Page 1

December 2014

Vol. 58, No. 5



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The Journal of the Indiana State Bar Association

RES GESTÆ December 2014





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











Donald R. Lundberg, Indianapolis

Curtis T. Jones and John Z. Huang, Indianapolis

Jeremy I. Eglen, Avon

Jack Kenney, Indianapolis

Bill Brooks, Indianapolis


22 JUDGE HOLDER EDITOR Susan J. Ferrer sferrer@inbar.org

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 vmorretino@inbar.org



ADVERTISING Chauncey L. Lipscomb magazine-advertising@inbar.org



WRITTEN PUBLICATIONS COMMITTEE CO-CHAIRS Joseph M. Pellicciotti William A. Ramsey wpc@inbar.org



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.



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

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.



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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 klucas@boselaw.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. skadad2098@gmail.com



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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.

The 2014 legislature also enhanced another important component of AOPA, the requirement for impartiality and the prohibition on ex parte communications with the ALJ. So strongly did the original drafters of AOPA feel about unlawful ex parte communications that they dedicated no fewer than seven code sections to the issue and made it a Class A misdemeanor for either the ALJ or a party to violate the prohibitions.18 P.L. 72-2014 clarified that these prohibitions on unlawful ex parte communications apply to an individual, board or commission serving as the ultimate authority.19 The new legislation also required the Inspector General to adopt rules to implement a statewide Code of Judicial Conduct for ALJs.20

ment as well as private associations. In the end, legislators determined there were so many different agencies utilizing ALJs under widely varying structures that more study was needed. This determination was similar to that of the AOPA Commission in 1986.


of ALJ, to ease scheduling difficulties or “for another good cause.”17

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ADMINISTRATIVE LAW REFORM continued from page 9 taken by the agency in the proceeding. • A pilot “pool” of ALJs could evaluate the merits and possible structure for a broader pool. With the need for expertise set forth in P.L. 72-2014, ALJ assignments should be made based on knowledge and experience in the adjudicated subject matter. Currently, ALJs for the Office of Environmental Adjudication, the Natural Resources Commission Division of Hearings (which also serves the Geologist Licensure Board and the Soil Scientist Registration Board) and the State Employees’ Appeals Commission share a suite in the Indiana Government Center North. Each group has different legal and administrative structures, resulting in challenges for funding court reporters, subject-appropriate continuing legal education, equipment and budgets. A pilot project

to include these and potentially other agencies could focus upon a cost-effective mechanism for their administration that would include budgetary and personnel issues. After the completion of an established period, the agencies could be directed to provide a joint report to the General Assembly. The report would consider these matters and strategies directed to meeting the core values of AOPA. • The General Assembly may then consider the wisdom of convening a study commission modeled after the 1985-86 AOPA Commission. The new commission would consider the pilot project report and any other matters directed by the legislature. The commission would make recommendations to the General Assembly for possible additional legislation.

1. Ind. Code §§ 4-21.5-1-1 to 4-21.5-7-9. 2. See Ind. Code §4-21.5-2, which lists exemptions from AOPA. 3. The Commission members were Representatives Richard Regnier, Mitchell V. Harper, Robert F. Hellmann and W. Laverne Tincher; Senators John B. Augsburger, William H. Vobach, Lindel O. Hume and James Jontz; and lay members David Allen, Susan Davis Smith, Brian G. Tabler and Tony Zaleski. Final Report of the Administrative Law Recodification and Revision Commission (1986) (“Final Report”). 4. Minutes of the Commission (“Minutes”) are available from the Legislative Services Agency or the author. 5. Ind. Code §4-21.5-3-25. 6. Ind. Code §4-21.5-3-26. 7. Ind. Code §4-21.5-3-23. 8. Ind. Code §4-21.5-3-1(b). 9. Indiana DNR v. United Refuse Co., 615 N.E.2d 100, 104 (Ind. 1993). 10. Ind. Code §4-21.5-3-14(d). 11. Ind. Code §4-21.5-5-3(a)(2). 12. Ind. Code §4-21.5-5. Indiana DNR v. United Refuse Co. at 103. The distinction between administrative review and judicial review is underlined by Indiana Dept. Enviro. v. Raybestos Prod., 903 N.E.2d 471 (Ind. 2009). 13. Illustrative are Natural Resources Defense Council v. Poet Biorefining, No. 49S02-1405MI-313 (Ind. 2014) and Kranz v. Meyers Subdivision Property Owners, 969 N.E.2d 1068, 1080 (Ind. Ct. App. 2012). 14. Kranz v. Meyers Subdivision at 1068. 15. Ind. Code §4-21.5-3-4 and 5. 16. Ind. Code §4-21.5-3-6 and 8. 17. Ind. Code §4-21.5-3-8.5. 18. See Ind. Code §§ 4-21.5-3-9, 10, 11, 12, 13, 36 and 37. 19. Ind. Code §4-21.5-3-9(g). “If there is a reasonable likelihood that the ultimate authority will be called upon to: (1) review; or (2) issue a final order with respect to: a matter pending or adjudication by an administrative law judge, [the principles in Ind. Code §4-21.5-3-11] apply to a member of the ultimate authority and to a person communicating with a member of the ultimate authority.” 20. Ind. Code §4-2-7-3(17). The bill requires the Inspector General to review existing rules of the Office of Environmental Adjudication and the Natural Resources Commission establishing a code of conduct for those agencies. (312 Ind. Admin. Code §3-1-2.5 and 315 Ind. Admin. Code §1-1-2, respectively).

Kathleen G. Lucas is a partner at Bose McKinney & Evans LLP. Husband Stephen L. Lucas was chief administrative law judge for the Natural Resources Commission until his retirement on Sept. 1.



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“Talk to a Lawyer Today” Pro Bono • Jan. 19, 2015 Sign up today! “Life’s most persistent and urgent question is, ‘What are you doing for others?’” – Dr. Martin Luther King Jr. This annual ISBA and Indiana Pro Bono Commission program is designed as a legal information clinic, to be held on the MLK holiday Monday, Jan. 19, 2015. Participating lawyers are asked to donate 2 hours to speak with the general public on the phone or in person about legal issues. There are several locations throughout the state. All volunteers will be contacted by the site coordinators for their locations to confirm the times and places to volunteer. Please mail or fax this form to the appropriate site coordinator listed below.

Name: ___________________________________________________________________________________________ Address: __________________________________________________________________________________________ Phone: ____________________________________________________________________________________________ Attorney I.D. number: ________________________________________________________________________________ Email address: ______________________________________________________________________________________ I wish to volunteer 2 hours of my time for “Talk to a Lawyer Today” on Monday, Jan. 19, in the district checked below.  District A Jasper, Lake, Newton & Porter counties Judith H. Stanton, Executive Director NWI Volunteer Lawyers, Inc. 651 E. Third St., P.O. Box 427 Hobart, IN 46342 219-942-3404 • 219-945-0995 (fax) probono@hobartlaw.net www.nwivolunteerlawyers.org

 District B Elkhart, Marshall, Kosciusko, St. Joseph, LaPorte & Starke counties

 District E Cass, Fulton, Grant, Howard, Miami, Pulaski, Tipton & Wabash counties Luisa Michelle White, Plan Administrator Wabash Valley Volunteer Attorneys, Inc. Indiana Legal Services – Lafayette 8 N. 3rd St., Suite 102 Lafayette, IN 47901 765-423-5327 luisa.white@ilsi.net

 District F Blackford, Delaware, Hamilton, Hancock, Henry, Jay, Madison & Randolph counties

Mark Torma, Plan Administrator Volunteer Lawyer Network, Inc. 117-1/2 N. Main St. South Bend, IN 46601 574-277-0075 • 574-277-2055 (fax) mjtorma@yahoo.com volunteerinc@att.net

Christianne Brock, Pro Bono Coordinator District 6 Access to Justice, Inc. P.O. Box 324 New Castle, IN 47362 765-521-6979 • 800-910-4407 district6access@hotmail.com

 District C

 District G

Adams, Allen, Dekalb, Huntington, LaGrange, Noble, Steuben, Wells & Whitley counties

Marion County

Ruth de Wit, Executive Director Volunteer Lawyer Program of NE Indiana, Inc. 111 W. Wayne St. Ft. Wayne, IN 46802 260-407-0917 ruth@vlpnei.org

Dana Luetzelschwab, Plan Administrator Heartland Pro Bono Council 151 N. Delaware St., Suite 1800 Indianapolis, IN 46204 317-400-7435 317-631-9410, x2227 dana@ltz-law.com

 District D

 District H

Benton, Boone, Carroll, Clinton, Fountain, Montgomery, Parke, Tippecanoe, Vermillion, Warren & White counties Timothy E. Peterson, Plan Administrator Indiana Legal Services-Lafayette 639 Columbia St., P.O. Box 1455 Lafayette, IN 47902-1455 765-423-5327 • 800-382-7581 765-423-2252 (fax) tim.peterson@ilsi.net

Clay, Greene, Hendricks, Lawrence, Monroe, Owen & Putnam counties Diane Walker, Plan Administrator District 10 Pro Bono Project, Inc. P.O. Box 8382 Bloomington, IN 47407-8382 812-339-3610 • 812-339-3624 (fax) dist10probono@gmail.com

 District I Bartholomew, Brown, Decatur, Jackson, Jennings, Johnson, Rush & Shelby counties Karla Davis-Green, Executive Director Legal Aid-District Eleven, Inc. 1531 13th Street, Suite G330 Columbus, IN 47201 877-378-0358 (intake line) 812-314-2721 (plan administrator direct line) 812-372-3948 (fax) kgreen@legalaiddistrict11.org

 District J Dearborn, Fayette, Franklin, Jefferson, Ohio, Ripley, Switzerland, Union & Wayne counties Frank Cardis, Plan Administrator Legal Volunteers of Southeast Indiana, Inc. 318 N. Walnut Street Lawrenceburg, IN 47025 812-537-0123 • 877-237-0123 812-537-7090 (fax) dist12probono@legalvolunteers.com

 District K Daviess, Dubois, Gibson, Knox, Martin, Perry, Pike, Posey, Spencer, Sullivan, Vanderburgh, Vigo & Warrick counties Beverly Corn Plan Administrator Volunteer Lawyer Program of Southwestern Indiana 915 Main St., Suite 208 Evansville, IN 47708 812-402-6303 • 812-402-6304 (fax) vlpcorn@sigecom.net

 District L Clark, Crawford, Floyd, Harrison, Orange, Scott & Washington counties Andrew Adams, Plan Administrator Southern Indiana Pro Bono Referrals, Inc. 705 E. Court Ave. Jeffersonville, IN 47130 probono14@sbcglobal.net

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By Bill Brooks

Magna Carta: ‘a foundation to become better citizens’




ing John wasn’t a nice fellow, one clue being that in the 800 years since his rule – since he was forced by English noblemen to sign the Magna Carta – not one English monarch has taken the name “John.” With the typical understated wit of the British, Garrison Sgt. Major Billy Mott – the man in charge of the Queen’s ceremonial troops – called King John a naughty boy. Mott shared some British history during the opening session of the State Bar’s fall meeting in October, a session dedicated to the Magna Carta. GSM Mott was in Indiana via mutual friends to trumpet the ABA’s Magna Carta Facsimile Traveling Exhibit, which was brought here by the ISBA as a primary donor for a two-week display at the Indiana Statehouse. Standing in the Indiana Supreme Courtroom, just feet from the exhibit, Mott talked about “the great courage and integrity of those barons” and of the Magna Carta’s principles, “a foundation to become better citizens.” Indianapolis attorney Jon B. Laramore dove deeper into the document’s history, calling John “a disaster as king, cruel and dishonest.” What was revolutionary about “the Great Charter,” Laramore said, was that the principles of freedom on its pages were, for the first time, written down. What was more important to American history, though, was the effect it had on Founding Fathers James Madison, Thomas Jefferson and John Adams. Laramore pointed out that, although many of the charter’s 63 paragraphs are now antiquated or obsolete, five main ideas have remained eight centuries later – freedom of religion, Media consultant freedom from cruel and freelance writer Indianapolis, Ind. and unusual punishment, freedom from governmental seizure RES GESTÆ • DECEMBER 2014

Jon B. Laramore & Garrison Sergeant Major Billy Mott of property, guarantees of due process, and the right to a speedy trial. The Magna Carta, Laramore said, “was the beginning of the idea of separation of church and state. “The theme of the State Bar’s fall meeting is the Rule of Law,” Laramore continued, “and the Magna Carta is its origin.” Bringing the ideas of the Magna Carta and the Rule of Law into the current day, the session included a panel discussion involving Judge John D. Tinder, U.S. Court of Appeals for the Seventh Circuit; Wm. T. (Bill) Robinson III of Florence, Ky., past president of the American Bar Association; and Carol M. Seaman, chief ethics & compliance officer of the Cook Group in Bloomington. Seaman said the Rule of Law is vital in a global economy because companies need to know they will be secure, that contracts will be observed, “and that people who work with us are free.” She said Cook Group does business in nations where bribery and corruption are rampant, “and it’s the

people who are poor who bear the brunt.” Robinson said the Rule of Law is threatened by “chronic underfunding” of courts, noting that when he became ABA president the first stop he made was to the U.S. Chamber of Commerce, an organization often at odds with the ABA. But Robinson said he found an ally. “It really was not a challenge to get business’s support,” he said. Chamber executives, he said, understood why so many companies around the world invested in the United States – because of “how much the Rule of Law is appreciated.” Tinder illustrated the history of the Rule of Law with three relatively recent developments: school desegregation, the U.S. v Nixon decision over the release of the Watergate tapes, and Bush v. Gore in 2000. Watergate and the subsequent developments occurred, he said, “without a shot being fired, without tanks rolling down Pennsylvania Avenue. And America accepted that.”

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Photos by Vincent Morretino

The ABA’s Magna Carta Facsimile Traveling Exhibit at the Indiana Statehouse Bush v. Gore, he added, will be debated for years to come, “but no one questioned the authority of the Bush administration. We accept the Rule of Law when the court speaks,” he said. “We may not agree, but we accept it, and then we move on.” Tinder said the Rule of Law is so well defined here that America has become the world’s model, even though we continue to struggle with issues such as proportionality, one of the principles of the Magna Carta. “We’ve gone overboard in some respects,” he said, citing federal sentencing guidelines. Robinson challenged attorneys to proactively advocate for the Rule of Law. “Being an officer of the court is an achievement, one of the most sacred responsibilities. Speak up and speak out about the Rule of Law.” When somebody asks how the system works, take the trouble to explain, he continued. “We live in a world where people think Judge Judy is a real judge,” he said, adding that too many people base

Judge John D. Tinder, Carol M. Seaman & Wm. T. (Bill) Robinson III their opinions of the legal system on the “quick quips” of entertainers such as Jon Stewart and Stephen Colbert. Added Tinder, the Rule of Law is aspirational. It is vital, he said, “that the courts act with consistency and transparency – and we have to guarantee accessibility.”

Robinson, from our neighbor state to the south, offered words of encouragement about the Rule of Law as it exists in Indiana: “Over 75 percent of Indiana’s lawyers are voluntary members of the Indiana State Bar Association. That’s really special, and says a lot about lawyers.” RES GESTÆ • DECEMBER 2014


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By Donald R. Lundberg

Then lawyers investigate



ast month I discussed Purdue University v. Wartell, 5 N.E.3d 797 (Ind. Ct. App. 2014), trans. denied, 16 N.E.3d 424. This is an important case because it shines a light on how the attorney-client privilege and attorney work-product protection can be jeopardized if lawyerinvestigators do not establish a clear understanding with their clients about the nature of their investigative work. Is it limited to conducting an investigation, or is it to provide legal advice to the client based upon facts determined by the lawyer during the course of investigation? The privilege nature of the lawyer’s work and communications with the client can hinge on the answer.

Lawyer versus attorney A word about nomenclature: “Lawyer” and “attorney” are often treated as interchangeable terms. I don’t accept that. A lawyer is someone trained in the law and licensed to practice law. An attorney is a shortened form of attorney-at-law, meaning someone (a lawyer) who acts in a special agency relationship with another person to provide legal representation. In this regard, lawyers are attorneys when they are operating within an attorney-client relationship. Attorneys are always lawyers, but lawyers do not always act as attorneys. As I pointed out in last month’s column, a lawyer who only investigates does not act in the capacity of an attorney providing legal representation to a client. Anyone can conduct an investigation, Donald R. Lundberg and merely because Barnes & Thornburg LLP a lawyer conducts Indianapolis, Ind. donald.lundberg@BTLaw.com an investigation the 14


lawyer’s work does not become cloaked with the special privileges that attach to the work of lawyers when they are practicing law. Wartell illustrates this because it involved a lawyer who, the court concluded, acted solely as an investigator and whose communications and work product did not enjoy the protections of the attorney-client evidentiary privilege or the work product doctrine.

doctrine do not exist. So what are the lessons to be gleaned from Wartell and Sandra?

Clarity good; ambiguity bad

I compared Wartell to Sandra T.E. v. South Berwyn School District 100, 600 F.3d 612 (7th Cir. 2010). In a way, the lawyer in Wartell and the lawyers in Sandra acted in very similar ways, with this important difference: the lawyers in Sandra had a written engagement letter with their client that clearly spelled out that the purpose of their investigation was to establish facts on which those lawyers would then render legal advice and counsel to the client. The court in Wartell did not find that such a clear understanding was present. This difference led the court to hold that the investigating lawyer’s work was not protected by either the attorney-client evidentiary privilege or work product doctrine, whereas the court in Sandra held that the lawyers’ work was protected.

First, when outside counsel is hired by a client to conduct an investigation, the nature of that engagement needs to be clearly established and documented. Ambiguity about the nature of the relationship must be avoided. If the lawyer’s fact gathering will be incident to rendering legal advice to the client, there should be terms of engagement, as there were in Sandra, clearly setting out an understanding that the lawyer will be acting as the client’s attorney, conducting a factual investigation in order to provide legal advice to the client on the basis of the facts established in the investigation. If the lawyer is to act solely as an investigator, the contract of employment should specifically disclaim the existence of an attorneyclient relationship so that the client and the lawyer do not fall into the trap of thinking their communications and the lawyer’s work will be protected. After the investigating lawyer’s work is done, it will probably be too late to retrofit an attorney-client relationship that was not defined as such from the outset.

Lessons from Wartell

Get it in writing

A court holding that attorneyclient communications and attorney work product are not protected is a big deal if attorney and client think their relationship will be protected, but it turns out not to be so. Attorneys and their clients should be able to have confidence that their communications will be inviolate and that attorney work product created in anticipation of litigation will also be protected from intrusion by adversaries. If they do not have that confidence, it is almost the same as if the attorney-client privilege and the work product

Second, the terms of engagement must be in writing. The written engagement agreement in Sandra was the defining circumstance that cemented the lawyers’ relationship with the school district as that of attorney and client because it expressly stated that the lawyers would render legal advice to the school district based on its factual investigation. The court of appeals reversed the district court because it did not properly defer to the nature of the relationship as set forth in the engagement agreement. Now it is true that Indiana Rule of

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Professional Conduct 1.5(b) merely states a preference that engagement agreements be in writing (except for contingency fee agreements, which must be in writing), but no lawyer should allow the uncertainty of an oral engagement agreement be the lynchpin for how the nature of the relationship with a client is defined.

Be consistent Third, the nature of the relationship as defined at its outset must frame how the lawyer goes about her work thereafter. In other words, the lawyer must act consistently with the lawyer’s role – whether as attorney or investigator – as established by the terms of the engagement agreement. If the lawyer is to function as an independent investigator, she should act like an independent investigator

and not an attorney representing a client. She should steer clear of mission creep where she switches roles without consulting with the client or assessing the risk that the lawyer’s earlier role as a pure investigator will destroy the privileged nature of later client communications or the confidential nature of the lawyer’s work product. The investigating lawyer must steer clear of taking actions or making representations that are in conflict with her true role. The investigating lawyer will be free to announce her role as an independent investigator only so long as that is true. The investigating lawyer should not (and normally would not) feign partisanship, since doing so would detract from the investigating lawyer’s responsibility to follow the facts wherever they lead.

On the other hand, the attorney who conducts an investigation incident to an attorney-client relationship must avoid making representations that would induce nonclients to think the attorney is acting in some other capacity. This notion of transparency is captured in two Rules of Professional Conduct.

Dealing with unrepresented persons Rule 4.3 states: “In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When a lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall (continued on page 16)



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ETHICS CURBSTONE continued from page 15 make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.” This rule has three elements. First, an attorney representing a client can never state or imply disinterest. The attorney is not required to affirmatively state that she is acting as the representative of a client unless there is confusion. Second, if the unrepresented person is confused about the attorney’s role, the attorney must clarify the situation to disabuse the unrepresented person of that misunderstanding. It is never prudent to give legal advice to unrepresented persons because it might create a basis for that person to claim that there

is an attorney-client relationship. Third, there is an affirmative duty to abstain from giving legal advice if the unrepresented person’s interests are in conflict with the interests of the attorney’s client. The attorney may (but is not required to) inform the unrepresented person that he should consult with a lawyer of his own choosing. Of course, it is not rendering legal advice to an unrepresented person if an attorney sets forth his own client’s position on what it believes the applicable law to be. But when dealing with an unrepresented person, an attorney should take special care to make sure such statements are not misinterpreted as rendering legal advice to the unrepresented person. The need for lawyers to be clear with unrepresented persons about their roles is illustrated by Matter of Greene, 6 N.E.2d 947 (Ind. 2014), a recently decided lawyer discipline case, in which

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the Supreme Court found that the respondent violated Rule 4.3, among other rules, because a letter on the respondent’s letterhead, sent out by a hospital to discharged patients who had been in accidents, “obscured the relationship” between the hospital and the lawyer. In fact, according to the Court’s opinion, the letter implied that the respondent was offering a service to the patient (to help get the patient’s insurance to pay the hospital bill), when his real client was the hospital.

Dealing with constituents of a client organization If the attorney represents an organization as a client and deals with employees or other constituents of the organization, similar transparency considerations come in to play. In Wartell one of the court’s considerations in deciding that the investigator was not acting as the university’s attorney was that he did not inform the university employee that he was acting as the university’s attorney. In that regard, the court referred to Rule of Professional Conduct 1.13, dealing with the special responsibilities of lawyers who represent organizational clients. Specifically, the court quoted Rule 1.13(f), which states: “In dealing with an organization’s directors, officers, employees, members, shareholders or other


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Indiana Environmental Statutes available constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.” Because corporate constituents might mistakenly view the organization’s lawyer as being their lawyer, too, they should be reminded that the organization’s lawyer is not the constituent’s lawyer. That prudent conduct becomes mandatory when the constituent’s interests are potentially adverse to the organization’s interests. Hence, the necessity of using what we have come to call “Upjohn warnings,” after the Supreme Court’s decision in Upjohn Co. v. United States, 449 U.S. 383 (1981).

Conclusion When lawyers are hired to conduct investigations, they should always stop at the outset, clarify the nature of the engagement with their client, and document the engagement consistent with the purpose of the engagement. In doing so, lawyers should counsel the client that having the lawyer act solely as an investigator will mean that communications with the client will not be treated as privilege and the lawyer’s work product will not be protected by the work product doctrine. Whether hired as a pure investigator or as an attorney who will give the client legal advice on the basis of the facts discovered during the investigation, the lawyer must act in conformity with the lawyer’s designated role and not mislead others into thinking the lawyer is acting in some other capacity.

his is the 2014 edition of the annual publication, Indiana Environmental Statutes, that Marcia Oddi of the Indiana Law Blog edits and publishes each year. The ISBA Environmental Law Section sponsors the publication. It is a convenient desktop resource, including Title 13 (Environment) of the Indiana Code, plus the Administrative Orders & Procedures Act (AOPA) and numerous related statutes. This year the softbound volume is 566 pages and costs $30 plus shipping (note that shipping is less if you pool orders). Order online: tinyurl.com/IN-environmental-statutes-2014






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Achievements recognized at the 118th ISBA Annual Meeting

Presidential Citations

Women in the Law Recognition Award Sponsored by the Women in the Law Committee Hon. Patricia A. Riley, Indianapolis

Hon. Viola J. Taliaferro Award

Kathleen G. Lucas, Indianapolis

Sponsored by the Civil Rights of Children Committee

Bryan E. Rogers, Schererville

Leslie S. Dunn, Indianapolis

Joel M. Schumm, Indianapolis Beau F. Zoeller, Indianapolis

Civility Awards Sponsored by the Litigation Section Hon. Mary Margaret Lloyd, Evansville Stephen E. Arthur, Indianapolis Gregory J. Sarkisian, Portage (DTCI nominee) Kimberly E. Howard, Indianapolis (ITLA nominee)

David Hamacher Public Service Award Sponsored by the Appellate Practice Section Joel M. Schumm, Indianapolis

Rabb Emison Awards Sponsored by the Diversity Committee Individual recipient – Michael E. Tolbert, Merrillville Organization recipient – Cummins Inc.

GP Hall of Fame Awards Sponsored by the General Practice, Solo & Small Firm Section William B. Bryan, Angola John R. Carr III, Indianapolis

Outstanding Judge Award Sponsored by the Young Lawyers Section Hon. Michael D. Keele, Indianapolis

Gale Phelps Award Sponsored by the Family & Juvenile Law Section Hon. William J. Hughes, Noblesville

Affiliate Member Award Sponsored by the Affiliate Membership Committee Debra L. Elsbury, Indianapolis

Community Service Award Sponsored by the Service Committee Trevor J. Belden, Indianapolis

Erik Chickedantz Wellness Award Sponsored by the Wellness Committee

Outstanding Young Lawyer Award

I.U. Robert H. McKinney School of Law, Indianapolis

Sponsored by the Young Lawyers Section

Henry Hurst Judicial Assistance Award

Amanda C. Couture, Indianapolis

Liberty Bell Award Sponsored by the Young Lawyers Section



t the fall meeting’s Awards Luncheon in Indianapolis, the Indiana State Bar Association recognized individuals for their tireless efforts and outstanding achievements. To find out about each award and its recipient, visit http://tinyurl.com/ award-recipients-photos-plus.

Sponsored by the Federal Judiciary Committee Denise Woodside, U.S. District Court for the Northern District of Indiana, Hammond Division

Col. Wayne L. Hill (ret.), New Palestine

Trailblazer/Abriendo Caminos Award Sponsored by the Latino Affairs Committee Kathrine D. Jack, Greenfield

Donald R. Lundberg Writing Award Sponsored by the Young Lawyers Section Recipient ($200): “Suppliers Beware: Are You Exclusive With Your Buyer?” by Ryan M. Schulz, Evansville (YLS Network, March 2014)

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By Maggie L. Smith

Sealing/excluding documents in Indiana courts



he procedures for sealing/excluding documents in Indiana courts underwent a significant overhaul in 2014, and the extensive amendments to Administrative Rule 9(G) are effective Jan. 1, 2015. A summary of these amendments follows, and counsel should be aware that, “[t]he failure to comply with any provision of 9(G) can subject counsel or a party to sanctions.”

Litigants and courts must start from the presumption that everything filed in an Indiana court must be available for the public to view and that restricting public access can occur only in very limited circumstances The A.R. 9(G) amendments make clear that all Court Records are presumed to be open to the public and that these records should be excluded from public access only in a very limited number of circumstances. These circumstances can be considered in terms of two different categories of documents at issue in A.R. 9(G): • cases/information that “must” be excluded because a statute, Supreme Court rule or common law mandates confidentiality; and • cases/information that parties “want” excluded, but for which there is no existing statute or rule declaring it to be confidential. The first category is the easier category. If a federal or state statute, court rule or common law declares the information is confidential, the parties have an obligation to exclude this information from public Maggie L. Smith access and do so by Frost Brown Todd (1) filing the page Indianapolis, Ind. containing the confimlsmith@fbtlaw.com



dential information on green paper; and (2) tendering a form “notice” to the Court/Clerk/Court Reporter identifying the grounds on which exclusion is based. The second category of exclusion is much harder to satisfy. Examples of information that litigants often want excluded but have no right to do so include salary or compensation terms, covenantnot-to-compete details, settlement agreements (even if the agreement is “confidential” as between the parties), business or marketing strategies, divorce cases with salacious allegations, counseling records, child custody evaluations, etc. The amendments make clear that parties cannot “agree” to exclude information from public access; nor is a Trial Rule 26 Protective Order a valid order upon which to exclude public access. The only permissible way to exclude this type of information is to comply with every requirement in either A.R. 9(G)(4) or I.C. §5-14-3-5.5 (Access to Public Records Act). PRACTICE NOTE: A.R. 9(G) allows exclusion to protect private or public interests, but the Access to Public Records Act allows sealing of records only when doing so protects public interests. A.R. 9(G)(4) is limited to “extraordinary circumstances,” and compliance with A.R. 9(G)(4) requires satisfying each of the following four steps; if each of the four steps is not followed, the information cannot be excluded from public access: (1) a verified written request demonstrating certain required conditions; (2) notice to the parties; (3) public hearing with advance public notice; and (4) trial court enters a written order with specific findings that “(i) States the reasons for granting the request; (ii) Finds the requestor has demon-

strated by clear and convincing evidence that any one or more of the requirements of 9(G)(4)(a) have been satisfied; (iii) Balances the Public Access interests served by this rule and the grounds demonstrated by the requestor; and (iv) Uses the least restrictive means and duration when prohibiting access.” Sealing records under the Access to Public Records Act requires meeting a three-part test: (1) public notice; (2) public hearing; and (3) written findings of fact/conclusions of law “showing that the remedial benefits to be gained by effectuating the public policy of the state declared in section 1 of this chapter are outweighed by proof by a preponderance of the evidence by the person seeking the sealing of the record that: (1) a public interest will be secured by sealing the record; (2) dissemination of the information contained in the record will create a serious and imminent danger to that public interest; (3) any prejudicial effect created by dissemination of the information cannot be avoided by any reasonable method other than sealing the record; (4) there is a substantial probability that sealing the record will be effective in protecting the public interest against the perceived danger; and (5) it is reasonably necessary for the record to remain sealed for a period of time.”

Procedure for excluding information from public access once determination has been made that information is, in fact, eligible for exclusion Many of the amendments to A.R. 9(G) address the procedure for excluding information. To start, separate written notice is now required to alert the Clerk, Court or Court Reporter that the Court Record should remain excluded

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and to provide the Court with the specific grounds justifying the exclusion. The type of notice required will differ depending on the type of proceeding at issue. When filing the excluded document, litigants are required to file a “Public Access Version” and a “Non-Public Access Version.” In the Public Access version, everything is filed on white paper with the confidential information redacted (if it is only part of a page) or omitted (if it is a whole page). The separately filed Non-Public Access Version contains the confidential Court Record on green paper. If, however, the information that was omitted or redacted “is not necessary to the disposition of the case, the excluded Court Record need not be filed or tendered in any form and only the Public Access version is required.” For example, if the Public Access version is redacted to remove a social security/financial institution number and those numbers are irrelevant to the issues in the litigation, then the numbers need not be separately provided on green paper.

Other amendments The person or entity actually “affected by the release of the Court Record” can waive the right to keep it excluded, but the conduct of a party who is not affected by the release does not operate as a waiver. Amended A.R. 9 also changes existing policy and makes clear that if the legislature or a court has declared a Court Record to be confidential and the party or person affected by the release of the Court Record has not waived that confidentiality, then a party’s initial failure to properly exclude the Court Record will never forfeit the right to exclude a Court Record. Instead, the party who failed to exclude the Court Record in the first place must

immediately “comply with the requirements of 9(G) to ensure proper exclusion.” Conversely, if a court determines that a party has improperly filed Court Records on green paper without first satisfying the requirements of A.R. 9(G), the court must provide notice of this determination to all parties and the improperly excluded records shall then be made available for Public Access seven days after such notice was sent unless, within that seven-day period, the party or person affected by the release of the records begins the process of properly excluding the information pursuant to A.R. 9(G)(4). Maggie Smith has educated the bench and bar on the topic of Administrative Rule 9(G) for many years. She is halfway through her 10-year term on the Supreme Court Committee on Rules of Practice & Procedure, which is the committee vested

with the responsibility to study the Indiana Rules of Procedure (Trial, Criminal, Evidence, Administrative, Admission & Discipline, Jury, Appellate, Professional Conduct, Judicial Conduct, etc.) and evaluate and provide recommendations and proposed amendments to these rules. She is a member with Frost Brown Todd and practices in the area of appellate litigation.

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By Suzanne S. Bellamy

Judge Cale James Holder: the ‘Golden Eagle’


orn in Lawrenceville, Ill., on April 5, 1912, Cale James Holder lived most of his life in Indianapolis. A graduate of Shortridge High School, he earned a Bachelor of Laws degree from the Benjamin Harrison Law School in 1934, attending night school while working during the days in a grocery store. That same year, he was admitted to the practice of law in Indiana and began his practice. In 1938, Judge Holder completed one year of post-graduate work and earned a Juris Doctor degree from the same institution. He continued his education in 1939 by studying administrative law at Indiana University in Indianapolis. From 1940 to 1942, he served as a deputy prosecutor in the Marion County Criminal Court.

Judge Holder’s father was a diehard southern Indiana Democrat, prompting Judge Holder later to explain how it was that he himself became a Republican. Not believing that “things could be that one-sided,” in 1932 he “turned to the Republican Party to find out” for himself about the other side, a decision he said he never regretted. His political philosophy, as later events would confirm, guided him to the federal bench: “There is only one way to play politics – never quit your team, win, lose or draw.”1 April 16, 1942 – the same day his active service commenced with the United States Navy – also marked the date of Judge Holder’s marriage to Martha Mae Stanton of Southport, Ind. Their daughter and only child, Martha Sue, was born in San Francisco in 1944, just 10 days Suzanne S. Bellamy before he was shipped Indianapolis, Ind. overseas. Beginning ssbellamy@aol.com as an ensign, Judge



Holder’s rank in the Navy rose to lieutenant by the time of his honorable discharge in 1946. After returning home, he renewed his conservative Republican ties that he had formed before entering the service, eventually becoming a GOP ward chairman in Indianapolis. In 1946, he joined with other local young Republicans in Indianapolis to found and become the first president of the Marion County Republican Veterans of World War II, a group that served as a springboard for his subsequent wider involvement in Indiana Republican politics. In February of 1946, Judge Holder was named assistant Republican county chairman in charge of veterans affairs. Over the next few years, his political résumé expanded to include a variety of local GOP leadership positions. In June 1949, he became the youngest GOP state chairman in Indiana in more than half a century. The Indianapolis Star credited him with bringing a “new look” to the Republican party, describing him as a person who did not resemble the stereotypical politician, by eschewing cigars, loud oratory and smoke-filled rooms and preferring “party teamwork to ‘bossism.’” His clean-cut appearance and reputation for delivering on his promises helped to solidify Judge Holder’s political support.2 As a result, he was reelected as GOP state chairman in both 1950 and 1952, and was known during that time as one of the “big three” of Hoosier Republicanism, joining U.S. Senators William Ezra Jenner and Homer E. Capehart in a powerful trifecta. The year 1952 was a turbulent one in state and national Republican politics. The upcoming presidential election caused a serious rift between supporters of Gen. Dwight D. Eisenhower and those

supporting Ohio Sen. Robert A. Taft. Judge Holder and both of Indiana’s two U.S. senators lined up behind the conservative Taft. Local opposition to Taft was spearheaded in part by the publisher of The Indianapolis Star, Eugene C. Pulliam. The battle between the Taft and Eisenhower factions intensified at the 1952 Republican National Convention. When Gen. Eisenhower won the nomination on the first ballot, Judge Holder, as chair of the Indiana delegation, and Sen. Jenner stood their ground, refusing to allow the Indiana delegates to join the convention bandwagon.3 After the Republican convention, despite his initial opposition, Judge Holder supported his party’s choice and personally headed up Eisenhower’s campaign in Indiana. The result was an overwhelming Indiana victory for Ike. In November 1952, Judge Holder submitted his resignation as Republican state chairman, accusing certain factions of the Hoosier Republican Party of trying to make of him a “whipping boy.”4 Within a few months, however, Judge Holder was appointed to serve as one of 25 deputy state attorneys general. He held this post during most of 1953. The enmity between Judge Holder and Gene Pulliam surfaced again in 1954 when both Indiana senators, Jenner and Capehart, recommended Holder for appointment to one of two new federal judgeships authorized by Congress for Indiana. At the time, the Southern District of Indiana was served by a single federal judge, William E. Steckler. Even before Holder was officially nominated, the two Indianapolis newspapers owned by the Pulliam family, the Star and the News, launched a campaign against him. The Indianapolis Times entered the fray over Holder’s nomination by publishing an editorial describing

Photo of Judge Cale J. Holder courtesy of the U.S. District Court, Southern District of Indiana

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Holder as “a lawyer of unquestioned integrity and character who has given long, distinguished and unselfish service to the Republican Party” and whose appointment was supported in writing by the top business, labor, banking and political leaders of the state.5 Pulliam’s efforts were unsuccessful, and on Aug. 2, 1954, President Dwight D. Eisenhower formally nominated Holder at age 42 to the newly created second judgeship for the United States District Court for the Southern District of Indiana. Nearly 1,000 people attended Judge Holder’s swearing-in ceremony held at the Federal Court House in Indianapolis on Aug. 21, 1954. When interviewed several weeks after his appointment, Judge Holder succinctly summarized his judicial philosophy in these words: “I do not believe any human being is really bad, without some reason

to be. I believe the purpose of a court is to salvage those who can be salvaged. That is the basis of our court system.” He stressed that criminal defendants were individuals, the circumstances of whose lives merited examination by the court. Taking pains to explain to defendants their rights under the U.S. Constitution, Judge Holder said, “It would be better that one guilty person went free than one innocent person go to prison.”6 He demonstrated a concern for fairness and equality before the law throughout his career. In mid-1959, Judge Holder was assigned the largest excise tax evasion case tried up to that time in a federal court. The trial of eight men accused of being involved in a gambling syndicate was held in the federal courthouse in Terre Haute before Judge Holder. The defendants, all of whom were charged

with conspiracy and the evasion of federal excise taxes, came from Chicago, Las Vegas, Miami, Indianapolis and Terre Haute; defense counsel included some of the most expensive legal talent in the country. After a lengthy jury selection process, Judge Holder sequestered the chosen jury, a move unprecedented in recent federal court history and done “to safeguard the rights to a fair trial.”7 Nearly 100 witnesses took the stand over the next six weeks, mostly bettors who had placed wagers with the syndicate, including film comedian Zeppo Marx, who told the court that he had heard in Las Vegas that he could call a bookie in Terre Haute to wager on football games. The Indianapolis Star described the scene, saying “the courtroom and corridors were clogged with curious housewives hovering around for a look at Marx,” while “silk-shirted bookies” and other prospective witnesses “were wilting fast at the end of the humid day.”8 Ultimately, all eight defendants were found guilty by the jury. In 1967, Judge Holder handed down the first of several significant civil rights rulings. In a suit filed by the NAACP on behalf of seven school students, the court was asked to determine if the Kokomo schools had practiced segregation and imposed limitations on certain black children by assigning them to schools where they would receive unequal educational opportunities. After personally touring the two referenced school buildings, both more than 50 years old with predominantly black enrollments, Judge Holder ordered them closed, holding that “[t]he physical facilities of the Willard-Douglass Schools [in Kokomo] are too small, outmoded, and insufficient in many details to fulfill the educa(continued on page 24) RES GESTÆ • DECEMBER 2014


RG 12.14_RG 09.05 12/29/14 9:56 AM Page 24

JUDGE HOLDER continued from page 23 tional needs of the pupils or provide a workshop for the teachers to have incentive to practice their profession.”9 Later, he ordered the schools closed sooner rather than later, citing the stigma attached to students required to attend them, and directing that the children be brought into regular classrooms at other schools, not into separate classes.10 In 1975, Judge Holder presided over another key civil rights case filed by Bruce Bailey of Gary and the Indiana NAACP, charging the Indiana State Police with racially discriminatory hiring practices. At that time, the State Police had only 14 black employees out of a total force of 1,340. All applicants were required to achieve a minimum I.Q. test score, but few black applicants had been successful in attaining that goal. Judge Holder determined that the testing procedures were racially discriminatory because the test did not cover jobrelated matters. State Police was ordered to take affirmative steps to increase the number of black troopers in the force.11 Ultimately, Judge Holder approved a consent decree that ended the use of the I.Q. tests or other written examinations unless first approved by the Equal Employment Opportunity Commission; the State Police was also enjoined from rejecting any applicant who had a record of arrest without conviction or a less than honorable military discharge or a poor credit rating. The consent decree required the State Police to allocate 40 percent of the spots in each recruiting class for black applicants until a total of at least 7 percent of the department’s employees were black. The decree further mandated that the State Police contact applicants who had recently been rejected due to low scores on the I.Q. test and inform them of their right to reapply.12 24


In the final major civil rights trial of his career, Judge Holder presided in a bench trial of three Muncie men charged with firebombing the home of a black family in a largely white neighborhood in 1980. Noting that the firebombing culminated a 5-week long campaign of harassment and intimidation of the family, Judge Holder observed that the victim had been forced to sleep in the living room with a gun nearby in order to protect his family. The defendants, said Holder, engaged in a conspiracy to “intimidate the ... family and their children from their rights guaranteed by the law to own and occupy a dwelling without fear of harassment because of their race.”13 He sentenced each of the three to a 6-year term.14 The Seventh Circuit Court of Appeals upheld Judge Holder’s convictions of the three men the following year. In a case arising out of the Vietnam War-era protests, Arthur Banks, a well-known African American actor and playwright who had resisted the draft in the early 1970s, received a 5-year federal prison sentence to be served in the federal penitentiary in Terre Haute, Ind. While incarcerated there, Banks led a group of black prisoners in protesting discriminatory treatment by the prison officials of another inmate. In the course of being transferred to solitary confinement as punishment for his actions, Banks attacked two prison guards for which he was indicted for assault. No doubt due to his prominence and the highly charged political climate at the time, his case became a cause célèbre, exacerbated when noted civil rights attorney, William M. Kunstler, entered an appearance to represent Banks at his trial. At a hearing on April 1, 1973, the judge barred Kunstler from continuing to represent Banks in this matter, ruling that he had

engaged “in a pattern of pretrial publicity” that had diminished the prospects of Banks receiving a fair trial before an impartial jury. Holder found that Kunstler had violated the Canon of Ethics, which he ascribed to his political motivations. Incensed by the decision, Kunstler characterized it as “one of the grossest violations of constitutional rights I have ever seen and certainly a grotesque distortion of the law.”15 Judge Holder responded to Kunstler’s attacks by notifying the Seventh Circuit that he had “fully and properly performed [his] judicial responsibility in making the ruling in question. The ultimate purpose of a criminal action is the search for the truth and the determination of whether the prosecution has established the guilt of Mr. Banks of the charged crime of assault and battery. The court cannot allow the pretrial and trial proceedings to be used for any other purpose.”16 The Seventh Circuit Court of Appeals disagreed with Judge Holder’s ruling and permitted Kunstler to continue to represent Banks. The government ultimately dismissed the assault charge against Banks.17 Judge Holder also presided over the trial of Dr. John D. Lind, an Anderson physician, who was indicted in April 1976 on charges relating to the bombing of a plumbing supply company. The headless torso of Gary W. Lake, who had participated in the bombing and served as a government informant, was found in November 1975 floating in a farm pond, a few days after Lake had provided a detailed statement to law enforcement detailing his involvement in the bombing and disclosing the names of the persons who paid to have the bombing committed allegedly due to bad feelings over a charge for plumbing supplies. Dr. Lind retained F. Lee Bailey

RG 12.14_RG 09.05 12/29/14 9:56 AM Page 25

as his counsel. Bailey’s presence created a certain excitement in Indianapolis since just weeks earlier he had concluded his defense of Patty Hearst in her bank robbery trial in California. Judge Holder denied Dr. Lind’s motion for reduction of the $750,000 bond set by the grand jury.18 At Dr. Lind’s trial held the following year, the jury returned verdicts of guilty on five charges of federal firearms violations.19 Dr. Lind maintained his innocence and provided no cooperation in the investigation of Lake’s murder. He requested that, in lieu of prison, he be allowed to practice medicine among poor people, but Judge Holder declined that offer, saying that the federal prison would find a use for his talents. Dr. Lind was sentenced to nine years in prison and fined $10,000. No one was ever charged in the death of Gary Lake. William Chaney, former Indiana grand dragon of the Ku Klux Klan, was indicted in 1976 for the firebombing of an Indianapolis advertising firm. Two successive trials resulted in jury convictions, each of which was subsequently set aside by the Seventh Circuit Court of Appeals. Chaney’s third trial was assigned to Judge Holder. The trial was moved from Indianapolis to Evansville during jury selection after several prospective jurors admitted they had been discussing the case with one another in advance of voir dire. Judge Holder observed on the record: “Today it appears the powers that be want us to try cases in a near vacuum and that’s doggone near impossible.” The third trial ended in a mistrial with a “hung jury.” A fourth trial commenced in Terre Haute in 1979, at the conclusion of which the jury found Chaney guilty of throwing Molotov cocktails at the Naegele Outdoor Advertising Company during a strike by

Naegele employees. The evidence disclosed that Chaney’s employment ended when he was fired by Naegele’s predecessor, and his violence was in retaliation toward the company and in support of the striking employees. Judge Holder affirmed that in his view the firebombing occurred in connection with a labor dispute and was not

related to Chaney’s Klan affiliation, despite Chaney’s efforts to assert government harassment based on his Klan ties. Chaney received a 5-year sentence of imprisonment.20 Judge Holder enjoyed a near legendary reputation for presiding (continued on page 26)

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JUDGE HOLDER continued from page 25 over pretrial settlements in civil cases. He was quoted as saying that very few cases were worth going to trial over, that “when a case comes to trial, that means someone, one of the lawyers or one of the clients, is being unreasonable.”21 In 1972, he managed to accomplish what all participants as well as a special judicial committee considered a remarkable feat by engineering settlements, over a 3-year period, of 143 separate claims resulting from the 1969 crash of an Allegheny Airlines plane in Shelby County, Ind., in which 83 people had died. Judge Holder’s reputation as a settlement judge was further enhanced in August 1978 following a lengthy, complex, highly contentious case involving window breakage and resultant leaks at the three recently constructed high-rise Pyramid Office Buildings on the northwest side of Indianapolis. After the parties’ resistance to Judge Holder’s settlement efforts necessitated a 5-month jury trial, which ended with a verdict in favor of College Life Insurance Company, the owner of the buildings, and an award of approximately $20 million in damages, including punitive damages, a second trial was set to begin before Judge Holder, involving cross-claims between and among the various defendants. The judge urged the attorneys to assert their “professional leadership” to assist their clients in fashioning an out-of-court settlement. Ultimately his exhortations were successful. The jury’s award was reduced by nearly half, and all appeals and cross-claims were dismissed.22 In the first nationwide strike of federal workers in history, air traffic controllers walked off their jobs in August 1981, crippling commercial flights across the country. President Ronald Reagan ordered that any striking controller who refused 26


to return to work within 48 hours would be fired. When litigation was filed in Indianapolis, Judge Holder ordered striking air controllers back to work at Indianapolis International Airport and banned further picketing.23 To secure compliance with his injunction, Judge Holder ordered each striking PATCO (Professional Air Traffic Controllers Organization) employee to surrender one motor vehicle to the U.S. Marshal, who would impound it until the air traffic controller returned to work. It was a highly effective order, prompting the families of the workers to add their own pressures for them to get back to work so they could have their cars back. After the Seventh Circuit Court of Appeals upheld his ruling, Judge Holder issued a permanent injunction prohibiting members of PATCO from interfering with air traffic or working controllers anywhere in the Southern District of Indiana.24 On Aug. 24, 1983, Judge Holder died, three days after suffering a stroke at his home in Indianapolis. Upon learning of his death, Indiana Governor Robert Orr and Indianapolis Mayor William Hudnut ordered flags on public buildings lowered to halfstaff. The Indianapolis Star editorialized: In his 29 years on the bench, U.S. District Judge Cale J. Holder was scrupulous, efficient, dedicated to fairness and attentive to detail, a terror to lawyers who came into his court ill-prepared, a master educator to those who observed him in action.25

In its memorial resolution honoring Judge Holder, the Indianapolis chapter of the Federal Bar Association recalled his nickname, the “Golden Eagle,” declaring it “the embodiment of the man himself … [s]talwart, gentlemanly, dynamic, patriotic, efficient, diligent, and intelligent.” Beloved by

his family, respected by his peers and colleagues, and remembered by all who had the privilege of knowing him, Cale James Holder was a remarkable judge who contributed in significant ways to the enhancement of his community, state and country, and the cause of justice. 1. Indianapolis Times, Aug. 8, 1954. 2. Indianapolis Star, Oct. 23, 1949. 3. Russell Pulliam, Publisher: Gene Pulliam, Last of the Newspaper Titans (Ottawa, IL: Jameson Books, 1984), 163. 4. Indianapolis Times, Nov. 12, 1952. 5. Indianapolis Times, July 14, 1954. 6. Indianapolis Times, Sept. 12, 1954. 7. Indianapolis Star, June 25, 1959. 8. Indianapolis Star, July 10, 1959. 9. Indianapolis Star, Oct. 11, 1967; Collier v. Kokomo IP 67-C-205, RG 21, NARA, Great Lakes Region. 10. Indianapolis Star, July 25, 1968. 11. Indianapolis Star, Aug. 2, 1975; Bruce Bailey v. Robert L. DeBard, 1975 WL 227 (S.D. Ind. 1975). 12. Indianapolis Star, March 3, 1976 and April 20, 1976. 13. Indianapolis Star, Oct. 27, 1982. 14. Indianapolis Star, Dec. 11, 1982. 15. John Antonides, “The Anendotos Agonas of Arthur Burghardt-Banks,” Indiana Daily Student, October 1973. 16. Indianapolis Star, June 3, 1973. See also, Indianapolis Star, Feb. 8, 1973 and Sept. 1, 1974. 17. Holder v. Banks, 417 U.S. 187 (1974), cert. dismissed as improvidently granted. 18. Indianapolis Star, April 22, 1976, April 24, 1976, and Sept. 11, 1976. 19. Indianapolis Star, Aug. 1, 1976. 20. Indianapolis Star, June 23, 1978, Feb. 1, 1979, March 2, 1979, March 3, 1979, and March 24, 1979; Indianapolis News, Dec. 26, 1978 and Dec. 27, 1978. 21. Indianapolis Star, Aug. 24, 1983. Lawyers who appeared regularly before Judge Holder remembered his saying that cases go to trial for one of four reasons, or a combination thereof: bad facts, bad law, bad clients, bad lawyers. 22. Indianapolis Star, April 23, 1978, May 5, 1978, and Aug. 1, 1978. 23. Indianapolis Star, Aug. 4, 1981. 24. Indianapolis News, Nov. 16, 1981. 25. Indianapolis Star, Aug. 25, 1983.

Suzanne S. Bellamy, J.D., Indianapolis, is a researcher and writer. She is the author of Hoosier Justice at Nuremberg (2010), published by the Indiana Historical Society Press; a former editorial assistant on the Papers of Lew and Susan Wallace; and served as assistant general counsel of Anacomp, Inc.



RG 12.14_RG 09.05 12/29/14 9:56 AM Page 28

By Curtis T. Jones and John Z. Huang

Appellate civil case law update



he Indiana Supreme Court issued four opinions in the month of August, including two civil matters, which are summarized below. The Supreme Court additionally granted transfer in three civil matters, which are also summarized in this article. For the month of August, the Indiana Court of Appeals issued 16 published civil opinions, several of which are highlighted herein. The full text of all Indiana appellate court decisions, including those issued not-for-publication, are available via Casemaker at www.inbar.org or the Indiana Courts website, www.in.gov/ judiciary/opinions.

INDIANA SUPREME COURT Issue of first impression: Whether the Indiana Medical Malpractice Act’s cap on attorney fees from the Patient’s Compensation Fund applies to reduce the Fund’s liability to claimant

Curtis T. Jones Bose McKinney & Evans LLP Indianapolis, Ind. CJones@boselaw.com

John Z. Huang Bose McKinney & Evans LLP Indianapolis, Ind. JHuang@boselaw.com


In Indiana Patient’s Compensation Fund v. Holcomb, 17 N.E.3d 255 (Ind. 2014), the Estate of the decedent brought an adult wrongful death medical malpractice action against a nursing home. The nursing home settled the claim for $250,000, the maximum liability under the Indiana Medical Malpractice Act (“MMA”), and thereafter the Indiana Patient’s Compensation Fund (the “Fund”) paid the Estate about $100,000 to settle its excess


damages claim under the Adult Wrongful Death Statute (“AWDS”). The issue of first impression was whether the MMA’s cap on attorney fees from a Fund award also applies to reduce the Fund’s liability. The Indiana Supreme Court declined to construe the Fee Cap Provision of the MMA, Indiana Code section 34-1818-1, to reduce the Fund’s liability to a plaintiff AWDS claimant. The Court held that the “Fee Cap Provision applies only to cap the fees that the plaintiff’s lawyer may charge his or her client as to the award the client receives from the Fund, but it does not lessen the Fund’s liability to a claimant.” The Court found the plain meaning of the Fee Cap Provision of the MMA to be dispositive and explained that “[i]n crafting the language of the Fee Cap Provision, the General Assembly did not direct any reduction in the Fund’s liability to a plaintiff, nor any methodology to be employed. Rather, the 15% limitation expressly applies to ‘the plaintiff’s attorney’s fees,’ Ind. Code § 34-18-18-1 ... the attorney fees that an attorney could charge his or her client on the client’s award received from the Fund. If the legislature intended the 15% limitation to reduce the liability of the Fund to an AWDS claimant, then it would have clearly directed such result, specified the method of calculation to be utilized, and placed the Fee Cap Provision in Chapter 14 of the MMA – the chapter entitled ‘Limits on Damages.’ See Ind. Code § 34-18-14 et seq.” Based on this analysis, the Court concluded that “[p]rinciples of judicial restraint compel us to interpret and apply the Fee Cap Provision as written and to refrain from judicially rewriting this legislative enactment.”

Corporate taxpayers cannot increase net operating losses for carryover to other tax years by incorporating their foreign source dividend income deduction In a unanimous opinion captioned as Department of State Revenue v. Caterpillar, Inc., 15 N.E.3d 579 (Ind. 2014), the Indiana Supreme Court held that while Indiana’s tax statutes expressly authorize corporate taxpayers to deduct some foreign source dividend income when calculating Indiana adjusted gross income (“AGI”), the plain meaning of those tax statutes prohibit companies such as Caterpillar from using that same deduction to increase their Indiana net operating losses (“NOL”) available for carryover to other tax years. The Court also rejected Caterpillar’s argument “that disallowing the deduction discriminates against foreign commerce under the Foreign Commerce Clause of the Federal Constitution.” The Indiana Tax Court had held that every deduction that was applicable to calculate AGI, including the foreign source dividend deduction, was also applicable to calculating NOL. While acknowledging that it exercises “cautious deference” to the Indiana Tax Court because of “its unique expertise in Indiana tax law,” the Indiana Supreme Court reversed the Tax Court’s decision as contrary to the plain meaning of the Indiana statute for calculating NOL, Indiana Code section 6-3-2-2.6(c) (“NOL Statute”). The Court reasoned that the plain language of the NOL Statute explicitly states that net operating losses are to be “adjusted for the modifications required by I.C. 6-3-1-3.5,” and the foreign source dividend deduction is not one of these “modifications.” The Court also noted that federal

RG 12.14_RG 09.05 12/29/14 9:56 AM Page 29

tax law does not allow every modification to federal taxable income to apply in calculating federal NOL. Finally, the Court rejected Caterpillar’s contention that the Indiana tax statutes facially discriminate against foreign commerce by disallowing the foreign source dividend deduction in the Indiana NOL calculation, but incorporating the federal domestic source dividend deduction in the same calculation. The Court noted that Caterpillar’s constitutional argument rested on an inapplicable U.S. Supreme Court case involving taxable income and not net operating losses.

$9,510,795 in equipment fees, $2,570,621 in early termination close out payments, and $10,632,333 in prejudgment interest, totaling $62,713,749. On appeal, the Indiana Court of Appeals (1) reversed the trial court’s finding that there was no material breach based on its contrary conclusion that IBM failed to

provide timely services to the poor; (2) reversed the trial court’s award of early termination close out payments and prejudgment interest to IBM; (3) affirmed the trial court’s award of $40 million in assignment fees and $9,510,795 in equipment fees to IBM; (4) affirmed the trial court’s denial of deferred fees to (continued on page 30)

INDIANA SUPREME COURT TRANSFER ORDERS Both FSSA and IBM breached contract intended to improve Indiana’s welfare system In State ex rel. Indiana Family & Social Services Administration v. International Business Machines Corp., 4 N.E.3d 696 (Ind. Ct. App. 2014), the State, on behalf of its agency, the Indiana Family & Social Services Administration (“FSSA”), entered into a 10-year, $1.3 billion contract with IBM to modernize and improve the State’s welfare system. IBM agreed to the State’s proposal on how to accomplish this task. IBM received $437 million while assuring the State that it was up to the task. Less than three years into the 10-year contract, the State terminated the contract, citing IBM performance issues, and the parties sued each other for breach of contract on the same day in Marion Superior Court. The State sought more than $170 million in damages, and IBM sought almost $100 million. The trial court granted IBM summary judgment for $40 million in assignment fees and, after a six-week bench trial, found no material breach on IBM’s part and awarded IBM an additional RES GESTÆ • DECEMBER 2014


RG 12.14_RG 09.05 12/29/14 9:56 AM Page 30


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continued from page 29 IBM; and (5) remanded the case to the trial court to determine the amount of fees IBM is entitled to for Change Orders 119 and 133, and to determine the State’s damages for IBM’s material breach of the contract and to offset any damages awarded to IBM. The Indiana Supreme Court has granted transfer. (On Nov. 6, the Court encouraged the parties to engage in mediation, and they have since agreed to do so.)

Issue of first impression: UM insurance coverage limits inadmissible at trial In State Farm Mutual Auto Insurance Company v. Earl, 3 N.E.3d 1009 (Ind. Ct. App. 2014), the Indiana Court of Appeals decided an issue of first impression: namely, whether uninsured motorist (UM) insurance limits are admissible in a jury trial on a plaintiff’s claim seeking UM coverage benefits under his automobile insurance policy. Here, the jury returned a verdict for the plaintiff of $250,000, the per person bodily injury limit on the plaintiff’s UM insurance coverage, after the plaintiff was injured in a motorcycle accident through no fault of his own. State Farm contended that evidence of the bodily injury limit was both irrelevant and prejudicial, and the Indiana Court of Appeals agreed. The court concluded that “[i]n this case, when the only issue to be determined was damages [caused to the plaintiff by the uninsured motorist], evidence of the bodily injury limit in the [plaintiff’s] policy was irrelevant to the issue being decided.” The trial court’s admission of the coverage limit was, therefore, prejudicial to the plaintiff, “in light of the fact that the jury awarded precisely the coverage limit.” The Indiana Supreme Court granted transfer.

RG 12.14_RG 09.05 12/29/14 9:56 AM Page 31

Insurer not required to obtain certificate of authority to sell insurance product In State Board of Funeral and Cemetery Service v. Settlers Life Insurance Company, 5 N.E.3d 1170 (Ind. Ct. App. 2014),1 the Indiana Court of Appeals addressed whether the product sold by Settlers Life Insurance Company (“Settlers”), comprised of an insurance policy with an option to assign the policy to a trust that funds funeral and burial goods and services purchased after death, fell under the Pre-Need Act, Indiana Code section 30-2-13-1 et seq. The trial court determined that Settlers’ insurance product did not fall within the statutory confines of the Pre-Need Act. The State Board of Funeral and Cemetery Service (“Board”) appealed, contending that Settlers’ product was intended to provide funding for the purchase of funeral services or merchandise, which is the same purpose the products regulated by the Pre-Need Act was intended to fulfill, and that all lawful funeral trusts must comply with the Pre-Need Act. The Court of Appeals affirmed the trial court and held that the life insurance product did not fall under the Pre-Need Act, so as to require Settlers to obtain a certificate of authority to sell pre-need insurance. The court reasoned that (1) the product did not “obligate the seller to provide pre-paid services or merchandise”; (2) the insurer was not a “seller” since it did not contract to provide services or merchandise, but simply paid a death benefit; and (3) the product was not designed to cover pre-need purchases, but rather to provide for at-need services and merchandise to be purchased after the insured died. The Indiana Supreme Court has granted transfer.

INDIANA COURT OF APPEALS Law firm is not entitled to fees for contingency cases its associate took with him upon departure from the firm In Cohen & Malad, LLP v. Daly, 17 N.E.3d 940 (Ind. Ct. App. 2014), the issue before the court was whether a law firm is entitled to quantum meruit compensation from the fees generated on the cases that an at-will associate takes with him after departure from the firm. Associate Daly worked at the law firm of Cohen & Malad, LLP (“C & M”) from 2008 to 2011. In 2011, Daly left C & M and took 24 contingency fee cases with him to the law firm of Golitko & Daly. After a four-day bench trial, the trial court found, in relevant part, that (1) the clients in the 24 cases had chosen to continue with Daly as their attorney upon his termination with C & M; (2) there was no agreement in place between Daly and C & M regarding what would happen if they parted ways; (3) the employment agreement between Daly and C & M did

not include any covenants regarding noncompetition or provision about ownership of files; (4) while Daly was being paid a salary by C & M, C & M was well-compensated for Daly’s time; and (5) including Daly’s hours while at C & M, C & M attorneys had contributed a total of 1,014.64 hours on the 24 cases in question. C & M maintained that, under the quantum meruit recovery rule established in Galanis v. Lyons & Truitt, 715 N.E.2d 858 (Ind. 1999), it should be compensated for those hours. The trial court disagreed and held that Daly was not unjustly enriched and therefore C & M was not entitled to quantum meruit compensation as a result of the fees generated on the cases that went with Daly when he left C & M. The Indiana Court of Appeals affirmed, relying almost exclusively on the trial court’s findings. In doing so, the court declined to apply the quantum meruit recovery rule established in Galanis, which stated that, in the absence of express written fee agreements (continued on page 33)

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RECENT DECISIONS 8/14 continued from page 31 providing otherwise, a lawyer retained under a contingent agreement fee contract but discharged prior to the contingency is entitled to recover the value of services rendered if there is a subsequent settlement or award.

There can be no claim for monetary damages arising from the Indiana Constitution In McIntire v. Franklin Township School Corporation, 15 N.E.3d 131 (Ind. Ct. App. 2014), a parent filed a complaint against the Franklin Township School Corporation for damages and injunctive relief, claiming that the School Corporation violated the Indiana Constitution by charging “tuition” in the form of a locker fee, newspaper fee, activity fee, ID fee, technology fee, student planner fee, and textbook rental fee. The trial court held that: (1) the parent’s claim was barred by her failure to provide the required notice under the Indiana Tort Claims Act (“ITCA”); and (2) Article 8, Section 1 of the Indiana Constitution does not provide for a private cause of action for monetary damages. On appeal, the court held that (1) the parent’s complaint was not based on a “loss” as defined by the ITCA because her claim was not based on an injury to or death of a person or damages to property, and therefore she did not have to provide the required notice; and (2) the parent may not maintain a claim for monetary damages under Article 8, Section 1 of the Indiana Constitution because “there can be no claim for monetary damages arising out of the Indiana Constitution.” The court noted that the parent could have sought another remedy for the alleged constitutional violation, namely immediately seeking

injunctive relief before paying the fees.

Indiana Utility Regulatory Commission’s ratemaking order is entitled to deference, especially in light of prior settlement proceedings and prior appeal In Citizens Action Coalition of Indiana, Inc. v. Duke Energy, Indiana, Inc., 15 N.E.3d 1030 (Ind. Ct. App. 2014), a coalition of citizen groups (“Interveners”) appealed an order of the Indiana Utility Regulatory Commission (“the Commission”) approving a request from Duke Energy to include power plant construction costs incurred April 1, 2012 to Sept. 30, 2012 in a rate adjustment rider, in implementation of a settlement agreement between Duke Energy, the Indiana Office of Utility Consumer Counselor (“the OUCC”) and other entities. Interveners challenged the Commission’s ratemaking order as contrary to law because: (1) the Commission applied an incorrect

statutory standard that placed an undue burden upon Interveners when the Commission approved the total of requested constructionrelated financing costs despite a two-and-one-half-month delay in construction; or (2) the Commission disregarded relevant case law by approving capitalized financing costs that permitted a return on capital contributed from ratepayers attributable to deferred taxes. On appeal, the court upheld the Commission’s order and refused to “reweigh the evidence, find credible the testimony that Duke simply should not have let the delay happen, and order a reduction in the amount of construction costs allowed.” The court reasoned that “[t]he allowance of costs is inherent in the ratemaking process and we accord deference to the Commission. The Commission did not act contrary to law when it found the ‘technical problems associated with human errors, equipment failures, or a combination of (continued on page 34)

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RG 12.14_RG 09.05 12/29/14 9:56 AM Page 34

RECENT DECISIONS 8/14 continued from page 33 the two … within the control of the Company or its contractors’ did not preclude Duke’s recovery of its costs.” As to Interveners’ second issue for review, the court determined that settlement proceedings and the prior appeal relating to the Commission’s approval of capitalized financing costs, for construction of the power plant, recoverable from ratepayers in the form of a rate adjustment rider, were res judicata to the Interveners’ claim that an improper mathematical calculation allowed an impermissible return on customer investment.

Indiana General Wrongful Death Statute allows reasonable recovery of attorney fees for decedents who are survived by dependents In SCI Propane, LLC v. Frederick, 15 N.E.3d 1015 (Ind. Ct. App. 2014), the personal representative of the decedent’s Estate

brought a wrongful death action under the General Wrongful Death Statute (“GWDS”) against a provider of metered propane services and its related entities arising from a propane gas leak and explosion at a home after the homeowner replaced a gas-control valve for a water heater, following a visit by the propane supplier. After a jury trial on the issue of liability, the parties settled on the issue of damages. Thereafter, the trial court entered a judgment awarding the Estate more than $2.5 million in attorney fees and expenses. On appeal, in an issue of first impression, the court held that the omnibus provision of the GWDS, Indiana Code section 34-23-1-1, which allows a court to award damages “including, but not limited to,” damages of the type explicitly delineated, allows recovery of reasonable attorney fees for decedents who are survived

by dependents. The court reasoned that “(1) attorney fees are the ‘type’ of damages contemplated by the statute; (2) such a conclusion comports with our principles of statutory construction; and (3) the Legislature has ‘acquiesced’ to the recoverability of attorney fees.” 1. The Indiana Supreme Court granted transfer in this case on Aug. 7, which usually vacates the Indiana Court of Appeals opinion. Here, the Indiana Supreme Court’s grant of transfer did vacate the Indiana Court of Appeals opinion, but on Oct. 7 the Indiana Supreme Court reinstated the Court of Appeals opinion as No. 49S05-1408-PL-514, 2014 WL 5033124 (Ind. Oct. 7, 2014).

Curtis Jones is a partner at Bose McKinney & Evans LLP in the litigation, insurance and appellate groups. While at Valparaiso University School of Law, Curtis served as executive symposium editor for the Valparaiso University Law Review, earned an honors program scholarship, and served for a year in an externship with the Hon. Kenneth F. Ripple, United States Court of Appeals, Seventh Circuit. Upon graduating and prior to joining BME, Curtis served as a judicial law clerk to Justice Theodore R. Boehm on the Indiana Supreme Court. His email is CJones@boselaw.com. John Z. Huang is an associate at Bose McKinney & Evans LLP in the litigation, labor & employment, education and insurance groups. While at Notre Dame Law School, John served as symposium editor for the Notre Dame Journal of Law, Ethics & Public Policy, was a White Scholar, and served as president of the Public Interest Law Forum. Upon graduating and prior to joining BME, John served as a judicial law clerk to Justice Frank Sullivan Jr. on the Indiana Supreme Court, assistant litigation counsel with the City of Indianapolis Office of Corporation Counsel, and staff attorney with the Indiana Department of Education. His email is JHuang@boselaw.com.



RG 12.14_RG 09.05 12/29/14 9:56 AM Page 35

By Jeremy I. Eglen

Do my files get wet when it rains in the cloud? The perfect storm


In the 1940s, Sir Charles Darwin, the head of Great Britain’s National Physics Laboratory and the grandson of the famous naturalist, opined that “[i]t is very possible that … one machine would suffice to solve all the problems that are demanded of it from the whole country.”1 In 1952, Howard Aiken, designer of the Harvard Mark I computer, said, “Originally one thought that if there were a half dozen large computers in this country, hidden away in research laboratories, this would take care of all requirements we had throughout the country.”2 When Darwin and Aiken referred to “machines” and “computers,” they had mainframes in mind.3 Indeed, until the 1980s, most computation was done on mainframes – massive machines taking up most of a room (or most of several rooms) with far less computational power than your smartphone. Small devices known as dumb terminals were used to access a mainframe. The mainframe had all the data storage and all of the processing power. The dumb terminals themselves could do next to nothing as they were little more than a monitor attached to a keyboard. Over time, computing has moved away from mainframes and toward cheap, almost disposable machines called personal computers. These personal computers have

Taking shelter All of this is not to say that all days are sunny in the cloud. The 2014 session of the ABA House of Delegates adopted Resolution 109 that “encourages all private and public sector organizations to develop, implement and maintain an appropriate cyber security program that complies with applicable ethical and legal obligations and is tailored to the nature and scope of the organization and the data and systems to be protected.”4 As of the publication of this article, Indiana has not yet adopted a formal ethics opinion on the use of cloud services, but many other states have.5 In all states that have a policy, the use of cloud services is permitted, but the attorney must exercise reasonable care to ensure the security of client data. While cloud storage is often presumed to be more reliable than a personal drive, cloud storage providers do not generally provide any kind of warranty as to the availability or longevity of your data. Popular storage providers like Carbonite, Dropbox, Google Cloud Drive and iCloud disclaim any warranty for data access and any warranty against loss or corruption. If a hurricane were to destroy the data center where the cloud storage provider’s servers are located, the data stored there would be gone with the wind. Therefore, if an attorney makes use of cloud storage as a backup data store, it should not be the only backup data store. A safer arrangement would be to have a backup under the attorney’s direct control (like a hard drive on your computer or in Jeremy I. Eglen your office), which Eglen Law is then encrypted and Avon, Ind. (continued on page 36)


hat is the cloud? You may have heard about software that runs in the cloud or backup services that store data in the cloud, but what is it, really? The “cloud” is, like The Matrix, everywhere and nowhere. While it can provide great benefits to someone who understands it for what it is, it may contain hidden pitfalls for those who do not.

to be managed. They are bound, more or less, to a particular location. Viruses and malware can compromise them. Ultimately they are left behind by the pace of technology. Most businesses would prefer to focus on core competencies rather than sink money into the overhead of a large IT staff or computer hardware. Cloud services allow a company to do that. There are cloud email providers, many storage and backup providers, accounting and invoicing packages, and office suites. Combined with online legal research suppliers like Lexis, Westlaw and Casemaker, an entire law office could be run with no more software than a Web browser. This is, of course, not so much a new concept as a return to the era of the mainframe. Instead of having a huge machine onsite, running hundreds or thousands of dumb terminals, we have a data center located somewhere in the world interacting with clients through Web browsers or other special software. The precise origin of the term “cloud” is probably related to network or organizational diagrams where the Internet or other “black box” resources were drawn using a blob or cloud shape. “Cloud” suggests off-site and managed by someone else. The cloud is a place where the details of technology are somebody else’s problem. In the case of “cloud storage,” it is implied that the storage is accessible from multiple devices, like a computer, cell phone or Web browser. Ubiquitous availability is one of the advantages that cloud storage has over carrying a thumb drive around. A user can access files stored in the cloud from any computer or device. As desktops give way to laptops and laptops to tablets, universal access will continue to grow in importance.




RG 12.14_RG 09.05 12/29/14 9:56 AM Page 36

THE CLOUD continued from page 35 backed up to a cloud storage provider. Although not having to worry exactly where your data is kept is a purported benefit of the cloud, it also makes it difficult to determine what government(s) may have jurisdiction over the location where the cloud provider’s servers

reside. Some cloud service providers, particularly storage providers, may have a given user’s data strewn across several states or even countries. Further, multiple users’ data is likely to be stored on the same physical computer. If that computer were seized (for example, due to one user’s trafficking in

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child pornography), it is unclear what happens to the data of other users on that physical computer. The April 2013 issue of Res Gestae had an excellent article on encryption,6 and I would encourage every attorney to review it. Encryption is the only way to prevent access to data by unauthorized parties who obtained it. Strong encryption methods, such as AES, PGP and TLS, are considered to be unbreakable using known techniques, even for a theoretical attacker that has all the computational power on earth. In other words, if something is encrypted using one of those methods, it is secure against anyone, including a government, who does not have the password. The use of cloud email providers such as Gmail or Hotmail presents a difficult choice. Recent revelations about government spying make it clear that the U.S. government, at least, has relatively easy access to all of the major free email providers. Other governments are likely engaged in interception of communications where it is possible. It may be that these governments are only “scanning” for specific words or users, but from a computation standpoint, it would be much easier for them to store all the data and search through it after the fact. In any case, unless messages are encrypted, it is likely that at least the U.S. government can get access to email stored, sent or received on a cloud service provider. In practice, what does all of this mean for maintaining the confidentiality of your data, while making use of the convenience of cloud services? “General” advice about technology is approximately as useful as “general” legal advice, and every firm will have to evaluate its own needs and usual practices. That said, in general, cloud services

RG 12.14_RG 09.05 12/29/14 9:56 AM Page 37

are phenomenally useful and allow a firm to focus on providing clients with high-quality legal services without requiring an in-house IT staff. Cloud storage provides access to data across a variety of devices while providing a natural backup and disaster recovery option. Some storage providers even offer automatic encryption,7 which is essential if files are not encrypted before being sent.

Tomorrow’s forecast The “cloud” is not really a mysterious or magical thing. It is a collection of computers, plain, ordinary computers, which have been linked together to appear as a unified system. Different companies have different clouds, but that does not matter to most users. Users care about what benefits the cloud can provide, and there are

many: reduced overhead, a lower initial investment, universal access to files, and a consistent interface across different devices. Cloud services have drawbacks as well: a loss of control, jurisdictional questions, uncertainties about access to and retention of data, and a dependence on a third party. Computer security cuts both ways: on the one hand, a user does not have to worry about securing a physical machine or viruses on a cloud storage device, but on the other hand, a password breach can grant an unauthorized user access to all of a business’s data. Darwin and Aiken may have been constructively correct8 all those years ago – a few immense computer clusters may suffice for all the computation in a country. With fast and reliable Internet access available almost everywhere,

the cloud turns computing power and storage space into a utility like electrical power. Smartphones and tablets all but guarantee that usage of the cloud will grow. The cloud can provide a consistent interface and access to files across all platforms. Security is a critical concern, perhaps the most critical concern, when choosing which, if any, cloud service providers to use. Each attorney and firm needs to be educated both to protect their own files and to give clients the best counsel possible on legal ramifications to keep the days sunny, and the rain away, when using the cloud. 1. Jack Copeland, Colossus: The Secrets of Bletchley Park’s Codebreaking Computers 109 (2006). 2. I. Bernard Cohen, Howard Aiken: Portrait of a Computer Pioneer 292 (1999).

(continued on page 38)

• • • •



# " $%&& '" " ()*&( RES GESTÆ • DECEMBER 2014


RG 12.14_RG 09.05 12/29/14 9:56 AM Page 38


Indiana Bar Foundation Schedule of IOLTA Activities

continued from page 37


Years Ended June 30, 2014 & June 30, 2013 Year Ended June 30, 2014 REVENUE: IOLTA income Total revenue


EXPENSE: Administrative expense: Payroll and taxes Office supplies and leased equipment Postage Professional services Meetings Membership dues Telephone Employee benefits Total administrative expense Net revenue

287,843 287,843

June 30, 2013


135,859 9,674 24 11,801 4,335 2,783 12,778 177,254 $


304,366 304,366

149,734 5,644 34 11,371 4,639 1,738 2,168 9,875 185,203 $


As required under Rules of Professional Conduct, Rule 1.15 (i)(4), the Indiana Bar Foundation presents the audited financial statement of the IOLTA program receipts and expenditures for fiscal years ending June 30, 2013 and June 30, 2014.

Critical Thinkers!

3. You may have heard of a quote attributed to Thomas Watson of IBM which states something to the effect that the world may have as many as five (or 50) computers in the future. I was unable to find any source to testify to the veracity of this quote, though it has been passed around Internet forums for years. 4. American Bar Association, 2014 Resolution 109, available at http://www.americanbar.org/ content/dam/aba/images/abanews/2014am_ hodres/109.pdf (last visited Aug. 25, 2014). 5. See American Bar Association, Cloud Ethics Opinions Around the U.S., available at http://www.americanbar.org/groups/ departments_offices/legal_technology_ resources/resources/charts_fyis/cloud-ethicschart.html (last visited Aug. 25, 2014). 6. David G. Ries & John W. Simek, “Encryption Made Simple for Lawyers,” Res Gestae 24-31 (2013). 7. There is a further trap when a service claims to offer encryption: Is the encryption personal to the user, or is all data encrypted using a key provided and kept by the service provider? If the encryption key is kept by the service provider, the service provider has access to the encrypted data. If the encryption key is kept by you, then only you have access to the data. The key is usually your password, so if the service provider has a password reset function, in all likelihood the service provider has the key. The downside of this is that if you hold the key, and you forget the password, all of your data is thereafter inaccessible. This is true for any encrypted data. 8. By “constructively correct,” of course I mean “not correct in any sense corresponding to reality, but correct in some legalistic sense of the word.” The sense is the same as in “this definition is constructively funny.”

Jeremy Eglen practices in Avon, Ind., at Eglen Law, a firm concentrating on software and technology matters. He is a member of the ISBA Technology Committee and teaches as an adjunct professor of computer science at Butler University.

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RG 12.14_RG 09.05 12/29/14 9:56 AM Page 40

By Jack Kenney

Speedy trial, inevitable discovery, other holdings


n September, the Indiana Supreme Court issued opinions on the constitutional right to speedy trial and the prohibition against double jeopardy, while the Court of Appeals addressed juvenile felony murder convictions, discovery disputes and the inevitable discovery doctrine.


Denial of constitutional right to speedy trial – protracted court congestion Appellate review of claimed violations of speedy trial rights secured by the Sixth Amendment of the U.S. Constitution and Article 1, Section 12 of the Indiana Constitution is “separate and distinct” from review of Criminal Rule 4 challenges. See Austin v. State, 997 N.E.2d 1027, 1037 n. 7 (Ind. 2013). In September, the Indiana Supreme Court illustrated the significant difference between state and federal speedy trial claims. The Court held that, despite the trial court’s technical compliance with Criminal Rule 4(C), the 1,291-day delay that elapsed between the State’s filing of a class C felony child molestation charge against Scott Logan and the beginning of his trial violated his constitutional right to speedy trial. Logan v. State, 16 N.E.3d 953 (Ind. 2014). Faced with another custodial defendant’s Criminal Rule 4(B) speedy trial motion and Logan’s Rule 4(C) motion, the trial court determined that the Rule 4(B) motion, with its 70-day deadline, took precedence. Though it led to a further delay of 154 days, 109 of which Logan Jack Kenney spent incarcerated, Director of Research the trial court’s & Publications decision to continue Indiana Public Logan’s trial date due Defender Council to court congestion Indianapolis, Ind. jkenney@pdc.in.gov complied with the RES GESTÆ • DECEMBER 2014

court congestion exception that Rule 4(C) contemplates and thus was not clearly erroneous. Id. at 960-61. However, applying the fourfactor speedy trial analysis of Barker v. Wingo, 407 U.S. 514 (1972), the Court concluded that Logan’s “substantial” three-and-one-halfyear delay between filing the charge against him and his trial was “considerable, unfortunate, and inexcusable,” and thus violated his constitutional right to speedy trial. Id. at 962, 964-65. Logan very nearly served the length of his six-year sentence before his trial even began, and his trial was continued seven times due to court congestion (to which Logan “persistently and emphatically” complained). Id. at 962-63. Although a congested court calendar weighs less heavily against the State, it still must be viewed as the responsibility of the government and an impediment to a defendant’s constitutional right to a speedy trial. Logan experienced personal prejudice as a result of his oppressive pretrial incarceration. Id. at 964 (citing Doggett v. United States, 505 U.S. 647, 655 (1992)). As such, the court vacated Logan’s conviction.

Firearm enhancement based on ‘same behavior’ violated common-law double jeopardy prohibition In Cross v. State, 15 N.E.3d 569 (Ind. 2014), the Indiana Supreme Court vacated Christopher Cross’ five-year firearm sentence enhancement because it was based on the same behavior used to convict and sentence him for carrying a handgun without a license. Indiana common law double jeopardy principles prohibit conviction and punishment “for an enhancement of a crime where the enhancement is imposed for the very same behavior or harm as another crime for which

the defendant has been convicted and punished.” Id. at 571 (quoting Richardson v. State, 717 N.E.2d 32, 56 (Sullivan, J., concurring). Here, Cross continuously possessed but did not use a handgun from the time he drove to a hotel room to sell drugs until he was taken into custody by police officers. Double jeopardy would not have been implicated only if Cross had used the gun beyond mere possession.

Fruit of poisonous tree – inevitable discovery doctrine In Gyamfi v. State, 15 N.E.3d 1131 (Ind. Ct. App. 2014), the trial court abused its discretion in admitting evidence of Lawrence Gyamfi’s alleged use of a stolen credit card at a gas station in Hancock County, which was derived from evidence obtained during an unlawful search and seizure in Boone County. Although Gyamfi failed to object to some of the evidence at trial, the court addressed his claim under the fundamental error standard. Id. at 1135-36. Because the evidence admitted was fruit of the poisonous tree, Gyamfi’s convictions were reversed, and his case remanded for a new trial. In so holding, the court rejected the State’s reliance on the doctrines of attenuation and inevitable discovery because they have no place in the jurisprudence of Article 1, Section 11 of the Indiana Constitution. Id. at 1137. Judge Bradford, joined by Judge Robb, concurred in part and concurred in result with a separate opinion, noting that the inevitable discovery rule could apply under both federal and state constitutions if the State could demonstrate by a preponderance of evidence that the challenged evidence would have been discovered but for the unlawful search, which the State failed to do in this case. Id. at 1138-39.

RG 12.14_RG 09.05 12/29/14 9:56 AM Page 41

Unarmed juveniles’ felony murder convictions affirmed where co-perpetrator killed by victim, but sentences were inappropriate In Layman v. State, 17 N.E.3d 957 (Ind. Ct. App. 2014), trans. pending, Indiana’s felony murder statute was properly applied to juvenile defendants Blake Layman and Levi Sparks, where one of their co-perpetrators was shot and killed by a homeowner during the commission of a burglary of a house they thought was unoccupied, and none in the group had a weapon when the burglary occurred. When they committed the offense, Layman was 16 and Sparks was 17. As in Exum v. State, 812 N.E.2d 204 (Ind. Ct. App. 2004), it was reasonably foreseeable that the victim’s act of self-defense or defense of his dwelling could occur, leading to the death of one of the co-perpetrators. Layman v. State, 17 N.E.3d at 962 (citing Ind. Code §35-41-3-2 (defense of dwelling) and Indiana Constitution Article I, §32 (conferring the right to bear arms for persons to defend themselves)). The language in the felonymurder statute about killing another person while committing an underlying felony is not restricted to situations where the person committing the felony kills another person. Id. (citing Palmer v. State, 704 N.E.2d 124, 126 (Ind. 1999)). The language applies equally to a felon who “contributes to the death of any person,” even if the person doing the killing is a police officer or a victim and the person killed is a co-conspirator. Id. The lead opinion concluded that Layman and Sparks forfeited their right to challenge the constitutionality of Ind. Code §31-30-1-4, which waived jurisdiction of their offenses to adult court, because they failed to file a pretrial motion to dismiss and did not object at trial. Id. at 961.

The court upheld the juveniles’ convictions, but found Layman’s 55-year sentence and Sparks’ 50-year sentence inappropriate. “Sentencing considerations for youthful offenders – particularly for juveniles – are not coextensive with those for adults.” Brown v. State, 10 N.E.3d 1, 5 (Ind. 2014) (quoting

Miller v. Alabama, 132 S.Ct. 2455, 2469 (2012)). While senseless, the murder in this case “was not particularly heinous.” Layman v. State, 17 N.E.3d at 963. Moreover, the juveniles’ history of marijuana usage is not necessarily indicative (continued on page 42)

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RG 12.14_RG 09.05 12/29/14 9:56 AM Page 42

CRIMINAL JUSTICE NOTES 9/14 continued from page 41 of bad character. Id. (quoting Brown v. State, 10 N.E.3d 1 (Ind. 2014)). Finally, the court noted that one of the original planners of the burglary, who pled guilty, received a 55-year sentence with 10 years suspended to probation. There was no difference in the relative culpability of defendants and their respective roles in this crime, and due process prohibits imposition of a more severe sentence when a defendant has chosen to stand trial rather than to plead guilty. Id. Thus, the court remanded with instructions to suspend 10 years of Layman’s sentence and five years of Sparks’ sentence to probation. Judge May concurred in result, disagreeing that the juveniles waived their challenge to the adult jurisdiction statute and taking issue with applying the “reasonably foreseeable” standard to juveniles. This is “problematic because juveniles do not ‘foresee’ like adults do.” Layman v. State, 17 N.E.3d at 968. Judge Kirsch, dissenting, expressed his belief that the tragic death of the co-perpetrator in this case was not reasonably foreseeable

and, in doing so, distinguished the Indiana Supreme Court decisions in Palmer and Jenkins v. State, 726 N.E.2d 268, 271 (Ind. 2000). Id. at 970. The Indiana Supreme Court has scheduled oral arguments in this case to consider whether to grant transfer.

Discovery – questions leading to admissible evidence Indiana Trial Rule 26(B)(1), which applies to criminal cases, provides in relevant part that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action … . It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” In Hall v. State, 15 N.E.3d 1107 (Ind. Ct. App. 2014), trans. granted, the trial court abused its discretion when it denied Marq Hall’s motion to compel a witness to answer a deposition question about an alleged prior false accusa-

tion of sexual misconduct made by her daughter, who was the alleged victim. Hall was charged with class A felony molestation. During a deposition of the alleged victim’s mother, Hall asked the mother about an incident in Kentucky in which the alleged victim made a similar accusation as the instant case. The mother had mentioned the incident to Hall in a phone conversation, but did not provide any details. In the deposition, the mother refused to answer the question. Hall certified the question and filed a Motion to Compel the mother to answer the question. The trial court erroneously denied the motion. Id. at 1119. Discussing State v. Walton, 715 N.E.2d 824 (Ind. 1999), the court noted that prior false accusations of sexual misconduct are admissible. Depending on the answer to the posed question, the prior incident in Kentucky could be sufficiently similar to the instant case to constitute an admissible prior false accusation. Thus, the question was proper, and Hall’s convictions were reversed on other grounds. On Dec. 4, the Indiana Supreme Court granted transfer in this case, thus vacating the Court of Appeals opinion.

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The website address will continue to be www.inbar.org




9/20/2014 ISBA Service Committee sponsors second “Annual Day of Service”

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10/8/2014 >> 10/10/2014 2014 ISBA Annual Meeting

9/18/2014 Indiana State Bar Association announces Morris Dees as keynote speaker

10/9/2014 Elder Law Section Holiday Party 10/13/2014 "Talk to a Lawyer Today" Prep CLE

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RG 12.14_RG 09.05 12/29/14 9:56 AM Page 45

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

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

STEVE TUCHMAN, IMMIGRATION. Experienced practitioner for statewide referrals, consultation and co-counsel positions. Lewis & Kappes, P.C., 317/639-1210, STuchman@ Lewis-Kappes.com

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

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

Special Services

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

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


MEDIATION TRAINING: Certified 40hour Domestic Relations Mediation Course, July 17-21, 2015, Fort Wayne. This course sells out. Register at JanetMitchellMediator.com, 260/4837660 or janetmitchell@mediate.com.

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

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

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

R. Patrick Magrath Alcorn, Goering & Sage, LLP 1-800-330-8765 magrath@agslawyers.com APPRAISALS

Stamp & Coin Collections 30 Years Experience Knight Coin & Stamp 237 Main St., Hobart, IN 46342

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Stone Law Office & Legal Research 26 W. 8th St., P.O. Box 1322 Anderson, IN 46015

765/644-0331 800/879-6329 765/644-2629 (fax) info@stone-law.net David W. Stone IV Attorney

Cynthia A. Eggert Paralegal



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By Bill Brooks

Dees continues to tilt against tyrants



orris Dees knows how to tell a tale, spin a yarn – although his stories aren’t fanciful. Instead, they are from the cloth of American history.


The co-founder of the Southern Poverty Law Center brought his soft Alabama drawl, his sly sense of humor and his passion for justice with him when he came north to address the fall meeting of the Indiana State Bar Association in October. And because “The Rule of Law” was the theme of the State Bar’s 118th Annual Meeting, there was no better possible speaker than Morris Dees, the lawyer known for obtaining landmark victories and unprecedented financial awards against the Ku Klux Klan – awards that crippled the Klan and other notorious hate groups. But it was the past that Dees came to Indianapolis to discuss. Rather, he used the Magna Carta, a focal point of the ISBA conference, to issue a warning about a new breed of tyrants, those who would “get rid of the rule of law … and bar the courthouse doors to the average citizen.” The tyrants, Dees said, are American corporations that “do not want the average citizen to be able to go to court,” doing so by, often without the public’s notice, making consumers sign arbitration agreements when they purchase their products, from automobiles to cell phones. Dees said he respects the concepts of arbitration and mediation, but in this case “it’s wrong. It violates the rule of law.” He said the practice violates the Seventh Amendment, the right to a jury trial in civil cases – a right with roots in the Magna Carta. He said to waive that right a person should sign a “knowing waiver,” hardly the case in the fine print of purchase agreements. Because of such signed waivers, he said, judges are granting summary judgments to corporations, “kicking justice to the curb.” The celebrated attorney, an ABA Medal winner whose trophy case could be as big as one in the University of Alabama football stadium, spoke about John Adams, the Founding Father who late in his life would say that perhaps his proudest moment was his successful defense of British soldiers who took part in the Boston Massacre – despite the great personal risk he took in the time leading up to the revolution he would help champion. Dees quoted Adams: “Because I made sure the rule of law and the jury – and not the mob – would rule in the Colonies.” Media consultant Laying out a challenge to the and freelance writer Indianapolis, Ind. attorneys in the room, Dees would RES GESTÆ • DECEMBER 2014

continue, “The work of justice continues. It didn’t end with Martin Luther King Jr. It didn’t end with the Civil Rights Act. And although he noted that the Voting Rights Act – what he called the Second American Revolution – would celebrate its 50th anniversary next year, “it hasn’t changed much.” Challenges remain. That point, he said, was driven home to him in the early 1980s when the Southern Poverty Law Center was called upon to help some hardworking Vietnamese fishermen, refugees of the Vietnam War, who were outperforming the established fishermen. The refugees’ success resulted in harassment, their boats burned. It was not an easy battle, Dees said, nor was it easy to convince the refugees to rely on the American legal system. But Dees did exactly that, convincing them that “America is a nation of laws,” that our nation’s core value is “protecting the rights of the minority when the majority is violating them.” The battle, in fact, was won on behalf of the Vietnamese refugees, Dees said as he recounted, using vivid imagery hinting at courtroom eloquence, the morning the underdog fishermen took part in a traditional blessing of the fleet, “as one boat after another emerged from the fog to be blessed.” As the fog lifted, Dees saw their faces, “as these folks found their place at America’s table, helping to build that table – as immigrants have done for the greatness of this nation. “I was proud to be their lawyer, proud to be an American, and proud to see the American justice system at work.” And then he further challenged his enraptured audience. “We don’t all practice civil rights law,” he said, “but in so many ways, pro bono and otherwise, you can help the cause of justice.” Because, Dees said, “Lawyers hold the keys to the gates of justice. That’s not a light obligation.”

Profile for Indiana State Bar Association

Res Gestae - December 2014  

December 2014 edition of Res Gestae, the journal of the Indiana State Bar Association

Res Gestae - December 2014  

December 2014 edition of Res Gestae, the journal of the Indiana State Bar Association

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