Excellent piece of reporting by Maureen Hayden, writing for CNHI. She has an article entitled “prison officials say lighter sentences aren’t saving money.” Sentencing reform has reduced DOC sentences by 17%. However, the Department of Corrections says this isn’t saving any money. That 17% represents offenders who would have been incarcerated in a DOC facility under the old sentencing law but, under the new law, are serving time either in a county jail or through a county community corrections program. One premise of the new sentencing was that it was less costly to have offenders serve time in local facilities or programs and that the cost savings at DOC could be used to compensate the locals for the extra burdens. But, pursuant to a required report, the DOC says no extra money can be cut from its budget despite having 5,000 fewer inmates.

DOC says that costs are up $400,000 through six months. The state pays $35 per day to house a low level offender in a county jail compared to, the DOC says, $10 per day in a state facility. Senator Steele who chaired the Senate’s judiciary committee thinks these numbers are bogus. “Two years ago, when Correction Department officials asked lawmakers for money, they reported it cost about $60 a day to house a state prisoner.” Reading Hayden’s report, there seems to be a suspicion that DOC is getting creative with its numbers because it doesn’t want to give up money.

Corrections officials don’t see it that way. The department’s legislative director, Jon Ferguson, said the $10-a-day rate used in the report is a “marginal per diem” that doesn’t include the fixed, operational costs associated with running big prisons. And the number of those prison facilities the state operates hasn’t gone down since the sentencing reform law was put into place.

This is troublesome because — while part of the rationale for reform was that keeping offenders close to home was better for communities and reform prospects — a big part of the rationale was that keeping offenders out of state facilities would result in cost savings.

The 7th Circuit issued an opinion (h/t Indiana Law Blog) overturning a conviction where the police officer’s initial stop of the defendant was based on Indiana’s texting-while-driving law, IC 9-21-8-59, the relevant part of which reads:

(a) A person may not use a telecommunications device to:(1) type a text message or an electronic mail message;(2) transmit a text message or an electronic mail message; or (3) read a text message or an electronic mail message;while operating a moving motor vehicle unless the device is used in conjunction with hands free or voice operated technology, or unless the device is used to call 911 to report a bona fide emergency.

Essentially, the officer stopped the suspect because the guy was messing with his phone on the highway. After the stop, the officer found 5 pounds of heroin in the guy’s car. But, it turned out the suspect wasn’t texting; rather, he was looking for music — which, as the law is written, is not illegal. The 7th Circuit determined that the officer did not have probable cause to stop the car and, therefore, the search was illegal. The State argued that since the guy was looking at his phone, and not the road, while driving, the officer had probable cause to stop the vehicle. The 7th Circuit disagreed. The law only prohibits texting and looking at e-mail. That means there are a great number of legal activities in which the driver could have been engaged while looking at his phone (e.g. making and receiving phone calls, inputting addresses, reading driving directions and maps with GPS applications, reading news and weather programs, retrieving and playing music or audio books, surfing the Internet, playing video games—even watching movies or television.) The officer had no probable cause to believe the motorist was engaged in texting rather than one of those legal activities.

Back in 2009, I commented on a bill that had language similar to the language that ultimately passed:

This bill highlights some of the difficulties in drafting legislation. Sometimes it’s tough to keep up with technology. The bill changes the definition of “telecommunications device” to include “The term includes a: (1) wireless telephone; (2) personal digital assistant; (3) pager; or (4) text messaging device.” But, at times, you’ll find the difficulty of keeping up with new technology is really a matter of confusing the bottle with the wine. Often enough, even if the drafter recognizes this problem, there isn’t much to be done if the courts or the legislator are focused on the bottle.

In this case, the problem being addressed is the fact that the driver isn’t paying attention to the road. Whether the attention is focused on a text message, a cell phone, a book, a CD case, a map, or a screaming child isn’t terribly important in terms of the actual risk of driving while not paying attention. But, the way the politics are set up and probably the way the case law has developed, simply attempting to penalize “driving while distracted” probably would not be effective, even though that’s the real problem.

So, maybe back to the drawing board on this law.

The IBJ ran an interesting AP story on the subject of the measure of damages for an injured Mexican worker who was in the United States illegally. When you are injured through the negligence of someone else, the goal is to provide compensatory damages (money) in an amount that “makes you whole.” In other words, try to give you money for what you lost through the other person’s negligence. Future earnings is one element of those compensatory damages. The question in this case is whether it is appropriate to measure those future earnings in terms of what the man could make if he remained in and worked in the U.S. The basic measure of damages for impairment of lost earning capacity is the difference between the amount the plaintiff was capable of earning before the injury and the amount which he was capable of earning thereafter.

I can see this going either way. Companies already have an incentive to look the other way in terms of a worker’s legal status. They can often pay these folks less. Ruling that they can also pay less for a workplace injury if the person happens to be here illegally would compound the incentive. (It also raises a question about whether the company should have to pay more if the person comes from a place with more generous compensation.)

On the other hand, it would be difficult for the Courts to permit a presumption that damages should be based on the idea that a person will continue to engage in and profit from illegal activity. If you negligently injure a drug dealer, should there lost income be based on the idea that they would have continued their lucrative meth enterprise?

The Court of Appeals may be able to avoid addressing this one head on because the plaintiff in question has, since the injury, apparently become married to a U.S. citizen and is able to be here legally now.

The Court of Appeals issued an interesting 2-1 decision in the case of Marlow v. Better Bars, Inc. (pdf). The trial court had granted summary judgment to a bar in Mooresville (“the Bar”) that had served the plaintiff (“Marlow”). Marlow had been at the Bar until at least 1 a.m. when his co-workers left him there. At about 2:30 a.m., police officers were called to a White Castle where Marlow was causing some trouble in the drive through. The police made him stand outside of his car, handcuffed in front of a squad car while an officer moved Marlow’s car out of the drive through. As this was happening, Marlow fled the police, running out into State Road 67, where he was hit by two cars causing serious injury. At the hospital (shortly thereafter apparently), his BAC was .206% — and, at 5:17 a.m., his BAC was 0.158% (by way of comparison, it’s illegal to drive with more than .08% in your blood).

The Dram Shop Act makes it illegal for a bar to sell alcohol to a patron where the bartender knows the person is intoxicated. (It’s broader than that, but that’s sufficient for this case). All three judges agreed that summary judgment based on lack of evidence that the Bar knew Marlow was intoxicated was improper. Because Marlow was at the bar from at least 11:30 – 1:00 a.m., there was evidence that he had been served at the Bar, and, after 2:30 a.m., had a BAC of .206%, the Court found that a jury could legally conclude that the Bar served Marlow when the bartenders knew he was intoxicated.

The more interesting question, leading to the 2-1 split, was whether Marlow’s intentional criminal act of fleeing from the police was an intervening event that broke the chain of causation such that serving the alcohol was no longer a “proximate cause.” Even after 19 years of practicing law and 3 years of law school, I still have trouble with the precise meaning of “proximate cause.” The general notion is that causation never ends: one thing leads to another, on and on, from the beginning of time to the end. Ripples in a pond and all of that. At some point, you have to cut off legal liability for those rippling consequences. So, the common law created this notion that it’s not enough to merely be the cause of some bad thing — rather, you have to be the proximate cause of that bad thing. Where and how cause stops being proximate has always been a fuzzy line to me, and I think you see the judges wrestling with that notion here.

To be considered a proximate cause, the negligent act must have set in motion a chain of circumstances which, in natural and continuous sequence, led to the resulting injury. However, the willful, malicious criminal act of a third party constitutes an intervening act which breaks the causal chain between the alleged negligence and the resulting harm.

(Internal quotations and citations omitted). Both the majority and the dissent find support in the case of Fast Eddie’s v. Hall. In that case, summary judgment was appropriate where the bar served a patron who subsequently sexually assaulted and murdered a woman. The patron’s intentional criminal acts were the intervening cause of the woman’s death which broke the causal chain between the tavern’s negligence and the woman’s assault and death. The Court distinguished this from automobile accidents where taverns have been held liable for the damage caused by the drunk driver. “Unlike automobile accidents which occur as the result of alcoholic beverage consumption, assault and murder are intentional acts of volition which are the result of an assailant’s deliberate design . . . [whereas the drunk patron’s] criminal intent would have been present whether or not [he] was intoxicated.” The majority decision stated that they could not determine whether Marlow’s criminal intent to flee the police would have been present had he not been drunk. The dissent, on the other hand, thought that the Fast Eddie’s court had established that the chain of proximate cause was broken by the act of intentional volition advancing the drunk patron’s criminal design. In a drunk driving case, the drunk patron doesn’t mean to weave into oncoming traffic, it’s an accident — an accident made a lot more likely because of the intoxication. In the sexual assault/rape case, the rape isn’t an accident — it’s intentional.

And, of course, we have a lot of criminal cases (where some kind of culpable mental state is a required element) that tell us being drunk isn’t a defense.

I think what we have here is a legal system that is a lot more precise than the human condition, and the judges are struggling (not just in this case but with respect to alcohol use generally) to make the legal system yield the correct result. Some thoughts about competing interests in no particular order:

1. We want our crimes to be based on mental culpability and not just bad outcomes.
2. Alcohol has the potential to permit action without conscious thought but we don’t want to allow alcohol-induced lack of mental capacity to be used as a defense to criminal prosecution.
3. Taverns are profiting off of drunkenness and we don’t want them to externalize the costs of their business on innocent third parties.
4. We want the drunk to be personally responsible when it’s a question about whether they’ll go to jail or not. We don’t want the drunk to be personally responsible (or at least not solely financially responsible) when it’s a question of whether an injured person will be compensated for their injuries.
5. Holding taverns responsible for rapes and sexual assault feels like it’s going too far.
6. Saying that the rape and assault in the Fast Eddie’s case would have happened even without the alcohol may be true, but it also seems like an unsupported assertion for the purpose of creating a bright line where one doesn’t really exist.
7. Running into traffic to get away from the police feels a little more like a drunk driving accident and a little less like the rape and sexual assault, but the Court has to reconcile the intentional volition language from prior decisions.

I wouldn’t be surprised if the Bar attempts to take this one up to the Indiana Supreme Court.

The Indiana Law Blog has a post about a recent trial court decision determining that the Notre Dame police weren’t subject to the state public records law because they are part of the university and past legal decisions have held that the private university isn’t a public body subject to the public records law.

I think the right way to go is to find that the police force, because they are exercising public police powers, are a public agency. The trial court, in my opinion, was overly legalistic in its analysis. My take on the decision was that the trial court regarded itself as powerless to carve the police department out of the university generally as being subjected to public records laws. In part of its decision, the trial court discussed legislative acquiescence to prior decisions of public access counselors that found private universities aren’t subject to the access to public records act. (I’m not clear on whether those decisions had to do with requests for the private university police records.) In any event, the doctrine of legislative acquiescence is, frankly, dubious. Basically it means that if a court interprets legislation in a certain way and the legislature gives no sign one way or the other, courts will assume that the legislature agrees with the court decision. The more likely reality is that the legislators have no earthly idea what the courts have been up to. This is even more likely when dealing with the public access counselor and not the courts.

Today, the Indiana Supreme Court decided the case of Fishers Adolescent Catholic Enrichment Society, Inc. (FACES) v. Bridgewater and concluded that, because the Indiana Civil Rights Commission had no jurisdiction over a complaint, it never had power to do anything except dismiss that complaint and that, by extension, a retaliation claim based on the underlying complaint could not proceed either.

FACES was, in effect, a social group formed by homeschoolers. One of the kids was allergic to food that was being served at a masquerade ball being held as an alternative to Halloween. The group said that they wouldn’t ask the venue to provide anything else and told the parent of the allergic kid not to contact the venue but the kid could bring a meal from home. The kid’s parents filed a complaint with the Indiana Civil Rights Commission. The group kicked the kid out of the group. The ICRC’s Administrative Law Judge concluded:

that FACES did not commit an unlawful discriminatory practice because it had provided a reasonable accommodation for Mrs. Bridgewater’s daughter’s dietary needs—but that FACES did commit an unlawful discriminatory practice when it expelled the Bridgewater children after they filed the disability discrimination complaint. The administrative law judge ruled that Mrs. Bridgewater’s daughter should be awarded $5,000 in damages and that FACES should take corrective action.

The ICRC apparently reduced the damages somewhat but otherwise affirmed the ALJ. The Indiana Supreme Court found that the ICRC shouldn’t have been doing any of this because it doesn’t have jurisdiction.

The Indiana Civil Rights Law explicitly conditions the Commission’s exercise of its enforcement powers to incidents where a person has “engaged in an unlawful discriminatory practice.” To be “unlawful” under the [Indiana Civil Rights] Law, the discriminatory practice must relate to “the acquisition or sale of real estate, education, public accommodations, employment, or the extending of credit.” Ind. Code § 22-9-1-3(l) (emphasis added).

Education was the only one of those items at issue here, and the Supreme Court found that to read the statute broadly enough to conclude that this claim related to education would be to convert almost every occasion of parental guidance and training into an activity “related to education.” And, by extension, the Indiana Supreme Court determined that the retaliation claim should also fail inasmuch as the ICRC didn’t have jurisdiction in the first place. To hold otherwise would invite and incentivize the intimidating technique of bootstrapping a retaliation claim onto a meritless complaint alleging discrimination not subject to the [Indiana Civil Rights] Law.

I like legal fees more than the next guy, but I shudder a little to think of the fees that were spent in this matter that could have been saved by a prompt ICRC order stating, “this doesn’t belong here – take it somewhere else.” There were probably fees responding to an investigator, asking for a determination of no probable cause, possibly mediating the case, then at a hearing before an ALJ, then petitioning the ICRC for review, then going through the Court of Appeal process, then going to the Indiana Supreme Court. And these are big time Indianapolis lawyer fees, not the sort of reasonably priced, sound legal advice you get from, say, an attorney in Tippecanoe County.

The facts of the case are a mix of pharmacist privacy violation and good old fashioned baby mama drama. The trial happened awhile back, and the Court of Appeals upheld the verdict.

Short version of facts:

Plaintiff got her birth control filled at Walgreen for years. Peterson was having sex with her off and on. At some point, Peterson starts dating a Walgreen pharmacist named Withers. Plaintiff gets pregnant with Peterson’s kid, and Peterson also contracts herpes. Peterson lets the pharmacist/girlfriend Withers know that he may have exposed her to herpes. Withers goes digging into Plaintiff’s medical record. Pharmacist/girlfriend says she didn’t share the information with anyone, but not long after, Peterson has an email exchange with Plaintiff bitching about how she never even got her birth control refilled in July and August. Plaintiff files suit against Walgreen and Withers for malpractice. The jury found her damages to be $1.8 million and found Walgreen/Withers jointly responsible for 80% of the damages.

I’d like to see how the jury went about measuring damages in this case. Generally, I trust juries when deciding questions of liability. I’m frequently more skeptical of the math they do to calculate damages when they do find liability.

I had the opportunity to see the Indiana Supreme Court at work today as they held oral arguments at the Stewart Center. (See this prior entry for details on the case.) Afterward, there was a lunch reception with the Tippecanoe County Bar Association and the Justices in attendance. Justice Rush said a few words and, in particular, mentioned how important the collegiality of the local bar membership was in her development as a lawyer.

I could not agree more. In fact, during my interview with the law firm I ended up joining, I remember asking about how the local lawyers got along. Coming up through school, I had somehow picked up the message about how cut throat lawyers were. That was never my style, and it was a concern of mine moving from my job with the Legislative Services Agency to private practice.

I don’t know how it is in other localities. Maybe the reputation of lawyers as cut throat jerks is overblown generally. But, here locally, I have only seen a handful of lawyers who fit the bill. That sort of nonsense doesn’t get out of hand because the Tippecanoe County legal community is a small one. If you make a habit of jerking people around and treating them poorly, word is going to get around pretty fast. Suddenly your handshake agreements are going to turn into a lot more work, and your ability to get things done for your clients is going to disappear. So, there is a built in incentive to behave yourself. Beyond that, maybe it’s a Midwestern thing, but the lawyers in town have always been very easy to work with and very willing to share knowledge.

It’s a great place to be a lawyer, and I’m happy I ended up here.

For those of you in the Lafayette area who are interested in seeing our state Supreme Court at work, you might want to check out the oral argument set for November 10, 2014 at Loeb Playhouse in the Stewart Center.

The case under review is Kramer v. Catholic Charities of the Diocese of Fort Wayne-South Bend, Inc. (pdf), which was a split decision before a panel of the Court of Appeals. Judge Najam wrote the majority opinion with Judge Crone concurring while Judge Baker dissented.

The Supreme Court summary of the factual background of the cases states:

[A] child’s pre-adoptive placement (with the Kramers) failed when the child’s biological father came forward. The father established his paternity and successfully contested the adoption. The Kramers then sued the adoption agency (Catholic Charities) alleging negligence for failing to discover the father’s registration with Indiana’s Putative Father Registry.

At issue is whether the timing of the adoption agency’s review of the putative father registry was negligent, whether the adoption agency had a duty to check the registry, and whether the adopting parents waived their ability to bring this claim when they signed the agency’s release form. As luck would have it, I discussed the release/waiver issue in a blog post for my law firm when the Court of Appeals decision came out in March.