The Indiana Supreme Court has posted its opinion in League of Women Voters v. Rokita.

Determining that this case presents only facial challenges to the constitutionality of the Voter ID Law, we now affirm the trial court’s dismissal of the complaint, but without prejudice to future as-applied challenges by any voter unlawfully prevented from exercising the right to vote.

I’m still reading it, so I will probably update this in a bit.

Update

The Voter ID Law’s requirement that an in-person voter present a government-issued photo identification card containing an expiration date is merely regulatory in nature.

. . .

[T]he plaintiffs generally contend that the photo identification requirement is not reasonably related to the inherent characteristics that distinguish these two classifications of voters. The Voter ID Law requires proof of identification for in-person voters but not for persons who vote by mailing in an absentee ballot. The plaintiffs argue that these two classifications are distinguished on the basis that mail-in absentee ballots require heightened security and that this difference does not rationally support imposing additional identification requirements upon in-person voters. They also assert that the preferential treatment accorded mail-in absentee voters is not reasonably related to the distinctions between the classes.

I, frankly, can’t parse this sentence, but the Supreme Court responds:

[F]ocus on the “purpose” of the Law is not determinative. . . . [past case law] “requires only that . . . ‘the disparate treatment accorded by the legislation,’ not the purposes of the legislation, ‘be reasonably related to the inherent characteristics which distinguish the unequally treated classes.'”

(Emphasis in the original). More importantly, the Supreme Court thinks, it is acceptable to closely scrutinize in-person voters and not absentee voters because imposing similar identification requirements on absentee votes would be hard.

We find that not requiring photo identification for mail-in absentee voters is reasonably related to the inherent distinctions between such voters and those voting in person. We decline to find that the Voter ID Law’s failure to require photo identification of mail-in absentee voters violates the Indiana Equal Privileges and Immunities Clause.

The majority opinion is a little odd in that, while it mentions federal litigation a lot; I did not see where it directly addressed the reasoning of the Indiana Court of Appeals opinion except to note in passing that the opinion was vacated by operation of the Rules of Appellate procedure. Justice Boehm’s dissent alludes to this. Among other things, he also comments:

The photo ID cannot be justified as a registration requirement for a second reason: some of the restrictions placed on obtaining a state-issued ID do not address the legitimate concerns of preventing voter fraud. The process of obtaining a photo ID is the product of a regulatory scheme that has nothing to do with voter fraud. Its requirements were originally designed to regulate motor vehicle operators, and have now been expanded to include elaborate provisions aimed at limiting access to many facilities, for example commercial air travel, for national security reasons. Moreover, a photo ID is not required in the process of registering to vote, nor is a photo ID provided to a person who registers to vote.
. . .
[The Voter ID law] is also underinclusive because, in addition to carrying burdens unnecessary to a voter registration law, it fails to address the most obvious potentials for abuse of the registration process. To the extent we have instances of voter fraud, they have been in the use of absentee ballots that are not subject to the photo ID requirement, not in instances of voters appearing at the polls claiming to be someone they are not.

He also points out that the process should not just be subject to challenge by those who have been disenfranchised. The disenfranchisement of some affects us all in that we all have to live with the results of the vote.

The Indiana Supreme Court issued a decision in the wide-ranging litigation involving the Indianapolis-Marion County Public Library. (It seems to be employing so many lawyers, I’m a little put out that I haven’t gotten involved somehow.) Today’s decision provided a thorough discussion of the “economic loss doctrine” in Indiana.

The gist of the economic loss doctrine is that contract law, and not tort law, will govern a case involving “purely economic” losses. Judge Posner has opined that the doctrine is misnamed and ought to be called the “commercial loss” doctrine. Basically if the alleged deficiency has not caused personal injury and has not damaged property (other than the property that was the subject of the transaction), you can’t get tort damages which can be a lot more wide ranging than contract damages.

Plaintiffs often gravitate toward negligence theories when commercial relations sour. Contracts tend to limit the potential for payoffs whereas tort damages tend to encompass the broad spectrum of injuries that are “reasonably foreseeable.”

In these cases where there is no injury to person or property (other than the property which was the subject of the transaction), limiting the plaintiff to contractual damages has been deemed superior “because recovery in tort would allow him to circumvent the seller?s effective limitation or exclusion of warranties under the UCC, and subject[ ] manufacturers to liability for damages of unknown and unlimited scope.” Additionally, “a second justification for the economic loss rule is that “[l]iability should not be imposed when it creates a potential for liability that is so uncertain in time, class, or amount that [a defendant should not] fairly or practically be expected to account for the potential liability when un-dertaking the conduct that gives rise to” it.

Basically, the parties entering into a commercial transaction should be allowed to use their contracts to allocate risk in advance of the transaction.

In a case entitled Wilson v. Isaacs, the Indiana Supreme Court continues a line of cases that erodes immunity protection for law enforcement officers. Basically, if there is an applicable statute that sets a standard of care, the Indiana courts will ignore a statute that otherwise provides immunity to law enforcement officers.

I was opposed to this line of thinking back in 2006 and 2007, and I still am. I think it ignores past precedent and gets the analysis backward. The Supreme Court hasn’t really mentioned its past statements that immunity assumes negligence but precludes liability anyway. It is only after a determination is made that a governmental defendant is not immune under the ITCA that a court undertakes the analysis of whether a duty exists under the circumstances.

That was with respect to the previous decisions having to do with police liability when a third party was injured during a high speed chase. Today’s decision has to do with immunity when an officer uses force to apprehend a suspect. Immunity is provided by IC 34-13-3-3(8):

A governmental entity or an employee acting within the scope of the employee’s employment is not liable if a loss results from . . . the adoption and enforcement of or failure to adopt or enforce a law[.]

Today, the Supreme Court held that this immunity is limited by the use of force statute, IC 35-41-3-3(b):

A law enforcement officer is justified in using reasonable force if the officer reasonably believes that the force is necessary to effect a lawful arrest.

In other words if the force used was unreasonable or, I suppose, the belief held by the officer is unreasonable, then there is no immunity. It’s up to a jury to decide what is or is not reasonable. Read broadly, this decision subjects officers to a simple negligence standard as determined by a jury in hindsight. From a liability standpoint, this encourages officers to fail to enforce the laws – immunity is still intact for failing to enforce the law.

There is probably a narrower interpretation that could still be imposed by the courts analyzing this decision. That interpretation would still allow immunity for use of force that fell below the Fourth Amendment’s “excessive force” threshold. This is a higher bar than simple negligence. (See e.g.)

This would be more workable than subjecting officers to a jury trial for every accusation leveled against them by disgruntled arrestees. The better bet would probably be for the General Assembly to specify exactly the immunity available to officers attempting to enforce the law.

I have written any number of posts on the subject of judicial mandates for county governments to pay for court funding desired by trial court judges. Generally, I have been struck by the uneven playing field as between judges and other county department heads seeking county funds for their departments. Part of the disparity comes from the fact that judges aren’t, strictly speaking, county department heads — they are state officials; but they are supported by county employees, use county facilities, and in an administrative sense look very much like county department heads. Other department heads cannot just write up an order commanding the county council to appropriate money for them. In fairness, most trial court judges exhaust more traditional methods before attempting this. (Just brainstorming here before my coffee, but I wonder if it would make sense to give judges their own taxing authority to fund their mandates; making sure that the source of the mandate and tax are properly noted on the tax bill so they are spelled out pretty plainly come election time.)

In any event, the Indiana Supreme Court has issued an opinion in a mandate case coming out of St. Joseph County. Without any great recent study of the opinions, my sense has been that judges ruling on the reasonableness of another judge’s mandate has tended to make the cases look like the scales were tilted in favor of a mandate’s success. But, in this case, the Supreme Court pruned back Judge Nemeth’s mandate a bit. It is the first mandate decision issued by the state supreme court since the modification of Trial Rule 60.5 governing mandates.

The open:

Thousands of Hoosiers of every kind and station come to Indiana?s trial courts each day to vindicate their legal rights and seek protection for their nearest and dearest interests. The con-stitutions and laws of our land demand that trial courts and their judges have the resources they need to resolve these cases promptly and fairly.

Indiana law imposes on county government the obligation for funding the majority of court operations. County government also has the obligation for funding many other important services. These are challenging obligations in any circumstances and they are particularly difficult in the present.

Just to editorialize a bit more – I sometimes get the sense that judges issuing mandates believe their services are more important than those provided by other parts of the county. Maybe they are, but I haven’t seen much in the way of discussion about that proposition. It seems to be a starting assumption in these cases.

In this case, Judge Nemeth issued three mandates. Mandate 1 declared that the undeveloped eastern half of a piece of property adjacent to the local juvenile justice center was necessary for the effective administration of juvenile justice and prohibited the county from selling it to someone else – most notably Ivy Tech which was interested in potentially buying the property. Mandate 2 required the county commissioners and council to approve $300,000 in purchase orders relative to the renovation of the juvenile justice center. Mandate 3 orders $60,000 in raises for eight juvenile justice employees.

The review of mandate cases are a little different than normal review of a county government’s expenditure of funds. Typically a challenge to the county council’s appropriation of funds would simply look to whether the decision was rational. In other words, if they decide to appropriate or not appropriate money, that decision is given a lot of deference. However, when it’s a court challenging the decision not to appropriate funds and mandating funds be appropriated in a certain fashion, the review is “whether the funds ordered paid are reasonably necessary for the operation of the courts and any court-related functions and whether any specific fiscal or other go-vernmental interests are so severely and adversely affected by the payment as to require the order to be set aside.” So, a court is in a lot better starting position than other claimants for county money when it comes to judicial review of a county’s decision not to spend that money in a certain fashion.

The Supreme Court approved the mandate of funds related to Judge Nemeth’s claim that the day reporting program needed to be expanded in response to a previous budget cut that required elimination of a portion of the juvenile detention capacity. This was approved even without evidence of an actual expansion of day reporting participants because it was reasonable to conclude that closing detention facilities could lead to an increase in day reporting sentences and that the increase would materialize if day reporting had expanded capacity. Sort of an “If you build it, they will come” concept.

The Supreme Court also rejected the Commissioners argument that an automobile for the detention center wasn’t within a judge’s mandate authority because such an automobile wasn’t related to the operation of a court. The Supreme Court reasoned that a detention center automobile was “court-related.” “Because the court operates the juvenile detention facility at the Center, the care of those children, including their safe, reliable transportation for medical and dental services, is a court-related function for purposes of T.R. 60.5.” The Supreme Court used the same rationale to support the judicial mandate that the County spend its money on a new washing machine and new carpet for the detention center.

The Supreme Court rejected expenditures related to creating a new court room for a senior judge to use full time. (Currently, the senior judge uses a court room not in use by one of the regular judges.) It cited the judicial case load statistics for the proposition that the case load had been essentially level over the past several years. It rejected the expenditures for ergonomic chairs for the judges.

With one exception, the Supreme Court rejected a series of mandated salary increases for juvenile detention center staff. While the resulting salaries may well have been reasonable in a general sense, the Supreme Court – with one exception – determined that the judge did not carry his burden to show that similarly situated employees in nearby counties (for example) earned more or that the raises were necessary to retain qualified employees. (In a down economy, it’s probably tough to show that employees would actually leave for other jobs, particularly when you factor in benefits of public sector employment such as regular hours and health benefits.) The lone exception was the the Supreme Court approved a mandated raise for a bookkeeper making $27k per year in 2008.

With respect to the mandate that the county not dispose of unused land adjacent to the juvenile detention center, the special judge at the trial level dismissed that mandate concluding that, as the land was not being used presently but only represented a potential use for the judiciary in the future, it would be difficult to conclude that the mandate was necessary to assure that the court function at a reasonable rate and in a dutiful manner. The Supreme Court did not specifically address that conclusion but took Judge Nemeth at his word that, if allowed to present evidence, he could show that preventing the Commissioners from selling that county land was necessary for the operation of court or court-related functions. Therefore, the order of dismissal of that mandate was vacated and remanded for trial.

Finally, the Supreme Court approved an award of attorney’s fees for Judge Nemeth’s attorney. The fees seemed in-line for what I’d expect on a case of this nature (about $18k), but I did find it interesting that the Supreme Court approved attorney’s fees for work that preceded the mandate, leading up to its actual issuance.

The mandate procedure will ensure that courts are almost always the squeakiest wheel, getting greased when counties allocate their (ever more) limited funds. I don’t know if it’s the right answer, but I think the General Assembly should give at least some thought to making courts state-funded entities. The judge is already regarded as a state employee. I suspect we’d see legislation on mandates in short order if these judicial mandates were coming out of the State’s general fund rather than out of county funds.

My bias is admittedly in favor of local government. I just work with our county too much to be entirely objective here. And I don’t think judges are inclined to use this power frivolously or for matters that are unimportant. But, I do think that other county department heads are, by and large, equally judicious with their funding requests and also have functions that are important. The county fiscal body is charged with weighing these requests and functions against the limited resources of local tax dollars. Having one aspect of county government that can do an end run around the county fiscal body creates an imbalance.

Sophia Voravong has an article about the criminal appeal (pdf) of Jeffrey Akard (h/t Indiana Law Blog) that backfired on him. (As luck would have it, I had a brief and relatively inconsequential encounter with Mr. Akard, defending against a civil complaint he filed.)

The upshot is that, for the first time anyone can remember, the Court of Appeals used its discretion to increase a criminal defendant’s sentence on appeal. The Court of Appeals has maintained that it had the authority to revise a sentence up or down on review, but to date had only used that authority to revise it downward. It had noted that it would take an extraordinary case to revise a sentence the other way. Apparently Mr. Akard presented just such a case. They revised it upward from 93 years to 118 years. (And this will be served after he finishes a 14 year federal sentence for possession of child pornography.)

The facts of the case described in the Court of Appeals decision paints the picture of a sick s.o.b., involving abduction, rape, tasering, dressing his victim up to look like a child, and a number of other twisted elements.

Going forward, it will be interesting to see if it affects the eagerness of criminal defendants to appeal their sentences. In the past, there has been a sense that they have nothing to lose. Now, there might be at least an element of cautiousness about whether an appeal could actually increase their sentence.

Garnishment is one of the tools available to a judgment creditor in Indiana for collecting on a judgment. The typical situation is for a judgment debtor to be employed and receive a fairly standard, weekly or bi-weekly paycheck. In that situation, a judgment creditor can usually get 25% of the debtor’s net pay (or the amount by which the net pay exceeds 30 * the federal minimum wage, whichever is less.) This is accomplished by getting a court order instructing the employer to withhold the appropriate amount from the debtor’s paycheck and send it to the clerk of the court who will in turn remit it to the judgment creditor.

In the past, a fair number of employers would avoid dealing with a garnishment by indicating that the individual was not, in fact, an employee, but was an independent contractor or indicating that the person didn’t receive a wage but, instead, worked on commission.

In 2007, the Indiana Court of Appeals seems to have closed these methods for an employer to avoid honoring a garnishment order. The case is Indiana Surgical Specialists v. Griffin (pdf). This case stands for the proposition that the nature of the earnings being passed from garnishee to judgment debtor, whether they be wages, salary, commission, or whatever, is not important. Similarly, the relationship between garnishee and judgment debtor as employee, independent contractor, or whatever is also not important. Rather, what is important is that there is compensation and that it’s paid from garnishee to judgment debtor periodically. If there are earnings paid periodically, they are subject to a garnishment order.

Niki Kelly, writing for the Fort Wayne Journal Gazette, has an article about the state’s long running, expensive, and, so far, not terribly successful, efforts to implement a state-wide computer system for its courts. (h/t Indiana Law Blog).

The project is now at least seven years old and has no firm completion date or budget.

Plans to computerize records and link more than 400 civil and criminal courts around Indiana started in 2002. But after spending millions of dollars, only a few dozen courts in nine counties have hooked on.

Senator Kenley plans to take a look at what is going on. Ironically, the court computer system is named “Odyssey.” Readers might recall the Odyssey as a tale where the hero wanders for 10 years just to get back home.

The goal of the project is ambitious: equip all Indiana courts and clerks with a 21st-century computer system to manage cases. The system will also connect the various court systems with one another, as well as police, state agencies and the public.

This might be part of the problem — a desire to make the system all things to all people. One day it might get implemented and be pretty slick, but mainly it’s been something that lawyers and courts have been aware was in the works but not making any discernible progress. That impression probably isn’t entirely accurate. Some version of it has been rolled out in a few counties – DeKalb, Floyd, Monroe, Tipton, and Warren.

One of the big problems was hiring Computer Associates, initially. They and their software couldn’t do the job, and that contract was canceled in 2005. But, even that’s getting to be ancient history. Tyler Technologies is now working on the project and has apparently been paid $5.5 million of the $7.7 million it’s to be paid for software licensing. The money comes out of a $7 document filing fee paid in most civil and criminal cases. Those fees generate about $7 million in revenue per year. The Chief Justice asked for the fee to be raised this year, but the General Assembly declined.

Another problem is that data currently being accumulated on existing county court systems will have to be made compatible with the new system. The longer the delays in implementing the new system, the tougher this problem becomes. In fact, I believe some counties held off on implementing computer systems at all for fear of having wasted money when the state system came along. I believe White County, for example, held off on computerizing its operations for a long time out of this fear. If memory serves, the Computer Associates contract cancellation marked the point at which White County could no longer keep waiting. According to the Journal Gazette article, LaGrange County seems to have been in much the same situation.

But here is an interesting wrinkle:

Mathias and DePrez acknowledged others are resisting as well. “Nobody likes change,” Mathias said. “Some are concerned because we are trying to build a system that enforces statutes and rules.”

For instance, he said some counties ignore a requirement to calculate interest on judgments, while others calculate interest in a different manner. Odyssey will standardize those and other facets of the system.

The part about interest on judgments is true. Every civil money judgment in Indiana accrues interest at the rate of 8% per year by statute. Most courts don’t track interest at all and simply have the judgment holder keep track. If there is some dispute between judgment creditor and debtor on the subject of interest, courts will entertain a hearing on the matter, but mostly there aren’t any disputes. But, some courts have been known to give judgment creditors a hard time about seeking to be paid for interest on the judgment and require arbitrary procedures be followed to have it imposed. Or, occasionally, Clerks’ offices will tell judgment debtors they have paid in full when they haven’t accounted for judgment interest.

Another issue where courts seem to diverge widely – and this might be an aside because I don’t know if the Odyssey system would fix this – is on the subject of charging for postage on sending out orders. For example, if I want to compel a judgment debtor to appear at a Proceeding Supplemental (a hearing where the judgment debtor appears and testifies to his or her income and assets), some courts are requiring pre-paid postage for sending out orders. Some are requiring the postage involved when sending it from their court to an out-of-county Sheriff. Really, they can be all over the map without any obvious authority or at least no local court rules having been promulgated. Uniformity in a lot of these cases would be welcome, though I don’t suspect you really need a terrifically expensive computer system to get it.

We lost an awfully good jurist today. Judge Alan Sharp, District Court Judge for the United States District Court, Northern District of Indiana died at his home today. He had been battling illness for quite some time and battling it pretty hard from what I could tell. I had the opportunity to conduct three oral arguments in front of Judge Sharp this year. He was still asking shrewd questions and issuing strongly researched opinions — the most recent of which, in my case, was issued about 2 weeks ago.

He started practicing law in Williamsport, Indiana in 1957, served on the Indiana Appeals Court from 1969 to 1973 and had served as a federal district court judge from 1973. My understanding is that his claim to fame as a practicing attorney was arguing an attorney’s fee claim under the Social Security Act all the way to the United States Supreme Court and winning on a 5-3 decision in 1968.

Judge Sharp was born in Washington, D.C. and grew up in Brown County, Indiana. He earned his undergraduate degree from George Washington University in 1954, his law degree from Indiana University in 1957, and his Masters Degree in History from Butler University in 1986. He was awarded an honorary doctor of civil laws by Indiana State University. Judge Sharp practiced law in Williamsport, Indiana from 1957 to 1968 before serving on the Indiana Appellate Court from 1969 to 1973. He served in the United States Air Force Reserve from 1957 to 1984, achieving the rank of Lieutenant Colonel. Judge Sharp was an avid student of history as well as a judge. He taught at Butler University, Indiana University at South Bend, and Milligan College in Milligan, Tennessee. He also wrote a variety of articles on law and history that were published in books and magazines.

Rest in peace, Judge Sharp. We’ll miss you.

As a student of the law, I think the Court of Appeals got the case of Button v. James correct; but as a creditor’s rights attorney (as we leg breakers call ourselves when we’re feeling righteous), I certainly appreciate Judge Goffinet’s efforts.

The matter was before the court on a proceeding supplemental to a judgment entered way back during the first term of the first Bush administration — possibly even before the towers fell. In 2001, a judgment was entered against Herman Button for a little under $2,000. On January 22, 2009, Button was asked to testify as to his income and assets.

The Court: So we’re here today for you to explain what you’re going to do to pay this off.

Mr. Button: I can’t.

The Court: Okay, but you’re going to.

Mr. Button: I can’t do it.

The Court: Okay, Mr. Button.

Mr. Button: Yes, Ma’am.

The Court: For some reason we’re not communicating. Alright, you’re not hearing me for some reason. I am telling you that, yes, you will. You’re going to tell me how you’re going to go about doing that. And I’m not going to accept I cannot, and if the next words out of your mouth are I cannot, Mr. Button, then you’ll set with Mr. Glenn at the Sheriff’s Department until you find a way that, yes, you can. So what kind of payments can you make to pay this down?

Mr. Button: Five dollars ($5.00) a month.

The Court: Five dollars ($5.00) a month is—I’m going to be an old woman before this is ever paid off.

Mr. Button: That’s what I can afford, ma’am. I live on social security disability. I’ve got to pay my rent and my lights and my gas.

The Court: I’m going to order you pay twenty-five dollars ($25.00) a month until this is paid off. I’m going to show that we are to come back March 12, at 1 o’clock, at which time Miss James is going to tell me that she has already received fifty dollars ($50.00) towards this. Okay.

Mr. Button: Yeah.

The Court: Good luck to you, Mr. Button.

The court of appeals overturned the court’s order and, based purely on the record described by the court, that was entirely appropriate. There are no debtor’s prisons, and you can’t hold someone in contempt for failing to apply exempt assets to a judgment.

However, in a lot of these cases, context means a lot — as a practical matter for the judge if not in a strictly legal sense. I can’t speak as to Mr. Button because I have no idea of his situation. But, in a lot of these smaller courts in particular, the judges know the people involved and remember a fair number of even the relatively minor cases. It would not be unusual if a defendant had been in and out of court for the past 8 years proclaiming poverty and not making a bit of effort to satisfy the debt. It would also not be unusual if the debtor whose only admitted source of income was disability was, by outward appearances anyway, able bodied. In those circumstances, it would not take much more to make a judge surly than, say, evidence that the debtor was spending $100 per month or more on a pack-a-day cigarette habit or getting in trouble in other cases after drinking at a bar somewhere.

Again, I have no idea of Mr. Button’s particular situation, but none of these things I have described are all that unusual in collections cases. And, if the creditor — one Ms. James in this case — was not represented by counsel, I can see where a judge might go a bit beyond what the law strictly allows in terms of trying to help get the judgment paid.

Oh, and the Court of Appeals did not address (because it really didn’t have to) Mr. Button’s argument that he could not be compelled to make another appearance “absent a change in his circumstances.” I think that’s just wrong. One of the primary purposes of these proceedings is to obtain evidence about those circumstances. Some debtors, as it turns out, are not religious about reporting favorable changes in their circumstances to their creditors.