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Issue 21.5 NOV/DEC 2012


S p o tl i g ht

Indiana Supreme Court Receives Outstanding Judiciary Award

ARTICLES Supreme Stories: Profiles of Indiana’s Newest Supreme Court Justices

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Law School for Journalists

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Is Indiana Ready for Bail Bond Reform?

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Trial Judges On and Off the Bench in 2013

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US Supreme Court Chief Justice Bestows Honor on Indiana Judge John F. Surbeck, Jr. 10 US Supreme Court Examines Services for Self-Represented Litigants

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Indiana Court Reporting Pilot Project Underway

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Indiana Courts Spotlight National Adoption Day 18 New Districts and New Judicial Appointees for the Indiana Pro Bono Commission 19

COLUMNS SPOTLIGHT

Outstanding Judiciary Award Bits & Bytes

If You Build It, They Will Use It

SIDEBAR

Hon. Terrence Cody

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The Outstanding Judiciary award is ordinarily presented to an individual judge. This year, however, ICADV Legal Director Kerry Blomquist chose to deviate from that tradition by nominating the Indiana Supreme Court in recognition of the work done by the Division and the IJC to promote domestic violence awareness among the trial courts and to improve the judicial response to domestic violence. Over

the past two years, these offices with support from Division Chief Deputy Executive Director Dave Remondini, have worked together to increase the educational opportunities available to judges on the topic of domestic violence. They have developed a day-long training curriculum that was presented at the Spring Judicial Conference and was repeated at three regional trainings this fall. The Division and the IJC are actively working on additional offerings for new judge orientation and for future judicial conferences. In addition, the Division has added a new staff position that is dedicated to domestic violence and related issues. For more information on the Supreme Court’s domestic violence initiatives, contact Domestic Violence Resource Attorney Loretta Oleksy at (317) 233-0784 or loretta.oleksy@courts.in.gov.

Small Claims Court Litigants: Informational Self-Help Videos Available on Judicial Website

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The Indiana Supreme Court and the Marion County Circuit Court have produced a set of videos designed to inform litigants of their rights and responsibilities in small claims court proceedings.

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These videos—both a statewide version and a version specific to Marion County small claims—are available online at courts.in.gov/3966.htm.

Brenda's Bailiwick

Should You Have an Employee Handbook?

The Indiana Coalition Against Domestic Violence (ICADV) has named the Indiana Supreme Court the recipient of their 2012 Outstanding Judiciary award. Loretta Oleksy of State Court Administration (Division) and Anne Jordan of the Indiana Judicial Center (IJC) attended the awards luncheon on October 10, 2012, to accept the award on behalf of the Court. The ICADV has presented the Outstanding Service Awards at their annual conference for the past 17 years.

The Indiana Bar Foundation also assisted with the project. If you would like to request a DVD copy of either video for your court, please contact Elizabeth Daulton at (317) 234-7155 or elizabeth.daulton@courts.in.gov.

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By James F. Maguire | Staff Attorney, State Court Administration

Supreme Stories Profiles of Indiana’s Newest Supreme Court Justices

Cover Photo. Kathryn Dolan.

Justice Mark Massa Joins the Indiana Supreme Court

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overnor Mitch Daniels named Mark Steven Massa as Indiana’s 107th Indiana Supreme Court Justice. He was born in Milwaukee, Wisconsin and maintained his residence there until his graduation from Indiana University with a Bachelor of Arts Degree in Journalism. Following graduation he worked as a newspaper reporter for the Evansville Press in Vanderburgh County from 1983 until 1985 when he moved to Indianapolis and joined the administration of Governor Robert Orr as a speechwriter and deputy press secretary. His first big assignment in his new job was to help write the Governor’s State of the State address. While working fulltime in the Governor’s office he also attended law school at night obtaining his Doctor of Jurisprudence Degree in 1989 from the Indiana University Robert H. McKinney School of Law. In his speech at his Investiture Ceremony on May 7th, Justice Massa told a story on himself about feeling guilty for leaving the world of journalism for his new job in the political/government arena until receiving a note of congratulations from his boss at the Evansville Press. His former mentor wrote in the note that he should not feel bad as the world “didn’t need another ink-stained wretch in the news business, but, who knows? We could always use another

Mitch Daniels.” Massa wrote back thanking his old boss for the blessing and absolution but added, “Who’s Mitch Daniels?” The man who appointed Mark Massa to the Indiana Supreme Court was working at the time for President Ronald Reagan. This was not the only time Mark Massa would work in the Governor’s office, and ironically his next job in that office almost twenty years later would be as General Counsel to Governor Mitch Daniels. Following his work in the office of Governor Orr, and as a newly licensed lawyer, Massa worked as a Deputy Prosecuting Attorney for Marion County Prosecutors Steve Goldsmith and Jeff Modisett. He worked in the Prosecutor’s Office until Indiana Supreme Court Chief Justice Randall T. Shepard brought him on board as his law clerk. He worked for Justice Shepard for the next two years. He reviewed briefs, researched and wrote legal memoranda, attended oral arguments and assisted in drafting dozens of Court opinions. After he left the service of the Supreme Court he was an associate in the Law Office of Linda Pence, an Indianapolis trial attorney. In that capacity he represented white collar criminal defendants and worked on motions and discovery, and did research in complex civil RICO litigation as plaintiff ’s counsel.

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Photo. Jim Barnett.

Massa then became the Policy and Communications Director of the Indiana Republican State Committee and remained there before serving as the Transition Director for Marion County Prosecutor-elect Scott Newman. Prosecutor Newman appointed Massa as Chief Counsel to the Marion County Prosecutor’s Office where he served from 1995 until 2002. He was the primary advisor to the Prosecutor on all matters relevant to his duties, while assisting in the management of an office of more than 120 lawyers and 200 support staff. He was in-house counsel on matters of employment law and other civil lawsuits and was lead trial counsel in cases involving murder, attempted CONTINUED ON Next Page

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Mary grade school and Cathedral High School. His daughter is a senior at St. Louis University and is in their pre-law scholars program. She would like to be a prosecutor. His son graduated from high school in May and is now attending the University of Dayton.

Photo. Greta Scodro.

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murder, battery and other felonies, as well as several high profile prosecutions for capital murder. He also oversaw the office’s Grand Jury investigative unit and served as the Prosecutor’s liaison to the Indiana General Assembly. He left the Prosecutor’s Office to become Assistant US Attorney for the Southern District of Indiana, working with United States Attorney Susan Brooks. He oversaw criminal investigations and directed federal agents, presented cases for indictment by grand jury, successfully tried criminal matters in the United States District Court, and defended verdicts on appeal to the 7th Circuit Court of Appeals. Massa was honored with the United States Department of Health and Human Services “Inspector General’s Integrity Award” in 2005 for his work prosecuting an important health care fraud case. He was also detailed to the Joint Terrorism Task Force post-9/11 and earned the requisite security clearance for that assignment. He remained there for three years until Governor Mitch Daniels named him as his General Counsel. His duties in the Governor’s office included advising the Governor on judicial appointments, clemency, pardons, civil litigation in which the state was a party, personnel matters, employment law and ethics, the

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scope and limits of executive authority, separation of powers, constitutional and policy analysis of legislation and administrative rules, criminal justice policy and as liaison with the judicial branch. Massa served in that capacity from 2006 to 2010 when he left to seek election as the Marion County Prosecutor while serving in an Of Counsel position for the Indianapolis law firm of Riley, Bennett & Egloff. He served as Chairman of the Indiana Alcohol and Tobacco Commission for a brief time before being named as Executive Director of the Indiana Criminal Justice Institute in May 2011. Governor Daniels announced on March 23, 2012 that he had chosen Mark Massa as his appointment to replace his former mentor in whose chambers he had worked just two decades earlier as a law clerk—Chief Justice Shepard. Justice Massa has had an active role in community affairs including serving on the board of directors of the Boys and Girls Clubs of Indianapolis and the Police Athletic League, and serving on the School Commission and as Chairman of the School Budget Committee at his local parish church, Immaculate Heart of Mary. He was also a coach for the Catholic Youth Organization (CYO) for eight years. He is the proud father of two children, daughter Kelsey and son Danny, both of whom attended Immaculate Heart of

Most of his leisure time is consumed by music and sports. He lectors and sings in church choirs and also occasionally fills in as an accompanist on piano. He competes in a weekly ice hockey league, plays golf and tennis, and bikes and swims on a regular basis. When he is not a participant he enjoys attending live sporting events and concerts. His reading preference away from the office is history and non-fiction works. As to how Justice Massa views his role on the Indiana Supreme Court, we can find the answer in his Investiture speech: “So what can we promise? A British journalist once went to see Mother Teresa of Calcutta to do a story on her mission in one of the worst slums on earth. Seeing the despair that surrounded, he asked her how she could ever hope to be successful. She took his hand and quietly said, ‘God doesn’t expect us to be successful, he expects us to be faithful.’ And so it is with this Court and my twenty percent role in it. I cannot promise you that I, or that we, will always be successful in finding the right outcome, but we will be faithful; faithful to the rule of law, faithful to the principles of equal justice, faithful to a promise of patient and civil treatment of lawyers and litigants, or as Socrates defined the judge’s charge, ‘to hear courteously, to answer wisely, to consider soberly, and to decide impartially.’ That is my promise to you today: to strive every day to meet Judge Barker’s challenge, courteously, wisely, soberly, impartially; not perfectly…but faithfully. I thank you all again for making this an unforgettable day for me and my entire family. God bless you all, and this Honorable Court.”


Justice Loretta Rush Takes Her Place on the Indiana Supreme Court

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overnor Mitch Daniels named Tippecanoe Superior Court Judge Loretta Hogan Rush as Indiana’s 108th Indiana Supreme Court Justice. Born in Scranton, Pennsylvania, as Loretta Hogan, she is the daughter of a railroad man who worked for the Erie-Lackawanna Railway. His job took the family to Chicago and eventually to Richmond, Indiana where she graduated from Richmond High School. Her next stop was Purdue University where she attended with the assistance of academic scholarships and by working to fund her education. Her jobs included washing dishes in dormitory cafeterias, driving school buses to their delivery sites, and computer input of data in research projects for the School of Family Studies. She was involved in many campus activities and a member of the Alpha Phi sorority. She maintained membership on the Deans’ List and was named a Distinguished Student. She earned her Bachelor of Arts degree in 1980 and was certified to teach Economics, Government, Sociology and History. She was a student teacher at Harrison High School in West Lafayette, but made a fateful and fortuitous decision to attend Indiana University Maurer School of Law in Bloomington, Indiana. Surprisingly, at the time she did not know, nor had ever met, a lawyer. While in law school she continued her work-studies by teaching correspondence courses in business law to incarcerated prison inmates through the Indiana Department of Correction. She also worked as a summer law clerk for the Vinson and Elkins law firm of Houston, the Grey, Seifert, Inc. Wall Street investment firm, and the Locke Reynolds Boyd & Weisell Indianapolis law firm. During her law school studies she was a certified legal intern with Community

Legal Services at Indiana University. In addition to her work and studies, she was Moot Court Champion and Best Oralist in 1982; a Sherman Minton Award Recipient; Indiana University Moot Court, National Team member; Order of the Barristers Recipient, Appellate Advocacy and Legal Writing, faculty selection; an American Jurisprudence Award winner; and, a member of the Phi Delta Phi legal fraternity. She earned her Doctor of Jurisprudence degree and graduated Cum Laude in 1983. Following her graduation from law school in 1983 until 1997, she was an associate and then partner in the Lafayette law firm of Dickson, Reiling, Teder and Withered, which became Reiling, Teder, Withered and Rush when Brent Dickson (now Chief Justice Brent Dickson) was named to the Indiana Supreme Court by Governor Robert D. Orr. As a general practice attorney for fifteen years, 80% of her legal practice consisted of civil litigation, including family law, business, personal injury, corporate, probate, worker’s compensation, and administrative law. She also served as West Lafayette Assistant City Attorney and as an attorney for the West Lafayette Economic Development Commission and the Board of Zoning Appeals. She was elected Tippecanoe Superior Court Judge in 1998, and re-elected in 2004 and 2010. During her fourteen years on the bench, her focus has been on cases involving Children in Need of Services (CHINS), delinquency, criminal and status offenses, paternity, dissolutions, guardianships, adoptions, and protective order hearings. Judge Rush was also selected by the Indiana Supreme Court to be one of three courts involved in a pilot project to explore the use of audio/visual records on appeal in lieu of written transcripts. She has

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Photo. Chris Bucher.

committed to keeping this pilot project running without interruption after she assumed her new duties on the Indiana Supreme Court. As a trial court judge, she has been involved in many activities outside of her courtroom. Judge Rush serves as the President of the Indiana Council of Juvenile and Family Court Judges and as Chair of the Juvenile Justice Improvement Committee, both positions from which she must resign as she assumes new responsibilities. She has collaborated with executive branch agencies and legislative committees in drafting significant legislation concerning child welfare, sentencing guidelines for children who are waived into the adult correction system, new juvenile “Waiver of Rights” form for use by law enforcement, and greater flexibility of courts in making placement decisions for children in need of services. Judge Rush also served on the Indiana Supreme Court Judicial Technology and Automation Committee (JTAC), chaired the first statewide Child Welfare Summit, and was selected by the Indiana Supreme Court to represent Indiana at every national judicial summit on children held in 2005, 2007, and 2009. CONTINUED ON Next Page

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Judge Rush has worked with the Indiana Judicial Center to draft and revise the Juvenile Judge’s Benchbook for Delinquency, CHINS and Paternity; provide training materials for new judges on CHINS, Termination of Parental Rights, and Delinquency; and prepare annual reports as Chair of the Juvenile Justice Improvement Committee that were provided to all Indiana Judges at the Judges Annual Meeting. She was also a contributing author for White Papers on Understanding Juvenile Justice in Tippecanoe County and Understanding CHINS in Tippecanoe County. Judge Rush has been involved in many pro bono activities in Tippecanoe County. While in private law practice, she served on the Volunteer Lawyer Panel; Diocese of Lafayette Marriage Tribunal volunteer legal services; and as a Guardian ad Litem. As Judge she developed a CHINS mediation program supported at no cost by certified attorney mediators to primarily indigent families involved in child welfare cases. She also has drafted and implemented pro se guidelines/pamphlets to help self-represented individuals navigate the court system. She received the YWCA “Salute to Women Award” and also the Judge Hand “Child Advocacy Award” in 2001; the Robert J. Kinsey Award as the Indiana “Juvenile Judge of the Year” in 2003; the Family Services Agency “Lillian Kaplan Award for Human Services” in 2005; the Greater Lafayette Baha’i Community “Human Rights Award” in 2006; and the Tippecanoe County Republican Women’s Club “Woman of the Year Award” in 2012. Her involvement in community activities includes service on the YWCA Board of Directors; Chair of the Domestic Violence Intervention and Prevention Program; Director of the Community and Family Resource Center

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Foundation Board; member of the Cary Children’s Home Board; service on the Tippecanoe County Community Corrections Board; weekly volunteer “Big Sister” with the Big Brothers/Sisters Program in the school-based program at Miller Elementary School; and she currently is the Grants Board Director of North Central Health Services (NCHS). When Justice Frank Sullivan announced that he was resigning his position on the Indiana Supreme Court to become a Professor at the Indiana University Robert H. McKinney School of Law, colleagues and friends encouraged Judge Rush to submit her application for the vacancy. She admitted that she was hesitant at first for a number of reasons, but mainly because she “liked being a trial court judge.” In her usual thoughtful and deliberate manner, she did her research and sought out the advice and counsel of fellow jurists, lawyers, friends and family before deciding that this was something she wanted to do. Judge Rush has never shied away from a challenge and reports that she has “always liked the reading and research aspect of the law and has especially admired the collegiality of the Supreme Court Justices and the intellectual discourse that is such an important part of their work.” An additional reality that both energizes and humbles

Judge Rush is that as a member of the Indiana Supreme Court “you are responsible for the rule of law in Indiana.” Judge Rush is married to James Byron Rush, a Quality Assurance Engineer with MED Institute in West Lafayette, who is also a Purdue graduate. They have four children, two daughters, Mary Teresa and Sarah Hogan, and two sons, Jacob Ryan and Luke Abraham. They are an adventurous family who love to travel, from the Rocky Mountains to Niagara Falls to southern Missouri to Charlotte, North Carolina. According to Judge Rush they have been known to “hop in the car for a day trip just for the fun of it.” Her first day on the job was November 7th and her public swearing-in ceremony will be on December 28th. As she looked forward to her new responsibilities on the Indiana Supreme Court, she expressed these thoughts: “I have a deep fundamental appreciation for the law and our courts. It is important to have an open, ethical, and well-informed judicial system. We must never take for granted the trust that our lawyers and the public have in our judiciary. I want to do well.”


Sixth Amendment’s guarantee of a right to a fair trial. Topics included: the responsibility of the trial court and the bar in conducting trials; the responsibility of the news media in reporting on trials; and, the effect of new media technology on juror access to information. Reporters who have limited experience in covering the courts attended an introduction session. Trial court judges: 1) explained the jurisdiction of courts; 2) reviewed the stages of civil and criminal proceedings; 3) offered tips for interacting with court staff; and, 4) answered questions regarding the general operation of courts. Staff Photo.

By Brooke Lewis | Communication Assistant, Indiana Supreme Court

Law School for Journalists The

Indiana Supreme Court and the Indiana University Robert H. McKinney School of Law partnered to host a Law School for Journalists. The free, one-day program was designed to provide journalists with tips on how to cover all aspects of the Indiana judicial system. New and experienced journalists and editors in television, print, radio and Internet attended. Helen Lucaitis, an alumna of the host law school and former practicing attorney and Court TV correspondent, was the keynote speaker. She addressed the importance of accurate coverage of the judicial branch and of finding the balance between reporting to the public and respecting the legal system. The program topics included the court system as whole and specific court matters such as mental health. Trial court judges have long dealt with mental health issues in a variety of cases;

however, courts have been challenged recently by the appearance of veterans in increasing numbers. The Veterans’ Treatment Court was implemented in response to the growing trend of veterans who face charges stemming from substance abuse or mental illness that potentially relates to their military service. Journalists were taught about sentencing reform and its impact on a community. They learned what it means when a court sentences an offender to community supervision, how probation departments assist courts in identifying offenders who can benefit from community supervision, and how probation departments provide services to offenders in the community. Participants engaged in a round-table discussion on the sometimes competing aspects of the First Amendment’s guarantee of freedom of the press and the

This proved to be a unique chance for those in the media to have one-on-one time with important members of the judiciary.

Another area focused on how the Courts regulate the conduct of lawyers. There is a great deal of information available to reporters covering attorney discipline cases. Representatives from the Indiana Supreme Court Disciplinary Commission and the Indiana State Bar Association’s Ethics Committee offered an inside look at how complaints of attorney misconduct are handled. The panel also discussed what information related to these cases is available to the public and why certain information remains private. Attendees had the opportunity during lunch for informal discussions with judges, journalists, professors and experts on a variety of topics from the first amendment to the inner-workings of the Supreme Court. This proved to be a unique chance for those in the media to have one-on-one time with important members of the judiciary. Members of the press described the Law School for Journalists as a successful, informative program that helped connect the media to the Indiana judicial system. The program was co-sponsored by the Indiana Judges Association, Indiana Broadcasters Association, Indiana State Bar Association and the Hoosier State Press Association Foundation with support from the Judicial Conference Community Relations Committee.

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By Hon. Gregory J. Donat | Tippecanoe Superior Court 4

Is Indiana Ready for Bail Bond Reform? Editor’s Note: Res Gestae magazine has also published Judge Donat’s article in the November 2012 issue under the title “I’m Embarrassed.”

The

Indiana Constitution provided in Article 1, Section 12: “Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.” “Without purchase” is an interesting concept. Does it mean that ability to pay will not determine who is, and who is not, in jail? You’d never know it from the way things work in Indiana. Because the ability to post a bail bond completely determines whether a person is held in jail or released. Nationally, according to the federal Bureau of Justice Statistics, sixty percent of inmates in county jails are awaiting disposition of their case and not serving a sentence. They simply cannot afford to post a bail bond. Liberty is purchased by a “bond schedule.” I am at a complete loss on how to reconcile these facts with the Indiana Constitution. The U.S. Constitution, and every state constitution, has a provision that “excessive bail shall not be required.” The United States Supreme Court has ruled that “excessive” means more than is required to ensure that the individual appear in court when ordered to do so and to ensure public safety. We created bail bonds to insure that the accused would appear at trial and all court proceedings. In more recent times, we added the issue of “public safety” as a legitimate consideration in setting bail. (IC 35-33-8-1) 8 NOV/DEC 2012

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Do courts really consider those issues in setting bail bonds? I think not. We set bonds according to a schedule that is based on the arresting officer’s belief of the class of misdemeanor or felony that will be charged. How can anyone determine if such a bond is excessive? The only way to do that is to examine each individual case. Having the money available to post bond is neither an indicator that the accused will appear in court nor is it a guarantee of public safety. It appears all too often that the wrong people are being held in jail while high–risk offenders are being released because they have the resources available to post bond. In America, we generally think of bond as an amount of money, but in fact bond is “money or other terms of release” that accomplish the dual goals of court appearance and public safety. The evidence shows that terms individually designated to fit the circumstance of the case are much more effective in meeting those goals. I have asked my friends from the domestic violence field: “Would a victim feel more secure if the perpetrator posted bond or wore a GPS tracking device that would warn the victim if the per-

petrator came within 500 feet?” In that circumstance, the terms of release are more effective in securing public safety. Evidence-based practices have demonstrated in every comprehensive study that “terms” of release are vastly superior to “money.” In the federal system, and in many state jurisdictions, Pretrial Service agencies use risk evaluation tools to set and monitor the terms of release. In the landmark case Stack vs. Boyle, 342 U.S. 1 (1951) the U.S. Supreme Court held: “Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.” The Court further ruled that the “standards … are to be applied in each case to each defendant”. The Indiana Court of Appeals decision handed down on September 4, 2012, Tommi Emerson Winn v. State, No. 42A04-1201-CR-49, sets forth a list of possible factual circumstances to be considered in each case. There is also collateral damage. Locking up a person “presumed to be innocent” can have serious unintended consequences. We think of a suspected criminal as a bad person who is better off locked away. The truth is that many people accused of committing a crime are actually valued by their spouses, children, family, friends, employers, and neighbors. Often, by the time the case is resolved, irreparable damage has been done. Even if the final disposition is “guilty’” it is all too common that the criminal sanction is less than the time already served. I have imposed a sentence of 30 days, only to have the defendant say, “I’ve already got credit for 52 days.” Non-monetary terms of release not only save vast sums of money for incarceration expenses, the practice also affects many other rights: • The 6th Amendment right to counsel as a defendant who doesn’t have to post a significant cash bond will be better able to provide a private attorney and to help prepare a defense;

Evidence-based practices have demonstrated in every comprehensive study that “terms” of release are vastly superior to “money.”


• The presumption of innocence is diminished when the defendant shows up to court in shackles and jail clothes; • Since 93 % of cases are resolved by plea agreement, a person at liberty is in a better position to negotiate while demonstrating normal treatment, employment, stable family life, ability to generate supportive witnesses, and appropriate behavior; and, • The 14th Amendment right to due process is certainly affected when bond is set without any hearing. Therefore, the evidence has shown from many aspects that there are a wide range of monetary, legal, and ethical reasons to reconsider our pretrial system.

T rial

J u dg e s

On and Off the Bench in 2013 Editor’s Note: This past year brought many new faces to the trial courts in Indiana. In addition to changes resulting from retirement and primary and general elections, two trial court judges have been promoted to new responsibilities. Tippecanoe Superior Court Judge Loretta Rush is now an Indiana Supreme Court Justice and Marion Superior Court Judge Robyn Moberly is now US District Court Bankruptcy Judge for the Southern District of Indiana. Vanderburgh Superior Court Judge David Kiely was selected by voters in an unopposed race to serve as Circuit Court Judge beginning in January, replacing Circuit Court Judge Carl Heldt, who retired. Governor Daniels will appoint judges to fill the vacancies created by Judge Moberly’s move to federal court and Judge Kiely’s move to Circuit Court. The list below provides a summary of the newly elected and recently appointed judges, the trial court judges leaving the bench, and the two vacancies awaiting appointment by the Governor.

Newly Elected/Recently Appointed

Lori Quillen Owen Circuit Court

Lin Person Clinton Circuit Court

Darrel Auxier Jefferson Circuit Court

Michael W. Reed Kosciusko Circuit Court

Rex Reed Kosciusko Circuit Court

We are now in an era when we can evaluate data scientifically and determine the factors that indicate those we should release without bail, those who should be detained, and those who should be released under specific terms (such as drug testing or GPS tracking). The federal court system, and many states and communities, use a validated risk assessment to make bond decisions. Indiana has adopted an official “risk assessment tool.” But Indiana courts are very reluctant to abandon the bond schedules. Some judges believe that bond schedules are useful and also generate money to cover court costs and fees. Bonds were never intended to be a revenue-raising measure and one could argue that to do so is unconstitutional.

John M.T. Chavis Marion Superior Court

Angela Sims Madison Circuit Court

S.K. Reid Marion Superior Court

Timothy B. Day Decatur Circuit Court

Timothy Spahr Miami Circuit Court

Fred Schurger Adams Circuit Court

Benjamin A. Diener Carroll Circuit Court

James Worton Bartholomew Superior Court

Ted Todd Jefferson Circuit Court

The American Bar Association, the Council of State Chief Supreme Court Judges, the National Sheriff ’s Association, and many other organizations have adopted an official position favoring bail bond reform. Indiana has been very reluctant to address this issue. I am embarrassed that Indiana is ignoring this serious problem. We have been a state that has so often been in the vanguard of enlightened judicial approaches.

James A. Joven Marion Superior Court

Kimberly S. Dowling Delaware Circuit Court #2 James N. Fox St. Joseph Probate Court Clayton Graham Marion Superior Court Faith Graham Tippecanoe Superior Court Amy M. Jones Marion Superior Court

Trial Judges Leaving the Bench on 12/31/12 Barbara Collins Marion Superior Court Don Currie Carroll Circuit Court Carl Heldt Vanderburgh Circuit Court Reuben Hill Marion Superior Court

Chad E. Kukelhan Adams Circuit Court

Chris Monroe Bartholomew Superior Court

Helen Marchal Marion Superior Court

Frank Nardi Owen Circuit Court

Bradley K. Mohler Clinton Circuit Court

Peter Nemeth St. Joseph Probate Court

Richard W. Poynter Jackson Circuit Court

Carol Orbison Marion Superior Court

William Vance Jackson Circuit Court John Westhafer Decatur Circuit Court Alan Wilson Delaware Circuit Court #2 William Young Marion Superior Court To Be Appointed Vanderburgh Superior Court (D. Kiely moved to Circuit Court) Marion Superior Court (Judge Robyn Moberly’s position)

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By Kathryn Dolan | Public Information Officer, Indiana Supreme Court

United States Supreme Court Chief Justice Bestows Honor on

Indiana Judge John F. Surbeck, Jr. Allen

County Superior Court Criminal Division Judge John F. Surbeck, Jr. in November received one of the nation’s highest judicial awards. As the spotlight shone bright on Judge Surbeck, he used the moment to highlight the work of his colleagues on the bench. Indiana judges symbolically stood right next to Judge Surbeck as he accepted the honor at the highest court in the land. He said, “I don’t believe that this is all about me. It’s about the people of Allen County and the people of Indiana.” United States Supreme Court Chief Justice John G. Roberts, Jr. presented the National Center for State Courts (NCSC) William H. Rehnquist Award

for Judicial Excellence to Judge Surbeck in front of family, friends, colleagues, staff and members of the Indiana General Assembly. Indiana Chief Justice Brent E. Dickson introduced Judge Surbeck to the attendees. He noted, “Time limits us to highlight only Judge Surbeck’s major accomplishments, but the more you get to know about Judge Surbeck, the more there is to admire about him.” As the founder of Indiana’s reentry courts, Judge Surbeck is considered a national trailblazer in the field. His commitment to reentry courts began when he realized the cycle of crime in his community. As a public defender he represented individuals facing criminal

charges, only to see those individuals’ children and grandchildren appear before him years later when he became judge. He was determined to change that cycle. In 2000, Judge Surbeck worked with others to design the Allen County Reentry Court, which helps transition offenders on early release back into the community. The court provides counseling, mentoring, and help with finding a job. In his remarks in Washington, D.C., Judge Surbeck called attention to the importance of the support he’s received from the Indiana Supreme Court and the Indiana Judicial Center. He said, “They have created an environment in Indiana where judges are encouraged to innovate to improve our justice system.” Five years after establishing the court, statistics showed the program had reduced the rate of prisoners reoffending to 34 percent, compared to nearly 60 percent nationally. The success of the Allen County model prompted Judge Surbeck to seek state legislation that authorized all Indiana courts with criminal dockets to institute similar programs. Indiana State Senator Thomas J. Wyss and Indiana State Representative Winfield Moses congratulated Judge Surbeck in person at the ceremony. Judge Surbeck worked with them and others in the Indiana General Assembly to


Judge Surbeck (left) receives the Rehnquist Award from US Supreme Court Chief Justice John Roberts. Photo. Robert Boag, National Center for State Courts

offer the program statewide by showing how a reentry court not only rehabilitates offenders and thus enhances public safety, but also produces significant cost savings for taxpayers. “Judge Surbeck has made a tremendous and long-lasting impact on the courts of Indiana and elsewhere and has brought fresh ideas and a proven track record to the seemingly intractable problem of recidivism,” Chief Justice Dickson and Lilia Judson, Executive Director, Division of State Court Administration, said in a letter of support for the award. The letter resonated with the NCSC, who selected Judge Surbeck for the prestigious award. President Mary C. McQueen pointed to Judge Surbeck as an inspiration for others working in the justice system and said, “He has accomplished what most of us set out to do with our lives – he’s making a true difference in the lives of others. Those who

“Judge Surbeck has made a tremendous and long-lasting impact on the courts of Indiana and elsewhere and has brought fresh ideas and a proven track record to the seemingly intractable problem of recidivism.” —Chief Justice Brent Dickson and Lilia Judson

work with him, refer to Judge Surbeck as a pioneer and a trailblazer in the field of reentry courts. I would add that he’s also a proven leader for the nation’s court community when it comes to integrity and judicial innovation.” Judge Surbeck humbly pointed to the reason for his dedication—since opening in July 2001, more than 600 offenders have completed the program. With benefits to Indiana citizens apparent, accolades from colleagues and friends, and a handshake from the United States Supreme Court Chief Justice, the reception was a moment for Judge Surbeck to reflect on his work and a moment for all Indiana judges to take pride in their state.

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By Elana Salzman | Staff Attorney, State Court Administration

US Supreme Court Examines

Services for Self-Represented Litigants The

treatment of self-represented litigants is an ongoing dilemma for Indiana courts. Judges grapple with questions of how to effectively ensure access to justice for these litigants, who may be at a disadvantage in proceedings where important rights are at stake. This question was addressed by the United States Supreme Court in 2011 in Turner v. Rogers, 131 S.Ct 2507 (2011). Although the ruling in this case was concerned specifically with nonpayment of child support cases, it has larger implications for the treatment of pro se litigants in many types of civil cases. In Turner v. Rogers, a noncustodial parent had been ordered to pay weekly child support and repeatedly failed to do so. He had previously been incarcerated for nonpayment of support. A civil contempt hearing was held at which neither he nor the custodial parent was represented by counsel. The State was not a party. At the contempt hearing, the judge asked Mr. Turner if there was “anything you want to say.” Mr. Turner responded that he had not paid because he had been on drugs but was now clean. He asked for another chance. The judge found Mr. Turner in contempt of court and sentenced him to twelve months in jail. He neither questioned nor made any finding as to Mr. Turner’s ability to pay. Mr. Turner appealed, arguing that he had a right to counsel. The South Carolina Supreme Court rejected this argument.

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The United States Supreme Court reversed, finding that while there is no categorical right to counsel in civil incarceration cases, the trial court violated due process rights by failing to provide alternative procedural safeguards. The Court declined to find a right to counsel for three reasons: 1) the issue in child support nonpayment cases is sufficiently straightforward—the defendant’s ability to pay; 2) since there was no counsel on the other side by providing counsel it might create an asymmetry that would “alter significantly the nature of the proceeding;” and 3) there are alternative procedural safeguards available that guarantee a defendant’s due process rights. Citing Matthews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the court used several factors to determine what specific safeguards are required by the Due Process Clause. These include: • the nature of the private interest that will be affected; • the comparative risk of an erroneous deprivation of that interest with and without additional or substitute procedural safeguards; and, • the nature and magnitude of any countervailing interest in not providing additional or substituted procedural requirements. Id at 2517-2518.

The Court then enumerated the “alternative procedural safeguards” that should be used in order to preserve a

litigant’s due process rights if he or she does not have an attorney in a nonsupport payment case as follows: • notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; • use of a form (or the equivalent) to elicit relevant financial information; • an opportunity at the hearing for the defendant to respond to statements and questions about his financial status; and • an express finding by the court that the defendant has the ability to pay.

While some advocates have seen this ruling as a setback to the right to counsel in civil cases, the case is significant because it protects other procedural due process rights in many civil cases. Further, it explicitly sanctions judges’ taking measures to help pro se litigants. The ruling lays out requirements for procedural safeguards in situations in which parties are unrepresented and in which there are serious rights at stake. As such, it provides important guidelines for courts when faced with pro se litigants facing deprivation of rights such as incarceration. The ruling in Turner seems to require that the procedures of the case as a whole ensure appropriate accuracy and fairness. So what does this mean for judges? What can judges do in these cases to ensure due process?


Types of cases requiring Turner safeguards In declining to find a right to counsel, the court in Turner specifically limited its ruling to nonpayment of support cases in which the other side is not represented by counsel. In Indiana, defendants have a right to counsel when facing incarceration for nonpayment of child support or for other types of indirect civil contempt. (See In re Paternity of C.N.S., 901 N.E.2d 1102, 1106 (Ind. App.2009) (citing Marks v. Tolliver, 839 N.E.2d 703, 706 (Ind.Ct.App.2005)) However, Turner’s requirements for due process protection have broader implications for other cases involving pro se litigants. Turner refers not just to cases where incarceration is at issue, but also to any case in which there is a risk of an erroneous deprivation of a significant right (2518). This might include parental rights, CHINS cases, child custody, housing, or a number of other matters. This might also include collections cases in which there is a writ of body attachment. The protections that Turner enumerates can be applied to a broad range of cases in which self-represented litigants frequently appear.

What do judges need to do? In addition to its ruling on right to counsel, Turner stands for the proposition that when there is the potential for a significant deprivation of rights, courts may, and in fact may be obligated to, provide certain protections for self-represented litigants. These include:

1. Notice to Defendants— State the Issue at Hand Judges should inform defendants of the issues that are to be litigated prior to the start of the hearing. In Turner, the court failed to inform the defendant that his ability to pay was the issue, and this was one of the reasons the Supreme Court reversed. Judges can avoid breaches of due process by stating clearly at the outset what is to be litigated.

2. Use Forms Some judges have been hesitant about the adoption and use of forms for pro se litigants. Turner explicitly endorses the use of forms to elicit pertinent information (2519-20). The Indiana Supreme Court Division of State Court Administration puts a number of forms online that self-represented litigants can access in family law and some other civil cases at: courts.in.gov/selfservice.

3. Question litigants Judges should not feel constrained from questioning pro se litigants when necessary to ensure a fair hearing. Often judges are concerned that questioning litigants jeopardizes impartiality; however, in many cases not questioning them is more damaging to that impartiality. Turner makes clear that it is appropriate for judges to question pro se litigants in order to preserve their due process rights (2519). While a judge should not present a litigant’s case, it may be appropriate to elicit pertinent evidence that goes to the issue at hand.

4. Appoint counsel when necessary

appoint counsel (2520). Judges should do so whenever it is apparent that due process rights cannot be adequately preserved without an attorney. Indiana statutes allow for the discretionary appointment of attorneys for indigent litigants in civil cases (IC 34-10-1-1 and 2). Judges should consider this option in cases where a defendant “can fairly be represented only by a trained advocate” (Turner at 2520, quoting Gagnon v. Scarpelli, 411 U.S. 778, 788, 93 S.Ct. 1756, 36 L.Ed.2d 656).

5. Enlist the help of court staff The Court in Turner endorses the concept of court staff providing neutral support to pro se litigants (2519). Court staff can be useful in ensuring that litigants understand the nature of the proceedings, in providing clear instructions to litigants, and by helping to fill out forms. Judges can and should see that they are allowed to do this.

6. Make court findings clear and in writing If the court uses a form, all findings should be clearly stated and in layman’s language.

In the face of a still-recovering economy and the limited supply of free and pro bono legal services, the number of selfrepresented litigants in court is likely to increase. Turner provides useful guidance on the extent to which judges can, and in fact are obligated to, help these litigants.

The Turner opinion limits itself to cases where the issue to be litigated is straightforward, but in more complicated cases the court may find it necessary to

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B it s & B ytes

If You Build It, They Will Use It The Indiana Supreme Court Judicial Technology and Automation Committee (JTAC) has provided software to the state’s trial courts since 2005, when the first INcite application for commercial driver violation filings was launched. Since then, INcite has grown to include 16 web applications used by courts, clerks, probation offices, law enforcement, and other agencies. JTAC’s ongoing installation of the Odyssey Case Management System around the state, coupled with the INcite framework for providing online software, has completely transformed court data collection and data sharing in Indiana. In addition, the ability for members of the public to access court information online has improved dramatically. Today, the public can obtain case information from the many courts using Odyssey, as well as protection orders statewide, on the web at no cost to the user. They can find information online for any traffic ticket issued in the state with JTAC’s e-ticket system, pay a modest fee for a copy of the ticket, and in some courts pay the ticket online. The public can also begin the process of applying for a marriage license over the Internet, saving clerk’s offices data entry and reporting time. And statistics show that the public is increasingly using these services as counties adopt them. Right: Quarterly page view statistics for mycase.in.gov. The number of page views on the mycase.in.gov website has steadily increased as the number of courts in the system has grown. In the five years the site has been online, it has had more than 60 million page views. 14 NOV/DEC 2012

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Odyssey deployed in Circuit and Superior Courts, may also be deployed in City or Town Courts. Odyssey

Other Methods

Odyssey deployed in some courts (e.g., City or Town) and/or to handle specific case types (e.g. Traffic, Criminal, Small Claims).

Above: Odyssey caseload. At the end of 2012, it is estimated (based on 2011 filing statistics) that Odyssey is handling nearly 42% of the state’s caseload. 144 courts in 44 of Indiana’s 92 counties are now using the system.


Nearly 300 law enforcement agencies across Indiana are now issuing warnings and citations with JTAC’s e-ticket system, called eCWS (Electronic Citation and Warning System), including 3 state agencies, 64 sheriff’s departments, and 231 city and town police departments. Tickets can be e-filed from the central repository in INcite directly to Odyssey, eliminating countless hours of data entry by court staffers that was repeated at every stage of the ticket adjudication process just a few years ago.

Above: E-Tickets. JTAC now makes available an online ticket payment system for counties that use Odyssey. The system is running in three counties and five city/town courts around the state. Since late-2011, over 16,000 tickets have been paid online—a truly “end-to-end” electronic process. Any ticket in the central repository can be found using the online ticket search, allowing offenders who may have lost their ticket to get a copy for a nominal fee. There have been 193 ticket copies purchased to date.

* 2012 fourth quarter page views estimated based on daily averages.

Marriage License Applications Started Online

Above: Marriage Licenses. In April 2007, JTAC launched a Marriage License E-Filing application that allows clerk’s offices to electronically submit marriage license information to the Indiana State Department of Health. As of the end of 2012, over 800 clerk’s office users in all but six Indiana counties have filed 110,500 marriage licenses electronically. In May 2011, the marriage license application became available to the public, allowing couples to begin the application process online before visiting the clerk’s office to finalize the application and pay their fees. This has eliminated a great deal of data entry for clerks and has shortened visit times for couples. As of the end of 2012, 77 Indiana counties allow the public to start marriage licenses online, and over 15,000 couples have done so.

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By James F. Maguire | Staff Attorney, State Court Administration

Indiana Court Reporting Pilot Project Underway of proceedings; and (3) digital filing and transmission of appellate briefs, transcripts, records and documents.

Background “The world as we have created it is a process of our thinking. It cannot be changed without changing our thinking.” —Albert Einstein Indiana trial courts use primarily audio digital equipment to make a record when conducting business. County-paid court reporters are responsible for keeping the record of proceedings and preparing a written transcript when requested. The courts of record in each county adopt local rules that govern court reporting services and set the permissible court reporter per page fees for both private and indigent transcripts, subject to Supreme Court review and approval. Each court reporter submits an annual report on income generated through the preparation of court transcripts. Court reporters statewide collected approximately $1,862,000 in 2011. Of that amount, public funds totaling $968,000 were paid for indigent case transcripts. The monies paid by an individual county varied depending on the number of appeals and the length of the transcripts. Expenditures ranged from zero to approximately $320,000 in Marion County. Because county local court rules dictate the amount allowed to be charged, county transcript preparation fees vary from a low of $2.50 to a high of $7.50 per page. The Indiana Court of Appeals reviewed cases filed on appeal to determine the time that transpired between filing of notices of appeal at the trial court level and submission of appellate briefs and transcripts with the appellate courts clerk’s office. In 2010, there were 2,276 appeals in which a transcript was filed. In those cases, the average number of days was 151 between the filing of a notice of appeal locally and the filing of the briefs and transcript with the appellate clerk. The fewest number of days was 86, and the longest was 229. Consistent with its goals of expediting the appellate process and improving record-keeping services, the Division of State Court Administration (Division) conducted a study on procedures used in other states. The Division reported that systems used in other jurisdictions include: (1) audio/visual recordings as the record on appeal in lieu of a written transcript; (2) certified professional transcription experts who prepare the record 16 NOV/DEC 2012

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The Supreme Court ordered the Executive Director of the Division and staff to work with Indiana Court of Appeals Chief Judge Margret Robb, Court of Appeals judges and staff, and selected trial court judges to conduct a pilot project, for a limited period of time and in a limited number of cases, to accomplish the following: 1. in selected courtrooms, use audio/visual recordings on appeal as the record of trial court proceedings in lieu of paper transcripts; 2. in selected counties, use outside transcript preparation services to expedite transcript preparation for appeals; and 3. in limited cases, require parties on appeal to file in digital format only their appellate briefs and transcript of proceedings. Three Indiana Court of Appeals Judges will assume primary responsibility for participating in this pilot project: Judge Melissa May, Judge Cale Bradford, and Judge James Kirsch.

Supreme Court Order

Phase One

The Indiana Supreme Court on September 18, 2012 issued its first Order of this three-phase pilot project that is scheduled to end on December 31, 2013. The Order mandates the use of audio/visual recordings in lieu of paper transcripts for the preparation of the record and briefs on appeal. This effort was designated as the Indiana Court Reporting Pilot Project for Audio/Visual Recordings. The Supreme Court designated three trial courts from which forty five (45) cases will be chosen in this project. Each of the participating trial courts will select fifteen (15) cases in which a Notice of Appeal has been filed from the following case types: criminal cases; termination of parental rights cases; and, civil cases. The participating judges and courts for these case types are the Honorable Mark Stoner, Judge, Marion Superior Court, Criminal Division 6 (Major Felony); the Honorable Loretta Rush, Judge, Tippecanoe Superior Court #3 (Juvenile); and the Honorable Nancy Boyer, Judge, Allen Superior Court (Civil). Governor Mitch Daniels named Judge Loretta Rush


as the 108th Indiana Supreme Court Justice and Justice Rush was sworn in and began her new duties with the Court on November 7, 2012. The Honorable Faith Graham, Magistrate, Tippecanoe Superior Court, has assumed responsibility for over-seeing the work in this court for the pilot project. Governor Daniels on November 28th appointed Magistrate Graham as the new Judge in Superior Court 3. Kentucky is the only state that uses exclusively audio/visual recordings in lieu of paper transcripts in their appellate process. Jefferson Audio Video Systems, Inc. (JAVS) installed and provides support for the audio/video equipment in the Kentucky courts. The Division selected JAVS to install equipment in each of the courtrooms involved in this project, which includes microphones, cameras, monitors and software. The participating courts will utilize this equipment to record every courtroom proceeding during this pilot project. In the fifteen (15) cases to be chosen by the trial court judge for this pilot project, participation is mandatory for the parties. Their appellate briefs will reference to the exact time of the proceeding as noted in the audio/visual record rather than citing to the page and line number of the transcript as is usually done. All three judges involved in this project have reported favorable responses on this technology from the lawyers appearing before them. Judge Nancy Boyer presided over a 5-day medical malpractice trial and both plaintiff and defense counsel downloaded each day’s proceedings onto their flash drives. This process took about fifteen minutes. Defense counsel even included parts of their doctor’s videotaped testimony in the presentation software used in final argument. Judge Mark Stoner also gave high marks on the use of the equipment in his courtroom, with the Public Defender’s Office considering the potential use of the recorded court proceedings for attorney training purposes. Judge Stoner was the first to issue a Notice of Designation of Case as an Audio/Visual Recording Pilot Project Case on September 21, 2012 when a Notice of Appeal was filed in his court. Justice Loretta Rush reports that none of the attorneys who appeared before her have complained about the system interfering with either their trial preparation or courtroom conduct. She and her court staff are happy with the equipment, and she assigned the primary responsibility to her court administrator for exercising control over the A/V equipment.

Supreme Court Order

Phase Two

The Supreme Court on November 8, 2012 issued its second Order of this three-phase pilot project. The second phase of the pilot project involves using professional transcription providers to prepare expedited (within thirty days) transcripts. AVTRANZ and eScribers are two firms that provide transcription services for courts in Connecticut, Florida, New Hampshire, New York and Vermont. Representatives from these two firms made presentations to Appellate Court Judges, Appellate Court and Clerk staff, and Division staff. Those involved made a unanimous recommendation to use the services of

both companies, in selected counties, and in a limited number of cases. The counties chosen to participate in this phase of the pilot project are Hamilton, Lake, Madison, Tippecanoe, and Vanderburgh. The judges in these counties, or their court administrators, working with the Division, will select four (4) cases on appeal and will assign two (2) cases to each firm for expedited transcript preparation. This effort was designated as the Indiana Court Reporting Pilot Project by Using Professional Transcription Experts on Appeal.

Supreme Court Order

Phase Three

The third phase of the pilot project concerns reducing the amount of paper involved in each appeal. This will be accomplished by requiring: 1) court reporters to submit transcripts electronically or on CD; 2) parties to submit briefs electronically or on CD; and 3) Clerks to submit records electronically or on CD. The Division will select a trial court from which a small number of appeals will be digitally transmitted to the Indiana Court of Appeals.

Measuring the Results

Survey Monkey

Jessica Tucker Ballard, Judicial Clerk for the Honorable Melissa S. May, Indiana Court of Appeals, is taking the lead in developing a Survey for this Pilot Program. We will seek feedback from participants in the pilot project, including trial and appellate court judges, law clerks, court staff, and attorneys. She is exploring the use of Survey Monkey, a free online survey service with features that insure security and maintain confidentiality.

Preparing for the Future Technology is changing rapidly and we must continue to be diligent in exploring ways to improve the efficiency and accuracy of recording court proceedings. This pilot project will provide information to help us achieve this goal.

“Those who cannot change their minds cannot change anything.” —George Bernard Shaw

If you have any questions, comments, concerns or wish further information on this pilot project please contact the author at (317) 233-3018, or by email at james.maguire@courts.in.gov.

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By Sarah Kidwell | Webcast Coordinator, Indiana Supreme Court

National Adoption Day I ndi a na Co u rt s S p ot l i gh t

Forty-two children

Photo. Sarah Kidwell.

went to bed with “forever families” in Indiana on the evening of Friday, November 16, 2012, National Adoption Day. Henry County Circuit Court Judge Mary G. Willis, Allen County Superior Court Judge Charles F. Pratt, and Starke County Circuit Court Judge Kim Hall presided over their final adoption hearings. These judges celebrated this special day by participating in an Indiana Supreme Court order designed to increase public awareness of the value of adoption proceedings. The Indiana Supreme Court issued an historic, first-time order to authorize video and audio coverage of uncontested adoptions in these three courts for National Adoption Day. The authorizing order was limited to these counties though many other events and adoption proceedings occurred across the state. Print, television and radio media were present to document these life-changing moments. The New Castle Courier Times published a front page feature story about the eight adoptions that took place in the Henry Circuit Court. A Fort Wayne television station, newspaper, and radio station covered the thirty adoptions in Allen Superior Court. Multiple television stations and two newspapers in Knox reported on the four adoptions in Starke Circuit Court. Judge Hall noted that it was the first time in 115 years that cameras were allowed in the Starke Circuit Court. Judge Hall said: “In this courtroom there have

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Henry County Judge Mary G. Willis poses for a picture with one of the families that adopted a child on National Adoption Day. The child, who also had a name change, celebrated with a balloon in the courtroom.

been thousands of cases heard. Many times they deal with heartbreak. There’s nothing that a judge would prefer to do more than an adoption. It’s one of the few times we ever get to see people in a courtroom who are generally happy to be here and enjoy the outcome.” Judge Pratt has participated in National Adoption Day for six years, but this was the first year for media coverage. He noted: “These kids are being blessed with a new opportunity, a new life. We’re giving them a forever family.” Family members, CASAs, and case workers were also allowed to document the hearings. “To allow photographs, video and audio to be taken during the adoption proceedings calls attention to the number of foster children and

honors the families who have chosen to adopt foster children into their homes,” said Judge Willis. Most of the celebrations were collaborations with Court Appointed Special Advocates (CASA), the Department of Child Services (DCS), and Indiana’s Heart Gallery, which is a traveling photographic and audio exhibit the Indiana DCS created in 2007 to assist with finding forever families for children in foster care. National Adoption Day was started in 2000 with just nine jurisdictions participating and now has about 400 events in all fifty states. According to nationaladoptionday.org, nearly 40,000 children have been adopted from foster care on National Adoption Day during the last 12 years.


Old 14-district pro bono map

1

2 5

4 7

6 8

10 11 13

3

9 12

14

New Districts and New Judicial Appointees

for the Indiana Pro Bono Commission The Indiana Supreme Court, on January 1, 2012, approved a change in boundaries of Indiana’s Pro Bono districts. The Court shifted boundaries to balance the state ratio of indigent people per lawyer. The ratio varied as widely as 24:1 to 146:1. With the new change, which includes the elimination of 2 districts, the ratio will approach 78:1. The Court also announced new Judicial District Appointees to reflect the shift and transition in leadership. With a twelve district configuration, the Pro Bono Commission hopes to increase the number of individuals helped and to continue improving on the range of services provided. The new map and the list of judicial district appointees are shown below.

Judicial District Appointees District A Magistrate Michael Pagano, Lake Superior Court

New 12-district pro bono map

B

A

E

District B Judge David Bonfiglio, Elkhart Superior Court District C Judge Michael Kramer, Noble Superior Court

C

D

District D Judge Rex Kepner, Benton Circuit Court District E Judge Robert McCallen, III, Wabash Circuit Court

F G

District F Judge Marianne Vorhees, Delaware Circuit Court

H

District G Judge David Shaheed, Marion Superior Court

I

J

District H Judge Mary Ellen Diekhoff, Monroe Circuit Court District I Judge Jon Webster, Jennings Circuit Court District J Judge Alison Frazier, Jefferson Superior Court District K Judge Greg Smith, Daviess Circuit Court District L Judge Vicki Carmichael, Clark Superior Court

K

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S ID EBAR

By James F. Maguire | Staff Attorney, State Court Administration

Hon. Terrence Cody This is the twenty-first of our Court Times articles that highlight up close and personal a member of the Indiana Judiciary.

Floyd County Circuit Court Judge J. Terrence “Terry” Cody is our judge featured in this issue. He received his undergraduate degree from Xavier University in Cincinnati and his law degree from the Indiana University Robert H. McKinney School of Law in Indianapolis.

Following graduation from law school in 1974, he returned to New Albany to practice law with his father, John A. Cody, Jr. until his election to the Floyd Circuit Court in November 1998. Judge Cody was re-elected without opposition in 2004 and 2010. Judge Cody has been very active outside the courtroom as a Board Member of the Judicial Conference of Indiana where he continues to serve on the Strategic Planning Committee, the Indiana Judges Association where he served as Secretary-Treasurer, Vice-President and

What do you like most and least about being a trial court judge? I like everything about being a trial court judge with the exception of administrative matters. I am blessed with a dedicated staff, an excellent local bar, and county commissioners and council members who support the judicial branch of our government.

What was your major in college and why did you decide to study law? My major in college was history. I originally planned to go to graduate school and become a college-level professor. 20 NOV/DEC 2012

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President, the Indiana Bar Foundation, and the Indiana State Bar Association. He served as Chair of the Indiana Supreme Court Pro Bono Committee for Judicial District 14. In his local community, he has served as a Board Member of the Floyd County Hospital Foundation, the Community Foundation of Southern Indiana, and Goodwill BridgePoint Services; and, he has served as a Trustee of Our Lady of Providence High School. He currently serves on the Board of Directors of the MacLean Foundation. He and his wife Peggy celebrated their 30th wedding anniversary this year. It was at a wedding in Toledo in 1980 when they first met. Peggy is a native of Ashland, Ohio and attended the Katherine Gibbs School in Boston for her post-secondary education. In addition to raising their two boys, she has been for the past ten years an administrative

My father was a lawyer, so I had been around a law practice all my life. Sometime during my junior year I became enamored with the law and changed my career path.

What would you do if you were not a judge? I would still be practicing law.

Who are the people you most admire? The two people I most admire are my father, John A. Cody, Jr., who practiced law for sixty (60) years and was an outstanding practitioner and a true gentleman, and Alfred E. Smith, the former Governor of New York.

assistant at St. Mary’s Catholic Academy, the family parish elementary school. They have 2 sons, Patrick age 27 and Shane age 25, plus Diamond (because she’s a real jewel) their 13 year old miniature schnauzer. Patrick is also a graduate of Xavier University and currently works for GSI Commerce in Louisville. Shane received his Associates Degree in sound production and engineering from Tribecca Flashpoint Academy in Chicago. In the past year, Peggy has become the lead groupie of the band “Houndmouth.” Shane is their drummer and sound engineer. Judge Cody proudly says that they are really quite good and in January 2013 they have two dates in Chicago and will tour with the “Drive by Truckers” band in Missouri, Arkansas, Texas and Louisiana. If all goes as planned, they will be off to England and Europe in early February 2013.

What are your hobbies and favorite leisure activities, and how did you first get involved? I am not mechanically inclined. I am an avid golfer. I have a regular game with seven good friends. My favorite golf course is Covered Bridge owned by Fuzzy Zoeller with whom I played a lot of golf in high school.

What are you favorite books, and have you ready any recently, or are reading now, that you would recommend? In college I was obsessed with the books written by Hermann Hesse. I tend to read about historical events and people.


Photo. Courtesy of Judge Cody.

This year I have read December 1941 by Craig Shirley, The Battle of Midway by Craig L. Symonds, and I am currently reading 1861 the Civil War Awakening by Adam Goodheart and Face of the Enemy by J. Dobson and B. Myers.

Where did you grow up and how would you describe your childhood? I grew up in New Albany, Indiana, the county seat of Floyd County. I am an only child and a product of a mixed marriage (political, religious, ethnic background and social status). My childhood was very traditional; two parent household, strict Catholic/Presbyterian up-bringing and the Rotary motto of “service above self.” I grew up in a

two-story brick home built in 1854 literally in downtown New Albany. I still own the house. The lessons I learned carrying newspapers for 3 years have been invaluable in my adult life.

Do you have a favorite quote(s)? On my desk is something I read every day. It was written by Lord Arthur James Balfour. “The best thing to give to your enemy is forgiveness; to an opponent, tolerance; to a friend, your heart; to your child, a good example; to a father, deference; to your mother, conduct that will make her proud of you; to yourself, respect; to all men, charity.”

Where is your favorite vacation spot? My favored place to vacation is Destin, Florida and the surrounding area. My cousin and I own a vacation home there which our families enjoy with each other and our friends.

Do you have a favorite meal, recipe, and restaurant? I like almost anything Italian. I have recipes for hearty soups which I make in the winter. Vin’tij Wine Boutique and Bistro in Destin, Florida is my favorite restaurant. My true talent is mixing Manhattans, Martinis and Margarita Martinis.

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B r enda’s B a i l i wi ck By Brenda Rodeheffer | Director, office and Employment Law Services, State Court Administration

Should You Have an Employee Handbook? If a court employee sues

regarding a condition of employment, the proper defendant can be the judge of the court, the state, the county or any combination of these depending upon the cause of action. There are counties with excellent employee handbooks and counties whose handbooks are deficient. Even if the court’s county is one with an excellent handbook and a county attorney who is experienced in county employment issues, the court’s employees are still unique and the court should not solely rely on the county’s resources. Courts are different from the county entities in their home county. The judges are state officials rather than county officials. However, the judges’ employees are not state employees. Although the employees receive pay and benefits from the county, they are separate and apart from other county employees. It’s important for each court to consider this when deciding whether to have a handbook just for court employees. Even if the Court decides to adopt the county handbook, there are actions that the Court needs to take to differentiate court employees from county employees. In the articles that I’ve written for Court Times, I have frequently mentioned items that should be included in your employee handbook. This article is written to advise you in one place of key issues specific and crucial to handbooks for court employees.

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As a start, the judge needs to make certain court employees know what personnel handbook applies to them. If a judge determines that the county handbook is suitable and wishes to adopt the policies as the court’s own, the judge should issue a written statement to the court employees and to the county commissioners that the judge has adopted the county handbook provisions for the court’s own employees. It’s important that the employees know the judge is their employer and that they are not like all other county employees. It is equally important that the judge let the county commissioners know that the judiciary is separate and that the adoption of the county handbook is a voluntary choice that may be withdrawn at any time. A simple statement is sufficient, such as: The Circuit Court has determined to adopt and apply the provisions of the County Employee Handbook for court employees. The Court reserves the right to withdraw its adoption of the Handbook at any time without notice. The Court may also supplement and/or amend portions of the Handbook with the Court’s specific provisions. In addition, as part of the Handbook or as a separate policy, each court needs to give written notice to employees that the court applies the Code of Judicial Conduct to employees. Specifically, employees need to know that they need to conduct themselves not only in their work life, but in their personal life, so that no party to a case would feel or

infer that the integrity, impartiality or independence of the Court is compromised by the fact that the employee works for the judge. The Code of Judicial Conduct generates many inquiries from the judges to Adrienne Meiring, Judicial Qualifications Commission/ Judicial Nominating Commission (JQC/ JNC) counsel because of the many nuances to the Code. Employees can’t be expected to know in what ways the Judicial Code of Conduct applies to them, unless they have been given instruction. Each judge needs to develop policies that set forth basic standards of conduct for the employees in line with the Code of Judicial Conduct. Another requirement that a judge cannot assume the county has handled properly is compensatory time in lieu of overtime pay. Giving compensatory time in lieu of overtime pay is a strictly construed exception to Fair Labor Standards Act. To be valid, each non-exempt employee needs to sign a compensatory time agreement. Signing the agreement can be a mandatory condition of employment, but there must be proof that the employee worked with the knowledge that by working for the court, the employee was accepting compensatory time in lieu of overtime pay. Sexual harassment policies and harassment policies are in every employee handbook, good or bad. The policies are of little value however if the policy does not make it clear to whom a report should be made when the employee feels harassed. A policy that says “report


or rolling backward method triggered by the date the employee begins to use FMLA. This is the one method of preventing the most common abuse of FMLA—taking the same three months off every year (winter to go south or summer vacation with the employee’s children). You have to elect the method you will use before the employee asks for FMLA, and then apply that measure to all employees.

Photo. Martin Workman.

to the supervisor” or “to any supervisor” sets the employer up for liability. An employee can then make a report and expect action from “any supervisor.” All too often a supervisor doesn’t recognize that the complaint is a harassment complaint that requires action. This failure to act still becomes notice and creates a potential liability for failure to act on the part of the court employer. A policy that designates an individual for complaints protects against this happening. Examine also the provisions for discipline in the county handbook before adopting it. If the county handbook provides for progressive discipline, and you do not typically go through the steps of progressive discipline, do not adopt the policy. Further, some counties allow an appeal of significant disciplin-

ary actions to the county commissioners or county council. A judge should never allow the commissioners or any other body to hold a hearing, formal of otherwise, regarding disciplinary decisions for employees. The employees by statute always serve at the will and pleasure of the judge. The Family & Medical Leave Act (FMLA) allows the employer to determine how time is calculated by the employer when an employee uses FMLA. For eligible employees, the twelve weeks of allowable annual leave can be counted on a calendar year basis, or an annual basis using any set date, such as the date of hire. Most counties adopt this way of measuring time because it is easy. However, the recommended method is to calculate the FMLA on a rolling forward

If a judge needs assistance or advice about these matters, contact Brenda Rodeheffer at (317) 234-3936 or brenda.rodeheffer@courts.in.gov

Another key issue to examine in the county handbook is its provisions on use of internet and email. At a minimum, the internet and email policies should put the employees on notice that their use of the internet and email is monitored. The language must not be permissive, such as “internet use may be monitored,” but instead state clearly that internet and email use will be monitored periodically. Courts also must be more careful about employees’ use of social media than the county must be of its general employees. Employees should be informed to avoid making social media friends of attorneys, police officers and any one that is a current party before the court. Employees should be advised that no comments may be made in a public forum, including social media, about what is done or heard in Court. Any statements by employees will be imputed to the judge even if the judge is unaware of the statements. Each judge needs to advise employees in writing about the need to conduct themselves on social media sites so that no one will question the independence, impartiality and the integrity of the court because of a post by an employee. If judges or probation departments wish assistance with review of the county handbook or help in drafting a handbook especially for court employees, you may always seek assistance from the author.

courttimes

NOV/DEC 2012 23


Indiana Supreme Court Division of State Court Administration 30 South Meridian Street, Suite 500 Indianapolis, IN 46204

EDITORIAL BOARD Lilia G. Judson, Publisher Executive Director, State Court Admin. David J. Remondini, Managing Editor Chief Deputy Executive Director, State Court Admin. James F. Maguire, Editor Staff Attorney, State Court Admin. Lindsey Borschel, Publication Designer Web Coordinator, State Court Admin./JTAC

MISSION Our goal is to foster communications, respond to concerns, and contribute to the spirit and pride that encompasses the work of all members of the judiciary around the state. We welcome your comments, suggestions and news. If you have an article, advertisements, announcement, or particular issue you would like to see in our publication, please contact us by mail or email at jmaguire@courts.state.in.us.

CONTRIBUTORS Hon. Gregory Donat Tippecanoe Superior Court 4 Brenda Rodeheffer Director of Office and Employment Law Services, State Court Administration James F. Maguire Staff Attorney State Court Administration

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Indiana Court Times 21.5