirm in part, reverse in part, and remand for amendment of Maciaszek’s sentencing order to reflect a proper calculation of credit time.
NFP civil decisions today (1):

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

NFP juvenile and criminal decisions today (6):

MJoseph Basford v. State of Indiana (mem. dec.)

Andres Lara-Sangines v. State of Indiana (mem. dec.)

Larry Craig v. State of Indiana (mem. dec.)

Robert Micheau v. State of Indiana (mem. dec.)

James Matthew Caudill v. State of Indiana (mem. dec.)

Justin Delaine Littlejohn v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, April 10, 2017
Posted to Ind. App.Ct. Decisions

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.

Time is running out.

The ILB will intensively cover the Supreme Court interviews next week, as it has over past years. But other than that, blogging will be limited.

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.

Posted by Marcia Oddi on Monday, April 10, 2017
Posted to About the Indiana Law Blog

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 4/10/17):

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

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 4/10/17):

Tuesday, April 11

Wednesday, April 12

Next 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

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 10, 2017
Posted to Upcoming Oral Arguments

Friday, April 07, 2017

Ind. Decisions - Supreme Court today affirms McKeen and disapproves K.D. v. Chambers, in med-mal case

In Charles McKeen, M.D. v. Billy Turner, a 2-page, 5-0, per curiam opinion, the Supreme Court concludes:

We agree with the Court of Appeals, finding its opinion consistent with Miller v. Memorial Hospital of South Bend, Inc., 679 N.E.2d 1329 (Ind. 1997). We thus grant transfer and adopt and incorporate by reference the Court of Appeals opinion. See Ind. Appellate Rule 58(A)(1). We further find K.D. v. Chambers, 951 N.E.2d 855 (Ind. Ct. App. 2011), is at odds with Miller on the issue we address today and expressly disapprove K.D.
See the ILB's April 3rd post for much more, including this quote from Norm Tabler:
The decision at issue is McKeen v. Turner, which came down in favor of the plaintiff, ruling that the 2011 Court of Appeals case, K.D. v. Chambers, “was wrongly decided and/or has been misread.” That 2011 opinion has generally been read to prevent a medical malpractice plaintiff from raising a theory of liability in court that was not raised before the Medical Review Panel proceeding, which in Indiana precedes the court case.
Here is the Oct. 4, 2016 Court of Appeals opinion in McKeen, now "adopt[ed] and incorporate[d] by reference" into today's Supreme Court opinion.

Posted by Marcia Oddi on Friday, April 07, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Gov't. - "New Albany violated public access law three times on Mount Tabor Road requests"

Elizabeth Beilman reports in the New Albany News and Tribune (here reprinted in Indiana Economic Digest) in a long story that begins:

The city of New Albany has violated the Indiana Access to Public Records Act on at least three occasions in the past year by missing deadlines on records requests made by residents of Mount Tabor Road.
Property owners along the road that is undergoing the city's restoration project said they weren't able to get information in enough time to present educated counter-offers to buyers through the process of eminent domain.

Now, the city has filed condemnation against their properties. When the purchase price is negotiated in court, these residents worry they won't have the facts needed to back their cases, and are unsure what the city's final plans for the project entail.

"We can't do a true business agreement without knowing what we're getting into," said resident Kelly Feiock, who lives on the corner of Mount Tabor Road and Klerner Lane.

Feiock is one of three property owners along the corridor who have filed complaints with the Indiana Public Access Counselor's office. In some cases, though not all, the office ruled the city violated the law. One other property owner has not submitted formal complaints but has indicated the city didn't follow public access law in response to his request.

Later in the long story:
Indiana's public access law doesn't offer much recourse for violations. Oftentimes an official violation declared by the public access counselor is enough to motivate governments to comply. But if that doesn't happen, the next course of action is to sue.

"It's like everybody out here is trying to get an answer, and the city won't talk to you," said Dennis Feiock, Kelly's father who lives down the street. "You go to the state and the state says, "City, give them the information' — and we still won't get the information."

ILB: BTW, HB 1523, the bill that, per the digest:
Allows a state or local government agency (agency), with certain exceptions, to charge a maximum hourly fee for any records search that exceeds two hours. Prohibits, with certain exceptions, an agency from charging a fee for providing a public record by electronic mail.
passed the Senate with amendments yesterday, April 6th,and has been returned to the House. As of this writing, it is awaiting further action.

Posted by Marcia Oddi on Friday, April 07, 2017
Posted to Indiana Government

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (1):

In In the Matter of: Ce.B. and Co.B. (Minor Children) and C.K. (Custodian) v. The Indiana Department of Child Services, a 7-page opinion, Chief Judge Vaidik writes:

A custodian of two siblings appeals, claiming that the juvenile court erred in determining that the siblings were children in need of services (CHINS) without first holding a factfinding hearing. We find, however, that the juvenile court did hold a factfinding hearing in this case. At that hearing, the custodian, represented by counsel, chose to stipulate that the facts contained in the CHINS petitions and reports of preliminary inquiry were true. The juvenile court then reviewed those materials and, based on the stipulated facts contained in them, made a legal determination that the children were CHINS. Furthermore, the custodian does not make any argument that his stipulation should be withdrawn for cause. We therefore affirm the juvenile court.
NFP civil decisions today (1):

In the Matter of the Involuntary Termination of the Parent-Child Relationship of D.A. Jr. (Minor Child) S.G. (Mother), and D.J.A. (Father) v. The Indiana Department of Child Services (mem. dec.)

NFP juvenile and criminal decisions today (4):

Phillip D. Ealy v. State of Indiana (mem. dec.)

Leroy Butler v. State of Indiana (mem. dec.)

Robert E. Eastwood v. State of Indiana (mem. dec.)

Damon Nelson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, April 07, 2017
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - Some ironies here: "Senate won't vote on student journalism bill"

Niki Kelly reports today in the Fort Wayne Journal Gazette:

A bill protecting student journalists died in the Indiana Senate on Thursday.

Sen. Brandt Hershman, R-Buck Creek, did not call down House Bill 1130 to meet a key legislative deadline.

The legislation was pushed by high school and college-age students looking for state help to shield their investigations or reports.

It would have prevented public K-12 schools from disciplining students for expressing their First Amendment rights in a school-funded publication. It also would have stopped school officials from censoring publications unless the content is libelous or slanderous.

The bill would have required local school boards to have written policies governing oversight of student publications, including physical and online newspapers and magazines.

It passed the House this session by a vote of 88-4.

But Senate President Pro Tem David Long, R-Fort Wayne, said school superintendents and principals pushed back against the bill at the last minute.

“They all weighed in late in the day and said they were concerned about the fact they weren't going to allow local control … so in the end we just let it go,” he said.

A few quotes from a good $$ StatehouseFile story:
School administrations said they were concerned about language in the bill that would not allow them local control over what they define as the proper amount of freedom for students, said Senate President Pro Tem David Long.

Diana Hadley, executive director of the Indiana High School Press Association, said everyone who supports the bill was surprised by DOE’s last minute opposition to it.

“They had never mentioned that to us before today,” Hadley said. “We found out quite by accident. We’ve been working on this since September and they’ve never said a word.”

Those in opposition of the bill argue that school administrators should have the final say about what content is printed in a school-sponsored publication. * * *

[Rep. Ed Clere, R-New Albany] said he was deeply disappointed with Superintendent McCormick’s decision to try and stop the legislation.

“I’m heartbroken, but I’m more heartbroken for all of the students, journalism teachers, advisors, professors and everyone else who got us to this point,” Clere said.

Clere said that while his team anticipated pushback from school administrators, they were unprepared to be blindsided by the Department of Education.

State Superintendent of Public Instruction Jennifer McCormick was not available for comment.

“The worst part for me is having to go back tell these students that the system let them down,” Clere said. “Because essentially the DOE and administrative interest groups killed it in secret, behind closed doors.”

ILB: See the earlier ILB story here, from January 11th, which includes useful historical background.

The ironies? First, of course, is the General Assembly bowing here to "local control," contrary to its denial of local control in cases such as municipal restrictions on plastic bags and Airbnb rentals.

Second, this widely-circulated April 5th story (the day before the deed) from Samantha Schmidt of the Washington Post, headed "These high school journalists investigated a new principal’s credentials. Days later, she resigned." A few quotes:

The resignation thrust the student newspaper staff into local, state and national news, with professional journalists nationwide applauding the students for asking tough questions and prompting change in their administration.

“Everybody kept telling them, ‘stop poking your nose where it doesn’t belong,'” newspaper adviser Emily Smith told The Post. But with the encouragement of the superintendent, the students persisted.

“They were at a loss that something that was so easy for them to see was waiting to be noticed by adults,” Smith said. * * *

In an emergency faculty meeting Tuesday, the superintendent said Robertson was unable to produce a transcript confirming her undergraduate degree from the University of Tulsa, Smith said.

During the course of their reporting, the students spent weeks reaching out to educational institutions and accreditation agencies to corroborate Robertson’s background, some even working through spring break. Their adviser, Smith, had to recuse herself from the story because she was on the committee that hired Robertson. So the students sought the help of Eric Thomas, executive director of the Kansas Scholastic Press Association, and other local and national journalists and experts.

Under Kansas law, high school journalists are protected from administrative censorship. “The kids are treated as professionals,” Smith said. But with that freedom came a major responsibility to get the story right, Smith said. It also meant overcoming a natural hesitancy many students have to question authority.

Similar bills are pending in other states, including Vermont.

Posted by Marcia Oddi on Friday, April 07, 2017
Posted to Indiana Government

Thursday, April 06, 2017

Ind. Decisions - Court of Appeals issues 4 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (4):

In Town of Clear Lake v. Hoagland Family Limited , a 16-page opinion, Judge Baker writes:

The Town of Clear Lake (the Town) appeals the judgment of the trial court, which granted summary judgment to Hoagland Family Limited Partnership (Hoagland) and denied the Town’s motion for partial summary judgment. The trial court ruled that until the Town made its sewer system accessible through the installation of a grinder pump, it could not enforce penalties against Hoagland for failure to connect to the sewer system. Hoagland also argues that several alleged procedural errors made by the Town should preclude the Town from compelling connection to the sewer system. Finding that the Town does have the authority to compel Hoagland’s connection to its sewer system and no procedural error, we reverse and remand. * * *

In sum, because the Town is operating a functioning sanitary sewer within 300 feet of the properties, there is an “available” sewer under the meaning of Indiana Code section 36-9-23-30(a). Accordingly, the Town has the authority to compel Hoagland’s connection to the sewer system. Finally, the Town’s proposed process—having Hoagland submit an application with plans and schematics of the easiest and most convenient method of extending a lateral line to the sewer—is more economical and less burdensome than Hoagland’s proposal of forcing the Town to take property and ask questions later. Partial summary judgment should have been awarded to the Town on this issue. * * *

Because the trial court ruled in Hoagland’s favor, it never reached the issue of penalties, which will need to be determined on remand. While the issue is not squarely before us, we would be remiss if we did not make a few comments. * * *

This type of litigation tends to clog up the court system. Our courts are not flush with resources, and they are prone to getting backed up. When the system gets backed up, it produces unnecessary and unhealthy strains, which makes it more difficult for parties to obtain relief. And when these cases cannot be discharged, it is impossible for our court system to stay regular—and that means taxpayer resources down the drain. We can understand that, after such a long process, the parties are not overflowing with goodwill. But we hope that, before the case stalls and stagnates, they can put this big mess behind them.

The judgment of the trial court is reversed and remanded with instructions to award partial summary judgment to the Town and for further proceedings consistent with this opinion.

In Donald Anderson, Jr. v. State of Indiana , a 7-page opinion, Judge Baker writes:
Donald Anderson appeals his conviction for Battery by Bodily Waste, a Class B Misdemeanor. He argues that the evidence supporting his conviction is insufficient and that there is a material variance between the charging information and the evidence presented at trial. Finding no material variance and that the evidence is sufficient, we affirm. * * *

Mathias, Judge, concurring [beginning on p. 5]

I concur with the majority’s conclusion that the evidence sufficient to support Anderson’s conviction for Class B misdemeanor battery by bodily waste. However, I write separately to express my ongoing concern that Indiana’s criminal justice system continues to turn a blind eye to individuals suffering from mental illness who would be better served by commitment to a mental health treatment facility instead of incarceration in a local jail or the Department of Correction.

In Aaron D. Murray v. State of Indiana , a 10-page opinion, Judge Baker writes:
Aaron Murray appeals the sentence imposed by the trial court after Murray pleaded guilty to three counts of Level 4 Felony Child Molesting, arguing that the sentence is inappropriate in light of the nature of the offenses and his character. Finding that the sentence is not inappropriate, we affirm
In Jacob Lumbley v. State of Indiana , a 15-page opinion, Judge Brown writes:
Jacob R. Lumbley appeals his convictions and sentence for conspiracy to commit robbery as a level 5 felony, robbery as a level 5 felony, and two counts of criminal confinement as level 3 felonies, enhanced by the use of a firearm. Lumbley raises three issues which we revise and restate as: I. Whether the trial court erred by enhancing the sentences for his two criminal confinement convictions based upon his use of a firearm; II. Whether the trial court erred in ordering that the enhanced sentence for each criminal confinement conviction be served consecutive to each other; and III. Whether double jeopardy prohibits his convictions for conspiracy to commit robbery and robbery. We affirm.
NFP civil decisions today (2):

Robert E. Lehman v. Michele Lehman (mem. dec.)

Guardianship: Michelle Steege, et al. (mem. dec.)

NFP juvenile and criminal decisions today (3):

Curt Lowder v. State of Indiana (mem. dec.)

Cameron Washington v. State of Indiana (mem. dec.)

James Bates v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Thursday, April 06, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Attorney suspended in 2008 reinstated after lengthy process

In In the Matter of: Teresa Perry McKeethen, a 2-page 5-0 order filed yesterday afternoon, the Supreme Court reinstates the Petitioner to the practice of law, effective April 5, 2017.

As the ILB wrote on Feb. 14, 2014, a disciplinary order imposing "suspension without automatic reinstatement," no matter if the order sets a seemingly brief period of suspension (eg "suspended for 180 days, without automatic reinstatement"), presents a very stiff hurdle for the affected attorney wishing to return to the practice of law. See also this post from Feb. 14, 2017.

Today's order sets out the 9 steps that must be complied with before reinstatement. In this case Petitioner was suspended effective July 29, 2008:

Petitioner became eligible to seek reinstatement in April 2011, and she filed a petition for reinstatement on January 27, 2015. Following proceedings before a hearing officer, on February 10, 2017, the Indiana Supreme Court Disciplinary Commission, pursuant to Indiana Admission and Discipline Rule 23(18)(b) (2016), filed its recommendation that Petitioner be reinstated to the practice of law in Indiana.

Posted by Marcia Oddi on Thursday, April 06, 2017
Posted to Ind. Sup.Ct. Decisions

Ind. Decisions - Supreme Court suspends Carl Brizzi for 30 days

In In the Matter of: Carl J. Brizzi, a 2-page, 4-0 disciplinary order (J. Massa recused) file-stamped yesterday at 4:27 pm, Chief Justice Rush writes:

The hearing officer recommended that Respondent receive a 30-day suspension, and the parties have not filed briefs urging a different result. We concur with the hearing officer’s recommendation. Accordingly, for Respondent’s professional misconduct, the Court suspends Respondent from the practice of law for a period of 30 days, beginning May 1, 2017.
As CJ Rush notes in the order: "Respondent has prior discipline for unrelated misconduct that also involved his professional duties as Marion County Prosecutor. Matter of Brizzi, 962 N.E.2d 1240 (Ind. 2012)." Here is the prior 2012 order, which involved a public reprimand, no suspension.

Here are earlier ILB posts on Mr. Brizzi.

Posted by Marcia Oddi on Thursday, April 06, 2017
Posted to Ind. Sup.Ct. Decisions

Wednesday, April 05, 2017

Ind. Courts - Still more on: Dunkirk City Court judge suspended, effective immediately, following felony battery charge

Updating this ILB post from March 14th, the Judicial Qualifications Commission (JQC) has now filed disciplinary charges against Dunkirk City Court Judge Tommy D. Phillips, II. From the news release:

The 5-page "Notice of the Institution of Formal Proceedings and Statement of Charges" is public record and has been filed with the Appellate Clerk’s Office. The charges are brought by the 7-member JQC which investigates alleged ethical misconduct by judges—including judges who are not licensed attorneys. Phillips, who is not a lawyer, has been suspended with pay by the Indiana Supreme Court since September 2016 as required by rule when a felony charge is filed against a judge. The JQC charges are separate and distinct charges from any criminal or civil proceedings in the trial court system.

Generally, the JQC disciplinary charges assert Judge Phillips violated judicial canons which require judges to respect the law, avoid impropriety, and promote confidence in the judiciary. Judge Phillips pled guilty in case 38D01-1609-F6-165 to Battery Against a Public Safety Official, a Level 6 felony. The conviction stems from an August 2016 incident where Judge Phillips shoved the Dunkirk Chief of Police following a heated verbal exchange.

You may download the 5-page Notice of the Institution of Formal Proceedings and Statement of Charge here.

Posted by Marcia Oddi on Wednesday, April 05, 2017
Posted to Indiana Courts

Ind. Decisions - State to argue before 7th Circuit a ruling against Marion Co. Circuit Court for failure to provide sign language interpreter

The 7th Circuit will hear oral argument tomorrow in Dustin King v. Marion Circuit Court, 16-3726, a 9-page, Sept. 13, 2016 opinion where federal Judge Magnus-Stinson held:

Mr. King filed this cause of action against Marion Circuit Court under Title II of the Americans with Disabilities Act (“ADA”) for failure to provide him with an American Sign Language (“ASL”) interpreter during his participation in the Modest Means Mediation Program. [Filing No. 1.] On May 27, 2016, the Court issued an Order granting Mr. King’s Motion for Partial Summary Judgment and denying Marion Circuit Court’s Cross-Motion for Summary Judgment. [Filing No. 157.] Specifically, the Court held that Marion Circuit Court had violated the ADA when it failed to provide Mr. King with an interpreter or a reasonable accommodation for the Modest Means Mediation Program. [Filing No. 157 at 28.] On August 23, 2016, the Court held a bench trial to determine the issue of damages. * * *

Given the case law addressing similar circumstances to Mr. King’s, the Court finds that $10,000 is a reasonable amount to compensate Mr. King for the emotional distress caused by the denial of an ASL interpreter. The Court finds that Mr. King suffered emotional distress due to being denied an interpreter for mediation and for his attempts to appeal that denial. He was further stressed by participating in the mediation at a disadvantage that would not have existed for a person without his disability. The Court further recognizes his shock and frustration with the fact that Marion Circuit Court, which to Mr. King is synonymous with the justice system, discriminated against him by denying him an interpreter, even after Mr. King placed that court on notice that its denial violated Title II of the ADA. The Court also finds notable, however, that Mr. King was satisfied with the outcome of mediation, which only lasted two or three hours, and that he admitted that the anger and frustration that still linger today are partly due to his federal ADA litigation. Thus, while the Court acknowledges that Mr. King’s emotional distress is significant, given the relevant comparable cases, the Court finds that his request for $20,000 is excessive.

III. CONCLUSION. For the reasons noted above, the Court will enter judgment in favor of Mr. King against Marion Circuit Court in the total amount of $10,380.

The State of Indiana has appealed the decision.

Posted by Marcia Oddi on Wednesday, April 05, 2017
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 10 NFP memorandum decision(s))

For publication opinions today (1):

In Citizens Action Coalition of Indiana, Inc., Indiana Association for Community and Economic Development, Indiana Coalition for Human Services, et al. v. Indianapolis Power & Light Company, et al., a 33-page opinion, Judge Bailey writes:

Indianapolis Power & Light Company (“IPL”) petitioned the Indiana Utility Regulatory Commission (“the Commission”) for approval of an increase to its base rates for provision of electricity, which had been in effect since 1995. The Commission granted requests for intervention by Citizens Action Coalition, Indiana Community Action Association, Indiana Coalition for Human Services, Indiana Association for Community Economic Development, National Association of Social Workers Indiana Chapter, and Indiana State Conference of the National Association for the Advancement of Colored People (collectively, “Joint Intervenors”), and by IPL Industrial Group (“IPL Group”), The Kroger Company, and the City of Indianapolis. The proposed rate increase was approved by the Commission. After the denial of various petitions for reconsideration, Joint Intervenors appealed. We affirm.

Joint Intervenors articulate four issues claiming that the order lacks adequate support, particularly challenging (1) the lack of findings specifically addressing the impact of a particular rate component, a declining block rate (“DBR”), upon energy conservation, (2) the lack of findings specifically addressing the effect of DBR on elderly and African-American customers, (3) the rejection of a proposal for 25% low-income customer subsidies, and (4) the rejection of mandatory reporting by IPL of interruption-in-service data. We consolidate and restate the issues to conform to our standard of review, that is, a Commission order will stand unless no substantial evidence supports it or it is contrary to law, 3 and address the following issue: Whether the Commission’s rate approval order is not conclusive and binding due to a lack of specific findings on factual determinations material to its ultimate conclusions. * * *

Joint Intervenors have not shown that the Commission decision approving a rate design that includes DBR is unsupported by requisite findings. Joint Intervenors have not shown that the rate approval order is non-binding due to a lack of more extensive factual findings on matters introduced by Joint Intervenors which were not directly material to components of the approved rate design.

NFP civil decisions today (4):

Debra K. Ford, Personal Representative of the Estate of Darlene M. Welsh v. Indiana Heart Hospital (mem. dec.)

In re the Termination of the Parent-Child Relationship of T.H. (Minor Child), and J.H. (Father) v. The Indiana Department of Child Services (mem. dec.)

In re the Marriage of: Tina Marie Perry v. William N. Perry, III (mem. dec.)

S.H. v. Marion County Department of Child Services, et al. (mem. dec.)

NFP juvenile and criminal decisions today (6):

Joshua Conn v. State of Indiana (mem. dec.)

Luke Paul Eckrich v. State of Indiana (mem. dec.)

David C. Franks v. State of Indiana (mem. dec.)

Paris LaPriest Powell v. State of Indiana (mem. dec.)

George A. Foote v. State of Indiana (mem. dec.)

Joseph Miller v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Wednesday, April 05, 2017
Posted to Ind. App.Ct. Decisions

Law - IRS forfeiture issue, involving "structuring" deposits, in the news again

Some of you will remember this Oct. 27, 2014 ILB post headed "Eye-Opening NYT Story: Must Read For Attorneys and Small Business Owners." And don't overlook the last paragraph, referencing a 7th Circuit opinion by Judge Hamilton.

Today the Washington Post has an important story in Wonkblog by Christopher Ingraham, headed "The IRS took millions from innocent people because of how they managed their bank accounts, Inspector General finds." The long story begins:

The Internal Revenue Service has seized millions of dollars in cash from individuals and businesses who obtained the money legally, according to a new Treasury Inspector General's report.

The report covers IRS cash seizures against businesses and individuals suspected of deliberately trying to avoid federal reporting requirements for large bank deposits.

In order to combat criminal activity, individuals and businesses are required to report all bank deposits greater than $10,000 to federal authorities. Intentionally splitting up large sums of cash into sub-$10,000 amounts to avoid that reporting requirement is known as "structuring," and is illegal under the federal Bank Secrecy Act.

But many business owners engaged in perfectly legal activities may be unaware of the law. Others are covered by insurance policies that don't cover cash losses greater than $10,000. Still others simply want to avoid extra paperwork, and keep their deposits less than $10,000 on the advice of bank employees or colleagues.

While structuring is technically a crime, it's something of a secondary one. The reporting requirements were enacted in order to detect serious criminal activity, such as drug dealing and terrorism. They "were not put in place just so that the Government could enforce the reporting requirements," as the Inspector General's report puts it.

But according to the report, that's exactly what happened at the IRS in recent years. The IRS pursued hundreds of cases from 2012 to 2015 on suspicion of structuring, but with no indication that it was related to any criminal activity. Simply depositing cash in sums of less than $10,000 was all that it took to arouse agents' suspicion, and the eventual seizure and forfeiture of millions of dollars in cash from people not otherwise suspected of criminal activity.

Later in the story:
It is unclear whether structuring forfeiture cases make up a small or large percentage of all IRS forfeitures, because the IRS does not publish that information and denied FOIA requests to make it public.

"Today’s report confirms that the IRS used civil forfeiture to seize millions of dollars from innocent business owners," said attorney Robert Everett Johnson of the Institute for Justice, a legal firm fighting for forfeiture reform, in a statement. "The IRS’s own internal watchdog found that the IRS had a practice of seizing entire bank accounts based on nothing more than a pattern of under-$10,000 cash deposits."

The Treasury report comes on the heels of a separate Department of Justice report finding that the DEA has seized billions of cash from individuals never charged with criminal wrongdoing. * * *

After public outcry, in 2014 the IRS announced it would no longer pursue forfeiture cases when structuring was the primary suspected offense. But the Inspector General's report found that those new guidelines aren't always being followed. For at least eight cases initiated after the new guidelines, the report found that "the actions taken by the Government were inconsistent with the new policy."

Posted by Marcia Oddi on Wednesday, April 05, 2017
Posted to General Law Related

Ind. Gov't. - "Abortion measure advances: Adds regulations on minors"

Niki Kelly of the Fort Wayne Journal Gazette reports today on the House passage yesterday of SB 404:

Indiana lawmakers placed more regulations on minors seeking abortions under a bill passed 75-23 by the Indiana House on Tuesday.

Senate Bill 404 initially had more roadblocks on the process to getting an abortion when under the age of 18 but the House made numerous changes. In the end, seven Democrats joined 68 Republicans in passing the measure. In general, it tries to ensure more parental notification and involvement when minors seek an abortion.

“I'm not a lawyer. We can parse words, but I want to talk about policy,” said Rep. Matt Lehman, R-Berne. “At the end of the day, is it good policy? I think 404 is good policy. We pass bills every day that someone doesn't like and threatens to sue. This bill is drafted very tightly.”

The chamber initially started debating the bill Monday, but House Speaker Brian Bosma stopped the discussion when Rep. Peggy Mayfield, R-Martinsville, had trouble answering questions on the legislation.

Read the story to better understand the complexities of the bill.

Posted by Marcia Oddi on Wednesday, April 05, 2017
Posted to Indiana Government

Ind. Gov't. - General Assembly endorses reentry program proposed by women incarcerated at the Indiana Women's Prison

From Kathy Bottorff of WTCA Plymouth, a lengthy story that begins:

The Indiana General Assembly took the unusual step Tuesday of endorsing unanimously a reentry program for women leaving prison that was conceived and developed by the women themselves. The program, Constructing Our Future, calls for women to be trained in building trades and spend time while incarcerated rehabilitating some of the thousands of abandoned homes in Indianapolis. They have spent more than two years in their public policy classes at the prison researching, studying, drafting proposals, and presenting the program to government officials and experts.

State Representative Karlee Macer (D-Indianapolis), whose district includes the Indiana Women’s Prison (IWP), introduced the Resolution [HCR 71] and spoke in favor of it. “I could not be more proud the women working hard to change their lives and to better communities upon release,” Macer said.

Rep. Macer also read statements by two of the women who have helped develop the Constructing Our Future program. A video recording of the women’s statements is available online.

Posted by Marcia Oddi on Wednesday, April 05, 2017
Posted to Indiana Government

Ind. Law - "Gorsuch's writings borrow from other authors," including Indiana Law Journal

John Bresnahan and Burgess Everett of Politico report today (h/t Dan Carden):

Supreme Court nominee Neil Gorsuch copied the structure and language used by several authors and failed to cite source material in his book and an academic article, according to documents provided to POLITICO.

The documents show that several passages from the tenth chapter of his 2006 book, “The Future of Assisted Suicide and Euthanasia,” read nearly verbatim to a 1984 article in the Indiana Law Journal. In several other instances in that book and an academic article published in 2000, Gorsuch borrowed from the ideas, quotes and structures of scholarly and legal works without citing them.

See the Politco article, or this tweet, for a striking side-by-side of a portion of Gorsuch's and Kuzma's articles.

ILB: Here is the Indiana Law Journal article. Ms. Kuzma, a long-time Deputy AG in Indiana, recently ran in the Republican primary against Curtis Hill (see June 13, 2016 post) and was among those interviewed for the second 2012 Indiana Supreme Court vacancy.

Posted by Marcia Oddi on Wednesday, April 05, 2017
Posted to Indiana Law

Ind. Decisions - More on: En banc 7th Circuit reverses Hively v. Ivy Tech

Updating yesterday's ILB post, here is some of the press coverage:

Posted by Marcia Oddi on Wednesday, April 05, 2017
Posted to Ind. (7th Cir.) Decisions

Tuesday, April 04, 2017

Ind. Decisions - En banc 7th Circuit reverses Hively v. Ivy Tech

The 7th Circuit heard the en banc oral orgument in Hively v. Ivy Tech on Nov. 30, 2016. See this ILB post, which links to the oral argument:

All 9 active judges on the 7th Circuit participated, along with (as the rules provide) the two senior status judges who were on the original panel. This leaves only Senior Judge Manion as a non-participant. So the lineup today was: Wood, Bauer, Posner, Flaum, Easterbrook, Ripple, Kanne, Rovner, Williams, Sykes, and Hamilton.
See this list of all earlier ILB posts on Hively, including a long, excellent story written the day of the oral argument by Michael J. Bologna of Bloomberg BNA, that begins:
Discrimination based on sexual orientation might be prohibited by federal law, several Seventh Circuit judges suggested, raising hopes among gay rights advocates that the court is poised to fill a gap in the nation’s anti-bias laws.

Six of the 11 judges of the U.S. Court of Appeals for the Seventh Circuit questioned an Indiana employer’s assertion that Title VII of the 1964 Civil Rights Act offers no protection to a lesbian employee who said she was discriminated against because of her sexual orientation.

The judges, hearing oral arguments Nov. 30, expressed frustration with the employer’s strict interpretation of the plain language of the statute.

A critical question before the court is whether Title VII’s prohibition against discrimination on the basis of sex includes discrimination based on sexual orientation.

Title VII says nothing about protections for individuals based on sexual orientation, and Congress has declined to add sexual orientation as a protected class under the statute, John Maley, the attorney for the employer, Ivy Tech Community College, told the court.

Today's Ruling: The vote in today's 69-page opinion is 8-3. The lineup of those participating was: Wood, Bauer, Posner, Flaum, Easterbrook, Ripple, Kanne, Rovner, Williams, Sykes, and Hamilton.

Chief Judge Wood authors the opinion; Judge Posner concurs, beginning on p. 24; Flaum, joined by Ripple, join Parts I and II, beginning on p. 35; Sikes, Bauer and Kanne dissent, beginning at p. 41.

CJ Wood's opinion begins:

WOOD, Chief Judge. Title VII of the Civil Rights Act of 1964 makes it unlawful for employers subject to the Act to discriminate on the basis of a person’s “race, color, religion, sex, or national origin … .” 42 U.S.C. § 2000e-2(a). For many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation. The Supreme Court, however, has never spoken to that question. In this case, we have been asked to take a fresh look at our position in light of developments at the Supreme Court extending over two decades. We have done so, and we conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination. We therefore reverse the district court’s judgment dismissing Kimberly Hively’s suit against Ivy Tech Community College and remand for further proceedings.
Here is the initial AP coverage, in the Chicago Tribune.

ILB readers may recall
this post from March 13, where the 11th Circuit ruled, per the AP, "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."

Posted by Marcia Oddi on Tuesday, April 04, 2017
Posted to Ind. (7th Cir.) Decisions

Vacancy On Supreme Court 2017 - Interviews for Supreme Court finalists set for April 18-19

From the JNC:

The Judicial Nominating Commission will conduct public interviews of eleven finalists for a vacancy on the Indiana Supreme Court. The interview schedule is as follows:

April 18 (Tuesday)

9:30 a.m. – 10:00 a.m. – Hon. Vicki L. Carmichael

10:00 a.m. – 10:30 a.m. – Rep. Thomas W. Washburne

10:30 a.m. – 11:00 a.m. – Hon. Christopher M. Goff

(Break)

11:15 a.m. – 11:45 a.m. – Mr. William N. Riley

11:45 a.m. – 12:15 a.m. – Hon. Maria D. Granger

12:15 a.m. – 12:45 p.m. – Ms. Elizabeth C. Green

1:00 p.m. – 4:30 p.m. – Lunch and executive session to consider applications

April 19 (Wednesday)

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

(Break)

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

After deliberation in executive session on April 19, the Commission will publicly vote to send three nominees to the Governor. The Governor has 60 days to select Indiana's next justice once the formal submission is provided by the Commission.

Posted by Marcia Oddi on Tuesday, April 04, 2017
Posted to Vacancy on Supreme Court - 2017

Ind. Decisions - 2-1 7th Cir opinion on SORNA, out of Wis.

In USA v. Lena Haslage (Wis.), a 2-1, April 3, 2017 opinion, Chief Judge Wood writes:

In Nichols v. United States, 136 S.Ct. 1113 (2016), the Supreme Court held that a sex oěender was not required under the Sex Oěender Registration and NotięcaȬ tion Act (SORNA), 18 U.S.C. § 2250, to update his registration in the state where he had been residing, after he left his home and moved to a new place. In Nichols, the new place was outȬ side the United States, in the Philippines. The two cases we have consolidated for disposition on appeal present the more conventional scenario of a person who moves from one state in the United States to another—in Lena Rae Haslage’s case, from Wisconsin to Washington State, and in Taungra Nicole Toney’s case, from Wisconsin to Minnesota. In both cases, the district courts dismissed the indictments for improper venue. The government has appealed. We conclude, however, that the district courts properly applied Nichols and that their judgments must be aĜrmed. * * *

[p. 11] SYKES, Circuit Judge, dissenting. I disagree that Nichols v. United States, 136 S. Ct. 1113 (2016), precludes the governȬ ment from prosecuting these SORNA oěenses in the Eastern District of Wisconsin. Nichols addressed the scope of the registration duty set forth in 42 U.S.C. § 16913, which estabȬ lishes SORNA’s basic registration requirements for sex oěenders. The decision did not address the elements of the criminal oěense under 18 U.S.C. § 2250(a), which makes it a crime to travel in interstate commerce and fail to register as required by SORNA. Nor did the Court touch on the venue question presented here.

[BTW, I have no idea why some of the type is mapping this way.]

Posted by Marcia Oddi on Tuesday, April 04, 2017
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (1):

In Joseph Lee Pierson v. State of Indiana, a 15-page opinion, Judge Baker writes:

Joseph Pierson appeals his conviction for Neglect of a Dependent Resulting in Death, a Class A Felony. He argues that because he is intellectually disabled he could not have formed the requisite intent to knowingly and voluntarily neglect a dependent; instead, he requests that he be convicted of reckless homicide. Additionally, he argues that the trial court erred by permitting one expert witness to testify via video deposition, and by permitting another expert witness to suggest that the legal definition of “mental disease” or “insanity” requires psychosis or hallucination. We find that there was sufficient evidence from which a jury could find that Pierson acted in a knowing and voluntary manner, that parties in a criminal case are permitted to agree to use a video deposition, and that the full context of the experts’ remarks did not mislead the jury of the applicable legal standards; accordingly, we affirm.
NFP civil decisions today (0):

NFP juvenile and criminal decisions today (5):

Joseph P. Holstead v. State of Indiana (mem. dec.)

Jeremy Alan Riddle v. State of Indiana (mem. dec.)

James A. McNabb v. State of Indiana (mem. dec.)

Steven N. Hyland v. State of Indiana (mem. dec.)

Natividad Perez-Mendoza v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, April 04, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - More on: Plaintiffs file brief in response to State's appeal to 7th Circuit of "birth certificate case"

Updating this ILB post from March 31, which includes links to the briefs of the parties in the appeal of Henderson v. Adams to the 7th Circuit (see this Courthouse News story for links to the earlier rulings), a number of amicus briefs have been, or are in the process of being filed in support of the plaintiffs-appelles. Here is the list so far, new filings will be added when available:

Posted by Marcia Oddi on Tuesday, April 04, 2017
Posted to Ind Fed D.Ct. Decisions

Ind. Decisions - More on: Federal court grants injunction in PPIK challenge to Indiana mandatory 18-hour ultrasound law from 2016

Updating this ILB post from last Friday, March 31st, which included links to federal Judge Tanya Walton Pratt's ruling plus a link to the law at issue, today Fatima Hussein of the Indianapolis Star has a long, front-page story headlined "Indiana's abortion ultrasound requirement shut down by federal judge." It begins:

A federal judge has prohibited Indiana from forcing women to undergo an ultrasound at least 18 hours prior to an abortion procedure — a decision hailed as a "major victory" for abortion rights advocates.

The requirement, included in a state law passed last year, was struck down by U.S. District Judge Tanya Walton Pratt in her 53-page opinion issued late Friday after a hearing last November.

Indiana Attorney General Curtis Hill said he is considering whether to appeal the decision.

The law was challenged by Planned Parenthood of Indiana and Kentucky, which argued it was unconstitutional because it put an undue burden on women seeking an abortion and serves no purpose other than to block their right to an abortion.

The state argued the rule does not create such a burden, but gives women time to reflect on a momentous life decision.

Prior to the adoption of House Enrolled Act 1337 last year, women seeking abortions in Indiana were required to obtain an ultrasound, but it could be done on the same day as the abortion procedure. The 18-hour mandate applied additional “informed-consent appointments,” during which abortion providers were required to give women information regarding pregnancy and abortion.

While the informed consent appointments could be completed at any of Planned Parenthood’s 17 Indiana health centers, only six its centers provide ultrasounds. So the 18-hour requirement would have forced some Indiana women in rural areas to travel “400 miles” to attend two required appointments, rather than one, according to court documents.

More from the story:
HEA 1337 has been described as one of the nation's most restrictive abortion laws. The law went into effect on July 1, 2016, and was signed by then Gov. Mike Pence, who is now vice president.

It also required funerals for fetal remains, and the identities of abortion providers must be public information. Also, individual doctors can be liable for violating a state statute. Pratt has already suspended those provisions of the law.

ILB: The General Assembly is considering imposing additional abortion restrictions this session. See this post from March 14th.

Posted by Marcia Oddi on Tuesday, April 04, 2017
Posted to Ind Fed D.Ct. Decisions

Monday, April 03, 2017

Ind. Decisions - Transfer list for week ending March 31, 2017

Here is the Clerk's transfer list for the week ending Friday, March 31, 2017. It is one page (and 18 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Monday, April 03, 2017
Posted to Indiana Transfer Lists

Ind. Decisions - McKeen v. Turner: "Hail Mary Passes & Banana Peels"

The March 23rd oral argument in McKeen v. Turner, a argument where the Supreme Court had not yet decided whether to grant transfer (watch the oral argument here and read the ILB summary of the Court of Appeals' Oct. 4, 2016 opinion here), is the subject of a good story by Norman Tabler, Jr., Faegre Baker Daniels, in JD Supra Business Advisor:

March 23 saw a rare spectacle in the courtroom of the Indiana Supreme Court: lawyers for a medical malpractice case plaintiff, supported by the Indiana Trial Lawyers as amicus, and lawyers for the physician defendant in the case, supported by Defense Trial Counsel of Indiana as amicus, argued for the same result: the Supreme Court should accept the petition for transfer of a case from the Indiana Court of Appeals.

But being lawyers, the two sides had diametrically opposed reasons for seeking that result. The defendant and defense bar want the Court to overturn the decision, while the plaintiff and trial lawyers want the Court to affirm it.

The decision at issue is McKeen v. Turner, which came down in favor of the plaintiff, ruling that the 2011 Court of Appeals case, K.D. v. Chambers, “was wrongly decided and/or has been misread.” That 2011 opinion has generally been read to prevent a medical malpractice plaintiff from raising a theory of liability in court that was not raised before the Medical Review Panel proceeding, which in Indiana precedes the court case.

The physician defendant in McKeen and the defense bar love K.D. and hate McKeen. The defendant’s lawyer argued that McKeen allows a plaintiff who is unhappy with the panel’s decision to “throw a hail Mary pass on the eve of trial,” raising a theory that neither the defendant nor the panel has considered.

The plaintiff in McKeen and the plaintiffs’ bar hate K.D. and love McKeen. They want the Court to grant transfer so that McKeen can be “summarily affirmed.” The Trial Lawyers representative told the Court that K.D. is “a banana peel on the floor” that everyone keeps slipping on. Whenever a plaintiff raises a new argument, the defendant yells “waiver” and cites K.D. The plaintiffs’ bar wants to Court to make it clear that K.D. is not good law.

Only lawyers could maneuver themselves into a position to completely agree in order to completely disagree.

ILB: Here is the case docket. The most recent entry is:
3/29/2017
Attorney: O'Neill, Michael
Party: Charles McKeen, M.D.
Notice of Inadvertent Misstatement During Oral Argument

Posted by Marcia Oddi on Monday, April 03, 2017
Posted to Ind. App.Ct. Decisions

Ind. Gov't. - More on: Approaching legislative deadlines

Updating this ILB post from March 30th, Dan Carden reported in this weekend in the NWI Times: "End is in sight for 2017 Indiana General Assembly." Some quotes:

INDIANAPOLIS — The Indiana General Assembly is planning to adjourn for the year in just three weeks, leaving lawmakers little time to work out compromises on some of the biggest issues of the session. * * *

Despite the numerous boxes that need checking on the Legislature's to-do list prior to its planned April 21 adjournment, House Speaker Brian Bosma, R-Indianapolis, is optimistic it will get done.

"I'm confident we're going to come to reasonable conclusions on all of these, and then deal with some other things," Bosma said. "If we didn't sell guns and alcohol in this state my job would be a lot easier."

Senate President David Long, R-Fort Wayne, also anticipates ending the four-month session several days before the mandatory April 29 deadline, but he said April 21 "is not necessarily the endgame if we can't come to yes."

"We're working hard to get there," Long said.

Dispite the projected closing date just two weeks from Friday, Committee meetings are still occuring today, and one, Senate Veterans Affirms, is set for tomorrow.

Posted by Marcia Oddi on Monday, April 03, 2017
Posted to Indiana Government

Ind. Law - "Is it ever good if lawmakers have to preface law w/ their intent?"

Niki Kelly of the Fort Wayne Journal Gazette tweets this morning: "Back at it this morning. Looking at new amendments on cold beer. Is it ever good if lawmakers have to preference law w/ their intent?"

Checking the current edition of the Drafting Manual for the Indiana General Assembly, page 51 [p. 65 in PDF]:

Avoid the use of preambles. A preamble is similar to a Concurrent Resolution; that is, it is a statement that does not have the effect of law but reflects the sentiment of the General Assembly at the time that it is passed. A preamble is permitted only in the rare instance when there is a need to express the reasons for legislation, the purpose of legislation, or findings related to legislation on the face of the bill itself. This material takes the form of "Whereas" clauses that are placed at the beginning of the bill following the title and before the enacting clause. Since a preamble appears before the enacting clause, the preamble is not printed as a part of the law in the Indiana Code but does appear in the session laws.
See also page 62 [p. 76 in PDF]:
(2) Purpose Provisions (See also BILL PREAMBLE, page 51.)
A well-drafted act requires no statement of what it seeks to accomplish or the reasons prompting its enactment. In general, do not include language stating the purpose of an act or reciting the facts upon which an act is predicated unless the included language would be useful in upholding the act against constitutional attack or is necessary to give meaning to a provision for liberal construction. Note that problems can arise if a purpose provision conflicts with other parts of the statute.

Posted by Marcia Oddi on Monday, April 03, 2017
Posted to Indiana Law

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 4/3/17):

Next week's oral arguments before the Supreme Court (week of 4/10/17):

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 4/3/17):

Friday, April 7

Next week's oral arguments before the Court of Appeals (week of 4/10/17):

Tuesday, April 11

Wednesday, April 12

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 03, 2017
Posted to Upcoming Oral Arguments