2012 Year in Review

2012 was another busy year for the legal community. We welcomed new justices and a new chief justice, witnessed the beginnings of the state’s fifth law school, and saw local stories garner national and international attention. Here’s a look back at the top news stories from last year.

Supreme Court sees major changes

A shift in the makeup of the Indiana Supreme Court began in December 2011 when then-Chief Justice Randall T. Shepard announced he would retire in 2012. For many in the legal community, he was the only chief justice of the state they had known. Shepard joined the high court in 1985 and was chief justice for 25 years.

When he retired in March, he was replaced on the court by a former law clerk, Mark Massa. After Massa took the oath in April, he said, “This is a sobering responsibility, and I can’t put into words how much it means to be appointed by my governor to replace my judge. It’s not something any attorney does, looking in the mirror and seeing a potential Supreme Court justice staring back. This is going to take a while to get used to.”

Randall T. Shepard retired from the Indiana Supreme Court in March 2012 after 27 years on the court. (IL file photo)

Randall T. Shepard retired from the Indiana Supreme Court in March 2012 after 27 years on the court. Massa previously served as a deputy prosecutor, an assistant U.S. attorney, as Gov. Mitch Daniels’ general counsel, and he ran for Marion County prosecutor in 2010.

For the first time in nearly 30 years, Indiana had a new chief justice. Brent Dickson was selected by the Indiana Judicial Nominating Commission to lead the state Supreme Court. Dickson has been a justice since 1986.

When Shepard retired, some called for Daniels to appoint a woman to fill the vacancy and were disappointed when Massa was selected. But on the same day Massa was sworn in, Justice Frank Sullivan announced he was leaving the bench to teach at Indiana University Robert H. McKinney School of Law in the fall.

“Though my work here has been deeply satisfying and I’m proud of it, probably two years ago, I got to thinking I was reaching an age where if I was going to do one more big thing before retiring, I needed to get about it,” Sullivan said at the time. He had been on the court for nearly 19 years and was known as a champion for the Judicial Technology and Automation Committee’s statewide case management system Odyssey along with his work with minorities.

Sullivan’s retirement opened the door for the state to have its second-ever female Supreme Court justice. In September, Daniels appointed Tippecanoe Superior Judge Loretta Rush to the court. Daniels called Rush’s years in private practice and on the bench stellar and said her background and judicial temperament made her stand out among the justice finalists.

Rush dealt with juvenile matters in court and is active in juvenile justice programs. In November, the Supreme Court announced that Rush would head a proposed Indiana Commission on Children, and will now act as the court’s liaison to the Juvenile Justice Improvement Committee and the Problem Solving Courts Committee of the Judicial Conference.

And although he retired, Shepard told the Indiana Lawyer he planned to keep busy. He’s serving as a senior judge on the Indiana Court of Appeals, as a visiting scholar at the University of Cincinnati College of Law, and as the first executive in residence at the Indiana University Public Policy Institute in I.U.’s School of Public and Environmental Affairs, among other roles.

David’s retention opposed by some unhappy with ruling

During the 2012 election, signs began popping up opposing Justice Steven David’s retention on the Indiana Supreme Court because he authored the controversial opinion Barnes v. State. (IL file photo)

Justice Steven David faced retention for the first time in November 2012 after joining the Supreme Court in October 2010. Judicial retention often flies under the general public’s radar, but because he was the authoring justice on the 3-2 decision in Richard L. Barnes v. State in 2011, which held there was no right to reasonably resist unlawful residential entry by police, some sought to remove him from the bench. The Legislature in 2012 passed P.L. 161-2012, which says such a right does exist.

The Indianapolis Tea Party Corp. produced a radio advertisement critical of David that aired statewide. Some even stuck printed and homemade signs in their yards opposing his retention. In response, David created a website that contained biographical information and links to community involvement and honors. Judges may not typically campaign for retention unless they face active opposition.

David received more than 1.14 million retention votes.

Conour

Attorney accused of stealing millions from clients

Well-known personal injury attorney William Conour of Indianapolis was charged in April with one count of wire fraud after federal investigators said he took more than $2.5 million from his clients. Officials later adjusted the amount believed stolen from 25 clients to more than $4.5 million. The FBI received information in July 2011 that Conour may have misappropriated his clients’ funds through the creation of trust accounts with an Ohio bank. According to the criminal complaint in federal court, he’s accused of defrauding his clients from as early as 1999 until April 2012 by using money obtained from new settlement funds to pay for old settlements and debts.

Conour was admitted to practice in 1974 and had no disciplinary history. In June, he resigned from the Indiana bar after the Indiana Supreme Court Disciplinary Commission investigated Conour and sough discipline from the Supreme Court.

Two of Conour’s former colleagues told Indiana Lawyer in September that they questioned his behavior long before he was arrested and charged with wire fraud. John Daly, a partner at Golitko & Daly P.C., said he alerted the Disciplinary Commission in July 2008 that Conour wasn’t paying a client in a nursing home from a trust that was set up to compensate her for injuries.

Conour went through two defense attorneys and nearly depleted a $100,000 trust fund set up for compensating victims in just a few months by using the court-approved money to pay for his defense and monthly bills. As of the end of the year, he still hadn’t hired a new attorney.

Workers’ compensation insurance carriers also say that Conour or his former law firms failed to pay money due to them.

If convicted on the fraud charge, he faces up to 20 years in prison. The atrium in the Indiana University Robert H. McKinney School of Law bears the names of Conour and his wife following a donation they made to the school. The law school is waiting until the criminal case is resolved until deciding whether to remove his name from the atrium.

Secretary of state removed from office after felony convictions

White

In February, Secretary of State Charlie White was convicted in Hamilton County of six felony charges, including voter fraud and false registration. Before he was elected, there were questions as to his eligibility to run for office, but the Indiana Supreme Court ruled in March that White was eligible to run for office and assume office after being elected in 2010.

In the criminal case, he was accused of lying about his address on voter registration forms and not living in the home he listed for voting purposes. Gov. Mitch Daniels later appointed State Sen. Connie Lawson, R-Danville, to serve as SOS. Convicted felons cannot serve in a statewide office in Indiana.

White, an attorney, had his licensed temporarily suspended following the conviction, and the Supreme Court agreed in November to hold off proceeding with a disciplinary investigation until resolution in White’s appeal of his criminal case.

Indiana’s 5th law school will open in Fort Wayne in 2013

Above, Indiana Tech Law School groundbreaking May 18. (left to right) Judge William C. Lee, Northern District of Indiana; Robert Wagner, chairman, Indiana Tech board of trustees; Arthur E. Snyder, president, Indiana Tech; Indiana Tech Law School Dean Peter C. Alexander; Indiana Sen. David Long, R- Fort Wayne.(IL file photo)

Indiana Tech announced in May 2011 to the surprise of many that it planned to open a law school in 2013, making the school the fifth in Indiana. Other academic institutions have discussed opening a law school in Indiana, but Indiana Tech is the only one to take steps to make it happen.

The school hired a dean, Peter C. Alexander, the former dean of Southern Illinois University School of Law, an assistant dean for admissions, and several faculty members. It broke ground May 18, 2012, on a new building on the Fort Wayne campus. Indiana Tech Law School plans on accepting 100 students for the fall 2013 term.

“There’s always room for another good law school,” Alexander said. “I don’t think people should think about it as adding another law school, because I think in five years, 10 years, we’ll see the number of law schools declining because those schools will disappear if they don’t change their model.”

Indiana Tech Law School will offer practical clinics in estate planning, mediation and immigration. The mediation clinic will allow students to help mediate disputes between other students.

It admitted its first student in November and received an anonymous donation of books and microfiche for its law library in December.

Annual full-time tuition will be nearly $30,000, and the school will not offer part-time enrollment. One of its primary goals is to obtain American Bar Association accreditation, but it must be in operation for one year before applying for provisional accreditation.

Attempted feticide case garners international press

Defense attorney Linda Pence, left, said she never expected murder and attempted feticide charges to be filed against her client, Bei Bei Shuai, right. Shuai’s trial is scheduled for April 2013. (IL file photo)

Bei Bei Shuai, the Chinese immigrant charged with murder and attempted murder following the death of her daughter shortly after Shuai ingested rat poison while still pregnant, made headlines around the world. Shuai ingested the poison in late 2010 in an attempt to kill herself after the baby’s father jilted her when her pregnancy was almost full term. She sought medical attention and delivered the baby alive. But baby Angel died days later.

Marion County Prosecutor Terry Curry was surprised that Shuai’s prosecution got so much attention from national and international press. The state charged Shuai in March 2011, and she remained in jail without bond until the Indiana Court of Appeals ruled on her case in February 2012. The judges determined Shuai sufficiently rebutted the presumption of guilt required to hold her without bail, but upheld the denial of Shuai’s motion to dismiss the charges. Shuai left jail in May.

The ruling by the Court of Appeals led to questions about pregnant women’s rights. David Orentlicher, Samuel R. Rosen Professor of Law and co-director of the William S. and Christine S. Hall Center for Law and Health at Indiana University Robert H. McKinney School of Law, filed an amicus brief in the case.“If the prosecutor is going to go after depressed, suicidal women, that means that any drug addict who becomes pregnant and takes drugs while pregnant attempts feticide, too,” Orentlicher said.

The Indiana Supreme Court declined to take the case. Shuai’s trial is scheduled for April in Marion County.

Lawsuits, bar association take aim at judicial slating

The slating process of Marion Superior judges garnered increased attention in 2012 from several lawsuits and a new push by the Indianapolis Bar Association. The election process in Marion County is unique for the state and possibly the country – a process that began in response to the Watergate scandal in the 1970s. Republicans and Democrats are provided an equal number of judicial seats to fill; in 2012 each party had 10 spots on the ballot to fill the 20 available seats for the May primary. That means if one survives the primary, he or she will be elected.

Those who are slated pay fees to their parties to defray election costs; those who aren’t slated and decide not to run against the slated candidates receive an 80 percent refund. Both party leaders say the fees are not mandatory.

Attorney Paul Ogden in January submitted a letter to the Judicial Qualifications Commission contending that the judicial candidate fees are required “slating” fees that the commission prohibited in a 1992 advisory opinion. Ogden was a non-slated Republican judicial candidate in the 2012 election. In April, the commission issued an opinion stating that the practice of imposing a slating fee was deemed to be in violation of the Code of Judicial Conduct.

In July, the IndyBar approved a resolution to advocate for reform to the judicial election and selection process in Marion County. It will work toward getting the current slating fee practice repealed or reformed. A 2009 IndyBar survey found that more than 83 percent of responding members favored nonpartisan merit selection and retention elections over the current system.

The American Civil Liberties Union of Indiana filed a suit on behalf of Common Cause in November, claiming the way Marion Superior judges are elected is unconstitutional. That suit is still pending in federal court.
 

State ordered to pay $52M over terminated IBM contract

In 2012, the state of Indiana learned it was on the hook for $52 million over a canceled contract with IBM to modernize the state’s welfare system. The state hired IBM in 2006, but terminated the contract three years later and sued IBM to recover the millions it paid before ending the contract, plus triple damages, for a total of $437 million. IBM countersued for breach of contract, arguing the state still owed around $100 million.

In January, Marion Superior Judge David Dreyer ruled the state must pay $40 million in subcontractor assignment fees per the contract it had with IBM.

An issue that arose from this case was whether Gov. Mitch Daniels could be be deposed. Dreyer originally ruled Daniels doesn’t have to be deposed, but later ruled that he can be. The Indiana Supreme Court ruled in February that Daniels doesn’t have to testify or be deposed in the ongoing litigation.

Then, in July, Dreyer ruled that the state must pay IBM an additional $12 million in early termination closeout payments and for equipment it retained after canceling the contract. In his ruling, Dreyer wrote, “Neither party deserves to win this case. This story represents a ‘perfect storm’ of misguided government policy and overzealous corporate ambition. Overall, both parties are to blame and Indiana’s tax payers are left as apparent losers.”

The state got nothing out of its complaint and filed several appeals which remain pending before the Court of Appeals at IL deadline.

Small claims complaints lead to big reforms

Senior Judge Betty Barteau and Judge John Baker, both from the Indiana Court of Appeals, led a task force studying the Marion County Small Claims system. They conducted three hearings to get public feedback.(IL file photo)

The Indiana Supreme Court tasked Court of Appeals Judge John Baker and Senior Judge Betty Barteau with coming up with ways to fix complaints about Marion County’s Small Claims courts. Allegations that the two-person task force, created in 2012, were asked to investigate included that debt-collection creditors engage in forum shopping among the township courts, these creditors and other high-volume filers receive special treatment in the small claims courts, and that small claims judges are not always present in the courtroom for court proceedings.

After a series of public hearings held in February and March, the task force uncovered “significant and widespread problems,” according to its report, including some township trustees interfering with the operation of the courts and creditors’ attorneys having special access to or special relationships with some of the township court personnel.

The report, released in May, outlined three potential plans to address the issues, with suggestions from Plan C being the easiest to implement because it does not require statutory changes. Plan C outlined court management and procedure reforms. It required, among other things, that court employees be easily identifiable by litigants, dictates when the judge shall appear before the litigants, and mandates settlement agreements receive judicial review before approval.

In October, Marion Circuit Judge Louis Rosenberg announced that a new set of rules for the township small claims courts had been approved, many of which were outlined in Plan C. The rules standardize hours, forms, filing fees and notice of the rights of litigants. Township judges will not be allowed to practice in other township courts, and all parties to a lawsuit will have equal access to court case files. A website will be developed for all nine township courts; landlords who comply with Indiana security deposit statute and provide tenants an itemized statement of damages will no longer be required to go through an amendment procedure; and litigants will be required to wait at least 30 days after a judgment to file proceedings supplemental. The new rules take effect March 1, 2013, with the goal of creating the website by July 1, 2013.

Rosenberg said the rules aim to address perceptions that courts didn’t always offer litigants level playing fields. “This is creating an atmosphere that will make the courts more evenhanded with the way they’re dealing with litigants,” he said.

Changes come to family law, guidelines

Beginning July 1, Indiana law changed lowering the emancipation age from 21 to 19, which led to some attorneys questioning if children could be treated differently by the courts depending on whether their parents were ever married.

Under the old paternity and divorce statutes, children in either situation could petition for educational support up to their 21st birthday. But under amendments to those statutes passed in Senate Enrolled Act 18, the age to seek college support is now 19. A loophole only covers children who are the subject of paternity orders.

In the amended paternity statute, minors who had a child support order issued before July 1, 2012, will have until they are 21 to file for college support. Even children who are currently very young would qualify for this loophole. For those covered by a child support order issued after June 30, 2012, they must petition for education support by the time they turn 19. No corresponding language about this exception is included in the divorce statute.

The Child Custody and Support Advisory Committee in the Indiana General Assembly discussed the disparity during interim session. It voted 8-0 to adopt a bill to add the same language in the dissolution statute that was added into the paternity statute in SEA 18 and to make the bill draft retroactive to the date that SEA 18 became effective.

In 2012, Indiana’s parenting time guidelines also saw changes. The Indiana Judicial Center’s Domestic Relations Committee received comment on proposed changes.

Among the proposed changes to the first-ever review of the guidelines: revisions to holidays that could affect weekend parenting time; new language dealing with online communication between parents and children; and revised rules regarding overnight visitation. But perhaps the most significant changes pertain to proposed guidelines for parents in high-conflict situations: the guidelines under consideration would include provisions governing the use of parenting coordinators and “parallel parenting.”

The Domestic Relations Committee worked with the ADR Committee, and their recommendations went to the IJC board of directors. The board approved proposed changes Sept. 14. But the guidelines sent to the Indiana Supreme Court for final approval lacked any suggestions on parenting coordination. Jeffrey Bercovitz, director of juvenile and family law at the Indiana Judicial Center, said the rest of the guidelines submitted to the Supreme Court did not significantly change and were “cleaned up.” He said they are very similar to the rules posted on the court’s website in March for public comment, except there is now only one appendix. There is no timeline for when the Supreme Court will act on the matter.

Pro bono districts shift, pick up new revenue source

Beginning in 2012, Indiana’s pro bono districts took on a new look. The 14 pro bono districts were reduced to 12 and are now denoted by a letter rather than a number. Some district boundaries shifted – particularly those closest to Richmond and Terre Haute, whose districts were absorbed by surrounding offices. Some districts saw no change in the boundaries. But all saw a sharp decrease in funding from the year before, marking the third straight year of declining financial support.

To address the lack of funds, the Indiana General Assembly passed House Enrolled Act 1049, which included a pro bono legal services fee of $1 on plaintiffs in civil, small claims and probate cases filed in trial courts, city and town courts, and Marion County Township Small Claims courts. The fee took effect July 1, 2012, and will remain in effect until July 1, 2017. The Indiana Bar Foundation is tasked with managing the money from the fee and using those funds to assist or establish approved pro bono legal services programs. Legislative Services Agency estimated that this fee will generate around $450,000 annually. Nearly $254,000 in total interest on lawyer trust accounts funds were awarded for 2012.

Sens. Ron Grooms, R-Jeffersonville, and Brent Steele, R-Bedford, authored Senate Bill 235, which proposed the fee. That proposal was eventually amended into House Bill 1049.

Court pilot projects launched

The Indiana Supreme Court initiated three pilot projects involving trial courts and the Court of Appeals in the summer of 2012. Courtrooms in Allen, Marion and Tippecanoe Superior courts had cameras installed to record proceedings. The video will serve as the official transcript unless a judge orders a paper transcript in a particular case.

The video pilot will last through Dec. 31, 2013, the Supreme Court said.

The second pilot aims to slash the transcript-filing time from 90 days to 30 days by using private transcription services to assist court reporters. Transcripts will have to be filed within 30 days under the pilot, which is collecting 20 cases for expedited transcript preparation from courts in Hamilton, Lake, Madison, Tippecanoe and Vanderburgh counties. This pilot will also run at least through 2013.

The third project involves electronic filing – either online or on CDs – of the appellate record.

The court pilot projects are looking at “faster, better, cheaper ways of getting the record done,” said Lilia Judson, executive director of the Division of State Court Administration for the Indiana Supreme Court, which is working with the Court of Appeals to implement the projects. A panel comprising Judges Cale Bradford, James Kirsch and Melissa May will review all of the cases involving the pilot projects.•