Whenever I come across IC 32-21-6, I have to stop and read it. If nothing else, the title “psychologically affected properties” is unusual. Then, when you get into it, the statute is pretty random.

It defines a “psychologically affected property” as real estate where:
1) an occupant had HIV; or
2) where an individual died; or
3) the site of a felony, criminal gang activity, discharge of a firearm involving a police officer, or illegal manufacture of a controlled substance.

If a prospective purchaser or tenant asks directly, the owner or owner’s agent has to disclose these events. But if the prospective purchaser or tenant doesn’t ask, there is no requirement to tell. There does not seem to be a penalty attached for failure to disclose under the statute.

By and large, when I handle negligence cases, I do so as a defense attorney. So, I have a definite bias when I disagree with the Court of Appeal’s decision today in Sparks v. White (pdf). In that case, the Court of Appeals upheld a trial court’s decision to deny summary judgment to property owners where the property owners had a brick mailbox about 3 feet off the highway. A motorist left the road for reasons that were not explained by the Plaintiff and struck the mailbox. The court decided that it would be legally appropriate if a jury were to decide that the property owner should anticipate that the motorist might leave the road and that the mailbox was built too strong and, therefore, that the property owners owed the motorist money for her injuries. The Court of Appeals cited a similar decision where they held that a property owner could be found liable by a jury for a fence post 6 feet off the property that was sturdier than necessary.

In my mind, summary judgment should have been appropriate in these cases and the property owners shouldn’t be subjected to trial by jury. Juries are to decide fact issues. There don’t appear to be any issues of fact in these cases; only value judgments to be imposed on those facts – namely whether the post or the mailbox was “too strong.” In particular, the mailbox couldn’t have been placed much further back from the road. Postal regulations required it to be accessible by a mail truck from the road. Maybe it’s just me, but I don’t think a property owner should be required to anticipate a motorist will leave the road and drive on the owner’s property.

I wonder if the plaintiffs will be required to prove by a preponderance of the evidence what the injuries would have been with obstructions that weren’t “too strong” versus the obstructions that were actually in place. Because, if you’re allowed to have a mailbox in that location, it is going to cause some impact. The property owner should not be responsible for injuries that would have been caused anyway up to that level of impact. Therefore, at the very least, the plaintiff should have a fairly demanding burden of proof for showing which injuries were in fact caused by the “excess” impact. Otherwise, the property owner is potentially liable for hundreds of thousands of dollars for the egregious act of having a mailbox.

If you want to sue a governmental entity for its negligence, you must first file a notice of tort claim with the governing body of the governmental entity. One particularly obnoxious practice taken up by a few personal injury attorneys is to send out boiler plate notices to all governmental entities in the vicinity of a motor vehicle accident where they represent an injured party.

Say, for example, a motorist runs a stop sign and turns in front of another person causing an injury on a state highway. These attorneys will send out notices of tort claim to the city, state, and county governments in which the road happens to be located. The notice will have a laundry list of alleged failures “negligence in design of the road” or “negligence in the design and placement of signage” etc. etc. — without even really checking to see which governmental entity actually controls the road in question; never mind checking whether any of these alleged defects actually exist or had anything at all to do with the accident. They just have a machine that churns out these notices. In response, the governmental unit has to open a file, notify its insurer, and incur other costs to monitor even completely baseless claims.

If the allegations in the notices were instead found in a civil complaint against the governmental entity, courts could deem them frivolous and impose sanctions. Among other things, an attorney filing pleadings is deemed to be certifying that there are good grounds to support the pleadings. It is not a very rigorous standard most of the time because courts want attorneys to have a lot of leeway to pursue legitimate claims on behalf of their clients. But, there are limits. Seems like there ought to be similar limits on notices of tort claims.

/s/An attorney for a governmental entity.

Michael Hoskins, writing for the Indiana Lawyer Daily, reports that Locke Reynolds, one of Indiana’s largest law firms will be merging with Louisville based Frost, Brown, Todd. Earlier this year, Sommer Barnard merged with Cincinnati-based Taft Stettinius & Hollister. The Locke Reynolds merger announcement is hot on the heels of rumors that Ice Miller will be merging with Louisville-based Greenebaum Doll & McDonald.

Readers will be relieve to know that Hoffman, Luhman, & Masson, PC will stand firm (no pun intended) against the encroaching Louisville menace, and does not presently have any merger plans. (All reasonable offers, however, will be entertained.)

Updating this prior entry, a reader has brought some material to my attention indicating that the matter of judicial contempt powers, particularly with respect to whether contempt is direct or indirect, is more nuanced than the statutory language would suggest. Some of the tension comes from the notion that certain powers are inherent to the judiciary, beyond the power of the legislature to regulate. From the Civil Bench Book, published by the Indiana Judicial Center:

It is the prerogative of the courts of this state and not the legislature to define the conduct that constitutes a contempt of court. Among the inherent powers of the court is that of maintaining its dignity, securing obedience to its process and rules, rebuking interference with the conduct of business and punishing unseemly behavior. McIntire v. State, 223 N.E.2d 347 (1967). The legislature may not take away or materially impair the court’s contempt power, but the legislature does have the power to prescribe rules of practice and procedure. La Grange v. State, 153 N.E.2d 593 (1958), 69 A.L.R.2d 668. However, the contempt power may not be utilized to protect the personal or individual feelings of the judge. Grimm v. State, 162 N.E.2d 454 (1959). The courts are not limited to statutory definitions.

The distinction between direct and indirect contempt might not, therefore, be entirely statutory. The courts take the position that it is not. I do not know whether the legislature has offered a definitive opinion or what would happen if both branches fought for supremacy over the issue. In any case, according to the courts, the distinction focuses on two inquiries:

(1) whether the act stands in disregard of judicial authority, thereby threatening the integrity of the court and impeding its work and (2) whether the judge possessed immediate and personal knowledge of the contemptuous act. Nasser, 644 N.E.2d at 96. In addressing this second inquiry, the Nasser court explained:

For example, if an attorney berated a judge in front of the jurors before entering the courtroom, this would clearly disrupt the court proceedings. It would not, however, be considered direct contempt if presence in the courtroom was the determinative factor. Because knowledge is the critical issue, such an act can be summarily punished as direct contempt.

Id. at n.2. The court of appeals noted that the trial court judge did not gain full knowledge of the facts of Davidson’s contemptuous behavior until four days later. Therefore, the trial court judge did not meet the immediate personal knowledge prong of the two-part test of Hopping v. State, 637 N.E.2d 1294 (Ind. 1994) discussed in Davidson.

The distinction is an important one because an action for indirect contempt often requires the appointment of a special judge, whereas direct contempt requires the immediate action of the sitting judge. [Note: the appointment of a special judge is not called for where the case “grow[s] out of willfully resisting, hindering, delaying, or disobeying any lawful process or order of court.” Ind. Code § 34-47-3-7(b); Davidson v. State, 836 N.E.2d 1018, 1024 (Ind. Ct. App. 2005). (emphasis added)

So, which is it in the case of the Muncie attorney who filed the salacious affidavit? (The latest news report from this morning on which is here.) I’m still going to go with indirect contempt since the affidavit was written and executed outside of the knowledge of the judge, filed at a time when the judge could not and did not review it immediately, and reviewed by the judge when the court was closed and (due to the election) would be closed for another day. The element of immediacy just seems to be lacking from what I’ve read in the newspapers (admittedly a shaky source of information.) But, it’s important to note that the distinction is not solely a matter of statutory construction; but, rather, a matter where the case law has to be factored in as well.

I’m just happy this is taking place in Muncie, as many odd things seem to do, which is on the other side of the state from me.

Rick Yencer, writing for the Muncie Star Press, has a follow up story on an attorney being incarcerated for contempt by a Jay Circuit Court judge acting, I believe, as a special judge in Grant County. Delaware County.

While seeking a change of judge, attorney Louis Denny had filed an affidavit on behalf of his client who has been charged with bribing a witness. The affidavit alleged that the judge, Brian Hutchison, patronized a prostitute and had possessed marijuana. Judge Hutchison then jailed Denny last week.

Denney, who receives work release privileges during weekdays to maintain his law practice, filed a writ of habeas corpus, claiming he and Hinds were illegally incarcerated.

“If this was direct contempt, we had a right for another judge to determine whether we were held in contempt,” said Denney.

That action was denied Wednesday by Delaware Circuit Court 4 Judge John Feick, saying the writ was not procedurally correct, because notice was not given to other parties in the action.

Seems to me that the question is whether this is direct contempt or indirect contempt. The former seems to apply more to immediate disturbances while court is in progress — someone starts yelling in open court, for example. The sitting judge can take immediate action. The latter, indirect contempt, would seem to apply in this case. Indirect contempt comes with a number of procedural protections, including notice and an opportunity to be heard, and of particular relevance, it would seem, in this case, provision for appointment of a special judge to consider the contempt.

IC 34-47-3-8(c) states:

The court against which the alleged contempt has been committed shall, at the time the rule to show cause is issued, nominate three (3) competent and disinterested persons, each of whom shall be an available judge or member of the Indiana bar, to be submitted to the parties in the action, from which the state, by the attorney general, and the defendant shall immediately strike off one (1) name each.

This would seem to be an important protection against a pissed off judge who jails someone because his feelings are hurt. Obviously a court needs the power to make sure its proceedings are not directly interrupted, and it can continue functioning – that’s why the immediate, direct contempt powers are available to a judge in limited circumstances. But, beyond that, if someone makes defamatory and false allegations against a judge, he or she should certainly have recourse. But, it’s pretty easy for someone to make such allegations against you or me, but we don’t get to summarily throw the person in jail. We have to go through a cumbersome legal process. I don’t think the judge gets to take a short cut in this situation.

An important caveat here is that I’m going solely on the material reported in the newspaper. It’s possible that there are additional facts that would make immediate jailing appropriate. The next question is what remedy might be available against a judge who jails a lawyer inappropriately. Judges have an enormous scope of immunity for actions they take on the bench; appropriately so, in most cases. But, if hypothetically, this is a case of a judge abusing his power because he was personally affronted, instead of making an honest mistake while dispassionately attempting to apply the law, there ought to be a remedy.

(Note my bias here: I’m a lawyer who wants to be able to argue vigorously on behalf of my client without fear that I’ll wind up in jail for doing so. Not that I’ve ever come within shouting distance of accusing a judge of criminal activity.)

Update Here is a copy of the court’s order “finding direct criminal contempt.” (h/t Indiana Law Blog) According to the order, the contemptuous action was filing of “contumacious, salacious, and defamatory statements” that the judge did not have time to review until after close of business hours on November 5, 2008. So, the contempt did not occur in open court, one of the requirements of IC 34-47-2-1. In particular, one of the prerequisites for direct contempt is that the offending act occur while the court is “is open for and engaged in the transaction of business.”

Unless there is another basis of authority for a judge to impose a sentence for direct contempt of court for reasons which do not satisfy the requirements of IC 34-47-2-1, I just don’t see the basis for this judge’s exercise of authority. What am I missing?