res gestae - december 2014

December 2014 Vol. 58, No. 5

MAGNA CARTA: 'A FOUNDATIONTO BECOME BETTER CITIZENS' SEALING/EXCLUDING DOCUMENTSIN INDIANA COURTS JUDGE HOLDER:THE ‘GOLDEN EAGLE’

ADMINISTRATIVELAW REFORM

EDITORSusan J. Ferrer

[email protected]

GRAPHIC DESIGNER & PHOTOGRAPHER

Vincent [email protected]

ADVERTISINGChauncey L. Lipscomb

[email protected]

WRITTEN PUBLICATIONS COMMITTEE CO-CHAIRS

Joseph M. PellicciottiWilliam A. Ramsey

[email protected]

5 PRESIDENT’S PERSPECTIVEJeff R. Hawkins, Sullivan, 2014-2015

14 ETHICS CURBSTONEDonald R. Lundberg, Indianapolis

28 RECENT DECISIONS 8/14Curtis T. Jones and John Z. Huang, Indianapolis

35 TECHNOLOGY: THE CLOUDJeremy I. Eglen, Avon

40 CRIMINAL JUSTICE NOTES 9/14Jack Kenney, Indianapolis

46 FAIR COMMENTBill Brooks, Indianapolis

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 forpossible 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.

The Journal of the Indiana State Bar Association

RES GESTÆDecember 2014 Vol. 58, No. 5

D E PA R T M E N T S7 ADMIN LAW REFORM

12 MAGNA CARTA

RES GESTÆ • DECEMBER 2014 3

F E AT U R E S

7 ADMINISTRATIVE LAW JUDGES REQUIRED TO BE ATTORNEYSBy Kathleen G. Lucas and Stephen L. Lucas, Indianapolis

12 MAGNA CARTA: ‘A FOUNDATION’By Bill Brooks, Indianapolis

20 SEALING/EXCLUDING DOCUMENTS IN INDIANA COURTSBy Maggie L. Smith, Indianapolis

22 JUDGE CALE JAMES HOLDER: THE ‘GOLDEN EAGLE’By Suzanne S. Bellamy, Indianapolis

Cover photo of the Indiana Statehouse by Vincent Morretino

22 JUDGE HOLDER

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Asimple Internet research experimentwith the words, “distinguish yourselfin the marketplace,” yielded on

the first page of search results about a dozenlinks to websites purporting to help a readeraccomplish marketplace differentiation. In this world where everyone, and I meanEVERYONE, seems to be chasing the samedime, how can we make a difference as indi-vidual lawyers, judges, educators and admin-istrative professionals? Can one person reallymake a difference?

I was the 15th Indiana State Bar presidentto receive an invitation to keynote at a jointmeeting of the Anderson Rotary Club and theMadison County Bar Association on Dec. 2.The Community Service Award Luncheonbegan more than 15 years ago when MadisonCounty Bar and Anderson Rotary Club member Charles H. Dickmann and his wife,Hazel Dickmann, gave a $100,000 gift to theCharles H. Dickmann/Madison County BarAssociation Endowment Fund, which pro-vides money for distribution each year to a charity chosen by the Community ServiceAward recipient. This year’s recipients, RickerOil Company and convenience store foundersJay & Nancy Ricker, directed this year’sendowment distribution toward the MadisonCounty Habitat for Humanity affiliate.

The story of the Charles H.Dickmann/Madison County Bar Associa-tion Endowment Fund does not stand out as an unparalleled philanthropic effort inIndiana, the United States or the world –other philanthropists have matched orexceeded the Dickmanns’ generosity. Thestory stands out because one hard-working,World War II veteran lawyer cared enoughabout his profession and community to investhis time and treasure in the improvement ofboth. Sure, it helps to have enough materialwealth to impact the world with monetarygifts, but an individual’s time commitmentcan have an impact on the world in ways thatmoney cannot scratch. Charlie Dickmanndemonstrated that principle by promotingprofessionalism and philanthropy through hisactive participation in his church, communityorganizations, local bar and the ISBA.

One day after the Anderson luncheon,the Indiana State Bar Association announcedthe names of the 2015 class of its LeadershipDevelopment Academy (LDA). Ask any LDA alumnus and you will hear a testimonyabout the multitude of ways that one lawyer,

in coordination with a few others, can changelives and improve our part of the world.Those 25 new LDA members will participatein five sessions featuring professional facilita-tors and prominent speakers from variousdisciplines to inform participants about lead-ership principles and techniques, the impor-tance of effective leaders in organizations to maximize efficiency and effectiveness, and the challenges and rewards of leadershipin action.

LDA is just one of many ways IndianaState Bar members can find leadership oppor-tunities and expand their professional hori-zons. Here are some more ways to live largerthrough association membership: writing andspeaking for a CLE program; suggesting newways to help implement our long-range plan;sharing ideas about using our new websiteand membership database; serving as a “Talkto a Lawyer Today” volunteer on MLK Day,Jan. 19; participating in the Women’s BenchBar Retreat, Feb. 27-March 1; joining ourpartnership 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 theSolo & Small Firm Conference, June 4-6; volunteering as a mentor in our MentorMatch program; and learning law practicemanagement skills at the Butler BusinessSchool for Lawyers.

The Indiana State Bar Association hasbeen paving the way for its members to distin-guish 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. Whetheryou are interested in volunteer service withinyour practice areaor in a non-sub-stantive servicerole, ISBA’s sec-tions and commit-tees offer countlessways to live outyour distinctpotential as a force of one.

INDIANA STATE BAR ASSOCIATIONOne Indiana Square, Suite 530

Indianapolis, IN 46204800/266-2581 • 317/266-2588 fax

http://www.inbar.org

OFFICERSPresident 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, RochesterPresident

BOARD OF GOVERNORS1st District Scott E. Yahne, Munster

2nd District Robyn M. Rucker, Valparaiso

3rd District Robert L. Jones Jr., Notre Dame

4th District Martin E. Seifert, Fort Wayne

5th District Candace D. Armstrong, Brook

6th District Patrick J. Olmstead, Greenwood

7th District Ann Z. Knotek, Brownsburg

8th District Hon. Leslie C. Shively, Evansville

9th District Crystal G. Rowe, New Albany

10th District Wilford A. Hahn, Huntington

11th District Tonya J. Bond, Indianapolis

11th District Terry W. Tolliver, Indianapolis

11th District Andrew Z. Soshnick, Indianapolis

At-Large District Rafael A. Sanchez, Indianapolis

At-Large District Sonia C. Das, Indianapolis

Past President James Dimos, Indianapolis

House of Delegates Andi M. Metzel, Indianapolis,Chair

House of Delegates Hon. Thomas J. Felts, Fort Wayne,Chair-Elect

Young Lawyers Matthew J. Light, Indianapolis,Section Chair

STAFFExecutive Director

Thomas A. Pyrz • [email protected]

Administrative AssistantBarbara M. Whaley • [email protected]

Associate Executive DirectorSusan T. Jacobs • [email protected]

Administrative AssistantJulie A. Gott • [email protected]

Director of CommunicationsSusan J. Ferrer • [email protected]

Director of Public Relations & Social MediaCarissa D. Long • [email protected]

Graphic Designer & PhotographerVincent Morretino • [email protected]

Legislative CounselPaje E. Felts • [email protected]

Director of Special ProjectsSection & Committee Liaison

Maryann O. Williams • [email protected]

Administrative AssistantBarbara L. Mann • [email protected]

Local & Specialty Bar LiaisonCatheryne E. Pully • [email protected]

Administrative AssistantKimberly D. Latimore • [email protected]

Director of CLEChristina L. Fisher • [email protected]

Assistant to Director of CLEKassandra Adams • [email protected]

Section & Committee LiaisonMelanie Zoeller • [email protected]

Director of Meetings & EventsAshley W. Higgins • [email protected]

Membership Records & Technology CoordinatorKevin M. Mohl • [email protected]

Bookkeeper & Convention RegistrarSherry Allan • [email protected]

ReceptionistChauncey L. Lipscomb • [email protected] RES GESTÆ • DECEMBER 2014 5

PRESIDENT’S PERSPECTIVEJEFF R. HAWKINS

[email protected]

A force of one

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I. Introduction

This article is intended toexamine recent statutoryamendments aimed at

assuring fair and unbiased adjudi-cation under the AdministrativeOrders & Procedures Act (AOPA),1

which governs most state agencies,boards and commissions inIndiana.2 Remaining issues thatmay require legislative resolutionare also discussed.

II. HistoryAOPA was the result of two

years of study by the AdministrativeAdjudication Law Recodification &Revision Commission (“the AOPACommission”), a bipartisan groupcomposed of four senators, fourrepresentatives and four citizenmembers3 that met for 11 officialsessions and numerous subcom-mittee sessions throughout 1985and 1986.4 The final draft of theCommission’s new procedural lawwas introduced in the 1986 legisla-tive session and became Public Law 18-1986. While there havebeen amendments over the years,the basic components and structureof AOPA have remained intact.Recently, legislators have soughtadditional ways to ensure efficientand unbiased adjudication for allstate agencies.

III. AOPA todayAOPA seeks to minimize pro-

cedural formality but also to accorddue process. In one section, AOPArequires that adjudication be con-ducted “in an informal mannerwithout recourse to the technical,common law rules of evidenceapplicable to civil actions in thecourts.”5 In the next section, AOPArequires an administrative lawjudge (“ALJ”) to exclude evidencethat is irrelevant, immaterial, undu-ly repetitious or excluded on con-stitutional or statutory grounds oron “privilege recognized in courts.”

If there is no objection, hearsaymay form the basis for an order. If there is a proper objection and“the evidence does not fit within arecognized exception to the hearsayrule,” the order may not be basedsolely on hearsay.6 Over the pastfew years, other AOPA provisionshave been linked to the trial rulesby the legislature. The GeneralAssembly amended AOPA in 2011to follow Trial Rule 56 with regardto summary judgment.7 A 2012amendment modernized AOPA by authorizing service through elec-tronic mail. Except for the initialnotice of a determination, a peti-tion for review or a complaint (inother words, actions that first trig-ger an administrative action underAOPA), service may be made by United States mail, personal service, electronic mail or any othermethod approved by the IndianaRules of Trial Procedure.8 Com-pliance with these provisions hardly fits within the notion of informality.

In 1993, the Indiana SupremeCourt ruled that a decision by an ALJ must be based on de novoreview of an agency’s initial deter-mination. The ALJ serves a dutysimilar to a trial judge sitting with-out a jury. “This requires the ALJ to independently weigh the evi-dence at the hearing.” Deference by an ALJ to the agency’s initialdetermination was reversible error.9

In 2011, the General Assembly codified the ALJ’s responsibility to provide de novo review.10

To emphasize the separationbetween the agency and the ALJ,P.L. 72-2014 clarified that theagency whose order was underadministrative review is entitled to seek judicial review.11

Conduct of appropriateadministrative 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 considerationof the evidence. The court on judi-cial review is limited to the agencyrecord and, except for limited circumstances, cannot reweigh the evidence heard by the ALJ.12

Adjudications under AOPA mustbe conducted according to relevantstatutes and case law. Decisionsmust be based on sound legal prin-ciples. On judicial review, deferencemust 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 agencieshave proceeded in a manner similarto that of a court.14 In other agen-cies, ALJs are not attorneys. Withthe wide spectrum of issues gov-erned by AOPA and the economicimportance of agency decisionsregarding licensure15 andenforcement actions,16

the stakes are often veryhigh.

The 2014 GeneralAssembly recognized theneed for ALJs to be attor-neys in order to adjudi-cate AOPA cases. HouseEnrolled Act 1121 (P.L.72-2014), authored byRep. Eric A. Koch andsupported by the IndianaState Bar Association,required ALJs to be attor-neys licensed to practicein Indiana. To the extentpracticable, the billrequired that ALJs haveexpertise in the area oflaw being adjudicated.The bill also allowedagencies to share ALJs inorder to avoid bias, preju-dice, interest in the out-come or another conflictof interest, to accommo-date a request for change

Administrative law reform: ALJs required to be attorneysBy Kathleen G. Lucas and Stephen L. Lucas

Stephen L. LucasChief Administrative Law Judge (ret.)Indiana Natural Resources CommissionIndianapolis, [email protected]

Kathleen G. LucasBose McKinney & Evans LLPIndianapolis, [email protected]


(continued on page 9)

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

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

The 2014 legislature alsoenhanced another important com-ponent of AOPA, the requirementfor impartiality and the prohibitionon ex parte communications withthe ALJ. So strongly did the originaldrafters of AOPA feel about unlaw-ful ex parte communications thatthey dedicated no fewer than sevencode sections to the issue and madeit a Class A misdemeanor for eitherthe ALJ or a party to violate theprohibitions.18 P.L. 72-2014 clari-fied that these prohibitions onunlawful ex parte communicationsapply to an individual, board orcommission serving as the ultimateauthority.19 The new legislationalso required the Inspector Generalto adopt rules to implement astatewide Code of Judicial Conductfor ALJs.20

By requiring ALJs to be attorneys admitted to practice in Indiana, the 2014 amendmentsfoster expertise and professionalismon administrative review. Theamendments assure that ALJs willbe subject to current ethical stan-dards of the Indiana SupremeCourt and new ethical standards of the Inspector General. Theamendments help support a struc-ture that can provide due process to the parties.

IV. Future considerationsOne issue that has received a

great deal of attention, both at thetime AOPA was being drafted andagain in recent years, is whetherALJs for various agencies should be placed into a “pool” for the sake of judicial economy. In 2011, an effort was begun to study theissue through summer sessions of the Commission on Courts.Surveys were distributed and analyzed by both the executive and legislative branches of govern-

ment as well as private associations.In the end, legislators determinedthere were so many different agen-cies utilizing ALJs under widelyvarying structures that more studywas needed. This determinationwas similar to that of the AOPACommission in 1986.

Although opinions differed for where ALJs should be housed,attorneys who were surveyed wereconsistent in their desire for ALJs to be independent and have subjectmatter expertise. One Indiana StateBar Association survey revealedthat 92 percent of attorneys agreedor strongly agreed that ALJs shouldhave continuing training andexpertise in the subject areas overwhich they preside. A similar num-ber believed they should be inde-pendent from agency staff and thatrelevant provisions of the Code of Judicial Conduct should apply to ALJs.

The question of whether tocombine ALJs for purposes of econ-omy of scale is a legitimate one.ALJs and parties to adjudicationswould benefit from more consistentaccess to court reporters, other pro-fessional support and equipmentneeds. Agency satisfaction with ALJdecisions should not be a factor inhow those needs are met. Strikingthe balance between independenceand budgetary issues will requireinput from reasonable individualson all sides of the substantive issue.

In moving forward with dis-cussions regarding the componentsof a fair and balanced adjudicatoryprocess that ensures due process,the following concepts may behelpful:

• An ALJ should not be subjectto sanction or dismissal for a deci-sion that is contrary to a position

ADMINISTRATIVE LAW REFORM continued from page 7


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taken by the agency in the proceed-ing.

• A pilot “pool” of ALJs couldevaluate the merits and possiblestructure for a broader pool. Withthe need for expertise set forth in P.L. 72-2014, ALJ assignmentsshould be made based on knowl-edge and experience in the adjudi-cated subject matter. Currently,ALJs for the Office of Environ-mental Adjudication, the NaturalResources Commission Division of Hearings (which also serves theGeologist Licensure Board and theSoil Scientist Registration Board)and the State Employees’ AppealsCommission share a suite in theIndiana Government Center North.Each group has different legal andadministrative structures, resultingin challenges for funding courtreporters, subject-appropriate continuing legal education, equip-ment and budgets. A pilot project

to include these and potentiallyother agencies could focus upon a cost-effective mechanism for theiradministration that would includebudgetary and personnel issues.After the completion of an estab-lished period, the agencies could be directed to provide a joint report to the General Assembly.The report would consider thesematters and strategies directed to meeting the core values ofAOPA.

• The General Assembly maythen consider the wisdom of con-vening a study commission mod-eled after the 1985-86 AOPACommission. The new commissionwould consider the pilot projectreport and any other mattersdirected by the legislature. The commission would make recommendations to the GeneralAssembly for possible additionallegislation. �

1. Ind. Code §§ 4-21.5-1-1 to 4-21.5-7-9.

2. See Ind. Code §4-21.5-2, which lists exemp-tions from AOPA.

3. The Commission members wereRepresentatives Richard Regnier, Mitchell V.Harper, Robert F. Hellmann and W. LaverneTincher; Senators John B. Augsburger,William H. Vobach, Lindel O. Hume andJames Jontz; and lay members David Allen,Susan Davis Smith, Brian G. Tabler and TonyZaleski. Final Report of the AdministrativeLaw Recodification and Revision Commission(1986) (“Final Report”).

4. Minutes of the Commission (“Minutes”) areavailable from the Legislative Services Agencyor 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.2d100, 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. UnitedRefuse Co. at 103. The distinction betweenadministrative 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 DefenseCouncil v. Poet Biorefining, No. 49S02-1405-MI-313 (Ind. 2014) and Kranz v. MeyersSubdivision 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 reason-able likelihood that the ultimate authority willbe called upon to: (1) review; or (2) issue afinal 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 authorityand to a person communicating with a mem-ber of the ultimate authority.”

20. Ind. Code §4-2-7-3(17). The bill requires theInspector General to review existing rules ofthe Office of Environmental Adjudication andthe Natural Resources Commission establish-ing 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 BoseMcKinney & Evans LLP. HusbandStephen L. Lucas was chief administra-tive law judge for the Natural ResourcesCommission until his retirement on Sept. 1.

ADMINISTRATIVE LAW REFORM continued from page 9

10 RES GESTÆ • DECEMBER 2014

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“Talk to a Lawyer Today” Pro Bono • Jan. 19, 2015Sign 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 holidayMonday, Jan. 19, 2015. Participating lawyers are asked to donate 2 hours to speak with the general public on the phone or in personabout legal issues. There are several locations throughout the state. All volunteers will be contacted by the site coordinators for theirlocations 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 AJasper, Lake, Newton & Porter counties

Judith H. Stanton, Executive DirectorNWI Volunteer Lawyers, Inc.651 E. Third St., P.O. Box 427Hobart, IN 46342219-942-3404 • 219-945-0995 (fax)[email protected]

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Mark Torma, Plan AdministratorVolunteer Lawyer Network, Inc.117-1/2 N. Main St.South Bend, IN 46601574-277-0075 • 574-277-2055 (fax)[email protected]@att.net

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King John wasn’t a nice fel-low, one clue being that inthe 800 years since his rule

– since he was forced by Englishnoblemen to sign the Magna Carta– not one English monarch hastaken the name “John.”

With the typical understatedwit of the British, Garrison Sgt.Major Billy Mott – the man incharge of the Queen’s ceremonialtroops – called King John a naughtyboy. Mott shared some British his-tory during the opening session of the State Bar’s fall meeting inOctober, a session dedicated to the Magna Carta. GSM Mott was in Indiana via mutual friends totrumpet the ABA’s Magna CartaFacsimile Traveling Exhibit, whichwas brought here by the ISBA as a primary donor for a two-weekdisplay at the Indiana Statehouse.

Standing in the IndianaSupreme Courtroom, just feet fromthe exhibit, Mott talked about “thegreat courage and integrity of thosebarons” and of the Magna Carta’sprinciples, “a foundation tobecome better citizens.”

Indianapolis attorney Jon B.Laramore dove deeper into the doc-ument’s history, calling John “a dis-aster as king, cruel and dishonest.”What was revolutionary about “theGreat Charter,” Laramore said, wasthat the principles of freedom on itspages were, for the first time, writ-ten down. What was more impor-tant to American history, though, was the effect it had on FoundingFathers James Madison, ThomasJefferson and John Adams.

Laramore pointed out that,although many of the charter’s 63 paragraphs are now antiquated or obsolete, five main ideas haveremained eight centuries later –

freedom of religion,freedom from crueland unusual punish-ment, freedom fromgovernmental seizure

of property, guarantees of dueprocess, and the right to a speedytrial. The Magna Carta, Laramoresaid, “was the beginning of the ideaof separation of church and state.

“The theme of the State Bar’sfall meeting is the Rule of Law,”Laramore continued, “and theMagna Carta is its origin.”

Bringing the ideas of theMagna Carta and the Rule of Lawinto the current day, the sessionincluded a panel discussion involv-ing Judge John D. Tinder, U.S.Court of Appeals for the SeventhCircuit; Wm. T. (Bill) Robinson IIIof Florence, Ky., past president ofthe American Bar Association; andCarol M. Seaman, chief ethics &compliance officer of the CookGroup in Bloomington.

Seaman said the Rule of Law is vital in a global economy becausecompanies need to know they willbe secure, that contracts will beobserved, “and that people whowork with us are free.” She saidCook Group does business innations where bribery and corrup-tion are rampant, “and it’s the

people who are poor who bear thebrunt.”

Robinson said the Rule of Lawis threatened by “chronic under-funding” of courts, noting thatwhen he became ABA president the first stop he made was to theU.S. Chamber of Commerce, anorganization often at odds with theABA. But Robinson said he foundan ally. “It really was not a chal-lenge to get business’s support,” he said. Chamber executives, hesaid, understood why so manycompanies around the worldinvested in the United States –because of “how much the Rule of Law is appreciated.”

Tinder illustrated the history ofthe Rule of Law with three relativelyrecent developments: school deseg-regation, the U.S. v Nixon decisionover the release of the Watergatetapes, and Bush v. Gore in 2000.Watergate and the subsequentdevelopments occurred, he said,“without a shot being fired, withouttanks rolling down PennsylvaniaAvenue. And America acceptedthat.”

AN

NU

AL

MEE

TIN

GMagna Carta: ‘a foundation to become better citizens’

By Bill Brooks


Media consultantand freelance writer

Indianapolis, Ind.

Jon B. Laramore & Garrison Sergeant Major Billy Mott

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

Bush v. Gore, he added, will be debated for years to come, “butno one questioned the authority ofthe Bush administration. We acceptthe Rule of Law when the courtspeaks,” he said. “We may notagree, but we accept it, and then we move on.”

Tinder said the Rule of Law isso well defined here that Americahas become the world’s model,even though we continue to strug-gle with issues such as proportion-ality, one of the principles of theMagna Carta. “We’ve gone over-board in some respects,” he said,citing federal sentencing guidelines.

Robinson challenged attorneysto proactively advocate for the Ruleof Law. “Being an officer of thecourt is an achievement, one of themost sacred responsibilities. Speakup and speak out about the Rule ofLaw.” When somebody asks howthe system works, take the troubleto explain, he continued. “We livein a world where people thinkJudge Judy is a real judge,” he said,adding that too many people base

their opinions of the legal systemon the “quick quips” of entertainerssuch as Jon Stewart and StephenColbert.

Added Tinder, the Rule of Lawis aspirational. It is vital, he said,“that the courts act with consisten-cy and transparency – and we haveto guarantee accessibility.”

Robinson, from our neighborstate to the south, offered words ofencouragement about the Rule ofLaw as it exists in Indiana: “Over 75 percent of Indiana’s lawyers arevoluntary members of the IndianaState Bar Association. That’s reallyspecial, and says a lot aboutlawyers.” �


Judge John D. Tinder, Carol M. Seaman & Wm. T. (Bill) Robinson III

The ABA’s Magna Carta Facsimile Traveling Exhibit at the Indiana Statehouse

Photos by Vincent Morretino

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

Last month I discussedPurdue University v.Wartell, 5 N.E.3d 797

(Ind. Ct. App. 2014), trans. denied,16 N.E.3d 424. This is an importantcase because it shines a light onhow the attorney-client privilegeand attorney work-product protec-tion can be jeopardized if lawyer-investigators do not establish a clearunderstanding with their clientsabout the nature of their investiga-tive work. Is it limited to conduct-ing an investigation, or is it to provide legal advice to the clientbased upon facts determined by thelawyer during the course of investi-gation? The privilege nature of thelawyer’s work and communicationswith the client can hinge on theanswer.

Lawyer versus attorney

A word about nomenclature:“Lawyer” and “attorney” are oftentreated as interchangeable terms. I don’t accept that. A lawyer issomeone trained in the law andlicensed to practice law. An attor-ney is a shortened form of attor-ney-at-law, meaning someone (a lawyer) who acts in a specialagency relationship with anotherperson to provide legal representa-tion. In this regard, lawyers areattorneys when they are operatingwithin an attorney-client relation-ship. Attorneys are always lawyers,but lawyers do not always act asattorneys.

As I pointed outin last month’s col-umn, a lawyer whoonly investigates doesnot act in the capacityof an attorney provid-ing legal representa-tion to a client.Anyone can conductan investigation, and merely because a lawyer conducts an investigation the

lawyer’s work does not becomecloaked with the special privilegesthat attach to the work of lawyerswhen they are practicing law.Wartell illustrates this because itinvolved a lawyer who, the courtconcluded, acted solely as an inves-tigator and whose communicationsand work product did not enjoy theprotections of the attorney-clientevidentiary privilege or the workproduct doctrine.

I compared Wartell to SandraT.E. v. South Berwyn School District100, 600 F.3d 612 (7th Cir. 2010).In a way, the lawyer in Wartell andthe lawyers in Sandra acted in verysimilar ways, with this importantdifference: the lawyers in Sandrahad a written engagement letterwith their client that clearly spelledout that the purpose of their inves-tigation was to establish facts onwhich those lawyers would thenrender legal advice and counsel to the client. The court in Wartelldid not find that such a clearunderstanding was present. Thisdifference led the court to hold thatthe investigating lawyer’s work wasnot protected by either the attor-ney-client evidentiary privilege or work product doctrine, whereasthe court in Sandra held that thelawyers’ work was protected.

Lessons from WartellA court holding that attorney-

client communications and attor-ney work product are not protectedis a big deal if attorney and clientthink their relationship will be pro-tected, but it turns out not to be so.Attorneys and their clients shouldbe able to have confidence thattheir communications will be invio-late and that attorney work productcreated in anticipation of litigationwill also be protected from intru-sion by adversaries. If they do nothave that confidence, it is almostthe same as if the attorney-clientprivilege and the work product

doctrine do not exist. So what arethe lessons to be gleaned fromWartell and Sandra?

Clarity good; ambiguity bad

First, when outside counsel is hired by a client to conduct aninvestigation, the nature of thatengagement needs to be clearlyestablished and documented.Ambiguity about the nature of the relationship must be avoided.If the lawyer’s fact gathering will beincident to rendering legal advice to the client, there should be termsof engagement, as there were in Sandra, clearly setting out anunderstanding that the lawyer willbe acting as the client’s attorney,conducting a factual investigationin order to provide legal advice tothe client on the basis of the factsestablished in the investigation. If the lawyer is to act solely as an investigator, the contract ofemployment should specifically dis-claim the existence of an attorney-client relationship so that the clientand the lawyer do not fall into thetrap of thinking their communica-tions and the lawyer’s work will beprotected. After the investigatinglawyer’s work is done, it will proba-bly be too late to retrofit an attor-ney-client relationship that was notdefined as such from the outset.

Get it in writing

Second, the terms of engage-ment must be in writing. The writ-ten engagement agreement inSandra was the defining circum-stance that cemented the lawyers’relationship with the school districtas that of attorney and clientbecause it expressly stated that thelawyers would render legal adviceto the school district based on itsfactual investigation. The court ofappeals reversed the district courtbecause it did not properly defer tothe nature of the relationship as setforth in the engagement agreement.Now it is true that Indiana Rule of

ETH

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Then lawyers investigateBy Donald R. Lundberg


Donald R. LundbergBarnes & Thornburg LLP

Indianapolis, [email protected]

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

Professional Conduct 1.5(b) merelystates a preference that engagementagreements be in writing (exceptfor contingency fee agreements,which must be in writing), but nolawyer should allow the uncertaintyof an oral engagement agreementbe the lynchpin for how the natureof the relationship with a client isdefined.

Be consistent

Third, the nature of the rela-tionship as defined at its outsetmust frame how the lawyer goesabout her work thereafter. In otherwords, the lawyer must act consis-tently with the lawyer’s role –whether as attorney or investigator– as established by the terms of theengagement agreement. If thelawyer is to function as an indepen-dent investigator, she should actlike an independent investigator

and not an attorney representing a client. She should steer clear ofmission creep where she switchesroles without consulting with theclient or assessing the risk that thelawyer’s earlier role as a pure inves-tigator will destroy the privilegednature of later client communica-tions or the confidential nature of the lawyer’s work product.

The investigating lawyer muststeer clear of taking actions or mak-ing representations that are in con-flict with her true role. The investi-gating lawyer will be free toannounce her role as an indepen-dent investigator only so long asthat is true. The investigatinglawyer should not (and normallywould not) feign partisanship, sincedoing so would detract from theinvestigating lawyer’s responsibilityto follow the facts wherever theylead.

On the other hand, the attor-ney who conducts an investigationincident to an attorney-client rela-tionship must avoid making repre-sentations that would induce non-clients to think the attorney is act-ing in some other capacity. Thisnotion of transparency is capturedin two Rules of ProfessionalConduct.

Dealing with unrepresented persons

Rule 4.3 states: “In dealing onbehalf of a client with a person whois not represented by counsel, alawyer shall not state or imply thatthe lawyer is disinterested. When alawyer knows or reasonably shouldknow that the unrepresented per-son misunderstands the lawyer’srole in the matter, the lawyer shall



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

make reasonable efforts to correctthe misunderstanding. The lawyershall not give legal advice to anunrepresented person, other thanthe advice to secure counsel, if thelawyer knows or reasonably shouldknow that the interests of such a person are or have a reasonablepossibility 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 implydisinterest. The attorney is notrequired to affirmatively state thatshe is acting as the representative of a client unless there is confusion.Second, if the unrepresented personis confused about the attorney’srole, the attorney must clarify thesituation to disabuse the unrepre-sented person of that misunder-standing. It is never prudent to givelegal advice to unrepresented per-sons because it might create a basisfor that person to claim that there

is an attorney-client relationship.Third, there is an affirmative dutyto abstain from giving legal adviceif the unrepresented person’s inter-ests are in conflict with the interestsof the attorney’s client. The attor-ney may (but is not required to)inform the unrepresented personthat he should consult with a lawyerof his own choosing. Of course, it is not rendering legal advice to anunrepresented person if an attorneysets forth his own client’s positionon what it believes the applicablelaw to be. But when dealing with anunrepresented person, an attorneyshould take special care to makesure such statements are not misin-terpreted as rendering legal adviceto the unrepresented person.

The need for lawyers to beclear with unrepresented personsabout their roles is illustrated byMatter of Greene, 6 N.E.2d 947(Ind. 2014), a recently decidedlawyer discipline case, in which

the Supreme Court found that the respondent violated Rule 4.3,among other rules, because a letteron the respondent’s letterhead, sent out by a hospital to dischargedpatients who had been in accidents,“obscured the relationship”between the hospital and thelawyer. In fact, according to theCourt’s opinion, the letter impliedthat the respondent was offering a service to the patient (to help getthe patient’s insurance to pay thehospital bill), when his real clientwas the hospital.

Dealing with constituents of a client organization

If the attorney represents anorganization as a client and dealswith employees or other con-stituents of the organization, simi-lar transparency considerationscome in to play. In Wartell one ofthe court’s considerations in decid-ing that the investigator was notacting as the university’s attorneywas that he did not inform the uni-versity employee that he was actingas the university’s attorney. In thatregard, the court referred to Rule ofProfessional Conduct 1.13, dealingwith the special responsibilities oflawyers who represent organiza-tional clients. Specifically, the courtquoted Rule 1.13(f), which states:“In dealing with an organization’sdirectors, officers, employees,members, shareholders or other

ETHICS CURBSTONE continued from page 15


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constituents, a lawyer shall explainthe identity of the client when thelawyer knows or reasonably shouldknow that the organization’s inter-ests are adverse to those of the con-stituents with whom the lawyer isdealing.”

Because corporate constituentsmight mistakenly view the organi-zation’s lawyer as being theirlawyer, too, they should be remind-ed that the organization’s lawyer isnot the constituent’s lawyer. Thatprudent conduct becomes manda-tory when the constituent’s inter-ests are potentially adverse to theorganization’s interests. Hence, the necessity of using what we havecome to call “Upjohn warnings,”after the Supreme Court’s decisionin Upjohn Co. v. United States, 449 U.S. 383 (1981).

ConclusionWhen lawyers are hired to con-

duct investigations, they shouldalways stop at the outset, clarify thenature of the engagement with theirclient, and document the engage-ment consistent with the purposeof the engagement. In doing so,lawyers should counsel the clientthat having the lawyer act solely as an investigator will mean thatcommunications with the clientwill not be treated as privilege andthe lawyer’s work product will notbe protected by the work productdoctrine.

Whether hired as a pure inves-tigator or as an attorney who willgive the client legal advice on thebasis of the facts discovered duringthe investigation, the lawyer mustact in conformity with the lawyer’sdesignated role and not misleadothers into thinking the lawyer is acting in some other capacity. �


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It is a convenient desktop resource, including Title 13 (Environment) of theIndiana Code, plus the Administrative Orders & Procedures Act (AOPA) andnumerous related statutes.

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Membership in the ISBA now includes free access to CaseCheck+, Casemaker’s negative citator system that rivals Shepard’s® and KeyCite®. Previously available only by subscription, Casecheck+ allows you to quickly determine if your case is good law.

www.inbar.org

At the fall meeting’s AwardsLuncheon in Indianapolis,the Indiana State Bar

Association recognized individualsfor their tireless efforts and out-standing achievements. To find out about each award and its recipient, visit http://tinyurl.com/award-recipients-photos-plus.

Presidential Citations

Kathleen G. Lucas, Indianapolis

Bryan E. Rogers, Schererville

Joel M. Schumm, Indianapolis

Beau F. Zoeller, Indianapolis

Civility AwardsSponsored 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 AwardSponsored by the Appellate Practice Section

Joel M. Schumm, Indianapolis

Rabb Emison AwardsSponsored by the Diversity Committee

Individual recipient – Michael E. Tolbert, Merrillville

Organization recipient – Cummins Inc.

GP Hall of Fame AwardsSponsored by the General Practice,Solo & Small Firm Section

William B. Bryan, Angola

John R. Carr III, Indianapolis

Women in the LawRecognition AwardSponsored by the Women in the Law Committee

Hon. Patricia A. Riley, Indianapolis

Hon. Viola J. TaliaferroAwardSponsored by the Civil Rights of Children Committee

Leslie S. Dunn, Indianapolis

Outstanding Judge AwardSponsored by the Young Lawyers Section

Hon. Michael D. Keele,Indianapolis

Outstanding Young Lawyer AwardSponsored by the Young Lawyers Section

Amanda C. Couture, Indianapolis

Liberty Bell AwardSponsored by the Young Lawyers Section

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

Trailblazer/Abriendo Caminos AwardSponsored by the Latino Affairs Committee

Kathrine D. Jack, Greenfield

Donald R. Lundberg Writing AwardSponsored by the Young Lawyers Section

Recipient ($200): “SuppliersBeware: Are You Exclusive WithYour Buyer?” by Ryan M. Schulz,Evansville (YLS Network, March2014)

Gale Phelps AwardSponsored by the Family & Juvenile Law Section

Hon. William J. Hughes,Noblesville

Affiliate Member AwardSponsored by the AffiliateMembership Committee

Debra L. Elsbury, Indianapolis

Community Service AwardSponsored by the Service Committee

Trevor J. Belden, Indianapolis

Erik Chickedantz Wellness AwardSponsored by the Wellness Committee

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

Henry Hurst Judicial Assistance AwardSponsored by the Federal Judiciary Committee

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The procedures forsealing/excluding docu-ments in Indiana courts

underwent a significant overhaul in 2014, and the extensive amend-ments to Administrative Rule 9(G)are effective Jan. 1, 2015. A summa-ry of these amendments follows,and counsel should be aware that, “[t]he failure to comply withany provision of 9(G) can subjectcounsel or a party to sanctions.”

Litigants and courts must startfrom the presumption thateverything filed in an Indianacourt 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) amendmentsmake clear that all Court Recordsare presumed to be open to thepublic and that these recordsshould be excluded from publicaccess only in a very limited num-ber of circumstances. These cir-cumstances can be considered interms 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 commonlaw mandates confidentiality; and

• cases/information that parties“want” excluded, but for whichthere is no existing statute or ruledeclaring it to be confidential.

The first categoryis the easier category.If a federal or statestatute, court rule orcommon law declaresthe information isconfidential, the par-ties have an obligationto exclude this infor-mation from publicaccess and do so by (1) filing the page containing the confi-

dential information on green paper;and (2) tendering a form “notice”to the Court/Clerk/Court Reporteridentifying the grounds on whichexclusion is based.

The second category of exclu-sion is much harder to satisfy.Examples of information that litigants often want excluded buthave no right to do so include salaryor compensation terms, covenant-not-to-compete details, settlementagreements (even if the agreementis “confidential” as between theparties), business or marketingstrategies, divorce cases with salacious allegations, counselingrecords, child custody evaluations,etc.

The amendments make clearthat parties cannot “agree” toexclude information from publicaccess; nor is a Trial Rule 26Protective Order a valid order upon which to exclude publicaccess. The only permissible way to exclude this type of informationis to comply with every require-ment in either A.R. 9(G)(4) or I.C. §5-14-3-5.5 (Access to PublicRecords Act).

PRACTICE NOTE: A.R. 9(G)allows exclusion to protect privateor public interests, but the Accessto Public Records Act allows sealingof records only when doing so pro-tects 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 thefour steps is not followed, the infor-mation cannot be excluded frompublic access: (1) a verified writtenrequest demonstrating certainrequired conditions; (2) notice tothe parties; (3) public hearing withadvance public notice; and (4) trialcourt enters a written order withspecific findings that “(i) States thereasons for granting the request;(ii) Finds the requestor has demon-

strated by clear and convincing evidence that any one or more ofthe requirements of 9(G)(4)(a)have been satisfied; (iii) Balancesthe Public Access interests served by this rule and the groundsdemonstrated by the requestor; and (iv) Uses the least restrictivemeans and duration when prohibit-ing access.”

Sealing records under theAccess to Public Records Actrequires meeting a three-part test:(1) public notice; (2) public hear-ing; and (3) written findings offact/conclusions of law “showingthat the remedial benefits to begained by effectuating the publicpolicy of the state declared in section 1 of this chapter are out-weighed by proof by a preponder-ance of the evidence by the personseeking the sealing of the recordthat: (1) a public interest will be secured by sealing the record; (2) dissemination of the informa-tion contained in the record willcreate a serious and imminent danger to that public interest; (3) any prejudicial effect created by dissemination of the informa-tion cannot be avoided by any rea-sonable method other than sealingthe record; (4) there is a substantialprobability that sealing the recordwill be effective in protecting thepublic interest against the perceiveddanger; and (5) it is reasonably necessary for the record to remainsealed for a period of time.”

Procedure for excluding information from public accessonce determination has beenmade that information is, in fact, eligible for exclusion

Many of the amendments toA.R. 9(G) address the procedure for excluding information. To start,separate written notice is nowrequired to alert the Clerk, Court or Court Reporter that the CourtRecord should remain excluded

ATT

ENTI

ON

Sealing/excluding documents in Indiana courtsBy Maggie L. Smith


Maggie L. Smith Frost Brown ToddIndianapolis, Ind.

[email protected]

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

and to provide the Court with the specific grounds justifying the exclusion. The type of noticerequired 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 Ver-sion.” In the Public Access version,everything is filed on white paperwith the confidential informationredacted (if it is only part of a page)or omitted (if it is a whole page).The separately filed Non-PublicAccess Version contains the confi-dential Court Record on greenpaper.

If, however, the informationthat was omitted or redacted “is notnecessary to the disposition of thecase, the excluded Court Recordneed not be filed or tendered in any form and only the PublicAccess version is required.” For example, if the Public Accessversion is redacted to remove asocial security/financial institutionnumber and those numbers areirrelevant to the issues in the litiga-tion, then the numbers need not beseparately provided on green paper.

Other amendments

The person or entity actually“affected by the release of the CourtRecord” can waive the right to keepit excluded, but the conduct of a party who is not affected by therelease does not operate as a waiver.

Amended A.R. 9 also changesexisting policy and makes clear that if the legislature or a court hasdeclared a Court Record to be con-fidential and the party or personaffected by the release of the CourtRecord has not waived that confi-dentiality, then a party’s initial fail-ure to properly exclude the CourtRecord will never forfeit the right to exclude a Court Record. Instead,the party who failed to exclude theCourt Record in the first place must

immediately “comply with therequirements of 9(G) to ensureproper exclusion.”

Conversely, if a court deter-mines that a party has improperlyfiled Court Records on green paperwithout first satisfying the require-ments of A.R. 9(G), the court mustprovide notice of this determina-tion to all parties and the improp-erly excluded records shall then bemade available for Public Accessseven days after such notice wassent unless, within that seven-dayperiod, the party or person affectedby the release of the records beginsthe process of properly excludingthe information pursuant to A.R.9(G)(4). �Maggie Smith has educated the benchand bar on the topic of AdministrativeRule 9(G) for many years. She is halfwaythrough her 10-year term on the SupremeCourt Committee on Rules of Practice &Procedure, which is the committee vested

with the responsibility to study theIndiana Rules of Procedure (Trial,Criminal, Evidence, Administrative,Admission & Discipline, Jury, Appellate,Professional Conduct, Judicial Conduct,etc.) and evaluate and provide recom-mendations and proposed amendmentsto these rules. She is a member with FrostBrown Todd and practices in the area ofappellate litigation.


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Born in Lawrenceville, Ill., on April 5, 1912, Cale JamesHolder lived most of his

life in Indianapolis. A graduate ofShortridge High School, he earneda Bachelor of Laws degree from theBenjamin Harrison Law School in1934, attending night school whileworking during the days in a gro-cery store. That same year, he wasadmitted to the practice of law inIndiana and began his practice. In 1938, Judge Holder completedone year of post-graduate work andearned a Juris Doctor degree fromthe same institution. He continuedhis education in 1939 by studyingadministrative law at IndianaUniversity in Indianapolis. From1940 to 1942, he served as a deputyprosecutor in the Marion CountyCriminal Court.

Judge Holder’s father was adiehard southern Indiana Demo-crat, prompting Judge Holder laterto explain how it was that he him-self became a Republican. Notbelieving that “things could be thatone-sided,” in 1932 he “turned tothe Republican Party to find out”for himself about the other side, a decision he said he never regret-ted. His political philosophy, aslater events would confirm, guidedhim to the federal bench: “There is only one way to play politics –never quit your team, win, lose ordraw.”1

April 16, 1942 – the same dayhis active service commenced with

the United States Navy– also marked the date of Judge Holder’smarriage to MarthaMae Stanton ofSouthport, Ind. Theirdaughter and onlychild, Martha Sue, wasborn in San Franciscoin 1944, just 10 daysbefore he was shippedoverseas. Beginning as an ensign, Judge

Holder’s rank in the Navy rose to lieutenant by the time of hishonorable discharge in 1946. Afterreturning home, he renewed hisconservative Republican ties that he had formed before entering the service, eventually becoming a GOP ward chairman in Indianap-olis. In 1946, he joined with other local young Republicans in Indianapolis to found andbecome the first president of the Marion County RepublicanVeterans of World War II, a groupthat served as a springboard for his subsequent wider involvementin Indiana Republican politics.

In February of 1946, JudgeHolder was named assistantRepublican county chairman incharge of veterans affairs. Over thenext few years, his political résuméexpanded to include a variety oflocal GOP leadership positions. In June 1949, he became theyoungest GOP state chairman inIndiana in more than half a centu-ry. The Indianapolis Star creditedhim with bringing a “new look” to the Republican party, describinghim as a person who did not resem-ble the stereotypical politician, byeschewing cigars, loud oratory andsmoke-filled rooms and preferring“party teamwork to ‘bossism.’” His clean-cut appearance and repu-tation for delivering on his promis-es helped to solidify Judge Holder’spolitical 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 HoosierRepublicanism, joining U.S. Sena-tors William Ezra Jenner andHomer E. Capehart in a powerfultrifecta.

The year 1952 was a turbu-lent one in state and nationalRepublican politics. The upcomingpresidential election caused a seri-ous rift between supporters of Gen.Dwight D. Eisenhower and those

supporting Ohio Sen. Robert A.Taft. Judge Holder and both ofIndiana’s two U.S. senators linedup behind the conservative Taft.Local opposition to Taft was spear-headed in part by the publisher ofThe Indianapolis Star, Eugene C.Pulliam. The battle between theTaft and Eisenhower factions intensified at the 1952 RepublicanNational Convention. When Gen.Eisenhower won the nominationon the first ballot, Judge Holder, as chair of the Indiana delegation,and Sen. Jenner stood their ground,refusing to allow the Indiana dele-gates to join the convention band-wagon.3 After the Republican con-vention, despite his initial opposi-tion, Judge Holder supported hisparty’s choice and personally head-ed up Eisenhower’s campaign inIndiana. The result was an over-whelming Indiana victory for Ike.

In November 1952, JudgeHolder submitted his resignation asRepublican state chairman, accus-ing certain factions of the HoosierRepublican Party of trying to makeof him a “whipping boy.”4 Within afew months, however, Judge Holderwas appointed to serve as one of 25deputy state attorneys general. Heheld this post during most of 1953.

The enmity between JudgeHolder and Gene Pulliam surfacedagain in 1954 when both Indianasenators, Jenner and Capehart, recommended Holder for appoint-ment to one of two new federaljudgeships authorized by Congressfor Indiana. At the time, theSouthern District of Indiana wasserved by a single federal judge,William E. Steckler. Even beforeHolder was officially nominated,the two Indianapolis newspapersowned by the Pulliam family, the Star and the News, launched a campaign against him. TheIndianapolis Times entered the fray over Holder’s nomination bypublishing an editorial describing

Judge Cale James Holder: the ‘Golden Eagle’By Suzanne S. Bellamy


Suzanne S. BellamyIndianapolis, [email protected]

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

Holder as “a lawyer of unques-tioned integrity and character whohas given long, distinguished andunselfish service to the RepublicanParty” and whose appointment was supported in writing by the topbusiness, labor, banking and politi-cal leaders of the state.5 Pulliam’sefforts were unsuccessful, and onAug. 2, 1954, President Dwight D.Eisenhower formally nominatedHolder at age 42 to the newly created second judgeship for theUnited States District Court for the Southern District of Indiana.Nearly 1,000 people attended JudgeHolder’s swearing-in ceremonyheld at the Federal Court House in Indianapolis on Aug. 21, 1954.

When interviewed severalweeks after his appointment, JudgeHolder succinctly summarized hisjudicial philosophy in these words:“I do not believe any human beingis really bad, without some reason

to be. I believe the purpose of acourt is to salvage those who can be salvaged. That is the basis of our court system.” He stressed thatcriminal defendants were individu-als, the circumstances of whoselives merited examination by thecourt. Taking pains to explain todefendants their rights under theU.S. Constitution, Judge Holdersaid, “It would be better that oneguilty person went free than oneinnocent person go to prison.”6

He demonstrated a concern forfairness and equality before the law throughout his career.

In mid-1959, Judge Holder wasassigned the largest excise tax eva-sion case tried up to that time in afederal court. The trial of eight menaccused of being involved in a gam-bling syndicate was held in the federal courthouse in Terre Hautebefore Judge Holder. The defen-dants, 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 ofthe most expensive legal talent inthe country. After a lengthy juryselection process, Judge Holdersequestered the chosen jury, a moveunprecedented in recent federalcourt history and done “to safe-guard the rights to a fair trial.”7

Nearly 100 witnesses took thestand over the next six weeks, most-ly bettors who had placed wagerswith the syndicate, including filmcomedian Zeppo Marx, who toldthe court that he had heard in LasVegas that he could call a bookie in Terre Haute to wager on footballgames. The Indianapolis Stardescribed the scene, saying “thecourtroom and corridors wereclogged with curious housewiveshovering around for a look atMarx,” while “silk-shirted bookies”and other prospective witnesses“were wilting fast at the end of the humid day.”8 Ultimately, all eight defendants were foundguilty by the jury.

In 1967, Judge Holder handeddown the first of several significantcivil rights rulings. In a suit filed by the NAACP on behalf of sevenschool students, the court wasasked to determine if the Kokomoschools had practiced segregationand imposed limitations on certainblack children by assigning them to schools where they would receiveunequal educational opportunities.After personally touring the tworeferenced school buildings, bothmore than 50 years old with pre-dominantly black enrollments,Judge Holder ordered them closed, holding that “[t]he physicalfacilities of the Willard-DouglassSchools [in Kokomo] are too small,outmoded, and insufficient inmany details to fulfill the educa-


Photo of Ju

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tional needs of the pupils or pro-vide a workshop for the teachers to have incentive to practice theirprofession.”9 Later, he ordered theschools closed sooner rather thanlater, citing the stigma attached tostudents required to attend them,and directing that the children bebrought into regular classrooms at other schools, not into separateclasses.10

In 1975, Judge Holder presidedover another key civil rights casefiled by Bruce Bailey of Gary andthe Indiana NAACP, charging theIndiana State Police with raciallydiscriminatory hiring practices. Atthat time, the State Police had only14 black employees out of a totalforce of 1,340. All applicants wererequired to achieve a minimumI.Q. test score, but few black appli-cants had been successful in attain-ing that goal. Judge Holder deter-mined that the testing procedureswere racially discriminatorybecause the test did not cover job-related matters. State Police wasordered to take affirmative steps to increase the number of blacktroopers in the force.11 Ultimately,Judge Holder approved a consentdecree that ended the use of theI.Q. tests or other written examina-tions unless first approved by theEqual Employment OpportunityCommission; the State Police wasalso enjoined from rejecting anyapplicant who had a record ofarrest without conviction or a lessthan honorable military dischargeor a poor credit rating. The consentdecree required the State Police toallocate 40 percent of the spots ineach recruiting class for black appli-cants until a total of at least 7 per-cent of the department’s employeeswere black. The decree furthermandated that the State Police contact applicants who had recentlybeen rejected due to low scores on the I.Q. test and inform them of their right to reapply.12

In the final major civil rightstrial of his career, Judge Holderpresided in a bench trial of threeMuncie men charged with fire-bombing the home of a black fami-ly in a largely white neighborhoodin 1980. Noting that the firebomb-ing culminated a 5-week long cam-paign of harassment and intimida-tion of the family, Judge Holderobserved that the victim had beenforced to sleep in the living roomwith a gun nearby in order to pro-tect his family. The defendants, saidHolder, engaged in a conspiracy to“intimidate the ... family and theirchildren from their rights guaran-teed by the law to own and occupya dwelling without fear of harass-ment because of their race.”13

He sentenced each of the three to a6-year term.14 The Seventh CircuitCourt of Appeals upheld JudgeHolder’s convictions of the threemen the following year.

In a case arising out of theVietnam War-era protests, ArthurBanks, a well-known AfricanAmerican actor and playwright whohad resisted the draft in the early1970s, received a 5-year federalprison sentence to be served in thefederal penitentiary in Terre Haute,Ind. While incarcerated there,Banks led a group of black prison-ers in protesting discriminatorytreatment by the prison officials of another inmate. In the course of being transferred to solitary confinement as punishment for hisactions, Banks attacked two prisonguards for which he was indictedfor assault. No doubt due to hisprominence and the highly chargedpolitical climate at the time, his casebecame a cause célèbre, exacerbatedwhen noted civil rights attorney,William M. Kunstler, entered anappearance to represent Banks athis trial. At a hearing on April 1,1973, the judge barred Kunstlerfrom continuing to represent Banksin this matter, ruling that he had

engaged “in a pattern of pretrialpublicity” that had diminished the prospects of Banks receiving a fair trial before an impartial jury.Holder found that Kunstler hadviolated the Canon of Ethics, whichhe ascribed to his political motiva-tions. Incensed by the decision,Kunstler characterized it as “one ofthe grossest violations of constitu-tional rights I have ever seen andcertainly a grotesque distortion ofthe law.”15 Judge Holder respondedto Kunstler’s attacks by notifyingthe Seventh Circuit that he had“fully and properly performed [his]judicial responsibility in making the ruling in question. The ultimatepurpose of a criminal action is thesearch for the truth and the deter-mination of whether the prosecu-tion has established the guilt of Mr. Banks of the charged crime of assault and battery. The courtcannot allow the pretrial and trialproceedings to be used for anyother purpose.”16 The SeventhCircuit Court of Appeals disagreedwith Judge Holder’s ruling and permitted Kunstler to continue torepresent Banks. The governmentultimately dismissed the assaultcharge against Banks.17

Judge Holder also presidedover the trial of Dr. John D. Lind,an Anderson physician, who wasindicted in April 1976 on chargesrelating to the bombing of aplumbing supply company. Theheadless torso of Gary W. Lake,who had participated in the bomb-ing and served as a governmentinformant, was found in November1975 floating in a farm pond, a few days after Lake had provideda detailed statement to law enforce-ment detailing his involvement in the bombing and disclosing thenames of the persons who paid to have the bombing committedallegedly due to bad feelings over a charge for plumbing supplies. Dr. Lind retained F. Lee Bailey

JUDGE HOLDER continued from page 23


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as his counsel. Bailey’s presencecreated a certain excitement inIndianapolis since just weeks earlierhe had concluded his defense ofPatty Hearst in her bank robberytrial in California. Judge Holderdenied Dr. Lind’s motion forreduction of the $750,000 bond set by the grand jury.18

At Dr. Lind’s trial held the following year, the jury returnedverdicts of guilty on five charges of federal firearms violations.19

Dr. Lind maintained his innocenceand provided no cooperation in the investigation of Lake’s murder. He requested that, in lieu of prison,he be allowed to practice medicineamong poor people, but JudgeHolder declined that offer, sayingthat the federal prison would find a use for his talents. Dr. Lind wassentenced to nine years in prisonand fined $10,000. No one was evercharged in the death of Gary Lake.

William Chaney, formerIndiana grand dragon of the KuKlux Klan, was indicted in 1976 forthe firebombing of an Indianapolisadvertising firm. Two successivetrials resulted in jury convictions,each of which was subsequently setaside by the Seventh Circuit Courtof Appeals. Chaney’s third trial wasassigned to Judge Holder. The trialwas moved from Indianapolis toEvansville during jury selectionafter several prospective jurorsadmitted they had been discussingthe case with one another inadvance of voir dire. Judge Holderobserved on the record: “Today itappears the powers that be want usto try cases in a near vacuum andthat’s doggone near impossible.”The third trial ended in a mistrialwith a “hung jury.” A fourth trialcommenced in Terre Haute in1979, at the conclusion of whichthe jury found Chaney guilty ofthrowing Molotov cocktails at the Naegele Outdoor AdvertisingCompany during a strike by

Naegele employees. The evidencedisclosed that Chaney’s employ-ment ended when he was fired by Naegele’s predecessor, and hisviolence was in retaliation towardthe company and in support of thestriking employees. Judge Holderaffirmed that in his view the fire-bombing occurred in connectionwith a labor dispute and was not

related to Chaney’s Klan affiliation,despite Chaney’s efforts to assertgovernment harassment based on his Klan ties. Chaney received a 5-year sentence of imprison-

ment.20

Judge Holder enjoyed a nearlegendary reputation for presiding


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

over pretrial settlements in civilcases. He was quoted as saying thatvery few cases were worth going totrial over, that “when a case comesto 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 specialjudicial committee considered a remarkable feat by engineering settlements, over a 3-year period, of 143 separate claims resultingfrom the 1969 crash of an Alle-gheny Airlines plane in ShelbyCounty, Ind., in which 83 peoplehad died.

Judge Holder’s reputation as a settlement judge was furtherenhanced in August 1978 followinga lengthy, complex, highly con-tentious case involving windowbreakage and resultant leaks at thethree recently constructed high-risePyramid Office Buildings on thenorthwest side of Indianapolis.After the parties’ resistance to JudgeHolder’s settlement efforts necessi-tated a 5-month jury trial, whichended with a verdict in favor ofCollege Life Insurance Company,the owner of the buildings, and anaward of approximately $20 millionin damages, including punitivedamages, a second trial was set tobegin before Judge Holder, involv-ing cross-claims between andamong the various defendants. Thejudge urged the attorneys to asserttheir “professional leadership” toassist their clients in fashioning anout-of-court settlement. Ultimatelyhis exhortations were successful.The jury’s award was reduced bynearly half, and all appeals andcross-claims were dismissed.22

In the first nationwide strike offederal workers in history, air trafficcontrollers walked off their jobs inAugust 1981, crippling commercialflights across the country. PresidentRonald Reagan ordered that anystriking controller who refused

to return to work within 48 hourswould be fired. When litigation wasfiled in Indianapolis, Judge Holderordered striking air controllers back to work at IndianapolisInternational Airport and bannedfurther picketing.23 To secure compliance with his injunction,Judge Holder ordered each strikingPATCO (Professional Air TrafficControllers Organization) employ-ee to surrender one motor vehicleto the U.S. Marshal, who wouldimpound it until the air traffic con-troller returned to work. It was ahighly effective order, promptingthe families of the workers to addtheir own pressures for them to get back to work so they could havetheir cars back. After the SeventhCircuit Court of Appeals upheld his ruling, Judge Holder issued apermanent injunction prohibitingmembers of PATCO from interfer-ing with air traffic or working con-trollers anywhere in the SouthernDistrict of Indiana.24

On Aug. 24, 1983, JudgeHolder died, three days after suffering a stroke at his home in Indianapolis. Upon learning of his death, Indiana GovernorRobert Orr and Indianapolis MayorWilliam Hudnut ordered flags onpublic buildings lowered to half-staff. The Indianapolis Star editori-alized:

In his 29 years on the bench, U.S.District Judge Cale J. Holder wasscrupulous, 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 resolutionhonoring Judge Holder, theIndianapolis chapter of the FederalBar Association recalled his nick-name, the “Golden Eagle,” declar-ing it “the embodiment of the manhimself … [s]talwart, gentlemanly,dynamic, patriotic, efficient, dili-gent, and intelligent.” Beloved by

his family, respected by his peersand colleagues, and remembered byall who had the privilege of know-ing him, Cale James Holder was aremarkable judge who contributedin significant ways to the enhance-ment of his community, state andcountry, and the cause of justice. �1. Indianapolis Times, Aug. 8, 1954.

2. Indianapolis Star, Oct. 23, 1949.

3. Russell Pulliam, Publisher: Gene Pulliam, Lastof the Newspaper Titans (Ottawa, IL: JamesonBooks, 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 DailyStudent, 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 andDec. 27, 1978.

21. Indianapolis Star, Aug. 24, 1983. Lawyers who appeared regularly before Judge Holderremembered his saying that cases go to trial forone 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.


24. Indianapolis News, Nov. 16, 1981.


Suzanne S. Bellamy, J.D., Indianapolis, is a researcher and writer. She is theauthor of Hoosier Justice at Nuremberg(2010), published by the IndianaHistorical Society Press; a former edi-torial assistant on the Papers of Lew and Susan Wallace; and served as assis-tant general counsel of Anacomp, Inc.

JUDGE HOLDER continued from page 25


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KEEP CALMAND

LAWYER ON

FRENCH LICK RESORTJUNE 4-6, 2015

INDIANA STATE BAR ASSOCIATION SOLO & SMALL FIRM CONFERENCE

The Indiana Supreme Courtissued four opinions in themonth of August, includ-

ing two civil matters, which aresummarized below. The SupremeCourt additionally granted transferin three civil matters, which are alsosummarized in this article. For themonth of August, the IndianaCourt of Appeals issued 16 pub-lished civil opinions, several of which are highlighted herein. The full text of all Indiana appellatecourt decisions, including thoseissued not-for-publication, are available via Casemaker atwww.inbar.org or the IndianaCourts website, www.in.gov/judiciary/opinions.

INDIANA SUPREME COURT

Issue of first impression:Whether the Indiana MedicalMalpractice Act’s cap on

attorney fees from the Patient’sCompensation Fundapplies to reduce the Fund’s liabilityto claimant

In IndianaPatient’s CompensationFund v. Holcomb, 17 N.E.3d 255 (Ind.2014), the Estate of thedecedent brought anadult wrongful deathmedical malpracticeaction against a nurs-ing home. The nursinghome settled the claimfor $250,000, the max-imum liability underthe Indiana MedicalMalpractice Act(“MMA”), and there-after the IndianaPatient’s Compensa-tion Fund (the“Fund”) paid theEstate about $100,000to settle its excess

damages claim under the Adult Wrongful Death Statute(“AWDS”). The issue of firstimpression was whether the MMA’scap on attorney fees from a Fundaward also applies to reduce theFund’s liability. The IndianaSupreme Court declined to con-strue the Fee Cap Provision of theMMA, Indiana Code section 34-18-18-1, to reduce the Fund’s liabilityto a plaintiff AWDS claimant. The Court held that the “Fee CapProvision applies only to cap thefees that the plaintiff’s lawyer maycharge his or her client as to theaward the client receives from theFund, but it does not lessen theFund’s liability to a claimant.”

The Court found the plainmeaning of the Fee Cap Provisionof the MMA to be dispositive andexplained that “[i]n crafting thelanguage of the Fee Cap Provision,the General Assembly did not directany reduction in the Fund’s liabilityto a plaintiff, nor any methodologyto be employed. Rather, the 15%limitation expressly applies to ‘the plaintiff’s attorney’s fees,’ Ind.Code § 34-18-18-1 ... the attorneyfees that an attorney could chargehis or her client on the client’saward 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 directedsuch result, specified the method of calculation to be utilized, andplaced the Fee Cap Provision inChapter 14 of the MMA – the chap-ter entitled ‘Limits on Damages.’See Ind. Code § 34-18-14 et seq.”Based on this analysis, the Courtconcluded that “[p]rinciples ofjudicial restraint compel us tointerpret and apply the Fee CapProvision as written and to refrainfrom judicially rewriting this legislative enactment.”

Corporate taxpayers cannotincrease net operating losses for carryover to other tax yearsby incorporating their foreignsource dividend income deduction

In a unanimous opinion captioned as Department of StateRevenue v. Caterpillar, Inc., 15N.E.3d 579 (Ind. 2014), the IndianaSupreme Court held that whileIndiana’s tax statutes expresslyauthorize corporate taxpayers todeduct some foreign source divi-dend income when calculatingIndiana adjusted gross income(“AGI”), the plain meaning ofthose tax statutes prohibit compa-nies such as Caterpillar from usingthat same deduction to increasetheir Indiana net operating losses(“NOL”) available for carryover to other tax years. The Court alsorejected Caterpillar’s argument“that disallowing the deduction discriminates against foreign commerce under the ForeignCommerce Clause of the FederalConstitution.”

The Indiana Tax Court hadheld that every deduction that wasapplicable to calculate AGI, includ-ing the foreign source dividenddeduction, was also applicable tocalculating NOL. While acknowl-edging that it exercises “cautiousdeference” to the Indiana TaxCourt because of “its unique exper-tise in Indiana tax law,” the IndianaSupreme Court reversed the TaxCourt’s decision as contrary to the plain meaning of the Indianastatute for calculating NOL,Indiana Code section 6-3-2-2.6(c)(“NOL Statute”). The Court rea-soned that the plain language of the NOL Statute explicitly statesthat net operating losses are to be“adjusted for the modificationsrequired by I.C. 6-3-1-3.5,” and theforeign source dividend deductionis not one of these “modifications.”The Court also noted that federal

REC

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8/14

Appellate civil case law updateBy Curtis T. Jones and John Z. Huang


John Z. HuangBose McKinney & Evans LLP


Curtis T. JonesBose McKinney & Evans LLP


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tax law does not allow every modi-fication to federal taxable income to apply in calculating federal NOL.

Finally, the Court rejectedCaterpillar’s contention that theIndiana tax statutes facially dis-criminate against foreign com-merce by disallowing the foreignsource dividend deduction in theIndiana NOL calculation, butincorporating the federal domesticsource dividend deduction in thesame calculation. The Court notedthat Caterpillar’s constitutionalargument rested on an inapplicableU.S. Supreme Court case involvingtaxable income and not net operat-ing losses.

INDIANA SUPREME COURTTRANSFER ORDERS

Both FSSA and IBM breachedcontract intended to improveIndiana’s welfare system

In State ex rel. Indiana Family& Social Services Administration v.International Business MachinesCorp., 4 N.E.3d 696 (Ind. Ct. App.2014), the State, on behalf of itsagency, the Indiana Family & SocialServices Administration (“FSSA”),entered into a 10-year, $1.3 billioncontract with IBM to modernizeand improve the State’s welfare sys-tem. IBM agreed to the State’s pro-posal on how to accomplish thistask. IBM received $437 millionwhile assuring the State that it wasup to the task. Less than three yearsinto the 10-year contract, the Stateterminated the contract, citing IBMperformance issues, and the partiessued each other for breach of con-tract on the same day in MarionSuperior Court. The State soughtmore than $170 million in dam-ages, and IBM sought almost $100million. The trial court grantedIBM summary judgment for $40million in assignment fees and,after a six-week bench trial, foundno material breach on IBM’s partand awarded IBM an additional

$9,510,795 in equipment fees,$2,570,621 in early terminationclose out payments, and$10,632,333 in prejudgment interest, totaling $62,713,749.

On appeal, the Indiana Courtof Appeals (1) reversed the trialcourt’s finding that there was nomaterial breach based on its con-trary conclusion that IBM failed to

provide timely services to the poor;(2) reversed the trial court’s awardof early termination close out pay-ments and prejudgment interest toIBM; (3) affirmed the trial court’saward of $40 million in assignmentfees and $9,510,795 in equipmentfees to IBM; (4) affirmed the trialcourt’s denial of deferred fees to



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

IBM; and (5) remanded the case to the trial court to determine theamount of fees IBM is entitled tofor Change Orders 119 and 133,and to determine the State’s dam-ages 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 theyhave since agreed to do so.)

Issue of first impression: UM insurance coverage limitsinadmissible at trial

In State Farm Mutual AutoInsurance Company v. Earl, 3N.E.3d 1009 (Ind. Ct. App. 2014),the Indiana Court of Appeals decided an issue of first impression:namely, whether uninsuredmotorist (UM) insurance limits areadmissible in a jury trial on a plain-tiff’s claim seeking UM coveragebenefits under his automobileinsurance policy. Here, the juryreturned a verdict for the plaintiffof $250,000, the per person bodilyinjury limit on the plaintiff’s UMinsurance coverage, after the plain-tiff was injured in a motorcycleaccident through no fault of hisown. State Farm contended thatevidence of the bodily injury limitwas both irrelevant and prejudicial,and the Indiana Court of Appealsagreed. The court concluded that“[i]n this case, when the only issueto be determined was damages[caused to the plaintiff by the uninsured motorist], evidence ofthe bodily injury limit in the [plain-tiff’s] policy was irrelevant to theissue being decided.” The trialcourt’s admission of the coveragelimit was, therefore, prejudicial to the plaintiff, “in light of the factthat the jury awarded precisely the coverage limit.” The IndianaSupreme Court granted transfer.

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Insurer not required to obtaincertificate of authority to sell insurance product

In State Board of Funeral andCemetery Service v. Settlers LifeInsurance Company, 5 N.E.3d 1170(Ind. Ct. App. 2014),1 the IndianaCourt of Appeals addressedwhether the product sold by Settlers Life Insurance Company(“Settlers”), comprised of an insur-ance policy with an option to assignthe policy to a trust that fundsfuneral 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 determinedthat Settlers’ insurance product didnot fall within the statutory con-fines of the Pre-Need Act. The StateBoard of Funeral and CemeteryService (“Board”) appealed, con-tending that Settlers’ product wasintended to provide funding for thepurchase of funeral services or mer-chandise, which is the same pur-pose the products regulated by thePre-Need Act was intended to ful-fill, and that all lawful funeral trustsmust comply with the Pre-NeedAct. The Court of Appeals affirmedthe trial court and held that the life insurance product did not fallunder the Pre-Need Act, so as torequire Settlers to obtain a certifi-cate of authority to sell pre-needinsurance. The court reasoned that(1) the product did not “obligatethe seller to provide pre-paid services or merchandise”; (2) theinsurer was not a “seller” since itdid not contract to provide servicesor merchandise, but simply paid adeath benefit; and (3) the productwas not designed to cover pre-needpurchases, but rather to provide forat-need services and merchandiseto be purchased after the insureddied. The Indiana Supreme Courthas granted transfer.

INDIANA COURT OF APPEALS

Law firm is not entitled to fees for contingency cases its associate took with himupon departure from the firm

In Cohen & Malad, LLP v.Daly, 17 N.E.3d 940 (Ind. Ct. App.2014), the issue before the courtwas whether a law firm is entitled to quantum meruit compensationfrom the fees generated on the casesthat an at-will associate takes withhim after departure from the firm.Associate Daly worked at the lawfirm of Cohen & Malad, LLP (“C &M”) from 2008 to 2011. In 2011,Daly left C & M and took 24 con-tingency fee cases with him to thelaw firm of Golitko & Daly. After afour-day bench trial, the trial courtfound, in relevant part, that (1) theclients in the 24 cases had chosen tocontinue with Daly as their attorneyupon his termination with C & M;(2) there was no agreement in placebetween Daly and C & M regardingwhat would happen if they partedways; (3) the employment agree-ment between Daly and C & M did

not include any covenants regard-ing noncompetition or provisionabout ownership of files; (4) whileDaly was being paid a salary by C &M, C & M was well-compensatedfor Daly’s time; and (5) includingDaly’s hours while at C & M, C &M attorneys had contributed a totalof 1,014.64 hours on the 24 cases inquestion. C & M maintained that,under the quantum meruit recoveryrule established in Galanis v. Lyons& Truitt, 715 N.E.2d 858 (Ind.1999), it should be compensated for those hours.

The trial court disagreed andheld that Daly was not unjustlyenriched and therefore C & M was not entitled to quantum meruitcompensation as a result of the feesgenerated on the cases that wentwith Daly when he left C & M. The Indiana Court of Appealsaffirmed, relying almost exclusivelyon the trial court’s findings. In doing so, the court declined toapply the quantum meruit recoveryrule established in Galanis, whichstated that, in the absence ofexpress written fee agreements



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providing otherwise, a lawyerretained under a contingent agree-ment fee contract but dischargedprior to the contingency is entitledto recover the value of services rendered if there is a subsequentsettlement or award.

There can be no claim for monetary damages arising from the Indiana Constitution

In McIntire v. FranklinTownship School Corporation, 15 N.E.3d 131 (Ind. Ct. App. 2014),a parent filed a complaint againstthe Franklin Township SchoolCorporation for damages andinjunctive relief, claiming that theSchool Corporation violated theIndiana 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 trialcourt held that: (1) the parent’sclaim was barred by her failure to provide the required noticeunder the Indiana Tort Claims Act(“ITCA”); and (2) Article 8, Section1 of the Indiana Constitution doesnot provide for a private cause ofaction for monetary damages. Onappeal, the court held that (1) theparent’s complaint was not basedon a “loss” as defined by the ITCAbecause her claim was not based onan injury to or death of a person ordamages to property, and thereforeshe did not have to provide therequired notice; and (2) the parentmay not maintain a claim for mon-etary damages under Article 8,Section 1 of the Indiana Constitu-tion because “there can be no claimfor monetary damages arising outof the Indiana Constitution.” Thecourt noted that the parent couldhave sought another remedy for the alleged constitutional violation,namely immediately seeking

injunctive relief before paying the fees.

Indiana Utility RegulatoryCommission’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 IndianaUtility Regulatory Commission(“the Commission”) approving a request from Duke Energy toinclude power plant constructioncosts incurred April 1, 2012 to Sept.30, 2012 in a rate adjustment rider,in implementation of a settlementagreement between Duke Energy,the Indiana Office of UtilityConsumer Counselor (“theOUCC”) and other entities.Interveners challenged theCommission’s ratemaking order as contrary to law because: (1) theCommission applied an incorrect

statutory standard that placed anundue burden upon Intervenerswhen the Commission approvedthe total of requested construction-related financing costs despite a two-and-one-half-month delay in construction; or (2) theCommission disregarded relevantcase law by approving capitalizedfinancing costs that permitted areturn on capital contributed fromratepayers attributable to deferredtaxes.

On appeal, the court upheldthe Commission’s order andrefused to “reweigh the evidence,find credible the testimony thatDuke simply should not have letthe delay happen, and order areduction in the amount of con-struction costs allowed.” The courtreasoned that “[t]he allowance ofcosts is inherent in the ratemakingprocess and we accord deference tothe Commission. The Commissiondid not act contrary to law when itfound the ‘technical problems asso-ciated with human errors, equip-ment failures, or a combination of

RECENT DECISIONS 8/14 continued from page 31


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the two … within the control of theCompany or its contractors’ didnot preclude Duke’s recovery of itscosts.” As to Interveners’ secondissue for review, the court deter-mined that settlement proceedingsand the prior appeal relating to theCommission’s approval of capital-ized financing costs, for construc-tion of the power plant, recoverablefrom ratepayers in the form of arate adjustment rider, were res judi-cata to the Interveners’ claim thatan improper mathematical calcula-tion allowed an impermissiblereturn on customer investment.

Indiana General WrongfulDeath Statute allows reasonablerecovery of attorney fees for decedents who are survivedby dependents

In SCI Propane, LLC v.Frederick, 15 N.E.3d 1015 (Ind. Ct.App. 2014), the personal represen-tative of the decedent’s Estate

brought a wrongful death actionunder the General Wrongful Death Statute (“GWDS”) against a provider of metered propane services and its related entities aris-ing from a propane gas leak andexplosion at a home after thehomeowner replaced a gas-controlvalve 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 judgmentawarding the Estate more than $2.5 million in attorney fees andexpenses. On appeal, in an issue of first impression, the court heldthat 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 typeexplicitly delineated, allows recov-ery of reasonable attorney fees for decedents who are survived

by dependents. The court reasonedthat “(1) attorney fees are the ‘type’of damages contemplated by thestatute; (2) such a conclusion comports with our principles ofstatutory construction; and (3) theLegislature has ‘acquiesced’ to therecoverability of attorney fees.” �1. The Indiana Supreme Court granted transfer

in this case on Aug. 7, which usually vacatesthe Indiana Court of Appeals opinion. Here,the Indiana Supreme Court’s grant of transferdid vacate the Indiana Court of Appeals opin-ion, but on Oct. 7 the Indiana Supreme Courtreinstated the Court of Appeals opinion as No. 49S05-1408-PL-514, 2014 WL 5033124(Ind. Oct. 7, 2014).

Curtis Jones is a partner at BoseMcKinney & Evans LLP in the litigation,insurance and appellate groups. While at Valparaiso University School of Law,Curtis served as executive symposiumeditor for the Valparaiso University Law Review, earned an honors programscholarship, and served for a year in anexternship with the Hon. Kenneth F.Ripple, United States Court of Appeals,Seventh Circuit. Upon graduating andprior to joining BME, Curtis served as ajudicial law clerk to Justice Theodore R.Boehm on the Indiana Supreme Court.His email is [email protected].

John Z. Huang is an associate at BoseMcKinney & Evans LLP in the litigation,labor & employment, education andinsurance groups. While at Notre DameLaw School, John served as symposiumeditor for the Notre Dame Journal ofLaw, Ethics & Public Policy, was aWhite Scholar, and served as president of the Public Interest Law Forum. Upongraduating and prior to joining BME,John served as a judicial law clerk toJustice Frank Sullivan Jr. on the IndianaSupreme Court, assistant litigation counsel with the City of IndianapolisOffice of Corporation Counsel, and staff attorney with the Indiana Depart-ment of Education. His email [email protected].

RECENT DECISIONS 8/14 continued from page 33


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

The perfect storm

What is the cloud? Youmay have heard aboutsoftware that runs in the

cloud or backup services that storedata in the cloud, but what is it,really? The “cloud” is, like TheMatrix, everywhere and nowhere.While it can provide great benefitsto someone who understands it forwhat it is, it may contain hiddenpitfalls for those who do not.

In the 1940s, Sir CharlesDarwin, the head of Great Britain’sNational Physics Laboratory andthe grandson of the famous natu-ralist, opined that “[i]t is very pos-sible that … one machine wouldsuffice to solve all the problems thatare demanded of it from the wholecountry.”1 In 1952, Howard Aiken,designer of the Harvard Mark Icomputer, said, “Originally onethought that if there were a halfdozen large computers in thiscountry, hidden away in researchlaboratories, this would take care of all requirements we hadthroughout the country.”2

When Darwin and Aikenreferred to “machines” and “com-puters,” they had mainframes inmind.3 Indeed, until the 1980s,most computation was done onmainframes – massive machinestaking up most of a room (or mostof several rooms) with far less com-putational power than your smart-phone. Small devices known asdumb terminals were used to accessa mainframe. The mainframe hadall the data storage and all of theprocessing power. The dumb ter-minals themselves could do next to nothing as they were little morethan a monitor attached to a key-board.

Over time, computing hasmoved away from mainframes andtoward cheap, almost disposablemachines called personal comput-ers. These personal computers have

to be managed. They are bound,more or less, to a particular loca-tion. Viruses and malware cancompromise them. Ultimately theyare left behind by the pace of tech-nology. Most businesses would pre-fer to focus on core competenciesrather than sink money into theoverhead of a large IT staff or com-puter hardware. Cloud servicesallow a company to do that. Thereare cloud email providers, manystorage and backup providers,accounting and invoicing packages,and office suites. Combined withonline legal research suppliers likeLexis, Westlaw and Casemaker, anentire law office could be run withno more software than a Webbrowser. This is, of course, not somuch a new concept as a return tothe era of the mainframe. Instead of having a huge machine onsite,running hundreds or thousands of dumb terminals, we have a datacenter located somewhere in theworld interacting with clientsthrough Web browsers or otherspecial software.

The precise origin of the term“cloud” is probably related to net-work or organizational diagramswhere the Internet or other “blackbox” resources were drawn using a blob or cloud shape. “Cloud” suggests off-site and managed bysomeone else. The cloud is a placewhere the details of technology aresomebody else’s problem. In thecase of “cloud storage,” it is impliedthat the storage is accessible frommultiple devices, like a computer,cell phone or Web browser.Ubiquitous availability is one of the advantages that cloud storagehas over carrying a thumb drivearound. A user can access filesstored in the cloud from any com-puter or device. As desktops giveway to laptops and laptops totablets, universal access will continue to grow in importance.

TECH

NO

LOG

YDo my files get wet when it rains in the cloud?

By Jeremy I. Eglen


Taking shelter

All of this is not to say that all days are sunny in the cloud. The 2014 session of the ABA Houseof Delegates adopted Resolution109 that “encourages all private and public sector organizations todevelop, implement and maintainan appropriate cyber security pro-gram that complies with applicableethical and legal obligations and is tailored to the nature and scopeof the organization and the dataand systems to be protected.”4

As of the publication of this article,Indiana has not yet adopted a for-mal ethics opinion on the use ofcloud services, but many otherstates have.5 In all states that have a policy, the use of cloud services is permitted, but the attorney mustexercise reasonable care to ensurethe security of client data.

While cloud storage is oftenpresumed to be more reliable than a personal drive, cloud storageproviders do not generally provideany kind of warranty as to the avail-ability or longevity of your data.Popular storage providers likeCarbonite, Dropbox, Google CloudDrive and iCloud disclaim any warranty for data access and anywarranty against loss or corruption.If a hurricane were to destroy thedata center where the cloud storageprovider’s servers are located, thedata stored there would be gonewith the wind. Therefore, if an attorney makes useof cloud storage as abackup data store, itshould not be the onlybackup data store. A saferarrangement would be tohave a backup under theattorney’s direct control(like a hard drive on your computer or in your office), which is then encrypted and


Jeremy I. EglenEglen LawAvon, [email protected]

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

backed up to a cloud storageprovider.

Although not having to worryexactly where your data is kept is a purported benefit of the cloud, it also makes it difficult to deter-mine what government(s) mayhave jurisdiction over the locationwhere the cloud provider’s servers

reside. Some cloud serviceproviders, particularly storageproviders, may have a given user’sdata strewn across several states oreven countries. Further, multipleusers’ data is likely to be stored onthe same physical computer. If thatcomputer were seized (for example,due to one user’s trafficking in

child pornography), it is unclearwhat happens to the data of otherusers on that physical computer.

The April 2013 issue of Res Gestae had an excellent articleon encryption,6 and I wouldencourage every attorney to reviewit. Encryption is the only way toprevent access to data by unautho-rized parties who obtained it.Strong encryption methods, such asAES, PGP and TLS, are consideredto be unbreakable using knowntechniques, even for a theoreticalattacker that has all the computa-tional power on earth. In otherwords, if something is encryptedusing one of those methods, it issecure against anyone, including a government, who does not havethe password.

The use of cloud emailproviders such as Gmail or Hotmailpresents a difficult choice. Recentrevelations about government spy-ing make it clear that the U.S. gov-ernment, at least, has relatively easyaccess to all of the major free emailproviders. Other governments arelikely engaged in interception ofcommunications where it is possi-ble. It may be that these govern-ments are only “scanning” for spe-cific words or users, but from acomputation standpoint, it wouldbe much easier for them to store all the data and search through itafter the fact. In any case, unlessmessages are encrypted, it is likelythat at least the U.S. governmentcan get access to email stored, sentor received on a cloud serviceprovider.

In practice, what does all ofthis mean for maintaining the con-fidentiality of your data, while mak-ing use of the convenience of cloudservices? “General” advice abouttechnology is approximately as use-ful as “general” legal advice, andevery firm will have to evaluate its own needs and usual practices.That said, in general, cloud services

THE CLOUD continued from page 35


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are phenomenally useful and allowa firm to focus on providing clientswith high-quality legal serviceswithout requiring an in-house ITstaff. Cloud storage provides accessto data across a variety of deviceswhile providing a natural backupand disaster recovery option. Somestorage providers even offer auto-matic encryption,7 which is essen-tial if files are not encrypted beforebeing sent.

Tomorrow’s forecastThe “cloud” is not really a

mysterious or magical thing. It is a collection of computers, plain,ordinary computers, which havebeen linked together to appear as a unified system. Different compa-nies have different clouds, but that does not matter to most users.Users care about what benefits thecloud can provide, and there are

many: reduced overhead, a lowerinitial investment, universal accessto files, and a consistent interfaceacross different devices. Cloud ser-vices have drawbacks as well: a lossof control, jurisdictional questions,uncertainties about access to andretention of data, and a dependenceon a third party. Computer securitycuts both ways: on the one hand, a user does not have to worry aboutsecuring a physical machine orviruses on a cloud storage device,but on the other hand, a passwordbreach can grant an unauthorizeduser access to all of a business’sdata.

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 plat-forms. Security is a critical concern,perhaps the most critical concern,when choosing which, if any, cloudservice providers to use. Each attor-ney and firm needs to be educatedboth to protect their own files andto give clients the best counsel pos-sible on legal ramifications to keepthe days sunny, and the rain away,when using the cloud. �1. Jack Copeland, Colossus: The Secrets of

Bletchley Park’s Codebreaking Computers109 (2006).

2. I. Bernard Cohen, Howard Aiken: Portrait of a Computer Pioneer 292 (1999).


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3. You may have heard of a quote attributed toThomas Watson of IBM which states some-thing to the effect that the world may have asmany 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 beenpassed around Internet forums for years.

4. American Bar Association, 2014 Resolution109, 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 EthicsOpinions Around the U.S., available athttp://www.americanbar.org/groups/departments_offices/legal_technology_resources/resources/charts_fyis/cloud-ethics-chart.html (last visited Aug. 25, 2014).

6. David G. Ries & John W. Simek, “EncryptionMade Simple for Lawyers,” Res Gestae 24-31(2013).

7. There is a further trap when a service claims to offer encryption: Is the encryption personalto the user, or is all data encrypted using a keyprovided and kept by the service provider? If the encryption key is kept by the serviceprovider, the service provider has access to the encrypted data. If the encryption key iskept by you, then only you have access to thedata. The key is usually your password, so ifthe service provider has a password reset func-tion, in all likelihood the service provider hasthe key. The downside of this is that if youhold 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 toreality, 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 TechnologyCommittee and teaches as an adjunctprofessor of computer science at ButlerUniversity.

THE CLOUDcontinued from page 37


Indiana Bar FoundationSchedule of IOLTA Activities

Years Ended June 30, 2014 & June 30, 2013

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

June 30, June 30,2014 2013

REVENUE:IOLTA income 287,843$ 304,366$

Total revenue 287,843 304,366

EXPENSE:Administrative expense:

Payroll and taxes 135,859 149,734Office supplies and leased equipment 9,674 5,644Postage 24 34Professional services 11,801 11,371Meetings 4,335 4,639Membership dues - 1,738Telephone 2,783 2,168Employee benefits 12,778 9,875

Total administrative expense 177,254 185,203

Net revenue 110,589$ 119,163$

Year Ended

I

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In September, the IndianaSupreme Court issued opinionson the constitutional right to

speedy trial and the prohibitionagainst double jeopardy, while theCourt of Appeals addressed juvenilefelony murder convictions, discov-ery disputes and the inevitable dis-covery doctrine.

Denial of constitutional right to speedy trial – protractedcourt congestion

Appellate review of claimedviolations of speedy trial rightssecured by the Sixth Amendment of the U.S. Constitution and Article 1, Section 12 of the IndianaConstitution is “separate and dis-tinct” from review of Criminal Rule4 challenges. See Austin v. State, 997N.E.2d 1027, 1037 n. 7 (Ind. 2013).In September, the Indiana SupremeCourt illustrated the significant dif-ference between state and federalspeedy trial claims. The Court heldthat, despite the trial court’s techni-cal compliance with Criminal Rule 4(C), the 1,291-day delay thatelapsed between the State’s filing of a class C felony child molestationcharge against Scott Logan and thebeginning of his trial violated hisconstitutional right to speedy trial.Logan v. State, 16 N.E.3d 953 (Ind.2014). Faced with another custodialdefendant’s Criminal Rule 4(B)

speedy trial motionand Logan’s Rule 4(C)motion, the trial courtdetermined that theRule 4(B) motion,with its 70-day dead-line, took precedence.Though it led to a fur-ther delay of 154 days,109 of which Loganspent incarcerated, the trial court’s decision to continueLogan’s trial date dueto court congestioncomplied with the

court congestion exception thatRule 4(C) contemplates and thuswas not clearly erroneous. Id. at960-61.

However, applying the four-factor speedy trial analysis of Barkerv. Wingo, 407 U.S. 514 (1972), the Court concluded that Logan’s“substantial” three-and-one-half-year delay between filing the chargeagainst him and his trial was “con-siderable, unfortunate, and inex-cusable,” and thus violated his con-stitutional right to speedy trial. Id.at 962, 964-65. Logan very nearlyserved the length of his six-yearsentence before his trial even began,and his trial was continued seventimes due to court congestion (to which Logan “persistently andemphatically” complained). Id. at962-63. Although a congested courtcalendar weighs less heavily againstthe State, it still must be viewed as the responsibility of the govern-ment and an impediment to adefendant’s constitutional right to a speedy trial. Logan experiencedpersonal prejudice as a result of hisoppressive pretrial incarceration.Id. at 964 (citing Doggett v. UnitedStates, 505 U.S. 647, 655 (1992)). As such, the court vacated Logan’sconviction.

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 SupremeCourt vacated Christopher Cross’five-year firearm sentence enhance-ment because it was based on thesame behavior used to convict andsentence him for carrying a hand-gun without a license. Indianacommon law double jeopardy prin-ciples prohibit conviction and pun-ishment “for an enhancement of a crime where the enhancement isimposed for the very same behavioror harm as another crime for which

the defendant has been convictedand punished.” Id. at 571 (quotingRichardson v. State, 717 N.E.2d 32,56 (Sullivan, J., concurring). Here,Cross continuously possessed butdid not use a handgun from thetime he drove to a hotel room tosell drugs until he was taken intocustody by police officers. Doublejeopardy would not have beenimplicated only if Cross had usedthe gun beyond mere possession.

Fruit of poisonous tree –inevitable discovery doctrine

In Gyamfi v. State, 15 N.E.3d1131 (Ind. Ct. App. 2014), the trialcourt abused its discretion inadmitting evidence of LawrenceGyamfi’s alleged use of a stolencredit card at a gas station inHancock County, which wasderived from evidence obtainedduring an unlawful search andseizure in Boone County. AlthoughGyamfi failed to object to some of the evidence at trial, the courtaddressed his claim under the fundamental error standard. Id. at 1135-36. Because the evidenceadmitted was fruit of the poisonoustree, Gyamfi’s convictions werereversed, and his case remanded for a new trial. In so holding, thecourt rejected the State’s relianceon the doctrines of attenuation andinevitable discovery because theyhave no place in the jurisprudenceof Article 1, Section 11 of theIndiana Constitution. Id. at 1137.Judge Bradford, joined by JudgeRobb, concurred in part and con-curred in result with a separateopinion, noting that the inevitablediscovery rule could apply underboth federal and state constitutionsif the State could demonstrate by a preponderance of evidence thatthe challenged evidence would havebeen discovered but for the unlaw-ful search, which the State failed to do in this case. Id. at 1138-39.

CRIM

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14Speedy trial, inevitable discovery, other holdings

By Jack Kenney


Jack KenneyDirector of Research

& PublicationsIndiana Public

Defender CouncilIndianapolis, Ind.

[email protected]

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

Unarmed juveniles’ felony murder convictionsaffirmed where co-perpetratorkilled by victim, but sentenceswere inappropriate

In Layman v. State, 17 N.E.3d957 (Ind. Ct. App. 2014), trans.pending, Indiana’s felony murderstatute was properly applied tojuvenile defendants Blake Laymanand Levi Sparks, where one of theirco-perpetrators was shot and killedby a homeowner during the com-mission of a burglary of a housethey thought was unoccupied, andnone in the group had a weaponwhen 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 reason-ably foreseeable that the victim’s act of self-defense or defense of hisdwelling could occur, leading to thedeath 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 IndianaConstitution Article I, §32 (confer-ring the right to bear arms for persons to defend themselves)).

The language in the felony-murder statute about killing anoth-er person while committing anunderlying felony is not restrictedto situations where the personcommitting the felony kills anotherperson. Id. (citing Palmer v. State,704 N.E.2d 124, 126 (Ind. 1999)).The language applies equally to afelon who “contributes to the deathof any person,” even if the persondoing the killing is a police officeror a victim and the person killed isa co-conspirator. Id. The lead opin-ion concluded that Layman andSparks forfeited their right to chal-lenge the constitutionality of Ind.Code §31-30-1-4, which waivedjurisdiction of their offenses toadult court, because they failed tofile a pretrial motion to dismiss anddid not object at trial. Id. at 961.

The court upheld the juveniles’convictions, but found Layman’s55-year sentence and Sparks’ 50-year sentence inappropriate.“Sentencing considerations foryouthful offenders – particularly forjuveniles – are not coextensive withthose 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, themurder in this case “was not partic-ularly heinous.” Layman v. State, 17 N.E.3d at 963. Moreover, the juveniles’ history of marijuanausage is not necessarily indicative


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of bad character. Id. (quotingBrown v. State, 10 N.E.3d 1 (Ind.2014)). Finally, the court noted thatone of the original planners of theburglary, who pled guilty, receiveda 55-year sentence with 10 yearssuspended to probation. There was no difference in the relativeculpability of defendants and theirrespective roles in this crime, anddue process prohibits imposition of a more severe sentence when a defendant has chosen to standtrial rather than to plead guilty. Id. Thus, the court remanded withinstructions to suspend 10 years of Layman’s sentence and five yearsof Sparks’ sentence to probation.

Judge May concurred in result, disagreeing that the juvenileswaived their challenge to the adultjurisdiction statute and taking issuewith applying the “reasonably foreseeable” standard to juveniles.This is “problematic because juve-niles do not ‘foresee’ like adultsdo.” Layman v. State, 17 N.E.3d at 968. Judge Kirsch, dissenting,expressed his belief that the tragicdeath of the co-perpetrator in thiscase was not reasonably foreseeable

and, in doing so, distinguished theIndiana Supreme Court decisionsin Palmer and Jenkins v. State, 726N.E.2d 268, 271 (Ind. 2000). Id. at 970. The Indiana Supreme Courthas scheduled oral arguments inthis case to consider whether togrant transfer.

Discovery – questions leadingto admissible evidence

Indiana Trial Rule 26(B)(1),which applies to criminal cases,provides in relevant part that“[p]arties may obtain discoveryregarding any matter, not privi-leged, which is relevant to the sub-ject matter involved in the pendingaction … . It is not ground forobjection that the informationsought will be inadmissible at thetrial if the information soughtappears reasonably calculated tolead to the discovery of admissibleevidence.” In Hall v. State, 15N.E.3d 1107 (Ind. Ct. App. 2014),trans. granted, the trial court abusedits discretion when it denied MarqHall’s motion to compel a witnessto answer a deposition questionabout an alleged prior false accusa-

tion of sexual misconduct made byher daughter, who was the allegedvictim.

Hall was charged with class Afelony molestation. During a depo-sition of the alleged victim’s moth-er, Hall asked the mother about an incident in Kentucky in whichthe alleged victim made a similaraccusation as the instant case. The mother had mentioned theincident to Hall in a phone conver-sation, but did not provide anydetails. In the deposition, the moth-er refused to answer the question.Hall certified the question and fileda Motion to Compel the mother toanswer the question. The trial courterroneously denied the motion. Id.at 1119. Discussing State v. Walton,715 N.E.2d 824 (Ind. 1999), thecourt noted that prior false accusa-tions of sexual misconduct areadmissible. Depending on theanswer to the posed question, theprior incident in Kentucky could be sufficiently similar to the instantcase to constitute an admissibleprior false accusation. Thus, thequestion was proper, and Hall’sconvictions were reversed on othergrounds. On Dec. 4, the IndianaSupreme Court granted transfer in this case, thus vacating the Courtof Appeals opinion. �

CRIMINAL JUSTICE NOTES 9/14 continued from page 41


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The new website has been designed to provide the ultimate member-friendly experience with improved navigation and functionality, allowing members to access event registration, dues statements, section and committee forums (in place of e-discussion lists), personalized member profiles, Casemaker and more.

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Employment Desired

WORKER’S COMPENSATION.Evansville attorney Kevin R. Bryantseeks referrals on worker's compensa-tion cases statewide. Please telephone812/437-9991.

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FAIR

CO

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ENT

Dees continues to tilt against tyrantsBy Bill Brooks

continue, “The work of justice continues. It didn’t endwith Martin Luther King Jr. It didn’t end with the CivilRights Act. And although he noted that the VotingRights Act – what he called the Second AmericanRevolution – would celebrate its 50th anniversary nextyear, “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 Centerwas called upon to help some hardworking Vietnamesefishermen, 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 corevalue is “protecting the rights of the minority when the majority is violating them.”

The battle, in fact, was won on behalf of theVietnamese refugees, Dees said as he recounted, usingvivid imagery hinting at courtroom eloquence, themorning the underdog fishermen took part in a tradi-tional blessing of the fleet, “as one boat after anotheremerged from the fog to be blessed.” As the fog lifted,Dees saw their faces, “as these folks found their place atAmerica’s table, helping to build that table – as immi-grants 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 justicesystem at work.”

And then he further challenged his enrapturedaudience. “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 thegates of justice. That’s not a light obligation.” �


Morris 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 LawCenter 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 theIndiana State Bar Association in October.

And because “The Rule of Law” was the theme of the State Bar’s 118th Annual Meeting, there was nobetter possible speaker than Morris Dees, the lawyerknown for obtaining landmark victories and unprece-dented 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 Indianapolisto discuss. Rather, he used the Magna Carta, a focalpoint of the ISBA conference, to issue a warning abouta new breed of tyrants, those who would “get rid of the rule of law … and bar the courthouse doors to theaverage citizen.”

The tyrants, Dees said, are American corporationsthat “do not want the average citizen to be able to go tocourt,” doing so by, often without the public’s notice,making consumers sign arbitration agreements whenthey purchase their products, from automobiles to cellphones.

Dees said he respects the concepts of arbitrationand mediation, but in this case “it’s wrong. It violatesthe rule of law.” He said the practice violates theSeventh Amendment, the right to a jury trial in civilcases – a right with roots in the Magna Carta. He saidto waive that right a person should sign a “knowingwaiver,” hardly the case in the fine print of purchaseagreements. Because of such signed waivers, he said,judges are granting summary judgments to corpora-tions, “kicking justice to the curb.”

The celebrated attorney, an ABA Medal winnerwhose trophy case could be as big as one in theUniversity of Alabama football stadium, spoke aboutJohn Adams, the Founding Father who late in his lifewould say that perhaps his proudest moment was hissuccessful defense of British soldiers who took part inthe 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.”

Laying out a challenge to the attorneys in the room, Dees would

Media consultantand freelance writer

Indianapolis, Ind.

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

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