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January/February 2015 Vol. 58, No. 6

INDIANA COURTS: WORKING TO FULFILL THE PROMISE OF JUSTICE


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The Journal of the Indiana State Bar Association

RES GESTÆ January/February 2015

DEPARTMENTS

10 THE PROMISE

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28 UNIFORM ACTS

PRESIDENT’S PERSPECTIVE Jeff R. Hawkins, Sullivan, 2014-2015

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ETHICS CURBSTONE

28

WORDWISE

31

RECENT DECISIONS 9/14

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CRIMINAL JUSTICE NOTES 10/14

46

FAIR COMMENT

Donald R. Lundberg, Indianapolis

Prof. Kevin Bennardo, Indianapolis

Jane Dall Wilson and Donald E. Morgan, Indianapolis

Prof. Joel M. Schumm, Indianapolis

Derrick H. Wilson, New Albany

F E AT U R E S

38 COMMUTING EDITOR Susan J. Ferrer sferrer@inbar.org GRAPHIC DESIGNER & PHOTOGRAPHER Vincent Morretino vmorretino@inbar.org ADVERTISING Chauncey L. Lipscomb magazine-advertising@inbar.org WRITTEN PUBLICATIONS COMMITTEE CO-CHAIRS Joseph M. Pellicciotti William A. Ramsey wpc@inbar.org

Vol. 58, No. 6

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ISBA WELCOMES 25 LAWYERS TO LDA WORKING TO FULFILL THE PROMISE OF JUSTICE By Chief Justice of Indiana Loretta H. Rush

7 NEWS

38 FIT TO PRACTICE

44 CLASSIFIEDS

Cover photo by Vincent Morretino of Chief Justice of Indiana Loretta Rush giving her first “State of the Judiciary” address in the House chamber at the Indiana Statehouse From L-R: House Speaker Brian Bosma, Gov. Mike Pence, Chief Justice Rush & Lt. Gov. Sue Ellspermann

Res Gestae (USPS–462-500) is published monthly, except for January/February and July/August, by the Indiana State Bar Association, One Indiana Square, Suite 530, Indianapolis, IN 46204. Periodicals postage paid at Indianapolis, Ind. POSTMASTER: Send address changes to Res Gestae, c/o ISBA, One Indiana Square, Suite 530, Indianapolis, IN 46204. Subscriptions to members only, $5 annually from dues. All prior issues available exclusively from William S. Hein & Co., 1285 Main St., Buffalo, NY 14209. ISBA members are encouraged to submit manuscripts to the editor for possible publication in Res Gestae. Article guidelines can be obtained by calling 800/266-2581 or visiting www.inbar.org. Res Gestae’s printer, Print Directions, Inc., is an Indiana-certified Woman Business Enterprise. ©2015 by the Indiana State Bar Association. All rights reserved. Reproduction by any method in whole or in part without permission is prohibited. Opinions expressed by bylined articles are those of the authors and not necessarily those of the ISBA or its members. Publication of advertisements is not an implied or direct endorsement of any product or service offered.

RES GESTÆ • JANUARY/FEBRUARY 2015

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Let’s talk about lawyer mental health

M INDIANA STATE BAR ASSOCIATION One Indiana Square, Suite 530 Indianapolis, IN 46204 800/266-2581 • 317/266-2588 fax http://www.inbar.org

OFFICERS President Jeff R. Hawkins, Sullivan President-Elect Carol M. Adinamis, Westfield Vice President Mitchell R. Heppenheimer, South Bend Secretary Michael S. Dalrymple, Indianapolis Treasurer O. Adedoyin Gomih, Merrillville Counsel to the Ted A. Waggoner, Rochester President

BOARD OF GOVERNORS 1st District 2nd District 3rd District 4th District 5th District 6th District 7th District 8th District 9th District 10th District 11th District 11th District 11th District At-Large District At-Large District Past President House of Delegates

Scott E. Yahne, Munster Robyn M. Rucker, Valparaiso Robert L. Jones Jr., Notre Dame Martin E. Seifert, Fort Wayne Candace D. Armstrong, Brook Patrick J. Olmstead, Greenwood Ann Z. Knotek, Brownsburg Hon. Leslie C. Shively, Evansville Crystal G. Rowe, New Albany Wilford A. Hahn, Huntington Tonya J. Bond, Indianapolis Terry W. Tolliver, Indianapolis Andrew Z. Soshnick, Indianapolis Rafael A. Sanchez, Indianapolis Sonia C. Das, Indianapolis James Dimos, Indianapolis Andi M. Metzel, Indianapolis, Chair House of Delegates Hon. Thomas J. Felts, Fort Wayne, Chair-Elect Young Lawyers Matthew J. Light, Indianapolis, Section Chair

STAFF Executive Director Thomas A. Pyrz • tpyrz@inbar.org Administrative Assistant Barbara M. Whaley • bwhaley@inbar.org Associate Executive Director Susan T. Jacobs • sjacobs@inbar.org Administrative Assistant Julie A. Gott • jgott@inbar.org Director of Communications Susan J. Ferrer • sferrer@inbar.org Director of Public Relations & Social Media Carissa D. Long • clong@inbar.org Graphic Designer & Photographer Vincent Morretino • vmorretino@inbar.org Legislative Counsel Paje E. Felts • pfelts@inbar.org Director of Special Projects Section & Committee Liaison Maryann O. Williams • mwilliams@inbar.org Administrative Assistant Barbara L. Mann • bmann@inbar.org Local & Specialty Bar Liaison Catheryne E. Pully • cpully@inbar.org Administrative Assistant Kimberly D. Latimore • klatimore@inbar.org Director of CLE Christina L. Fisher • cfisher@inbar.org Assistant to Director of CLE Kassandra Adams • kadams@inbar.org Section & Committee Liaison Melanie Zoeller • mzoeller@inbar.org Director of Meetings & Events Ashley W. Higgins • ahiggins@inbar.org Membership Records & Technology Coordinator Kevin M. Mohl • kmohl@inbar.org Bookkeeper & Convention Registrar Sherry Allan • sallan@inbar.org Receptionist Chauncey L. Lipscomb • clipscomb@inbar.org

ental health is a real issue that bar associations and judicial conferences are only beginning to discuss openly. This emerging enlightenment promises to shed warm light on a once shadowy, taboo topic. A recent example of this movement appeared when Ontario Bar Association President Orlando Da Silva spoke publicly about his personal battles with depression and a related suicide attempt (http://tinyurl.com/OntarioBar-prez-mental-health). My comments at the 2014 ISBA Annual Meeting and in the ISBA Prez Blog in November (“Adapt & Overcome”) featured my own relatively recent experience of discovering significant executive function impairment due to attention deficit disorder (ADD). The world population has always included mentally impaired people (in the Bible, see Saul in 1 Samuel 16 and Nebuchadnezzar in Daniel 4). On some level everyone is impaired relative to someone else because we all have different mental capacities. Some of us function sufficiently well to pass medical board or bar exams without treatment, but we function below our potential because of hidden mental hindrances. I have the pleasure of knowing wonderful Indiana lawyers who battle autism, bipolar disorder and other impairments that affect executive mental function significantly. They work beside you, across the courtroom from you and in the state agencies that regulate your clients’ lives and businesses. If you cannot imagine a schizophrenic lawyer functioning effectively in any work environment, consider the example of Elyn Saks, professor of law (http://tinyurl.com/living-withschizophrenia). A profession fails in a mission to serve its members and the public if it does not try to detect mental health impairment and offer effective assistance before its impaired members flounder and spin out of control. Some impaired lawyers, like me, muddle through life without realizing that we have an arm tied behind our backs and never think to seek treatment. Too many struggle so intensely with impairment that they seek relief in all the wrong places, such as in gambling, pornography, alcohol and drugs.

If you have practiced law for more than a decade, you can probably think of multiple lawyers who showed signs of mental health impairment, and you may remember some tragic demises. An old friend from my days in the ISBA Young Lawyers Section died several years ago reportedly from a drug overdose. In one of my guardian ad litem appointments as a young lawyer, a Harvard Law School graduate defrauded a woman who was 90 years of age or older to finance the cocaine habit that eventually killed him just after he lost his license to practice law and just before he reached middle age. So what can you do as a rank and file legal professional? If you are a member of the Indiana bar, you can volunteer to help impaired lawyers and judges find treatment and recovery through the Judges & Lawyers Assistance Program (http://www.in.gov/ judiciary/ijlap). You can explore ways to help the Indiana State Bar Association Wellness Committee in its constant search for new ideas and strategies to help members improve physical and mental health. If you are interested in advocacy for disabled legal professionals and their clients, the Outreach & Inclusion Subcommittee of the State Bar’s Membership Committee would welcome interest in forming a disability group that could become a new committee or section. If none of these service opportunities appeals to you, please help carry some water by refraining from making disparaging jokes and remarks about people who are struggling with such disrespectful labels as “nuts,” “crazies” or “psychos.” Those comments perpetuate oppressive stigmas that discourage disabled people from seeking relief from the pain and anguish that stems from secret battles of the mind. Who knows – that mind may be your own.

PRESIDENT’S PERSPECTIVE JEFF R. HAWKINS jeffh@hawkinslaw.com 2014-2015

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At-Large, one position. (Members from any district may apply.)

ny lawyer member of the Indiana State Bar Association who desires to be considered for nomination to a vacancy on the Board of Governors should convey that interest to the chair of the Association’s Nominating Committee, Jim Dimos of Indianapolis.

Letters of interest and résumés, not longer than two pages (with information as to leadership positions or other activity within the State Bar as well as other affiliations) should be sent to Jim Dimos, Chair, ISBA Nominating Committee, Indiana State Bar Association, One Indiana Square, Suite 530, Indianapolis, IN 46204. The deadline for receipt is April 1.

Members who are nominated will face an election at the annual meeting of the Association Assembly to be held in French Lick in October, after which a two-year term will commence.

Court of Appeals adopts new opinion format

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District vacancies for the term October 2015 through October 2017 are as follows: District 1, representing Lake County; District 4, representing Allen County; District 5, representing the counties of Benton, Boone, Carroll, Cass, Clinton, Fountain, Howard, Jasper, Montgomery, Newton, Tippecanoe, Warren and White; District 10, representing the counties of Adams, Blackford, Delaware, Grant, Henry, Huntington, Jay, Madison, Miami, Randolph, Tipton, Wabash, Wayne and Wells; and

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he Indiana Court of Appeals has adopted a new, readerfriendly format for all opinions and orders, effective Jan. 26. The format employs a new, larger typeface (Calisto MT); paragraph numbering for easy reference; ragged-right copy justification; and line spaces instead of indents to mark new paragraphs. The changes are based on typography industry best practices and are meant to optimize both

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print and online reading experiences. The new format is also more useful for optical character recognition, which is used to make scanned documents searchable. For illustration, view the new format here: http://tinyurl.com/ new-op-format. “Mobile devices and computers are the coin of the realm for news and information,” Chief Judge Nancy H. Vaidik said. “It makes sense to respond to that reality with an opinion format that’s easy to read on paper or screen.” Besides the new appearance, each element of the new format will build an underlying structure into all opinions and orders, which is crucial for some assistive technologies that “read” documents aloud for some users. The new format was developed by State Court Administration.

BENCH & BAR NEWS

Nominations sought for ISBA board positions

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ISBA welcomes 25 lawyers to LDA

ASSOCIATION NEWS

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he Indiana State Bar Association recently announced the 2015 class of its Leadership Development Academy (LDA). The lawyers are accomplished legal practitioners who have been admitted to practice for less than 15 years. The LDA is a statewide leadership program established to empower and develop lawyers to be informed, committed and involved so that they may fill significant leadership roles in bar associations, local communities and organizations. The 25 members will participate in five sessions featuring professional facilitators and prominent speakers from various disciplines to inform participants about leadership principles and techniques, the importance of effective leaders in organizations to maximize efficiency and effectiveness, and the

challenges and rewards of leadership in action. Members of the 2015 Leadership Development Academy are: James T. Acklin Jr., Indianapolis, State Public Defender’s Office; Jennifer Bays Beinart, Zionsville, Bays Family Law; Mark E. Bloom, Fort Wayne, Beckman Lawson; Melissa J. Buckley, Indianapolis, law clerk for Justice Steven H. David, Indiana Supreme Court; Catherine A. Clements, Indianapolis, Faegre Baker Daniels; Colin E. Connor, Indianapolis, Plews Shadley Racher & Braun; Traci M. Cosby, Indianapolis, law clerk for Justice Robert D. Rucker, Indiana Supreme Court; Sarah W. Cudahy, Indianapolis, Indiana Education Employment Relations Board; Charles B. Daugherty, Shelbyville, McNeely Stephenson; Sarah B. Fandrey, Evansville, Bowers Harrison; Randy M. Fisher,

Fort Wayne, Leonard Hammond Thoma & Terrill and Public Defender’s Office; Michelle C. Goodman, Indiana Judicial Center, Indianapolis; Katherine R. Gould, Fort Wayne, Burt Blee Dixon Sutton & Bloom; Rhea M. JonesPrice, Vincennes, Joe Black Law Office; Trent A. McCain, Merrillville, McCain Law Offices, P.C.; Sara McClammer, Indianapolis, Bennett & McClammer; Justin R. Olson, Indianapolis, law clerk for Chief Justice Loretta H. Rush, Indiana Supreme Court; Abbigail A. Rohmiller, Richmond, Amy Noe Law; Greg A. Schrage, Noblesville, Church Church Hittle & Antrim; Elizabeth A. Shuster, Indianapolis, Woodard Emhardt Moriarty McNett & Henry; Freedom S. Smith, Indianapolis, Ice Miller; Sarah N. Snoeberger, Lafayette, Stuart & Branigin; Ala’a Wafa, Indianapolis, Cummins Inc.; Sue E. White, Covington, The Law Office of Sue White; and Jordan P. Williams, Merrillville, NiSource Corporate Services Company.

ISBA members: Update your addresses email & postal online at www.inbar.org

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The 2015 ISBA Leadership Development Academy Class

JAMES T. ACKLIN JR. Indianapolis

JENNIFER BAYS BEINART Zionsville

MARK E. BLOOM Fort Wayne

MELISSA J. BUCKLEY Indianapolis

CATHERINE A. CLEMENTS Indianapolis

COLIN E. CONNOR Indianapolis

TRACI M. COSBY Indianapolis

SARAH W. CUDAHY Indianapolis

CHARLES B. DAUGHERTY Shelbyville

SARAH B. FANDREY Evansville

RANDY M. FISHER Fort Wayne

MICHELLE C. GOODMAN Indianapolis

KATHERINE R. GOULD Fort Wayne

RHEA M. JONES-PRICE Vincennes

TRENT A. MCCAIN Merrillville

SARA MCCLAMMER Indianapolis

JUSTIN R. OLSON Indianapolis

ABBIGAIL A. ROHMILLER Richmond

GREG A. SCHRAGE Noblesville

ELIZABETH A. SHUSTER Indianapolis

FREEDOM S. SMITH Indianapolis

SARAH N. SNOEBERGER Lafayette

ALA’A WAFA Indianapolis

SUE E. WHITE Covington

JORDAN P. WILLIAMS Merrillville


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By Chief Justice of Indiana Loretta H. Rush

Indiana courts: working to fulfill the promise of justice

STATE OF THE JUDICIARY

To a joint session of the Indiana General Assembly on Jan. 14

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hat an honor it is for me to stand before you, the men and women of the Indiana General Assembly, in these historic chambers on behalf of my colleagues on the Supreme Court; Chief Judge Vaidik and our hardworking Court of Appeals; and the heart and soul of the judicial branch – our trial court judges. It is on behalf of all of us that I offer you this address on the condition of Indiana’s courts. In countless ways, the sound current state of our courts is attributable to former Chief Justice Brent Dickson – a man of integrity whose calm, civil and thoughtful approach was instrumental in leading our judiciary during the last several years – a period of much change. Please join me in showing our appreciation for Justice Dickson.

The “condition of the courts” is best understood within a context of purpose: Is our system of justice in Indiana working for the people and businesses it promises to serve? As our Indiana Constitution set forth almost 200 years ago, our courts must be open to every person for every injury – so that citizens’ conflicts, whether criminal or civil, are decided in an impartial forum, at an efficient price, with fair outcomes. Today you will hear several of those citizens’ stories that speak to this purpose. Your Indiana Supreme Court does much more than decide cases and write opinions. The Court is charged by the very constitution of this state with critical administrative responsibilities and preservation of the rule of law. Our duties have grown tremendously over the course of the last three decades

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and will continue to grow through this new year. • On Dec. 5, Justice Rucker continued his efforts to provide access to justice to litigants with limited English proficiency by swearing in 19 new certified and qualified court interpreters, bringing the total to 107 – including for the first time an American Sign Language interpreter. • By the end of 2014, under Justice Massa’s leadership, the Court had expanded its electronic case management system to 217 courts in 51 counties, representing nearly 60 percent of the 1.5 million new cases filed in Indiana courts annually. • Recognizing that the path to justice can be tough for unrepresented Hoosiers, the Court followed Justice Dickson’s vision to provide legal services to the poor by adopting an innovative rule requiring all attorneys to report their pro bono volunteer legal services. • Under Justice David’s leadership, the Juvenile Detention Alternatives Initiative has increased from eight to 19 Hoosier counties in the last two years, covering 56 percent of the state’s at-risk youth. You will hear more about this remarkable initiative in a few moments. Just as independence is vital to judicial decision making, collaboration is essential to our daily operations. Our partnerships with the General Assembly and Executive Branch are woven throughout court administrative functions. My judicial colleagues and I are grateful for these valuable partnerships.

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Three areas deserve special attention today: improving public safety, strengthening Hoosier families, and modernizing our courts in order to fulfill the promise of justice in Indiana.


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Increasing public safety In terms of public safety, the courts are enthusiastic partners in implementing the legislature’s masterful criminal code reform. There is every reason to believe that the new sentencing philosophy expressed in HEA 1006 will reduce recidivism (or re-offending), make communities safer, save money and improve our criminal justice system as never before. Success and validation of these reforms will require all three branches of government to work together. We are ready. We have already trained probation officers, judges and their staffs in record numbers this past year. We are adopting new probation standards and administering grants to our counties to ensure safe, effective and efficient community supervision. With people like Aaron Louden as probation officers, we are ready to stand with you to meet public safety needs. The General Assembly determined DNA should be collected from convicted felons, but without a central record showing whether the sample had been collected, officers like Aaron had to duplicate efforts. The folks in Jackson County where he works won’t be surprised by this – he thought of a solution and recommended the courts include DNA data in our Offender Management System. We took his great suggestion, and last June our court computer system, called INCITE, began showing whether a DNA sample had previously been collected from an offender. Yes, this saves State Police, their lab and corrections time and money – but ultimately it is about public safety. Probation Officer Aaron Louden is in the gallery today, and I am pleased to publicly say, “Thank you.”

departments is vital to public safety. The Supreme Court and its agencies continue to develop technology for exactly that reason. And these enhanced court technologies also benefit law enforcement and executive branch agencies.

protection orders immediately available to local, state and federal police. This system also notifies the victim by email or text message when the order is issued. By the close of 2014, these critical notices were issued 96,000 times.

• The BMV can make licensing decisions, thanks to more than 15,000 weekly court notices.

Another important piece of criminal justice reform involves our children. The Court partnered with the Department of Child Services, Department of Correction and the Indiana Criminal Justice Institute to implement the Juvenile Detention Alternatives Initiative. We refer to it as “JDAI.” This revolutionary program ensures juvenile offenders are in the right placement, for the right reasons and for the right length of time. The end result is fewer children locked up, lower recidivism, fewer arrests and fewer children made to stand trial

• The Department of Revenue can send tax warrants to clerks electronically. • And police officers can issue electronic tickets. All this becomes possible when courts can collect and integrate offender and court data information. The Protective Order Registry for victims of violence is an excellent example of court technology improving public safety. The Registry saves lives by making

(continued on page 13)

The ability to access and share offender information between courts, corrections and probation RES GESTÆ • JANUARY/FEBRUARY 2015

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STATE OF THE JUDICIARY continued from page 11 in the adult system. Wayne County’s Judge Darrin Dolehanty, when speaking of JDAI, reported: “The most exciting part for me is the tri-county partnership we have developed with neighboring Henry and Delaware counties. We have already started sharing resources and data, and hope to serve as an example to the rest of the state.” I am not surprised by our judges’ willingness to embrace cross-county partnerships to ensure statewide success. But I sure am proud. In a similar vein, Indiana Problem Solving or Specialty Courts continue to be one of our greatest success stories. Participants in these courts take part in intensive treatment programs directly under court supervision. These courts address the unique needs of offenders with drug addictions and mental illness instead of simply

S

leaving the offenders untreated and sitting in a jail cell. They yield tangible results – including workforce development and preserving families – and are successful because of collaboration between the courts and their communities, businesses, prosecutors, defense attorneys, service providers and law enforcement. The Indiana Supreme Court has certified 68 such specialty courts. The fastest growing are Veterans Courts. There are currently 12 in operation in Indiana, with more in the works. According to the National Center for Veterans Analysis & Statistics, Indiana has approximately 476,000 veterans (one of the highest per capita in the nation) – a number of whom find themselves in our courts following their service to our country.

Floyd County’s Judge Maria Granger, a leader in the implementation of Veteran Courts, told me Specialist Christopher Bunch’s story. His story illustrates all that is good in our Hoosier court system – justice tempered with mercy and based upon the principles of reformative justice as set forth in our Indiana Constitution. Specialist Bunch served our country honorably for six years. He was assigned to Company C, 1st Battalion, 152nd Infantry Division. In 2008, he was deployed to combat in Operation Iraqi Freedom where he provided convoy security for route patrols in Tikrit, Iraq. In his own words, One of our missions was to recover equipment after a vehicle rollover incident that killed one of our comrades. When we got back home, the mission was still taking a toll on us.

(continued on page 14)

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STATE OF THE JUDICIARY continued from page 13 Some of the soldiers that were part of that mission even committed suicide. I didn’t realize at that time that there was something wrong with me, but my family could see it.

Specialist Bunch brought home several commendations and awards. But he also brought home severe post-traumatic stress, anxiety

and night terrors from his war experiences. He struggled, using alcohol and prescription medications, to cope with life. Christopher said, “It took me five years to get into trouble.” He was arrested for threatening family members to get his pain medication. He admitted, “Going

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to jail was an awakening.” Christopher was in the Scott County Jail, awaiting trial for charges of felony Intimidation and Disorderly Conduct when the VA approached him. Christopher, his lawyer, the prosecutor and the judge agreed that Veterans Court was the best approach to justice for him, his family and the community. While participating in Veterans Court, he completed the VA substance abuse treatment program and then moved into transitional housing and a relapse prevention program with mental health treatment for post-traumatic stress. All of his treatment was paid using the service member benefits that he had earned. Ultimately, Specialist Bunch was reunited with his family. He has been substance-free for more than a year and no longer requires pain medication. Christopher is once again a supportive partner to his wife, a role model for his sons and a productive member of his community, working as a finish carpenter. He says, I don’t know where I would be today without Veterans Court. Judge Granger and her team of mentors gave me a chance to really heal – something I hadn’t been able to do on my own. The resources and contacts that I have made in the court have been lifesavers.

On Nov. 4, Christopher graduated from Veterans Court. Please welcome Specialist Christopher Bunch and his judge, Maria Granger.

Strengthening our families In addition to enhancing public safety, Indiana courts strengthen our Hoosier families. To that end, hundreds of Indiana judges ask daily: “What can I do to strengthen the families that come before me and improve the lives of children?” (continued on page 16)


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STATE OF THE JUDICIARY continued from page 14 Being in court reflects a particularly vulnerable time – both personally and economically. The sooner a citizen can go to court and resolve differences with creditors, settle disputes with the landlord, obtain child support rulings or be made whole in a suit over injuries, the sooner they can get back to work – and back to their family. Stable families lead to increased graduation rates, which translates into a more educated and skilled workforce, which in turn translates into a healthier economy. Justice for these children and families requires more than just issuing rulings. Hoosier judges are committed to the larger goal of strong families by working within their communities on the issues that brought the families to court; looking at what is working around the country in terms of evidencebased decision making; and

searching for ways to improve safety, graduation rates and workforce development for vulnerable youth. 2014 represented the first full year of operation of the Children’s Commission, which Gov. Pence signed into law. This collaboration includes leadership from all three branches of government, working on the toughest issues facing our children, including sex trafficking; the toll that methamphetamine and heroin use takes on our families; infant and child deaths; improving educational outcomes for vulnerable youth; and overcoming homelessness. I have never left a Children’s Commission meeting without new insights about the dangers our children face along with a shared resolve of work to be done. Many of the hardworking Commission and Task Force members are here today: Senators

Holdman, Lanane, Broden, Yoder and Head, and Representatives Riecken and Mahan, and Attorney General Zoeller. I am personally appreciative of their hard work, and I know you are, too. There are also many examples of how your judiciary strengthens Indiana families, such as Family Courts, the Mortgage Foreclosure Trial Court Assistance Project, child support and parenting time guidelines, mediation and parenting programs. On National Adoption Day this past November, 100 children joined new families during special open adoption proceedings celebrated in trial courts across the state. Our Court handed down an order opening the proceedings to allow photographs, including media. This was done to allow families to capture that moment they legally came together – and also to promote the need for building healthy families through adoption. Judge Mary Willis of Henry County asks each child adopted in her court to pound her gavel and leave a mark on her bench. She sees those marks each day, and they remind her of the importance of strong families. Court initiatives promoting guardians ad litem and Court Appointed Special Advocates (CASA) have produced thousands of volunteers. Those very special individuals, who represent abused and neglected children in legal proceedings, donated more than 400,000 hours last year to advocate on behalf of more than 19,000 Indiana children. In Allen County, Judge Charles Pratt and others gave all foster children a book and told them it was to celebrate their future. One 15-yearold boy started crying and said no one had ever told him that before. How long should that 15-yearold in foster care have to wait for

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a permanent home? Under Judge Pratt’s leadership the Court last year implemented time standards and performance measures to all Indiana courts geared toward ensuring permanent, safe and timely homes for these children. We have talked about our children. Now what about our aging parents? After “liberty and justice for all,” one of our society’s most treasured tenets is “honor thy mother and father.” But for each member of the Greatest Generation who receives the tender care of family, there is another elderly citizen who has no one to protect them from abuse and neglect. Last year, Adult Protective Services received 40,000 reports of elder abuse in Indiana.

a public portal so that hospitals and health care providers, banks, law enforcement and others who may encounter emergency situations can quickly and accurately determine whether someone is subject to a guardianship and act accordingly. Just as your judiciary works to improve the lives of children and families, we will also continue to work to ensure the safety and finan-

cial security of our mothers and fathers.

Modernizing court operations So what is new on the horizon for the judicial branch in 2015? First, I bring you very exciting news from the Indiana Supreme (continued on page 18)

The population over age 65 in our state will more than double in the next several decades. Some of those individuals will need help in managing their affairs. And in many cases, this help will come through the appointment of a guardian. Phillip, a developmentally disabled elderly man, collapsed at a gas station in Richmond. Doctors at Reid Memorial Hospital said he needed open-heart surgery, but no family could be located. A guardian was assigned to assist with his medical emergency, and now he is in a group home, thriving and involved in Kiwanis. There are many stories like Phillip’s. In 2014, thanks to the initiative of Judges Susan Henderson of Fountain County and Diane Schneider of Lake County, Indiana became the first state in the nation to create a statewide Guardianship Registry. The Registry, which went online in May, began in just four counties and grew to 10 by the end of the year. Marion County will come online this month. In addition to offering clerks, courts and practitioners real-time case management tools, the Registry also has RES GESTÆ • JANUARY/FEBRUARY 2015

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STATE OF THE JUDICIARY continued from page 17 Court technology team led by Justice David and Judge Paul Mathias – 2015 will be the year that we begin the move to statewide electronic filing in Indiana courts. E-filing will transform the way Hoosiers interact with the courts. It will allow litigants, attorneys, businesses and other government agencies to interact with the courts electronically. What does this mean? Many examples of court programs discussed this afternoon depend on the ability to enter, store, retrieve and share information in a timely and cost-effective way. Imagine the hours and costs required to shepherd tens of millions of pages of paper as they are filed and refiled, delivered and mailed, stored and shuffled, copied and recopied, and on and on throughout Indiana courts and agencies each year! We’re excited to roll out e-filing this year, and we’re asking for your assistance to make it successful. Our judiciary operates on less than 1 percent of the total state budget. We are fully committed to fiscal responsibility with taxpayer dollars, and a state investment in court technology, including electronic filing, offers us the best

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option for improving our courts while conserving our limited financial resources. Pennies of additional investment now will reap dollars of savings in future records management costs. And if our Indiana judicial system is to be on the right course, we must act now. Second, to fulfill our promise of justice for businesses in Indiana, we are looking at improving how we process complex civil cases. The Court is currently working on the development of a business court model focused on complex commercial litigation. Creating this specialty court will bring together judges experienced in handling business and commercial law cases to preside over a specialized docket with business-specific resources. Our goal in this endeavor, along with the introduction of electronic filing, is to promote an attractive, predictable and consistent climate for doing business in Indiana. Many thanks to Justice David, Judge Heather Welch, Judge Craig Bobay and their committee for all their work here. A third endeavor on the Court’s horizon is an initiative that will refine how we determine whether those arrested on low-level offenses should sit in jail awaiting trial. The Court authorized pilot programs starting this year to improve the way courts make pretrial release decisions. New practices can yield wide-ranging benefits, such as significant taxpayer savings for jail operations; improving arrestee appearance rates at trial; minimizing wealth-based disparities as to pretrial release; and enabling people to return more quickly to family and work while ensuring public safety. I appreciate the vision and work of Justice Dickson and this hardworking committee chaired by Judge John Surbeck and consisting of judges,

probation officers, lawyers and legislators, including Sen. Brent Steele and Rep. Jud McMillin. Modern court systems must bring both vision and action to the pursuit of justice – and I have highlighted today just a few examples of what our courts can accomplish. We are regularly confronted with new and increasingly challenging problems, not just in our decision making, but in our operations and the programs we administer – and those, too, are part of our responsibility and constitutional mission. I firmly believe the “state of the judiciary” is best measured against its ultimate purpose: Is our system of justice in Indiana working for the people and businesses it promises to serve? Facts, figures and statistics are only meaningful if they support this end. And by that measure your Indiana judiciary is strong – and over the next year we will grow stronger still, taking on new initiatives to stay modern and responsive as we strive to fulfill the promise of justice in Indiana. I am keenly aware, along with all of my judicial colleagues, that we have a privilege beyond description – and the responsibility of a lifetime – to labor in the cause of justice. These remarks reflect our vision for the upcoming year to pursue justice for all Hoosiers with energy and innovation. Rest assured, your Indiana judiciary is vibrant and ever poised to meet the challenges of the future.


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By Donald R. Lundberg

Lawyer discipline in 2014: an annotated report from the front lines

ETHICS CURBSTONE

F

rom this observer’s perspective, 2014 was not atypical in lawyer discipline. Here is an annotated statistical report on the actions of the Supreme Court in lawyer discipline matters. The procedural rules governing the lawyer discipline process are located in Indiana Admission & Discipline Rule 23. The substantive professional conduct rules are located in the Indiana Rules of Professional Conduct.

Final orders of disciplinary disposition 42 published final discipline dispositions: • 23 cases by Court-approved agreements for discipline 22 by order 1 by per curiam opinion

• 1 case on consent to discipline • 14 cases after a contested hearing before a hearing officer 9 by order 5 by per curiam opinion

• 3 cases by reciprocal discipline • 1 published order of dismissal

Notes: 1. Conditional agreements for discipline, governed by Admis. Disc. R. 23(11)(c), are stipulated agreements between the Disciplinary Commission and the respondent lawyer to resolve a case after the Commission files a complaint. They can be a bitter pill to swallow because the respondent lawyer must state under oath that he knows that if the proceeding Donald R. Lundberg were prosecuted the Barnes & Thornburg LLP respondent could not Indianapolis, Ind. successfully defend

donald.lundberg@BTLaw.com

20

RES GESTÆ • JANUARY/FEBRUARY 2015

himself. The Court is not required to accept a conditional agreement for discipline (hence the word “conditional”). The Court may accept the agreement, reject it or propose an alternate disposition that it would approve. I have written before about conditional agreements. “The Not-So-Confidential Conditional Agreement for Discipline,” Vol. 57, No. 9 Res Gestae 30 (May 2014). 2. Consents to discipline, governed by Admis. Disc. R. 23(17), are another way of resolving discipline cases without a hearing before a hearing officer. They are similar to an open plea in a criminal case. Like a conditional agreement for discipline, the respondent lawyer who consents to discipline must inform the Court that he could not successfully defend himself and is willing to accept whatever disciplinary sanction the Court metes out. A consent to discipline is scary because the lawyer is throwing himself at the mercy of the Court with no downside protection.

them in the past year. “Law Tiger, Hidden Dragon: New Uncertainties with Lawyer Advertising,” Vol. 57, No. 10 Res Gestae 23 (June 2014); “Odds and Ends: Some Recent Cases of Interest,” Vol. 58, No. 2 Res Gestae 23 (September 2014). The two other cases decided on per curiam opinions were suspensions without automatic reinstatement. Matter of Atkins, 16 N.E.3d 950 (2-year suspension) and Matter of Stern, 11 N.E.3d 917 (18-month suspension). But the Court also ordered similar suspensions by published order. See, e.g., Matter of Gardner, 5 N.E.2d 1163 (5-year suspension); Matter of Lehman, 3 N.E.3d 536 (2-year suspension); and Matter of Page, 8 N.E.3d 199 (2-year suspension). Although there are many cases decided by published order that I wish the Court would have developed more fully in per curiam opinions, it appears that the Court chooses to write a per curiam opinion when it believes the bench, the bar or the public would benefit from a more complete understanding of the case.

3. Why the Court decides some cases by brief published order and others by per curiam opinion is a matter of speculation. Per curiam opinions generally include a more fulsome discussion of the issues in a case than published orders. It appears that the Court will write a per curiam opinion when it disbars a lawyer. It did so in 2014 in its only disbarment case. Matter of Geller, 9 N.E.3d 643. But it also did so in one case where the sanction was a private reprimand and one case where the sanction was a public reprimand. Matter of Anonymous, 6 N.E.3d 903 (private reprimand “Law Tigers” case) and Matter of Truman, 7 N.E.2d 260 (public reprimand). Both cases were clearly of interest to the practicing bar. I wrote about both of

4. The Court is usually of one mind in lawyer discipline cases, but there are occasional dissents – sometimes on the merits (although not in 2014) and more often on the appropriate disciplinary sanction. In Matter of Page, 8 N.E.3d 199, Justice Dickson dissented to a 2-year suspension, favoring disbarment. In Matter of Hurtt, 19 N.E.2d 252 (180-day suspension, 90 days active with balance stayed with two years of probation); Matter of Benson, 9 N.E.3d 659 (180 days probation with automatic reinstatement); and Matter of Stern, 11 N.E.3d 917 (18-month suspension without automatic reinstatement) (Justice David dissented, favoring more severe discipline without saying what he thought it should be). Dissents do not always favor


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harsher discipline. In Matter of Geller, 9 N.E.3d 643, Justice Massa dissented in favor of a 3-year suspension without automatic reinstatement instead of disbarment that the majority ordered. 5. There was one published order finding in favor of the respondent lawyer and dismissing the case. Matter of Devlin, 4 N.E.2d 1180. There could have been more dismissals decided by unpublished order. We just don’t know. The Court sometimes finds the Commission did not prove its case and dismisses without publishing an order or writing an opinion. It is unclear why it chooses to publish an order of dismissal in some cases, but not in others. Presumably, it wanted the public to know what it did in Devlin, although that might not settle too well with the respondent who was vindicated.

Disciplinary sanctions ordered 41 lawyers sanctioned: • 1 published order of private reprimand

• 10 suspensions with conditions of probation 1 30-day suspension, all stayed subject to one year of probation 1 30-day suspension, all stayed subject to probation imposed in Kentucky 1 60-day suspension, all stayed subject to two years of probation 1 180-day suspension, all stayed subject to two years of probation 1 180-day suspension, 90 days actively served, balance stayed subject to three years of probation 2 6-month suspensions, all stayed subject to 18 months of probation 1 6-month suspension, all stayed subject to two years of probation 1 6-month suspension, 60 days actively served, balance stayed subject to three years of probation 1 6-month suspension, 120 days actively served, balance stayed subject to three years of probation

• 1 disbarment • 1 barred from practicing in Indiana

Notes: 1. The Court resolved one case with an order of private reprimand. Matter of Anonymous, 6 N.E.3d 903. This was the Law Tigers case that I wrote about at some length, cited above. This does not mean there was only one case decided by private reprimand. Some private reprimands could have been issued by unpublished order. 2. Private reprimands are private only in the sense that the disposition is usually not published. However, the docket sheet in all lawyer discipline cases is a matter of public record and will reflect that a case was concluded by a private reprimand. Moreover, there will be an indication on the privately reprimanded lawyer’s entry on the Roll of Attorneys that reflects the lawyer has prior discipline, including a link to the Clerk’s (continued on page 22)

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ETHICS CURBSTONE continued from page 21 online docket sheet for the disciplinary case. 3. Another form of discipline that does not result in a published order is a private administrative admonition (“PAA”). The Commission usually reports the number of PAAs (and the number of private reprimands) in its annual report. The Commission has not reported its 2014 statistics yet. PAAs are governed by Admis. Disc. R. 23(a) and (b). A PAA can be issued only with the consent of the respondent lawyer before a formal charging complaint is filed. It is only available in cases involving minor misconduct where the anticipated final discipline would be no greater than a public reprimand. Minor misconduct is defined negatively by the description of several types of cases that are not eligible to be considered minor. The Commission must send a copy of the letter of private admonition to the Supreme Court, and the Court has 30 days to object. If the Court does not object, the letter of admonition is issued by the executive secretary.

4. Orders of suspension longer than six months must be without automatic reinstatement. Admis. Disc. R. 23(3)(a). This means that the lawyer must apply for reinstatement and prove fitness to practice law by clear and convincing evidence at the end of the suspension period. Reinstatement proceedings are governed by Admis. Disc. R. 23(4) and (18). 5. Suspensions for six months or less can be with or without automatic reinstatement. For example, in 2014 one 180-day suspension was with automatic reinstatement, and another was without automatic reinstatement. Compare Matter of Benson, 9 N.E.3d 659 with Matter of Stern, 11 N.E.3d 917. 6. Suspensions with some or all of the suspension time stayed in favor of a term of probation are a relatively recent development and mostly grow out of the availability of services to lawyers through the Indiana Judges & Lawyers Assistance Program. Probation is regulated by Admis. Disc. R. 23(17.1) through (17.4).

7. In 2014, there were two orders resolving probation revocation proceedings. In one, the Court revoked probation and placed the lawyer on indefinite suspension without automatic reinstatement. In the other, the Court extended the lawyer’s term of probation for two more years. 8. Disbarment is a permanent exclusion from the practice of law in Indiana. Reinstatement from an order of disbarment is not possible. Admis. Disc. R. 23(3)(a). Suspensions longer that three years are very unusual. In 2014, the Court ordered one lawyer suspended for five years. Matter of Riga Gardner, 5 N.E.2d 1163. Five-year suspensions are extraordinarily rare, with the Court usually opting for disbarment. 9. The Court is not limited to its typical sanctions, although Admis. Disc. R. 23(3)(a) might suggest otherwise. In Matter of Greene, 6 N.E.3d 947, the respondent, an Illinois lawyer, who was not regularly admitted to practice in Indiana, was prohibited from practicing law in Indiana in the future until further order of the Court. Normally, discipline orders against lawyers admitted in other jurisdictions are reported to the other jurisdictions where the lawyer is admitted. Most states have a reciprocal discipline procedure that creates a streamlined approach to securing a similar disciplinary sanction in the lawyer’s other states of admission. Indiana’s rule, which is typical, is at Admis. Disc. R. 23(28). The Indiana sanction in Greene was likely going to present a challenge to Illinois using its normal reciprocal discipline process. After all, it would hardly be a problem for Greene if Illinois also said he could no longer practice in Indiana. Thus, on Oct. 16, 2014, the Illinois (continued on page 24)

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RES GESTÆ • JANUARY/FEBRUARY 2015


7th Annual March Against Hunger A friendly “food drive” competition! March 1-31, 2015

Visit www.inbar.org to sign up to participate!

The Indiana State Bar Association is proud to sponsor the March Against Hunger, a friendly “food drive” competition to collect both non-perishable food and monetary donations for Indiana’s 11 regional food banks.

Sponsored by the Indiana State Bar Association in partnership with the Office of the Indiana Attorney General and Feeding Indiana's Hungry.


RG 01-02.15_RG 09.05 2/6/15 11:26 AM Page 24

ETHICS CURBSTONE continued from page 22 Attorney Registration & Discipline Commission filed an original discipline complaint against Greene, alleging directly (not reciprocally) that he engaged in misconduct as an Illinois lawyer. That case is pending.

Accepted resignations under investigation or charges • 11 resignations accepted

Notes: 1. Similar to a consent to discipline or a conditional agreement for discipline, a lawyer facing a discipline investigation or formal charges of misconduct may resign from the bar. This procedure is found in Admis. Disc. R. 23(17) and must include the same sworn admission to the allegations under investigation or charged in the complaint. The affidavit of resigna-

24

RES GESTÆ • JANUARY/FEBRUARY 2015

tion is kept under seal by the Court and is not a matter of public record. A resignation precludes the lawyer from applying for reinstatement for five years, and the reinstatement process is the same discussed earlier. The Court accepts resignations with a brief order, finding that the affidavit of resignation is in proper form. 2. Resignations are typically resorted to by respondents in cases where serious discipline is expected, but not necessarily. A lawyer who might expect much less discipline than the equivalent of a 5-year suspension might nonetheless choose to resign for reasons known only to a lawyer. Because orders accepting resignation do not discuss the nature of the case and the affidavits of resignation are sealed, there is no readily available public record of the reason lawyers resign. At the

most, if a lawyer resigns after a formal complaint of misconduct is filed, the charging complaint is a public record available from the Supreme Court Clerk’s office and would generally shed some light on the nature of the case.

Non-cooperation • 11 interim suspensions for noncooperation • 8 non-cooperation suspensions converted to indefinite suspensions • 1 reinstatement after cooperation

Notes: 1. Cooperation with the lawyer discipline process is mandatory. Indiana has robust procedures for dealing with non-cooperative lawyers. Initially, a lawyer who disregards his duty to respond in writing to a grievance will be sus-


RG 01-02.15_RG 09.05 2/6/15 11:26 AM Page 25

pended on an interim basis on the Commission’s application for an order of suspension and failure to show cause after the Court orders the lawyer to do so. Admis. Disc. R. 23(10)(e) and (f)(1) through (2). The suspension will be lifted if the lawyer cooperates and the executive secretary certifies that cooperation to the Court. Admis. Disc. R. 23(10)(f)(3). If the lawyer does not cooperate after six months of being suspended, the Court, on the Commission’s motion, can convert the lawyer’s suspension to an indefinite suspension from practice. Admis. Disc. R. 23(10)(4). Thereafter, like any indefinitely suspended lawyer, the lawyer will have to go through the normal reinstatement process. 2. The 11 interim suspensions for non-cooperation involved eight unique lawyers, because four of them dealt with the same lawyer. That lawyer was also the subject of one of the orders converting his interim suspension to an indefinite suspension from practice.

10 days of the finding of guilt. Admis. Disc. R. 23(11.1)(1) and (2). Unpublished orders clarify that a “crime punishable as a felony” includes a conviction of an A misdemeanor pursuant to alternative misdemeanor sentencing to a guilty finding of a D felony charge. See I.C. §35-50-2-7. 2. There is a separate category of interim suspension under Admis. Disc. R. 23(11.1)(b), which the Commission can seek if twothirds of the Commission members conclude that “the continuation of the practice of law by an attorney during the pendency of a disciplinary investigation or proceeding my pose a substantial threat of harm to the public, clients, potential clients, or the administration of justice.” There were none of these in 2014. 3. As noted earlier, some active disciplinary suspensions six months

or shorter and all suspensions longer than six months require that the lawyer prove fitness to be reinstated by clear and convincing evidence. The criteria for proving fitness for reinstatement are in Admis. Disc. R. 23(4)(b). Three previously suspended lawyers successfully completed that process in 2014.

Other proceedings • 3 lawyers held in contempt $1,000 fine and disbarment $500 fine $300 fine

Notes: 1. There is no express provision in Admis. Disc. R. 23 about the use of contempt. It hardly matters since an order of discipline is an order of a court that is enforceable using contempt powers. The duties of (continued on page 26)

3. I have written on the importance of cooperation in the discipline process before. “Cooperation With and Contempt of Lawyer Regulation,” Vol. 56, No. 2 Res Gestae 26 (September 2012).

Interim suspensions • 7 interim suspensions for crimes punishable as a felony • 3 lawyers reinstated to practice

Notes: 1. A lawyer who is found guilty of a crime punishable as a felony is subject to being suspended on an interim basis until the Court orders differently or related final discipline is ordered. Admis. Disc. R. 23(11.1)(3). Both the lawyer who is found guilty and the judge in whose court the lawyer is found guilty must report that fact to the Disciplinary Commission within RES GESTÆ • JANUARY/FEBRUARY 2015

25


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ISBA sponsors March Against Hunger he Indiana State Bar Association is teaming up with the Office of the Indiana Attorney General and Feeding Indiana’s Hungry (FIsH) for a seventh consecutive year cosponsoring the March Against Hunger, a friendly “food drive” competition to raise both nonperishable food and monetary donations for Indiana’s 11 regional food banks March 1-31.

T

“The March Against Hunger has given Indiana’s legal community an opportunity to make a difference in the lives of many Hoosier families who struggle with hunger,” Attorney General Gregory F. Zoeller said. “Attorneys always serve those who need our help, and in March each year we demonstrate our commitment to serve those who struggle to put food on the table.” Since 2009, the March Against Hunger food drive has generated 52,354 pounds of food and $231,799 in monetary donations for Indiana food banks. “Nobility demands justice and delivers compassion. The March Against Hunger program offers Indiana lawyers and judges the chance to display nobility by feeding our hungry Hoosier neighbors,” ISBA President Jeff R. Hawkins said. “The need for food assistance continues to be high, as many Hoosiers are still struggling to earn enough money to make ends meet,” FIsH Executive Director Emily W. Bryant said. “We appreciate the donations that come as a result of this food drive and the amount of work that the ISBA and Office of the Indiana Attorney General do to help shed light on hunger in Indiana.” The winner in each of the following categories will be presented with the coveted “Attorney General’s Cup” trophy: Solo Proprietor (1 lawyer); Small Firm (2-11 lawyers); Medium Firm (12-21 lawyers); Large Firm (22-49 lawyers); X-Large Firm (50+ lawyers); and Public/Non-Profit. Visit www.inbar.org for more information about this initiative to raise much-needed resources for Indiana’s regional food banks. Firms can sign up anytime before the competition begins or during the collection period.

ETHICS CURBSTONE continued from page 25 disbarred and suspended lawyers are described in Admis. Disc. R. 23(26). A violation of that section can be and is from time to time enforced by the Court by contempt proceedings initiated by the Disciplinary Commission.

A closing comment In 2014, 11 cases included one or more charges that the lawyer engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d). In two cases, the Court found that the Commission did not prove its charge. In one case, the Court adopted a hearing officer’s recommendation that the Commission did not prove one violation of Rule 8.4(d) but did prove another. Inquiring minds want to know: What does one have to do to act prejudicially to the administration of justice? In an upcoming column, I plan to examine that question.

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RES GESTÆ • JANUARY/FEBRUARY 2015


The Young Lawyers Section invites you to attend the annual

Indiana State Bar Association Judicial Reception Wed., April 29 5:00 - 7:00 pm

Conrad Indianapolis 50 W. Washington St. Indianapolis, IN 46204 Don’t miss this unique opportunity to network with your local judges and colleagues. Firms may sponsor this special event, or you may purchase individual tickets. Sponsoring organizations receive one complimentary ticket per $250 donation and will be recognized in State Bar publications.

Call the ISBA at 317.639.5465 or 800.266.2581 for more information about sponsoring this event.

Pricing Information _____ FREE - Tickets for judges are complimentary! _____ $20 - ISBA Members or any spouse/guest of judge _____ $40 - Non-ISBA Members

Name________________________________________________

Payment Information:

Address______________________________________________

❑ Check (make payable to Indiana State Bar Association)

City, State, Zip_________________________________________

Credit Card (3-4 digit Card Verification Code & signature required) ❑ VISA ❑ MasterCard ❑ Discover

Phone_______________________________________________ Fax__________________________________________________

Card Number__________________________________________ Exp. Date_____ /_____ 3-4 digit Card Verification Code_________

Email________________________________________________

Signature_____________________________________________

Indiana State Bar Association • www.inbar.org One Indiana Square, Suite 530 • Indianapolis, IN 46204 317-639-5465 • 800-266-2581 Toll Free • 317-266-2588 Fax

Young Lawyers Section: Judicial Reception – 4/29/2015

A $25 service fee will be applied to cancellations received on or before 4/22/15. No refunds on cancellations received after 4/22/15. If you send someone else in your place, please provide ISBA with that person’s name.

Register online at www.inbar.org or submit completed registration form to:

Fax: 317-266-2588, Attn: CLE & Events • Email: cle.events@inbar.org For more information, please call the ISBA at 800-266-2581.


RG 01-02.15_RG 09.05 2/6/15 11:26 AM Page 28

By Prof. Kevin Bennardo

Special considerations when interpreting uniform acts

WORDWISE

A

lthough the Uniform Commercial Code1 remains the elephant of uniform acts, attorneys of all stripes may find themselves litigating within provisions of uniform acts, from the Uniform Act on Fresh Pursuit2 to the Uniform Simultaneous Death Act3 to the Uniform Trade Secrets Act.4 When litigating within these statutory provisions, attorneys should be mindful of additional authority available to aid in the construction of uniform acts. Although an enacted uniform act is in many senses no different than any other statute adopted by the Indiana legislature, uniform acts arrive with luggage not found in homespun legislation: namely, the comments and other materials of the drafting body and judicial interpretations from other states that have adopted the same statutory text. These “extra” tools can serve as important interpretive aids when litigating a matter covered by a uniform act.

The ‘legislative history’ of the drafting body Most uniform acts are the product of the Uniform Law Commission (ULC), also known as the National Conference of Commissioners on Uniform State Laws. This body, established in 1892, seeks to “provide[] states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.”5 The members of the ULC work to draft and promote the adoption of uniform Kevin Bennardo state laws in areas Visiting Associate Clinical where nationwide Professor of Law consistency is “desirIU Robert H. McKinney able and practical,”6 School of Law Indianapolis, Ind. for example, by reduckbennard@iupui.edu 28

RES GESTÆ • JANUARY/FEBRUARY 2015

ing uncertainty or reducing compliance costs.7 Other bodies draft and propose model legislation as well, such as the American Law Institute and its Model Penal Code.8 Each state legislature is free to enact uniform laws or to partially enact or modify uniform laws to better conform to its state’s policy goals. The Uniform Law Commission generates more than just the bare statutory text of uniform acts. Along with that statutory text, ULC materials generally include a prefatory note to the act as a whole and comments explaining and illustrating each section of the act. The ULC also provides a summary of each uniform act and highlights reasons why states should adopt it. Although none of this material is generally enacted into law by state legislatures, it can be useful as an interpretive tool. In essence, this “legislative history” provides a window into how the ULC, as the drafting body, perceives the act. The “cardinal rule of statutory construction” in Indiana is to determine, give effect to, and implement the legislature’s intent.9 Although the legislature does not enact the Uniform Law Commission’s comments and prefatory provisions, these materials can be consulted to determine the legislative intent in enacting the uniform act into law.10 The drafting body’s comments specifically have been found to be “indicative of the Legislature’s intent in enacting a statute based on a uniform act.”11 When the court finds the language of the uniform act and the enacted statute almost identical, the comments to the uniform act are “a strong indicator of the legislative intent when [the legislature] enacted” the uniform act into law.12 Thus, when construing an Indiana statute derived from a model or uniform act, Indiana courts take heed of the comments

and prefatory material generated by the Uniform Law Commission, even though that material is not passed into law. An attorney litigating the interpretation of such a statute should be mindful that the drafting body’s comments could be determinative to the court’s construction. Because the comments do not appear in the Indiana Code, it is important to consult the uniform act itself to locate and research the comments. The Uniform Law Commission makes its comments available within the final version of each of its uniform acts posted to its website.13

Out-of-state judicial interpretations In general, judicial opinions from other states do not bind Indiana courts but may be considered persuasive authority. Various aspects of a non-binding precedent may make it more or less persuasive with a court of decision.14 Nonbinding precedent takes on a somewhat enhanced role, however, when it comes to the interpretation of uniform acts. The purpose of a uniform act is to coordinate the law of multiple states in a given area. This purpose informs interpretation of these statutes. In the words of the Uniform Trade Secret Act as adopted by Indiana, “[t]his chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject matter of this chapter among states enacting the provisions of this chapter.”15 Because the stated purpose of the act is to make the law uniform across adopting jurisdictions, the decisional law of other adopting jurisdictions carries special weight in statutory interpretation.


RG 01-02.15_RG 09.05 2/6/15 11:26 AM Page 29

For example, the Indiana Supreme Court found that the legislature’s adoption of the Uniform Trade Secrets Act substantially as promulgated by the Uniform Law Commission indicated that the legislature “sought the uniform application of [the act’s] definitions of trade secret consistent with the application of the act in other adopting jurisdictions.”16 As a result, case law from other jurisdictions that have adopted the uniform act “becomes relevant authority” for Indiana courts’ construction of the statute.17 This approach has been taken with regard to other uniform acts as well, particularly when the issue before the Indiana court is a matter of first impression in this state.18 Although out-of-state decisional law does not rise to the level of binding authority with respect

to interpretation of uniform laws, attorneys should consult the case law of other adopting states when arguing for an interpretation of an Indiana enactment of a uniform law. The Uniform Law Commission makes it easy to identify the other states that have adopted its uniform acts. Its website contains an “Enactment Status Map” for each uniform act that details which states have enacted the act, as well as which states are considering it.19 Before relying upon another state’s interpretation, however, be sure to compare the statutory text of the other state’s statute with the Indiana statute. If the two statutory texts are not substantially similar, the interpretation of the other state’s statute is unlikely to carry much weight in the interpretation of the Indiana statute.

Conclusion When litigating the construction or application of a statute, it is important to consult every available interpretive tool. When it comes to Indiana statutes derived from uniform laws, those tools include the commentary and prefatory notes of the drafting body and the enhanced role of out-of-state precedent interpreting similar statutes. The interpretive aids found in these sources may determine the outcome of the case and should not be overlooked. 1. Ind. Code §§ 26-1-1-101 to -10-104. 2. Ind. Code §§ 35-33-3-1 to -7. 3. Ind. Code §§ 29-2-14-1 to -8. 4. Ind. Code §§ 24-2-3-1 to -8. 5. Uniform Law Commission, http://tinyurl.com/about-the-ULC (last visited Jan. 6, 2015). 6. Id.

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Feighner elected to Judicial Nominating Commission ohn O. Feighner was recently elected to serve as the Indiana Judicial Nominating Commission District 3 representative. Feighner was elected by attorneys to fill a vacancy that occurred Dec. 31 when attorney John Ulmer’s term expired.

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District 3 is made up of Allen, Benton, DeKalb, Elkhart, Fulton, Jasper, Kosciusko, LaGrange, Lake, LaPorte, Marshall, Newton, Noble, Porter, Pulaski, St. Joseph, Starke, Steuben, Warren and Whitley counties. Ballots were sent to attorneys eligible to vote in District 3. The Clerk of the Appellate Courts collected the ballots and certified Feighner garnered 608 votes, John E. Hughes garnered 566 votes, and Jay A. Rigdon garnered 142 votes. Feighner is a past managing partner of Haller & Colvin, P.C. He is a resident of Fort Wayne, where he served as an assistant Allen County attorney, representing several county departments in state and federal courts. He graduated from Brown University, Culver Military Academy and cum laude from Indiana University McKinney School of Law. Feighner has served as president of the Indiana Trial Lawyers Association. The Commission is made up of seven members – three are appointed by the governor, and attorneys elect three. Chief Justice Loretta H. Rush chairs the Commission. The three current appointed members are David Tinkey, Tom Rose and Jean Northenor. The attorney members are Feighner, Stephen Williams and Lee Christie. The Indiana Judicial Nominating Commission is established by the Indiana Constitution and staffed by the Division of State Court Administration. The Commission recruits and interviews applicants to fill vacancies on the appellate courts. Then, the Commission submits candidates to the governor for appointment. Additionally, the Commission selects the Chief Justice of Indiana and certifies former Indiana judges as senior judges to serve in Indiana’s courts.

WORDWISE continued from page 29 7. Uniform Law Commission, http://tinyurl.com/ ULC-new-project-proposals (last visited Jan. 6, 2015). 8. American Law Institute, http://tinyurl.com/ ALI-pubs-Model-Penal-Code (last visited Jan. 6, 2015). 9. 26 Ind. Law Encyc. Statutes §69; see, e.g., Edwards v. State, 952 N.E.2d 862, 868 (Ind. Ct. App. 2011). 10. See In re Lawrance, 579 N.E.2d 32, 38 (Ind. 1991) (citing to the prefatory note and comments in construing Indiana’s enactment of the Model Health-Care Consent Act). 11. Basileh v. Alghusain, 912 N.E.2d 814, 821 (Ind. 2009) (interpreting Indiana’s enactment of the Uniform Interstate Family Support Act); see also Havens v. Portfolio Inv. Exch. Inc., 983 F. Supp. 2d 1007, 1011 (N.D. Ind. 2013) (noting that “Indiana law is quite clear” regarding the persuasive value of uniform act commentary when interpreting an Indiana statute derived from a uniform act). 12. Basileh, 912 N.E.2d at 821. 13. See Uniform Law Commission, http://www. uniformlaws.org/Acts.aspx (last visited Jan. 6, 2015). The website generally provides two versions of each uniform act: one in portable document format with prefatory material and commentary and one in word processing format without commentary. See, e.g., Uniform Premarital and Marital Agreements Act, available at http://tinyurl.com/UniformPremarital-and-Marital (last visited Jan. 6, 2015). 14. See Helene S. Shapo et al., Writing and Analysis in the Law 21-22 (6th ed. 2013) (listing potentially relevant characteristics, including the year of decision, the identity of the authoring judge, and the unanimity of the decision). 15. Ind. Code §24-2-3-1(1)(b). 16. Amoco Prod. Co. v. Laird, 622 N.E.2d 912, 917 (Ind. 1993). 17. Id. at 918. 18. See, e.g., In re Lemond, 395 N.E.2d 1287, 1290 (Ind. Ct. App. 1979) (interpreting the Uniform Child Custody Jurisdiction Law: “Since we are presented with an issue of first impression concerning a uniform act, we look for guidance to decisions of other states.”); N. Ind. Commuter Transp. Dist. v. Chicago Southshore & South Bend R.R., 685 N.E.2d 680, 695 n.18 (Ind. 1997) (referencing out-of-state case law in interpreting the Uniform Arbitration Act). 19. See, e.g., Unclaimed Property Act, http:// tinyurl.com/ULC-Unclaimed-Property-Act (last visited Jan. 6, 2015).

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By Jane Dall Wilson and Donald E. Morgan

Appellate civil case law update

IDEM’s exclusion of ethanol plants from definition of ‘chemical process plants’ is reasonable In Natural Resources Defense Council v. POET Biorefining - North Manchester, LLC, 15 N.E.3d 555 (Ind. 2014) (David, J.) the Court analyzed IDEM’s interpretation of Indiana’s State Implementation Plans (SIPs) as excluding ethanol plants from the definition of “chemical process plants,” which determines whether such plants are subject to emissions regulation as “major stationary sources.” Indiana’s SIP largely resembles the Clean Air Act with respect to Prevention of Significant Deterioration (“PSD”) regulations. The Clean Air Act does not define a “chemical process plant.” Prior to 2007, the EPA had interpreted the term to include ethanol plants. However, on May 1, 2007, the EPA issued a final rule expressly excluding fuel ethanol process plants from the term “chemical process plant” (the “Ethanol Rule”). Before the EPA issued its Ethanol Rule, Indiana had also interpreted “chemical process plants” to include fuel ethanol plants,

but after the Ethanol Rule, IDEM followed EPA’s new interpretation. In 2011, the General Assembly passed a law specifically providing that fuel ethanol plants were not “chemical process plants” under Indiana’s SIP. IDEM thereafter issued a nonrule policy document referencing the EPA’s Ethanol Rule and stating that it would exclude ethanol plants from the definition of “chemical process plants.” Indiana’s SIP has not been amended to reflect this policy. The appeal involved five fuel ethanol facilities that emit more than 100 but less than 250 tons per year of an air pollutant and arose out of various consolidated procedural circumstances. The Supreme Court deemed the appeal to present two primary questions: (1) did IDEM need to amend Indiana’s SIP to change its interpretation of the term “chemical process plant”; and (2) if not, is IDEM’s interpretation excluding fuel ethanol plants from the definition of a “chemical process plant” correct? If the term “chemical process plant” under Indiana’s SIP includes a fuel ethanol plant, then the five ethanol plants at issue constitute major stationary sources and are subject to stricter PSD regulation. Otherwise, they are not. The Court first held that IDEM is not required to revise its SIP to change its classification of fuel ethanol plants because there is no relevant definition to revise. No provision in the SIP defines a fuel ethanol plant as a chemical process plant. The Court further held that whether or not the Standard Industrial Classification Manual (“SIC Manual”) defined an ethanol plant as a chemical process plant, that definition was not incorporated into the SIP’s definition of a major stationary source or chemical process plant. IDEM was therefore

not required to formally amend the SIP to change its interpretation. The Court next considered whether IDEM’s new interpretation of chemical process plants as excluding fuel ethanol plants was reasonable. The Court noted its obligation to give weight to the interpretation by the relevant agency and to give words and phrases their plain and ordinary meaning within the context of the intent of the agency that promulgated the regulations. It determined that a strict interpretation of the phrase to capture any facility using chemical processes to produce chemical products was not necessary. The Court was also guided by the EPA’s Ethanol Rule, which suggests that the term “chemical process plant” is not subject to a plain language interpretation. Challenger NRDC also did not explain why fuel-grade ethanol plants would qualify as “chemical process plants” but facilities producing ethanol for human consumption would not. The Court ultimately concluded that IDEM was entitled to follow the EPA’s guidance and that IDEM’s excluJane Dall Wilson sion of fuel ethanol plants Faegre Baker Daniels LLP from stricter regulation as Indianapolis, Ind. “chemical process plants” jane.wilson@FaegreBD.com was reasonable.

RECENT DECISIONS 9/14

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n September, the Indiana Supreme Court issued opinions in seven civil cases, summarized below, and did not grant transfer in any civil cases. The Indiana Court of Appeals issued a total of 63 opinions in civil and administrative matters, 32 of which were published decisions. Three of the Court of Appeals’ published decisions are summarized below. Full text of all Indiana appellate court decisions rendered during the month of September, including those issued not-for-publication, are available via Casemaker at www.inbar.org or the Indiana Courts website, www.in.gov/ judiciary/opinions.

Trustee who failed to stay order dissolving trust lacked standing to pursue appeal Old National Bancorp d/b/a Old National Trust Co. v. Hanover College, 15 N.E.3d 574 (Ind. 2014) (David, J.), concerns the status of a trustee after Donald E. Morgan dissolution of a trust. Faegre Baker Daniels LLP (continued on page 32)

Indianapolis, Ind. donald.morgan@FaegreBD.com

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RECENT DECISIONS 9/14 continued from page 31 Hanover College was the beneficiary of two trusts in which Old National Bancorp served as trustee. Hanover petitioned the Randolph Circuit Court to terminate the trusts and to allow Hanover to hold the funds as part of Hanover’s endowment on the ground that maintaining the trusts separately was wasteful, provided lower returns, and impaired the trusts’ administration. After an evidentiary hearing, the trial court ordered the trusts dissolved and the assets distributed to Hanover. Old National appealed the trial court’s dissolution orders but did not seek a stay. On appeal, Old National argued that dissolution of the trusts was not warranted. Hanover responded but also moved to dismiss the appeal on the ground that Old National had not sought a stay and had transferred the trusts’ assets; therefore, Old National lacked standing to pursue an appeal, and the issues on appeal were moot. In response, Old National contended that it was an “aggrieved person” and was appealing in its individual capacity rather than its representative capacity as former trustee. The Court of Appeals dismissed Old National’s appeal on the ground that Old National lacked standing in its representative capacity because it failed to obtain a stay and was no longer the trustee, and it could not appeal in its individual capacity because it did not intervene below. On transfer, the Supreme Court agreed that Old National lacked standing and dismissed the appeal. The Supreme Court noted the general rule that powers of a trustee cease when a trust is dissolved or terminated. To prevent this effect, a fiduciary may seek a stay. But Old National did not do so. When Hanover questioned its standing to pursue the appeal, Old National argued that it was not appealing in its 32

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representative capacity as former trustee but rather in its individual capacity. The Supreme Court noted that the record did not bear out Old National’s position. Old National did not intervene or appear below in its individual capacity. Its merits briefs contained multiple references to its position as trustee and argued that the trial court had erred in terminating the trusts, using the same arguments made in the trial court in its role as trustee. Old National also paid its appellate fees from trust assets. For these reasons, the Court declined to consider Old National as appealing in any capacity other than as trustee. Because Old National lacked standing to appeal as trustee due to the termination of the trusts, the Supreme Court held that it lacked jurisdiction to hear the appeal. It left unanswered the questions (1) whether Indiana Code §30-46-11(a) permits an appeal of the termination of a trust by a person who is not a party to the trust proceeding and (2) whether Indiana Appellate Rule 17(A) implies that all such “aggrieved persons” must intervene in the trial court before appealing.

Minority shareholders not entitled to privileged portions of special litigation committee report Sibling minority shareholders initiated a derivative suit. The board of directors formed a special litigation committee (“SLC”) pursuant to Indiana Code §23-1-32-4 to investigate the claims. Following the report, the board moved to dismiss certain derivative claims, attaching a version of the SLC report that redacted 120 of 140 pages on grounds of attorney-client privilege and attorney work product. The sibling shareholders filed a motion to compel disclosure of the report. The trial court granted

the motion, and the Court of Appeals affirmed on interlocutory appeal. After oral argument, the Supreme Court granted transfer. In TP Orthodontics, Inc. v. Kesling, 15 N.E.3d 985 (Ind. 2014) (David, J.), the Court considered “two compelling but competing interests”: (1) the minority shareholders’ desire to access the full report to challenge the conclusions of the SLC, and (2) the company’s interest in protecting privileged attorney-client communications and attorney work product within the SLC report. The Court began by noting Indiana’s codified business judgment rule, which the SLC process reflects. Under Indiana Code §23-1-32-4, a board of directors may establish an SLC consisting of three or more disinterested directors or other persons to determine whether to pursue derivative litigation. The SLC’s conclusion is deemed conclusive unless a shareholder can demonstrate that (1) the committee was not “disinterested” or (2) the committee did not investigate in good faith. Ind. Code §231-32-4(c). The Court determined that a corporation must disclose both the methodology and the substance of the SLC’s investigation to permit minority shareholders to evaluate whether the SLC investigated in good faith. Next the Court analyzed the privileged and protected nature of the SLC report. The Court determined that there was a broad but not blanket assertion of privilege. The corporation met its burden of showing that the SLC report contained both attorney-client communications and attorney work product. And the corporation did not put the privileged portions of the report at issue by filing the motion to dismiss. Ultimately, the Court determined that the case presented a discovery dispute. To ensure the con-


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tinued use of SLCs in derivative litigation, the Court declined to grant the minority shareholders’ request for full access to the SLC report. Instead, the Court remanded to the trial court, instructing the corporation specifically to identify attorney-client communications and attorney work product and directing the trial court to conduct an in camera review of the specifically identified portions. Absent claims of privilege or work product, the Court determined that SLC reports should be disclosed in other cases.

Indiana’s heightened summary judgment standard unanimously reaffirmed In a civil forfeiture case, the Indiana Supreme Court reflected that Indiana’s summary judgment standard sets a “relatively high bar” and aims “to protect a party’s day in court.” In Hughley v. State, 15 N.E.3d 1000 (Ind. 2014) (Rush, C.J.), the State discovered $3,871 in cash, mostly in $20 bills, in the defendant’s front pocket at the time of his arrest for drug dealing and later sought forfeiture of that cash and the defendant’s car. The State moved for summary judgment, designating the probable cause affidavits and the defendant’s judgment of conviction for cocaine dealing. The defendant opposed the motion with an affidavit in which he summarily denied that the cash and car were connected to criminal activity. The trial court granted summary judgment to the State as to the cash but not as to the car. The Court of Appeals affirmed, holding that the affidavit offered nothing more than a general denial that could not withstand summary judgment. The Supreme Court reversed with instructions to deny the State’s motion. The Court acknowledged that the language of “Indiana Trial Rule 56 is nearly identical to Federal

Rule of Civil Procedure 56” but, nonetheless, reiterated that Indiana’s summary judgment process requires a different showing. While the federal rule requires a movant to show that the party with the burden lacks evidence to support a necessary element of a claim, in Indiana, the movant must “affirmatively ‘negate an opponent’s claim.’” (quoting Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994). The Court acknowledged some criticism of this heightened standard but emphasized that “Indiana consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims.” In light of this more “onerous burden” on the moving party, the Court determined that the defendant’s “perfunctory and self-serving” affidavit was sufficient to create an issue of fact requiring trial. Although compelling, the State’s circumstantial evidence that the cash constituted drug dealing proceeds conflicted with the defendant’s direct evidence by sworn affidavit testimony that it did not. While the defendant’s evidence may not be persuasive – because it lacked any explanation or detail – it was sufficient to defeat summary judgment. Indiana’s standard did not permit the trial court to weigh the evidence at the summary judgment stage.

Agreed spousal maintenance cannot be modified unless terms of the agreement say so In the absence of an agreement, Indiana courts may order spousal maintenance only in three limited circumstances set forth in Indiana Code §31-15-7-2. Such maintenance awards are modifiable upon a proper showing under §3115-7-3. In Pohl v. Pohl, 15 N.E.3d

1006 (Ind. 2014) (Rush, C.J.), the Supreme Court addressed a question it left open in Voigt v. Voigt, 670 N.E.2d 1271 (Ind. 1996) – whether a court may modify a spousal maintenance obligation that arises from a settlement agreement but rests on grounds that would have permitted the court to enter an identical award under §31-15-7-2 in the absence of the agreement. The parties in Pohl agreed that Wife would pay Husband monthly spousal maintenance beginning approximately four years after the date of their agreement. Over three years later, but before the first maintenance payment was due, Wife petitioned the court to modify her obligation. Wife cited changes in Husband’s circumstances, including the quadrupling of his SSDI income and his move into a home with his fiancée, who earned a six-figure salary and paid the mortgage for the couple’s home. The trial court concluded the agreement was not intended to be modifiable and held that Wife failed to show fraud, duress or mistake. The Court of Appeals affirmed. On transfer, a unanimous Supreme Court acknowledged that it faced two unsatisfactory choices. On the one hand, freedom of contract principles suggest settlement agreements should be enforced as written, as judges cannot know with any confidence “what got traded for what” during settlement negotiations. Hence, a subsequent modification risks upsetting the delicate balance and finality memorialized in a settlement agreement. But presuming agreements to be non-modifiable unless they specify otherwise may deprive relief even in the face of the types of unforeseen changes justifying modification of statutory maintenance awards under §31-15-7-3. (continued on page 34) RES GESTÆ • JANUARY/FEBRUARY 2015

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RECENT DECISIONS 9/14 continued from page 33 Calling it the better of two unsatisfactory choices, the Supreme Court held that – even when statutory maintenance (which is modifiable) could have been ordered in the absence of an agreement – principles of contract finality preclude modification of agreed spousal maintenance unless the agreement is modifiable by its own terms. With respect to the agreement at issue, the Court held that language indicating that payments should continue “until further order of the court or agreement of the parties” rendered the agreement modifiable by its own terms. The Court therefore reversed and remanded to the trial court with instructions to consider whether the evidence established a substantial and continuing change in circumstances justifying modification under §35-15-7-3.

Untimely filing of notice of appeal is not jurisdictional bar precluding appellate review In re Adoption of O.R. abrogated the Supreme Court’s long-held position that timely filing of a notice of appeal is a jurisdictional prerequisite to appellate review. 16 N.E.3d 965 (Ind. 2014) (Rucker, J.). Rather than a jurisdictional bar, failure to file a timely notice of appeal is a forfeiture of a party’s right to appeal – a right that may be restored only for “extraordinarily compelling reasons.” This appeal followed a successful petition to adopt O.R. over her biological father’s objection. Four days before the deadline for filing a notice of appeal, the biological father submitted a letter to the trial court clerk, requesting appointment of appellate counsel “for the purpose of appealing the decision rendered.” The trial court appointed appellate counsel, but not until the deadline for filing a notice of appeal had passed. Fifteen days after appointment, the appellate 34

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counsel filed an amended notice of appeal, contending that the biological father’s pro se letter should be deemed a timely notice of appeal in substantial compliance with the appellate rules. Although the motions panel of the Court of Appeals accepted the amended notice of appeal, the writing panel dismissed the appeal sua sponte after briefing on the merits closed. The writing panel concluded that the Court of Appeals lacked subject matter jurisdiction because the biological father failed to file a timely notice of appeal. On transfer, a unanimous Supreme Court held that an untimely notice of appeal forfeits a party’s right to appeal but does not implicate the appellate court’s jurisdictional authority to hear the case. Although its prior cases have treated the notice of appeal as a jurisdictional matter, the Court cited several reasons supporting a change of course. First, the notice of appeal requirement in Rule 9(A) of the Indiana Rules of Appellate Procedure speaks of forfeiture, not jurisdiction. Forfeiture refers to the rights and obligations of parties, not the powers of a court. Second, the Court was mindful that procedural rules like Rule 9(A) are means for achieving orderly and speedy justice, not ends unto themselves. And third, Rule 1 of the Indiana Rules of Appellate Procedure includes a mechanism for resurrecting an otherwise forfeited appeal, providing that appellate courts may permit deviation from the appellate rules. The Court further held that such a deviation from the rules may be permitted in the narrow context where “extraordinarily compelling reasons” suggest the forfeited right to appeal should be restored. The Court concluded that such reasons were present in Adoption of O.R. The biological father timely

submitted a pro se letter, seeking appointment of appellate counsel for purposes of appealing the trial court’s decision. And while the trial court eventually appointed appellate counsel, that appointment came after the deadline for filing a formal notice of appeal. Moreover, this case presented a “unique confluence” of one of the most valued relationships in our culture – that between parent and child – and a parent’s fundamental liberty interest in the care, custody and control of his or her children. In light of these unique circumstances, the Court restored the biological father’s otherwise forfeited right of appeal. Turning to the merits, the Supreme Court affirmed the trial court under the deferential clear error standard of review. The Court held that the biological father’s consent was not required under Indiana Code §31-19-9-8(a)(2)(A) because the record included clear and convincing evidence that he failed without justifiable cause to communicate significantly with O.R. for a period of at least one year despite being able to do so. Further, the record supported the trial court’s conclusion that the adoption was in O.R.’s best interests, largely in light of evidence that O.R. had lived with the adoptive parents for six years and because she had no existing relationship with her biological father.

The Supreme Court provides guidance to Indiana courts faced with abusive, vexatious litigation practices In an extraordinary opinion, the Supreme Court unanimously denied a “prolific, abusive” litigant’s petition for transfer and penned a robust review of the tools available to Indiana courts faced with abusive litigation tactics. Zavodnik v. Harper, 17 N.E.3d 259


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(Ind. 2014) (per curiam). Since 2008, Gersh Zavodnik filed at least 120 cases appearing in the Odyssey case management system. He is a party to dozens of appeals before the Indiana Supreme Court and Court of Appeals. The Court described Zavodnik’s filings in the matter pending transfer as having “bewilderingly lengthy titles” and generally demonstrating no desire to litigate his case to an expeditious resolution on the merits. Rather, Zavodnik burdened his opponent and the court with “massive, confusing, disorganized, defective, repetitive, and often meritless filings.” As “a matter of grace,” the Court did not sanction Zavodnik. But it provided guidance to Indiana courts regarding options for sanctioning and otherwise restricting abusive and burdensome litigation tactics. Those options include: • monetary sanctions under Indiana Code §34-52-1-1(b);

must be able to fashion appropriate sanctions against abusive pro se litigants.

to obtain a change of judge may face sanctions.

• The right to proceed in forma pauperis is not unfettered. A court may deny IFP status if it determines the applicant is asserting a claim that is frivolous or upon which relief cannot be granted, is seeking monetary relief from a defendant who is immune, or is attempting to re-litigate a claim barred by res judicata, collateral estoppel, or law of the case. Further, a court may revoke a litigant’s IFP status as a sanction for abusive litigation tactics. • Courts may reasonably limit abusive litigants’ filings by requiring that allegations be certified under penalty of perjury, that pleadings comply strictly with the trial and appellate rules and follow other procedural or formatting requirements, and that litigants comply with limitations on length and repetitive motions. • Judges should not recuse themselves in the absence of a reasonable basis for disqualification, and litigants who pursue baseless, abusive attempts

SELECTED COURT OF APPEALS DECISIONS City lacked standing to challenge town’s annexation In Town of Lapel v. City of Anderson, 17 N.E.3d 330 (Ind. Ct. App. 2014) (Baker, J.), the Court of Appeals concluded that Anderson lacked standing to challenge Lapel’s annexation of territory that Anderson had previously considered annexing. Lapel’s annexation was “super-voluntary,” meaning that 100 percent of landowners in the territory sought annexation and had initiated the petition for annexation. Remonstrance is typically the only means to challenge annexation. Anderson conceded that it did not meet the statutory qualifications to remonstrate a super(continued on page 36)

• authority to screen criminal offenders’ frivolous claims under §34-58-1-2; • “three strikes” limitations on complaints and in forma pauperis petitions under Indiana Code §34-10-1-3; • damages or other sanctions authorized in Rules 37, 56(G) and 75(C) of the Indiana Rules of Trial Procedure and in Rule 66(E) of the Indiana Rules of Appellate Procedure; and • exercise of inherent powers of courts, after due consideration of an abusive litigant’s entire history, to fashion and impose reasonable conditions and restrictions on a litigant’s ability to commence or continue actions.

The Court also offered the following guidance regarding common abusive litigation tactics:

8310 Allison Pointe Blvd. Suite 204 Indianapolis, IN 46250 P: 317.436.7402 F: 317.585.8562 www.gadgetlawyers.com Over 31 years experience helping Hoosier Lawyers and their clients.

E. Victor Indiano

• Pro se litigants are held to the same standards as trained attorneys. Moreover, because Trial Rule 11(A) and the Rules of Professional Conduct do not apply to pro se litigants, courts

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RECENT DECISIONS 9/14 continued from page 35 voluntary annexation. Nonetheless, it filed an action for declaratory judgment, challenging the legality of Lapel’s annexation. On crossmotions for summary judgment, the trial court granted Anderson’s motion and denied Lapel’s motion. The Court of Appeals reversed. Considering precedent, the Court of Appeals determined that “the sole means for challenging an annexation is a statutorily-based remonstrance.” The only times a complainant has standing to bring a declaratory-judgment action involve fraud, discrimination or wrongs so severe as to violate the complainant’s substantial rights. Anderson’s arguments did not meet these criteria, and it therefore lacked standing to challenge Lapel’s annexation. The court also noted that following this litigation, the General Assembly amended the relevant statute to give a municipality located in the same county as the territory to be annexed the right to appeal, but the effective date of the statute meant that it did not help Anderson in this litigation.

Issues of material fact prevented summary judgment for landlord on environmental claim Indiana’s Environmental Legal Actions (“ELA”) statute permits a claimant to bring a cause of action for the reasonable costs of remediation against “a person that caused or contributed to” a release of a hazardous substance or petroleum into the surface, soil or groundwater. In JDN Properties, LLC v. VanMeter Enterprises, Inc., 17 N.E.3d 357 (Ind. Ct. App. 2014) (Barnes, J.), the Court of Appeals determined “that a landlord who has knowledge that a tenant’s use of land is causing environmental contamination, but does nothing to halt or remediate such contamination and goes on to sell that property to a third party without disclos36

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ing the property’s condition, may fairly be said to ‘share responsibility’ for or contribute to such contamination.” The Court of Appeals reversed the trial court’s grant of summary judgment in favor of the former landlord because designated evidence supported a finding that the landlord accepted rents from its former tenant, knowing that the tenant’s use was causing petroleum contamination in the ground, before it sold the property without disclosing any contamination.

Liquidated damages did not preclude injunctive relief against doctor In an interlocutory appeal, the Indiana Court of Appeals reversed and remanded a trial court’s denial of a preliminary injunction to enjoin a family doctor in Rensselaer from violating noncompete, nonsolicitation and nondisparagement provisions in his employment agreement. In Pinnacle Healthcare, LLC v. Sheets, 17 N.E.3d 947 (Ind. Ct. App. 2014) (Najam, J.), the doctor sold his practice and became an employee of Pinnacle Healthcare, LLC (“the Practice”) under an agreement that included noncompete, nonsolicitation and nondisparagement provisions. The doctor alleged that the Practice breached its agreement to pay and filed a temporary restraining order and a preliminary injunction to prevent the Practice from enforcing the noncompete, nondisparagement and nonsolicitation provisions. After a hearing on the doctor’s request for a preliminary injunction, the Practice allegedly learned that the doctor was practicing medicine in violation of those provisions and filed its own motion for a preliminary injunction, which the trial court denied. This interlocutory appeal followed.

To obtain a preliminary injunction, the Practice was required to show that (1) its remedies at law were inadequate, (2) it had at least a reasonable likelihood of success at trial by establishing a prima facie case; (3) the threatened injury to the Practice outweighed the potential harm to the doctor that would result from the granting of an injunction; and (4) the public interest would not be disserved by the granting of a preliminary injunction. With respect to the adequacy of remedies at law, the Court of Appeals held that the presence of a liquidated damages clause in the employment agreement did not prevent the Practice from pursuing both liquidated damages for breach and injunctive relief under the employment agreement. The existence of a legal remedy in the contract was not an admission of the adequacy of a legal remedy. The Court of Appeals held that the trial court clearly erred in evaluating the Practice’s motion as to the other factors as well, and it reversed and remanded for a hearing on the Practice’s motion and a judgment not inconsistent with the opinion. Jane Dall Wilson is a business litigation partner at Faegre Baker Daniels LLP, where she practices appellate advocacy and litigates complex contract matters. Jane is a summa cum laude graduate of Hanover College and Notre Dame Law School. Following law school, she clerked for the Hon. Kenneth F. Ripple, 7th U.S. Circuit Court of Appeals, and joined the firm thereafter. Donald E. Morgan is a business litigation associate at Faegre Baker Daniels LLP, where he focuses his practice on civil litigation and appellate advocacy and representation of corporate victims of crime. He is a graduate of Indiana University with highest distinction and an Order of the Coif graduate of UC Berkeley’s Boalt Hall School of Law. During law school, Donnie served as a judicial extern for the 9th U.S. Circuit Court of Appeals and later for the U.S. District Court for the Northern District of California.


KEEP CALM AND LAWYER ON

INDIANA STATE BAR ASSOCIATION SOLO & SMALL FIRM CONFERENCE FRENCH LICK RESORT JUNE 4-6, 2015


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By Judge David J. Dreyer and Donald R. Lundberg

FIT TO PRACTICE

The way we roll: commuting by bike

W

e’ve been year-round bike commuting on a mostly full-time basis for a number of years. We each commute about 12 miles round trip on city streets, coming from different directions to downtown Indianapolis. Lundberg has the good fortune to have inside bike storage and a shower and place to store work attire at the office. Dreyer has the equally good fortune of having the great Indy Bike Hub right across the street from the City-County Building where he can shower and store his bike inside. The delta between biking and driving from our respective homes to sitting at our desks is about five minutes. So we get 50 minutes or so of solid exercise every day at a net time cost of 10 minutes. What a deal!

It’s good for your body

It’s good for your mind

Biking is good exercise. It is much easier on your joints than running. You can easily calibrate your effort to how energetic (or not) you are feeling. We calculate that we burn about 43 calories per mile cycling at a moderate pace. That’s 516 calories every day and more when we ride harder.

The health benefits of biking can be more mental than physical. Commuting by bike is a great buffer between professional and personal life. It allows for shifting mental gears as the derailleur changes gears on the bike. Going home, the stress of the day subsides with every turn of the pedals. Biking to work gives us a jump start on the day ahead by easing into what’s in store.

Lawyers and judges are sedentary workers. We can’t avoid it in our line of work. But we exacerbate the situation when we put in even more butt time driving back and forth between home and work. Biking is re-creation in the true sense of doing something completely different from what we do at work. Biking to go where we need to go anyway gives us a premium of much-needed physical activity.

Critical Thinkers!

Driving in the car usually involves distractions of one kind or another – maybe it’s the car radio or the irritation of being stuck in traffic. Traffic jams are rarely a hindrance to a bicyclist. We don’t bike with anything in our ears (not safe, in our opinion), so we get to be alone with our thoughts. It’s amazing how the creative ideas flow when traveling by bike. (Okay, some pretty crazy ideas pop out too, but they can be easily discarded later.) Dreyer claims to have rendered many legal opinions while coasting with no hands. Plus, biking is just plain fun. It’s hard to get on a bike without flashing back to being a kid and realizing that a bicycle opened up whole new vistas that were unattainable on two legs. That probably accounts for the goofy grin you might see on our faces as we bike to and from work. Despite moisture, even ice and the evil wind (always

NED P. MASBAUM, M.D.

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RES GESTÆ • JANUARY/FEBRUARY 2015

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Judge David J. Dreyer, Marion Superior Court, and Donald R. Lundberg, Barnes & Thornburg LLP seems to be a headwind), there is a solid gratification in leaving one’s house or office on a conveyance we have been using since childhood.

Be careful out there Our experience has been that biking is a safe way to commute. Sure, we’ve had close calls (as we assume you have had in your cars) and a few “altercations,” but nothing to deter us. We have each had an experience where failing to wear a helmet would probably have resulted in a serious head injury or worse. Wear a helmet. Period. Not wearing a helmet could kill you; wearing a helmet won’t kill you. If you are going to be riding in anything other than full daylight conditions, you need lights – real lights, powerful lights. Bicycle lighting technology has advanced by leaps and bounds in recent years.

Good lights are worth the expense. Lundberg uses front & back lights on his bicycle and front & back lights on his helmet. Dreyer has two back flashers (helmet and backpack) and one bright-white blinker on his front handlebars. Don’t take the reflectors off your bike. They are very effective in the beam of a car’s headlights. Ride as if all drivers, including bus drivers, want to run you over. In the car-bike interface, the bike and its rider lose every time. Lundberg wears a mirror on the side of his helmet that lets him see what is coming up from behind. Dreyer has a handlebar mirror that he will not live without. Take care at cross streets. If there is a car at the intersection or a car turning left in front of you, look for eye contact from the driver. That’s a sign the driver sees you. Be careful riding

next to parked cars. A car door could swing open without warning, and you could win the proverbial “door prize” and a serious injury to boot. Cars making a right turn are another dangerous situation where you need to be alert against an inattentive driver turning into you if you are to the driver’s right. Pick your route carefully, and avoid routes that present dangers to bikes. Is there an off-street bike route like the Monon Trail in Indianapolis? Perfect! If not, is there a street with a marked bike lane? Our experience has been that the conflict between cars and cyclists is mostly territorial. It is amazing what a silly little white line on the pavement does to defuse that tension. It tells drivers, “This is not your space.” Consider using side streets instead of arterials. (continued on page 40) RES GESTÆ • JANUARY/FEBRUARY 2015

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FIT TO PRACTICE continued from page 39 It’s not just about getting from point A to point B as quickly as possible. It’s also about enjoying the trip and arriving intact. Riding on neighborhood side streets is pleasant, and after you’ve done it for a while you’ll get to know the regulars along your route and can exchange a friendly wave.

Getting started Commuting by bike can be a little daunting. Get a bike you are comfortable with, and make sure it is well maintained. It doesn’t have to be fancy or expensive. Skinnytire road bikes are not a good choice for commuting. Wider, lower-pressure tires make for a more comfortable ride with fewer flats. Consider a bike with fenders. They do wonders in an unexpected rain shower. Learn how to fix a flat, and carry what you need to do the repair. Oh, yeah, and do us a personal favor – lubricate your chain. To us, the sound of a squeaky bike chain is like fingernails on a chalkboard. Ease into it. Learn how to handle your bike well. Gain confidence and competence before hitting the gritty urban streets. Ride in your neighborhood and on off-street trails before venturing out into risky traffic situations. Ride conservatively and defensively. It’s more about safety than speed. Preview a safe route in your car. Take special note of the risky spots so that you’ll know where to be especially careful when you’re biking. Then pick a beautiful day for a trial run. Maybe on a Saturday or Sunday. Then it’s time to try it on a weekday. Once a month or once a week is fine. Does it suit you? Increase your frequency. If the distance between home and work is too long for a reasonable commute, consider

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RES GESTÆ • JANUARY/FEBRUARY 2015

driving part way (especially the non-bike friendly part) with your bike on a rack, then park your car and bike the rest of the way. When it starts getting cold in the fall, you can shut it down until spring unless you’re a crazy person and decide to keep riding. The two of us have a friendly cold-weather competition. Dreyer put Lundberg to shame this past winter by riding at -5 degrees. Lundberg’s lowest was a balmy +6. Don’t you think a judge, of all people, would have better sense? If you are going to join this club of crazy people, be very careful in slippery conditions or better yet, don’t ride. In all but the coldest weather, you might find that you have overdressed for the cold. The exertion of riding generates a lot of heat. As far as hand warmth, look into thermal products that provide hand coverings on the handlebars. Figure out what you will do when you get to the office. If your commute is fairly short, just ride at an easy pace in your work clothes. You can pretend you are in Copenhagen or Amsterdam. If you have further to travel or want to ride fast, you’ll need to figure out how to freshen up when you get to work. If your office doesn’t have a shower facility, consider a nearby Y or health club. More and more of them are offering commuter memberships. Find a secure place to lock your bike. Get a good lock, and ideally, find an indoor location where you can store it. You also need a work-clothes strategy. Is there space for them at work? Maybe you’ll need to carry them on your bike. There are many elegant solutions for transporting clothes by bike these days. Dreyer carries work clothes every day in a great backpack that he found online. There’s no magic solution. You just need

to think about it and work something out.

See you on the streets Commuting by bike is not for everyone – especially full-time and year-round like some crazy people we know. But occasionally and in good weather – nothing could be finer! C’mon in – the biking’s great!

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By Prof. Joel M. Schumm

Ineffective assistance, mootness of appealing, other holdings

Warrantless entry of a home ‘in pursuit of an aggressive and bloody dog’ In Carpenter v. State, 18 N.E.3d 998, 1000 (Ind. 2014), the Indiana Supreme Court considered whether police could enter a home without a warrant while pursuing “an aggressive and bloody dog.” Although the defendant challenged the search under both the Fourth Amendment and Article 1, Section 11 of the Indiana Constitution, the Court decided the case under Section 11, which provides greater protection and focuses on whether police conduct “was reasonable under the totality of the circumstances.” Id. at 1002. Applying the three Litchfield factors, the Court found a violation of Section 11. First, the State conceded the officers’ entry was not based on any concern or knowledge of illegal activity in the home; they entered to secure the dog and determine whether any human needed help. Id. Second, the degree of intrusion was high because a home is entitled to “the highest protection.” Id. Although the sliding door was open, presumably to allow the dogs access on a hot day, “the fence and padlocked gate served to secure the property against all other entrants.” Id. Finally, the needs of law enforcement were not great. Unlike cases involving people in dangerous

situations, the officers had no reason to believe a person was in danger when no one answered the door and a neighbor told the officers the homeowner was at work. Id. at 1003. Moreover, police had the homeowner’s phone number “and calling him or his employer to ensure that no one was in the residence would not have been overly burdensome.” Id.

‘Exhaustion rule’ for peremptory challenges Litigants may seek appellate review of for-cause challenges to prospective jurors only after they have exhausted their allocated peremptory challenge under Indiana’s “exhaustion rule.” Oswalt v. State, 19 N.E.3d 241, 244 (Ind. 2014). As a matter of first impression, the Indiana Supreme Court held that “parties satisfy the exhaustion rule the moment they use their final peremptory challenge – regardless of whom they strike.” Id. Thus, “if parties fully comply with the exhaustion rule and demonstrate they were unable to remove any prospective juror for lack of peremptories, appellate courts may review denial of any motion to strike for cause, regardless of whether a challenged juror actually served on the jury.” Id. Because the trial court was within its discretion to deny all three of the defendant’s preserved for-cause challenges, the Court affirmed his conviction.

Failure to argue sufficiency with ‘more specificity’ was not ineffective After a pro se post-conviction petitioner’s appeal was dismissed by the Court of Appeals despite his “best efforts,” the Indiana Supreme Court granted transfer in Hollowell v. State, 19 N.E.3d 263, 265 (Ind. 2014), to “do[] substantial justice.” The Court made clear at the outset

that the case did not implicate its “law-giving function” or involve “compelling issues of great public interest.” Id. In affirming the denial of postconviction relief, the Supreme Court forthrightly acknowledged that the Court of Appeals’ direct appeal opinion included a “misstatement,” namely, that the defendant possessed the “buy money” the detective had used for the drug transaction. Id. at 271. Nevertheless, the remaining circumstantial evidence supported the conspiracyto-deal-cocaine conviction. “Hollowell has failed to show a reasonable probability that but for counsel’s failure to argue the sufficiency claim with more specificity the result of Hollowell’s direct appeal would have been any different.” Id. Although litigants care most about winning their case, the way in which a litigant loses certainly matters. The Supreme Court’s 10-page opinion surely leaves a litigant feeling much better about the justice system than a one-page order dismissing his appeal.

CRIMINAL JUSTICE NOTES 10/14

D

uring October the Indiana Supreme Court issued four opinions in criminal cases, and the Court of Appeals decided cases involving an ineffective assistance claim for failing to challenge sentencing limitations for crimes in a single criminal episode, belated post-conviction relief appeals, and the mootness of appealing the revocation of a community correction placement after the sentence had expired.

Clarification of jury instruction defining ‘intentionally’ Indiana Criminal Pattern Jury Instruction 9.05 defines “intentionally” by first citing the applicable statute and then continues: A person engages in conduct intentionally if when he engages in the conduct, it is his conscious objective to do so. If a person is charged with intentionally causing a result by his conduct, it must have been his conscious objective not only to engage in the conduct, but also to cause the result.

The first sentence tracks the verbatim language of I.C. §3541-2-2(a) and thus is

Joel M. Schumm Clinical Professor of Law IU Robert H. McKinney School of Law Indianapolis, Ind. jmschumm@iupui.edu

(continued on page 42) RES GESTÆ • JANUARY/FEBRUARY 2015

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CRIMINAL JUSTICE NOTES 10/14 continued from page 41 “presumptively correct.” Campbell v. State, 19 N.E.3d 271, 277 (Ind. 2014). But two Court of Appeals’ opinions suggest disagreement about whether the second sentence is a correct statement of law. Id. (citing Corley v. State, 663 N.E.2d 175 (Ind. Ct. App. 1996), trans. denied, and Johnson v. State, 605 N.E.2d 762 (Ind. Ct. App. 1992), trans. denied). In Campbell, the Indiana Supreme Court concluded the instruction was a correct statement of law, but suggested the language might be improved: Here, the second sentence of the contested instruction serves to emphasize the heavy burden placed on the State to prove that a defendant acted intentionally. And this is so because not only must the State prove that an accused had the “conscious objective” to engage in the prohibited conduct but also that he intended to “cause the result” of his conduct. For clarity the sentence might be amended to read “[i]f a person is charged with intentionally causing a result by his conduct, the State is required to prove it must have been his conscious objective not only to engage in the conduct but also cause the result.” Nonetheless even in its current form the instruction holds the State to this higher burden of proof even though the statute defining intentionally does not do so in express terms.

Id. at 277-78 (emphasis in original).

Ineffective assistance for failing to raise ‘episode of criminal conduct’ sentencing challenge I.C. §35-50-1-2(c) places limits on aggregate sentences for non-violent crimes “arising out of an episode of criminal conduct.” In Gallien v. State, 19 N.E.3d 303, 309-10 (Ind. Ct. App. 2014), trans. denied, appellate counsel did not challenge consecutive sentences for two burglaries of businesses within about an hour of each other under this statute. The Court of Appeals 42

RES GESTÆ • JANUARY/FEBRUARY 2015

held appellate counsel was ineffective because such a claim would have prevailed based on “the small distance between the two burglaries, the short amount of time between them, and the apparent scheme that tied them together.” Id. at 310. Judge Bradford dissented. Although acknowledging “this court has issued a large number of seemingly inconsistent opinions regarding what constitutes a single episode of criminal conduct, some of which would tend to indicate that Gallien’s actions might be found to constitute a single episode of criminal conduct on appeal,” he nevertheless concluded there was not a reasonable probability that a panel would have found Gallien’s burglaries to qualify under the statute. Id. at 312-13.

Court allows belated post-conviction relief appeal to proceed Just three weeks after the Indiana Supreme Court held in In re Adoption of O.R., 16 N.E.3d 965 (Ind. 2014), that the failure to file a timely Notice of Appeals is not jurisdictional, the Court of Appeals applied that precedent to a postconviction relief case in which a pro se prisoner filed his Notice of Appeal one day late. Morales v. State, 19 N.E.3d 292 (Ind. Ct. App. 2014). Although O.R. had held an appeal is forfeited absent “extraordinarily compelling reasons,” the Court of Appeals elected to address the merits of Morales’ appeal based on its “preference ... to address the merits of claims in final disposition of controversies.” Id. at 296. It reasoned that the “extraordinarily compelling reasons” requirement should not be determined solely from the litigant’s perspective but rather the appellate court “has an interest in judicial economy and bringing finality to proceedings by post-conviction petitioners.” Id.

The Attorney General has sought transfer in Morales, and the State Public Defender has filed an amicus brief in support of the petitioner.

Challenge to community corrections revocation held moot Although the Indiana Court of Appeals leads the nation in resolving cases quickly, the appellate process is still relatively slow. By the time the court reporter prepares a transcript and the parties prepare their briefs, six months has usually passed. Nicholas Breedlove had little chance to appeal the revocation of his community corrections’ placement before he was released from the Department of Correction just one month later. Breedlove v. State, 20 N.E.3d 172, 173 (Ind. Ct. App. 2014). The Court of Appeals dismissed his appeal, decided about six months after his release based on mootness, that is, “when we are unable to provide effective relief upon an issue, the issue is deemed moot, and we will not reverse the trial court’s determination where absolutely no change in the status quo will result.” Id. at 174. Interestingly, the opinion includes a citation to Jones v. State, 847 N.E.2d 190, 200-01 (Ind. Ct. App. 2006), which applied the “great public interest” exception to mootness because the “questions of whether good-time credit applies to a sentence for criminal contempt and, further, whether a contemnor’s sentence is reasonable are ones of significant import, which may continue to evade review.” Even if Breedlove’s appeal was “merely review of alleged error,” Breedlove, 20 N.E.3d at 174, that error may well have future consequences to him, such as its appearance in a pre-sentence report or when discovered as part of a criminal background check.


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FAIR COMMENT continued from page 46 basis, he maintained. The talk can be found at: http://www.ted.com/talks/ matt_cutts_try_something_new_for_ 30_days and http://tinyurl.com/ try-something-new-for-30-days. My law partner is a great example of putting theory into practice. He has practiced law for more than 50 years. He’s had a financial advisor for years, but more importantly he plays tennis about once a week, picked up the trumpet a few years ago and recently took up tap dancing. I love hearing about a local senior judge’s international travels. It seems that she’s out of the country more than she’s in the country. Historically, people are concerned about being financially able to retire, but more and more I wonder if people are planning so that they are physically and mentally able to enjoy their financial retirement. If you start planning today, you’ll never have to worry about the question.

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ISBA members: Update your addresses email & postal online at www.inbar.org

CLASSIFIEDS Email or fax your classified word ad to Susan Ferrer, sferrer@inbar.org or 317/266-2588. You will be billed upon publication. ISBA members 40¢ per word, $10 minimum Nonmembers 60¢ per word, $15 minimum

Employment Opportunities

WANTED: 3 sole practitioners interested in sharing office space in Class A Building in Carmel. All services provided with an association of attorneys with an overflow of business. Terms negotiable.Please email inquiries to carmellawoffice@gmail.com.

WANTED: Established Attorneys. 4 solo practitioners seeking additional established attorneys to share office space in a beautiful wooded location on the northeast side of Indianapolis. Referrals available. Amenities available include receptionist, unlimited local/long distance calling, multi-function copier/scanner, high-speed Internet, free parking and conference room. Terms negotiable. Please call John Ittenbach at 317/842-5235 or email jfittenbach@ijlegal.com for more information. Ittenbach, Johnson, Koeller & Abrams, P.A.

Employment Desired

INDIANAPOLIS LITIGATION attorney available for wide range of litigation and appellate assignments. More than 25 years as litigator. Have handled more than 30 appeals. Either employment or contract arrangement possible. Ronald G. Sentman, 317/875-6702, RonaldS53@Comcast.net.

WORKER’S COMPENSATION. Evansville attorney Kevin R. Bryant seeks referrals on worker's compensation cases statewide. Please telephone 812/437-9991.

INDIANAPOLIS IMMIGRATION attorney seeks professional or co-counsel positions with Indiana attorneys in the practice of immigration law. Over 25 years’ experience in immigration. Will handle adjustment of status, change of status, labor certificates and other matters. Also, will attend interviews at Indianapolis Immigration Office. Thomas R. Ruge, Lewis & Kappes, P.C., 317/639-1210, truge@lewis-kappes.com EMPLOYMENT LITIGATION Indianapolis area attorney available for referrals and co-counsel affiliations on wide range of employment matters. 25+ years of experience representing businesses and employees. Robert S. Rifkin, Maurer Rifkin & Hill, P.C., 317/844-8372.

FRED PFENNINGER, COMMERCIAL & other collections. When you need help collecting your judgment. On faculty for over 30 seminars on collection law. Statewide referrals, consultation and co-counsel positions. Pfenninger & Associates, 317/848-7500, fred@indianacollections.com QDRO PREPARATION by Indiana attorney. Reasonable rates, quick turnaround, assistance at any stage of the dissolution, from discovery through plan and court approval. For information, email Feightnerlawfirm@gmail.com or call 260/755-0873. ERISA CLAIMS, long-term disability, health insurance claims, life insurance claims. Contact Bridget O’Ryan, 317/255-1000, 1901 Broad Ripple Avenue, Indianapolis, IN 46220, boryan@oryanlawfirm.com

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LOCAL COUNSEL, southwestern Indiana. Vanderburgh, Posey, Gibson, Pike, Dubois, Warrick, Spencer, Perry, Knox, Daviess. Circuit/Superior Court, Bankruptcy/District Court, Sheriff Sales, Settlement Conferences. Erin Berger, 812/250-6744, erin@erinbergerlaw.com

CALIFORNIA LAWYER since 1966. AV-rated. Member, ISBA. Father and brother practiced many years in Marion. Enjoys interacting with Indiana lawyers. Handles transactions, ancillary probates and general and complex litigation in all California state and federal courts. Law Offices of John R. Browne III, a Professional Corporation, 50 California St., Suite 3500, San Francisco, CA 94111; tel., 415/421-6700; fax, 415/398-2438; email, johnrbrowne@sbcglobal.net; www.jbrownelaw.com VETERANS DISABILITY. Accepting referrals of veterans' disability, military Medical and Physical Evaluation Boards, Courts Martial, military discharge upgrade and Boards for Correction of Military Records cases throughout Indiana and across the country. Bosley & Bratch, 800/9536224, rbratch@lawyers4veterans.com, www.lawyers4veterans.com FLORIDA ANCILLARY PROBATE in most counties. Call collect, Pavese Law Firm, 239/542-3148, attn: Michael Gennaro, 4635 S. Del Prado Blvd., Cape Coral, FL 33904. STEVE TUCHMAN, IMMIGRATION. Experienced practitioner for statewide referrals, consultation and co-counsel positions. Lewis & Kappes, P.C., 317/639-1210, STuchman@ Lewis-Kappes.com

WORKER’S COMPENSATION. Indianapolis attorney Charles A. Carlock seeks referrals on worker’s compensation cases statewide. Tele., 317/5735282 or 866/573-5283.

LONG-TERM DISABILITY. Attorney Charles A. Carlock seeks referrals on claims for long-term disability (ERISA) benefits. Tele., 317/573-5282 or 866/573-5283.

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MISSING HEIRS & WITNESSES located, intestate heirs verified. Complete family lineage establishment. Mark E. Walker & Company, LLC – Indiana Private Investigator Firm; 800-982-6973; www.MissingHeirsLocated.com

HEALTH CARE PROVIDER license defense. Experienced nurse attorney is available to represent nurses, physicians, pharmacists, dentists, veterinarians and other licensed health care professionals before the various licensing boards or to respond to an attorney general’s office license investigation. Lorie A. Brown, RN, MN, JD, lorie@brownlaw1.com, 317/465-1065.

APPELLATE COUNSEL Appellate Attorney seeks referrals/projects for hire Experienced in appellate advocacy for civil & criminal appeals, including PCR representation Will travel to meet with clients as needed

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OFFICE SPACE. Law firm at 235 N. Delaware St., Indianapolis, has space available to accommodate 3 attorneys in offices measuring 13’ x 23’ each. Space also available for support personnel. The offices may be furnished or unfurnished and include wireless Internet, phones and access to conference room. The cost of the receptionist would be divided among all of the attorneys. Questions may be directed to: David McClure, 317/221-0800 or davemcclure@att.net.

OFFICE SPACE: Attorneys located in the Gold Building at 151 N. Delaware St. in downtown Indianapolis looking to share extra office space. Secretarial services available. Possible referrals. Low rent. Reply to sferrer@inbar.org and reference “Gold Building” office space.

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By Derrick H. Wilson

Life planning as investment planning: a primer for lawyers

FAIR COMMENT

I

recently met with my financial advisor to discuss my finances, long-range goals and how the market was going. My financial advisor insists that we meet twice a year to discuss these matters. I know that he spends countless hours analyzing various options to ensure long-term financial stability. I have to wonder, however, whether we are making appropriate investment choices on health issues. Some of the fundamentals for financial planning apply equally to personal investment – fundamentals such as diversification, discipline and the importance of starting early. (Derrick Wilson is not a financial advisor and cannot provide competent financial advice; on most days, he cannot locate his checkbook.) Early financial planning can make the difference between early retirement and no retirement. When you’re young, it is hard to plan for the future and to invest the resources necessary to ensure your financial well-being when it seems so far away. Likewise, when you are younger it may not seem as important to have regular physical activity. Regular exercise has clear health benefits and can mitigate certain health problems. You can certainly start preparing for that Ironman competition in your 50s, but starting such physical preparation at an earlier age and sticking with it make attaining the goal much easier. Diversification means that you don’t have all of your eggs in one basket; if one investment fails or one market segment takes a hit, one can hope the other segments will protect the overall investment. Diversification for personal investment means that I need to do different things to stay active. I try to have lots of little hobbies. I do martial arts once a week. (Derrick Wilson is not, nor will he ever be considered, a “lethal weapon.”) I enjoy biking when the weather is good. About two years ago a friend and I started going to a local rock climbing gym. I’m not a runner, nor will I ever be a runner, but if I keep doing different types of physical exercise, I avoid being bored. At home I try to do two or three different types of exercise a week – treadmill, elliptical, heavy bag and weights. If we are going to stay active, it’s important that we diversify our physical activities to ensure that we stay with it.

Derrick H. Wilson Chair, ISBA GP, Solo & Small Firm Section Mattox & Wilson New Albany, Ind. dhw@mattoxwilson.com

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Discipline in the financial world means that you invest regularly and try to avoid timing the market (i.e., trying to anticipate where the market will go when the market is not there). Discipline for personal investment means that the days

RES GESTÆ • JANUARY/FEBRUARY 2015

you don’t feel like getting out of the office or doing some exercise are generally the days you really need to. Exercise is a great form of stress relief – it lets you take your aggression out on something else. (Or someone else – my sparring partner can attest to this; he really hates getting in the ring when I’m stressed). Once this type of investment becomes a routine, it seems odd to skip a workout session, or at least it motivates you to try to find another form of exercise. More and more, personal investment entails not only the body, but also the mind. Recently, there’s been a number of companies promoting programs that are supposed to develop your brain and make it more resilient in the face of cognitive decline. Other programs literally try to change your outlook. One recent application called Happify (http://www.happify.com) purports to improve your mood by helping you focus on positive words and avoid negative ones. It has a series of games designed to focus on the positive and encourage a positive outlook in general. I recently discovered the TED application for my phone. TED (an acronym for technology, entertainment and design) is a nonprofit organization that brings in extremely diverse speakers to talk about a wide variety of topics. The application lets you download the talks to replay on your phone in video format or sometimes audio. I recently had to attend a meeting in Indianapolis and downloaded about 90 minutes worth of TED talks. During a 90-minute period, I learned about robotics, the amazing research being done at DARPA (Defense Advanced Research Projects Agency), education reform, ways to fix the Internet, and the Axis of Evil comedy tour (hysterical, by the way). One of the best talks was from Matt Cutts entitled “Try Something New for 30 Days.” His premise was very simple; he would simply try to do something different that he always wanted to do for 30 days. For example, he indicated that he always wanted to be a novelist and decided that he would write a novel in 30 days. He completed his novel in 30 days, but indicated that it was largely an awful novel. He could, however, now say he was a novelist. He found that when he focused on these types of projects for 30 days he spent less time on things like television or other time sucks. Many of the things he tried for 30 days he did not ultimately keep doing. (He tried, for example, to avoid all sugar for 30 days. He did this, but apparently day 31 was extremely ugly.) Some of the other things he tried, such as biking to work on a regular (continued on page 44)


Profile for Indiana State Bar Association

Res Gestae - January/February 2015  

January/February 2015 edition of Res Gestae, the journal of the Indiana State Bar Association

Res Gestae - January/February 2015  

January/February 2015 edition of Res Gestae, the journal of the Indiana State Bar Association

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