Tuesday, January 27, 2015
A teaching moment - Trust no one!
Professor Joel Schumm sends this West copy of a Court of Appeals ruling from Oct. 7, 2014. The case is Clark v. State. West clearly marks the decision, downloaded today, as "a not-for-publication memorandum decision" which "shall not be regarded as precedent and shall not be cited by any court."
But the same opinion, accessed today from the Courts own website, shows the ruling to be a for-publication opinion! Furthermore, a check of the case docket reveals not only no mention that this opinion was ever NFP, but that a petition to transfer the case was denied by the Supreme Court via a Dec. 19, 2014 order.
Worse, the Court website includes this:
DISCLAIMER: Opinions posted here are for informational purposes only. Official copies of opinions are available from West (Thomson/Reuters) or from the Clerk of the Supreme Court, Court of Appeals, and Tax Court.So does this mean West has the power to make an opinion non-precedental?
Ind. Gov't. - "Will lawmakers learn from Behning case?"
Veteran Statehouse reporter Lesley Weidenbener has a good column today in the Indianapolis Star. Some quotes:
Ethics questions involving House Education Chairman Bob Behning rose and fell last week in just a matter of days, but the underlying issues shouldn't go away so quickly. * * *
Behning backed off and told the Ethics Committee he would no longer be pursing a contract with the testing company. He then told The Indianapolis Star – which broke the story – that he's no longer looking to lobby in other states.
"That has become very clear to me that in today's world that is just something I should not look at," Behning told The Star's Tom LoBianco when asked if he would seek any other lobbying clients.
What's worrisome is that it wasn't already clear or that it might ever have been OK.
Granted, Indiana has a part-time legislature, meaning the majority of lawmakers have full-time or part-time jobs outside their positions as elected officials. The House and Senate have lawyers, teachers, real estate agents and others who are in some way regulated or affected by state government.
And often, those lawmakers serve on the very committees that set the rules for their professions. To a large degree, that is the nature of a part-time legislature and that's why the chambers set up rules that require lawmakers to abstain from votes that affect their finances or their jobs directly.
Already, the House is working on new ethics rules that will require more transparency and impose new restrictions on executive branch employees. The proposal follows Statehouse scandals involving a lawmaker accused of privately lobbying for legislation in which he had a financial interest and a former state superintendent who allegedly used his office for political gain.
But no set of rules or guidelines can foresee every potential conflict of interest. No law can anticipate all the creative ways that public officials can try to use their office for personal gain. Instead, the public must count on the General Assembly and individual lawmakers to police themselves. That starts with common sense, something that doesn't appear to have been present in the Behning case. * * *
It's not clear what Bosma or the House Ethics Committee would have done had Behning not withdrawn his lobbying proposal. But it seems obvious what they should have done: Forced Behning to choose between representing his constituents or representing a company that could have been affected by his actions.
Hopefully in the future, lawmakers will make the right choice.
Weidenbener is executive editor of TheStatehouseFile.com.
Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)
For publication opinions today (2):
In Christopher Tiplick v. State of Indiana , a 16-page, 2-1 opinion, Judge May writes:
Christopher Tiplick appeals the denial of his motion to dismiss eleven counts of his eighteen count indictment. He presents multiple issues for our review, one of which we find dispositive: whether, at the time of Tiplick’s alleged offenses, Ind. Code § 35-48-4-10(a), which prohibited dealing in a synthetic drug, and Ind. Code § 35-48-4-11, which prohibited possession of a synthetic drug, were unconstitutionally vague when the synthetic drug alleged to have been dealt in or possessed was not listed in the relevant definitional statutes and can be found only in the Pharmacy Board Regulations? We reverse and remand. * * *In Aadil Ashfaque v. State of Indiana , a 13-page opinion, Judge May writes:
Tiplick argues Ind. Code § 35-31.5-2-321(9) and by implication Ind. Code § 25-26-13-4.1 are void for vagueness because their “numerous cross-references, undefined terms, and required monitoring of Indiana statutes and promulgations of the Pharmacy Board cannot be understood by an ordinary person.” (Br. of Appellant at 27.) We agree. * * *
Tiplick’s charging information indicated he allegedly sold and possessed a synthetic drug, identified in the probable cause affidavit as XLR11. That drug was not listed as a synthetic drug under Ind. Code §§ 35-31.5-2-321(1-8) on September 20, 2012, October 9, 2012, and October 10, 2012, the dates Tiplick’s alleged crimes occurred, and nothing in the charging information indicates which Pharmacy Board emergency rule declared XLR11 a synthetic drug pursuant to the provisions in Ind. Code § 35-31.5-2-321(9) and Ind. Code § 25-26-13-4.1 (2012). A Pharmacy Board Emergency Rule, LSA Document # 12-493(E) (“Emergency Rule”), declared XLR11 a “synthetic substance” effective September 15, 2012.12 However, Ind. Code § 25-26-13-4.1 did not authorize the Pharmacy Board to declare something a “synthetic substance” in an Emergency Rule. Instead, the Emergency Rule permits the declaration of a substance as a “synthetic drug.” While that distinction may seem trivial, we believe the technical nature of this particular statute requires precision in language. For example, the Pharmacy Board may declare a new chemical concoction used to treat a deadly disease a “synthetic substance” and such a declaration would not invoke the criminal consequences as would the Pharmacy Board’s declaration of something as a “synthetic drug.” See Brown v. State, 868 N.E.2d 464, 468 (Ind. 2007) (noting alternate, legal uses for terms and the unconstitutional vagueness stemming therefrom). This linguistic confusion only adds to the vagueness of this statutory structure. * * *
To require a citizen of ordinary intelligence to meticulously search through the criminal code, the administrative code, and not-yet-codified agency rules for information regarding a charge, only to be sent on a “Where’s Waldo” expedition is ludicrous. See Aquila, Inc. v. C.W. Mining, 545 F.3d 1258, 1268 (10th Cir. Ct App. 2008) (“When a party’s brief fails to provide citations in support of its factual assertions, we are left to scan volumes aimlessly for asserted facts. But reading a record should not be like a game of Where’s Waldo?”). No person of ordinary intelligence could determine what behavior is prohibited by the term “synthetic drug” in Ind. Code §§ 35-48-4-10(a) and 11, based on Ind. Code §§ 35-31. 5-2-321(9) and 25-26-13-4.1, and thus the portions of Ind. Code §§ 35-48-4-10(a) and 11 in effect at the time of Tiplick’s allegedTo require a citizen of ordinary intelligence to meticulously search through the criminal code, the administrative code, and not-yet-codified agency rules for information regarding a charge, only to be sent on a “Where’s Waldo” expedition is ludicrous. See Aquila, Inc. v. C.W. Mining, 545 F.3d 1258, 1268 (10th Cir. Ct App. 2008) (“When a party’s brief fails to provide citations in support of its factual assertions, we are left to scan volumes aimlessly for asserted facts. But reading a record should not be like a game of Where’s Waldo?”). No person of ordinary intelligence could determine what behavior is prohibited by the term “synthetic drug” in Ind. Code §§ 35-48-4-10(a) and 11, based on Ind. Code §§ 35-31. 5-2-321(9) and 25-26-13-4.1, and thus the portions of Ind. Code §§ 35-48-4-10(a) and 11 in effect at the time of Tiplick’s alleged offenses are void for vagueness to the extent they rely on definitions in Ind. Code §§ 35-31.5-2-321(9) and 25-26-13-4.1. * * *
Kirsch, J., concurs.
Bailey, J., dissents, with separate opinion. [that begins at p.13 and that concludes] Not having looked to the laws that apply to one’s actions does not excuse an individual from violating those laws. Tiplick was alleged to have engaged in the sale of a drug; he does not claim that the drug was not subject to an emergency regulation. The applicable laws and regulations are not so complex or overly broad as to preclude a person of ordinary intelligence from having fair notice of the criminal nature of the sale of XLR11 on the basis of vagueness.
Aadil Ashfaque appeals the denial of his motion to dismiss Count I, Class D felony dealing in a synthetic drug1 and Count II, Class D felony possession of a synthetic drug. He presents multiple issues for our review, one of which we find dispositive: whether, at the time of Ashfaque’s alleged offenses, Ind. Code § 35-48-4-10(a), which prohibited dealing in a synthetic drug, and Ind. Code § 35-48-4-11, which prohibited possession of a synthetic drug, were unconstitutionally vague when the synthetic drug alleged to have been dealt in or possessed was not listed in the relevant provisions of the Indiana Code and could be found only in the Pharmacy Board Regulations? We reverse and remand. * * *
Ashfaque argues Ind. Code § 35-31.5-2-321(9) and by implication Ind. Code § 25-26-13-4.1 are void for vagueness because “[a]n ordinary person cannot be required to follow and understand Indiana’s synthetic drug statutory maze.” (Br. of Appellant at 25.) We agree. * * *
As Ind. Code §§ 35-48-4-10(a) and 11 form the basis for Counts I and II of Ashfaque’s charging information, and we hold those statutes are unconstitutionally vague based on the definition of “synthetic drug” set forth in Ind. Code § 35-31.5-2-321(9), the trial court erred when it denied Ashfaque’s motion to dismiss those charges. Reversed and remanded.
Friedlander, J., concurs.
Vaidik, C.J., dissents, with separate opinion. [which begins, at p. 10] I respectfully dissent from the majority’s holding that the statutory scheme in effect at the time of Ashfaque’s alleged crimes for dealing in and possession of synthetic drugs is void for vagueness because “[a]n ordinary person cannot be required to follow and understand Indiana’s synthetic drug statutory maze.” Slip op. at 5 (quotation omitted). I do so for the same reasons identified today in Judge Bailey’s dissent in Tiplick v. State, No. 49A04-1312-CR-617 (Ind. Ct. App. Jan. 27, 2015).
I do not share the majority’s concern that Emergency Rule 12-493(E)’s use of the term “synthetic substance” instead of “synthetic drug” causes “linguistic confusion” that “adds to the vagueness of this statutory structure.”
NFP civil opinions today (6):
NFP criminal opinions today (0):
ILB NOTE: Yesterday, which was the first day of the new opinions format, NFPs were not listed as such on the opinions page, but were so identified in the rulings themselves. Today, opinions which have previously been identified as "(NFP)" are identified on the opinions page as either "(Mem. Dec.)" or "(mem.dec)". Apparently these changes in designation this week reflect a change in the wording of Appellate Rule 65(A) (distinguishing between COA "opinions" and COA "memorandum decisions"), which I believe went into operation Jan. 1, 2015.
Ind. Courts - "Monroe County Veterans Court Experiences Delays"
Indiana's veterans courts were lauded in Chief Justice Rush's State of the Judiciary speech earlier this month. However, according to this story today by Lindsey Wright at Indiana Public Media, the one planned for Monroe County can't get off the ground. That in spite of the fact that:
Special courts for veterans have already been established in several Indiana counties, including Floyd, Porter, Grant and Vanderburgh counties.
Monday, January 26, 2015
Ind. Courts - "Courts seek funds for statewide e-filing availability"
Dan Carden of the NWI Times reported today [ILB emphasis added]:
In the not-to-distant future, all Indiana court documents could be filed electronically and accessed by anyone with an Internet connection at no charge.ILB: The ILB found this statement interesting, given that we have three equal branches of government: "Gov. Mike Pence did not include money for court e-filing in his proposed state budget."
That's the vision for e-filing Indiana Chief Justice Loretta Rush shared with members of the General Assembly in her first State of the Judiciary address earlier this month.
"Imagine the hours and costs required to shepherd tens of millions of pages of paper as they are filed and refiled, delivered and mailed, stored and shuffled, copied and recopied, and on and on throughout Indiana courts and agencies each year," she said. "Pennies of additional investment now will reap dollars of savings in future records management costs."
Supreme Court Justice Steven David and Court of Appeals Judge Paul Mathias are heading the state court system's e-filing effort. * * *
"E-filing is the direction we are going, it's the direction we have been going, and we intend to pursue it with much vigor," David said. "We believe the people of Indiana deserve an e-filing system."
"In a Facebook world, the basic level of service that Indiana citizens expect from their government is electronic access, and e-filing will bring that level of access to Indiana's citizens and taxpayers," he said.
The court system is requesting an additional $5 million a year from the Legislature to purchase an unlimited, statewide license for e-filing software that would enable litigants to submit paperwork electronically to the court and their opponents, as well as permitting court clerks and the public to access the records.
Under the plan, e-filing would be rolled out to a few pilot counties later this year, including at least one county using the court's Odyssey case management system and one running a different system, as well as the state's appellate courts.
Older court records would not immediately be added to the system, if ever.
Lake County could be among the first to get full e-filing since it already has been experimenting with electronic court records, under Supreme Court supervision, for several years.
David said the idea is to "get it right, then get it everywhere," but he said much depends on whether state lawmakers share the court system's vision.
For example, while David and Mathias said the courts will push ahead with e-filing even if they don't get their full funding request, they'd prefer not having to force users to pay fees for accessing records like the federal PACER e-filing system that charges 10 cents for each page viewed.
"Our interest is to make e-filing as widely accessible to as many entities as possible at the lowest possible cost," Mathias said. "We believe e-filing is the new basic level and the new basic responsibility of government services in the court system." * * *
Republican Gov. Mike Pence did not include money for court e-filing in his proposed state budget, but he also did not spend some $600 million in anticipated revenue. He said he was leaving it up to lawmakers to decide how to allocate some of that extra money.
Mathias said he is optimistic because so far he only is getting positive responses to the court's e-filing proposal.
"Those in leadership positions understand immediately that this is not the future, this is today, and this is the way that the court system can be as accessible as other branches of government and as everything else in our Internet-age lives," Mathias said.
Carden's story today appears to answer some of the questions the ILB posed in this Jan. 21st post, but everything is still totally preliminary.
Ind. Ciourts - Communications issues involving the Disciplinary Commission and local judges, prosecutors
Friday afternoon, after the ILB posted this Supreme Court disciplinary ruling, D.J. Mote, Chief Deputy Prosecutor, Jefferson County, sent the ILB this note, and granted permission to post:
Hopefully, the Commission will refer Mr. Safrin’s case to the local prosecutor’s office. There is no rule requiring them to do so. The Commission will typically treat a grievance as confidential under Ind.Admission and Discipline Rule 23.ILB: So it seems communications problems may exist in both directions. The ILB recalls reading this Aug. 16, 2013 article by Mr. Witte that includes:
If an attorney resigns his or her license before a verified complaint is filed, a prosecutor may only learn of conversion of client funds if the victim thinks to contact law enforcement. Or if a prosecutor reads about it in on ILB.
It happened to us. We learned a local attorney was under investigation for conversion of client funds. He resigned his license before they filed a verified complaint. So once he resigned, the Supreme Court lost jurisdiction over him. And since everything is confidential until a verified complaint is filed, it wasn't accessible. And there is nothing requiring the commission to tell us anything.
We read about it in the local paper (!). We ended up sending a letter to Witte asking if the Court would please release the grievance to us so we could investigate. They ultimately did.
I discussed our concern that an attorney could use the rule to avoid criminal responsibility, or worse, the public might see it as the attorney was being protected by the Court. The staff said there may be some discussion about a rule change, but I don't know where that is.
We ended up referring our case to the FBI.
A judge who has entered a criminal guilty finding against a lawyer has an affirmative duty to report the conviction to the Disciplinary Commission. * * *
Many times a court’s failure to report a conviction is exposed through the felony OWI offense. After the felony OWI is reported to the Commission it is discovered that the underlying first offense was never reported by either the offender or the judge. For the offender, this can result in a violation of Admis. Disc. R. 23 §11.1(a)(2) which aggravates the situation.
Ind. Gov't. - Some Senate bills on calendar today
2nd Reading, Senate (see entire calendar here)
SB 94 Statute of limitations for rape. Crider, Charbonneau, Steele
SB 113 Direct wine sales. Boots, Alting, Messmer
SB 368 Uniform Fiduciary Access to Digital Assets Act. Waltz, Bray, Young R Michael
3rd Reading, Senate
SB 12 Judicial retirement age. Buck, Rogers, Kruse
Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)
For publication opinions today (4):
In Curt Pearman d/b/a Greenwood Professional Park v. T. Ryan Jackson and Kristin M. Jackson, a 17-page opinion, Sr. Judge Sharpnack writes:
Issue. Whether the trial court correctly determined that, standing alone, holding over and paying rent did not constitute the exercise of the option to renew the lease, and that the lease requirement of a written notice of renewal was not waived. * * *NFP civil opinions today (1):
The clear and unambiguous terms of the lease agreement support the trial court’s conclusion. Affirmed.
NFP criminal opinions today (2):
ILB NOTE: These opinions are the first in the new format. This morning, NFPs were not listed as such on the opinions page, but were so identified in the rulings themselves. Unfortunately, the opinions include a break at the end of each line (as in the dockets) rather than at the end of each paragraph, imposing extra steps on anyone pasting quotes. Here, for instance, is a quote from today's opinion, without the breaks removed from the end of each line:
If Lessee shall occupy the Premises without or with Lessor’s consent
after the expiration of the term of this lease and rent is accepted from
Lessee such occupancy and payment shall be construed as an
extension of this lease for the term of one month only from the date of
such expiration and occupancy thereafter shall operate to extend this
lease for but one month at a time unless other terms of such extensions
are endorsed hereon in writing and signed by the Parties hereto. If
either Lessor or Lessee desire to terminate said occupancy at the end
of any month after the termination of this lease the Party desiring to
terminate shall give the other Part at [least] thirty (30) days written
notice to that effect. However, the Lessor shall not be required to give
any such notice if Lessee has failed to pay the rent in advance when
due. Failure to give such notice [on] the part of Lessee shall obligate it
to pay rent for an additional calendar month following the month in
which the Lessee vacates the Premises.
Ind. Gov't. - "Constitutional proposal would clear way for commission to draw districts"
Maureen Hayden, CNHI State Reporter, writes today:
INDIANAPOLIS — The last time lawmakers raised the issue of changing the state Constitution, they set off a volatile debate about whether same-sex couples had the right to marry. The emotionally charged conversation overshadowed much of last year’s work.
This year, lawmakers are again talking about changing the Constitution. But on a public interest level, it may be a snoozer — despite its potential impact.
The proposal alters the Constitution to remove the General Assembly’s power to decide how state and federal legislative districts are drawn every 10 years. Instead it clears the way for an independent commission to draw those maps.
Similar efforts are underway elsewhere in varied forms, but the impetus is the same — take the partisanship out of a process that favors incumbents and the party in power.
The idea has long been championed by the public watchdog group Common Cause Indiana and its tenacious policy director, Julia Vaughn. She reasons that the current system, which uses sophisticated computerized mapping to track the leanings of voters, amounts to politicians choosing voters instead of the other way around.
“It’s the ultimate conflict of interest for politicians to draw their own districts,” she says.
Her allies in the cause may seem surprising. They’re the Republican leaders with super-majorities in both chambers - House Speaker Brian Bosma and Senate President David Long.
Long has started the process to change the part of the Constitution that mandates the Legislature “fix by law the number of Senators and Representatives and apportion them among districts according to the number of inhabitants in each district, as revealed by that federal decennial census.”
It’s a lengthy process, requiring consecutive votes in separate sessions of the Legislature before going to voters, most likely in 2018.
Meanwhile, Bosma wants his colleagues to undertake a two-year study of how other states have moved toward independent redistricting. * * *
Long and Bosma say it’s about bolstering confidence and participation in the elections.
Last November, only 30 percent of Indiana’s 4.5 million registered voters bothered to cast ballots.
For some, there wasn’t much reason: In 44 state House races, the incumbent went uncontested.
The agonizingly long process of getting to an independent commission will take heat from the debate. But there may be opponents. Sen. Brandt Hershman, the Republican majority leader in the Senate, has been openly scornful of the push for independent redistricting, calling it one of the most overblown issues in Indiana politics.
Overblown or not, it could be messy. Other states have struggled to figure out what an “independent” commission looks like. Appointments to such commissions can still be political.
In California, the independent commission created by voters in 2008 has taken heat for maps that Republicans say favor Democrats. Latino groups, meanwhile, feared newly drawn districts would dilute their voting power.
Arizona’s redistricting commission — now the focus of a federal court challenge – came under fire when it was revealed that its mapmaking consultant had ties to President Obama’s 2008 campaign.
All of which explains why Long and Bosma are pushing this issue now — six years before the next redistricting.
“It’s time to take a hard look at how other states are doing this, their successes and failures,” Long said. “If we’re going to seriously look at how we redraw our districts in 2021, we have to get to work on it now.”
Ind. Decisions - Transfer list for week ending January 23, 2015
Here is the Clerk's transfer list for the week ending Friday, January 23, 2015. It is three pages (and 32 cases) long.
Two transfers were granted last week, both Rule 56(A) transfers, bypassing the Court of Appeals:
- General Electric Company v. Mary R. Geyman, et al.
- Owens-Illinois, Inc. v. Mary Geyman, et al.
Ind. Law - Some bills being heard in committee this week
Some bills being heard in Senate Committee this morning (see calendar for more info):
SB 127 - Religious exemption in state and local contracts. CIVIL LAW, 9:30
SJR 2 - Right to hunt, fish and harvest wildlife. NAT RESOURCES 10:00
Some bills being heard in House Committee this morning (see calendar for more info):
HB 1453 - Hunting preserves. NAT'L RESOURCES 10:00
HB 1090 - Background checks for drivers for hire. EMPLOYMENT 10:00
Code of Ethics - STATUTORY COMMITTEE ON ETHICS 10:00
Ind. Gov't. - "IDEM cites erosion problems on Section 4 of I-69"
Failure to install proper sediment control measures. Failure to utilize runoff control measures. Failure to take corrective action in a timely manner since it took 17 days to address issues associated with a stream and a sinkhole.
Those are some of the Water Quality Certification observations in just one report prepared by the Indiana Department of Environmental Management.
The Herald-Times requested all Rule 5 violations pertaining to Section 4 of Interstate 69, the 27-mile stretch of highway from Naval Support Activity Crane to Bloomington. IDEM denied some records related to the request, but provided access to 14 reports ranging from March 2013 to September 2014. In addition, IDEM provided two reports indicating previous issues had been resolved.
IDEM reports document a series of continuing erosion problems in Section 4 of the I-69 construction project. Yet no fines have been assessed, and it’s hard to determine whether all deficiencies in the reports have been corrected. * * *
Soil erosion and sedimentation in local waterways have been a concern for area residents and environmentalists since the I-69 project began. They’ve complained that in areas where trees and other vegetation have been cleared for the highway, bare soil is being washed away when it rains and entering local waterways. They have documented streams that once ran relatively clear now looking like chocolate milk, and even brown water coming from the faucet of one man whose drinking water came from a natural spring on his property.
Rule 5 is intended to prevent things like that from happening.
“The purpose of this rule is to establish requirements for stormwater discharges from construction activities of one acre or more so that the public health, existing water uses and aquatic biota are protected,” according to the statute.
The reports show contractors not only violated Rule 5, but in some instances, neglected areas of concern for several months. According to an inspection summary in a report dated Aug. 27, 2014, an inspection of two segments of Section 4 showed “significant erosion and sediment control work needs to be conducted.” The report continued, “The sediment discharges were noted on May 22, 2014, and have not been cleaned up nor has the area been stabilized. This area needs to be immediately brought into compliance and should take precedence over other work on the project site.”
According to a report dated April 11, 2014, several items identified as being in need of corrective action in previous reports had not been addressed. “Based on the items observed on-site, corrective action is not being initiated and oversight to ensure follow through by the contractor is absent.”
The observations listed in the report include things such as an earthen dam that was built in a tributary to Indian Creek without authorization that resulted in an unpermitted discharge of fill material.
At multiple locations, Gohmann Construction Inc. built temporary crossings on Indian Creek, which failed after a rainfall of about 0.44 inches. The crossings were reconstructed, but the contractor left rip-rap material from the failed crossings in the stream channels. That material was deposited downstream and had not been addressed by the contractor nor the Indiana Department of Transportation.
Attempts to find out the current status of those ongoing problems were unsuccessful. In a phone interview Wednesday, IDEM spokesman Barry Sneed said he would have to check on those specific reports. A reporter emailed the reports to Sneed, but did not receive a response by the deadline for this story. A phone call to Sneed on Friday was not returned.
Ind. Courts - "Herx lawyer no stranger to complex, tough cases"
Rebecca S. Green and Niki Kelly of the Fort Wayne Journal Gazette had this long story Sunday - some quotes:
Kathleen DeLaney goes to work in a 1920s home where creaky wood floors are part of the charm of the sleepy neighborhood.
No cubicles or high-rise elevators for the small, female-owned law firm located outside the hustle of downtown Indianapolis.
Instead, DeLaney’s upstairs office is warm and inviting – from the fluffy white rug to the pictures of her kids on the walls. Even her office chair is unconventional – an exercise ball chair gifted by her husband.
Those unconventional choices extend beyond the office chair to types of cases. DeLaney & DeLaney, the firm she founded in 2002 with her mother, Ann, handles everything outside of criminal law, family law and bankruptcy.
“I like the variety, and I find it intellectually stimulating not to be doing the same thing every day,” Kathleen DeLaney said. “I like to learn new things.”
That variety has built a very conventional and sturdy reputation for DeLaney, who recently squared off against the Fort Wayne-South Bend Roman Catholic Diocese and scored a nearly $2 million jury verdict in a gender discrimination case. * * *
Kathleen DeLaney knew she wanted to be a lawyer from a very young age. Both her parents are lawyers: her mother Ann, a former Marion County deputy prosecutor, and her father Ed, a retired partner from Barnes & Thornburg who represented the Federation of Bosnia and Herzegovina in the Dayton Peace Accords.
“I had good role models,” she says of her parents. “They led by example. They kept a balance between work life and family life. Work hard but smart.”
She has tried, with success, to do the same. The 46-year-old mother of three is married to Jim Strenski, who handles insurance litigation at Cantrell, Strenski & Mehringer.
Having studied international relations at Georgetown University, DeLaney postponed her second year of law school to spend about two years in London as a U.S. foreign service officer.
When she finally got back to what is now Indiana University’s Maurer School of Law, DeLaney left an impression on her professors with her analytical mind and writing ability.
“Those are traits that serve one well as a lawyer,” said Daniel Conkle, a professor of law at the school, focusing on law and religion and the First Amendment. “She was an outstanding student.” * * *
The amount of the jury’s award has been reduced from the original $1.9 million to $543,803, and DeLaney & DeLaney waits to hear what of its fees will be recovered.
The diocese has done more than hint at an appeal and last week petitioned the court to set aside the jury verdict or have a new trial on the amount of damages.
So the case of Emily Herx v. Fort Wayne-South Bend Roman Catholic Diocese is probably far from over.
In the month since the case’s conclusion at the district court level, DeLaney still receives about three media inquiries a day, along with an increase in potential client calls, particularly from the Fort Wayne area.
If she wanted to be at a bigger firm, she could be.
When asked about any possible interest in politics, DeLaney shuts down the idea with a quick no.
She says her sister is a doctor, her brother is a politician, and she is a lawyer – just as she likes it.The amount of the jury’s award has been reduced from the original $1.9 million to $543,803, and DeLaney & DeLaney waits to hear what of its fees will be recovered.
The diocese has done more than hint at an appeal and last week petitioned the court to set aside the jury verdict or have a new trial on the amount of damages.
So the case of Emily Herx v. Fort Wayne-South Bend Roman Catholic Diocese is probably far from over.
In the month since the case’s conclusion at the district court level, DeLaney still receives about three media inquiries a day, along with an increase in potential client calls, particularly from the Fort Wayne area.
If she wanted to be at a bigger firm, she could be.
When asked about any possible interest in politics, DeLaney shuts down the idea with a quick no.
She says her sister is a doctor, her brother is a politician, and she is a lawyer – just as she likes it. * * *
But DeLaney lights up a bit when the possibility of serving as a judge comes up.
“Those opportunities are few and far between, but it would be an incredible honor,” she said.
In the meantime, DeLaney loves digging into the law – including drafting briefs and doing legal research.
But nothing beats standing up before a judge and jury. During the Herx case, she said, “I was energized during that closing argument.”
Her dedication to fighting that particular battle resonates with Herx.
“I still struggle today to find the words to thank her. Even through all this, she’s still working constantly with me,” Herx said. “I’ve never seen someone so committed.”
Ind. Courts - " EDITORIAL: Keep current retirement age for jurists"
From a Jan. 20th NWI Times editorial:
ILB: SB 12 is on the Senate 3rd reading calendar today. See also this ILB post from Jan. 8.
Indiana state Sen. Earline Rogers wants to set a retirement age of 80 for future Court of Appeals judges and Supreme Court justices.
While we recognize that people over age 75 can still work hard and contribute — Rogers, at age 80, is Exhibit A — we also appreciate the value of a fresh perspective.
Senate Bill 12, co-sponsored by Rogers, nearly died in a Senate committee last week as senators debated the merits of fresh ideas versus long experience that can feed wisdom.
Sen. Randy Head, R-Logansport, age 46, said older judges are staying on the bench too long, preventing younger attorneys from gaining judicial experience.
Head's argument won over three other members of the Senate Judiciary Committee, but five others, including Sen. Lonnie Randolph, D-East Chicago, supported the higher retirement age Rogers proposes.
Randolph is a co-author of SB 12.
The legislation wouldn't affect existing justices who would hit age 75 before facing a retention vote. They would still retire at 75 as scheduled, regardless of the fate of this legislation.
A 2013 Senate proposal to eliminate the retirement age altogether was passed 36-12 in the Senate but never got a vote in the House.
This year's legislation would apply only to the five Indiana Supreme Court justices and the 15 Court of Appeals judges, but Head makes a good point about getting fresh blood in those positions.
A mandatory retirement age is a somewhat arbitrary number, to be sure. But someone age 75, especially someone on the bench, should be able to retire comfortably.
This isn't about shoving experienced jurists aside; rather, it's a desire to get younger viewpoints on the issues.
Let’s keep the retirement age for judges and justices at 75.
Ind. Law. - "Allow wineries to ship to customers"
That is the headline to this story by Chris Morisse Vizza in the Jan. 23rd Lafayette Journal & Courier. Some quotes:
State Sen. Ron Alting may not be a fan of Sunday alcohol sales, but on Friday he said he's the proud co-author of a bill that would allow Indiana wineries to ship their products to customers in and out of state.
Currently, Hoosier wineries can only ship their products to customers they have met face-to-face who've filled out paperwork and provided identification proving they are 21 years or older.
Senate Bill 113 would eliminate the in-person visit, but customers would be required to provide identification when an order is placed and again in person when the wine is delivered to their doorstep.
The change clears the way for Indiana's nearly 100 wineries to grow exponentially, he said. * * *
The bill unanimously passed the Senate Public Policy committee, which Alting chairs. He expects it will win approval from the full Senate and move through the Indiana House with no problem.
Rick Black, co-owner of Wildcat Creek Winery in Tippecanoe County, said he and his wife have been journeying down to the statehouse for five years trying to get similar legislation through the General Assembly.
"When we found out this was the first bill to be heard by his committee, we knew it finally had a chance," he said. "This is the greatest thing since sliced bread for us."
Courts - "Indiana church sues JPMorgan for millions"
According to this KCCI8 News, Des Moines story by Heather Long (NEW YORK (CNNMoney), Christ Church Cathedral, which is the church on the Indianapolis Circle:
... is suing JPMorgan Chase for millions.The story ends with:
The church claims that JPMorgan intentionally mismanaged its funds, which shrank in the past decade. Meanwhile, the fees the church paid JPMorgan skyrocketed.
The church has had to scale back its charitable work in Indianapolis and abroad because of an alleged $13 million in losses caused by JPMorgan. After many hours of prayer and frustrating dialogue with the bank, Christ Church decided to fight. * * *
Founded in 1837 in the heart of Indianapolis, the Episcopal congregation has a large trust fund, thanks to Eli Lilly, Jr., who built his family's pharmaceutical company Eli Lilly into a power player. Lilly, Jr. gifted the church 10% of his massive estate in the 1970s.
Not wanting to burden the church with handling such a large endowment, Lilly appointed three banks -- Indiana National Bank, American Fletcher National Bank and Trust and Merchants National Bank & Trust Company of Indianapolis -- as trustees. They were all located within a few blocks of the church.
The plan was to keep the money in reliable local hands, but that imploded after JPMorgan acquired two of the three banks in 2004.
Suddenly a Wall Street bank that's headquartered hundreds of miles away was calling the shots.
The church's investments began to change rapidly once JPMorgan took control. Almost overnight, the church's fairly mundane portfolio of stock and bond funds was replaced with a litany of JPMorgan's own funds, according to the court filing.
JPMorgan changes the church investments: By 2007, JPMorgan even started adding so-called alternative investments -- structured notes, derivatives and hedge funds. Complex investments like those usually result in higher fees for JPMorgan.
The church paid over five times more in fees -- rising to $177,800 by 2013 from $35,000 a year in 2004. And that was just the basic management fee. There were other fees that JPMorgan tacked on, although the bank never fully disclosed those despite repeated requests from the church, the lawsuit alleges. * * *
When JPMorgan took over the church's trust fund in the summer of 2004, it had $34.6 million. By December 2013, the value fell to $31.6 million, according to the lawsuit. For context, the Dow Jones Industrial Average rose over 50% during that time frame.
The losses meant the church wasn't able to do as much for downtown Indianapolis or places around the world. The church is a key supporter of a food bank, a homeless shelter and a center of abused women, and it gave aid to Haiti.
"We've had to cut staff and cut back on the amount of money we give away to the community," says Rev. Carlsen. "The cutbacks have been real."
JPMorgan fires back: JPMorgan is fighting the lawsuit, claiming the church is "cherry picking" the details. The bank denies poor performance. * * *
The church repeatedly tried to become more involved in the management of the funds despite the restrictions in Lilly Jr.'s will. By the end of 2013, JPMorgan voluntarily stepped down as trustee and an Indiana court appointed Christ Church Cathedral Foundation as the new trustee.
"It's not cherry picking...It's like they got cherry juice all over them," says Linda Pence of Pence Hensel, the law firm representing Christ Church Cathedral.
The church is seeking to recover $13 million in investment losses from JPMorgan, plus legal costs.
A bigger debate: The Indianapolis church isn't alone. Sandscrest Foundation, a retreat center in West Virginia, has filed a similar lawsuit against JPMorgan for mismanagement of a charitable trust.
At the heart of these cases is a bigger debate about conflicts of interest when big banks serve as trustees of foundations and have the ability to use client money to buy the bank's own investment products.
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 1/26/15):
- No oral arguments currently scheduled.
Next week's oral arguments before the Supreme Court (week of 2/2/15):
Thursday, Feb. 5
- 9:00 AM - Robert Lewis, III v. State of Indiana (45S00-1312-LW-512) In the Lake Superior Court, Lewis was found guilty of murder. After the jury was unable to reach a sentencing recommendation, the judge sentenced Lewis to life imprisonment without parole. In this direct appeal, Lewis raises several challenges to his conviction and sentence.
- 9:45 AM - Selective Insurance Company of South Carolina and 500 Rangeline Road, LLC v. Erie Insurance Exchange (73S01-1412-PL-750) Pipes burst at a warehouse and damaged property the warehouse's tenant had stored for its customer. The tenant's insurance company paid the customer and then filed a complaint to recover this amount from the warehouse's landlord and its insurance company. The Shelby Superior Court entered summary judgment for the tenant's insurer. The Court of Appeals reversed and remanded, holding the warehouse's landlord was an "additional insured" under the tenant's policy and the policy's exclusion for damage to property within the insured's "care, custody, or control" did not apply. Selective Ins. Co. v. Erie Ins. Exch., 14 N.E.3d 105 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer and has assumed jurisdiction over the appeal.
ILB: This was a July 1 ruling in a coverage dispute; see ILB summary here (2nd case).
- 10:30 AM - Rebecca Stafford, Individually and as Surviving Parent of Drayden Powell, Deceased v. James E. Szymanowski, M.D. and Gyn, Ltd., Inc. and Joseph B. Clemente, M.D. (89A01-1401-CT-48) In this medical malpractice case, the Wayne Superior Court granted the defendants summary judgment. The Court of Appeals affirmed. Stafford v. Szymanowski, 13 N.E.3d 890 (Ind. Ct. App. 2014). The plaintiff has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a July 15, 2014 ruling concluding:
Based on the foregoing, we conclude that (1) the trial court properly concluded that Dr. Brickner’s testimony did not create a genuine issue of material fact as to the liability of Dr. Szymanowski; (2) GYN cannot be held vicariously liable for the perceived acts of medical malpractice committed by Dr. Smith when Dr. Smith’s conduct was never reviewed by the medical review panel; and (3) the trial court properly concluded that no recovery exists for the 2007 death of a child not born alive under the Child Wrongful Death Statute, as amended.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 1/26/15):
- No oral arguments currently scheduled.
Next week's oral arguments before the Court of Appeals (week of 2/2/15):
- No oral arguments currently scheduled.
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast. [Note: This may be changing...]
The past COA webcasts 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.
Friday, January 23, 2015
Ind. Decisions - Supreme Court issues order late this afternoon in case of Muncie City Judge
In In the Matter of the Honorable Dianna L. Bennington, Judge of the Muncie City Court, a one-page order accepting the facts and discipline agreed to by the Commission on Judicial Qualification and Respondent, accompanied by the 18-page Statement of Circumstances and Conditional Agreement for Discipline, all justices concur:
Accordingly, Dianna L. Bennington is hereby PERMANENTLY BANNED from serving in any judicial capacity of any kind, including but not limited to service as a judge pro tempore, temporary judge, or private judge Within five (5) days of this Order, Respondent shall submit her resignation to the Governor, which resignation shall be effective immediately.According to p. 17 of the combined documents:
The parties agree that the appropriate sanction in this matter on Counts I, II, IV, V, VI, VIII, IX, X, XI, XII, and XIII is a permanent ban from judicial office but that Respondent should be permitted to retain her license to practice law.Here is a list of earlier ILB posts on the Muncie City Judge.
Ind. Decisions - Supreme Court suspends Carmel attorney without automatic reinstatement
In In the Matter of Ronald A. Safrin, a three-page, 5-0 order, the Court writes in part:
Count 1. Respondent maintained two attorney/client trust accounts ("Trust Accounts"), neither of which were registered as an Interest on Lawyers Trust Account ("IOLTA"). Respondent did not notify the banks that the Trust Accounts were subject to overdraft reporting to the Commission. On his Attorney Annual Registration Statements from 2008 through 2011, Respondent falsely stated that he was exempt from maintaining an IOLTA.ILB: See also this ILB post from a year ago where another Carmel attorney with the same last name had resigned from the bar.
Over several years, Respondent shared signatory authority for the Trust Accounts with another lawyer, who stole money from the Trust Accounts. This resulted in overdrafts, which were not reported to the Commission because the accounts were not registered as IOLTA accounts. By failing to properly register the Trust Accounts as IOLTA accounts, Respondent enabled the other lawyer to steal client funds from those accounts. * * *
Discipline: Respondent's repeated dishonesty in his Attorney Annual Registration Statements and in his communications with the Commission are serious ethical violations. "It is a perversion of the disciplinary enforcement mechanism when a lawyer intentionally places false statements of fact before the Commission." Matter of Shumate, 626 N.E.2d 459, 461 (Ind. 1993).
The parties propose the appropriate discipline is suspension for six months, without automatic reinstatement. The Court, having considered the submissions of the parties, now approves the agreed discipline.
For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than six months, without automatic reinstatement, beginning February 28, 2015. * * *
 The attorney who stole money from the Trust Accounts has resigned from the practice of law.
Ind. Decisions - 7th Circuit decides one Indiana case today, re duty to indemnify and defend
In Visteon Corporation v. National Union Fire Insurance (SD Ind., Young), an 11-page opinion, Judge Posner writes:
Visteon, a large manufacturer of automotive parts, with manufacturing facilities scattered around the world but its headquarters in Michigan, brought this diversity suit for breach of contract against the National Union insurance company. Visteon had bought a liability insurance policy from National Union providing worldwide liability coverage between 2000 and 2002. The policy contains an exclusion for liability resulting from pollution caused by Visteon, but the exclusion is expressly made inapplicable to liability arising from a “Completed Operations Hazard.” National Union has refused to indemnify or defend Visteon from suits arising from pollution caused by one of Visteon’s plants. * * *
The plant in question was in Connersville, Indiana. In 2001, and thus during the insurance coverage period, the powerful toxic solvent TCE that was used to clean machin-ery in the plant was discovered to have leaked into the soil and groundwater. Neighboring landowners sued Visteon for damages caused by the leakage. Visteon expended millions of dollars to settle the suits and additional millions to clean up the pollution that the leakage had caused. When National Union refused either to defend Visteon or to reimburse it for any of the costs it had incurred, Visteon filed this suit in an Indiana state court; National Union removed the case to fed-eral district court.
A dispute soon arose between the parties over whether Indiana or Michigan law governed the substantive issues in the case. Visteon wanted Indiana law to apply because Indiana does not enforce standard pollution-exclusion clauses, and the insurance policy included as we noted such a clause; Indiana requires that for such a clause to be enforceable the policy must “specify what falls within its pollution exclu-sion.” State Automobile Mutual Ins. Co. v. Flexdar, Inc., 964 N.E.2d 845, 851 (Ind. 2012). TCE is one of the pollutants that must be specified, and it was not specified in the policy that National Union had sold to Visteon. Michigan law, however, does enforce the more general kind of pollution-exclusion clause found in the policy, City of Grosse Pointe Park v. Michigan Municipal Liability & Property Pool, 702 N.W.2d 106, 114 (Mich. 2005), and so Michigan was National Union’s pre-ferred choice for the governing law. The district court ruled that Michigan law governed.
A second question addressed by the district court was whether, under Michigan law, Visteon’s liability from the TCE leak was within the scope of the Completed Operations Hazard clause of the insurance policy, an exception as we mentioned to the pollution-exclusion clause. The district court ruled that Visteon was not entitled to coverage under that clause and so dismissed Visteon’s entire suit. Having thus struck out in the district court, Visteon has appealed to us. * * *
[The present litigation] arises from the insurance contract between Visteon and National Union, and the contract is not limited to Visteon’s Connersville plant—it covers all of Visteon’s plants, the world over. The Indiana Supreme Court has decided that in the case of an alleged breach of a contract insuring against liability for environ-mental contamination that could occur at different sites, Indiana will follow what is called the “uniform-contract-interpretation approach,” which “applies the law of a single state to the whole contract even though [the contract] covers multiple risks in multiple states,” and the single state that is chosen will usually be “the state having more insured sites than any other.” National Union Fire Ins. Co. of Pittsburgh, PA v. Standard Fusee Corp., 940 N.E.2d 810, 813, 815–16 (Ind. 2010) (emphasis added). * * *
We’re left with Michigan. Its law, as the district court found, determines whether National Union is liable to Viste-on for the liabilities that Visteon incurred as a result of the contamination resulting from the leak of TCE from its Indiana plant.
The insurance policy excludes coverage for damages caused by “the actual or threatened discharge, dispersal, seepage, migration, release or escape of pollutants anywhere in the world”—which obviously encompasses the TCE leak. With Michigan enforcing pollution-exclusion clauses, Viste-on is left to argue that what happened in Connersville is within an exception (part of the Completed Operations Haz-ard clause that we mentioned) to the pollution-exclusion clause for damages “occurring away from premises you own or rent and arising out of … Your Work except … work that has not yet been completed or abandoned.” So the question is whether the TCE leaked by the Connersville plant was a result of completed “work.” * * *
All these cases hold that pollution arising from ongoing op-erations (including manufacturing, as in several of the cases cited above) isn’t covered by the Completed Operations Hazard clause, even though these are cases in which the insureds were completing their performance of particular sales contracts with customers.
We note finally that the pollution-exclusion clause is unambiguous, and therefore National Union had no duty to defend Visteon against the suits brought against it by neighboring landowners who experienced losses because of the leak of TCE from Visteon’s Connersville plant.
Visteon has failed to make a case. The judgment in favor of National Union is therefore AFFIRMED.
Courts - Audio of the oral argument last week of Indy attorney before the SCOTUS
Updating this ILB post from Jan. 15, here, via Oyez.org, is the audio of the Mellouli drug deportation appeal, argued by Indy attorney Jon Laramore before the SCOTUS on Wed., Jan. 14th, 2015.
Here is the SCOTUSblog case file.
Ind. Decisions - Court of Appeals issues 4 today (and 9 NFP)
For publication opinions today (4):
In Adam Nagel and Emily Nagel v. Northern Indiana Public Service Company, a 26-page opinion, Judge Barnes writes:
Adam and Emily Nagel appeal the trial court’s refusal to impose discovery sanctions against Northern Indiana Public Service Company (“NIPSCO”) and the trial court’s grant of summary judgment in favor of NIPSCO. We affirm in part, reverse in part, and remand. * * *Jerome Perry v. State of Indiana, a 4-page opinion, Judge Crone writes:
The trial court did not abuse its discretion in refusing to sanction NIPSCO with default judgment for its purported delays in providing discovery to the Nagels. However, the trial court erroneously granted summary judgment to NIPSCO. There are genuine issues of material fact as to whether NIPSCO owed Adam a duty of care and whether it breached that duty. We affirm in part, reverse in part, and remand for further proceedings.
Jerome Perry appeals the three years of home detention imposed by the trial court following his conviction for class D felony receiving stolen goods. Perry asserts that the trial court’s sentence does not accord with Indiana law and that his sentence should have been six months. Finding that the trial court properly applied the law in sentencing Perry, we affirm.In Dorvae Barnett v. State of Indiana, a 7-page opinion, Judge May writes:
Dorvae Barnett appeals the five-year enhancement of his sentence for Class C felony reckless homicide based on Barnett’s knowing use a firearm in the commission of that crime. Barnett presents two issues, which we restate as: 1. Whether the finding Barnett used a firearm was erroneous as a factual matter; and 2. Whether the finding that he used a firearm was improper as a matter of law.NFP civil opinions today (2):
NFP criminal opinions today (7):
Ind. Gov't. - Attorney General presentation before House Ways & Means yesterday
Yesterday, Jan. 22nd, the House Ways & Means Committee heard the biennial budget request of Attorney General Zoeller. (The AG did not make an earlier optional presentation before the State Budget Committee.)
AG Zoeller began his presentation by pointing out that Indiana is one of 6 states where the AG is a legislative officer, not a constitutional officer. Thus, he said, there is no two-term limit on the AG.
Some interesting points from the archived video of the testimony, which you may view for yourself:
At about 7:38 the AG says he is requesting an increase in general fund funding to cover the transfer of Dept. Child Services (DCS) appellate legal work "which we have now taken on in OAG, along with all the other appellate work. There is no appellate work that goes on anywhere in state government that is not part of our office."
Beginning at 15:20 Rep. Porter asks for an update on the tobacco settlement. The AG responds that "we did take a hit" of $120M/yr for the next 10 years. In response to another question, the AG replies that we did bring in a law firm to help with the arbitration. (ILB - If interested in this topic, you should listen for yourself.)
At 26:35 Rep. Klinker asks - "Does your office benefit from those various national AG settlements we read about. AG Zoeller's response begins, "We do." If the ILB understands correctly, it appears that such settlement money does not go to the general fund to be appropriated out by the General Assembly. The ILB is also unaware of any way to review these various settlements and an accounting of their disposition within state government.
No questions were asked dealing with the filing of amicus briefs in national cases and related issues.
Thursday, January 22, 2015
Ind. Courts - "La Porte County welcomes new judges"
From the Michigan City News-Dispatch, a story by Jessica O'Brien that reports:
MICHIGAN CITY — The changing of the guard in La Porte County courts was celebrated on Wednesday, recognizing the retirement of two judges and the robing of four incoming judges.
The ceremony recognized the retirements of Judges William Boklund of La Porte County Superior Court No. 4 and Kathleen Lang of Superior No. 1. Both chose to step down at the end of their terms in December, retiring from the bench and now serving as senior judges. * * *
The four incoming judges were ceremonially robed in the courtroom on Wednesday, signifying their transition into judgeship – all either elected or appointed to their positions late last year.
Judge Greta Friedman of La Porte County Superior Court No. 4 received her robe from husband, Shaw Friedman; Judge Michael Bergerson of La Porte County Superior Court No. 1 from son, Michael Bergerson; Judge Jeffrey Thorne of La Porte County Superior Court No. 3 from Senior Judge Steven King; and Magistrate Pamela Munsey from daughter, Kaylen Krause.
Ind. Gov't. - "Sunday alcohol sales campaign manager charged with drunken driving"
So reports Tony Cook this afternoon in the Indianapolis Star. Some quotes:
Megan Robertson, the Republican political operative who was hired to run the campaign to legalize Sunday carryout alcohol sales, is facing drunken driving charges after police say her vehicle crashed into a Near Eastside fast food restaurant on Christmas Eve. [ILB emphasis]Ms. Robertson earlier headed Freedom Indiana which last session led the fight against a constitutional amendment prohibiting gay marriage.
Robertson, 32, lost control of her Chevrolet Equinox and struck a Hardee's restaurant at 921 E. Washington St., according to a probable cause affidavit. Robertson told police she was on her way home from a Fountain Square bar at about 1 a.m. after drinking two beers.
A breathalyzer test later showed she had a blood alcohol content of 0.168 percent, the affidavit said. That is more than twice the legal limit of 0.08 percent for driving in Indiana. * * *
Robertson was hired late last year to help run the campaign to repeal Indiana's ban on Sunday alcohol sales at grocery, liquor, convenience and drug stores. The campaign is being led by Hoosiers for Sunday Sales, a coalition of national grocery chains and business groups such as the Indiana Chamber of Commerce.
A long post at the blog Advance Indiana includes: "Robertson has a string of prior traffic arrests for speeding, failure to wear a seat belt and operating a vehicle while her driver's license was suspended, the most recent of which occurred on September 25 of last year."
Here is an expanded version of the Star story at Fox59.
Ind. Gov't. - More on: General Assembly will hold voluntary ethics training session today
A veteran lawmaker who oversees education in the Indiana House of Representatives has formed a lobbying company to represent education clients, raising potential ethical questions at a time when state lawmakers are considering sweeping new ethics rules.The story notes:
House Education Chairman Robert Behning, R-Indianapolis, formed Berkshire Education Strategies last June, and has continued leading the House education committee since then. Behning said Wednesday that he is looking to represent student testing company Questar in Oklahoma and would like to sign up more clients. But he added that he was doing everything possible to ensure he only represents clients out of state, and not in Indiana. * * *
Behning said he is looking to sign up more clients, but said he did not see a problem because the work would not directly coincide with his role running the Indiana House Education Committee. He said that he had a draft contract for Questar prepared by an ethics lawyer at Barnes and Thornburg and that he submitted it to members of the House Ethics Committee for consideration.
Behning said Questar flew him to its Minneapolis headquarters for two days of discussions three months ago, but he emphasized that he has not signed any contract with Questar yet and is awaiting word from the ethics panel.
House Speaker Brian Bosma, R-Indianapolis, said he "discouraged" Behning from trying to sign up any education clients, but also said he could not tell lawmakers what to do in their private lives.
"We don't dictate to people what they do in their private business lives," Bosma said. "We can encourage or discourage it. I'd say we discouraged this one. But citizen legislators are free to engage in the business activities they choose to engage in."
Bosma noted that new rules require lawmakers to recuse themselves from any action when they have a personal or business interest at stake. He said that if one of Behning's clients from out of state were to appear before his committee in Indiana, it would be hard for Behning, as chair of the committee, to completely separate himself from the situation.
Behning's decision to start a lobbying firm comes at a sensitive time for House lawmakers, who are considering ethics reform in the wake of a trio of Statehouse scandals involving former House Speaker Pro Tem Eric Turner, former Indiana Department of Transportation Chief of Staff Troy Woodruff and former Superintendent of Public Instruction Tony Bennett.In a story this afternoon, LoBianco writes:
Bosma, R-Indianapolis, has made ethics reform a centerpiece of the House Republican agenda this session. He also called in the director of the National Conference of State Legislature's ethics program to run a one-hour training program with lawmakers last week.
House Speaker Brian Bosma, R-Indianapolis, said new ethics rules and a reform measure are aimed at the exact questions raised by Behning's actions.
"This is precisely the type of thing that we're trying to bring to light, both for the public and to the members of the ethics committee. I didn't know we were going to have a dry run on it so quickly," Bosma said Thursday.
Ind. Law - Watch out for new improved variations on "foreign clients with cashiers' checks" scam
Ted A. Waggoner writes today to the ISBA General Practice, Solo and Small Firm Section:
I have spoken with a lawyer in Indiana, who came way too close to falling for what the lawyer describes as a well designed and elaborate scam.ILB: See also this Aug. 7, 2012 ILB post headed "Despite Warnings, Lawyers Still Fall for Collection Scam," and its links.
He was ready to open a non-IOLTA trust account, when the banker asked to see the check drawn on Chase Bank. The check was a fraudulent Cashier's Check, drawn on a phony account, but through the name of a European business that did check out.
The lawyer does business work and knew to run the traps on such items, but between the website, LinkedIN accounts, etc. so was rattled by the quality of the scammers.
The banker said that was the second such check they had seen from a lawyer that day. IF you have been involved in something like this, call Chase and the Police.
Be careful, be very careful.
Ted A. Waggoner
Peterson Waggoner & Perkins, LLP
Ind. Gov't. - "Backlog of records crowding Miami Co. Courthouse"
Carson Gerber reported Wed. in the Kokomo Tribune:
PERU – Storage space is starting to run out at the Miami County courthouse due to a backlog of court documents.
Miami County Clerk Tawna Leffel-Sands said eight years worth of records, including marriage certificates, court filings and voter information, is packed away in boxes that are stacked in hallways, attics and offices, and it’s starting to pile up.
“I’ve got books and files strewn all over this courthouse and I can’t get rid of them,” she said. “I’m running out of room.”
The reason? The state requires counties to hold on to official documents for a specific period before they can be placed on microfilm and destroyed.
Leffel-Sands said a Miami County addendum to state code requires the clerk’s office to keep records for 5 years before they can be microfilmed.
She said the county used to microfilm its own documents, but that stopped happening in 2007, when the machine broke and was never replaced.
Since then, the county has held onto every document filed in the clerk’s office.
To clear up space, the county could pay the state or hire an outside company to microfilm the documents. But with thousands of books and records to be scanned, it wouldn’t be cheap.
Leffel-Sands estimates it would cost $500,000 to have every document microfilmed. Just microfilming the marriage books would cost $18,000, she said.
Having recently cut $1.5 million from its 2015 budget due to a severe revenue shortfall, Miami County doesn't have that kind of money.
Leffel-Sands said the county could save money by microfilming records in house, but her office doesn’t have the equipment or the manpower to do it after two full-time positions in the clerk’s office were eliminated during the budget cuts.
“I don’t see our office ever doing this,” she said.
Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)
For publication opinions today (4):
In Sin-Mi Ward v. University of Notre Dame, an 11-page opinion, Sr. Judge Sharpnack writes:
Sin-Mi Ward appeals from an order of the Worker’s Compensation Board (“the Full Board”) deciding her application for adjustment of claim against the University of Notre Dame (“Notre Dame”) for disability benefits arising from a work related injury. The Full Board adopted the findings and decision of the single hearing member awarding Ward permanent partial impairment (“PPI”) benefits after finding that she had reached maximum medical improvement from her injury. We affirm.In Daniel Lee and Hui Luo Lee v. GDH, LLC , a 16-page opinion, Sr. Judge Sharpnack writes:
Daniel Lee, a plumber, was injured on the job at a construction site. He and his wife, Hui Luo Lee, sued several companies involved in the construction project, including GDH, LLC. The Lees appeal the trial court’s grant of summary judgment in favor of GDH. We affirm.In Brian Weigel v. April Weigel, a 9-page opinion, Sr. Judge Sharpnack writes:
Brian Weigel appeals the trial court’s valuation of his hoof trimming business upon the dissolution of his marriage to April Weigel. * * *In Arthur Barnard III v. Menard, Inc.; Menard, Inc., and Blue Line LP, Inc. v. Capitol Specialty Insurance Corp., a 21-page opinion, Judge Baker writes:
For the reasons stated, we conclude that the trial court neither abused its discretion in valuing the hoof trimming business nor in ordering Brian to pay a portion of the expert’s fee for valuation of the business and presentation of testimony at the final hearing. Affirmed.
Arthur Barnard was allegedly physically attacked by a Blue Line loss prevention officer outside a Menard store. The loss prevention officer suspected that Barnard had stolen something from the store. Barnard was injured and incurred medical expenses as a result of the incident. He filed a complaint against Menard and Blue Line, and Menard and Blue Line later filed third-party complaints against their insurer, Capitol Specialty Insurance Corporation (Capitol), invoking the insurer’s duties to defend and indemnify. The trial court granted summary judgment in favor of Menard on Barnard’s complaint and in favor of Capitol on the third-party complaints.NFP civil opinions today (1):
We find no error in the summary judgment order in favor of Menard on Barnard’s complaint. With respect to the third-party complaints against Capitol, we find that it was erroneous to grant summary judgment in favor of Capitol and that, instead, summary judgment should have been entered in favor of Menard and Blue Line with respect to Capitol’s duty to defend. Therefore, we affirm in part, reverse in part, and remand for further proceedings.
NFP criminal opinions today (6):
Ind. Decisions - Supreme Court decides one today
In Jason Young v. Hood's Gardens, Inc., a 6-page, 5-0 opinion, Justice Dickson writes:
When a person engages a contractor for the performance of work exceeding $1,000 in value but fails to take certain steps to assure that the contractor complies with the Indiana Worker's Compensation Act, that person is secondarily liable to the same extent as the contractor for worker's compensation benefits payable to an employee of the contractor injured in an accident arising out of and in the course of the contracted-for work. This case presents an issue of first impression: whether the predicate $1,000 in value is determined solely by the amount of money paid to the contractor or also includes the value of other consideration received by the contractor in connection with the services provided. We hold that the $1,000 monetary threshold may include the ascertainable value of ancillary consideration received by the contractor. * * *
To prevail on its motion for summary judgment, the business must establish that the tree removal work for which it hired the contractor had a value of $1,000 or less and that this fact was free of factual dispute. Under the applicable statute, the value of this work is to be determined by considering both the monetary payment and ancillary consideration received by the contractor, namely the $600 contract price and the value of the wood received. As the moving party, the business failed to designate evidence establishing that the undisputed value of the ancillary con-sideration (the wood received) plus the $600 monetary payment did not exceed $1,000. Furthermore, the plaintiff designated testimony by the contractor that the value of the wood received was more than the $600 received. The business was not entitled to summary judgment.
Conclusion. We conclude that the "value" attributable to the performance of work that triggers secondary liability under Indiana Code section 22-3-2-14(b) includes both direct monetary payment as well as any ancillary consideration received for the work. Finding a question of fact as to the value of the wood received by the contractor Discount Tree Extraction in connection with the performance of its work, we reverse the grant of summary judgment to the business, Hood's Gardens, and remand for further proceedings.
Ind. Gov't. - "Repeal of wine shipment rules heads to Senate"
The Senate Public Policy Committee voted 9-0 to repeal a requirement established in 2006 that consumers make a face-to-face purchase at a winery before ordering online or by mail.
The requirement has been in place since 2006, when a sticky compromise was reached creating a direct wine shipper’s permit.
“This is a win for your constituents,” said Lisa Hayes, lobbyist for the Indiana Winery and Vineyard Association. “The law hasn’t worked. Technology has changed. The environment has changed.”
Sen. Phil Boots, R-Crawfordsville, the author of the bill, said allowing remote wine shipping will help Indiana wineries that are hamstrung by the face-to-face requirement. And he said there is ample provision in the bill to require verification of a person’s age.
But those representing the other parts of the so-called three-legged stool of alcohol in Indiana – the wholesalers and direct retailers – oppose the bill. * * *
The hearing was highlighted by the issue’s complicated history.
Indiana wineries shipped their products directly to customers for decades. But in May 2005, the Alcohol and Tobacco Commission issued an enforcement bulletin saying the practice was illegal.
The bulletin was in response to a U.S. Supreme Court ruling that states cannot treat in-state and out-of-state wineries differently. And because it was against Indiana law for out-of-state wineries to ship to Indiana customers, the in-state wineries lost that perk as well.
Lawsuits were filed, and eventually lawmakers created the direct wine shipper’s permit, which is available to Indiana wineries as well as those in other states. The stated purpose was to ensure that buyers are of legal age, but it also favored in-state wineries in theory.
But Hayes said that isn’t what happened. Instead, of the existing 172 direct seller permits, only 19 are held by Indiana wineries. That means many out-of-state wineries have taken advantage of the law.
“Indiana wineries got hurt in 2006,” she said. “We will grow with this.”
Senate Bill 113 – which now goes to the full Senate – requires customers to provide their name, valid delivery address and telephone number, and proof from a state or federal issued government ID that the consumer is at least 21.
The proof of age can be faxed, emailed, scanned or provided in person or by a third-party vendor. Consumers also can provide a statement under penalty of perjury.
Indiana Decisions - More on: The Emily Herx case isn't over yet
The local Roman Catholic Diocese wants a judge to toss out the recent jury verdict awarding a former teacher hundreds of thousands of dollars in a discrimination case.And today in a new story Green reports in part:
In paperwork filed late last week, attorneys for the Fort Wayne-South Bend Catholic Diocese asked U.S. District Judge Robert L. Miller Jr. to rule in their favor.
They argued there was insufficient evidence presented during the trial showing that the church discriminated against former language arts teacher Emily Herx when officials at St. Vincent de Paul Catholic School declined to renew her contract after she underwent a third round of in vitro fertilization.
No reasonable jury, they contend, could have found in Herx’s favor given the evidence her side presented at trial. * * *
The week before Christmas, a federal court jury agreed with her, awarding her a total of $1.9 million, including $1.75 million for compensatory damages for pain and suffering; $125,000 for medical care; $75,000 for lost wages and benefits; and $1 for punitive damages.
This month, Miller reduced the amount of the judgment to a total of $543,803. That figure was not nearly as low as had been requested by the diocese.
In their motion, diocesan attorneys argue in much the same way that they argued throughout the case at the district and appellate court levels: that Herx not only failed to present sufficient evidence to prove gender discrimination took place, but that the decision not to renew her contract was religiously based and not one a jury should weigh in on.
“It was for the Church to decide whether Herx’s contract should be non-renewed for failing to comply with Church teachings, not a court or jury,” diocesan attorneys argued.
In confronting similar arguments earlier in the case, Herx’s attorneys contested that the religious views of her employers did not trump Herx’s right to try to become pregnant through whatever method she chose.
Herx’s attorneys argue that she was the victim of discrimination because the church did not approve of the manner in which she tried to get pregnant.
“The (Civil Rights Act) must protect the rights of women to attempt to have children through all methods,” her attorneys wrote in their response to the earlier motion for summary judgment.
“Otherwise, it would allow employers to substitute their judgments for those of their employees’ doctors and give them the right to ban certain types of medical procedures.”
If U.S. District Judge Robert Miller wasn’t going to set aside the verdict, diocesan attorneys argued for a new trial on the amount of money awarded.
So Herx’s attorneys filed a response to that, reiterating again all the reasons that they won at the summary judgment stage, won at the appellate level and won at trial. * * *
In documents filed late Wednesday, Herx’s attorneys said the jury’s verdict was fully justified.
“The Diocese ignores critical evidence including, most importantly, (Rev. John) Kuzmich’s admission at trial that ‘Herx had the option of either continuing the treatment and losing her job or stopping the treatment and losing the chance at a pregnancy,’ ” wrote Kathleen DeLaney.
“This admission alone is enough evidence for a jury to conclude that the Diocese discriminated against Herx on the basis of her gender and attempts to become pregnant.”
Wednesday, January 21, 2015
Ind. Gov't. - "ESPN sues Notre Dame over police records"
Margaret Fosmoe has just posted to the South Bend Tribune a long story that begins:
SOUTH BEND — ESPN has filed a lawsuit against the University of Notre Dame claiming the university violated Indiana's public records law by refusing to release campus police records.ILB: Readers may recall this Dec. 19, 2014 post, quoting an earlier Fosmoe story on the public access counselor's opinion. A PAC opinion, as it turns out, was issued to ESPN on Oct. 31, 2014 and another on Jan. 5, 2015.
The suit alleges that Notre Dame officials violated Indiana's Access to Public Records Act by refusing to release Notre Dame Security Police records requested by ESPN. The case was filed Jan. 15 in St. Joseph Superior Court.
The suit was filed on behalf of ESPN Inc., the sports media company based in Bristol, Conn., and ESPN reporter Paula Lavigne, who requested the records.
Lavigne in September and November 2014 made formal requests to Notre Dame for police incident reports and logs related to student athletes, but was turned down both times.
As evidence in the lawsuit, ESPN submitted two written opinions by Indiana Public Access Counselor Luke Britt.
From Fosmoe's story today:
Early this month, Britt — an attorney appointed by Indiana's governor to advise on public access matters — issued an opinion stating Notre Dame has violated Indiana's public records law if it has withheld police records requested by ESPN about possible campus crimes.
That came several weeks after Britt initially put Notre Dame on notice about its handling of police records after complaints filed by ESPN and the South Bend Tribune. In the earlier opinion, Britt said he believes the Notre Dame Security Police fall under the jurisdiction of Indiana's public records law, and should comply fully with the law, just like other professional police departments in Indiana. Britt also said his opinion applies to police departments operating at other private universities in Indiana.
In his earlier opinion, Britt wrote that NDSP has the same requirements to maintain and release public records as all other police agencies in the state.
"The police force is established by the governing body of a private institution, but their powers come from the state of Indiana. I am not comfortable saying an organization can hide behind the cloak of secrecy when they have the power to arrest and create criminal records and exercise the state's police powers," Britt wrote at the time.
Three previous access counselors had issued opinions stating that professional police departments at Indiana private universities did not meet the definition of public agencies and thus were exempt from the state's public records law.
Courts - "Federal Appeals Court Slapped Over Lengthy ‘Unpublished’ Ruling"
Tony Mauro, The National Law Journal, reports today in a long story that begins:
U.S. Supreme Court Justice Clarence Thomas on Tuesday sharply criticized a federal appeals court for issuing a lengthy opinion that was nonetheless unpublished, which he called a "disturbing aspect" of the case before the high court.Mauro's story ends:
The comment could revive a decades-old debate over so-called "unpublished opinions" of appeals courts, which are sometimes cursory and don't have precedential value. According to the most recent statistics available, 88 percent of the 37,820 opinions issued by federal appeals courts in 2013 were categorized as "unpublished"—a misnomer because most are actually available through the court that issued them or through online data services.
Thomas, joined by Justice Antonin Scalia, criticized the U.S. Court of Appeals for the Fourth Circuit for issuing a 39-page unpublished opinion after full briefing and argument. That did not meet established criteria for issuing unpublished opinions, Thomas said.
"By any standard—and certainly by the Fourth Circuit’s own—this decision should have been published," Thomas wrote.
Thomas added, "It is hard to imagine a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the circuit."
Controversy over unpublished opinions divided the federal judiciary a decade ago, with judges—including the Ninth Circuit's Alex Kozinski—arguing that ending them would vastly increase the workload of judges by requiring them to put more research into even the most cursory rulings.ILB: That is the same proposal that the Indiana Supreme Court last year turned down, one that would not have ended the NFP practice, but that would have permitted Indiana attorneys to cite unpublished opinions. (The ILB has for years urged that NFP opinions be eliminated entirely.)
But the late Judge Richard Arnold of the Eighth Circuit and others argued that issuing decisions without precedential value was unconstitutional.
In 2005 the Supreme Court issued a rule that did not end the practice, but said lawyers could cite unpublished opinions. That did not stem the flow of unpublished opinions in most courts.
Here, via The National Law Journal, is Justice Thomas' language on the "unpublished" issue:
True enough, the decision below is unpublished and therefore lacks precedential force in the Fourth Circuit. Minor v. Bostwick Labs., Inc., 669 F. 3d 428, 433, n. 6 (CA4 2012). But that in itself is yet another disturbing aspect of the Fourth Circuit’s decision, and yet another reason to grant review. The Court of Appeals had full briefing and argument on Austin’s claim of judicial vindictiveness. It analyzed the claim in a 39-page opinion written over a dissent. By any standard—and certainly by the Fourth Circuit’s own—this decision should have been published. The Fourth Circuit’s Local Rule 36(a) provides that opinions will be published only if they satisfy one or more of five standards of publication. The opinion in this case met at least three of them: it “establishe[d] . . . a rule of law within th[at] Circuit,” “involve[d] a legal issue of continuing public interest,” and “create[d] a conflict with a decision in another circuit.” Rules 36(a)(i), (ii), (v) (2015). It is hard to imagine a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the Circuit.
Ind. Decisions - Tax Court posts 11 opinions dated Jan. 20th
The Tax Court has posted 11 separate 9-page opinions, all of them granting the Marion County Assessor's motions to dismiss, and except for the names of the petitioners, all appear to have the same wording, ending with:
In challenging the Indiana Board’s interlocutory order, _____’s appeal falls into a class of cases that the Court does not have jurisdiction to hear. See Ispat Inland, 784 N.E.2d at 482. To the extent that _____ has not established that extraordinary circumstances excuse it from exhausting its administrative remedies, the Court hereby GRANTS the Assessor’s Motion to Dismiss For Lack of Jurisdiction and REMANDS the matter to the Indiana Board for action consistent with this opinion.Here are the opinions:
[Updated 1/23/15] For more, see this article by Brent Auberry at JDSupra.
Ind. Decisions - Court of Appeals issues 0 today (and 5 NFP)
For publication opinions today (0):
NFP civil opinions today (2):
NFP criminal opinions today (3):
Ind. Courts - New federal magistrate for SD Indiana
From the news release:
INDIANAPOLIS, Indiana (January 21, 2015): The Honorable Richard L. Young, Chief Judge of the United States District Court for the Southern District of Indiana, is pleased to announce the selection of New Albany attorney Van T. Willis as part-time United States Magistrate Judge. * * *
Once appointed, he will fill the vacancy created by the passing of The Honorable Michael G. Naville, who served the court from November 1995 to September 2014.
As the Magistrate Judge in the New Albany Division of the Southern District of Indiana, Mr. Willis will preside over preliminary criminal proceedings in that division. He will also continue in the private practice of law as a senior partner with the firm of Kightlinger & Gray, LLP. He has been with the firm since 1991, and his primary areas of practice are civil rights, corporate and business law, employment, insurance defense litigation, trademark and copyright infringement, and worker’s compensation. Prior to joining Kightlinger & Gray, from 1989 to 1991, Mr. Willis served as a law clerk to United States District Judge Gene E. Brooks.
Ind. Courts - "CJ Rush's forward-thinking plans" and some ILB thoughts about e-filing
This editorial appears in today's Fort Wayne Journal Gazette [ILB emphasis added]:
No matter how it turned out, the State of the Judiciary speech last week by Indiana Chief Justice Loretta Rush would have been of special note. Appointed last August, Rush is the first woman to lead the state’s high court, and this was her first chance to lay out her hopes and plans to improve the judicial system.WISHTV 8 reported last evening [ILB emphasis added]:
Rush reassured her audience that “your Indiana judiciary is strong.” But she went on to outline some ideas for the court to “stay modern and responsive.”
She asked the legislature for help funding an e-filing system for courts statewide that could be used to file and share documents digitally. The Journal Gazette’s Niki Kelly reported that the cost might be $5 million.
But the increased speed and ease of access that such a system would bring to legal business in Indiana could justify the cost, especially if it could be user-funded by a small increase in court fees.
As Rush pointed out, the proposal will have a positive effect on Indiana’s business climate, as would her proposal to create a system of business courts to “bring together judges experienced in handling business and commercial law cases to preside over a specialized docket.”
Among those Rush credited with developing the business court idea was Allen Superior Court Judge Craig Bobay.
In the Indiana Forefront blog, former Indiana Supreme Court Justice Ted Boehm wrote approvingly of Rush’s proposal. Noting that it may take awhile for the details of the plan to emerge, Boehm said such courts are blossoming and evolving in other states, including Michigan. “Many business courts now handle a variety of forms of complex litigation,” he wrote. “Typically, any lawsuit between two businesses, even if only a contract dispute, is deemed a ‘business’ case, and many states add specific subject matters such as securities litigation.”
Typically, “business court” is not a single, statewide court, but a subset of designated judges in high-traffic areas of the state, according to Boehm. “Experience in other states seems to establish that there is a benefit to having experienced judges handling cases involving extensive discovery, multiple parties or subject matters that come along only infrequently.”
Rush also used her speech to celebrate and encourage other types of specialty courts that concentrate on offering help to people with special circumstances and needs, such as foster-care programs for children, drug courts and veterans courts.
Allen County has been among the leaders in those courts, starting a veterans court last year.
Rush’s calls for innovation and better use of technology made for an auspicious debut of the new leader of the state’s judiciary.
Major changes could be coming to courthouses across Indiana, designed to make life a little easier.An earlier, May 22, 2014 story in the Indianapolis Star, by Tim Evans, reported:
Chief Justice Loretta Rush wants to do away with paper shuffling and go electronic. A Supreme Court technology team is moving the effort forward. They hope to make all court records available online, for all 92 counties in the state.
“The Facebook generation does almost all of its important business online,” said Court of Appeals Judge, Paul D. Mathias. “We think court business is some of the most important business to make accessible online.”
If the court receives funding from the General Assembly, they’ll move forward with five pilot programs across the state. Their ultimate goal is to put e-filing in place with no extra fees for customers and little to no cost at the local level.
“With e-filing and the consequences of e-filing, you won’t have to go to the courthouse,” said Justice Steven David with the Indiana Supreme Court.
The new system will help everyday people, attorneys and clerks.
“I think e-filing would be great,” said attorney Julie Andrews. “Probably conserve some paperwork and legwork. If it’s e-filing, it’s immediate.”
Another Indiana attorney agrees, “Anything we file with the federal government is easier because it’s e-filing, rather than physically coming over here to do it.”
Across the country, 15 to 20 other states are already pushing papers out the door. Indiana leaders are closely looking at the current model in Texas.
Judge Mathias says e-filing in the courts is just the latest entity to switch over.
“When you look at Bureau of Motor Vehicles, you look at services they provide online. Hunting and fishing licenses can be obtained online,” said Judge Mathias. “All of these things are a new, basic level of electronic access that this generation has come to expect.”
Right now there is no specific timeframe, everything will depend on how much funding they can get from the General Assembly. Talks in both houses are ongoing.
Indiana court officials spent more than a decade investigating e-filing opportunities and have monitored pilot projects in Marion and Lake counties.ILB thoughts: The ILB strongly supports the concept of e-filing. It is unquestionably the way to go. But so far, few details have been provided, and we have seen no hard $$ numbers, nor where the $$ would come from.
“The court is appreciative of the ground work completed by the pilot counties,” said Indiana Supreme Court Justice Mark Massa, who chairs technology projects for the courts. “The initial work demonstrates that e-filing is beneficial to litigants, lawyers, judges, clerks and their staffs.”
Court officials did not release cost estimates for the project. Indiana Court of Appeals Judge Paul D. Mathias, who chairs a committee established in 2006 to look at the transition to e-filing, said a number of options for covering the cost are being investigated. Among them: user fees and cost savings. * * *
The next step for state officials is to seek bids for an e-filing manager to provide the centralized system for accepting filings and getting documents to the appropriate court system. That manager will be required to work with multiple e-filing service providers that operate the front-end systems attorneys will use to get documents to the e-filing manager. The division of state court administration will coordinate the process, including certification of those front-end providers.
The e-filing manager selected for the project also will be required to maintain a basic filing system for indigent Hoosiers.
“We will not,” Mathias said, “allow e-filing to be a barrier to access to the court system.”
In her presentation before the State Budget Committee on Dec. 17th, Chief Justice Rush said the state-wide license for e-filing would be $5.1 million. Is that one-time or annually? And it would seem there have to be other costs involved in implementing electronic filing statewide in addition to the license to utilize the vendor's software.
Of course, there may also be savings in eliminating paper - which raises the question, will these records be entirely electronic, or will there be backup paper files? And will printers simply replace copiers in creating paper copies for those reviewing the documents?
There is mention of a fee increase to finance electronic filing. What are the details, to whom would it apply? Would this be in addition to the $2.00 increase in the Automated Recordkeeping Fee the Court is requesting in order to keep it at its current $7.00 level? It is currently scheduled to go to $5.00 on 7/1/15. (An ILB post titled "Changes to the Annual Automated Record Keeping Fee Through the 21st Century" is planned.)
Another important question: How would electronic filing impact public access? Would the public be able to more easily access documents filed at the trial level? Right now the public can track the progress of cases in many counties online at no cost using MyCase, but obtaining, for example, a copy of a complaint, or a court ruling, is a different matter. Many courts in Indiana currently charge $1.00/page for paper copies of documents provided at the Courthouse. (See this 1/16/14 Supreme Court order of a model for providing copies of electronic documents approved for Henry County.)
At the appellate level, electronic copies of the opinions of the Court of Appeals and Supreme Court have been available for a number of years at no charge. But briefs, motions, and many orders are not electronic and are $1.00/page at the Statehouse.
In contrast, you currently can electronically access the dockets and all non-confidential documents filed in the federal courts via PACER. The cost to the public is $0.10/page, which many national writers argue is prohibitive.
Ind. Gov't. - Bill to raise service of process fees now on 3rd reading in Senate
In a long Washington Ind. Times-Herald story from Jan. 16th, Mike Grant reported:
The bill, SB 217, is now on third reading in the Senate. From the digest:
Daviess County Sheriff Jerry Harbstreit is beginning his fourth term as the county's top cop and most of his energy during that time behind the badge has been about enforcing the law. Now, with Harbstreit also serving as President of the Indiana Sheriff's Association he is also putting his voice to testimony before the Indiana legislature that most likely will change some of those laws.
Earlier this week he went before an Indiana Senate Committee looking to change the money sheriff's departments get paid for the delivery of legal papers. "This law was last changed in 2006," said Harbstreit. "Then it raised the service fee from $12 to $13. The bill before the Senate now would raise that amount to $25. When you consider that many surrounding states charge up to $60 this proposal is reasonable."
Harbstreit was testifying as President of the Sheriff's Association. He points out that the Indiana Association of Counties is also supporting the bill that will put an additional $2.4 million into county general funds around the state. The bill, sponsored by Senator Phil Boots of Crawfordsville, was approved in committee by a 7-2 vote and will return to the full Senate for second reading.
The paper service bill is part of a much larger agenda the Indiana Sheriff's Association is trying to move through the General Assembly during this session.
Requires a sheriff to collect a service of process fee of $25 instead of $13 from a party requesting service of a writ, an order, a process, a notice, a tax warrant, or any other paper completed by the sheriff. Provides that a sheriff may collect an additional fee for post-judgment service.
Ind. Gov't. - Direct wine sales bill being heard in committee this afternoon
[Updated at 1:18 PM] Niki Kelly of the FWJG has a story about the upcoming hearing here.
Tuesday, January 20, 2015
Ind. Law - IU McKinney among the campuses that excel in producing national lawmakers
That according to a long article by Karen Sloan in The National Law Journal. Here are some quotes about McKinney (my school):
More than half of the top 20 Congressional feeder law schools are public institutions with strong regional reputations that supply large portions of their home states' congressional delegations. For example, the University of Alabama School of Law, the University of Kentucky College of Law and the University of South Carolina School of Law each have four alumni in Congress, all representing the states where they studied law.
U.S. Rep. Andy Barr (left), a Republican 2001 graduate of Kentucky Law, credits a strong alumni network with helping position the school's graduates for leadership. "Not only did I receive a great legal education there, but you meet a lot of people who end up practicing all over the commonwealth of Kentucky and you develop those personal and professional relationships," Barr said. "You continue that throughout your career."
Indiana University Robert H. McKinney School of Law is another example of a regional school that serves as a pipeline into Congress. It has four alumni serving there, comprising more than one-third of Indiana's delegation.
McKinney is in an ideal position to produce leaders as the only law school in the capital city of Indianapolis and more than 80 percent of its students come from within the state, dean Andy Klein said. The school has a robust law and state government program, each year placing between 40 and 50 students in externships within state government, he said.
"We train more than 50 percent of the lawyers who practice in the state of Indiana," Klein said. "Our connection to state government and our exclusivity in the capital city means that our graduates hold leadership positions in Washington and throughout the state." In addition to its three House members and U.S. Sen. Dan Coats, also a Republican, Indiana McKinney can claim the governor, attorney general and three of five state Supreme Court justices as alumni.
McKinney works hard to keep alumni involved and invites them back to campus to help inspire the next generation of students, said U.S. Rep. Susan Brooks, a Republican who graduated in 1985 and now serves on the law school's board of visitors.
"Those that graduate, I would say, were always encouraged to give back to law students and to provide them with opportunities," Brooks said. "I've hired a lot of law students as interns in every position I've had. I created an internship program within my congressional office at home for law students."
While delivering McKinney's commencement address last year, Brooks encouraged students to keep in contact with the school and their classmates because they're likely to become the next wave of Indiana leaders. * * *
And the lawyers in Congress arrived from many different career paths within the profession, Brooks said. She pointed to the lawyers in Indiana's delegation who have worked in private practice, as federal prosecutors and as Indiana's secretary of state, among other jobs. One — Coats — served as U.S. ambassador to Germany.
That said, serving in Washington with three other McKinney alumni has its perks, Brooks said. "It does add a bit of camaraderie among our delegation," she said. "We all passed through those doors."
Ind. Decisions - Richmond attorney and former law blogger suspended
In three rulings dated Jan. 16, 2014, in In the Matter of Edward T. Kemp, the Court has ordered:
- 89S00-1408-DI-549 - that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately.
- 89S00-1409-DI-581 - that Respondent be suspended from the practice of law for noncooperation with the Commission, effective immediately. * * * Finally, recognizing the imposition of costs against Respondent in a separate order being issued today in Matter of Kemp, No. 89S00-1409-DI-549, the Court declines to separately order a reimbursement of costs in this matter.
- 89S00-1409-DI-582 - same as 581.
[More] Here is Kara Kenney's report on WRTV6.
Ind. Courts - Still more on: Which appellate jurists would be able to serve until age 80 under SB 12?
Updating this ILB post from Jan. 8, SB 12, which would extend the retirement age for certain members of the Supreme and Appellate court to age 80, is eligible for 3rd reading today. The Senate convenes at 1:30.
Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP)
For publication opinions today (1):
In Jeri Good v. Indiana Teachers Retirement Fund, a 9-page opinion, Judge Crone writes:
Jeri Good was a member of the Indiana Teachers Retirement Fund (now a part of the Indiana Public Retirement System (“INPRS”)) for twenty-nine and a half years and left her INPRS-covered job. Five months later, she purchased a half-year of additional service credit from INPRS, which made her eligible to receive retirement benefits starting at age fifty-five based on thirty years of service. Shortly before she turned fifty-five, Good contacted INPRS to ask about the consequences of delaying her application for retirement benefits. An INPRS employee told Good that her benefits would be paid retroactively but failed to inform her that, pursuant to statute, they could be paid retroactively only up to six months before her application date. Based on the information provided by the INPRS employee, Good delayed filing her application for one year and requested benefits retroactive to her fifty-fifth birthday. INPRS determined that she was entitled to only six months of retroactive benefits. Good filed an administrative appeal, which was decided in INPRS’s favor. She then petitioned for judicial review of that decision, which the trial court affirmed.NFP civil opinions today (1):
On appeal, Good does not dispute that Indiana law limits an INPRS member to six months of retroactive retirement benefits. Instead, she contends that she is entitled to additional retroactive benefits based on the theories of equitable estoppel, unjust enrichment, and breach of fiduciary duty. We conclude as follows: (1) equitable estoppel is inapplicable because the facts regarding Good’s retirement were equally available to both parties and she is charged with knowledge of the law regarding retroactive benefits; (2) unjust enrichment is also inapplicable in light of that imputed knowledge; and (3) her fiduciary duty claim fails because there is no indication that the INPRS employee was a fiduciary. Therefore, we affirm.
NFP criminal opinions today (5):
Ind. Courts - COA announces a new opinion format
Here it is. Look for it Jan. 26th.
Stage Collapse - Bringing the ILB up to date on events relating to the 2011 State Fair stage collapse
On Jan. 14, 2015 the Court of Appeals issued an opinion in J.P. et al. v. Mid American Sound, et al., where the challenge, denied by the Court, was that the Indiana Tort Claims Act (ITCA) cap of five million dollars as applied to J.P. violated the open courts clause of the Indiana constitution, and that J.P.was in a class of persons treated unequally compared to other claimants seeking relief under the ITCA. As reported by Dan Carden of the NWI Times on Jan. 14th:
The sole person to reject the state's settlement offer for injuries suffered in the 2011 State Fair stage collapse cannot sue Indiana, because it already has paid other victims the maximum damages permitted by law.Ken Kusmer reported for the AP on the same day:
The Indiana Court of Appeals ruled 3-0 Wednesday that Jordyn Polet, of Cincinnati, who suffered $2,601 in immediate injuries at the fair and potentially up to $100,000 in total injuries, has no legal recourse, because there is no money available for her to recover.
Under the Tort Claims Act, the state only is liable for damages of up to $700,000 per person, or $5 million per incident, regardless of how many people were affected. * * *
State officials split the $5 million by paying heirs of those killed $300,000 each and paying 65 percent of medical bills for the injured.
A supplemental $6 million appropriation ultimately permitted payments of $700,000 to families of the dead and 100 percent of medical bills for the injured.
Polet turned down the $1,691 initially offered to pay 65 percent of her medical bills, making her ineligible for any additional money under the supplemental appropriation.
The appeals court affirmed the constitutionality of the state's liability cap as a legitimate legislative tool for protecting the state treasury from a multitude of lawsuits.
A three-judge panel rejected arguments by Jordyn Polet of Cincinnati that the cap, known formally as the Indiana Tort Claims Act, violates the Indiana Constitution and that the girl was treated differently than other claimants who sued the state. Polet, who rejected the state's offer of $1,690, was the only claimant not to settle with the state.The ILB wrote about "The 1963 Coliseum Explosion, the end of sovereign immunity, and the enactment of the tort claims statute" in this Sept. 6, 2011 post, citing Perkins v. State, 252 Ind. 549 (1969) and Campbell v. State, 284 N.E.2d 733 (1972). State v. Rendleman, 603 NE 2d 1333 (1992), an opinion by Justice Krahulik which is cited in Mid-American, contains on-point discussion beginning at p. 1335 and continuing through the end of the opinion.
"One of the main concerns the ITCA was intended to address was protection of the public treasury from a multitude of tort lawsuits," said the unanimous opinion written by Judge Melissa May. "The aggregate liability cap is a rational means to achieve the legitimate legislative goal of protecting the public treasury." * * *
One of the teen's attorneys, Robert Peck, said before speaking to Polet and her family that he likely would appeal the case to the Indiana Supreme Court. He said the Court of Appeals found that Polet had a valid cause of action but also that the state had immunity from her lawsuit.
"I think that's a fundamental error," Peck said in a telephone interview. * * *
Indiana Attorney General Greg Zoeller's office defended the liability cap in the case.
"Unlike a private company being sued for damages, state government under sovereign immunity cannot be sued except under the limitations and deadlines the Legislature permits, since this is taxpayers' money and the taxpayers did not cause the loss," Zoeller said in a statement.
Earlier, as Chris Sikich reported in this Dec. 19th Indianapolis Star story,:
The law firm representing victims of the Indiana State Fair stage collapse on Friday announced it had reached a settlement totaling nearly $50 million.
The settlement, announced by Kenneth J. Allen Law Group, includes claims from the seven deaths and 58 injuries in the Aug. 13, 2011, collapse.
In all, 19 companies were part of the settlement. A 20th company named in the class-action lawsuit, ESG Security, is headed toward trial in 2015.
The settlement includes the previously announced $11 million paid by the state of Indiana.
"In fully settling a few months after the tragedy in order to put the victims first, the Attorney General's Office has encouraged the private parties to make efforts to resolve their remaining disputes," Indiana Attorney General Greg Zoeller said in a statement. "We hope their private settlement now allows the victims and their families to find peace and move forward."
In what the law firm called a historic decision, the settlement includes Alisha Brennon, the domestic partner of Chicagoan Christina Santiago, who was killed in the collapse.
"We believe it is the first time a lesbian couple in a civil union has been treated like any other couple for the purposes of wrongful death recovery," said Bryan Bradley of the Kenneth J. Allen Law Group, in a prepared statement. "We are proud to have overcome another hurdle in the struggle for equal treatment regardless of sexual preference."
However, Zoeller said the $700,000 the estate of Christina Santiago received from the State of Indiana was paid by virtue of the fact that Ms. Santiago was a person who died in the incident, and was not based on her marital status.
On Monday, attorneys for victim Jordyn Polet asked the Indiana Court of Appeals to throw out the law that limits the amount of damages the state can give out after a tragedy.
Ind. Decisions - Transfer list for week ending January 16, 2015
Here is the Clerk's transfer list for the week ending Friday, January 16, 2015. It is two pages (and 23 cases) long.
One transfer was last week:
- James Bogner v. Teresa Bogner - This was a Sept. 23, 2014 COA opinion that concluded:
Here, the trial court did not indicate in its order that it considered any of the factors that it was required to consider under the Guidelines. In addition, the Parents did not submit any evidence from which the trial court could have considered many of the factors. There is evidence in the record concerning the Parents’ respective incomes and the percentage of the cost of supporting H.B. that each Parent bears. Based on this evidence, the trial court could have considered the second and fourth factors listed in the Guidelines, although there is no evidence it did so. Otherwise, neither party submitted previous tax returns nor any other evidence that would have helped the trial court consider the financial ramifications to H.B. of eliminating Father’s tax exemption, other than Mother’s self-serving testimony regarding the value of the exemption. Accordingly, we conclude that the trial court abused its discretion in modifying Father’s exemption. We remand to the trial court to re-evaluate the issue of the Parents’ tax exemption based on the factors listed in the Child Support Guidelines. Reversed and remanded with instructions.
Monday, January 19, 2015
Ind. Courts - More on: The biennial budgeting process provides a look at the Indiana Court's plans
In this Jan. 12th post, the ILB wrote about what it had gleaned to that point about the future plans of the Indiana Courts, including:
What have we learned so far - Supreme CourtThe ILB submitted an informal FOIA request to the Court on Jan. 11th, in advance of the post, but has never received the Dec. 17th slides. Eventually, the ILB contacted the State Budget Agency, which responded promptly with the best version it had, which was nondigital. Here is the 8-page document. The ILB had been particularly interested in seeing the slides on the Automated Recordkeeping Fee and the Sources of Court funding as referred to by the CJ, in hopes that they would provide more information:
Here is Chief Justice Rush's presentation to the Budget Committee on Dec. 17th, which was first on the agenda and lasted about 45 minutes. Much reference is made to slides, the ILB is attempting to obtain copies of the slides from the Supreme Court Public Information Officer. Without them the discussion is difficult to follow. Here are some points of interest to the ILB, but you may learn more if you listen for yourself.
The CJ, referring to a slide, went through the Automated Recordkeeping Fee, how much is collected, and how much the Court actually receives, and what will happen when $2 of the fee is sunsetted, but the discussion seemed confusing. [see, starting at 14:37 and 17:00-19:10]The two slides referenced are on p. 4 of the handout, but really provide little detail.
At 21:50, the CJ discussed a slide titled "How are your courts funded?"
Ind. Courts - Boehm on CJ Rush's proposal for a business court
Former Indiana Supreme Court Justice Ted Boehm wrote in Indiana Forefront yesterday:
In her inaugural State of the Judiciary address, Chief Justice Rush mentioned the Court’s initiative to study the creation of “a business court model” to offer more efficient handling of complex lawsuits.ILB: Here, from the transcript of her State of the Judiciary, is the text of the CJ's statement on business courts:
An Indiana Business Court is a concept that has been knocking around for several years. It is good to hear that the Supreme Court and its committee of trial judges are now moving forward to design a plan for this state. It may take some time, before we have a finished plan. Michigan adopted its business court plan in 2012 after forming a study committee in 2003.
Originally, a “business court” was understood as the Delaware model, where for over 100 years the Chancery Court was given exclusive statewide jurisdiction over internal corporate disputes. Because so many national corporations are organized in Delaware, the Chancery Court achieved national preeminence as the go-to court for major corporate law cases.
In the 1990s, business courts began to blossom across the country, and now exist in one form or another in many states.
In most states, the subject matter of cases handled by business courts has been expanded well beyond the original Delaware model, and many business courts now handle a variety of forms of complex litigation. Typically any lawsuit between two businesses, even if only a contract dispute, is deemed a “business” case, and many states add specific subject matters such as securities litigation.
The “court” is usually not a single trial court with statewide jurisdiction like the Indiana Tax Court. Rather, most states have designated business courts as divisions of one to three existing trial courts in areas with a volume of business cases.
Michigan, for example, has given jurisdiction over categories of cases deemed complex to a few judges in three counties that include Detroit, suburban Detroit and Grand Rapids.
Experience in other states seems to establish that there is a benefit to having experienced judges handling cases involving extensive discovery, multiple parties, or subject matters that come along only infrequently. But there is no uniform pattern across the United States. The configuration of a business court plan for this state requires a detailed study of Indiana’s caseloads to identify what kind of cases are appropriate to reserve to specialized judges. The same study also needs to figure out where a business court or courts should be located.
Second, to fulfill our promise of justice for businesses in Indiana, we are looking at improving how we process complex civil cases. The Court is currently working on the development of a business court model focused on complex commercial litigation. Creating this specialty court will bring together judges experienced in handling business and commercial law cases to preside over a specialized docket with business-specific resources. Our goal in this endeavor, along with the introduction of electronic filing, is to promote an attractive, predictable and consistent climate for doing business in Indiana. Many thanks to Justice David, Judge Heather Welch, Judge Craig Bobay and their committee for all their work here.
Ind. Courts - "Check given to church from estate bounces"
That is the headline to this Anderson Herald Bulletin story today by Ken de la Bastide that begins:
For the second time in his career, an Anderson attorney is in a court dispute over the administration of an estate.
And now, attorney Stephen Schuyler is being called to task over a check he wrote to East Lynn Christian Church to settle the estate of the late Sarah Wilding. The check reportedly bounced, according to court documents.
Schuyler was appointed administrator of Wilding’s estate in 2012. Wilding died on April 20, 2012, and her will specified that remaining assets be paid to the church.
On Oct. 13, 2014, Court Commissioner Jason Childers in Madison Circuit Court Division 6 signed an order in which Schuyler agreed the church was owed $77,387.13 from Wilding’s estate.
Attorney Patrick Cunningham, representing East Lynn Christian Church, 522 E. 53rd St., filed a motion with the court on Oct. 30 stating the funds had not been received. A hearing was set for Nov. 26 but Schuyler failed to appear.
Another hearing was set for Dec. 10 where Schuyler again failed to show up. An arrest warrant was issued but the court approved a seven-day stay on the warrant being issued.
On Dec. 16, Schuyler gave a check to the church for $78,387.17. Several days later it was returned by Ameriana Bank for insufficient funds.
Cunningham requested a hearing on behalf of the church as a result of the bounced check and a hearing was set for last Wednesday. Schuyler failed to appear for the hearing. The court denied his request for a continuance and granted Cunningham’s request to seek a warrant.