Thursday, April 27, 2017
About the ILB - As the month draws to a close ...
What would it have taken to keep the ILB afloat? As a reader suggested earlier:
... the equivalent of $30/month from each of Indiana's 92 county bar associations.
Ind. Decisions - More on: Documents for "big box/dark box" oral argument Thursday
Wednesday, April 26, 2017
Vacancy On Supreme Court 2017 - Evaluations sent to Governor
Here is the 8-page letter, dated April 26, containing the written evaluations of the 3 finalists that Chief Justice Rush, in her role as chair of the Judicial Nominating Commission, has sent to Governor Holcomb.
The Governor's 60 days for making a decision begins as of today, April 26, 2017.
A quote from each of the evaluations of the candidates' qualifications prepared by Chief Justice Rush:
- Clark Circuit Court Judge Vicki L. Carmichael. As a practitioner and judge, Vicki Carmichael has earned the reputation of a
dedicated public servant and effective administrator. Whether tackling matters of public
criminal defense, developing programs to address local issues affecting the courts, or
negotiating with other stakeholders to unify the Clark County Courts, Judge Carmichael is
committed to improving Indiana 's judiciary. * * * As Jeffersonville Mayor Mike Moore recognized. "One cannot ignore Judge
Carmichael's impact in our community. Her public service has made Jeffersonville a better
place for children and families'"
- Wabash Superior Court Judge Christopher M. Goff. Recognized for his keen intellect and devotion to civic and community affairs. Chris
Goff has an impressive reputation as a wise and effective problem-solver who acts with
integrity. compassion, and justice. Informed observers of Indiana 's judiciary repeatedly
describe him as a thoughtful man with great wisdom who seeks out opportunities to
increase his service to the local community and the State of Indiana. Others point to his
collaborative leadership skills and humble demeanor. which have enabled him to promote
innovative court programs that have created a positive impact on Indiana' s justice system.
- Boone Superior Court Judge Matthew C. Kincaid. Elected as judge of the Boone Superior Court just eight years after graduating law school, Matthew Kincaid quickly became a leader in Indiana ' sjudiciary. He is known for his thoughtful, well-articulated legal arguments; his readiness to donate his time and expertise to charitable causes; and the exceeding patience and collegiality he shows litigants, colleagues, and members of the public alike. Judge Kincaid's legal career illustrates the advice he gives his children each morning: "Work hard and be nice to everybody."
Ind. Decisions - 7th Circuit decides Tax Court appeal re how to apply the “duty of consistency”
In Alaa Musa v. Comm. of Internal Revenue (US Tax Court), a 13-page opinion, Judge Hamilton writes:
The central issue in this appeal from the Tax Court is how to apply the “duty of consistency,” an equitable tax doctrine analogous to judicial estoppel, which prevents a party from prevailing in a court proceeding by taking one position and then taking a contradictory posi tion in a later case. See Kielmar v. Commissioner, 884 F.2d 959, 965 (7th Cir. 1989). The Tax Court correctly applied the duty of consistency in this case to prevent a taxpayer’s unfair tactic to minimize the consequences of his fraud.
Ind. Decisions - Supreme Court decides one today, re a contractual non-delegable duty of care to keep a worksite safe
In Michael Ryan v. TCI Architects/Engineers/Contractors, Inc. and BMH Enterprises, Inc., d/b/a Craft Mechanical, a 10-page, 5-0 opinion, Justice David writes:
At issue is whether a general contractor assumed a non-delegable duty of care to keep a worksite safe when it executed the contract in question. Guided by the contract’s plain language and looking at the contract as a whole, we find the contract demonstrates the general contractor’s intent to assume a duty of care. Thus, we: 1) reverse the trial court’s grant of partial summary judgment for defendant; 2) grant the plaintiff’s motion for partial summary judgment on the issue of duty; and 3) remand for further proceedings on breach, causation, and damages. * * *
Conclusion. We hold that, by entering into a contract containing language that required TCI to assume responsibility for implementing and monitoring safety precautions and programs for all individuals working on the site, and by agreeing to designate a safety representative to supervise such implementation and monitoring, TCI affirmatively demonstrated an intent to assume a nondelegable duty of care toward Ryan. Accordingly, we reverse the trial court’s grant of summary judgment for TCI, grant Ryan’s motion for partial summary judgment on the issue of duty, and remand for further proceedings on breach, causation, and damages.
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 9 NFP memorandum decision(s))
For publication opinions today (1):
In State of Indiana, Indiana Department of Correction, and Indiana State Employees' Appeals Commission v. Debra Mills, et al., a 34-page, 2-1 opinion, Judge Riley writes:
[Issue] Whether the trial court erred in reversing the Final Order of the SEAC based on the fact that the State presented substantial evidence that the Employees were laid off from their positions at the DOC in accordance with statutory requirements. * * *In Karen B. Salser v. Gregg A. Salser, a 33-page, 2-1 opinion, Judge Brown writes:
Based on the foregoing, we conclude that SEAC/ALJ properly determined that the State calculated the Employees’ retention scores and adhered to statutory layoff rights in accordance with Indiana Code section 4-15-2-32(a)-(b) (repealed 2011). However, we also conclude that the State failed to comply with the State Personnel Act’s requirement that laid-off employees with the highest retention scores be afforded the first opportunity for re-employment. Thus, the trial court correctly reversed the Final Order of the SEAC with respect to Indiana Code section 4-15-2-32(c) (repealed 2011).
Altice, J. concurs
Crone, J. concurs in part and dissents in part with separate opinion [that begins, on p. 33] I respectfully disagree with the majority’s conclusion that the State did not violate the State Personnel Act by retaining four employees classified as institutional teachers who held administrative licenses but had lower retention scores than some of the Employees. Indiana Code Section 4-15-2-32(a) specifically states that the order of lay-off for each class within a county is determined by retention points, not by licensing considerations. We may not read into a statute that which is not the expressed intent of the legislature. In re Guardianship of Stant, 50 N.E.3d 149, 152 (Ind. Ct. App. 2016), trans. denied. In all other respects, I concur.
Mother raises four issues which we consolidate and restate as whether the court erred in entering its child support order and educational support order. * * *NFP civil decisions today (2):
For the foregoing reasons, we reverse the trial court’s Amended Decree and remand for a recalculation of child support and post-secondary educational expenses consistent with this opinion.
Vaidik, C.J., concurs.
Bradford, J., dissents with separate opinion [that begins, on p. 26] [B]ased on my review of the record, I do not believe that the trial court erred in (1) imputing income to Mother, (2) excluding the parties’ bonuses from the calculation of the parties’ weekly income, or (3) ordering that Mother to pay half of the eldest child’s college expenses. * * *
Given that I would find that the trial court’s challenged findings and conclusions are not clearly erroneous, I would vote to affirm the judgment of the trial court.
NFP juvenile and criminal decisions today (7):
Ind. Decisions - ND Ind. Confirms Work-Product Doctrine Privilege Covers Only Certain Documents Exchanged With Third Party Consultants
Anthony Cavender, Pillsbury Winthrop Shaw Pittman LLP, writes in an article in JD Supra that begins:
On April 14, a U.S. Magistrate serving with the U.S. District Court for the Northern District of Indiana issued a ruling in a matter involving the attorney-client and attorney work product privileges. The case is Valley Forge Insurance Company v. Hartford Iron & Metal, Inc. The District Court held that the attorney’s communications with environmental contractors Keramida, Inc. and CH2M Hill, Inc. were not entered into for the purpose of rendering legal advice and, therefore, the attorney-client privilege did not apply. However, the District Court did agree that some of the emails were protected by the attorney work product doctrine.
Ind. Gov't. - SOS Connie Lawson Hails New Act That Modernizes Business Law
Via WBIW, what looks to be a long news release that begins:
(INDIANAPOLIS) - The Indiana General Assembly has passed, and Governor Eric Holcomb has signed into law, the most far-reaching revision of Indiana business laws in more than two decades," Indiana Secretary of State Connie Lawson said Monday.Access the 149-page HEA 443 here. From the digest:
The new law will simplify business formation and bring consistency to the rules that govern businesses and business transactions," she said in hailing the passage of the legislation.
The Secretary of State's Office, through its Business Services Division, is responsible for filing and maintaining all business registration records for the state. It is also the home of INBiz, a one-stop, online portal for businesses that streamlines compliance with registration and other government requirements.
Lawson said that the new statute, S.E.A. 443, reflects Indiana's commitment to making the Hoosier State a great place to do business. "This legislation is another example of our state making every effort to cut government red tape for businesses and promote economic development," she said.
Current law has similar but completely separate administrative requirements for business corporations, limited liability partnerships, limited partnerships, nonprofit corporations, and limited liability companies. The new legislation takes provisions on business filings, names, registered agents, foreign entities, and administrative dissolution from five different current laws, makes them identical to each other to the extent possible, and places them in a single place in the Indiana Code. A second part of the act also consolidates in one place and makes consistent provisions governing business mergers, interest exchanges, conversions, and domestications. The provisions of existing law affected by these changes have been repealed.
"Now no matter what entity type a business chooses," Lawson said, "the rules will be the same. This will greatly simplify requirements for businesses and eliminate traps for the unwary," she added.
The new law takes effect January 1, 2018.
Uniform business organization laws. Enacts provisions of the Uniform Business Organization Code, including the Uniform Model Registered Agents Act and the Uniform Model Entity Transactions Act. Makes conforming changes.
Ind. Courts - 7th Circuit also not immune from an errant cell phone ringing during oral argument
Updating the ILB post from yesterday, a reader writes:
During oral argument in the Seventh Circuit last week, Judge Rovner's cell phone went off. Judge Rovner tried to turn it off and, after Siri made some comment ("I didn't quite get that"), Rovner said she was a Luddite.You may listen to the oral argument here.
Another judge, sitting by designation, commented that the music was good.
Incidentally, this was a marijuana-related case heard on 4/20 -- Higher Society of Indiana v. Tippecanoe County (17-1089).
Tuesday, April 25, 2017
Courts - Indiana Supreme Court not immune from an errant cell phone ring during oral argument
SCOTUS Justice Breyer's cell phone "goes off in middle of Supreme Court arguments" today, according to a number of news reports, including this one from CNN:
The Washington Post's Robert Barnes was in court and tweeted that Breyer appeared "red-faced" as the justice struggled to silence the offending device.The report continues that Breyer's phone made a pinging sound.
A similar interruption occurred before our Indiana Supreme Court a number of years ago, but with a more musical ringtone.
BTW, notice that this was the "old Court." Of the five, Shepard, Boehm, Dickson, Rucker, and Sullivan, only Rucker is still sitting, and he is retiring next month.
Ind. Courts - More on: Update on the Commercial Courts project
On Sept. 27, 2016, the ILB reported:
MyCase.in.gov now has a separate option for "commercial courts." A search run this afternoon by the ILB disclosed that currently 34 cases have filed in the commercial courts around the state.Two months later, on Nov. 30. 2016, the ILB ran another search. The results:
A review shows, however, that of the 34 cases, 27 have been filed in Marion Superior Court, Civil Division 1. Of the remaining 7, 5 have been filed in Allen County and 2 in Elkhart County.
Chief Justice Rush pointed out today: "Indiana has statewide venue, you may file your case, any sort of civil case, and any county that you wish, as long as the other side does not file a motion for preferred venue, then the case can remain where it was filed. So, any case that you have can be filed before any of the six."
- As of that date, 49 cases had filed in the commercial courts around the state.
- Of the 49 cases, 39 had been filed in Marion Superior Court, Civil Division 1.
- Of the remaining 10, 7 had been filed in Allen County, 2 in Elkhart County, and 1 in Vanderburgh County.
Today, April 25, 2017, nearly 5 months later (and 7 months after our first report), the ILB has run another search:
- Currently 90 cases have filed in the commercial courts around the state.
- Of the 90 cases, 29 are now closed. 22 of the closed cases are from Marion County.
- Of the 61 open commercial court cases, 42 have been filed in Marion Superior Court, Civil Division 1.
- Of the remaining 19 open cases, 13 have been filed in Allen County, 2 in Elkhart County, 2 in Floyd, and 2 in Vanderburgh County.
Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 5 NFP memorandum decision(s))
For publication opinions today (0):
NFP civil decisions today (1):
NFP juvenile and criminal decisions today (4):
Ind. Decisions - Documents for "big box/dark box" oral argument Thursday
Howard County Assesor v. Kohl's Indiana LP (49T10-1502-TA-00004) will be argued before the Supreme Court this Thursday at 9:45 AM. Here are some of the documents in the case:
- The Sept. 7, 2016 Tax Court opinion and the videocast of the Jan. 15, 2016 oral argument before the Tax Court that preceded it.
- The 43-page Howard County Assessor's Petition for Review, filed Nov. 7, 2016
- The 27-page amicus brief of the Indiana County Assessors Ass'n., filed Nov. 23, 2016
- The 41-page Respondent's Brief in Response, filed Dec. 14, 2016
- The 21-page brief of amicus Indiana Legal Foundation, filed Dec. 19, 2016
- The 23-page Howard County Assessor's Reply Brief, filed Dec. 26, 2016
- The 23-page Amicus Brief of Ind. Ass'n. Cities & Towns and Ind. Municipal Lawyer's Ass'n., filed Jan. 24, 2017
- The 15-page Respondent's Brief in Response to Briefs of Amicus Curiae, filed Feb. 13, 2017
Here is a list of ILB posts on the "big box/dark box" issue.
Ind. Gov't. - "Bloomington annexation plan effectively killed with passage of state budget bill"
If the past holds true again this year, a number of "budget bill surprises" will turn up over the next few months.
This year there was no attempt to bury some of the non-related language inserted at the last minute into the budget bill. For instance, as Rod Spaw of the $$ Bloomington Herald-Times reported on April 23rd:
Bloomington’s annexation plan effectively was killed early Saturday when the Indiana House approved a biennial budget bill that included language targeting the controversial proposal to absorb approximately 9,500 acres and nearly 15,000 people into the city.
The budget bill, approved by the House before adjourning for the year just prior to 1 a.m. Saturday, contained a section inserted during conference committee proceedings that terminates annexation ordinances under consideration by the Bloomington City Council and prohibits any further effort to annex that property until after June 20, 2022.
In remarks Saturday morning on the House floor, state Rep. Matt Pierce, D-Bloomington, said he was more concerned about the way the provision got into the bill — at the last minute — than the provision itself.
“The mayor and city council were working through the system laid down in the law. They were following the rules,” Pierce said. “It’s all done now. So much for democracy.” * * *
In his remarks Saturday, Pierce said there were legitimate issues the Legislature could address in another session, such as the use of waivers and the impact of annexation on other units of government. He objected to the addition of a provision neither chamber had previously approved into a conference committee report on the budget.
“You know these provisions don’t get put into the budget bill by just anybody,” Pierce said. “What does it really take to get it in the budget? How much influence and power do you have to have?”
Ind. Gov't. - Gov. Holcomb vetoes HEA 1523, re public records fees
Yesterday afternoon Governor Holcomb vetoed HEA 1523 with a veto message stating:
Dear Mr. Speaker and Members of the House of Representatives:The ILB has had a number of posts on this proposal, including one from April 10th that suggested:
By the authority vested in me as Governor of Indiana, under the provisions of Article 5, Section 14, of the Constitution of the State of Indiana, I do hereby veto House Enrolled Act. No. 1523, enacted during the regular session of the 120th General Assembly and related to search fees for public records requests.
While I understand the intent behind the bill to offset the considerable time and expense often devoted to fulfilling public records requests, I view this proposed legislation as contrary to my commitment to providing great government service at a great value for Hoosier taxpayers.
Providing access to public records is a key part of the work public servants perform and is important from a government transparency standpoint. I do not support policies that create burdensome obstacles to the public gaining access to public documents.
I vetoed HEA 1523 for these reasons; however, I support the provision requiring public agencies to provide electronic copies of public records in electronic format (such as emails) if requested.
Finally, I believe there are steps that can be taken administratively to streamline and improve the process for fulfilling public records requests, and I have charged my office to examine the best ways to provide public transparency and access to public records at the highest possible value to taxpayers.
Eric J. Holcomb
Perhaps there should be some sort of research done before a law like this is enacted, such as requiring governmental officials to track the time it takes them now to fill public records requests. This might reveal where governmental processes currently are operating inefficiently, bottlenecks, duplication, etc.
Alternatively, the proposal should include a way for the public to challenge the amount assessed for a public records request. Under this bill there is no requirement, or indeed, any encouragement for a public official to fill a records request in the most efficient way possible.
Law - "Dozens of Republican lawmakers are asking President Trump to scale back Obama-era protections for gays and lesbians"
USA TODAY reports in a story by Eliza Collins headed "Republicans in Congress push for religious liberty executive order" that begins:
WASHINGTON — Dozens of Republican lawmakers are asking President Trump to scale back Obama-era protections for gays and lesbians in order to make good on a campaign promise to protect religious liberty.
In early February, Trump was reportedly considering an executive order that would reverse former president Barack Obama's orders prohibiting discrimination against gays and lesbians in the federal workforce or by federal contractors. But the order was never signed.
A group of 51 members of the House wrote to Trump this month to "request that you sign the draft executive order on religious liberty, as reported by numerous outlets on February 2, 2017, in order to protect millions of Americans whose religious freedom has been attacked or threatened over the last eight years." The letter has not been publicly released but was obtained by USA TODAY.
In February, the White House said Trump had no plans to sign such an order: "The executive order signed in 2014, which protects employees from anti-LGBTQ workplace discrimination while working for federal contractors, will remain intact at the direction of President Donald J. Trump.”
But on Monday, a senior White House official told USA TODAY that some sort of policy to protect religious liberty is still in the works, but that the president is trying to find middle ground. The official did not want to publicly discuss a policy that is still under development.
Ind. Decisions - "Supreme Court dismisses wounded officer's claims against gun shop" [Updated]
The Indiana Supreme Court ruled Monday that a wounded Indianapolis Metropolitan Police Department officer cannot sue an area sporting goods shop for damages stemming from an injury involving a weapon it sold.[Updated at 6:18 PM] here is Dan Carden's coverage of the opinion in the NWI Times:
In an opinion filed Monday afternoon, the court dismissed Dwayne Runnels' 2013 lawsuit claiming damages against KS&E Sports, an Indianapolis-based sporting goods store, and the store's owner, Edward J. Ellis. Runnels alleged the store sold a handgun to an individual who resold it to another man who used it to injure him months later. He also claimed the shop was a public nuisance.
Gun shops are provided widespread immunity under a section of the Indiana Code that states a person cannot bring a suit against a gun or ammunition manufacturer, trade association or seller for damages resulting from criminal use of the gun by a third party.
In its opinion, the court dismisses Runnels' damage claims using that statute, but upheld his claim of public nuisance. In Indiana, plaintiffs may request an action to abate or enjoin a public nuisance if their property is negatively affected or the nuisance affects their enjoyment of life or property.
In this case, Runnels requested an order enjoining or abating the nuisance until the store modifies its sales, training and marketing policies and retrains employees "to reasonably and adequately minimize the risk that criminal(s), juveniles and other prohibited and/or dangerous persons will obtain firearms from KS&E." * * *
Attorneys for the store argued the case should be thrown out of Marion Superior Court in 2014, citing the immunity statute as proof the store wasn't responsible for Martin's actions. The judge ruled in Runnels' favor, allowing the case to proceed. In March 2016, the Indiana Court of Appeals also ruled the store was not immune from a lawsuit, allowing Runnels to continue to try to prove his case. In August, it moved to the Indiana Supreme Court.
The Indiana Supreme Court also disagreed with Runnels' claims that the law, which he says protects gun sellers but not the victims of these crimes, is unconstitutional, allowing for unequal privileges and violating due process.
Indiana Supreme Court Justice Geoffrey Slaughter wrote in his opinion Monday that the court came to its conclusion by strictly interpreting the statute as written, albeit acknowledging that, more broadly, it could be interpreted as contrary to arguments from both sides.
On one hand, Slaughter wrote, it provides immunity to sellers, contrary to Runnels' claims, but also only provides limited immunity from cases involving damages sought, which would be contrary to KS&E's claims.
"The legislature's policies, so long as they are constitutional, are beyond our purview," Slaughter wrote. "We neither applaud the wisdom of such choices nor condemn their folly. We simply assess their legality."
An Indianapolis police officer shot in the line of duty cannot seek financial damages from the retailer who sold the gun through a "straw" purchaser to a convicted felon who was prohibited from buying it.
In a 3-2 decision, the Indiana Supreme Court ruled that the state's gun seller immunity statute bars all lawsuits against retailers for damages arising out of the misuse of a firearm — "regardless of the seller's culpability."
Justice Geoffrey Slaughter, a Crown Point native writing for the high court, said the immunity protection, as crafted by the legislature, is clear, unambiguous and applies to both legal and illegal gun sales.
"On its face, this provision forecloses damages claims when a third party's misuse of a firearm injures the plaintiff," Slaughter said. "Nothing in the statute limits its application to situations where a third party obtained the firearm, directly or indirectly, from a lawful sale."
He observed that the federal government and other states, including Colorado, deny gun sellers immunity from financial damages when the retailer knowingly sells a gun in violation of a state or federal law, such as through a straw purchaser.
"These passages reflect a clear legislative judgment to subject firearms sellers that violate the law to tort liability — which is notably absent from Indiana's statute," Slaughter said.
Justice Robert Rucker, a Gary native, dissented from the court's decision in an opinion joined by Chief Justice Loretta Rush.
Rucker said despite Slaughter's reading of the statute, lawmakers certainly did not plan to immunize gun retailers under all possible circumstances, such as when a purchaser directly tells the gun shop clerk that he's buying a weapon to go on a shooting spree and does.
Monday, April 24, 2017
Ind. Decisions - Supreme Court decides one today, re liability of firearms seller
In KS&E Sports and Edward J. Ellis v. Dwayne H. Runnels, a 19-page, 3-2 opinion, Justice Slaughter writes:
Under Indiana law, “a person may not bring an action against a firearms … seller for … recovery of damages resulting from the criminal or unlawful misuse of a firearm … by a third party.” We agree with the parties that this statute is unambiguous. By its plain terms, the statute immunizes a firearms seller from a damages suit for injuries caused by another person’s misuse of a firearm, regardless of whether the sale was lawful. Having previously granted transfer, we hold that Plaintiff’s claims for damages must be dismissed, but his claim seeking a non-damages remedy survives. We affirm in part and reverse in part. * * *
The parties agree that Section 34-12-3-3(2), which lies at the heart of this litigation, is unambiguous, but they disagree on its meaning. We conclude as follows: Section 34-12-3-3(2) unambiguously bestows immunity on KS&E to the extent Runnels seeks damages resulting from Martin’s misuse of a firearm; Runnels’s negligence, piercing-the-corporate-veil, and civil- conspiracy claims fail Rule 12(C) review because they seek only money damages; and Runnels’s public-nuisance claim survives to the extent it seeks equitable relief. Finally, we hold that federal law does not preempt this statute and reject Runnels’s constitutional claims. * * *
We hold that Indiana Code section 34-12-3-3(2) is unambiguous and functions as a limited immunity statute that insulates KS&E from suits for “recovery of damages resulting from the criminal or unlawful misuse of a firearm . . . by a third party.” Thus, Runnels’s negligence, piercingthe-corporate-veil, and civil-conspiracy claims, which demand only money damages, must be dismissed. Section 34-12-3-3(2), however, does not immunize KS&E from Runnels’s publicnuisance claim seeking equitable relief. That claim survives and may proceed. Finally, we conclude the statute is not preempted by federal law and does not violate either state or federal Constitution. We affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.
David and Massa, JJ., concur.
Rucker, J., concurs in part and dissents in part with separate opinion in which Rush, C.J., concurs.
I part company with my colleagues on their expansive reading of the statute. Consider the following hypothetical: Two men walk into a gun store. Person #1 tells the proprietor, “I am wanting to buy a firearm for my friend here who is a convicted felon who cannot lawfully purchase a firearm. My record is clean.” Person #2 confirms he is a convicted felon and tells the store owner, “I intend to go on a shooting spree.” The purchase is consummated and the next day the convicted felon goes out and wreaks havoc on an elementary school and wounds first responders in the process.
In the majority’s view the gun store would be immune from civil liability and not accountable in civil court to the victims of the shooting. This is so, according to the majority, because “[t]he unambiguous statute operates as a limited immunity provision insulating a firearmsseller from a suit for damages caused by a third party’s misuse of a firearm, regardless of the seller’s culpability.” Slip op. at 6 (emphasis added).
I am not persuaded and cannot believe the legislature intended immunity under the facts posed by the hypothetical. It appears to me the statute was designed to protect innocent and unknowing gun sellers from the acts of third parties. The legislature could not have intended to protect gun sellers from their own illegal acts. On this point, I respectfully dissent.
Ind. Gov't. - "St. Joseph County files lawsuit to seize farmland by power plant"
Ind. Gov't. - News & Trib series on opioid epidemic
The series, "CROSSROADS OF CRISIS: Southern Indiana courts, jails forced to respond to opioid epidemic," by Elizabeth DePompei, has been appearing in the New Albany/Jeffersonville News & Tribune. Here is the schedule:
- APRIL 8 — State of the crisis
- APRIL 15 — Health impact
- APRIL 22 — Criminal justice impact
- APRIL 29 — Economic impact
- MAY 6 — Solutions and success stories
The rise of heroin use across Southern Indiana and the rest of the country has made the revolving door between addiction and the criminal justice system rotate even faster, leaving courts overburdened and jails overcrowded. Despite efforts to address the epidemic from inside the system, many of the people being helped continue to live in a cycle of addiction.
It’s not the kind of problem the system was built for, but those in a position to make a difference say they’re confronting it anyway.
Clark County Circuit Court No. 2 Judge Brad Jacobs saw 1,200 new felony cases filed in his court last year. He estimates that roughly half his caseload involves heroin in one way or another. And it’s not uncommon for Jacobs to see the same person on new charges within the month.
“It seems like the people who are on heroin, who get arrested for heroin, are coming back more frequently,” Jacobs said. “They just pick up another case and another case, and so they’re clogging up the system more than they’re moving through.”
In Floyd County, Superior Court Judge Susan Orth sees cases related to opioid abuse almost daily, whether it’s a possession case or a theft somehow connected to drugs.
“We’ll have days when people are actually actively high standing in front of us,” Orth said. * * *
This story is the third in a five-part series examining the opioid epidemic in Clark and Floyd County.
NEXT SATURDAY: Businesses are losing billions as their employees battle substance abuse. Also, meet the owner of a local restaurant who is giving recovering addicts a second chance.
Vacancy On Supreme Court 2017 - "Supreme Court set to be all-white, all-GOP appointed"
That is the headline to the AP's Rick Callahan's story this weekend. Some quotes:
Indiana’s next state Supreme Court justice will complete the remaking of the bench, as all five justices will be white and will have been appointed since 2010 by Republican governors.
The state’s Judicial Nominating Commission on Wednesday chose three finalists to succeed Justice Robert Rucker, who is retiring May 12. Once the names of the finalists — Judges Vicki Carmichael, Christopher Goff and Matthew Kincaid — are sent to Gov. Eric Holcomb, he’ll have 60 days in which to choose one to succeed Rucker.
Here is some background on the finalists, Rucker and the court. * * *
When Rucker’s replacement is named, all five members of the state’s highest court will have been appointed by Republican governors. Indiana University law professor Joel Schumm said that’s the first time that’s happened since Indiana voters approved a constitutional amendment in 1970 creating a commission to pick finalists for the governor to choose from. He said he doesn’t think the change will be particularly significant because Indiana justices have a long tradition of not being politically ideological in their rulings. The governor’s pick will join Rush, Justice Steven David, Justice Mark Massa and Justice Geoffrey Slaughter on the court. Given the ages of the justices, Schumm says they could be together on the court for about 15 years.
Ind. Decisions - More on: Attorney suspended in 2008 reinstated after lengthy process
Updating this ILB post from April 6th, Mark Wilson of the Evansville Courier & Press has a lengthy, definitely worth-reading "story behind the story" today, headed "10 years after meth addiction, attorney's license reinstated." Just a few quotes:
Attorney Scott Danks represented her during the various stages of the disciplinary process and at the hearing to reinstate her license.
"Trying her case was like watching a movie with a really happy ending. I had to fight back tears the whole time," Danks said. "Sometimes we make mistakes and get knocked off our saddle and are too bruised to get back up. Teresa not only got back on her saddle but won the Triple Crown. She has become a leader in the recovery community, has married and has two beautiful children and has her career back."
It started with her own recovery. McKeethen recalled that her own involvement in drugs was gradual. Growing up in what she described as an upper-middle class family with no exposure to alcohol or drugs. Through her first husband, she became acquainted with a different lifestyle and eventually began to meet other professionals who used drugs. Somehow, it made it seem more acceptable at the time.
During the hearing to reinstate her license in February, McKeethen described it: "They were professional, successful people, so in my mind I justified it a little bit; it made me feel like it was okay because I was doing it with them. It is crazy thinking, I know."
Vanderburgh Superior Court Judge Wayne Trockman, who oversees many of the county's treatment courts, said McKeethen has become a sought-after mentor.
"I think this is an example of the fact that drug or alcohol addiction can hit anyone at anytime," he said.
Ind. Courts - List of judicial vacancies and application forms
Pursuant to Article 5, Section 18 of the Indiana Constitution and Indiana Code, the Governor of the State of Indiana has the authority to fill judicial vacancies as they occur in the state.
Governor Holcomb has a special page for posting current judicial vacancies. Access it here.
Law - Finer points of storage of police body cam video
Brian Sharp reports in a detailed story at the Rochester NY Democrat & Chronicle that:
Roll out of the city's $1.7 million program began last August, starting with a few dozen cameras being issued to members of the Clinton Section in the city's northeast neighborhoods. Cameras are to be worn by all patrol officers, sergeants and lieutenants. Perkowski is one of three people RPD has assigned to the manage the camera program full-time.Here are some recent earlier ILB posts on body cams, from March 15th and March 23rd.
The voluminous video being generated is stored onsite, and is not a concern — at least not yet. But it is highlighting the need for clarity about how long digital files must be kept for evidentiary or other purposes. The department has 11 different retention periods, depending on the incident involved, ranging from months, to decades; if not indefinitely.
But, Perkowski explained, "There's not a lot of statutes on how long we should be keeping digital evidence versus paper evidence."
If you are wondering about the city's surveillance or blue-light cameras, those operate on a 30-day loop with video only retained if it is specifically extracted and saved by request.
A model policy for body cameras, issued by the New York state Municipal Police Training Council, sets minimum retention periods at six months, regardless of evidentiary worth. The policy also suggests that recordings might be kept for officer training, something Perkowski expressed unease over given privacy expectations of citizens involved.
When it comes to access, the Monroe County District Attorney can pull and copy files remotely from RPD's files. Other requests, including those from parole, probation and the public, are answered upon request. Most of the public requests have come from insurance companies looking for footage of motor vehicle accidents, Perkowski said. But the total number of requests has been less than anticipated, so far.
"We deal with, on average, five to 10 video requests a week. That has gone up substantially," Perkowski said. "We were at one or two the beginning of March. I only see that going up."
Over at the DA's office, the video has been helpful in removing ambiguity from some situations.
"There is no gray area. It's black and white, as to what a person said, or how a person looked," Duckles said. "It's adding clarity to the (police and witness) reports."
Video also allows officers to refresh their own memories in preparing for trial, he said, calling it "an invaluable tool." The Leadership Conference on Civil and Human Rights has advised that officer recollection and body-camera footage be kept as independent records, and certainly early on so that reports do not reflect what the cameras recorded but what the officer experienced.
As for the effect on cases, it is still too soon to tell, officials said. Courts have had to adjust rules to allow the body cameras into the courtrooms but otherwise have been able to accommodate with minor adjustments.
Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 7 NFP memorandum decision(s))
For publication opinions today (0):
NFP civil decisions today (1):
NFP juvenile and criminal decisions today (6):
Ind. Decisions - Transfer list for week ending April 21, 2017
Here is the Clerk's transfer list for the week ending Friday, April 21, 2017. It is one page (and 19 cases) long.
One transfer was granted last week:
- Corey Middleton v. State of Indiana - transfer granted, with opinion, on April 21. See ILB summary here.
Ind. Courts - "Tax-case ruling to have far-reaching consequences"
You can be forgiven if the tax bill for the Kokomo Kohl's store isn't foremost in your mind these days. But arguments before the Indiana Supreme Court Thursday could have a major effect on your pocketbook, your neighborhood schools, your library and local government services.
If the state's highest court declines to review and leaves in place an Indiana Tax Court ruling, the state could see a loss of $3.5 billion in assessed property value.
About $50 million in property tax liabilities could be shifted from commercial property owners, and nearly $70 million in local revenues will go uncollected.
You'll pay more if you haven't hit the property tax cap; you'll lose services even if you have. And some commercial property owners stand to reap nearly $121 million in tax savings.
Howard County Assessor v. Kohl's is much more than a disagreement between a county assessor and a single retailer. It represents an industry-wide push by major retailers to cut their tax bills by arguing their stores should be assessed as if they were vacant.
The implications go beyond the so-called “big box” stores like Kohl's, Meijer and CVS. Allowing major retailers to use an assessment methodology – with vacant “dark stores” for a sales comparison – could extend to thousands of other properties – factories, supermarkets, shopping malls and more.
“It's the No. 1 issue assessors are watching,” said Stacey O'Day, Allen County assessor and vice president of the Indiana County Assessors Association. “All of the sudden we have a particular property class that's been allowed to compare itself to vacant, abandoned properties. If one property class is allowed to do this, this could change the way we're looking at all properties.”
Also at stake are infrastructure projects supported by revenue from tax-increment financing districts – projectsundertaken with the expectation of all taxpayers paying their fair share, not paying tax bills based on assessments reduced by as much as 45 percent.
“It carries with it the potential of unraveling the whole system,” said Fort Wayne attorney Mark GiaQuinta, who will argue for a review on behalf of Howard County, the Association of Indiana Counties, county assessors and other interested parties.
The “system” is one the Indiana Supreme Court itself put in place with the St. John case in 1998, which declared the state's assessment procedures unconstitutional.
It called for assessments based on market value, so property owners know that the value of their homes and other property is based on sales of similar properties.
But recent tax court decisions involving big-box stores contradict that ruling in allowing sales comparisons for vacant buildings.
“The (Howard County) decision is one of several from the Tax Court which has redefined the market value-in-use standard to the detriment of each county in the State of Indiana,” argues a friend-of-the-court brief filed by GiaQuinta and attorney Sarah L. Schreiber.
The ruling “violates the spirit of the landmark valuation standard set forth by this Court in Tax Commissioners v. Town of St. John,” they write.
Since the Supreme Court's 1998 decision, Hoosiers have benefited from tax-assessment procedures meeting the court's call for a system that is “substantially uniform and equal based on property wealth.”
It is more fair; it is more transparent. It now hangs in the balance.
Ind. Decisions - Upcoming oral arguments this week and nextThis week's oral arguments before the Supreme Court (week of 4/24/17):
Thursday, April 27
- 9:00 AM - [Rescheduled for 6/29/17]
In the Matter of J.B. and L.B.; J.J. (Mother) v. The Indiana Department of Child Services (20A05-1510-JC-01612) The mother and father shared joint custody of their children under an order entered by the Elkhart Superior Court in the parents’ paternity case. The Elkhart Circuit Court adjudicated the children to be Children in Need of Services (“CHINS”) and later issued an order giving the father sole custody and closing the CHINS case without entering a dispositional decree. The Court of Appeals reversed and remanded. In re J.B., 55 N.E.3d 903 (Ind. Ct. App.), superseded on reh’g, 61 N.E.3d 308 (Ind. Ct. App. 2016). The Indiana Department of Child Services has petitioned the Court to accept jurisdiction over this appeal.ILB: This was a June 8, 2016 COA opinion, reversed on a motion for rehearing in a Sept. 8, 2016 opinion (ILB summary here, 5th case)
- 9:45 AM - Howard County Assesor v. Kohl's Indiana LP (49T10-1502-TA-00004) After Kohl’s appealed the Howard County Assessor’s valuation of its property, the Indiana Board issued a determination in favor of Kohl’s, finding that its appraisal (which used vacant big-box stores, or “dark boxes,” as comparable properties) most accurately reflected the market value-in-use standard as interpreted in recent Tax Court decisions. The Tax Court affirmed. Howard County Assessor v. Kohl’s Indiana LP, 57 N.E.3d 913 (Ind. Tax Court Sept. 7, 2016), trans. pending. The Howard County Assessor has petitioned the Supreme Court to accept jurisdiction over the appeal, and amici curiae Indiana County Assessors Association, the Indiana Association of Cities and Towns, and the Indiana Municipal Lawyers Association have filed a brief in support of review.
- 10:30 AM - Summer Snow v. State of Indiana (45S03-1703-CR-00169) and Reginald Harris v. State of Indiana (45S03-1703-CR-00172) In these two cases tried together, Summer Snow and her co-defendant Reginald Harris filed a motion to exclude evidence of Snow’s lawfully-possessed handgun. The Lake Superior Court denied the motion, and the jury convicted Snow and Harris of battery against a public safety official, and convicted Snow of resisting law enforcement. A majority of the Court of Appeals affirmed. Snow v. State, 65 N.E.3d 1129 (Ind. Ct. App. 2016), vacated; Harris v. State, 66 N.E.3d 628 (Ind. Ct. App. 2016), vacated. The Supreme Court has granted transfer and assumed jurisdiction over both appeals pursuant to Appellate Rule 56(A). [sic] The Court will hold a combined oral argument in the two cases, but otherwise has not consolidated the appeals.
ILB: Both were 2-1 opinions of the COA:
- Summer C. Snow v. State of Indiana - this was a 2-1, Dec. 29, 2016 COA opinion (ILB summary here, 6th case). From the dissent: "This case boiled down to Officer Peck’s word against Snow’s and the admission of the gun could have tipped the scales in favor of the State."
- Reginald Harris v. State of Indiana - this also was a 2-1, Dec. 29, 2016 opinion (ILB summary here - 7th case). From the dissent: "I respectfully dissent. For the same reasons explained in my dissent today in the case of Harris’ co-defendant, Summer Snow ...".
Tuesday, May 2
- 9:00 AM - Marcus Sanders v. State of Indiana (49A05-1605-CR-00971) While moving his car from one space to another in a parking lot, Sanders struck a curb twice. He was stopped by an off-duty police officer who viewed suspected marijuana in Sanders’ vehicle. After a bench trial, the Marion Superior Court convicted Sanders of Class A misdemeanor possession of marijuana. The Court of Appeals affirmed, rejecting Sanders’ argument that the stop violated Sanders’ rights under the United States and Indiana Constitutions. Sanders v. State, No. 49A05-1605-CR-971 (Ind. Ct. App. Dec. 13, 2016). Sanders has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a Dec. 13, 2016 NFP COA opinion, holding: "Having found no constitutional defect with the investigatory
stop, we find that the plain view doctrine justified seizure of the marijuana
- 9:45 AM - Bellwether Properties, LLC v. Duke Energy Indiana, LLC (53S04-1703-CT-00121) The Monroe Circuit Court dismissed Bellwether’s complaint against Duke Energy for inverse condemnation, concluding the complaint was barred by the statute of limitations. A majority of the Court of Appeals reversed, concluding Bellwether’s action did not accrue upon the enactment of the regulation expanding the clearance for electric lines, and under the discovery rule the complaint was timely. Bellwether Props., LLC v. Duke Energy Indiana, LLC, 59 N.E.3d 1037 (Ind. Ct. App. 2016), vacated. The Indiana Supreme Court has granted transfer and assumed jurisdiction over this appeal.
ILB: This was a 2-1, Sept. 16, 2016 COA opinion (ILB summary here, 2nd case), where the majority ruled: "We conclude that the court erred when it ruled that the six-year statute of limitations on Bellwether’s Complaint had expired, and we reverse the court’s ruling and remand for further proceedings."
- 10:30 AM - Board of Commissioners of Union County, Indiana v. Brandye Hendrickson, in her official capacity as Commissioner of the Indiana Department of Transportation, et al. (81A01-1603-PL-00696) Union County’s Board of Commissioners filed a complaint for declaratory judgment and injunctive relief, alleging the Indiana Department of Transportation damaged the septic systems of three private landowners, raising possible health and safety concerns for the County. The Union Circuit Court granted the State’s motion to dismiss the complaint on grounds the County lacks standing. The Court of Appeals reversed, holding the County has standing to pursue both a declaratory judgment and an injunction. Bd. of Comm’rs of Union Cty. v. Hendrickson, 67 N.E.3d 1061 (Ind. Ct. App. 2016). The State has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a Dec. 16, 2016 COA opinion, concluding:
We have reviewed this case as a Trial Rule 12(B)(6) dismissal of a complaint, not a granting of summary judgment, and accordingly have disregarded Parker’s affidavit in considering the merits of the trial court’s ruling. We hold that the trial court erred in dismissing the County’s action for declaratory judgment and injunctive relief against INDOT and that the County has standing to pursue those claims. We reverse and remand for further proceedings consistent with this opinion.
This week's oral arguments before the Court of Appeals (week of 4/24/17):
Monday, April 24
- 1:00 PM - State of Indiana v. John B. Larkin (46A04-1607-C-01522) In 2012, John Larkin’s wife was found dead from multiple gunshots in their home. At the police station, a conversation between Larkin and his attorneys was recorded. Larkin was later charged with voluntary manslaughter. Prior to trial, Larkin moved to dismiss the charges against him because recording the conversation with his attorneys violated his Sixth Amendment right to counsel; the trial court denied the motion for lack of prejudice. Larkin also filed a motion to disqualify the prosecutor’s office and requested appointment of a special prosecutor because members of the prosecutor’s office had viewed the recording and/or read a transcript of the confidential conversation; the trial court also denied this motion. The trial court’s order denying the motion to disqualify was certified for interlocutory appeal but this court held the question of disqualification was moot because the county prosecutor was defeated in the 2014 primary election and the new prosecutor who took office in January 2015 was not involved in listening to the confidential conversation. Larkin v. State, 43 N.E.3d 1281 (Ind. Ct. App. 2015). After this court’s opinion was issued and the case returned to the trial court, a special prosecutor was appointed on the newly-elected prosecutor’s motion. Larkin then moved to disqualify the regular judge, who denied any reason for recusal but recused nonetheless. The special judge accepted his appointment in February 2016. Larkin then filed a motion for discharge pursuant to Criminal Rule 4(C) alleging the State failed to bring him to trial within one year and a motion to dismiss alleging continuing Sixth Amendment and Article 1, section 13 violations related to the recorded confidential conversation. The special judge granted both the motion to discharge and the motion to dismiss. The State now appeals, arguing 1) Larkin waived any Rule 4 violation and 2) the special judge abused his discretion in reversing the regular judge’s earlier orders and dismissing the case. With respect to Criminal Rule 4, the issue is when the clock began running after this court issued its opinion in the interlocutory appeal and whether the delay resulting from the defendant’s motion for change of judge is chargeable to him. With respect to the dismissal based on misconduct, the issue is whether the trial court erred in applying an irrebuttable presumption of prejudice and in denying the State a hearing on the issue. The Scheduled Panel Members are: Judges Riley, Robb, and Barnes. [Where: Hammond Academy of Science and Technology, 33 Muenich Court, Hammond, IN]
- 10:00 AM - Dustin Sorhaindo v. State of Indiana (49A05-1608-MI-01814) On June 30, 2015, a brown box with black duct tape addressed to Dustin Sorhaindo arrived at a local shipping company in Indianapolis, Indiana. That package was singled out for being suspicious and the local shipping company called the police. Upon conducting a narcotic examination of the package, a K9 officer gave a positive indication of a controlled substance in the suspect package. The State applied for a search warrant which was issued on the same day. Following the execution of the search warrant, the police found twenty-four rubber-banded stacks of United States currency, which amounted to $47,940. In December of 2015, the State filed a motion to transfer the seized money from the State to the federal authorities. In July of 2016, the trial court granted the State’s motion to transfer money.
Sorhaindo appeals, requesting this court to review whether the trial court erred in granting the State’s motion to transfer the money seized to the relevant federal authorities.
The Scheduled Panel Members are: Judges Riley, Robb, and Altice. [Where: Wabash College, Crawfordsville, IN ]
- 1:30 PM - Tyler R. Browder v. State of Indiana (49A04-1608-CR-01857) This case arises out of a traffic stop made just before midnight on November 11, 2014, in Indianapolis, Indiana. Tyler Browder (“Browder”) was driving from his apartment complex to a fast-food restaurant in a car with a license plate that was registered to a different vehicle. An Indianapolis Metropolitan Police Department officer, Sgt. Brady Ball (“Officer Ball”), driving behind Browder ran the license plate and found it did not match the vehicle. Officer Ball then pulled Browder over into a nearby gas station because he suspected the vehicle might be stolen. At that time, Officer Ball turned on his audio recording device and the rest of the stop and arrest were recorded. During the stop, Browder claimed that he and his wife had just purchased this vehicle and he thought they had thirty days to use the transferred plate from their previous vehicle. The Officer Ball explained that the statute required Browder have the title or bill of sale in the vehicle. Browder stated that the paperwork was at his home with his wife and indicated that he did not have a paper registration for the vehicle either. The officer returned to his patrol car and ran Browder’s driver’s license and criminal history against BMV and police records. The IMPD officer found that the vehicle was not registered to Browder and discovered that Browder had been a suspect in a prior auto theft. After learning this information about fifteen minutes into the stop, the officer asked Browder to step out of the vehicle in order to question him further about the vehicle’s ownership and his criminal history. During this conversation, Officer Ball asked Browder if there was any identifying paperwork left in the vehicle from the previous owner. He also asked Browder if anything illegal was in the vehicle. Seventeen minutes into the stop, Browder stated there was nothing illegal in the vehicle and told Officer Ball that he could “check it.” There was further discussion between the two, and Officer Ball advised Browder of his right to refuse a search. Browder stated he had “nothing to hide” and that the officer could search the vehicle. In the vehicle, the officer found a marijuana pipe under an insert in the center console. The officer then handcuffed Browder and placed him in the patrol car. Browder admitted that he smokes marijuana but denied ownership of the pipe and knowledge that it was in the vehicle. Browder was charged with possession of paraphernalia, a Class A misdemeanor, and operating a vehicle on a transferred plate for more than thirty-one days, a Class C infraction. The infraction was later dismissed by the State. The Marion Superior Court conducted a three-part bench trial on March 7, April 26, and July 20, 2016, where Browder was found guilty of possession of paraphernalia. During the trial, Browder objected to the admission of the pipe found during the stop. Browder appeals the trial court’s decision to admit the evidence from the vehicle search, arguing that the search and seizure violated the Fourth Amendment to the U.S. Constitution and Article I, Section 11 of the Indiana Constitution. Specifically, Browder argues that the extension of the stop for a traffic infraction was unreasonable. Browder also argues that his consent to search was not voluntary and, therefore, did not give the officer the authority to search the vehicle. The State responds that the officer did have reasonable suspicion to further investigate based on the nature of the traffic infraction. Thus, the State contends that there are no constitutional violations and that the trial court did not abuse its discretion in admitting the evidence. The Scheduled Panel Members are: Judges Kirsch, Mathias, and Pyle. [Where: Cathedral High School Auditorium, 5225 E. 56th St., Indianapolis, IN]
Thursday, April 27
- 2:00 PM - 401 Public Safety, LLC and Lifeline Data Centers, LLC v. David Ray and Committee to Elect David Ray (49A02-1609-PL-02132) Lifeline Data Center, LLC (“Lifeline”) is a tenant of the former Eastgate Mall site in Indianapolis, and 401 Public Safety, LLC is the owner and lessor of the property. Both Lifeline and 401 Public Safety are managed by an individual who is an owner of both companies. The City of Indianapolis is also a lessee of a portion of the property, which portion is commonly referred to as the “Regional Operations Center.” In 2015, during his successful campaign for the 19th District of the Marion County City-County Council, David Ray and the Committee to Elect David Ray (“collectively Ray”), distributed a flyer to residents in his eastside Indianapolis District stating that Lifeline contributed $1300 to incumbent Councilman Ben Hunter’s campaign. The flyer contains additional statements that Lifeline and 401 Public Safety alleges are false and defamatory. Specifically, the content of the flyer addressed the alleged deteriorating condition of the former Eastgate Mall site and accused incumbent Councilman Hunter of cutting “a sweetheart deal for a political insider. A deal that cost the city millions and ties up the former Eastgate site for 25 years.” The flyer stated, “[w]hat will $1300 from a political insider buy? A contract with the City.” The flyer alleged that code enforcement violations and fire and safety hazards existed, and that investigations had occurred at the former Eastgate Mall site. Finally, the flyer states that the community surrounding the site will be responsible for cleaning it up. Lifeline and 401 Public Safety filed a complaint in Marion Superior Court alleging that the statements in the flyer were false and defamatory. 401 Public Safety alleged that it was defamed because it owns the Eastgate Mall site, which was falsely depicted as a fire and safety hazard with existing code violations. 401 Public Safety also alleged that the flyer contains picture of the property from the 1950s, and the property’s condition is markedly different from the image used in the flyer. Lifeline alleged that it was defamed because Ray’s flyer implies that Lifeline bribed a public official to secure a contract to obtain a favorable lease with the City. Lifeline complains that the statement is false because 401 Public Safety owns the Eastgate Mall site and Lifeline does not have a lease with the City of Indianapolis. Ray raised an affirmative defense under Indiana Code chapter 34-7-7, the Anti-SLAPP (Strategic Lawsuit Against Public Participation) statute and filed a motion to dismiss the complaint. Ray argued that the flyer contains speech on a public issue or a matter of public interest, and that he acted in good faith and with a reasonable basis in law and fact when making the statements contained in the flyer. As required by the Anti-SLAPP statute, the trial court treated the motion as a motion for summary judgment. After the trial court held a hearing on the motion, the court entered summary judgment in Ray’s favor. Lifeline and 401 Pubic Safety now appeal. The Scheduled Panel Members are: Judges Baker, Kirsch, and Mathias. [Where: Court of Appeals Courtroom (WEBCAST)]
Thursday, May 4
- 1:30 PM - McKinley, Inc. a/k/a McKinley Associates, Inc. d/b/a Summer Wood Apartment Homes v. Michelle Skyllas (45A05-1612-CT-02853) Michelle Skyllas sued McKinley, Inc. for injuries she sustained when she slipped and fell. During discovery, Skyllas did not respond to a request for admissions. Next, McKinley filed a motion for summary judgment, to which Skyllas did not respond. The trial court granted summary judgment to McKinley. Skyllas hired new counsel, who moved to correct error, claiming Skyllas’ prior counsel had abandoned her case. The court granted the motion, vacated the grant of summary judgment and allowed Skyllas additional time to respond to the request for admissions. McKinley now appeals, arguing the trial court erred by vacating summary judgment and by allowing Skyllas to respond to the request for admissions. The Scheduled Panel Members are: Judges May, Brown, and Sr. Judge Sharpnack. [Where: Court of Appeals Courtroom (WEBCAST)]
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.
Saturday, April 22, 2017
Ind. Courts - HB 1036, the Marion Superior Court judicial selection bill, goes to Gov.
A conference committee report was adopted yesterday by both houses, by a vote of 28-22 in the Senate and 69-30 in the House.
Here is the final, enrolled version, which will go to the governor.
Friday, April 21, 2017
Ind. Decisions - Supreme Court decides one today
In Corey Middleton v. State of Indiana, involving a petition for post-conviction relief alleging several claims of
ineffective assistance of trial counsel, the Court writes in a 2-page per curium opinion:
[W]e grant transfer and summarily affirm the Court of Appeals opinion [ILB: available here] pursuant to Indiana Appellate Rule 58(A), with the exception of its misstatement of Strickland’s prejudice standard.
Ind. Decisions - No Ind. federal or state appellate opinions posted again today
It looks like nothing since the 19th...
Vacancy On Supreme Court 2017 - More news coverage
Zoie Richey of The Statehouse File writes:
The Judicial Nominating Commission has selected three nominees to fill the Indiana Supreme Court justice vacancy."Judge Vicki Carmichael closer than ever to dream job: Clark County judge a finalist for Indiana Supreme Court" is the headline to Elizabeth DePompei's story today in the Clark County News & Tribune. Some quotes (the story also has a great photo):
Justice Robert Rucker is retiring on May 12 after serving for 26 years.
The commission narrowed down the field from 21 applicants to the final three: Vicki Carmichael, Christopher Goff and Matthew Kincaid.
“I think all three of the finalists are very well qualified. The governor can’t go wrong in selecting any one of the three,” said Joel Schumm, clinical professor of law at Indiana University Robert H. McKinney School of Law. “They have distinguished backgrounds as trial judges and as lawyers before that.”
Schumm sat in on the finalist interviews, and said the process allowed people to learn a lot about the court system.
JEFFERSONVILLE — This isn't the first time Clark County Circuit Court No. 4 Judge Vicki Carmichael has vied for a seat on the Indiana Supreme Court, but as one of three finalists, it's the closest she's ever been to realizing her dream.
"It's like wow, OK, this could really happen," Carmichael said by phone Thursday morning.
The day before, Carmichael, 54, sat in front of a seven-person Judicial Nominating Commission and made her case for why she should become the next justice for the state's highest court. She is one of 21 people who applied last month.
The pool of candidates was whittled down to 11 and on Wednesday, three candidates were chosen. They are: Carmichael, Boone County Superior Court I Judge Matthew Kincaid and Wabash County Superior Court Judge Christopher Goff.
Carmichael applied for a vacancy in 2009 and again in 2016 when Justice Brent Dickson retired. She said this time, Chief Justice Loretta Rush asked her why she keeps coming back.
"And I said because this is what I really want. I want a seat at the table. I want to be able to affect the judiciary and the citizens of Indiana," she said.
The commission will submit a report to Gov. Eric Holcomb in the coming days. Holcomb then has 60 days to appoint one of the nominees. In this case, because all of the finalists are sitting trial court judges, Holcomb will also be tasked with appointing a replacement judge in that county. * * *
The Circuit Court No. 4 judge's seat is up for election in 2018. Carmichael, a Democrat, was first elected to the court in 2007 and she intends to run again if not selected for the Indiana Supreme Court.
But Carmichael is hoping to convince Holcomb, a Republican, that she is the right person for the job. She knows politics are a part of the equation, but she doesn't think it will be the deciding factor.
"I think the commission and the governor both will look at the best qualified candidate," she said. "I've long been an advocate for non-partisan judicial elections. I don't think politics should play a role in being a judge at any level, and so that's what I hope to convince the governor's office."
Instead, it's her philosophy that Carmichael hopes seals the deal. The Bloomington native described herself as fair, impartial and unbiased.
"I'm not an activist judge where I try to go create new law and make new decisions that are going to change the way we've done things forever" she said.
"... Our role as judges, even at the trial court level, is to look at the facts before us, to look at the law that applies to that and make a decision. And it's not to create new law, it's not to create new precedent. We have to look at what was decided before and my philosophy has always been if somebody has had this issue before, let's look at how it was decided."
Carmichael said she expects a call from the governor's office in the next few days. Until then, and until Holcomb makes his choice, she and the other candidates are in a welcomed state of limbo.
"I am honored to be part of the three names going to the governor," she said.
Thursday, April 20, 2017
Ind. Decisions - No Ind. federal or state appellate opinions posted today
Ind. Gov't. - Update on: List of enrolled acts received by Gov. Holcomb
The Governor's Bill Watch page shows a number of new enrolled acts have been delivered and await his action.
Among them is HEA 1369:
Unnecessary, unused law reports. Requires every state agency to compile and report to the legislative council a list of all state laws administered by the state agency that the state agency considers to be in need of change because the laws are no longer necessary or used.ILB: I wonder if this includes laws made unconstitutional by various federal court rulings that remain on the books?
Environment - The importance of US EPA and IDEM
"East Chicago residents lay out demands ahead of visit by EPA head Scott Pruitt" isd the headline to this lengthy story yesterday in the NWI Times (via IED) reported by Sarah Reese.
A later story, by Sarah Reese and Lauren Cross, is headed "UPDATE: EPA's Pruitt visits East Chicago; agency denies regional office closure." It begins [ILB emphasis added]:
EAST CHICAGO — EPA Administrator Scott Pruitt’s visit Wednesday to the city’s contaminated Superfund site was marked with rallying cries from protesters denouncing proposed budget cuts under President Donald Trump’s administration and demanding better protections from polluted air, dirt and drinking water.From the Fort Wayne Journal Gazette's editorial yesterday:
But Pruitt said he hoped his visit to East Chicago’s USS Lead Superfund site — his first to any Superfund site in the country — would be the first step of many in “restoring confidence” in a community grappling with a legacy of toxic industry.
“Please know that it is the EPA’s objection, my objective as the administrator of the EPA, to come in and make sure people’s health is protected here in East Chicago, and that they can have the confidence that their land, their health is going to be secured for the long term,” Pruitt said during a brief media statement outside of the former Carrie Gosch Elementary School — shuttered last summer amid fears of lead contamination.
The U.S. Environmental Protection Agency is “committed to doing that … in a very efficient and effective way,” Pruitt said.
Pruitt did not offer any details as to how EPA’s federal headquarters would restore such confidence during his 90-second speech, after which he refused to take questions from reporters. The briefing, held inside the elementary school gates, was closed to the general public, and reporters were required to RSVP ahead of time or show proper identification to enter.
Thanks to Indiana Gov. Eric Holcomb and U.S. Sens. Joe Donnelly and Todd Young, the environmental woes of East Chicago residents are getting the heightened attention they deserve.
The site of a former lead-smelting plant was declared a federal Superfund cleanup project in 2009, but last year the government discovered that lead and arsenic poisoning were still imperiling hundreds of nearby residents. Holcomb declared the area an emergency site and earlier this year offered state help in relocating residents.
Thursday, U.S. Environmental Protection Agency Administrator Scott Pruitt is scheduled to visit, and Housing and Urban Development Secretary Ben Carson has accepted an invitation from Donnelly to visit the site, as well.
East Chicago is also dealing with elevated lead levels in its water related to aging lead pipelines.
The northwest Indiana city's problems are vivid reminders of why the state's anti-pollution watchdog, the Indiana Department of Environmental Management, needs to be robustly funded and staffed.
Environmentalists have long expressed concern that IDEM's staff and budget are inadequate to its task. According to the Hoosier Environmental Council, staffing levels and appropriations for the agency have shrunk by 17 percent over the past decade.
Now, as the Trump administration prepares to make deep cuts in the EPA's resources and regulatory authority, it's important that IDEM have adequate support.
Vacancy On Supreme Court 2017 - Press coverage of yesterday's JNC nominations [Updated]
"Three judges recommended to replace Rucker on Indiana Supreme Court" reports Dan Carden in this NWI Times story. Some quotes:
INDIANAPOLIS — Justice Robert Rucker, a Gary native, will be succeeded on the Indiana Supreme Court by a county judge hailing from either the northeast, central or southeast region of the state."Boone County judge among 3 Indiana Supreme Court nominees" is the heading to this very brief Indianapolis Star story.
On Wednesday, the Indiana Judicial Nominating Commission unanimously recommended to Republican Gov. Eric Holcomb the three candidates it believes are best suited to serve on the five-member high court.
They are: Clark Circuit Judge Vicki Carmichael, 54, of Jeffersonville; Wabash Superior Judge Christopher Goff, 44, of Wabash; and Boone Superior Judge Matthew Kincaid, 46, of Lebanon.
Kincaid was a finalist last year for the Supreme Court seat that went to Justice Geoffrey Slaughter, a Crown Point native. Kincaid also is a law school graduate of Loyola University Chicago.
This year's other two finalists did not list any connections to Northwest Indiana in their applications.
"Three Finalists Chosen For Supreme Court Opening" is the heading to Brandon Smith's WBOI NPR story.
"Carmichael selected as Indiana Supreme Court judge nominee" reports the Clark County News & Tribune.
"Kincaid among three finalists for Supreme Court seat" write Elizabeth Pearl for the Lebanon Reporter. The story begins:
For the second time in a little over a year, Boone County Superior Court I Judge Matthew Kincaid is one of the three finalists for a seat on the Indiana Supreme Court.[Updated at 10:55 am] "Rep. Washburne not chosen as Indiana Supreme Court nominee," reports Kaitlin L Lange in a story for the Evansville Courier & Press.
Kincaid, along with Wabash County Superior Court Judge Christopher Goff and Clark County Circuit Court Judge Vicki Carmichael were chosen from 11 candidates by a Judicial Nominating Commission. The commission will forward the final three candidates' names to Gov. Eric Holcomb, who will have 60 days to make an official appointment for the seat.
Kincaid, who also made it to the final three in March 2016, said the consideration is an honor.
Wednesday, April 19, 2017
Vacancy on Supreme Court 2017 - Here are the three names to be sent to the Governor
Sec. 10 of ARTICLE 7 of the Constitution of the State of Indiana provides in part:
Section 10. Selection of Justices of the Supreme Court and Judges of the Court of Appeals.This evening the Judicial Nominating Commission has announced it will be submitting the following list of three nominees to Governor Holcomb:
A vacancy in a judicial office in the Supreme Court or Court of Appeals shall be filled by the Governor, without regard to political affiliation, from a list of three nominees presented to him by the judicial nominating commission. If the Governor shall fail to make an appointment from the list within sixty days from the day it is presented to him, the appointment shall be made by the Chief Justice or the acting Chief Justice from the same list.
- Hon. Vicki L. Carmichael, Clark Circuit Court 4 (detailed info here)
- Hon. Christopher M. Goff, Wabash Superior Court (detailed info here)
- Hon. Matthew C. Kincaid - Boone Superior Court 1, Lebanon (detailed info here)
Vacancy on Supreme Court 2017 - JNC announcement to take place shortly
Indiana Courts just tweeted:
In 10 mins the JNC will announce 3 finalists for Sup Ct. Enter SH at west entrance, room 319.
Ind. Courts - Gov. Holcomb Announces Judicial Appointment for Noble County Superior Court 2 Vacancy
From the news release:
INDIANAPOLIS – Gov. Eric J. Holcomb today announced Mr. Steven Clark Hagen as his appointment to the Noble County Superior Court II. Mr. Hagan succeeds Judge Michael J. Kramer, who was elected to serve as judge of the Noble County Circuit Court in November 2016.
Mr. Hagen is a longstanding resident and attorney in Noble County with extensive experience in both civil and criminal law. During his career, Mr. Hagen has served as a deputy prosecutor for Noble County, city attorney for the city of Ligonier.
Ind. Courts - "Chris Wrede appointed judge of Terre Haute City Court"
So reports the Times Sentinel today. Some quotes:
Long-time deputy prosecutor Chris Alan Wrede has been appointed as the new judge of Terre Haute City Court by Gov. Eric Holcomb.
Wrede, 43, of Terre Haute, succeeds Judge Sarah Mullican, who was elected to serve as judge of the Vigo County Circuit Court in November 2016.
A news release from Gov. Holcomb's office said Wrede has extensive experience in both civil and criminal law. He has served as a deputy prosecutor with the Vigo County Prosecutor’s Office for the last 10 years. He was previously in private practice of law for seven years.
Vacancy on Supreme Court 2017 - Now for the waiting
The Judicial Nominating Commission will now lunch and conduct deliberations in executive session. If past history is any indication, it will be late this afternoon before we receive an announcement that they will be reconvening in usually 15 minutes for a public vote and announcement of the three names that will be sent to the Governor. The ILB will be waiting ...
Ind. Courts - IU-MCKinney hosting May 24th CLE and reception honoring Justice Rucker
The law school is hosting a free CLE program and reception to honor Justice Rucker beginning at 2:00 p.m. on Wednesday, May 24. You may register via this link. Here is the agenda:
2:00 - Welcome: Dean Andrew Klein
2:05 - Justice Rucker’s Criminal Law Jurisprudence
2:50 - Justice Rucker’s Civil Law Jurisprudence
- Hattie Harman, Indiana Supreme Court, Indianapolis (Law Clerk to Justice Rucker, 2010-14)
- Ellen H. Meilaender, Office of the Attorney General, Indianapolis
- Leanna K. Weissmann, Lawrenceburg (Law Clerk to then-Judge Rucker, 1994-95)
- Moderator: Professor Joel Schumm (Law Clerk to Justice Boehm, 1998-2000)
3:35 - Break
- Bryan H. Babb, Bose McKinney & Evans, Indianapolis (Law Clerk to Justice Sullivan 1999-2000)
- Abigail T. Rom, Office of the Indiana Attorney General, Indianapolis (Law Clerk to Justice Rucker 2010-2012)
- Tony Walker, The Walker Law Group, Gary, Indiana (Law Clerk to then-Judge Rucker 1995-1997)
- Moderator: Dino L. Pollock (Law Clerk to Justice Rucker 2008-2010)
3:45 - Conference ReunionChief Justice Randall T. Shepard and Justices Brent E. Dickson, Frank Sullivan, Jr., Theodore R. Boehm, and Robert D. Rucker served together on the Indiana Supreme Court from November 19, 1999, until September 30, 2010, by far the longest the Court has ever gone with a change in membership. Justice Rucker’s former colleagues will re-join him in “conference” for the first time since September 30, 2010, to reminisce and respond to questions.4:30 - Reception in the Atrium
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #11, Hon. Steven L. Hostetler
This is Prof. Joel Schumm's report on the 11th (and final) interview of Round 2
In response to a question about how he dispenses justice, Judge Hostetler said he remembers the Golden Rule and keeps in mind the principles of Article 1, Section 1, that all power belongs to the people, and keeping mind we are dealing with real people.
In response to a question about the Rooney Rule and diversity, Judge Hostetler said it is important to reach out to others, noting an upcoming speaking engagement where he will encourage people from diverse backgrounds to apply to be judges and provide them his phone number and future assistance, noting his experience with merit selection both at the county and state level.
In response to a question about whether the preamble to the Indiana Constitution was being achieved, Judge Hostetler noted “we can always do more” and the challenges of the “big five”: domestic violence, child abuse, mental health, veterans, and substance abuse.
When asked about legacy, Judge Hostetler would like to be remembered as someone cared about the big problems facing Indiana and came up with innovative ways to address them.
In response to a question about a procedural rule he would like to see changed, Judge Hostetler mentioned the “lazy judge rule” (Trial Rule 53) but then suggested discovery rules should be examined to “right-size” cases and make sure they are on the right path.
In response to a question about judicial restraint, Judge Hostler said it is a “fundamental pillar” of his philosophy and cited his opinion in the ESPN case. Judicial restraint does not mean abdicating the judicial role to decide cases and interpret statutes.
Judge Young commented on the inclusion of the Article 1, Section 12, as the first page of Judge Hostetler’s application. Judge Hostetler said it is a big part of the commitment when he took the bench and had a larger version posted outside his courtroom.
In response to a question about reviewing administrative decisions, Judge Hostetler said he agreed it should not be applied when a fundamental principle is involved but judges must provide appropriate oversight.
Judge Hostetler said two types of cases keep him up at night: (1) those involving child abuse and (2) cases from his Veteran’s Court, discussing challenges of dual diagnosis.
In response to a question about unified county courts and the possibility of regional courts, Judge Hostetler emphasized competing interests: a balanced caseload and helping citizens on one hand and ensuring those who elect their judges are served by their judges. He does not find fault in the way other counties elect their judges and noted the importance of flexibility in addressing uneven caseloads.
In response to a question about professional regrets, Judge Hostetler said he wife commented he could have pursued a judicial career earlier but he has no regrets.
When asked about his preparation, Judge Hostetler noted this was his “fourth” and he is a very prepared person. He did not review cases in preparation of this interview; he reviews them every week. He tries to be himself and understand things that are going to be important to the Commission and convey his thoughts in a way relevant to their concerns.
Mr. Young read from Ponce v. State (Ind. 2014), noting the importance of interpreters and asked about Judge Hostetler learning Spanish. Judge Hostetler’s goal is not to be able to carry on a conversation in court in Spanish but should know enough to understand something was wrong in that case. He said the opinion is “so wonderful” as an example of legal writing by using “unassailable logic to reach the morally irresistible conclusion” in only fourteen paragraphs.
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #10, Ms. Leslie C. Henderzahs
This is Prof. Joel Schumm's report on the 10th interview of Round 2
In response to an opening question about the influence of social media on legal issues, Ms. Henderzahs said her firm has a policy because people in the community view lawyers as leaders. The firm has a Twitter account to promote events. Her advice to younger lawyers is not to post things that their grandmothers would not be proud of.
In response to a question about obstacles to justice, Ms. Henderzahs said we must continue to provide access to those who do not speak English. It is important to recognize that each of those lives matters, and we are going to serve those people.
In response to a question about judicial restraint, Ms. Henderzahs said “the law must be stable but cannot stand still,” quoting Roscoe Pound. When the Constitution was written, the framers could not have anticipated things like artificial intelligence.
In response to a question about a random act of kindness to someone she did not know, Ms. Henderzahs said she helped someone this morning who did not know where they were going.
In response to a question about Criminal Rule 26, Ms. Henderzahs said she likes that the power remains with the local judiciary. The focus has shifted from incarceration to rehabilitation during her time in practice, which she appreciates.
In response to a question about expanding the size of the Indiana Supreme Court, Ms. Henderzahs said she would support it if the Chief and other justices believed expansion was necessary to get the work done and noted the heavy administrative workload. She noted the ten-year anniversary of the “New Way Forward,” which provides an opportunity to consider its strategic plan.
In response to a question about her preparation for the role of a justice other than her “exemplary practice,” Ms. Henderzahs discussed the nature of the cases she has taken, starting in personal injury and more recently a number of high-profile, high-stakes cases that cannot be discussed in a publicly-posted application. Her clients in those cases have prepared her because of the commitment, discretion, and decorum required. Her clients might require a meeting at 5:30 in the morning or 10:30 at night, which she has done. In addition to the high-profile cases, she has had cases with “rooms, not boxes” of discovery. She has also handled commercial litigation cases, which she also discussed at some length.
When asked what she would do if not a lawyer, Ms. Henderzahs said she would help the elderly with exercise.
In response to a question about her preparation for the interview, Ms. Henderzahs said she had reviewed constitutional landmark opinions, read about justices, and met with each current justice. She has reviewed case law outside her practice area and met with judges to ask what they thought would be valuable. She found the application process incredibly rewarding and educational.
In response to a question about solutions to the low bar passage rate, Ms. Henderzahs said she did not see it as a problem. If law students are not putting sufficient time into preparing and understanding important legal skills, they should not be lawyers. No client wants a lawyer who does not do the job well. She also discussed placing students in job or opportunities to help them develop skills.
In response to a question from the Chief Justice about cases being heard next week (a CHINS, tax, and criminal case), Ms. Henderzahs said “on a personal basis” she would “welcome the opportunity to learn more” about the area of law in the criminal case. On an Indiana basis, she would take the CHINS case because of its broad impact, but would defer to the others on the Court.
About the ILB - The opportunity for your organization to become the ILB's exclusive sponsor is still out there ...
The ILB is still looking for a new sponsor (or group of several sponsors) to step forward to support its mission, which began in 2003, of collecting and reporting on the news that matters to lawyers, judges and citizens across Indiana. Contact me with serious inquiries.
Although the opportunity for your organization to become the ILB's sponsor is still out there, the end of April is fast approaching. Right now, the ILB is intensively covering the Supreme Court interviews, as it has over past years, and the blog will continue to follow appellate opinions and related matters through the end of the month...
The Indianapolis law firm of Hoover Hull Turner has been the exclusive sponsor of the Indiana Law Blog since the spring of 2016. Its financial arrangement will end on April 30, 2017. HHT writes that it continues to be grateful for Marcia Oddi's tireless work in the name of public service, adding intelligent insight into coverage of new court decisions and legislative developments. And the ILB, as I know do many you, thanks HHT for its strong and generous support over the past year.
Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 13 NFP memorandum decision(s))
For publication opinions today (5):
In Constantinos P. Angelopoulos v. Theodore P. Angelopoulos, Neptunia Inc., Transmar Corp., Didiac Establishment, Beta Steel Corp., and Top Gun Investment Corp. II, a 16-page opinion, Judge Mathias writes:
On remand from this court, the Porter Superior Court issued an order denying the motion of Constantinos P. Angelopoulos (“Constantinos”) seeking to modify a protective order preventing him from using certain materials obtained during discovery and designated as confidential by Appellees-Defendants Beta Steel Corp. (“Beta Steel”) and Top Gun Investments Corp. II (“Top Gun”) under the protective order, in future litigation in Greece between Constantinos and his brother Theodore P. Angelopoulos (“Theodore”). The trial court’s order also concluded that, pursuant to Administrative Rule 9, portions of Theodore’s deposition testimony should be excluded from the public record. Constantinos appeals and presents two issues, which we reorder and restate as (1) whether the trial court erred under Administrative Rule 9 by excluding from the public record portions of Theodore’s deposition testimony, and (2) whether the trial court abused its discretion by failing to modify the protective order. * * *In Citizens Action Coalition of Indiana, Inc. v. Northern Indiana Public Service Company; NIPSCO Industrial Group; and United States Steel Corporation, a 25-page opinion, Judge Baker writes:
Given the evidence before the trial court that release of personal information regarding Theodore and his family could lead to an increased risk of crime and terrorism against the family, we cannot say that the trial court abused its discretion in denying Constantinos’s motion to modify the protective order. Indeed, Constantinos merely desires to use Indiana’s generous discovery process to discover information that would apparently not be permitted in Greece and be allowed to use these materials in Greece. Unless and until a Greek court decides that such materials would be admissible in the proceedings before the Greek court, a decision to which our courts would afford comity, we cannot say that the trial court abused its discretion by declining Constantinos’s request to modify the protective order.
Conclusion. The trial court did not abuse its discretion when it found that Theodore had met his burden of establishing, by clear and convincing evidence, that the portions of his deposition previously designated as confidential, but submitted in court, should be part of the public record. Nor did the trial court abuse its discretion when it denied Constantinos’s motion to modify the Protective Order to permit Constantinos to use, in Greek litigation, the discovery materials designated as confidential discovery in the Indiana action.
Northern Indiana Public Service Company (NIPSCO) filed a petition with the Indiana Utility Regulatory Commission (IURC) seeking to implement a new rate design, pursuant to which certain rates would increase. NIPSCO and other entities, including NIPSCO Industrial Group (Industrial Group) and United States Steel Corporation (US Steel), engaged in settlement negotiations and reached an agreement. Citizens Action Coalition of Indiana, Inc. (CAC), had intervened in the proceeding and objected to the agreement. The IURC ultimately approved the settlement agreement, and CAC now appeals, arguing that there is not substantial evidence supporting the IURC’s order and that the IURC should have required the inclusion of a low-income payment assistance plan and the collection and reporting of customer data by NIPSCO. Finding substantial evidence and no other error, we affirm.Matthew L. Johnson v. State of Indiana
NFP civil decisions today (5):
NFP juvenile and criminal decisions today (8):
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #9, Mr. Peter J. Rusthoven
This is Prof. Joel Schumm's report on the 9th interview of Round 2
In response to an opening question about collegiality and if he had one regret from his professional experience, Peter Rusthoven said he has never had difficulty viewing opposing counsel as someone doing their job. In one particularly heated case, he responded to a lawyer “chatting him up” that they were not friends.
In response to a question from Mr. Feighner about measuring up the example of former justices (Powell, O’Connor, Dickson, and Rucker), Mr. Rusthoven said they did their homework and treated individuals well. He appreciates the way Justice Rucker grasps the issue and gets to the heart of it in his questions at oral argument.
In response to a question about a life lesson he hopes his children would learn from him, Mr. Rusthoven discussed the importance of honesty, not sacrificing integrity for any reason, and not giving up.
In response to a question about his commitment to judicial restraint, Mr. Rusthoven said he is as committed as one can be. It is vital that each branch of government “stay in its own lane.” The executive and legislative branches can be booted if they step out of line. Judges should be umpires, following and enforcing the rules, not being philosopher kings and queens. One of the reasons the U.S. Supreme Court nominations have become so contentious is because the Court decides issues based on considerations other than text, and the process is now viewed as “one of nine votes for a super-legislature.”
Mr. Rusthoven went to law school with Merrick Garland, who would have been confirmed in a different era — as would Robert Bork. He appreciates that this Court has instead stayed in its own lane.
In response to a question about what he would tell his children about personal responsibility (if a statute does not impose liability for something they have done), Mr. Rusthoven would talk with children about how they will make it right with the person.
In response to a question about his lack of experience in the criminal realm and what he has done to prepare, Mr. Rusthoven said he has kept up on reading and has talked to a couple trial judges about their views on bail. In response to a follow up question, Mr. Rusthoven said he could not walk into a criminal defense case and handle it properly. The Constitution guarantees the right to “liberty,” which is crucial. We have lost something if people believe the system is a machine they get lost in.
In response to a question about the Rooney rule, Mr. Rusthoven said racism is a cancer of American life and we are behind where we should be. He mentioned the importance of ICLEO and his commitment to further the goals of diversity.
In response to a question from Mr. Yakym about his op-eds for the IBJ and how to handle issues where the legislature is silent, Mr. Rusthoven drew a contrast between statutory and common law issues. When dealing with a statute, many times the text provides a clear answer, and other times ambiguity will need to be addressed. Courts then must “reach the best result we can without stepping out of bounds.” When dealing with common law, judges have more latitude to make changes, and something that made sense hundreds of years ago in England may not today. Following up about the possibility of absurd results, Mr. Rusthoven cited the canon and noted there is a body law. A number of things may seem dumb to some, but courts must be careful about invoking the absurdity of results as a reason to look beyond text.
Mr. Feighner commented on proposed changes to the merit selection system, which would have had legislative leaders appoint lawyer members instead of electing them. Mr. Rusthoven said the process has worked fairly well over the years. The process includes different perspectives, and he thinks he has been treated fairly by the elected lawyer members. Commission members bring their own points of view, and the general consensus of the bar is that the system has worked well.
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #8, Hon. Matthew C. Kincaid
This is Prof. Joel Schumm's report on the 8th interview of Round 2
In response to an opening question about lessons he learned from his dad, a long-time Boone County judge, Judge Kincaid emphasized not holding a grudge and the importance of poor long-time memory, always treating people with respect. When he drops his daughter off at school, his advice is to “work hard and be nice to everybody.”
In response to a question about the Court responding to changes in society, Judge Kincaid said the Court must decide the cases before it. The legislature is best positioned to respond to those changes, in statutes which the Court applies.
In response to a question about his work on judicial committees, Judge Kincaid discussed his work on the criminal instructions committee, which requires them to stay on top of the law. He has also been on the civil instructions committee and Benchbook Committee, all of which have enriched him as a judge and exposed him to judges who care deeply about the issues.
In response to a question about who he is besides a judge, Judge Kincaid noted he is a “father” and “thinker” and sometimes sits in judgment of himself - and also a “confident person.”
Responding to a question about judicial restraint, Judge Kincaid said judges need to interpret statutes and contracts as they are written. If judges are not restrained, they can do a lot more damage. He cited the importance of judicial restraint from Federalist paper 78.
In response to a case about an adoption case discussed in his application, Judge Kincaid said the father’s consent could be dispensed with and either litigating party (foster parents or grandparents) would have been a good parent. He concluded the foster parents who had cared for the child for years should continue to raise the child.
In response to a question about a time he was on the opposite side of issues from Justice David, Judge Kincaid said he seldom had disagreements, although they may handle some things differently in court. To laughter, Judge Kincaid said he tries to sneak into his seat before everyone in the Courtroom stands up. He briefly discussed an administrative issue demanding certain things of the Sheriff.
Mr. Yakym read from the preamble of the Indiana Constitution and asked if the judiciary was working to meet the objectives. Judge Kincaid said judges approach issues with humility and stick with the issues before them.
In response to a question about how he would like to be remembered in 25 years, Judge Kincaid responded that he “worked hard and was nice to everyone” and was “personally restrained and thoughtful.”
In response to a question about going outside his comfort zone, Judge Kincaid noted his involvement in community theater. He said many woman auditioned for an early production but no men did. He ended up with a role, which was fun and challenging. In the legal realm, he noted it is a challenge to maintain expertise in the wide array of areas of law.
In response to a question about preparing for the interview, Judge Kincaid said he spent an hour on Monday reviewing his materials and thought about the topics he needed to be sure to convey. He did not read the Federalist papers on the beach during spring break.
In response to a question about the loss of “visible diversity” on the Court and holding an oral argument in a place like Gary, Judge Kincaid said people view judges about how they treat lawyers and litigants. Judges “earn their stripes” by what they do.
In response to a question about getting out in the community, Judge Kincaid said he was given advice as a young lawyer that he should go somewhere if invited. He noted the importance of accessibility, commenting that Justice David often gives his cellphone number out.
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #7, Hon. Peter R. Foley
This is Prof. Joel Schumm's report on the 7th interview of Round 2
In response to an opening question about judicial selection for the appellate bench and what he would tell the legislature at a Committee, Judge Foley commented on the hard work of the JNC and the quality and scrutiny of the applicants. The process does not need fixing.
When asked about pros and cons of an elected appellate judiciary, Judge Foley noted the difficulty of running for election and worries about the politicization of the process.
In response to a question from Mr. Young about the “tremendous sense of humanity” of Justice Rucker , Judge Foley pointed to his background, representing “real people” and being on the trial bench. He appreciates the impact of rulings on everyday Hoosiers. From a small community, he has been active in his church and in Habitat for Humanity, which exposes him to a variety of people.
In response to a question from Mr. Berger about an “inspirational” justice, Judge Foley said he draws inspiration from many: remarking on the civility of Justice Dickson, the personal story of Justice Thomas, and the character and approach of Justice Rucker.
In response to a question from Mr. Yakym about the Court responding to changes in society, Judge Foley commented that the judicial branch is the slowest to change. The executive is the quickest to respond, and the legislature is next. It should be this way.
In response to a question from Mr. Feighner about the legacy he hopes to leave, Judge Foley said legacy is up to others to decide. His goal would be to issue clear, concise opinions. The Court must provide leadership for trial courts and the state’s 18,000 attorneys.
In response to a question from Ms. Kitchell about being “pushed outside his comfort zone,” Judge Foley said it happens frequently in law, commenting on his first jury trial.
In response to a question about his commitment to judicial restraint, Judge Foley said he would be slow to respond to societal shifts because the Court must follow the rule of law. Let the legislature write the statutes; the Court should interpret them.
In response to a question about promoting diversity, Judge Foley said it was important to give people an opportunity they might not otherwise have. He said diversity extends beyond race and gender to a broad spectrum of things.
In response to a question from Chief Justice Rush about Criminal Rule 26, Judge Foley said the issue has been discussed at judges’ meetings and he is open to it. In response to a follow-up question about people in the county jail who cannot afford bail, Judge Foley said he did not know a specific percentage and emphasized the importance of using other sorts of programming and monitoring (like home detention).
In response to a question from Mr. Berger about the potential of an all-white bench at an oral argument at a high school in Gary, Judge Foley said his approach would be same at any high school in Indiana where folks feel disaffected and emphasized how he would convey himself.
In response to a question about increasing the size of the Court, Judge Foley said he is not an advocate of change for the sake of change. He does not believe it is something that is broken and needs fixed.
Mr. Feighner followed up about the implementation of Criminal Rule 26 by local officials, Judge Foley said his approach would be to provide leadership and the county is beginning the process of initial discussions, looking at the results from pilot counties. In response to a follow up, Judge Kincaid said the judges reach decisions collectively with input from others.
In response to a question about a career path other than law, Judge Foley said he enjoys history and has an interest in teaching and has always been interested in public service.
In response to a question about his preparation for the interview, Judge Foley said he has reached out to some folks who have been through the process and mock interview type questions. He has tried to study up on significant Indiana Supreme Court opinions and learn more about the administrative role of the Court.
In response to a question about significant decisions, Judge Foley discussed the recent ESPN case and noted his experience with public record requests from his practice as a county attorney. He also discussed the forfeiture of appeal from the 2014 Adoption of O.R. case.
In response to a question about experience as a judge, Judge Foley said one is not prepared for it until you do it, and sometimes it will be brought home with you.
Vacancy On Supreme Court 2017 - Interviews for Supreme Court finalists begin at 9:00 this morning
Here is today's schedule:
- 9:00 a.m. – 9:30 a.m. – Hon. Peter R. Foley
- 9:30 a.m. – 10:00 a.m. – Hon. Matthew C. Kincaid
- 10:00 a.m. – 10:30 a.m. – Mr. Peter J. Rusthoven
- 10:45 a.m. – 11:15 a.m. – Ms. Leslie C. Henderzahs
- 11:15 a.m. – 11:45 a.m. – Hon. Steven L. Hostetler
- 12:00 p.m. Lunch and deliberations in executive session followed by public vote to select nominees