Vol. 59, No. 8
INDIANA’S VOUCHER PROGRAM & RFRA COMPELLED SPEECH IN LAWYER ADVERTISING REGULATION FEE DISPUTE COMMITTEE PROPOSES NEW RULES
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The Journal of the Indiana State Bar Association
RES GESTÆ April 2016
Vol. 59, No. 8
DEPARTMENTS 14 VOUCHERS & RFRA
28 YOUR OFFICE ADDRESS
GRAPHIC DESIGNER & PHOTOGRAPHER Vincent Morretino firstname.lastname@example.org ADVERTISING Chauncey L. Lipscomb email@example.com WRITTEN PUBLICATIONS COMMITTEE CO-CHAIRS Joseph M. Pellicciotti William A. Ramsey firstname.lastname@example.org
Carol M. Adinamis, Westfield, 2015-2016
TECHNOLOGY: DATA BREACHES
RECENT DECISIONS 11/15
CRIMINAL JUSTICE NOTES 12/15
Donald R. Lundberg and Caitlin S. Schroeder, Indianapolis
Sharon D. Nelson and John W. Simek, Fairfax, Va.
Curtis T. Jones, Indianapolis
Prof. Joel M. Schumm, Indianapolis
Patricia L. McKinnon, Indianapolis
F E AT U R E S
46 EXERCISE! EDITOR Susan J. Ferrer email@example.com
LEADERSHIP DEVELOPMENT ACADEMY AT THE STATEHOUSE By Laura Paul, Terre Haute
INDIANA CHOICE SCHOLARSHIP & THE IMPACT OF RFRA By Monica J. Conrad, Merrillville, and Elizabeth M. Littlejohn, Valparaiso
FEE DISPUTE COMMITTEE PROPOSES NEW RULES By Judge Elaine B. Brown, Court of Appeals of Indiana
12 LEGAL ETHICS ESSAY CONTEST 13 THANKS TO OUR VOLUNTEERS!
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. © 2016 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 • APRIL 2016
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Join a section or committee!
E 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 Carol M. Adinamis, Westfield President-Elect Mitchell R. Heppenheimer, South Bend Vice President Andi M. Metzel, Indianapolis Secretary Patricia L. McKinnon, Indianapolis Treasurer Hon. Michael N. Pagano, Crown Point Counsel to the Karl L. Mulvaney, Indianapolis 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 House of Delegates Young Lawyers Section
Michael J. Jasaitis, Crown Point Robyn M. Rucker, Valparaiso Robert L. Jones Jr., Notre Dame David E. Bailey, Fort Wayne Daniel L. Askren, Attica Patrick J. Olmstead, Greenwood Ann Z. Knotek, Brownsburg Hon. Leslie C. Shively, Evansville Crystal G. Rowe, New Albany Hon. Angela G. Sims, Anderson Andrew Z. Soshnick, Indianapolis Hon. Tanya Walton Pratt, Indianapolis Deborah J. Caruso, Indianapolis Rafael A. Sanchez, Indianapolis Shontrai D. Irving, Hammond Jeff R. Hawkins, Sullivan Hon. Thomas J. Felts, Fort Wayne, Chair Michael E. Tolbert, Gary, Chair-Elect Benjamin D. Fryman, Valparaiso, Chair
STAFF Executive Director Thomas A. Pyrz • firstname.lastname@example.org Administrative Assistant Kimberly D. Latimore • email@example.com Associate Executive Director Susan T. Jacobs • firstname.lastname@example.org Administrative Assistant Julie A. Gott • email@example.com Director of Communications Susan J. Ferrer • firstname.lastname@example.org Director of Public Relations & Social Media Carissa D. Long • email@example.com Graphic Designer & Photographer Vincent Morretino • firstname.lastname@example.org Legislative Counsel Paje E. Felts • email@example.com Director of Special Projects Section & Committee Liaison Maryann O. Williams • firstname.lastname@example.org Administrative Assistant Barbara L. Mann • email@example.com Local & Specialty Bar Liaison Catheryne E. Pully • firstname.lastname@example.org Director of CLE Christina L. Fisher • email@example.com CLE Coordinator Whitney Ruffin • firstname.lastname@example.org Section & Committee Liaison Melanie Zoeller • email@example.com Director of Meetings & Events Ashley W. Higgins • firstname.lastname@example.org Membership Records & Technology Coordinator Kevin M. Mohl • email@example.com Bookkeeper & Convention Registrar Sherry Allan • firstname.lastname@example.org Receptionist Chauncey L. Lipscomb • email@example.com
ven though I have spent virtually my entire legal career as a member of the Indiana State Bar Association, I continue to be delightfully surprised to discover how busy the Association’s sections and committees are with their many initiatives of which I was unaware. Our 28 sections and 38 committees meet on a regular basis and work diligently to serve the members of the ISBA. Aside from the communities that these groups establish among attorneys and legal professionals with common practices or interests, they often go the extra mile to help our profession and the citizens of this great state. I know I don’t show my personal appreciation to these groups enough for their incredible work, so I’m going to highlight just a few of the extraordinary things they are doing. We always welcome new members to our sections and committees, so either join a section or call the ISBA offices to see if there is an available spot on a committee. I’m sure you’ll find great satisfaction in contributing to their fine work. For instance, the Appellate Practice Section and the CLE, Improvements in the Judicial System and Women in the Law committees cosponsored the Jan. 15 “Demystifying the Judicial Selection Process” program, which welcomed more than 100 attendees. There is no doubt in my mind that this program encouraged attorneys to pursue careers in the judiciary. We have incredible judges in our state, but with our new specialized courts and retiring judges, we need new applicants all the time. The feedback on this program was fantastic! The Young Lawyers Section continues to do spectacular work. They have already produced eight informational videos providing answers and advice for our members on various questions of interest. This is something that I have really wanted to do to provide more value to our members. Anyone interested in suggesting new videos or participating in them can email Carissa Long on the State Bar staff at firstname.lastname@example.org. These new videos will be featured on the ISBA website and our social media channels (Facebook, Twitter, etc.). The Young Lawyers Section is also sponsoring Law Day events in May, matching attorneys with local schools to explain to Hoosier children the Miranda
warning 50 years on. What a fantastic way to give back to the community. The Family & Juvenile Law, Elder Law and Taxation sections are currently providing free section membership to young lawyers in their first few years of practice. And the Family Law Section is also planning on hosting monthly webinars for young lawyers on issues related to beginning a family law practice. Finally, the American Citizenship Committee wants you to represent the ISBA at this year’s naturalization ceremonies conducted by Indiana’s U.S. district courts (in the Southern District, 35 ceremonies in Indianapolis, and in the Northern District, 29 ceremonies, which include six ceremonies in Fort Wayne, one in Lafayette, and 11 in both South Bend and Hammond). At each ceremony, an ISBA member makes brief congratulatory remarks and presents each candidate receiving citizenship with a personalized “Canons of American Citizenship” provided by the Association. To receive a list of available ceremony dates, please contact committee co-chairs Phil Ripani, pripani @boselaw.com, for the Southern District and Colin Reilly, email@example.com, for the Northern District. Your ISBA staff has recently added a Volunteer listing under the “For Members” tab of our website (www.inbar.org). It describes opportunities for members to give back to their communities, including both short-term/one-time opportunities and longer-term commitments. I could fill this entire publication with the wonderful things that our sections and committees are doing (and the many great opportunities available to you). It’s truly amazing the things we can accomplish together.
PRESIDENT’S PERSPECTIVE CAROL M. ADINAMIS firstname.lastname@example.org 2015-2016
RES GESTÆ • APRIL 2016
Save the Date! April 23-25, 2017
ISBA Spring Getaway
Doubletree by Hilton â€“ Historic District | Charleston, SC
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ISBA’s Annual Day of Service Sept. 17
WHEN: Saturday, Sept. 17 WHO: Attorneys and judges from local bar associations throughout the state along with their families and staff WHAT: Attorneys and judges from across the state will come together in their respective counties to engage in hands-on community service. From cleaning up neighborhoods to volunteering at local shelters, attorneys and judges will have the opportunity to work together to make their communities better. Activities may include volunteering at a local soup kitchen or homeless shelter; providing painting or cleanup services for local neighborhoods in need; or assisting the Red Cross, Salvation Army or Habitat for Humanity. WHERE: Your local communities – district liaisons will work with local bar associations to coordinate efforts in every county for the Annual Day of Service. WHY: The focus of the Annual Day of Service is hands-on community service, with the goal to inspire attorneys to get their hands dirty by helping to build and/or clean up local parks, adopting streets or building homes; unifying members of
The hope is to make this public service project bigger every year. Last year, the ISBA Service Committee helped local and specialty bar associations and several law schools coordinate 12 projects involving 11 counties – Allen, Hendricks, Lake, LaPorte, Marion, Morgan, Newton/Jasper/ Benton, Porter and Vanderburgh. Add your county to the list and start planning today! If you would like to become involved in the ISBA Service Committee or become a district liaison, please contact Chair Marie Kuck at mkuck@ k-glaw.com or Catheryne Pully at cpully @inbar.org. We currently are in need of liaisons for Districts 7-10. For more information or to add your county and event to the Annual Day of Service project list, contact Annual Day of Service Director Jaime Oss at email@example.com or Catheryne Pully at firstname.lastname@example.org.
Courthouse art on display at Conner Prairie he Indiana State Bar Association’s Courthouse Art Project will be on display as part of a yearlong exhibit at Conner Prairie, the interactive history park in Fishers, Ind. Established in 2007, the Courthouse Art Project is an initiative to collect original artwork of courthouses in all of Indiana’s 92 counties. The ISBA has secured 44 paintings so far, which will appear in a phased
approach at Conner Prairie in 2016. The Indiana Bicentennial Commission has endorsed the Courthouse Art Project as an official Bicentennial Legacy Project. “We still have work to do in order to have all 92 counties represented with a work of original art,” said Douglas D. Church of Noblesville, past president of the ISBA and chair of the Courthouse Art Project Committee. “It is our hope that having public displays such as this will inspire those counties that have yet to contribute to the collection to get serious about it and find ways and means to donate a painting.”
hank you for making the 2015 Annual Day of Service such a success! Even though the Marion County project was rained out, more than 75 judges, attorneys, law students, staff and family members volunteered. It’s now time to save the date for this year’s Annual Day of Service. Mark your calendars today!
state, local and specialty bar associations; and improving the reputation of the legal community as a whole.
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By Laura Paul
Leadership Development Academy at the Statehouse
he Leadership Development Academy met for the second time Feb. 15-16, and the theme of the session was “transformational leadership.” Highlights included presentations by Tom Pyrz, executive director of the ISBA; Carol Adinamis, current State Bar president; David Long, president pro tempore of the Indiana State Senate; Dan Evans, CEO of IU Health; Magistrate Judge Tim Baker of the Southern District of Indiana; and surprise guest, Indiana Gov. Mike Pence. The session began with the class hearing from Pyrz and Adinamis talk about leadership opportunities within the State Bar and the challenges the profession faces in the future. Tom began by making it clear that while he is often complimented for the work of the ISBA, it is the staff and the members that do much of the work. He discussed his leadership style and talked about the many opportunities to get involved in the Association. Tom also talked about what a great springboard to leadership the Leadership Development Academy is. Carol talked about how she is an introvert and would be the last person you think would be bar president. She also recalled how she first got involved in the ISBA. She signed up for the Legal Ethics Committee, and at her first meeting she met many of the state’s top lawyers, who were discussing the issues on the agenda. Thinking she would be able to sit back and listen during the meeting, she was surprised when these great legal minds Laura Paul actually sought her Laura Paul, PC opinion. She stayed Terre Haute, Ind. involved and was
RES GESTÆ • APRIL 2016
honored when nominated to eventually become the organization’s president. Carol encouraged everyone to get involved in the bar association – even quiet lawyers like herself. “Whatever your personality is, you can be a leader in the ISBA.” The class then moved on to dinner at Georgia Reese’s Southern Table & Bar in downtown Indianapolis, where they mingled with lawyer-legislators and attorneys from Cummins, Inc. The class members were privileged to have intimate conversations throughout the dinner with Sen. Long, Sen. Rod Bray, Rep. Ed DeLaney, Rep. Eric Koch and Rep. Tom Washburne. The resounding theme throughout all the conversations was that civic involvement is important, that one person can make a difference and that civility in government is not dead. The class was truly honored to dine with these servant-leaders and got great insight into the heart of our representative government. Sen. Long also told the entire class that being a lawyer-legislator is not easy, but having lawyers in the legislature was imperative. He also stressed the importance of attorneys getting involved in their communities in some capacity and encouraged everyone to figure out what their role might be. With that message, class members broke away to continue developing their own expression of leadership – their class project (more about the project in coming issues as the project begins to take shape). The following morning, a few brave souls met for a morning run, led by LDA grad Sara McClammer. After that, participants gathered at the Indiana State Library, an architectural and historical gem just a block away from the Statehouse. As so frequently comes up in conversations about leadership,
mentorship was a theme. Federal Magistrate Judge Tim Baker addressed the class first and talked about the power of leadership to transform communities, especially in terms of improving the delivery of services to poor litigants through the Southern District’s Reentry Program for recently released offenders and the Mediation Assistance Program. For Judge Baker, his mentor was Senior Judge Larry J. McKinney, who was on the Johnson County bench when Baker first met him as a journalist. McKinney dropped the idea of going to law school in Baker’s ear, and he was off and running. After finishing law school, he clerked for Judge McKinney, who by then was sitting on the bench in federal court for the Southern District of Indiana. Tim next worked at Barnes & Thornburg and then as an assistant U.S. attorney. He also became involved with the ISBA, saying the most important thing a lawyer can do is “stay out there” and work at turning your ideas into action. “Luck,” he said, “is proportional to hard work.” As for the leadership of the courts, he spoke warmly of the Southern District’s Reentry Program, the purpose of which is to closely supervise recent releasees, but more than that, the program helps them get on their feet in a sustainable, life-changing way. Coming out of prison with a desire to fulfill the promise to be a productive participant in society is rife with challenges that most of us know about in the abstract but don’t really have to think about in our own lives – scraping enough money together for a deposit on an apartment, sorting out transportation, and finding work when your criminal record comes with you to every interview.
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Judge Baker told the story of a participant in the reentry court, who wanted more than anything else to have a better relationship with his son and worked hard at establishing it. He invited Judge Baker to one of his son’s games, and his probation officer happened to call in to check up on him while they were there. He handed the phone to Judge Baker, and the probation officer was surprised, to say the least. “That,” he said, “is transformational leadership – commitment, relationship and presence.” And not only was Baker there for his supervisee, but the man was there for his son. Baker advised the class that good leadership could be summed up as a “willingness to take on the responsibility of helping other people.”
Ronald Reagan) brought him across to the Republican side of the aisle and encouraged him to think about running for local office. Pence said he never dreamed of becoming governor, but for him, “leadership is a willingness to step forward. As Woody Allen said, ‘Ninety percent of life is just showing up.’” Pence encouraged the class to get involved in politics,
to keep showing up, to develop their leadership skills, and to develop mentors. He left the class with this definition: “Leadership is about making decisions.” The class went on to hear an oral argument in front of the Court of Appeals, and afterwards, Judges Melissa May, Ted Najam and Pat (continued on page 10)
The next speaker echoed this sentiment. To the delight of the class, the next speaker was Gov. Mike Pence. Appearing relaxed and at ease in a blue windbreaker and khakis, Gov. Pence revealed he had a boyhood friend in the crowd – he went to high school in Columbus, Ind., with Indiana Supreme Court Justice and LDA Committee member Steven David. The governor talked about his own leadership style in the context of how he mentors school kids – he likes to tell them about his own leadership path as the grandson of an Irish immigrant. “In America,” he said, “anyone can be anything.” He encourages kids to “stay away from the things that can derail you.” Then he turned to his own dreams of leadership as a young man. Gov. Pence identified the Kennedy brothers and Martin Luther King Jr. as his heroes. But despite the fact that he dreamed of being a leader himself, he found it hard at first – as Judge Baker put it – to “stay out there.” His own mentor, John Rumple (whose hero was RES GESTÆ • APRIL 2016
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LDA AT THE STATEHOUSE continued from page 9 Riley engaged the class in a conversation about the appellate process and the court. Attorney General Greg Zoeller next took center stage to discuss examples of “Zoellerous” advocacy by his office. Beginning with the serious issue of human trafficking – which many people were surprised to learn exists in Indiana – Zoeller talked about his efforts to bring awareness to this issue and discussed some of the initiatives his office was engaged in to combat this evil in our state. In addition, he explained how he has worked toward eliminating the “silos” within his office, as well as other parts of state government, in order to create force multipliers, which he described was an old military term where the effectiveness of an individual’s contribution would be enhanced, or multiplied, when focused upon a common goal. This focus is especially important because, while Zoeller is the office-
holder, he is not the Office of the Attorney General. He may set the vision, but he ultimately relies upon a group of attorneys and staff to fulfill it to the “best of their skill and ability.” When describing his leadership style, the attorney general explained he looks for leaders with whom people naturally gravitate toward, and then he gets out of their way in order for them to succeed. A staple during Session 2 found the class on the ornate 4th floor of the Statehouse having lunch with Supreme Court justices, Court of Appeals judges, the Tax Court judge, the Attorney General, the Solicitor General, the Inspector General and other leaders in our profession who engaged the class in dynamic discussions about current issues. And some class members were fortunate to get a private, personal tour of Judge Paul
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Mathias’ chambers and Justice Steven David’s chambers. After lunch, the class sat in on a Senate session, during which Sen. Pete Miller introduced a resolution recognizing the importance of the LDA program. The class was then treated to a perennial favorite of this session – a panel discussion about leading a client through a crisis by understanding how to deal with the media, which featured Jim Riley of Riley Bennett & Egloff, a past president of the ISBA and the current class’ project mentor; Terry Tolliver, an LDA graduate and a deputy attorney general; and Jennifer Dzwonar, a media specialist at the public relations firm Borshoff. Dan Evans, the CEO of IU Health, then spoke about transforming communities through the impact of healthcare. Dan spoke about the Affordable Care Act and how its implementation required a number of constituencies. While there were differences of opinion, being a leader requires you to consider those thoughts and ultimately reach the best decision. He also spoke about how his office space was designed in order to force interaction among groups that might not otherwise have a reason to meet and how that had been a successful strategy. Finally, Dan challenged the group to always be first to volunteer when asked. The end of the day featured an interactive discussion of the ethics of community involvement and board membership, led by LDA graduate Caitlin Schroeder of Barnes & Thornburg, which made for a nice segue to Session 3 in South Bend March 10-11; the theme was “Economic Development & Community Leadership.” The class was honored to hear from the mayor of South Bend and many other leaders in the community!
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2016 Legal Ethics Essay Contest Deadline: July 15 he Indiana State Bar Association’s Legal Ethics Committee – along with the Young Lawyers Section and Written Publications Committee – is again, in promotion of the continued discussion on ethics in our profession, sponsoring ISBA’s yearly ethics essay contest. The contest, open to Indiana law students, new lawyers and paralegals, boasts a cash prize for the top entry as well as the chance to have one’s essay featured in the State Bar’s flagship publication, Res Gestae.
Entrant basics • Essay length not to exceed 2,000 words (including endnotes) • Free to choose any topic of interest to you (or to the larger legal community) in drafting your essay • All entries must be electronically submitted on or before 11:59 a.m. EDT Friday, July 15. Submissions will be judged by three Legal Ethics Committee members. The top three participants will present their essays to the committee and receive recognition in this year’s Awards Luncheon program Sept. 9. Questions? Contact Catheryne Pully at the State Bar, 800/2662581 or email@example.com.
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RES GESTÆ • APRIL 2016
ISBA Legal Ethics Essay Contest GOALS To (1) further the discourse on legal ethics in the profession generally and amongst Indiana law students and recent graduates in particular, and (2) allow ISBA’s Legal Ethics Committee to continue assessing prevailing attitudes of those at the outset of their careers toward issues in professional responsibility.
RULES Eligibility: The contest is open to: (1) all Indiana law school current enrollees and recent graduates (i.e., received J.D. or LL.M. degree within the last year); (2) attorneys within their first three years of practice; and (3) paralegals with five years (or less) work experience. Length: Overall essay must not exceed 2,000 words (including endnotes). Topic: Participants are free to write on any topic of interest to them (or to the legal community as a whole). Deadline: All essays are to be electronically submitted, in Microsoft Word format, to ISBA Local & Specialty Bar Liaison Catheryne Pully (firstname.lastname@example.org) no later than 11:59 a.m. EDT Friday, July 15. Finalists: Members from the ISBA Legal Ethics Committee will select, from all entries, three finalists, who will then receive an invitation to attend the committee’s mid-summer meeting, either in-person or telephonically, to present their essays and answer questions. Winner: Committee members charged with judging submissions will award the 2016 title to the top article. The winner will be contacted by email. Prize: The winning essayist, in addition to receiving a $500 cash prize, will have the opportunity to have his or her piece considered for publication in Res Gestae, ISBA’s flagship publication, with statewide readership among legal practitioners numbering in the thousands. The top entrant will also have the chance to compete for a Harrison Legal Writing Award, handed down periodically by the State Bar’s Written Publications Committee, as well as be formally recognized at the ISBA’s Awards Luncheon scheduled for Sept. 9. The remaining two finalists will, along with the top essayist, have their entries reproduced in Addendum, ISBA’s biweekly, membership-wide e-newsletter. The top three submissions will also earn mention in the event program for this year’s Awards Luncheon.
GUIDELINES 1. Essays are to be in typewritten, using either Times New Roman or Book Antiqua font, 12-point type. 2. Essay text is to be double-spaced, with 1-inch margins on either side. 3. Essay pages are to be lower-right numbered, complete with author’s name. 4. Essay notes and citations are to be entered using the Bluebook legal style. 5. Essays are to reference at least one of the following legal authorities: the Indiana Rules of Professional Conduct; the Indiana Rules for Admission to the Bar & the Discipline of Attorneys; Indiana Court of Appeals (for-publication or reclassified memorandum) decisions; and Indiana Supreme Court opinions. Essayists are free, of course, to additionally reference: American Bar Association Model Rules of Professional Conduct; rules and case law governing ethical conduct and professional responsibility in other U.S. jurisdictions; and exceedingly persuasive secondary sources.
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Thanks to our “Talk to a Lawyer Today” volunteers! DISTRICT A Coordinator: Stephanie Wicke Karen E. Antink Candace D. Armstrong Renee M. Babcoke Russell D. Bailey Joanne Baitup Ashley L. Balicki Hannah J. Barnard Christian W. Bartholomew Daniel C. Blaney Barbara A. BollingWilliams Richard P. Busse Jane R. Callies Darcie L. Campanella Michael A. Campbell Carrie Castro Richard F. Comingore Carri N. Crider Jamey Critchlow Andrew A. Crosmer Angela G. Crossin James S. Dal Santo Dawn M. Dawkins Julie A. Demange Cheryl Evans Jerome L. Ezell Kelly W. Gibson Rebecca G. Goddard William Green James E. Harper Mark R. Harris Ragen H. Hatcher Thomas C. Higgins Robert K. Higginson Jason L. Horn Jennifer Irons Lori S. James William M. Jonelis Inga D. Lewis-Shannon Michael L. Manis Michael J. Massa Teresa A. Massa James I. McCafferty Alicia J. McClean Michael P. McIlree Douglas C. McMillan Robert T. Miller Carla J. Morgan Richard F. Morrisroe Ruth B. Norris William J. O’Connor William H. O’Toole T. Edward Page Kathryn L. Rowberg Alisa L. Rude Deanne K. Sasser
Barbara J. Schmidt Charissa M. Sheehan Michael M. Sheehan Lea P. Shelemey Peggy Jo Stamper Judith H. Stanton Adam M. Sworden Deborah L. Szczepanski Robert L. Taylor Shelice R. Tolbert Jaime L. Turley-Perz Luis E. Vallejo Stephanie A. Wicke
Ann M. Trzynka Marian C. Welling Sarah L. Wladecki Kenneth R. Yahne Randy W. Young
Steuben County Craig R. Benson James W. Burns Gregory A. Cranston Jonathan O. Cress Gregory A. Eberhard Marylyn K. Ernsberger Angie L. Hendrickson Todd J. Hendrickson Brian W. Kaiser Patricia L. Martin Steven C. Mayer James A. McEntarfer E. Foy McNaughton Michael Morrissey Frank Stewart Ronald G. Thomas William R. Wible Thomas S. Wilson Jr.
Coordinator: Ruth DeWit Allen County Douglas R. Adelsperger Anthony T. Adolf Loren K. Allison Christopher Bandemer Rachel E. Blakeman Jon A. Bomberger Daniel J. Borgmann Timothy L. Claxton Lindsay A. Davenport Ruth DeWit Craig R. Finlayson Danielle L. Flora Heidi L. Fowler Jane M. Gerardot David Van Gilder Stephen P. Griebel Thomas A. Hardin Alan K. Hofer Hal C. Hossinger Kerry M. Hultquist David P. Irmscher Thomas C. Kus Yvette G. Kleven Martha M. Lemert Kent C. Litchin Christine M. Marcuccilli George G. Martin Diane M. Miller Karen T. Moses Apexa Patel Douglas D. Powers Stephen P. Rademaker Kingsley G. Regnier Holly M. Ripke Dusty M. Roach Ronald J. Severt Jr. Andrew P. Simmons Thomas D. Smith Brian J. T’Kindt J. Brian Tracey Stephanie H. Troyer
Huntington County Lisa M. Garrott Adrian L. Halverstadt William B. Hogg Casey C. Morgan Jeremy K. Nix Joseph S. Northrop Justin R. Wall
DISTRICT D Coordinator: Timothy Peterson Sandra S. Dukes Pamela J. Hermes Amber B. Morgan Matthew A. Salsbery Edward W. Stachowicz
DISTRICT E Cass County Andrew A. Achey Jim J. Brugh Hon. Leo T. Burns John S. Damm Braden J. Dean Amber N. Garrison Yamir Gonzalez-Velez R. Tod Groff W. Kelly Leeman Jacob M. O’Brien Andrew J. Stephenson George W. Stephenson
DISTRICT G ISBA Hotline Volunteers
Jennings County Mark J. Dove James F. Funke Jr. Bradley K. Kage
Arend J. Abel Rachel A. Briscoe Sean A. Brown Sarah D. Burt Jesse L. Coleman John Emry Christopher P. Felts Alison A. Finkelmeier James W. Foltz Alexandra French TyJuan L. Garrett Melissa M. Garten Kelly N. Kinkade Marc W. Matheny Patty L. McKinnon Kimberly Opsahl Jennifer S. Ortman Chuck S. Roach Katie L. Rosenberger Shawn Schilling Caitlin S. Schroeder Susan M. Smith Peter TenEyck Michael D. Wilhelm Grant Zellefrow
Coordinators: Scott Wylie & Beverly Corn
Legal Aid Kathryn L. Miller Martin K. Remming Bartholomew County Cynthia A. Boll Landyn K. Harmon Peter C. King Kathryn D. Molewyk Jerry E. Prall John A. Stroh Joyce E. Thayer-Sword Alan L. Whitted Brown County Daniel C. Reuter Cynthia S. Rose Andrew A. Szakaly Jr. Decatur County Stephanie L. Kress William H. Robbins III Chad M. Smith Christopher C. Stephen Jennifer A. Sturges Christopher M. Tebbe
DISTRICT J Coordinator: Frank Cardis Jon D. Baker Melinda H. Bundy Frank J. Cardis Jerry Charls Martin DeJulia Mike Douglass Tony Douglass John A. Ertel Doug C. Holland Heidi A. Kendall-Sage Jason E. Ray Lisa K. Rosenberger Mike Sarapata Elizabeth Schwartz Lane A. Siekman Gary W. Sorge Brenda WilhelmWaggoner
Trisha N. Dudlo Fred R. Folz Kelly A. Lonnberg Andrew C. Ozete Brandon J. Powell Laura A. Scott
DISTRICT L Coordinator: Mary E. Fondrisi Bryan M. Abell Dana M. Eberle-Peay Robert G. Hamiton II Mitchele J. Harlan Robert L. Houston III Earl C. Mullins Jr. Karen Y. Renfro The annual “Talk to a Lawyer Today” event was conducted statewide on MLK Day, Jan. 18.
RES GESTÆ • APRIL 2016
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By Monica J. Conrad and Elizabeth M. Littlejohn
Indiana Choice Scholarship & RFRA’s impact on discrimination I. Introduction
ince the enactment of Indiana’s Religious Freedom Restoration Act (“RFRA”), the public conversation about what RFRA means or how it would apply has continued. Nowhere was this conversation better reflected than in the number of bills drafted for the General Assembly to consider in its recently adjourned session. Specifically, the Indiana General Assembly entertained whether the “state’s civil rights laws [should] be expanded to include protections for lesbian, bisexual and transgender Hoosiers[.]”1 There were five bills filed addressing the issue expanding civil rights to individuals who are lesbian, gay, bisexual and transgender (“LGBT”);2 three were assigned to and died in the Rules & Legislative Procedures Committee, and the other two failed to pass out of the Policy Committee.3 The bill that seemed to have the greatest potential for passing out of committee and reaching full debate within the Senate died when Monica J. Conrad the individual sponChurch Church soring the bill withHittle & Antrim drew it.4 There was Merrillville, Ind. also a bill repealing email@example.com RFRA, instead defining as a fundamental right under the Indiana Constitution the free exercise of opinions and right of conscience to which the government may not substantially burden without a compelling interest.5 Adding to the mix are Elizabeth M. Littlejohn the “bathroom poliAssociate Editor in Chief tics” to define limitaValparaiso University Law Review tions of rights of firstname.lastname@example.org gender individuals 14
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associated with Senate Bill 100, which would allow schools, employers and businesses to set their own policies for bathroom and dress codes.6 In addition to Senate Bill 100, three other bills would have limited bathroom use to only one gender and/or criminalized the misuse of specifically designated single-sex bathroom facilities.7 While the General Assembly struggles with how to balance religious freedoms with the civil rights of LGBT individuals, legislation continues to leave unaddressed the question of whether the state can or should financially support private school education that permits discrimination on the basis of sex, gender or sexual orientation even as the 2016 session passed legislation to further expand the voucher program.8 Private schools are eligible to receive state support through vouchers under the Indiana Choice Scholarship Program (“Voucher Program”), yet there are no restrictions concerning discriminatory practices based on gender or sex, meaning sexuality and gender identity are also not included.9 Only discriminatory practices based on race, color, national origin and disability are prohibited by the Indiana Choice Scholarship Program Eligible School Application.10 Specifically, RFRA excludes from its definition of a Provider “[a] church or other nonprofit religious organization or society, including an affiliated school[.]”11 RFRA was enacted to protect religious freedom.12 Thus, RFRA would favor the rights of a religiously affiliated institution to continue discriminatory practices against individuals based on sexual orientation in their operations even in instances when such schools receive state funding through the Voucher Program.13 On the other
hand, the Indiana Constitution in Article VIII provides “for a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all.”14 The interaction between Indiana’s Voucher Program, RFRA and the myriad of state and federal laws controlling traditional public schools results in two separate school systems that are governed by different regulations but supported by the same state dollars. One system is the traditional public school system, which must ensure there are nondiscriminatory practices for protected individuals, and the other system, also supported by state dollars, permits discriminatory practices against some protected classes of individuals. A background of this issue involves an analysis of Indiana’s constitutional right to equal protection and to a public education as well as the history of discrimination and RFRA. Also, an explanation of current developments of education discrimination, a look at the Office for Civil Rights’ (“OCR”) discrimination analysis as applied to public schools, and a discussion of discrimination exemptions under the Voucher Program are needed. Finally, the impact of RFRA to effectively exempt parochial schools from certain types of discrimination that receive state funding through the Voucher Program must be examined.
II. Background In 2011, Indiana joined a group of more than a dozen states by creating a school choice program.15 After RFRA passed in 2015, most attention to implications focused on exemptions for businesses; thus, little examination has been given to the impact of vouchers for private and parochial schools, as a component of Indiana’s publicly funded education system.16
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A. Basics on education law and the history of discrimination in schools Prohibition of discriminatory practices in public education is rooted in the Fourteenth Amendment of the U.S. Constitution and the Indiana constitutional right to education. The Fourteenth Amendment of the U.S. Constitution guarantees the right to equal protection, which includes educational opportunities.17 Brown v. Board of Education I established the premise that schools have an affirmative duty to dismantle the dual racial system of the past.18 Specifically, Brown declared that racial discrimination in public education was unconstitutional.19 Unlike the U.S. Constitution, the Indiana Constitution includes a right to a public education.20
This constitutional right guarantees a “general and uniform system of Common Schools, wherein tuition shall be without charge, and [education shall be] equally open to all.”21 Most recently, conversations have emerged regarding discrimination on the basis of sexual orientation and gender identity in schools.22 Current laws enacted to prevent discrimination in schools include Title IX and Section 1983 of the Civil Rights Act; yet enforcement of these laws is not always uniform within states with respect to each state’s requirements in place for its schools.23 In addition, each type of enforcement of the rights of students creates a different burden on or incentive for schools.24 Some have even suggested that school systems separate students on the basis of sexual orienta-
tion to avoid the enforcement problem.25 At this time, few court decisions have discussed the issue of discrimination based on sexuality and gender identification involving students in public education programs.26 Yet, there are recent limited cases addressing sexuality and gender identification discrimination with employees in public education settings.27 In 2005, a homosexual special education aide was forced out of his position at Clark County Schools because two teenage boys made unsupported claims of molestation.28 In addition, a report in 2009 revealed a gay principal and teacher alleged they were subjected to a hostile work environment for a period of three years because of their sexual orien(continued on page 16)
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VOUCHER PROGRAM & RFRA continued from page 15 tation.29 These are merely two examples of the discrimination on the basis of sexual orientation in schools, both involving faculty members, not students. Generally, students who are subject to compulsory attendance laws are typically less able or equipped to navigate issues of discriminatory practice in educational settings. Any school that accepts federal funding is subject to legal requirements imposing a duty to accommodate LGBT students. Title IX prohibits discrimination on the basis of sex for any education program or activity receiving federal financial assistance.30 All traditional public schools accept federal funding for programs such as special ed Title I aid aimed at at-risk students or school food and nutrition services. Some private schools, but not all, also participate in these federally funded programs.31 Title IX does have an exemption for any practices that would be inconsistent with the religious tenets of such organization.32 The enactment of RFRA also exempts private parochial schools that accept state voucher dollars
from non-discrimination obligations concerning gender and sex discrimination that traditional public schools must follow. B. Indiana RFRA On March 26, 2015, Indiana enacted its own Religious Freedom Restoration Act.33 Senate Bill 101, the first part of RFRA, specified that a government entity may not substantially burden a person’s exercise of religion unless it furthers a compelling governmental interest and is the least restrictive means to further that interest.34 Many critics claimed RFRA allowed any business to use religion as a defense to discriminatory practices because of Indiana’s definition of a “person.”35 Due to this criticism, Indiana amended the RFRA statute.36 RFRA’s amendment specified that the previous bill did not “authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing” to anyone on the basis of “race, color, religion, ancestry, age, national
origin, disability, sex, sexual orientation, gender identity, or United States military service[.]”37 Critical in its application to the Voucher Program, RFRA exempts parochial or religious schools from being a “provider” under the statute, allowing discriminatory practices on the basis of sex, sexual orientation and gender identity.38 Although both public schools and private parochial schools in the Voucher Program receive public dollars, federal education laws apply to public schools differently than parochial schools that merely receive state voucher dollars. C. OCR standard in discrimination cases OCR is the federal agency of the U.S. Department of Education that is charged with interpreting and enforcing federal civil rights laws, including Title IX and Title VI.39 OCR serves “student populations facing discrimination and the advocates and institutions promoting systemic solutions to civil rights problems.”40 Anyone who believes an educational institution that receives federal financial assistance has discriminated against him or her on the basis of race, color, national origin, sex, disability or age can file a complaint of discrimination.41 Once a complaint of discrimination is filed, OCR makes a determination as to whether it can investigate the complaint.42 After the investigation, OCR will determine whether it can conclude by a preponderance of the evidence that a school failed to comply with antidiscrimination laws.43 If OCR concludes there was noncompliance by the recipient school, OCR will contact the recipient and determine its willingness to negotiate a voluntary resolution agreement.44 In addition to complaint investiga(continued on page 18)
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VOUCHER PROGRAM & RFRA continued from page 16 tions, the OCR also issues “Dear Colleague Letters,” which inform educational institutions about the applicability of federal civil rights laws.45 OCR opinions and Dear Colleague Letters are not legally binding in court, but OCR can enforce civil rights laws when schools receive federal funds.46 The standard OCR has used in gender-based harassment and sex discrimination can be found in a Dear Colleague Letter from 2010.47 OCR recognizes that “it can be sex discrimination if students are harassed either for exhibiting what is perceived as a stereotypical characteristic for their sex or for failing to conform to stereotypical notions of masculinity and femininity.”48 In addition, OCR enforces Title IX, which “prohibits sexual harassment and gender-based harassment of all students, regardless of the actual or perceived sexual orientation or
gender identity of the harasser or target.”49 OCR has also demonstrated its position on a transgender student’s use of locker rooms.50 In the Township High School District 211 case in December 2015, OCR found the school in violation of Title IX because for more than two school years, the district had denied a transgender student access to the girls’ locker rooms at her high school, and offered her only separate facilities to change clothes for her athletics activities and mandatory physical education classes in order to satisfy the graduation requirements and receive a high school diploma.51
OCR and the school engaged in a settlement that required Township High School to install privacy curtains in the women’s locker room and allow a transgender female (male to female) access to the women’s locker room.52
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OCR also required the school to hire an expert in child and adolescent gender identity.53 This was the “first time OCR had found a school district in violation of civil rights laws over transgender issues.”54 OCR is following the same analysis as the EEOC in terms of discrimination, but it is worth noting that the analysis applied by courts is not necessarily consistent with OCR’s (or the EEOC’s) discrimination analysis. For example, in an Indiana federal case, the court did not provide discrimination protections to a transgender maleto-female employee who failed to comply with sex-specific dress codes when “she” wore nail polish, black mascara, trimmed “her” eyebrows, and wore hair in a more feminine style.55 While discrimination on the basis of sexuality or gender identity may be protected under OCR’s standards for public schools receiving federal dollars, the risk to a nonconforming public school is the loss of millions of dollars of federal funding.56 Similar protections, as are required by traditional public schools, would not likely be provided with respect to the Indiana Choice Scholarship Program because the Voucher Program statute exempts sex and gender from its list of prohibited discriminations and no other statute provides any enforcement mechanism over private schools in the Voucher Program.57 D. The Indiana Choice Scholarship Program (‘Voucher Program’) The Voucher Program is a program that funds the cost of students attending schools that are eligible under the Indiana Code.58 Schools can become eligible schools by filling out an application and complying with the regulations that the Voucher Program requires.59 The application has a list of assurances
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that all schools must follow, which includes limited curriculum requirements and certain prohibitions on discrimination.60 Eligible schools must submit a copy of their admission policy and their tuition and fees policy as part of the application to the Voucher Program.61 Eligible schools must make available certain books and documents, which are listed in Indiana Code section 20-51-41(b).62 Outside of the list of required books and documents, the Voucher Program “expressly seeks to protect the autonomy of the private schools.”63 The eligible school application also requires schools to teach certain values such as: “[b]eing honest and truthful[,] [r]especting authority[,] [r]especting the property of others[,] [n]ot stealing[, and] [r]especting the rights of others to have their own views and religious beliefs.”64 While teaching these values, eligible schools must maintain a basic curriculum, which includes English, world languages, mathematics, social studies, sciences, fine arts and health education.65 For a private school to participate in the Voucher Program, the school must assure it “will not discriminate against any potential students based on race, color, national origin, or disability, and will follow the school’s admissions policy in regard to choice scholarship students.”66 In addition to the application requirements, Indiana Code section 20-51-4-3 mandates that discrimination on the basis of race, color, and national origin be prohibited.67 Although both the Indiana Code and the Voucher Program Application prohibit discrimination on the basis of race, color, or national origin, the statute and application exempt religion, sex, gender, sexual orientation, and gender identity as protected classes.68 Case law has interpreted
that there is no restriction or religious requirement; in fact, “most of the schools that had sought and received approval from the [IDOE] to participate in the voucher program were religiously affiliated.”69 In addition, the Voucher Program does not mandate what is taught in the subjects it requires eligible schools to teach.70 Overall, even though the Voucher Program is funded by state dollars, it is not regulated in the same way as the public school system in regards to discrimination.
III. Analysis A. The public schools and the Voucher Program schools that receive public dollars have different standards for discrimination even though both public and private schools comprise means for Indiana to abide by the state constitutional right to education Public schools that receive federal funds are required to abide by the OCR standards of discrimination.71 This means that public schools are prohibited from discriminating against any federal protected class, including sex, which encompasses sexuality and gender identity. Based on recent OCR decisions, schools have a duty to accommodate LGBT students.72 One would expect that if private schools received public dollars that they would be held to the same standards, but under the Voucher Program, they are not. As previously noted, the Voucher Program prohibits discrimination on the basis of race, color, national origin and disability.73 There are no prohibitions on discrimination on the basis of sex or gender in either the Voucher Program statute or eligible school application. This means that although public schools have a duty to accommodate LGBT students,
private schools that receive state vouchers may not be required to abide by the same standard. All schools in Indiana are required to abide by the Indiana Constitution, which upholds a right to education, equal and open to all.74 If private schools under the Voucher Program are not required to abide by the duty to accommodate under the OCR discrimination standard, then does the lack of conformity run afoul with Indiana’s constitutional right to public education? In addition, these differences allow the creation of a dual discrimination system under which public and private schools receiving public dollars could have two different standards of what is considered to be unlawful discrimination.75 Furthermore, the interaction of RFRA and the Voucher Program seems to allow private parochial schools to discriminate on the basis of gender, sexual orientation, and gender identity. B. RFRA permits parochial schools participating in the Indiana Choice Scholarship Program to discriminate on the basis of sexuality and gender identity The current RFRA statute does not allow a provider to refuse service “on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service.”76 RFRA exempts a “church or other nonprofit religious organization or society, including an affiliated school” from being providers under the statute.77 This suggests that private parochial schools could use religion as a defense to discrimination against individuals by refusing service, but coupled with the Voucher Program, its impact may have escaped scrutiny. What is the impact of establishing a public (continued on page 20) RES GESTÆ • APRIL 2016
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VOUCHER PROGRAM & RFRA continued from page 19 policy for funding a public education that allows private parochial schools that receive state voucher dollars to use religion as a defense and refuse educational services on the basis of anything related to the sex of the individual?
and because private parochial schools are not a “provider” under RFRA, they do not have to accommodate students of certain sexes, sexualities or genders if religion can be a defense to this accommodation. The interaction between these statutes allows for private parochial schools that receive state voucher dollars to use religion as a defense
The Voucher Program statute does not include sex or gender in its list of prohibited discrimination,
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to discrimination of students by not admitting them because of their sexuality or gender identity. Essentially, this allows public funds to go to schools that are also permitted to use religion as a defense to discrimination.
IV. Conclusion Public education, as established by the Indiana Constitution, remains one of the cornerstones of Indiana’s governmental responsibilities. Currently, Indiana is publicly supporting an education system that has expanded beyond traditional public schools to include publicly supported private schools, which are often parochial schools. In addition, Indiana expanded the Voucher Program to include more students by adding another enrollment period for students seeking to switch schools mid-school year through voucher dollars.78 With the expansion of the Voucher Program, Indiana must ensure in its public policy that educational opportunities are equally and uniformly open to all whether the student is attending a traditional public school or a voucher-supported school. The importance of how Indiana provides its public education opportunities is best reflected in the U.S. Supreme Court case of Plyler v. Doe: Both the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child, mark the distinction. The American people have always regarded education and [the] acquisition of knowledge as matters of supreme importance. We have recognized the public schools as a most vital civic institution for the preservation of a democratic system of government, and as the primary vehicle for transmitting the values on which our society rests. [A]s … pointed out early in our history, … some degree of education is necessary to prepare citizens to
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VOUCHER PROGRAM & RFRA continued from page 20 participate effectively and intelligently in our open political system if we are to preserve freedom and independence. And these historic perceptions of the public schools as inculcating fundamental values necessary to the maintenance of a democratic political system have been confirmed by the observations of social scientists. In addition, education provides the basic tools by which individuals might lead economically productive
lives to the benefit of us all. In sum, education has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our nation when select groups are denied the means to absorb the values and skills upon which our social order rests.79
Given the importance public education provides as an institution to inculcate fundamental values
of fairness and tolerance of differences, Indiana’s public policy on education laws will need clarification. Indiana has not addressed the public policy question of whether publicly funded education programs, particularly those of private parochial schools who receive state dollars under the Voucher Program but do not receive federal funding, can be permitted to discriminate on the basis of gender, sexual orientation or gender identity. This topic will need to be addressed when the General Assembly next considers the expansion of civil rights in Indiana. 1. Tony Cook & Chelsea Schneider, “Top 5 Issues to Watch at General Assembly,” Indianapolis Star, http://www.indystar.com/story/news/ 2016/01/02/top-5-issues-watch-generalassembly/78143950. 2. See “Definition of Terms,” Gender Equity Resource Ctr. (July 2013), http://geneq. berkeley.edu/lgbt_resources_definiton_of_ terms#lgbtiq (defining various terms that are pertinent to differences in gender and sexuality). 3. See S. 2, 119th Gen. Assemb., 2nd Sess. (Ind. 2016) (proposing an amendment to the civil rights enforcement statute to prohibit discrimination based on sexual orientation and gender identity); S. 100, 119th Gen. Assemb., 2nd Sess. (Ind. 2016) (providing a prohibition against discriminatory practices in inter alia education based on sexual orientation and gender identity and providing protections for religious liberty and conscience along with preempting local civil rights ordinances that conflict with state law); S. 170, 119th Gen. Assemb., 2nd Sess. (Ind. 2016) (extending anti-discrimination and civil rights statute to prohibit discrimination based on gender identity and sexual orientation); S. 344, 119th Gen. Assemb., 2nd Sess. (Ind. 2016) (prohibiting education discrimination for sexual orientation but also providing for protections of religious liberty and conscience). See also H.R. 1221, 119th Gen. Assemb., 2nd Sess. (Ind. 2016) (adding the question of whether civil rights should be extended to LGBT individuals to a general election ballot in November 2016). 4. Stephanie Wang, Chelsea Schneider & Tony Cook, “Why Indiana Lawmakers Killed the Gay Rights Debate for This Year, Indianapolis Star, http://www.indystar.com/story/news/ politics/2016/02/02/how-indiana-senatechange-gay-rights-bill/79665590. 5. See S. 66, 119th Gen. Assemb., 2nd Sess. (Ind. 2016) (requesting the repeal of RFRA). 6. Stephanie Wang, “Bathroom Politics Amp Up LGBT Rights Debate,” Indianapolis Star, http://www.indystar.com/story/news/ politics/2015/12/26/bathroom-politicsamp-up-lgbt-rights-debate/77749264/?from= global&sessionKey=&autologin.
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7. See S. 35, 119th Gen. Assemb., 2nd Sess. (Ind. 2016) (limiting student facilities in school buildings for designated use by female students or male students, and asserting that facilities may be used only by the students of the biological gender for which it is designated); H.R. 1079, 119th Gen. Assemb., 2nd Sess. (Ind. 2016) (defining single-sex facility trespass as a Class B misdemeanor if: (1) a male knowingly or intentionally enters a single-sex facility that is designated to be used only by females; or (2) a female knowingly or intentionally enters a single-sex facility that is designated to be used only by males); H.R. 1031, 119th Gen. Assemb., 2nd Sess. (Ind. 2016) (providing that student facilities in school buildings must be designated for use by female students or male students).
18. See 349 U.S. 294, 298 (1955) (holding that all federal, state, or local laws requiring or permitting racial discrimination must be found unconstitutional). 19. Id. 20. See Ind. Const. art. VIII, §1 (“Knowledge and learning, generally diffused throughout a community, being essential to the preservation of a free government; it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual scientific, and agricultural improvement; and to provide, by law, for a general and uniform system of Common
8. See H.R. 1005, 119th Sess. (Ind. 2016) (indicating that Indiana expanded the Choice Scholarship Program enrollment periods by allowing children to switch from public schools at semesters’ end and apply to a new eligible school). 9. See Ind. Code §20-51-4-3(a) (2015) (“An eligible school may not discriminate on the basis of race, color, or national origin.”). Notably, the Indiana Choice Scholarships predated the RFRA discussions. 10. See “Application to Become an Eligible School Under Indiana Choice Scholarship Program,” Ind. Dep’t of Education, http://www.doe.in. gov/sites/default/files/choice/applicationbecome-eligible-school-2015-2016.pdf (displaying the regulations a school must comply with in order to become an eligible school).
Schools, wherein tuition shall be without charge, and equally open to all.”). 21. Id. See Billick et al., supra note 15, at 11 (explaining that Indiana’s school choice program will probably not violate the Indiana right to education). 22. See G.G. v. Gloucester Cnty. Sch. Bd., 2015 WL 5560190, at *8 (E.D. Va. Sept. 17, 2015) (explaining how a school board enacted a policy that excluded those with gender identity issues from using their identified restrooms
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11. Ind. Code §34-13-9-7.5(1) (2015). 12. See Ind. Code §34-13-9-0.7 (displaying the amendment to RFRA); Ind. Code §34-13-9 (2015) (enacting RFRA). 13. See Ind. Code §34-13-9-0.7 (2015) (illustrating RFRA’s amendment).
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14. See Ind. Code §34-13-9-0.7 (providing language that exempts religious institutions and schools from discrimination). See also Ind. Const. Art. 8, §1 (establishing Indiana’s constitutional right to education). 15. Rebecca L. Billick et al., Ctr. for Evaluation & Educ. Pol’y, “School Choice Issues in Indiana: Sifting through the Rhetoric,” 9 Educ. Pol’y Br. 1 (2011), http://ceep.indiana.edu/pdf/ PB_V9N3_2011_EPB.pdf. 16. See Ind. Code §34-13-9 (2015) (enacting Indiana’s RFRA). 17. U.S. Const. amend. XIV. The Fourteenth Amendment states: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
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VOUCHER PROGRAM & RFRA continued from page 23 and instead making them use their biological identity restroom). The policy stated: It shall be the practice of [the School District] to provide male and female restroom and locker room facilities in its schools, and the use of said facilities shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility. Id. at *2. The court concluded that: “[n]ot only is bodily privacy a constitutional right, the need for privacy is even more pronounced in the state educational system.” Id. at *14. However, the court found: “G.G.’s unsupported claims, which are mostly inadmissible hearsay, fail to show that his presence in the male restroom would not infringe upon the privacy of other students.” Id. An appeal is currently pending for this case. See also Doe v. Regional Sch. Unit 26, 86 A.3d 600, 606–07 (Me. 2014) (holding a transgender girl (male to female) was allowed to use the girl’s restroom on the basis of a state non-discrimination law). Indiana does not have a statute like Maine protecting individuals based on sexual orientation or gender identity. 23. See Asaf Orr, “Harassment and Hostility: Determining the Proper Standard of Liability for Discriminatory Peer-to-Peer Harassment of Youth in Schools,” 29 Women’s Rts. L. Rep. 117, 122 (2008) (explaining how state antidiscrimination laws vary in both substance and enforcement); Michael E. Smith & Cathleen C. Hall, “Addressing Issues Facing Transgender Students,” NSBA 2 (2007) (“Title IX provides that no person shall, ‘on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal assistance.’”). There are three general methods of enforcement of anti-discrimination laws: (1) private rights of action, (2) administrative remedies, and (3) the option of pursuing either (1) or (2). Orr, supra note 23, at 122. Orr gives two examples of this enforcement to explain the incentives placed on schools: (1) “allowing for a private right of action ‘gives schools a financial incentive to avoid liability by stopping peer [harassment.]’” and (2) “an exclusively administrative remedy could result in a hollow remedy depending on how the agency exercises its discretion, thus potentially creating little incentive for schools to curb peer-to-peer harassment.” Id. 24. Orr, supra note 23, at 122. For example, some schools receive economic incentives from their state for prohibiting discrimination, whereas some may be burdened by the administrative task of monitoring discrimination. Id. 25. Louis P. Nappen, “Why Segregated Schools for Gay Students May Pass a ‘Separate But Equal’ Analysis But Fail Other Issues and Concerns,” 12 Wm. & Mary J. Women & L. 101, 101 (2005). 26. See, e.g., Seiwert v. Spencer-Owen Cmty. Sch. Corp., 497 F. Supp.2d 942, 953 (S.D. Ind. 2007) (“If an individual is being harassed because of a failure to adhere to specific sexual stereotypes, and not because of his sexual orientation, he has an actionable claim.”). 27. See Smith & Hall, supra note 23, at 2 (explaining that there is no case law interpreting students’ rights under Title IX, but because
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Title IX and Title VII generally apply the same standard to discrimination cases, therefore, a look at employment discrimination cases is helpful).
39. See “Overview of the Agency,” U.S. Dep’t of Educ., http://www2.ed.gov/about/offices/ list/ocr/aboutocr.html (displaying the mission and obligations of OCR).
28. See Memorandum from the Williams Institute on “Indiana – Sexual Orientation and Gender Identity Law and Documentation of Discrimination” 1 (Sept. 2009), http://williamsinstitute.law.ucla.edu/ wp-content/uploads/Indiana.pdf (outlining a teacher being exiled from his job); Badger v. Greater Clark County Schools, 2005 WL 645152 (S.D. Ind. Feb. 15, 2005) (providing the court case that resulted from this incident).
29. See Memorandum from the Williams Institute on “Indiana – Sexual Orientation and Gender Identity Law and Documentation of Discrimination” 7 (Sept. 2009), http://williamsinstitute.law.ucla.edu/ wp-content/uploads/Indiana.pdf (displaying various discriminatory events in Indiana). This discrimination was evidenced from an email sent to the executive director at the Williams Institute. Email from Ken Choe, senior staff attorney, American Civil Liberties Union, to Brad Sears, executive director, the Williams Institute (Sept. 11, 2009).
44. Id. If the recipient is unwilling to negotiate after OCR has asked on multiple occasions, OCR will issue a Letter of Enforcement Action. Id. After the Letter of Enforcement Action is issued, if recipient is still unwilling to voluntarily comply, OCR will either initiate administrative enforcement proceedings to suspend, terminate, or refuse to grant or continue federal financial assistance or it will refer the case to the Department of Justice. Id.
30. 20 U.S.C. §1681(a); Drummond Woodsum, “Charting Unchartered Territory: Accommodating Transgender Students in Public Schools” 2 (2014), http://www. nvasb.org/assets/nsba_melissa_hewey_ charting_unchartered_waters—-(2).pdf. 31. See Indiana Dep’t of Educ./School & Comm. Nutrition Programs, Indiana Dep’t of Educ. 87–125, http://www.doe.in.gov/sites/ default/files/nutrition/school-year-data14-15.pdf (showing the schools that receive federal funding in the School & Community Nutrition Programs). Title I grants provide equitable funds for the support services of specifically eligible students, whereas Title II provides equitable services to private school personnel for professional development. 32. Id. 33. Ind. Code §34-13-9 (2015) (establishing RFRA). 34. S. 101, 119th Gen. Assemb., 1st Sess. (Ind. 2015). Courts have recognized the following as “compelling interests”: fighting illegal drug use, maintaining the tax system, protecting children from indecent and offensive speech, preventing discrimination based on race, and preventing discrimination based on sex. See, e.g., Reno v. ACLU, 521 U.S. 844 (1997) (explaining that protecting children from indecent and patently offensive speech is a compelling interest); Mood for a Day, Inc. v. Salt Lake County, 953 F.Supp. 1252 (D. Utah 1995) (recognizing fighting illegal drug use as a compelling interest). 35. Domenica Montanaro, “Indiana Law: Sorting Fact from Fiction from Politics,” NPR (April 1, 2015, 9:36 a.m.), http://www.npr.org/sections/ itsallpolitics/2015/04/01/395613897/sortingfact-from-fiction-from-politics-on-theindiana-law; S. 101, 119th Gen. Assemb., 1st Sess. (Ind. 2015). 36. Ind. Code §34-13-9-0.7 (2015); S. 50, 119th Gen. Assemb., 1st Sess. (Ind. 2015). 37. Ind. Code §34-13-9-0.7(1) (2015); S. 50, 119th Gen. Assemb., 1st Sess. (Ind. 2015). 38. Ind. Code §34-13-9-7.5 (2015).
41. Id. 42. See “How the Office for Civil Rights Handles Complaints,” U.S. Dep’t of Educ., http://www2.ed.gov/about/offices/list/ocr/ complaints-how.html (explaining the various reasons why OCR can dismiss a complaint). 43. Id. OCR will issue a letter of findings to both the complainant and recipient. Id.
45. See “Reading Room,” U.S. Dep’t of Educ., http://www2.ed.gov/about/offices/list/ocr/ publications.html (listing all of the publications of the OCR up until Oct. 15, 2015). 46. Id. 47. See “Dear Colleague Letter: Harassment and Bullying,” U.S. Dep’t of Educ., OCR 7, http://www2.ed.gov/about/offices/list/ocr/ letters/colleague-201010.pdf (displaying OCR’s analysis on gender-based discrimination and sex discrimination). 48. Id. at 7-8. 49. Id. at 8. 50. See “Agreement to Resolve Between Township High Sch. Dist. 211 and OCR,” 05-141055 (Dec. 2, 2015), http://www2.ed.gov/ documents/press-releases/township-high211-agreement.pdf (explaining OCR’s opinions regarding a transgender student using a women’s locker room). 51. Press Release, “Township High School District 211 to Remedy Transgender Discrimination,” U.S. Dep’t of Educ. (Dec. 3, 2015), http:// www.ed.gov/news/press-releases/settlementreached-palatine-ill-township-high-schooldistrict-211-remedy-transgenderdiscrimination. 52. Id. at 2. 53. Id. at 1. 54. Press Release, supra note 51. 55. Creed v. Family Express Corp., 2009 WL 35237, at *3-4 (N.D. Ind. Jan. 5, 2009). OCR does not regulate employees, but since OCR has adopted the same analysis, employment cases provide a similar analysis. See also G.G. v. Gloucester Cnty. Sch. Bd., 2015 WL 5560190, at *8 (E.D. Va. Sept. 17, 2015) (citing to the Title IX regulations that the school may have separate but comparable bathroom and locker facilities for each sex which applied to the denial of a transgender student’s challenge to a school board’s restroom policy restricting use to biological gender). The court also specifically rejected OCR’s Dear Colleague Letter from 2010 requiring treatment of transgender students consistent with their gender identity. Id.
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56. See Kamaria Roberts, “Chicago School District Discriminated Against Transgender Student, Report Says,” PBS NewsHour, http://www. pbs.newhour/rundown/chicago-school-districtdiscriminated-transgender-student-reportsays (reporting that Township High School of District 211 risks losing up to $6 million in federal funding). 57. See Ind. Code §20-51-4 (2016) (displaying the Indiana Choice Scholarship Program statute). 58. See Billick et al., supra note 15, at 3 (explaining the Indiana Choice Scholarship Program and how it works). 59. “Application to Become an Eligible School Under Indiana’s Choice Scholarship Program,” Ind. Dep’t of Educ., http://www. doe.in.gov/sites/default/files/choice/application-become-eligible-school-2015-2016.pdf [hereinafter, Voucher Program Application].
Monica J. Conrad is a partner with the Merrillville office of Church Church Hittle & Antrim. She has practiced in the area of school law since 1994 after graduating with her J.D. from Valparaiso University School of Law. She earned her B.S. and M.A. from Indiana State University, School of Education.
candidate at Valpo and will graduate in May. After graduation, she will be completing a Fellowship with the Office of the Indiana Attorney General in Indianapolis. Elizabeth earned her B.A. in economics and political science from Indiana University Bloomington in 2013.
Elizabeth M. Littlejohn is the associate editor in chief of the Valparaiso University Law Review. She is a J.D.
60. Id. 61. Id. 62. Ind. Code §20-51-4-1(b) (2015). 63. Billick et al., supra note 15, at 2. 64. Voucher Program Application, supra note 59, at 2; see also Ind. Code § 20-51-4-1(f)(8). 65. Billick et al., supra note 15, at 3; see also Ind. Code §20-51-4-1(f)(9). 66. Id. at 1. 67. Ind. Code §20-51-4-3(a) (2015). 68. Meredith v. Pence, 984 N.E.2d 1213, 1220 (Ind. 2013). One argument as to why sex and gender are omitted from the list of prohibited discriminations is that the Voucher Program wanted to include same-sex religious schools. 69. Id. 70. “State/Church FAQ, Dispelling the Myth of ‘School Choice,’” Freedom from Religion Foundation, https://ffrf.org/outreach/item/ 22744-voucherfaq; see also Ind. Code §2051-4-1(a)(1). 71. See “Reading Room,” U.S. Dep’t of Educ., http://www2.ed.gov/about/offices/list/ocr/ publications.html (displaying various OCR opinions and Dear Colleague Letters). 72. See, e.g., “Agreement to Resolve Between Township High Sch. Dist. 211 and OCR,” supra note 50 (explaining the OCR standard in discrimination cases that involve gender identity). 73. Voucher Program Application, supra note 59, at 1. 74. Ind. Const. art. VIII, §1. 75. See Brown v. Bd. of Educ. I, 349 U.S. 294, 298 (1955) (finding a dual racial system unconstitutional). 76. Ind. Code §34-13-9-0.7(1) (2015). 77. Ind. Code §34-13-9-7.5(1). 78. See H.R. 1005, 119th Gen. Assemb., 2nd Sess. (Ind. 2016) (amending Indiana Code Sections 20-51-4-7(e) and 20-51-4-10 to add provisions creating an additional enrollment period and allowing students to change schools midschool year). 79. Plyler v. Doe, 457 U.S. 202, 221 (1982) (internal quotations and citations omitted).
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By Hon. Elaine B. Brown
Fee dispute committee proposes new rules
The revised policies have now been approved by the committee and will be brought before the ISBA Board of Governors for final approval this summer. Once adopted, the policies will be accessible on the ISBA website at www.inbar.org along with other program information and forms. The proposed policies provide for six regional districts, including counties in northwestern, northeastern, central western, central eastern, southwestern and southeastern Indiana. The ISBA will serve as the clearinghouse for filing and administering fee disputes in each region, and will provide all administrative and record-keeping services. Under the proposal, panels of three volunteer attorneys will serve as arbitrators in each region and determine disputes through a process of binding arbitration. Requests for resolution through the program may be made by either the attorney or client by filing a form petition with the ISBA within nine months from the date the dispute arose. Both parties must agree to the arbitration. The committee has discretion to decline a request
for participation in the program if the amount in dispute is less than $750. There is no cost to either side to participate. The issue to be determined in arbitration is whether the fees charged are reasonable. Fee matters that are in litigation or in any way connected with a disciplinary proceeding will not be accepted for resolution. Once a panel has been appointed by the committee, a hearing will be set to occur within 30 days, typically not to exceed a half day. Parties may or may not be represented by counsel, and participation may be in person, by phone or by Skype or other electronic medium. Hearings will be informal, although witnesses may be called to testify. Any documentation is to be submitted electronically five days prior to the hearing to Melanie Zoeller, the ISBA contact person, who can be reached at mzoeller @inbar.org. The proposed policies further provide that the panel is to submit its written decision within five days of the hearing; panel members are not to disclose evidence or decisions except as provided by law or ordered by a court; and the ISBA is to keep the decision under seal as well. The committee has requested and received input from Indiana Disciplinary Commission Executive Secretary Michael Witte, who has expressed support for the program. The work of the committee is continuing, and plans include the development of a 1-hour CLE program addressing fee agreements, the various aspects of billing, the necessity of keeping clients informed, and other ethical considerations. Committee members are seeking sample fee agreements from the bar for review. Selected form agreements would be available as a resource for attorneys through the State Bar’s AFDR webpage, sans any
identifying information, with the goal of reducing the number of fee disputes that may otherwise arise. Attorneys willing to share their fee agreements are encouraged to submit them to Melanie Zoeller at the aforementioned email address. Questions, concerns, comments and suggestions may be emailed to Russell Cate, committee chair, at email@example.com or to any of the following committee members: Maryellen Baker, firstname.lastname@example.org; Timothy L. Bookwalter, email@example.com; Elaine Brown, elaine.brown @courts.in.gov; Stephen Cohen, firstname.lastname@example.org; John Conlon, email@example.com; Diane Cowger, diane. firstname.lastname@example.org; Jennifer Fehrenbach Taylor, email@example.com; Shaun Olsen, shaun @olsencampbell.com; James Roehrdanz, jroehrdanz @k-glaw.com; John Vissing, firstname.lastname@example.org; or Lance Wonderlin, Judge, Court of email@example.com. Appeals of Indiana Your input is welcome firstname.lastname@example.org and appreciated!
he Indiana State Bar Association’s Attorney Fee Dispute Resolution (AFDR) Committee has been working diligently over the past 16-plus months revising the formal policies that govern the ISBA Attorney Fee Dispute Resolution Program. The program provides a structure for the arbitration of fee disputes between ISBA attorney members and their clients, between ISBA attorneys who have agreed to share fees in proportion to the amount of work they have performed on a case, and between members of a state bar other than Indiana who are either residents of Indiana or have a principal place of business in Indiana and their clients.
Mark Your Calendar ISBA Solo & Small Firm Conference June 2-4 • French Lick ISBA Annual Meeting Sept. 28-30 • Indianapolis
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By Donald R. Lundberg and Caitlin S. Schroeder
Compelled speech in lawyer advertising regulation
D ETHICS CURBSTONE
oes lawyer advertising regulation present constitutional concerns by telling Indiana lawyers not only what they must avoid saying but in some instances what they must say? It is a question worth examining.
On the street where you practice
Lundberg has written before about the requirement in Rule 7.2(c) that a lawyer must include in all advertising “the name and office address of at least one lawyer or law firm responsible for its content.” “Law Tiger, Hidden Dragon: New Uncertainties with Lawyer Advertising,” Vol. 57, No. 10 Res Gestae 23 (June 2014). Recall that this is one of the points on which the anonymous lawyer in the so-called Law Tigers case got dinged. Matter of Anonymous, 6 N.E.3d 903 (Ind. 2014). This requirement came into being when amended Indiana advertising rules went into effect on Jan. 1, 2011. This new addition was obviously incorporated from the ABA Model Rules of Professional Conduct, Donald R. Lundberg which contain the Barnes & Thornburg LLP same requirement Indianapolis, Ind. email@example.com in Model Rule 7.2(c). But neither the ABA Model Rule nor Indiana Rule 7.2 gives any guidance about what constitutes an “office address.” Once upon a time, this might have seemed obvious. Not anymore. The idea that all lawyers have a fixed Caitlin S. Schroeder location called an Barnes & Thornburg LLP “office” where clients Indianapolis, Ind. come to meet with the Caitlin.Schroeder@btlaw.com 28
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lawyer is becoming increasingly obsolete, and that trend will continue. Most of us have gotten past the image of law offices being places with case law reporters impressively arrayed on walnut shelving – who uses books for research anymore? But the image of a waiting room and a conference room as a place where clients go to meet their lawyers endures even though changes in technology have made physical location largely irrelevant. Why is that? We have represented a number of clients without ever having had a face-to-face meeting. The fact that our law firm happens to have a nice waiting room and abundant conference rooms means nothing to those clients.
Practicing law in a new environment One does not have to think very deeply to bring to the fore law practice models where a physical location is entirely unnecessary. What if the lawyer goes to the client, not the other way around? What if the lawyer and client dispense entirely with physical meetings and restrict their interactions to telephone calls, emails and maybe video conferencing, and the lawyer receives snail mail at a post office box? Rather than at a law office, the lawyer could be working in a corner of her bedroom or working from wherever the lawyer happens to be as she migrates about the city, state or even the world. What then is an office address? Must it be a physical location? Why isn’t a website and email account an office address? When we register annually with the Clerk of the Supreme Court, we are asked to provide office and residential addresses. Indiana Admission & Discipline Rule 2(a). Are both mandatory? Lundberg recently looked up a lawyer on the Roll of Attorneys and saw a post office box
as the listed address. A post office box can be a place where one receives United States mail, but it would be a mighty small office. Does the fact that we are told to provide an office address imply that lawyers must have offices? Lundberg stays awake at night worrying about these things. Putting aside what constitutes an office, why does Rule 7.2(c) compel us to list an office address on all lawyer advertising? After all, even if one has a physical office, it is not always easy to list the office address on all advertising. If our law firm sponsors a youth softball team, must we demand that the jerseys bearing our law firm’s name also include the firm’s physical office address? What if the firm has, hypothetically, 13 offices in 10 states? Must all of the addresses be listed on the softball uniforms? Good luck trying to get all of those addresses on a freebie pen. In an age of ubiquitous Internet search engines, the mere name of a law firm should be sufficient to quickly locate that firm’s website, which will include detailed information about firm office locations.
Protecting against deception It sounds like a form of … compelled speech – which brings us to a recent, interesting opinion of the Indiana Court of Appeals. Indiana Professional Licensing Agency and Indiana State Board of Dentistry v. Atcha, 2016 WL 233211 (Ind. Ct. App. Jan. 20, 2016). One of the rules of the Dental Board at issue in that case was that all advertising of dentist’s services must include the name of every dentist associated with the dental practice. 828 IAC 1-1-14(a) and (b). Dr. Atcha only listed his name. Relying on Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U.S. 557 (1980), to provide the First
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Amendment framework for analyzing state restrictions on commercial speech, the Atcha court looked at several aspects of the dental advertising that was at issue in the case, one of which dealt with whether the requirement that all dentists be named in advertising was unconstitutionally compelled commercial speech. The court looked at a lawyer advertising case, Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), for guidance to assess whether the all-dentists advertising rule was constitutional. Compelled speech is viewed differently from prohibited speech because it does not chill speech in the same way as outright speech prohibitions do. Yet, “unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech.” Zauderer, 471 U.S. at 651. Compelled speech will withstand constitutional challenge if obligatory speech is reasonably related to a State interest in protecting consumers from deception. Id. In Zauderer, the compelled speech was that contingent fee lawyers were required to state how their fees would be calculated, including that the client would still be liable for costs. The rationale was that such a rule protects clients from being deceived into thinking that a contingent fee representation is a zero-risk proposition. This consumer-protection impetus was found by the Supreme Court to be reasonably tied to avoiding consumer deception. The Atcha court then turned its attention to the all-dentists advertising requirement. The State asserted that the consumer-protection justification for the rule was to disabuse clients of the idea that they were going to get Dr. Atcha as their treating dentist if they called for an appointment. The court rejected (continued on page 30) RES GESTÆ • APRIL 2016
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ETHICS CURBSTONE continued from page 29 that as a valid rationale because, unlike in Zauderer where the goal was to protect clients against surprise charges, a dental patient who arrives for an appointment at Dr. Atcha’s office only to discover that another dentist will be treating him can simply leave without incurring any costs. The State also made a “what can it hurt” argument, which the court rejected: “Without an adequate justification for the compulsory listing of all dentists in advertising, the State’s additional argument that it is not unduly burdensome for Dr. Atcha to list the other dentists in his practice is unavailing.” Thus, the court held that the all-dentists rule violates the First Amendment as unjustified compelled speech.
Office-address requirement as compelled speech What are the implications of Atcha for compelled lawyer speech – in particular the requirement in Rule 7.2(c) to list an office address on every advertisement? The court dipped its toe into that water by stating in footnote 3 that “requiring a law firm to list every attorney on every advertisement would be unjustified and unduly burdensome.” Is Rule 7.2(c)’s officeaddress requirement similarly unjustified and unduly burdensome and, therefore, unconstitutional, compelled speech? It is hard to say in part because Rule 7.2 and its comments give no clue why including an office address is a reasonable device to protect clients from being deceived. In the digital age, a website address is likely more informative of the lawyer’s identity and related information than a physical office address. Without leaving one’s computer, a prospective client can visit the website and find out much more information about the lawyer than simply knowing a physical 30
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address. Prospective clients can get biographical information on the lawyer and all other lawyers associated in practice, see a picture of the lawyer, determine whether there is a physical address, and, if so, even examine the office exterior and its environs on Google® Maps StreetView®. At one time it might arguably have been important for a consumer of legal services to know that a lawyer had a physical address and where the lawyer could be located. I guess we figured that only a flyby-night lawyer wouldn’t have a nice law office with all of the accompanying, traditional amenities. But that might no longer be the case for many consumers of legal services. Maybe the time has arrived or will soon be here when the absence of a physical office will be seen as a competitive advantage because those lawyers can charge less for the same legal services due to lower overhead. It is true that lack of a physical location can sometimes be a sign of fraud. For example, the New York Times just did an exposé on fraud by companies providing locksmith services where national companies misleadingly masquerade as local businesses with physical presences, but instead contract with local service providers who take financial advantage of people locked out of their homes and cars. In fact, in one case the company created a digitally manipulated image of a building at a physical location that was, in fact, an empty lot. But lawyers are different from locksmiths. Locksmiths are not a regulated profession in Indiana. Lawyers are highly regulated. And there are many rules in place that prohibit lawyers from engaging in the type of fraudulent conduct pointed out as increasingly common in the locksmith business, (continued on page 32)
A Partnership of the Indiana State Bar Association and the Indiana Bar Foundation
ORDER YOUR COPY
800-266-2581 | www.inbar.org
RG 04.16_RG 09.05 4/25/16 2:32 PM Page 32
ETHICS CURBSTONE continued from page 30 without the need to compel an office address as a part of every lawyer advertisement.
Requiring too much information
advertising were misleading: “Keep your property,” “Stop wage garnishments,” “Stop home foreclosure,” and “Stop vehicle repossession.” (The advertising also included the statement, “Screwing Banks Since 1992,” which we will not discuss here.) One attention-getting aspect of the case was that the lawyer was suspended for 30 days with automatic reinstatement. This was a harsh sanction given the long history of advertising cases being resolved by private or public reprimands.
The Court of Appeals decision in Atcha also raises questions about the constitutional justification for a recent agreed lawyer disciplinary action. Matter of Welke, ___ N.E.3d ___ (Ind. Jan. 7, 2016), http:// www.in.gov/judiciary/files/orderdiscipline-2016-49S00-1505DI-293.pdf. The fact that this was an order entered on the agreement of the parties means that any constitutional issues that might have been raised were waived. The Disciplinary Commission and the respondent agreed that the following statements in bankruptcy
In its very brief analysis, the Court stated that the parties agreed that the advertisements violated the prohibition in Rule 7.1 against making false or misleading communications about the lawyer or the lawyer’s services, including a communication that omits a fact necessary to make a statement considered as a whole not materially misleading. Unfortunately, the Court did not explain how the statements were either outright misleading or, more likely, failed to provide additional facts to render them not misleading. There are, of
Is the office-address requirement in Rule 7.2(c) unreasonable and unduly burdensome? Is it an example of a rule built on a lawpractice paradigm that is no longer current? Should it go the way of nicely bound copies of the North Eastern Reporter? Only time will tell.
course, approaches to bankruptcy that allow debtors to keep property and stop wage garnishments, home foreclosures and vehicle repossessions. In fact, the automatic stay that goes into effect upon filing a bankruptcy petition immediately stops wage garnishments, home foreclosures and vehicle repossessions. Whether those adverse legal actions will be stopped permanently depends on the application of bankruptcy law to each debtor’s particular circumstances. And statutory exemptions guarantee that the debtor will be able to keep at least some property. One assumes that if Welke had included qualifying language in his advertisements, such as, “You might be able to keep some or all of your property and stop wage garnishments, home foreclosure and vehicle repossession,” he would have been left alone. Thus, the Commission’s position in Welke might be viewed as a type of compelled speech. It’s not that what Welke said was wrong, it’s that he was required to say more. Or in the words of the rule, his statements “omit[ted] facts necessary to make the statement[s] considered as a whole not materially misleading.” According to the Court of Appeals in Atcha, requiring commercial advertisers (including lawyers) to say more is not justified if the “more” is not needed in order to prevent customers/clients from incurring surprise costs or to otherwise protect them from tangible deception. A wasted trip to the dentist’s office did not carry the day in Atcha. What about Welke’s close-but-no-cigar advertisement? A prospective client might read his ad and make an appointment, incorrectly believing that by filing bankruptcy, he could permanently stop all that bad stuff from happening and keep all of his property to boot. While that is possible, the cost to the client to find out from
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Welke that those goals might not be achievable in the client’s particular case will only be the time it takes to travel to Welke’s office and hear him dash the client’s fondest hopes – at which point, the client will be free to hire Welke anyway or turn around and walk out the door, having paid nothing. (This analysis breaks down if Welke charges the client a fee for in-person supplementation of incomplete statements made in his advertisements.) More generally, isn’t it asking too much for lawyer advertising to inform clients of everything they need to know about their legal matters before they darken a lawyer’s door? Lawyer advertising can never inform clients of the granular details of their legal matters – that is not its function; that is why we have lawyers. If it were, every bankruptcy ad would need to include a copy of the entire Bankruptcy Code.
PROBATE LITIGATION • Will & Trust Contests • Interference with Inheritances • Guardianship Disputes
Curtis E. Shirley
• Co-counsel and Expert Testimony in all Indiana counties
Toll Free: 877/953-4900 151 N. Delaware St., Suite 1700, Indianapolis, IN 46204 Telephone: 317/685-6512 Facsimile: 317/685-6505 E-mail: firstname.lastname@example.org URL: www.shirleylaw.net
Lawyer advertising plays an important – but limited – role in educating clients about their rights. Advertising primarily exists to let clients know they might benefit from a particular type of legal service. The ins and outs of the client’s individual case must wait until the client shows up at the lawyer’s office (physical or virtual) and explores the details of his case with the lawyer in a confidential setting. If the lawyer advertising rules treat as misleading any advertisement that says enough to encourage a prospective client that legal services might be helpful, but not enough to dissuade all prospective clients who won’t benefit from the legal services from contacting the lawyer, the implications for lawyer advertising regulation will be dramatic. Figuring out how to squeeze our office addresses into the limited space available on the side of a freebie pen will be the least of our challenges. RES GESTÆ • APRIL 2016
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By Sharon D. Nelson and John W. Simek
Recent egregious data breaches – how they happened
e should be grateful for other peoples’ data breaches – they help us to improve our own security. In our breach-a-day world, we seem to have more data breaches than ever. They come fast and furious – rare is the day when we don’t hear of one or more breaches on the evening news or through online media. Attack vectors change constantly – those of us in information security have a deep sense of humility in the face of constant changes in threats as well as technology, policies and training to defend against those threats. Here are a few of the famous data breaches of 2015 with lessons to be learned from how they happened.
Office of Personnel Management This was probably the most controversial breach of 2015. In May, the federal Office of Personnel Management (OPM) reported a breach affecting 4.2 million current and former federal employees. A few days later, it revealed a second breach (lesson here – don’t speak too quickly about data breach specifics). The second breach brought the number impacted to 22 million people who had applied for government jobs or security clearances. Data from some applicants’ family members was also compromised. The data taken included names, addresses, names of relatives, employment histories and healthcare histories. There was a lot of talk about the fact that 5.6 million digital fingerprints were compromised, giving rise to concern about the security of biometrics. Members of law enforcement, the intelligence community and the federal court system were all impacted. Some of the data included information on peoples’ sex lives, drug and alcohol 34
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problems and debts, all of which could be used for blackmail. The press confirmed through multiple sources that the government had concluded that China was behind the hack. But it declined to overtly accuse China because revealing technical details of how they attributed the breach to China would tip off hackers to the ways that American intelligence agencies track them. Computer security firm CrowdStrike, which has close ties to U.S. law enforcement, said it had traced the breach to hackers it said were “affiliated with the Chinese government,” using forensic information from the hack provided by the government. The director of OPM resigned. The breach went undetected for 343 days – it was ultimately discovered when anomalous SSL traffic and a decryption tool were observed within the network. Though the U.S. has not talked publicly about how the breach happened, U.S. Department of Homeland Security official Andy Ozment testified that the attackers had gained valid user credentials to the systems they were attacking, likely through social engineering.
This Hong Kong digital company was the victim of one of the year’s biggest hacks in November when its Learning Lodge database was compromised, permitting hackers to get adults’ profile information, email addresses, passwords, chat logs and audio files – and the names, home addresses, first names and birthdates of millions of children and their photographs. Some of the audio recordings were of children’s voices from VTech’s Kid Connect, a service that allows parents and kids to chat via a mobile phone app and a VTech tablet. The release of the information of children was particularly disturbing and garnered a lot of publicity. So how did the information of more than 6 million people get exposed? According to security researchers, the hacker used a SQL injection to gain root access to VTech’s web and database servers. Users’ passwords weren’t properly scrambled and hashed. The MD5 algorithm that VTech used had been known to be vulnerable for a decade or more. Worse yet, the company stored customers’ security questions and answers in plain text, a clear security no-no. The reported hacker said that the entire purpose of the hack was to expose the security flaws and said he would not use or publish the data. Besides mishandling the data from a security perspective, one wonders why the company needed to store this much data to fulfill its business purposes. It is a common problem – storing data one does not need, which itself creates a potential vulnerability.
Anthem In February, health insurer Anthem said that hackers had accessed its servers and downloaded the personal data of employees and
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those who were insured by Anthem. Even those who were not Anthem customers may have been impacted because Anthem handles paperwork for smaller insurers. Data stolen included names, addresses, birthdates, Social Security numbers and employment information, including salaries. Some 79 million records were compromised and dumped online – this was the largest data breach of 2015. This breach occurred because the hackers had gained access to the login credentials of employees with system access. How? Reportedly, the credentials were obtained through a watering hole attack. A watering hole attack is a security exploit in which the attacker seeks to compromise a specific group of end users by infecting websites that members of the group are known to visit. The goal is to infect a targeted user’s computer and gain access to the network at the target’s place of employment. In this case the attackers created a bogus domain name “we11point.com” (based on Wellpoint, the former name of Anthem). The hackers set up subdomains designed to mimic real services (such as human resources), a VPN and Citrix server. Via phishing emails, users may have been lured to infected websites and entered their login credentials. A number of security companies believe the hack came from Deep Panda, a Chinese-based hacking group. The breach was undetected for nine months and discovered when a systems administrator noticed that a legitimate account was querying internal databases but without the legitimate user’s knowledge. There are similarities between this attack and the breach of Premera Blue Cross in 2015, impacting 11 million people.
Are they related? Impossible to say, but another bogus domain name “prennera.com” was discovered in the Anthem investigation.
Pentagon In July, alleged Russian hackers accessed an unclassified email server of the Pentagon. U.S. officials announced that Russia had launched a “sophisticated cyberattack” against the Pentagon’s Joint Staff unclassified email system. The officials added that the cyberattack compromised data belonging to 4,000 military and civilian personnel who worked for the Joint Chiefs of Staff. Later described as a “spear phishing attack,” it didn’t on the face of it sound all that sophisticated. However, Department of Defense officials continued to call it the “most sophisticated” cyberbreach in U.S. military history. Officials spent 10 days scrubbing the system and creating mock hacking scenarios before giving military personnel access to it again. The spear phishing attack targeted the personal information of scores of users. What may have made this attack sophisticated is that the hackers used “an automated system [that] rapidly gathered massive amounts of data and within minutes distributed all the information to thousands of accounts on the Internet.” Encrypted social media accounts were used to coordinate the attack. If true, that might qualify this attack as “sophisticated.”
Ashley Madison The Ashley Madison dating site breach impacted 37 million people and gave high-value entertainment fodder to pundits everywhere. This was an unusual hack, in that it seemed to be rooted in the moral convictions of the hackers, called The Impact Team. They wanted
the service and its tagline (Life is short. Have an affair.) taken down. They also wanted Avid Life Media’s “EstablishedMen.com” site taken down. When the site’s owner refused to take the sites down, the data was made public in spurts. The breach was reported in July, and data compromised included emails, names, home addresses, sexual fantasies and credit card information. All of the user data was released on Aug. 18, 2015. More data (including some of the CEO’s emails) was released on Aug. 20, 2015. The release included data from customers who had earlier paid a $19 fee to Ashley Madison to allegedly have their data deleted. It turned out to be a boon to divorce lawyers everywhere. No doubt many members were shocked to find out that most of the women on the site were “bots” – employees who pretended an interest in an affair as part of inducing additional payments to Ashley Madison – and of course users had no clue that they had agreed to the use of bots when they accepted the terms of service. The data was made vulnerable by a bad MD5 hash implementation. We are not sure how the hack actually happened, but The Impact Team itself said this: “Nobody was watching. No security. Only thing was segmented network. You could use Pass1234 from the Internet to VPN to root on all servers.” In an interesting side note, as of Jan. 1, 2016 Ashley Madison’s membership has supposedly increased by more than 4 million since the breach. Go figure. The authors are the president and vice president of Sensei Enterprises, Inc., a legal technology, information security and digital forensics firm based in Fairfax, Va., 703/359-0700, www.senseient.com. © 2016 Sensei Enterprises
RES GESTÆ • APRIL 2016
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By Curtis T. Jones
Appellate civil case law update
RECENT DECISIONS 11/15
he Indiana Supreme Court issued one civil opinion in November and granted transfer in another, both of which are discussed below. Nine civil opinions published by the Indiana Court of Appeals are also highlighted herein. The full text of all Indiana appellate court decisions, including those issued not-forpublication, are available via Casemaker at www.inbar.org or the Indiana Courts website, www.in.gov/judiciary/opinions.
INDIANA SUPREME COURT Constitutional limits concerning personalized license plates
On direct appeal, the Indiana Supreme Court in Commissioner of the Indiana Bureau of Motor Vehicles v. Vawter, et al., ___ N.E.3d ___ (Ind. 2015), considered the constitutionality of the Indiana Bureau of Motor Vehicles’ actions in the processing of applications for personalized license plates (“PLP”). Ind. Code §9-18-15-1 allows a registered owner or lessee of certain types of vehicles, including passenger motor vehicles, to apply to the BMV for a PLP. After receiving a PLP application, the BMV is permitted by statute to reject any PLP alphanumeric combination that “(1) carries a connotation offensive to good taste and decency; (2) would be misleading; or (3) the bureau otherwise considers improper for issuance.” Ind. Code §9-18-15-4(b). The trial court declared this statute and its related policies to be in violation of the First and Fourteenth Amendments to the U.S. Constitution. Curtis T. Jones The BMV appealed, Bose McKinney & Evans LLP arguing that because Indianapolis, Ind. personalized license CJones@boselaw.com plates are government 36
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speech, the statute and policies are constitutional. The Indiana Supreme Court agreed with the BMV. After the trial court’s decision, the U.S. Supreme Court issued Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239, 192 L.Ed.2d 274 (2015), which announced a three-factor test for government speech: (1) whether the government has historically used the medium to speak to the public; (2) whether the message is closely identified in the public mind with the state; and (3) the degree of control the state maintains over the messages conveyed. After analyzing these three factors, the Indiana Supreme Court found Indiana’s PLPs to be government speech. Therefore, the Court held that the BMV does not violate the First or Fourteenth Amendments when denying an application for a PLP or revoking a previously issued PLP.
Interpretation and application of the Indiana Dealer Services statutes In Andy Mohr West, Inc. v. Office of Indiana Secretary of State, 41 N.E.3d 704 (Ind. Ct. App. 2015), certain automotive dealers had filed a claim with the Auto Dealer Services Division of the Office of the Secretary of State (“Division”), challenging the Division’s approval of a petition by Ed Martin Toyota to relocate from Anderson to Fishers, Ind. The Division dismissed the dealers’ claims after it interpreted the Indiana Dealer Services statutes, Indiana Code Chapters 9-32. This case presented a matter of first impression for Indiana appellate courts. The Court of Appeals held that the Division’s interpretation of the relevant statutes was inconsistent with the “economic rationale of the legislative plan,” and reversed the
underlying rulings. Judge Friedlander published a dissenting opinion, deferring to and finding the Division’s interpretation of the statutes that the Division is tasked with enforcing to be reasonable. On Nov. 25, the Indiana Supreme Court granted transfer of the appeal.
INDIANA COURT OF APPEALS Contract unenforceable where key terms were not completed The matter of Sasso v. Warsaw Orthopedic, Inc., ___ N.E.3d ___ (Ind. Ct. App. 2015), involved a challenge to the trial court’s granting one parties’ cross-motion for summary judgment after finding the contract at issue to be unenforceable as a matter of law. Dr. Rick Sasso is a spinal surgeon and inventor who agreed to transfer certain patents to a company in exchange for monetary compensation. Dr. Sasso and the company discussed three types of consideration, of which the first two (initial payment and grant of shares of stock in the company) were completed. The third form of payment was a contingent amount based upon the percentage of sales for certain products. It was contemplated that Dr. Sasso would receive different percentages from the sale of different products. However, there was no schedule attached or otherwise added to the contract to show the assignment of Dr. Sasso’s patent nor a list of products covered by the agreement. The court held that “[t]he addendum’s absence renders the Agreement unenforceable” because there was no basis for determining whether a breach occurred without the products listed in an addendum, and there was no basis for giving an appropriate remedy.
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Recovery of fees allowed by statute in slander of title action Woude v. First Midwest Bank, ___ N.E.3d ___ (Ind. Ct. App. 2015), involved an appeal of a trial court’s decision to deny a request for attorney fees and prejudgment interest following a jury’s damages award. Ind. Code §32-20-5-2 provides that a court shall award a plaintiff in an action to quiet title to land “all the costs of the action, including attorney’s fees that the court allows to the plaintiff.” In this instance, the trial court “categorically excluded from its award all claimed attorney’s fees related to the jury trial, which it described as ‘not recoverable,’ and it also excluded from the award fees ‘related to the appeal of the jury trial.’” The Court of Appeals noted that the applicable statute does not contain a “prevailing party” standard, but, instead, “provides for attorney’s fees to a plaintiff if the court finds for him on his claim of slander of title to land.” Thus, the Court of Appeals held that the trial court erred when imposing a prevailing party standard, and remanded the matter to the trial court with instructions to award the plaintiff reasonable attorney fees based on the factors set out in Professional Conduct Rule 1.5(a).
tions period of one year as set forth in the legal engagement was permissible and enforceable. DiBenedetto’s claim was brought one year and almost six months after his cause of action accrued. The Court of Appeals noted that “[a] contract for legal services is governed by more strict rules than those applicable to a contract between parties on equal footing.” Relying upon the California case of Charnay v. Cobert, 51 Cal. Rptr. 3d 471 (Cal. Ct. App. 2006), the court held that the clause in the legal engagement that shortened the time for filing a lawsuit “violate[d] public policy and is void.”
Collective bargaining agreement’s progressive discipline was not followed In Madison County Board of Commissioners v. American Federation of State, County & Municipal Employees Local 3609, ___ N.E.3d ___ (Ind. Ct. App. 2015), the Court of Appeals reviewed an arbitration decision that the appropriate punishment for certain employees’ misconduct
Teachers allowed compensation for ancillary duties In Jay Classroom Teachers Association v. Jay School Corporation, ___ N.E.3d ___ (Ind. Ct. App. 2015), an Indiana Education Employment Relations Board (the “Board”) had struck a (continued on page 38)
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Clause in legal engagement shortening time for bringing malpractice suit voided In Devereux v. DiBenedetto, ___ N.E.3d ___ (Ind. Ct. App. 2015), the Court of Appeals reviewed a contract between DiBenedetto and his hired law firm to pursue damages stemming from an automobile accident. The limitations period for actions based on “injury to person or character” or “injury to personal property” is two years “after the cause of action accrues.” Ind. Code §34-112-4. The hired attorney, Devereux, argued that the shortened limita-
was a five-day, unpaid layoff as opposed to employment termination. A Collective Bargaining Agreement (“CBA”) contained a progressive discipline system, which allowed employment termination for certain offenses or a series of minor infractions. In this instance, some employees had incurred a series of minor infractions, but were not notified of these infractions until receiving notice that their employment was being terminated. The arbitrator held that the lack of notice and deprived opportunity to reform the misconduct did not follow the “progressive discipline” scheme, and, thus, employment termination was not appropriate in this circumstance. The Court of Appeals agreed.
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www.kcehlaw.com RES GESTÆ • APRIL 2016
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RECENT DECISIONS 11/15 continued from page 37
Expertise + Passion = Results Estate & Trust Litigation & Mediation Brian C. Hewitt, Esquire Alerding Castor Hewitt, LLP Indianapolis & Greenwood 317-829-1910 email@example.com } Fiduciary Litigation Committee – American College of Trust & Estate Counsel } Mediator of Over 750 Probate, Trust & Guardianship Disputes } Counsel in Hundreds of Will Contest, Accounting, Breach of Fiduciary Duty & Guardianship Cases } Super Lawyer® Top 50 – Numerous Years } Board Certified Indiana Trust & Estate Lawyer
RES GESTÆ • APRIL 2016
provision in a Collective Bargaining Agreement that would have allowed teachers to receive additional compensation for ancillary duties, such as covering for another teacher’s class during the normal workday. Both the teachers’ association and the school corporation had included that provision in their proposals. However, the parties could not come to an agreement and submitted their proposals as Last Best Offers to the Board since they were at an impasse. Relying upon Indiana Education Employment Relations Board v. Nettle Creek Classroom Teachers Association, 26 N.E.3d 47 (Ind. Ct. App. 2015), the Court of Appeals reversed the Board’s decision to exclude this provision from the bargaining agreement. The court found that the law does “allow teachers to negotiate with their employers for additional compensation (wages) for certain agreed-upon or required duties – ‘ancillary duties’ – beyond their normal teaching duties.” The court further held that a provision authorizing the superintendent to determine the salary of teachers hired after the school year begins, without the benefit of bargaining, was impermissible and should have been stricken by the Board.
Effect of sale of home to trust on Medicaid eligibility and benefits In Brown v. Indiana Family and Social Services Administration, ___ N.E.3d ___ (Ind. Ct. App. 2015), the Court of Appeals reviewed the effect of the sale of an individual’s home to an irrevocable trust upon her Medicaid eligibility and benefits. In this instance, the facts showed that the trust had received the full sale price of the home, which was determined to be the fair market value of the home at the time of the sale. Therefore, the court held that any penalty associ-
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ated with this sale was improperly assessed.
Neighbor not required to build half of a fence In Belork v. Latimer, ___ N.E.3d ___ (Ind. Ct. App. 2015), a landowner built a fence down half of his property line in an effort to keep his cattle upon his property. Citing Indiana’s Partition Fence statutes found at Ind. Code §3226-9, the landowner argued that his neighbor must pay to have the other half of the fence line built. Because the trial court found that the neighbor would derive no benefit from the fence, other than keeping the landowner’s cows off his property, it was determined that the statutes did not apply. The Court of Appeals affirmed.
Motion in limine properly granted to exclude evidence of insurance payments In Patchett v. Lee, ___ N.E.3d ___ (Ind. Ct. App. 2015), an individual had been injured while operating her motor vehicle. The injured party’s medical bills were paid by the Healthy Indiana Plan in full satisfaction of the stated amounts owed. In Indiana, when a medical provider treats a patient receiving Healthy Indiana Plan benefits, that provider must accept as payment in full the reimbursement amount set by statute. The trial court held that evidence of the Healthy Indiana Plan payments were barred by the collateral source statute, Ind. Code §34-44-1-2. The Court of Appeals found that the ruling in Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009), that discounted payments by an insurance company are admissible to assist in determining the reasonable value of medical services, was inapplicable to the circumstances of this case. In this instance, the Court of Appeals found that any discount allowed by
the medical providers was not the result of arms-length negotiation with an insurer, but premised on political decisions related to an individual receiving payments under the Healthy Indiana Plan.
Summary judgment in favor of bar owner for dram shop claim reversed In Marlow v. Better Bars, Inc., ___ N.E.3d ___ (Ind. Ct. App. 2015), Marlow had been drinking late one evening at Bubbaz Bar & Grill in Camby, Ind. A co-owner of the bar recalled that Marlow had consumed one mixed drink that evening, but was not exhibiting any signs of drunkenness while at the bar. After Marlow left the bar, he was found at a nearby White Castle restaurant, making a scene in the drive-thru. A police officer arrived, placed handcuffs on Marlow and then went to move Marlow’s vehi-
cle from the drive-thru line. While the police officer was away, Marlow ran from the parking lot and was hit by a vehicle when attempting to cross a highway. Expert witnesses opined that given Marlow’s bloodalcohol levels, he would have been exhibiting signs of drunkenness while at the bar earlier that evening. The Court of Appeals determined that a genuine issue of material fact existed concerning whether the bar served Marlow while he was visibly drunk. Thus, the Court of Appeals reversed the trial court’s grant of summary judgment in favor of the bar. Judge Brown issued a dissenting opinion, stating: “I believe that the intentional criminal act of resisting law enforcement by running into the middle of a busy highway broke the causal chain” between the acts of serving alcohol to Marlow and his injuries.
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RES GESTÆ • APRIL 2016
Order these helpful brochures provided in the public interest by the ISBA Probate, Trust & Real Property Section for office distribution and/or speaking engagements Call or email the ISBA for details: 800.266.2581 or firstname.lastname@example.org
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By Prof. Joel M. Schumm
Communicating plea offer, Batson challenge, other holdings
Failure to communicate plea offer Criminal defendants are entitled to the effective assistance of counsel as part of the plea process, and the failure to communicate formal plea offers may give rise to a post-conviction claim of ineffective assistance. See Missouri v. Frye, 132 S. Ct. 1339, 1408 (2012). In Woods v. State, No. 20A031506-PC-688, 2015 WL 9478052 (Ind. Ct. App. Dec. 29, 2015), the State gave defense counsel an offer for the defendant charged with Class A felony robbery to plead guilty to Class B felony robbery and two Class D felonies with sentencing left to the trial court’s discretion. The maximum possible aggregate sentence would have been 26 years. The Court of Appeals found both deficient performance and prejudice – and reversed. “The undisputed evidence shows that [defense counsel] never communicated that plea offer to Woods and that, if he had, Woods would have accepted the plea. Instead, following a bench trial, the trial court sentenced Woods to 45 years with 10 years suspended.” Id. at *8. On remand, the trial court and the parties were instructed to proceed as if Woods had just received the plea offer, “and he shall have four business days from the certification of this opinion to accept or reject the offer. If Woods accepts
the offer but the trial court decides not to accept it, then Woods shall have a new trial.” Id. Judge May dissented, observing that defense counsel is deceased and the prosecutor had no memory of the plea negotiation process. Thus, the only evidence that counsel did not communicate the offer to the defendant was the testimony of the defendant himself, which the trial court was not obligated to believe. Id.
Batson challenge based on juror demeanor In Blackmon v. State, No. 48A02-1505-CR-270, 2015 WL 8916218, at *4 (Ind. Ct. App. Dec. 15, 2015), the prosecutor gave two reasons for striking a prospective juror: her lack of engagement with the jury selection process and the possibility that she might know a defense witness. Defense counsel asserted that white panelists had been equally disengaged and that the prospective juror did not indicate that she knew the witness when the venire was asked earlier during voir dire. Id. at *5. The Court of Appeals reiterated that “the trial court, not the appellate court, is in the best position to consider the juror’s demeanor, the nature and strength of the parties’ arguments, and the attorney’s demeanor and credibility,” finding “no circumstances that call into question the usual deference we give to the trial court’s superior ability to evaluate the panelists’ demeanor and the attorneys’ arguments and demeanor.” Id. at *6.
Double jeopardy claim fails; one judge would increase sentence on appeal Kunberger v. State, No. 02A031505-CR-304, 2015 WL 7753077, at *3 (Ind. Ct. App. Dec. 2, 2015), reaffirmed the general rule that defendants who plead guilty waive
their right to challenge their convictions on double jeopardy grounds, but a defendant who pleads guilty without the benefit of an agreement retains the right to raise a double jeopardy claim on appeal. A double jeopardy violation under the actual evidence test requires a finding of a “reasonable possibility” that the facts used to establish the essential elements of one offense may also have been used to establish the essential elements of a second offense. Id. at *5. In Kunberger, the factual basis for the guilty plea to charges of criminal confinement, strangulation and domestic battery was merely the defendant admitting the elements of each offense, which left the appellate court with “no basis on which to conclude there was a double jeopardy violation ... . Even if we resorted to the facts recounted in the probable cause affidavit, we could not say with any certainty whether the same act was the basis for all three offenses.” Id. The majority found no double jeopardy violation. It also rejected a challenge that the sentence of two-anda-half years with all but six months suspended to probation was inappropriate under Appellate Rule 7(B).1 Judge Pyle dissented on the sentencing claim. Relying on the seldom-applied principle that appellate courts faced with a defendant’s challenge to the appropriateness of a sentence “may impose a more severe sentence than that ordered by the trial court,” McCullough v. State, 900 N.E.2d 745 (Ind. 2009), Judge Pyle Joel M. Schumm concluded the defenClinical Professor of Law dant’s “behavior toward IU McKinney School of Law the victim, combined Indianapolis, Ind.
CRIMINAL JUSTICE NOTES 12/15
s 2015 came to an end, the Indiana Supreme Court issued no opinions in criminal cases during December while the Court of Appeals issued several. This column summarizes six of the most significant, addressing issues involving communicating plea offers, Batson challenges based on demeanor, juror misconduct, double jeopardy, appellate sentence review, and restitution.
(continued on page 42)
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CRIMINAL JUSTICE NOTES 12/15 continued from page 41 with his outrageous lack of respect for the court’s authority and his failure to abide by its no-contact order, warrant a fully executed sentence to the Department of Correction.” Id. at *7.
Drug sentence upheld over dissent’s concern of ‘piling on’ In Eckelbarger v. State, No. 90A02-1503-CR-188, 2015 WL 8477835, at *6 (Ind. Ct. App. Dec. 10, 2015), trans. pending, a divided panel affirmed a 32-year sentence with eight years suspended to probation for offenses including dealing by delivery and dealing by manufacturing of methamphetamine. As to the nature of the offense, the court found the manufacture of methamphetamine “extremely dangerous” when done “in a trailer park where the homes are literally feet away from one another.” As to the defendant’s character, the court recounted his longstanding use of illegal drugs and his criminal history, which included a prior conviction for class B felony dealing in methamphetamine as well as convictions for public intoxication, possession of marijuana and battery resulting in bodily injury. Adding that the defendant was charged with a new offense while out on bond for the current offense, the majority concluded that he “has no regard for the laws of this state and has disdain for legal authority.” Id. at *7. Judge Riley dissented, relying on Williams v. State, 891 N.E.2d 621 (Ind. Ct. App. 2008), which found the imposition of consecutive sentences inappropriate because “the State may not ‘pile on’ sentences by postponing prosecution in order to gather more evidence … as a direct result of the State-sponsored criminal activity.” In Eckelbarger, the day after a Statesponsored drug purchase, the police executed a search warrant 42
RES GESTÆ • APRIL 2016
that was procured solely as the result of those State-sponsored drug purchases, the fruits of which led to the defendant’s conviction for manufacturing methamphetamine. Thus, as in Williams, Judge Riley would exercise 7(B) authority to order the sentences served concurrently for an aggregate term of 16 years with four suspended to probation.
Juror’s communication with bailiff found harmless In Pribie v. State, No. 12A021412-CR-836, 2015 WL 7982023, at *8 (Ind. Ct. App. Dec. 4, 2015), trans. pending, a juror told the bailiff that she “knew people on both sides” of the case, and the bailiff responded that they lived in a small, close community. Asked whether the people the juror recognized were close friends, the juror said no. The juror also responded no when asked whether knowing these people would prejudice her decision. The bailiff never reported the conversation to the court or the defense during trial. According to Indiana Jury Rule 24, “[i]f the court receives information that a juror has personal knowledge about the case, the court shall examine the juror under oath in the presence of the parties and outside the presence of the other jurors concerning that knowledge.” The parties agreed that the proper procedure was not followed because the bailiff did not bring the conversation to the judge’s attention nor was the defendant present when the bailiff conducted his investigation. Nevertheless, in finding the error harmless, the Court of Appeals explained that “if the proper procedure had been followed, the trial judge, rather than the bailiff, would have asked substantially the same questions as the bailiff. Once the juror told the judge that she was not close to any
of the witnesses and that she would not let her knowledge affect her decision, the trial court would have acted within its discretion to keep the juror.” Id. at *8.
Insufficient evidence to support restitution order The State bears the burden of establishing the amount of restitution, which generally requires the presentation of evidence. In reversing a $3,600 restitution award in a case involving the sale of fake dollar coins, Garcia v. State, No. 45A031503-CR-86, 2015 WL 9274826, at *3 (Ind. Ct. App. Dec. 21, 2015), trans. pending, concluded that the State could have met its burden by obtaining an affidavit from the victim. However, “[m]ore was required” than simply asking the trial court to enter a restitution order in the amount reflected in the probable cause affidavit. Id. Judge Bradford dissented, noting that Rules of Evidence do not apply at sentencing hearings and thus the trial court could rely on the probable cause affidavit. He also expressed concern about requiring victims to appear at sentencing or file an affidavit of loss in potentially every restitution case. Here, restitution was not based on speculation or conjecture because a specific amount “not subject to valuation attack” was in the probable cause affidavit; thus, “under the circumstances of this case, a probable cause affidavit whose authenticity and accuracy have not been questioned, much less shown to be suspect, may be considered by the trial court in ordering restitution.” Id. at *4 (internal footnote omitted). 1. In another jeopardy case, however, a panel of the Court of Appeals sua sponte vacated convictions for aggravated battery, criminal confinement, battery and strangulation, finding them factually lesser-included offenses of attempted murder. The court reiterated that “concurrent sentences do not cure double jeopardy violations.” Whitham v. State, No. 39A01-1504-CR134, 2015 WL 9586984, at *7 (Ind. Ct. App. Dec. 30, 2015).
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Spiced Pork Tenderloin
DELISH Another important thing we have learned about recipes is that seasoning proportions aren’t as precise as we originally thought. A couple of months ago, we would sweat over just how much a “pinch” was supposed to be. Now we play with the seasoning to see what we like. In fact, we tend to mess up at least one measurement in every recipe, and we just move on like we meant it. Unless you accidentally use a tablespoon of cayenne pepper instead of a teaspoon, nobody seems to notice. Our recipe this month is our favorite recipe thus far from Cooking Light magazine – Spiced Pork Tenderloin. In fact, our family loves this so much, we have made it every couple of weeks since we found it. At around 40 minutes, this takes longer to make than we like, but it tastes fantastic and is very healthy, with only 230 calories via one-quarter of the amount in the recipe below. For a meal that contains meat, potatoes and bacon, that’s pretty awesome. We usually serve this with fresh green beans, our recently discovered favorite side dish. This recipe would serve 3-4 people, so we always double it. 1. Buy 1 pound of pork tenderloin and trim off the fat. 2. Cut 12 green onions into 2-inch pieces. 3. Cut 1 pound of small potatoes, such as red potatoes, into quarter inch slices. 4. Thinly slice 3 or 4 garlic cloves 5. Combine the following and rub it into the tenderloin: 1/2 teaspoon salt 3/4 teaspoon black pepper 1/8 teaspoon ground red pepper 1/4 teaspoon paprika 1/8 teaspoon sugar
6. Preheat your oven to 375 degrees. 7. Heat a large ovenproof skillet over medium high heat. Add 4 slices of center-cut bacon to the skillet and cook them until they’re crispy. Remove the bacon from the pan, but not the bacon grease. At some point while something else is cooking, crumble the bacon into little pieces. 8. Add the potatoes and onions to the pan and cook for about 5 minutes, turning the potatoes often. 9. Remove the potatoes and onions from the pan, trying to keep the grease in the pan. 10. Add the tenderloin to the pan and cook it for about 4 minutes, turning it a time or two to brown it on all sides. 11. Add the potatoes and onions back to the pan and sprinkle the garlic slices on the pork. 12. Bake until the pork is done to your liking, about 12 minutes. 13. The recipe says to let the pork stand for five minutes, but we rarely have the patience to do so. 14. Slice the pork into 1/2-inch or so slices and sprinkle with the bacon. We plan to share the best recipes we have come across while we learn how to cook and experiment with different things. We would love to hear about any recipes you have that come close to our criteria that they taste great, are quick to make and healthy. If you have one you would be willing to share, please email it to email@example.com.
PRACTICING IN THE KITCHEN
ast month, we wrote about how difficult it was to find good recipes you can trust on the Internet. We decided to stick to a few sources we liked and work from there. With healthy recipes being one of our criteria for a good meal, along with tasty and quick to make, we subscribed to Cooking Light magazine. They have lots of recipes each month, and each recipe comes with a picture, which we find is a must to get us interested. Many of the Cooking Light recipes have caused us to stretch our skills a bit, and some don’t meet our “quick” benchmark, but we have had many successful meals with only a couple we won’t repeat. Another source we like is Michael Symon’s 5 in 5 book. We know Chef Symon from the Food Network, and we like his new restaurant in Indianapolis, B Spot Burgers. We will admit we were a bit misled about the premise of 5 in 5 – it is not five ingredients that take five minutes to prepare as you might think. Instead, it is five “main” ingredients, and the meat cooks for five minutes or less. This brings up our greatest pet peeves about recipes. They give the preparation time without regard to the time getting the ingredients ready. One of our first side dishes was a carrot salad that looked great and had a five-minute prep time. Well, that didn’t include the 45 minutes we spent trying to “julienne” those carrots. (We will never julienne again!) So when looking at recipe time, consider how long it takes to get those ingredients ready. In our case, we also have to consider if we have the right tools for the job. It turns out that a mandoline is a cutting device, not an instrument that looks like a banjo, and only one of them is effective at slicing apples. Despite taking more than five minutes, the 5 in 5 book is packed with all sorts of unusual recipes that our family has unanimously enjoyed.
Jeff Saunders is a partner at Adinamis & Saunders, where he practices with his wife, ISBA President Carol Adinamis. Alex Saunders is their 11-year-old son, a 5th grader at Westfield Intermediate School. Jeff and Alex have taken over all the food duties for the family while Carol serves as president. RES GESTÆ • APRIL 2016
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FAIR COMMENT continued from page 46
study concludes.” (See https:// sleepfoundation.org/sleepnews/study-physical-activityimpacts-overall-quality-sleep.) 5. It might help with depression. “Improved self-esteem is a key psychological benefit of regular physical activity. When you exercise, your body releases chemicals called endorphins. These endorphins interact with the receptors in your brain that reduce your perception of pain. Endorphins also trigger a positive feeling in the body, similar to that of morphine. For example, the feeling that follows a run or workout is often described as ‘euphoric.’ That feeling, known as a ‘runner’s high,’ can be accompanied by a positive and energizing outlook on life.” (From http://www.webmd.com/ depression/guide/exercisedepression) 6. It might help reduce your risk for MOST diseases. From the NIH Senior Health website: “[S]tudies show that people with arthritis, heart disease or diabetes benefit from regular exercise. Exercise also helps people with high blood pressure, balance problems or difficulty walking.” (From http://nihseniorhealth.gov/ exerciseforolderadults/ healthbenefits/01.html) Blah, blah, blah. You’re still not convinced. Well, how about more personal testimony? After I started exercising regularly, I found I was more patient with my clients and opposing counsel. In truth, I spent less time thinking about weapons and more time trying to be the calm one in the room. It improved my home life, my patience with my children, and my relationship with my husband. It also lowered my stress level. I couldn’t think about what
Email your classified word ad to Susan Ferrer, firstname.lastname@example.org. You will be billed upon publication. ISBA members: 40¢ per word, $10 minimum; nonmembers: 60¢ per word, $15 minimum; $5 blind-box fee.
RES GESTÆ • APRIL 2016
I had to do at work when I was trying to avoid getting kicked in the head in karate class. I am not a poster child for physical fitness. When I finally earned my black belt one of the women in my class said, “No offense, but if you can do it, then I know I can, too.” That’s pretty much my point. If I can do it, then you can, too. At this year’s ISBA Solo & Small Firm Conference June 2-4 in French Lick, Ind., we will have a “fun track” complete with yoga, bicycling, walking and even a meditation session to help promote fitness and stress reduction. The idea is that every attorney needs to think about exercise. We will also have a petting area complete with therapy dogs to help our attendees take a break from the rigors of CLE. I am convinced that regular exercise has helped me be a better person – both internally and externally. I want to be above average in something other than weight gain. Maybe you do, too. If so, talk to your doctor, first, and think about making time to exercise. Enlist your family and friends for encouragement and make them “suffer” with you. Then, maybe someday, you’ll have your hands up in the air and be happy about it – like me! Or, in the words of the Black Eyed Peas, “Let’s get it started in here.” Patty McKinnon is this year’s chair of the State Bar’s Solo & Small Firm Conference, which is scheduled for June 2-4 in French Lick, Ind.
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WORKER’S COMPENSATION. Evansville attorney Kevin R. Bryant seeks referrals on worker’s compensation cases statewide. Please telephone 812/437-9991. STEVE TUCHMAN, IMMIGRATION. Experienced practitioner for statewide referrals, consultation and co-counsel positions. Lewis & Kappes, P.C., 317/639-1210, STuchman@ Lewis-Kappes.com
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, firstname.lastname@example.org
INSURANCE DEFENSE & coverage. AV-rated northwest Indiana insurance defense firm with over 75 years of combined experience in insurance practice is available to work with insurance companies on coverage issues and to represent insureds in litigation throughout northern Indiana. Huelat Mack & Kreppein P.C., 450 St. John Rd., Suite 204, Michigan City, IN 46360, 219/8793253, email@example.com
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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, firstname.lastname@example.org, 317/465-1065.
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By Patricia L. McKinnon
Stand up slowly and put your hands in the air
hat happens in Vegas doesn’t always stay in Vegas. I blame it on the Indiana State Bar Association. Once upon a time, there was a CLE conference in Vegas, sponsored by you-know-who. During the conference it was hot – Vegas hot. One day, while walking from my hotel to the CLE conference, I realized I had a problem. My legs were just a little too close together. While wearing a dress, my legs were injuring each other, simply by act of walking. To say participating in the conference was painful was an understatement. This happened one week after my annual physical exam during which my internist pointed out my weight was about to roll over into the next large (very large) bracket. “But,” I protested, “I’m not even eating everything I want!” My internist just shrugged her shoulders and said, “The average person, at your age, gains seven pounds a year.” Average? Who was she calling average? As attorneys, we like to think we are a little bit above average compared to the rest of the population. As attorneys we also pride ourselves on our logic and our ability to suppress our emotions when trying to solve a problem. With that in mind, I will now try to blind you with logic as well as science (with apologies to Thomas Dolby) regarding how to fix a problem we all have. “Sarcopenia” – you may not have heard of this. It’s a medical condition that you don’t know you are suffering from but you are. Now. Right now. This condition is the loss of muscle mass and function that happens to everyone beginning around age 30. Thirty! People who are physically inactive can lose 3 to 5 percent of their muscle mass per decade. Any loss of muscle mass means a loss of strength and mobility. Loss of muscle mass is also a factor in the increased number of falls and fractures in older adults. The percentage of loss increases dramatically around age 75. Losing muscle causes skeletal weakness and loss of stamina, and it reduces most people’s physical activity level. Reduced physical Patricia L. McKinnon activity then further reduces muscle mass. Attorney at Law It is a vicious cycle. Indianapolis, Ind. The primary treatment for “sarcopenia” pmckinnon@indiana is exercise – specifically, exercise that familylawyer.com increases muscle strength and endurance with weights or resistance bands.
Because this may still not be enough to convince you to exercise, I will tell you a few unusual benefits of exercise that you may not know about. 1. It might improve your driving skills. If you begin a form of exercise that requires you to use your reflexes and react quickly, such as martial arts, tennis, boxing or the like, then you may find that your driving skills will improve as well. It happened to me. It makes sense if you think it through. If you have to react quickly during exercise, then why wouldn’t you react quickly outside of exercise? 2. It might lower your risk for eye disease. Many eye diseases, such as glaucoma, are circulation-related. If you improve your circulation, by exercise, then you lower the pressure in your eye. Decreased pressure might lessen your risk of developing glaucoma or other circulation-related diseases of the eye. The eye doctor measured my glaucoma risk, after I had begun exercising, and wondered why the problem “red” areas on an earlier test had been replaced by “green” areas (think of the colors of a stoplight and how they might apply to an eye test). When I explained that I had started exercising, he cautioned me that the minute I stopped exercising the red areas would come back. (“‘These data provide preliminary evidence that vigorous physical activity may reduce glaucoma risk,’ according to a report by Paul T. Williams, Ph.D., Life Sciences Division, Lawrence Berkeley Laboratory, Donner Laboratory, Berkeley, Calif.”) (From“Exercise & Glaucoma” in Eyeworld: The Newsmagazine of the American Society of Cataract & Refractive Surgery, February 2010 issue) 3. It might lower your risk of breast cancer or prevent your breast cancer from coming back. “Many studies have found a link between regular exercise and a lower risk of being diagnosed with breast cancer or breast cancer coming back (recurrence). As a result, the American Cancer Society and many doctors recommend that women who’ve been diagnosed with breast cancer, as well as those who haven’t, exercise regularly – about four to five hours per week at a moderate intensity level. (Brisk walking is considered moderate intensity exercise.)” (From http://www. breastcancer.org/research-news/exercise-reducesrisk-if-continued) 4. It might help you sleep better. “People sleep significantly better and feel more alert during the day if they get at least 150 minutes of exercise a week, a new (continued on page 44)
RES GESTÆ • APRIL 2016