Bob Scott, writing for the Lafayette Journal & Courier, has a nice piece on Justice Dickson who practiced in Lafayette as an attorney and has recently become acting Chief Justice of the Indiana Supreme Court in the wake of Chief Justice Shepard’s departure.

Two items from the story caught my eye in particular. First was Jeff Newell’s comment on appreciating Justice Dickson’s efforts to keep connected to the Lafayette legal community. (Which he does – and I think that is widely appreciated among the local lawyers). The second was Justice Dickson mentioning that what he missed most was representing clients — the exhilaration of working with them, sharing their lives, win or lose.

That, in turn, brought to mind a concern I’ve heard from judges and one of the aspects of the judiciary that would make me hesitate to become a judge; even if I had the opportunity: the social isolation. I’ve been told and read that the deference reflexively given to judges coupled with something inability to speak freely about cases and opinions can make judges feel disconnected from their colleagues and the community. For example, with my lawyer colleagues, I’ll give them a world of good-natured crap if I see an entertaining opportunity. With judges, I hold back. Now, maybe that will change somewhat when some of the lawyers I’ve been practicing with and against for years start taking the bench. But, the nature of the position does, I think, affect the social interaction.

None of this, by the way, is intended as a reflection on Justice Dickson. The article about him simply led to a stream-of-consciousness association. But, I guess I can say that for my part, on those occasions where I’ve spoken with him, our interactions have been cordial. However, because of his position, I think I was probably self-consciously on my best behavior.

The Indiana Supreme Court answered a certified question concerning some federal “rails-to-trails” litigation. It has to do with whether an easement on land originally granted for the purpose of operating a railroad could later be used for public trails when the railroad was abandoned. The Indiana Supreme Court decided that the easement did not extend to such a use.

The original easement was for a “commercial enterprise for transport.” This explains why the original easement of running a railroad could be shifted to laying down an oil pipeline in the same easement without the easement reverting back to the original property owner. By contrast, the Supreme Court reasoned, a public trail is an “activity of recreation not transportation.” Chief Justice Shepard dissented.

The Court doesn’t get into this, but I think the upshot is that a trail can’t be created along the rail line simply by negotiating with the rail line or its successor; rather, to create a public trail in this location, new deals or condemnations have to be made as to the 128 landowners along the 21 mile stretch.

In the case of Kays v. State, the Indiana Supreme Court reversed the court of appeals and held that a trial court is authorized to consider a defendant’s social security income when determining the defendant’s ability to pay restitution.

At issue were the anti-alienation provisions of the federal social security law and the requirement that a trial court consider a defendant’s ability to pay when making restitution a consideration of probation. The former seeks to ensure that creditors can’t get at the bedrock social security income a person might need to survive and the latter seeks to ensure that a person isn’t locked up simply for being poor.

The Court of Appeals looked at the anti-alienation provisions of the social security statutes and concluded that it could not be considered as income when a trial court was making restitution decisions. The Supreme Court, correctly in my opinion, disagreed; reasoning that just ignoring that income would distort the trial court’s view of the defendant’s overall financial situation.

After all, if you’re getting $100 per month in rental income as your only source of income, your financial situation is a little different than if that $100 per month is on top of your social security income. In the former situation, the trial court probably has to conclude that you do not have any ability to pay restitution. In the latter situation, $100 per month in restitution might well be reasonable.

I caught some of the Twitter coverage of oral arguments in the Supreme Court’s review of the Indiana Recount Commission litigation on Charlie White. It occurred to me that there might be an argument to be made that the State is judicially estopped from arguing that White was legally registered at his ex-wife’s residence.

Seems to me, you have one arm of the State in the form of the Prosecutor in the criminal case arguing (pdf) (successfully) that White was lying when he claimed his ex-wife’s place as his residence. Specifically the State took the position that on or about February 23, 2010, White committed fraud by representing that his address was on Broad Leaf Lane in Fishers when he knew he was living on Overview Drive in Fishers. The State obtained a conviction against White on that basis.

On the contrary, however, another arm of the State in the form of the Recount Commission is taking the position (pdf) (h/t Indiana Law Blog) in front of the Supreme Court that during that period of 2010, White resided at the Broad Leaf address and that his registration at the Broad Leaf address was proper. (Brief of Recount Commission at p. 6, 11.)

Maybe there is an exception when the party is as big as the State of Indiana where the left hand is not accountable to the right hand. But, generally speaking, the doctrine of judicial estoppel says:

Judicial estoppel is a judicially created doctrine that seeks to prevent a litigant from asserting a position that is inconsistent with one asserted in the same or a previous proceeding. “Judicial estoppel is not intended to eliminate all inconsistencies; rather, it is designed to prevent litigants from playing ‘fast and loose’ with the courts. The primary purpose of judicial estoppel is not to protect litigants but to protect the integrity of the judiciary.” “The basic principle of judicial estoppel is that, absent a good explanation, a party should not be permitted to gain an advantage by litigating on one theory and then pursue an incompatible theory in subsequent litigation.

Morgan County Hosp. v. Upham, 884 N.E.2d 275, 280 (Ind. Ct. App. 2008).

The State embraced the position that White was fraudulently claiming residence at the Broad Leaf address in March of 2011, following a grand jury investigation, when the Prosecutor filed its indictment in the Hamilton Superior Court. It embraced the contrary position that White resided at the Broad Leaf Address, following the Recount Commission hearing, on June 28, 2011 when the Commission entered its own findings of fact.

It’s not a slam dunk, by any means, but I think there is a reasonably strong argument to be made that the State of Indiana is barred from taking these inconsistent positions before different courts on where Charlie White resided in February 2010.

In a lengthy opinion, the Indiana Supreme Court decided another round in the seemingly endless FreeEats autodialer litigation. (The fees generated in that case have to be breath taking.) The case begins back in 2006 when Bob Perry, author of the Swiftboat attacks on John Kerry, created something called the Economic Freedom Fund. The Economic Freedom Fund hired a company called FreeEats to use its robocall technology to attack Baron Hill in support of Mike Sodrel. Both of those guys are out of the political picture, but the lawsuit continues. (Reminded me of the “Born in the USA” lyrics, “I had a brother at Khe Sahn; fighting off the Viet Cong; They’re still there, he’s all gone.”)

Indiana’s autodialer law has a requirement that someone wishing to disseminate a prerecorded message over the telephone has to first obtain the consent of the recipient by using a live operator. This increases the costs of the autodialer in disseminating its message. The argument of the autodialer, FreeEats in this case, is that this raises its costs and impermissibly burdens its freedom of speech under Article 1, section 9 of the Indiana Constitution. The Indiana Supreme Court disagreed, concluding:

The Autodialer Law prevents FreeEats from sending prerecorded political messages without obtaining the telephone subscriber’s consent. FreeEats can obtain this consent prior to the call or at the outset of the call by using a live operator. FreeEats is correct in noting that its costs will increase if it complies with the live-operator requirement, but FreeEats fails to intro-duce any convincing argument that the result of the requirement is that its right to engage in po-litical expression no longer serves the purpose for which it was designed. Any content-neutral statute that incidentally affects political expression could conceivably increase the economic costs of the speaker. A conclusion that a statute violates the state constitution when it increases the economic costs to engage in political expression, without any showing that the right to politi-cal expression no longer serves its purpose, would be unsound. FreeEats and its clients are still free to engage in political expression and are free to use the AIC system to do so. Although the Autodialer Law’s live-operator provision is a less-than-ideal requirement for FreeEats, it is not a material burden on its right to engage in political expression.

I know I have some readers out there in the legal community, so I thought I’d put out a request for information. I’ve heard rumors about a plan afoot from the Indiana Supreme Court which would, as I understand it, require regional cooperation among courts in the same Administrative Rule 3 administrative district whereby judges in counties with low caseloads would preside over cases in counties with high caseloads.

The plan, again according to what I’ve heard, springs from the white paper (pdf) adopted by the Indiana Judicial Conference in 2008.

After browsing the Indiana judiciary website, I have not found anything written that sets forth a policy or requests comments; so, a) maybe it’s nothing more than rumor; and b) if there is some plan involving judges from adjacent counties, perhaps it is more incidental than what I’ve been hearing.

Absent some particular knowledge of any plan, I can’t offer any concrete opinions. But, as a general rule, as a practitioner, I would have concerns that the judges from other courts would be inclined to have my clients and I travel to them even though my cases were pending in Tippecanoe County. (To which I would politely agree, because if a judge says, “you come to me,” you don’t object.) As a county attorney, I would have concerns about how staff support and other resources for the other county’s judge would be allocated if he or she was working on Tippecanoe County cases (or, vice versa).

As a follower of state government, I would have concerns about whether such a plan runs afoul of the General Assembly’s prerogatives under Article 7, sections 7 and 12:

Section 7. Judicial Circuits. The State shall, from time to time, be divided into judicial circuits; and a Judge for each circuit shall be elected by the voters thereof. He shall reside within the circuit and shall have been duly admitted to practice law by the Supreme Court of Indiana; he shall hold his office for the term of six years, if he so long behaves well.

Section 12. Substitution of Judges. The General Assembly may provide, by law, that the Judge of one circuit may hold the Courts of another circuit, in cases of necessity or convenience; and in case of temporary inability of any Judge, from sickness or other cause, to hold the Courts in his circuit, provision may be made, by law, for holding such courts.

As a citizen, I would have concerns about judicial authority for my circuit being routinely exercised by judges elected by citizens of another circuit.

Like I said, I have not found any written notice or description of the particulars of the plan. If I’ve missed it, I would certainly appreciate someone forwarding me a link or a copy. If anyone knows details that aren’t necessarily committed to writing, those would also be appreciated. Thanks for any help.

The Indiana Supreme Court has announced that Chief Justice Randall Shepard will retire in March 2012. My impression is that he has done solid work as a Chief Justice over the last 25 years. Unlike the U.S. Supreme Court, I have not noticed particular partisanship in the Indiana Supreme Court. I’ve certainly questioned their decisions from time to time, but have not suspected anyone of having an ideological axe to grind. I suspect that the Chief Justice has something to do with that.

Probably the biggest complaint I’ve heard about the Chief Justice does not concern his legal acumen, but concerns that the Supreme Court is overstepping its authority (or perhaps exercising that authority more vigorously than is prudent) when it comes to administering the trial courts. The Supreme Court certainly has the authority to review the orders and decisions of trial court judges, but it’s less clear when and how the Supreme Court should be able to tell trial courts to allocate the administrative resources of those courts. Over the tenure of the Chief Justice, the Supreme Court has been more active in those areas with things like attempts at balancing case loads and trying to develop a centralized computer system for the courts and encouraging them to sign on.

I do not have direct knowledge of those administrative matters; so I can’t say with a great deal of certainty how well grounded the complaints are. Despite (I am told — I was a teenager and not paying attention to such things at the time) initial concerns about Chief Justice Shepard’s youth and relative lack of experience when he was nominated to the position by Governor Orr in the mid-80s, he has done credit to his office, and I can only hope that someone of equal ability will be selected to fill his shoes.

Today the Indiana Court of Appeals issued an opinion in the case of Allen v. Clarian (pdf). The case involved a declaratory action for determination of the reasonableness of medical charges. The plaintiffs were uninsured patients who signed a standard contract agreeing to pay for medical services received. They received the services, then got a whopping bill. Their main complaint was that the charges were “unreasonable” for the services provided. Plaintiffs filed a complaint seeking declaratory relief — in essence, asking the court to determine what they actually owed Clarian.

The trial court dismissed the complaint as failing to state a claim. This is a decision that “even if the facts alleged in your complaint is true and you can prove them, you’re not entitled to relief of any kind through the courts.” The Court of Appeals disagreed and knocked down a couple of arguments in the process.

One argument advanced by Clarian was that the patients who disputed the amount of the bill were required to pay what they considered reasonable, then wait to see if Clarian sued them for the balance. Only then could they raise the defense that the charged price was unreasonable. The court said, no, the plaintiffs could seek a declaration of the amount due under the contract.

Another argument was that the patients did not contract to pay some ambiguous “reasonable” fee but, rather, whatever was on the hospital’s chargemaster for the services ultimately rendered to the patient. (The “chargemaster” is the comprehensive schedule of the hospital’s prices.) One problem with this is that hospitals are notoriously secretive about their chargemaster schedules. This led to a humorous observation by the Court of Appeals:

As we have already noted, Clarian contends that the chargemaster rates are “unambiguous” and “express[,] binding obligation[s]” on Allen and Moore. Appellee?s Br. at 5. But at oral argument counsel for Clarian stated that Clarian considers its chargemaster rates confidential and proprietary. Left unanswered by Clarian is how a patient and a provider can mutually agree to an “unambiguous” and “express” chargemaster fee schedule that is not available to the patient.

Essentially, this is an argument that patients have bought a pig in a poke. You owe whatever we say you owe. This isn’t quite as ridiculous as it sounds because it’s true that a lot of the time, nobody is certain about exactly what medical services will be necessary in advance of the patient receiving treatment. But, without some more or less explicit mechanism of determining what the price is going to be, the courts are going to impute an agreement to pay a “reasonable” price for the services provided.

Clarian apparently also advanced an argument that, given the nature of medical financing, requiring patients to only pay a “reasonable” fee would collapse the system. The Court of Appeals was unmoved.

That’s only a first step, getting it into court. The plaintiffs will have to enter murky water of proving what is “reasonable” and what isn’t. They also allege a putative class – so the trial court will have to rule on whether a class action can be certified. (This was not addressed at all in the Court of Appeals decision.) So, it will be interesting to see how this shakes out and if it has anything like a broader impact.

Today, in Putnam County Sheriff v. Price, the Supreme Court overturned a Court of Appeals decision I complained about last year.

My description at that time:

The most recent installment involves a cold November morning at 5:30 a.m. where a Sheriff’s Deputy responded to an accident involving an icy roadway. Turns out the local water authority had a pipe leaking across the road. He called in the situation, and the local water authority that owned the pipe, among others, were notified. But, he didn’t hang around the site until the problem was fixed or stick around to wave off other motorists. Then, at 7:15 a.m., another motorist had an accident at the icy spot. The Indiana Court of Appeals held that the Sheriff could be liable for the second person’s injuries because, it concluded, “the Sheriff has a duty to warn the public of a known hazardous condition.” The court further opined that this duty was not closely enough related to things like preventing crime and providing emergency services to afford the Sheriff the immunity available for those activities.

The Supreme Court notes the general rule that a court is supposed to address immunity before looking at the question of negligence. “Immunity assumes negligence but denies liability.” But, frustratingly, it proceeds to ignore that general rule without really explaining why. But, in any case, without addressing whether the Sheriff was immune from suit, it decided that the Sheriff owed no duty of care to the Plaintiff under these circumstances.

The court reasoned that the Sheriff did not own or maintain the county road where the accident happened; the county highway supervisor is charged with maintaining the roads.

In my mind, this raises some interesting questions about the extent to which county government is regarded by the Supreme Court as a single unit. The Sheriff is a distinct, Constitutional officer, but the deputy who worked for him was, I presume, a county employee; as was the county highway supervisor. The highway department and the county board of commissioners are already defendants but not, apparently, parties to this particular appeal. I’m not sure this decision does anything in particular to shield the county from liability for the actions (or inactions) of the deputy Sheriff. A decision on law enforcement immunity may have.

With the caveat that news reporting on legal proceedings often doesn’t convey the entire situation; if Keith Roydson’s report in the Muncie Star Press on the injunction hearing for Delaware County’s smoking ban is mostly accurate and if I was in the shoes of the presiding judge, I would have been reading the riot act to former Representative Bruce Munson.

Apparently, they started the hearing. Munson represented the challengers to the smoking ban, and an attorney named Donald Dunnuck represented the County. After they presented opening arguments:

Asked by Vorhees to call his first witness, Munson said, “Donald H. Dunnuck.”

Dunnuck, sitting at the table opposite Munson, asked, “Who did you say you were going to call?”

“Donald H. Dunnuck,” Munson told Dunnuck. “If you know someone of that name.”

Dunnuck was obviously taken off guard. Munson had not, apparently, done Dunnuck or the court the courtesy of advising of his intent to call Dunnuck as a witness. Not to put too fine a point on it; he seems to have wasted everyone’s time. The hearing immediately stopped because now the court has to sort out whether Dunnuck is, in fact, a likely source of relevant, non-privileged testimony and, if so, the County is entitled to get another attorney.

This part floored me:

Munson told Vorhees he would reserve the right to object to Dunnuck continuing as attorney after having been a witness. When Dunnuck started to respond, Munson interrupted, “He’s a witness now, your honor.”

I’m pretty easy to get along with; but if it were me, I would have taken pretty unkindly to being interrupted and let him know that I wasn’t a witness until the judge said I was.

I’m open to the possibility that I don’t know enough of the facts, but from the report in the paper, this looks like a dick move that wasted everyone’s time.