Vol. 58, No. 5
ADMINISTRATIVE LAW REFORM
MAGNA CARTA: 'A FOUNDATION TO BECOME BETTER CITIZENS' SEALING/ EXCLUDING DOCUMENTS IN INDIANA COURTS JUDGE HOLDER: THE ‘GOLDEN EAGLE’
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The Journal of the Indiana State Bar Association
RES GESTÆ December 2014
7 ADMIN LAW REFORM
12 MAGNA CARTA
PRESIDENT’S PERSPECTIVE Jeff R. Hawkins, Sullivan, 2014-2015
RECENT DECISIONS 8/14
TECHNOLOGY: THE CLOUD
CRIMINAL JUSTICE NOTES 9/14
Donald R. Lundberg, Indianapolis
Curtis T. Jones and John Z. Huang, Indianapolis
Jeremy I. Eglen, Avon
Jack Kenney, Indianapolis
Bill Brooks, Indianapolis
F E AT U R E S
22 JUDGE HOLDER EDITOR Susan J. Ferrer email@example.com
Vol. 58, No. 5
ADMINISTRATIVE LAW JUDGES REQUIRED TO BE ATTORNEYS By Kathleen G. Lucas and Stephen L. Lucas, Indianapolis
GRAPHIC DESIGNER & PHOTOGRAPHER Vincent Morretino firstname.lastname@example.org
MAGNA CARTA: ‘A FOUNDATION’
ADVERTISING Chauncey L. Lipscomb email@example.com
SEALING/EXCLUDING DOCUMENTS IN INDIANA COURTS
WRITTEN PUBLICATIONS COMMITTEE CO-CHAIRS Joseph M. Pellicciotti William A. Ramsey firstname.lastname@example.org
JUDGE CALE JAMES HOLDER: THE ‘GOLDEN EAGLE’
By Bill Brooks, Indianapolis
By Maggie L. Smith, Indianapolis
By Suzanne S. Bellamy, Indianapolis Cover photo of the Indiana Statehouse by Vincent Morretino
Res Gestae (USPS–462-500) is published monthly, except for January/February and July/August, by the Indiana State Bar Association, One Indiana Square, Suite 530, Indianapolis, IN 46204. Periodicals postage paid at Indianapolis, Ind. POSTMASTER: Send address changes to Res Gestae, c/o ISBA, One Indiana Square, Suite 530, Indianapolis, IN 46204. Subscriptions to members only, $5 annually from dues. All prior issues available exclusively from William S. Hein & Co., 1285 Main St., Buffalo, NY 14209. ISBA members are encouraged to submit manuscripts to the editor for possible publication in Res Gestae. Article guidelines can be obtained by calling 800/266-2581 or visiting www.inbar.org. Res Gestae’s printer, Print Directions, Inc., is an Indiana-certified Woman Business Enterprise. ©2014 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 • DECEMBER 2014
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A force of one
A INDIANA STATE BAR ASSOCIATION One Indiana Square, Suite 530 Indianapolis, IN 46204 800/266-2581 • 317/266-2588 fax http://www.inbar.org
OFFICERS President Jeff R. Hawkins, Sullivan President-Elect Carol M. Adinamis, Westfield Vice President Mitchell R. Heppenheimer, South Bend Secretary Michael S. Dalrymple, Indianapolis Treasurer O. Adedoyin Gomih, Merrillville Counsel to the Ted A. Waggoner, Rochester President
BOARD OF GOVERNORS 1st District 2nd District 3rd District 4th District 5th District 6th District 7th District 8th District 9th District 10th District 11th District 11th District 11th District At-Large District At-Large District Past President House of Delegates
Scott E. Yahne, Munster Robyn M. Rucker, Valparaiso Robert L. Jones Jr., Notre Dame Martin E. Seifert, Fort Wayne Candace D. Armstrong, Brook Patrick J. Olmstead, Greenwood Ann Z. Knotek, Brownsburg Hon. Leslie C. Shively, Evansville Crystal G. Rowe, New Albany Wilford A. Hahn, Huntington Tonya J. Bond, Indianapolis Terry W. Tolliver, Indianapolis Andrew Z. Soshnick, Indianapolis Rafael A. Sanchez, Indianapolis Sonia C. Das, Indianapolis James Dimos, Indianapolis Andi M. Metzel, Indianapolis, Chair House of Delegates Hon. Thomas J. Felts, Fort Wayne, Chair-Elect Young Lawyers Matthew J. Light, Indianapolis, Section Chair
STAFF Executive Director Thomas A. Pyrz • email@example.com Administrative Assistant Barbara M. Whaley • firstname.lastname@example.org Associate Executive Director Susan T. Jacobs • email@example.com Administrative Assistant Julie A. Gott • firstname.lastname@example.org Director of Communications Susan J. Ferrer • email@example.com Director of Public Relations & Social Media Carissa D. Long • firstname.lastname@example.org Graphic Designer & Photographer Vincent Morretino • email@example.com Legislative Counsel Paje E. Felts • firstname.lastname@example.org Director of Special Projects Section & Committee Liaison Maryann O. Williams • email@example.com Administrative Assistant Barbara L. Mann • firstname.lastname@example.org Local & Specialty Bar Liaison Catheryne E. Pully • email@example.com Administrative Assistant Kimberly D. Latimore • firstname.lastname@example.org Director of CLE Christina L. Fisher • email@example.com Assistant to Director of CLE Kassandra Adams • 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
simple Internet research experiment with the words, “distinguish yourself in the marketplace,” yielded on the first page of search results about a dozen links to websites purporting to help a reader accomplish marketplace differentiation. In this world where everyone, and I mean EVERYONE, seems to be chasing the same dime, how can we make a difference as individual lawyers, judges, educators and administrative professionals? Can one person really make a difference? I was the 15th Indiana State Bar president to receive an invitation to keynote at a joint meeting of the Anderson Rotary Club and the Madison County Bar Association on Dec. 2. The Community Service Award Luncheon began more than 15 years ago when Madison County Bar and Anderson Rotary Club member Charles H. Dickmann and his wife, Hazel Dickmann, gave a $100,000 gift to the Charles H. Dickmann/Madison County Bar Association Endowment Fund, which provides money for distribution each year to a charity chosen by the Community Service Award recipient. This year’s recipients, Ricker Oil Company and convenience store founders Jay & Nancy Ricker, directed this year’s endowment distribution toward the Madison County Habitat for Humanity affiliate. The story of the Charles H. Dickmann/Madison County Bar Association Endowment Fund does not stand out as an unparalleled philanthropic effort in Indiana, the United States or the world – other philanthropists have matched or exceeded the Dickmanns’ generosity. The story stands out because one hard-working, World War II veteran lawyer cared enough about his profession and community to invest his time and treasure in the improvement of both. Sure, it helps to have enough material wealth to impact the world with monetary gifts, but an individual’s time commitment can have an impact on the world in ways that money cannot scratch. Charlie Dickmann demonstrated that principle by promoting professionalism and philanthropy through his active participation in his church, community organizations, local bar and the ISBA. One day after the Anderson luncheon, the Indiana State Bar Association announced the names of the 2015 class of its Leadership Development Academy (LDA). Ask any LDA alumnus and you will hear a testimony about the multitude of ways that one lawyer,
in coordination with a few others, can change lives and improve our part of the world. Those 25 new LDA members will participate in five sessions featuring professional facilitators and prominent speakers from various disciplines to inform participants about leadership principles and techniques, the importance of effective leaders in organizations to maximize efficiency and effectiveness, and the challenges and rewards of leadership in action. LDA is just one of many ways Indiana State Bar members can find leadership opportunities and expand their professional horizons. Here are some more ways to live larger through association membership: writing and speaking for a CLE program; suggesting new ways to help implement our long-range plan; sharing ideas about using our new website and membership database; serving as a “Talk to a Lawyer Today” volunteer on MLK Day, Jan. 19; participating in the Women’s Bench Bar Retreat, Feb. 27-March 1; joining our partnership with Attorney General Zoeller in the March Against Hunger food drive; supporting the launch of new committees (most recent launch: Sexual Orientation & Gender Identity Committee); attending the Solo & Small Firm Conference, June 4-6; volunteering as a mentor in our Mentor Match program; and learning law practice management skills at the Butler Business School for Lawyers. The Indiana State Bar Association has been paving the way for its members to distinguish themselves for more than a century. Members need not read self-help books or fly across the country to attend seminars to learn how to make a difference. Whether you are interested in volunteer service within your practice area or in a non-substantive service role, ISBA’s sections and committees offer countless ways to live out your distinct potential as a force of one.
PRESIDENT’S PERSPECTIVE JEFF R. HAWKINS firstname.lastname@example.org 2014-2015 RES GESTÆ • DECEMBER 2014
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By Kathleen G. Lucas and Stephen L. Lucas
Administrative law reform: ALJs required to be attorneys I. Introduction
his article is intended to examine recent statutory amendments aimed at assuring fair and unbiased adjudication under the Administrative Orders & Procedures Act (AOPA),1 which governs most state agencies, boards and commissions in Indiana.2 Remaining issues that may require legislative resolution are also discussed.
II. History AOPA was the result of two years of study by the Administrative Adjudication Law Recodification & Revision Commission (“the AOPA Commission”), a bipartisan group composed of four senators, four representatives and four citizen members3 that met for 11 official sessions and numerous subcommittee sessions throughout 1985 and 1986.4 The final draft of the Commission’s new procedural law was introduced in the 1986 legislative session and became Public Law 18-1986. While there have been amendments over the years, the basic components and structure of AOPA have remained intact. Recently, legislators have sought additional ways to ensure efficient and unbiased adjudication for all state agencies.
III. AOPA today AOPA seeks to minimize procedural formality but also to accord due process. In one section, AOPA requires that adjudication be conducted “in an informal manner without recourse to the technical, common law rules of evidence applicable to civil actions in the courts.”5 In the next section, AOPA requires an administrative law judge (“ALJ”) to exclude evidence that is irrelevant, immaterial, unduly repetitious or excluded on constitutional or statutory grounds or on “privilege recognized in courts.”
If there is no objection, hearsay may form the basis for an order. If there is a proper objection and “the evidence does not fit within a recognized exception to the hearsay rule,” the order may not be based solely on hearsay.6 Over the past few years, other AOPA provisions have been linked to the trial rules by the legislature. The General Assembly amended AOPA in 2011 to follow Trial Rule 56 with regard to summary judgment.7 A 2012 amendment modernized AOPA by authorizing service through electronic mail. Except for the initial notice of a determination, a petition for review or a complaint (in other words, actions that first trigger an administrative action under AOPA), service may be made by United States mail, personal service, electronic mail or any other method approved by the Indiana Rules of Trial Procedure.8 Compliance with these provisions hardly fits within the notion of informality. In 1993, the Indiana Supreme Court ruled that a decision by an ALJ must be based on de novo review of an agency’s initial determination. The ALJ serves a duty similar to a trial judge sitting without a jury. “This requires the ALJ to independently weigh the evidence at the hearing.” Deference by an ALJ to the agency’s initial determination was reversible error.9 In 2011, the General Assembly codified the ALJ’s responsibility to provide de novo review.10 To emphasize the separation between the agency and the ALJ, P.L. 72-2014 clarified that the agency whose order was under administrative review is entitled to seek judicial review.11 Conduct of appropriate administrative review through a de novo hearing is critical to the parties’ rights of due process. The review is likely the first and last
opportunity for a full consideration of the evidence. The court on judicial review is limited to the agency record and, except for limited circumstances, cannot reweigh the evidence heard by the ALJ.12 Adjudications under AOPA must be conducted according to relevant statutes and case law. Decisions must be based on sound legal principles. On judicial review, deference must be given to the expertise of the ultimate authority for the agency, which may be either the ALJ or an entity that reviews an ALJ’s nonfinal order.13 AOPA cases in many agencies have proceeded in a manner similar to that of a court.14 In other agencies, ALJs are not attorneys. With the wide spectrum of issues governed by AOPA and the economic importance of agency decisions regarding licensure15 and enforcement actions,16 the stakes are often very high. The 2014 General Assembly recognized the need for ALJs to be attorneys in order to adjudicate AOPA cases. House Enrolled Act 1121 (P.L. Kathleen G. Lucas 72-2014), authored by Bose McKinney & Evans LLP Rep. Eric A. Koch and Indianapolis, Ind. supported by the Indiana email@example.com State Bar Association, required ALJs to be attorneys licensed to practice in Indiana. To the extent practicable, the bill required that ALJs have expertise in the area of law being adjudicated. The bill also allowed agencies to share ALJs in order to avoid bias, prejudice, interest in the outStephen L. Lucas come or another conflict Chief Administrative of interest, to accommo- Law Judge (ret.) date a request for change Indiana Natural (continued on page 9)
Resources Commission Indianapolis, Ind. firstname.lastname@example.org
RES GESTÆ • DECEMBER 2014
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ADMINISTRATIVE LAW REFORM continued from page 7
By requiring ALJs to be attorneys admitted to practice in Indiana, the 2014 amendments foster expertise and professionalism on administrative review. The amendments assure that ALJs will be subject to current ethical standards of the Indiana Supreme Court and new ethical standards of the Inspector General. The amendments help support a structure that can provide due process to the parties.
Although opinions differed for where ALJs should be housed, attorneys who were surveyed were consistent in their desire for ALJs to be independent and have subject matter expertise. One Indiana State Bar Association survey revealed that 92 percent of attorneys agreed or strongly agreed that ALJs should have continuing training and expertise in the subject areas over which they preside. A similar number believed they should be independent from agency staff and that relevant provisions of the Code of Judicial Conduct should apply to ALJs.
In moving forward with discussions regarding the components of a fair and balanced adjudicatory process that ensures due process, the following concepts may be helpful: • An ALJ should not be subject to sanction or dismissal for a decision that is contrary to a position (continued on page 10)
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IV. Future considerations One issue that has received a great deal of attention, both at the time AOPA was being drafted and again in recent years, is whether ALJs for various agencies should be placed into a “pool” for the sake of judicial economy. In 2011, an effort was begun to study the issue through summer sessions of the Commission on Courts. Surveys were distributed and analyzed by both the executive and legislative branches of govern-
The question of whether to combine ALJs for purposes of economy of scale is a legitimate one. ALJs and parties to adjudications would benefit from more consistent access to court reporters, other professional support and equipment needs. Agency satisfaction with ALJ decisions should not be a factor in how those needs are met. Striking the balance between independence and budgetary issues will require input from reasonable individuals on all sides of the substantive issue.