ILB on Bowling v. Pence & Judge Young’s Scolding of the Governor

Judge Young of the United States District Court for the Southern District of Indiana issued a decision in Bowling v. Pence, another marriage equality case, and reached the same conclusion that Indiana’s prohibition on same sex marriage is unconstitutional. He stayed his order pending the 7th Circuit’s consideration of that case or the related cases on the issue.

As the Indiana Law Blog does a wonderful job of laying out, what makes this case more notable is that the court chides the Governor for what it regarded as a misrepresentation by the Governor as to whether he had enforcement authority with respect to Indiana’s same sex marriage law and would, therefore, be a proper party to the lawsuit.

A suit for injunctive relief is a request from the petitioner asking that the court order the respondent to do or not do something. In prior litigation, the Governor’s response was, essentially, “I have no power to enforce or not enforce here, don’t sue me.” That argument carried the day in an earlier case, and the Court dismissed Gov. Pence as a defendant. However, following Judge Young’s prior decision concerning same sex marriage and subsequent issuance of a stay by the 7th Circuit, the Governor’s office issued memoranda instructing the executive branch agencies on how to comply with the court’s order. This, to the Court, was evidence that the Governor had authority he had previously disclaimed.

The memoranda issued by the Governor clearly contradict his prior representations to the court. The Governor can provide the parties with the requested relief as was evident by his initial memorandum on June 25, 2014, and he can enforce the statute to prevent recognition as evident by his correspondence on June 27 and July 7. Thus, the court finds that this case is distinguishable from the cases cited by Defendants because it is not based on the governor’s general duty to enforce the laws. It is based on his specific ability to command the executive branch regarding the law. Therefore, the court finds that the Governor can and does enforce Section 31-11-1-1(b) and can redress the harm caused to Plaintiffs in not having their marriage recognized.

Judge Young characterized the Governor’s misrepresentation as “troubling.”

Need to Amend the Indiana Constitution

H/t to Jared for drawing my attention to Art. 7, sec. 3 of the Indiana Constitution. Looks like it could use some updating:

Section 3. Chief Justice. The Chief Justice of the State shall be selected by the judicial nominating commission from the members of the Supreme Court and he the Chief Justice shall retain that office for a period of five years, subject to reappointment in the same manner, except that a member of the Court may resign the office of Chief Justice without resigning from the Court. During a vacancy in the office of Chief Justice caused by absence, illness, incapacity or resignation all powers and duties of that office shall devolve upon the member of the Supreme Court who is senior in length of service and if equal in length of service the determination shall be by lot until such time as the cause of the vacancy is terminated or the vacancy is filled.

The Chief Justice of the State shall appoint such persons as the General Assembly by law may provide for the administration of his office. The Chief Justice shall have prepared and submit to the General Assembly regular reports on the condition of the courts and such other reports as may be requested.


Section 9. Judicial Nominating Commission. There shall be one judicial nominating commission for the Supreme Court and Court of Appeals. This commission shall, in addition, be the commission on judicial qualifications for the Supreme Court and Court of Appeals.

The judicial nominating commission shall consist of seven members, a majority of whom shall form a quorum, one of whom shall be the Chief Justice of the State or a Justice of the Supreme Court whom he the Chief Justice may designate, who shall act as chairman. chair. Those admitted to the practice of law shall elect three of their number to serve as members of said commission. All elections shall be in such manner as the General Assembly may provide. The Governor shall appoint to the commission three citizens, not admitted to the practice of law. The terms of office and compensation for members of a judicial nominating commission shall be fixed by the General Assembly. No member of a judicial nominating commission other than the Chief Justice or his the Chief Justice’s designee shall hold any other salaried public office. No member shall hold an office in a political party or organization. No member of the judicial nominating commission shall be eligible for appointment to a judicial office so long as he the individual is a member of the commission and for a period of three years thereafter.

There. Fixed. Mostly.

Justice Loretta Rush named Chief Justice of Indiana Supreme Court

Good news for Indiana. Justice Loretta Rush has been selected as the next Chief Justice for the Indiana Supreme Court. She presided over Tippecanoe County Superior Court 3 since 1999 and did a fine job with the juvenile cases there. Two years ago, she was appointed to the Indiana Supreme Court. And today the Judicial Nominating Commission selected her as the Chief Justice who will replace Justice Dickson who stepped down after a brief tenure. Justice Dickson was in the same law firm as Justice Rush here in Lafayette and was apparently a mentor of hers. He saw his role as a transitional Chief Justice to bridge the gap between the long time previous CJ, Randall Shepard.

I have a certain hometown pride going on – Justice Rush was not only a Tippecanoe County lawyer, she was also a Richmond High School graduate. That bias aside, she’ll make a good Chief Justice. I never had any cases in front of her, but as one of the county attorneys, my impression was that, in addition to sound legal judgment, she was a good court administrator. Her responsibilities in administering the Indiana court system will be several orders of magnitude greater than in Tippecanoe County, but she has a solid foundation to work from.

No doubt the future holds a legal opinion or two with which I’ll strongly disagree, but for now, I’m very happy with the JNC’s choice for the position.

Conversion from Crop Production to CAFO is not a “Significant Change”

One good thing about blogging so long and doing thousands of posts is that, occasionally, you get something right. Back in March of 2005, I posted on Sen. Jackman’s legislation having to do with agricultural nuisance actions.

At the time, I wrote:

This amends a section of the code apparently designed to protect agricultural areas from nuisance suits when suburbia moves into the agricultural area. Under current law, an agricultural or industrial operation is not a nuisance if: 1) it has been in continuous operation for at least a year; 2) there is no significant change in the hours of operation; 3) there is no significant change in the type of operation; and 4) the operation would not have been a nuisance at the time the operation began at the locality.

Senator Jackman’s amendment to the law repeals the requirement that the hours remain substantially the same and defines the “no significant change” requirement so that a change in the size, ownership, or to a different type of agricultural use does not constitute a “significant change”. So, presumably under the new law, converting from a small, locally owned, odor-free agricultural operation in business between 8 and 5 to a huge operation owned by an out of state corporation belching out noxious odors 24 hours per day would not consitute a “significant change”

(emphasis added)

Today and yesterday, the Indiana Law Blog has been posting about a recent decision having to do with Randolph County nuisance lawsuits from neighbors challenging increased operations at a hog finishing operation. (A “finisher” is an operator who takes the pigs after they’ve been weaned and grows them until they’re ready for slaughter). The ILB has posted the court’s decision (pdf) granting summary judgment in favor of the defendants in Armstrong v. Maxwell Farms.

The farm had been in operation since the early 1900s. Prior to 2007, the farm appears to have been used in crop production. However, in 2007, Maxwell Farms contracted with the farm’s owner as an independent contractor who would finish hogs at a barn on Gary Foulke’s farm. The plaintiffs argued, among other things, that the change from crop production to a hog finishing operation, its resulting noxious odors and diminished enjoyment and value of plaintiffs property constituted a “significant change.” The court, based on the plain language of the statute disagreed:

The Indiana Legislature had to know in 2005, when it amended the Right to Farm Act, that the number of animals being confined in swine and dairy operations was growing exponentially, and yet the Legislature did not give neighbors surrounding the operations any relief. In 2005, the Legislature made the Right to Farm Act even more restrictive to potential lawsuits. The Legislature has made its intent known to protect fanning operations against nuisance actions, even if the operation grows from a few hogs to several thousand, and even if the operation changes from growing corn to raising thousands of hogs.

I think the court got it right. The legislature, however, does not seem to be treating rural landowners very fairly. The idea that an agricultural operation ought to be able to keep doing what it was doing when neighbors bought their property makes sense. Don’t like it? Don’t move in. But, the idea that one neighbor can unilaterally take action to substantially impair the other neighbor’s enjoyment and use of the neighbor’s property is tougher to defend.

Court of Appeals – Potentially Troublesome Case on Statutes of Limitation

A few days ago, the Indiana Court of Appeals issued an opinion in Imbody v. Fifth Third Bank that I’m having trouble following. The decision had to do with whether suit was filed within the six year statute of limitations. The court was clear enough about why it believed the cause of action accrued when it did, but after the cause accrued, the debtor made some payments toward the debt and the court was not clear, in my opinion, about why the statute wasn’t tolled when those payments were made.

Imbody had a loan secured by a truck. Imbody defaulted on the payments, the Bank seized his truck, sold it at auction for less than the remaining debt and claimed a deficiency balance of about $15,000. Imbody made some payments toward the deficiency for awhile but then stopped.

At issue was whether the Bank filed suit within the six year statute of limitations. That issue turned, in part (or I believe it should have only been part of the analysis), on when the Bank’s cause of action accrued. The time line went like this:

7/23/2004 – Note signed
5/3/2006 – Default on loan agreement.
5/31/2006 – Truck repossessed.
?/?/2006 – Truck auctioned, deficiency remains
2/29/2008 – Last payment toward deficiency.
6/5/2012 – Complaint filed by Bank against Imbody.

After a trial, the trial court entered judgment against Imbody and in favor of the Bank. On appeal, however, the Court of Appeals said that the Bank had filed suit after the statute of limitations had run. The loan agreement had a provision saying that, if the debtor missed payments, the Bank wasn’t obligated to wait around for years for payments to become due and owing on the same schedule as if payments were continuing. Rather, it had an option to accelerate the entire note — in other words, the remaining balance comes due at once. However, the Bank wasn’t obligated to accelerate the note. Obligated or not, the Court stated that the act of repossessing the truck constituted an acceleration. Fair enough. That makes cause of action accrue on May 31, 2006. June 5, 2012 is more than six years later and, had nothing else happened, outside of the statute.

The general rule, however, is that when a debtor is making payments, the statute is tolled. Why make a creditor go to court if the debtor is making payments that are acceptable to the creditor? After the truck was sold and a deficiency balance of around $15,000 was established, Imbody made 14 payments of $100 per month through February 29, 2008. If the clock doesn’t start running until 2008, then the Bank is within the 6 year window.

In Clark v. University of Evansville, 784 N.E.2d 942 (Ind. Ct. App. 2003), the Court of Appeals said:

In construing the provisions of this statute, we have held that partial payment of a debt may constitute “an admission of continued indebtedness” which “remove[s] the bar of the statute.” Meehan v. Meehan’s Estate, 98 Ind.App. 9, 14, 186 N.E. 908, 909 (1933). In Meehan we also stated that such a partial payment must be “accompanied by circumstances or evidence amounting to an unqualified acknowledgment of more being due, from which a promise may be inferred as a matter of fact and not as a matter of law, to pay the remainder.”

The Court of Appeals in the Imbody case said, “the evidence shows that the parties had an informal agreement regarding payments on the deficiency balance. There is no evidence that the parties entered into a forbearance agreement.” If there is a requirement that a forbearance agreement be entered into for the statute to be tolled, the Court of Appeals does not cite the basis of that requirement. The Clark case suggests that it’s only necessary that there be evidence amounting to an unqualified acknowledgement of more being due from which a promise may be inferred as a matter of fact to pay the remainder. The informal agreement noted by the Court of Appeals seems to satisfy that and, in any event, the finding of fact would be the province of the trial court which found for the Bank.

So, I don’t know if I am missing something obvious on this one or if the Court of Appeals whiffed on the tolling issue. Hopefully the Court of Appeals will reconsider or the Supreme Court will review this case. Because I’d hate to have to drag a bunch of debtors into court to preserve a claim even where they are making payments that are acceptable to the creditor.

Aftermath of Judge Young’s marriage equality decision

Some good items at the Indiana Law Blog and Advance Indiana on the aftermath of Judge Young’s ruling on same sex marriage:

- The Indiana Law Blog on Gov. Pence’s General Counsel, Mike Ahearn’s memo to executive branch offices directing them to take necessary measures to change their processes to abide by Judge Young’s order.

- The Indiana Law Blog on the Daviess County Clerk’s refusal to issue licenses reportedly based in part on her religious beliefs.

- Advance Indiana pointing out the obvious flaw in Eric Miller / Advance America’s contention that amending the Indiana Constitution to prevent marriage equality would have done anything to alter Judge Young’s rationale. Based as it was on the United States Constitution, the Supremacy Clause dictates that state constitutional provisions would have to give way where they violate the federal constitution.

Oh, and also not so incidentally, the news has lots of stories out there about happy couples getting married. Which, I suppose, was the point of the exercise in the first place.

Update Late Friday afternoon, the 7th Circuit granted the Attorney General’s request for a stay of Judge Young’s order pending appeal.

Translator Services and Access to the Courts

The Indiana Supreme Court issued a decision in the case of Ponce v. State (pdf) overturning a conviction based on a plea agreement where the defendant in Elkhart County did not speak English and was advised of his rights through a faulty translation.

The Supreme Court found that the translation was so inadequate that the defendant could not be said to have meaningfully understood and waived his rights. It further observed that meaningful access to the courts requires that the accused actually be able to understand what’s being said.

This is an issue confronted by all state courts to one degree or another. It’s my understanding that translators are engaged by the courts on a county-by-county basis. Seems like the General Assembly might consider establishing (and funding) a state translators’ office administered by the Indiana Supreme Court which would certify the translators as: a) being competent translators; and b) having a working understanding of the judicial process such that they can communicate those concepts to a defendant. Those translators would then be made available to the state courts in the various counties. Some courts and languages could justify a more or less permanent assignment to one county or another. Others don’t have the volume, but if the demand was aggregated statewide the result might be a more efficient allocation of translator resources.

Medical Malpractice Cause of Action Not Tolled Pending Second Opinion

The Indiana Court of Appeals decided a case today entitled “Anonymous Physician v. Wininger”. (The physician is anonymous at this stage of litigation due to particulars about how the medical malpractice system works.)

The plaintiff had gone to the Anonymous Physician (AP) for problems with her foot. AP performed surgery on her second toe in early 2007. As of October 2007, the Plaintiff realized that her foot hurt worse than it had prior to the surgery. However, she did not go for a second opinion until April 2009. On her intake sheet, she listed the reason for her visit as “AP messed her foot up.” The second doctor said that the second toe on her foot was too short.

Plaintiff did not file her malpractice action until March 2011. The statute of limitations for a medical malpractice action is two years. (The abbreviation for statute of limitations, S.O.L., coincidentally is the same as that for Shit Outta Luck; which are, functionally, the same thing. If a would be litigant doesn’t file a claim within a certain amount of time, they are barred from doing so.)

The Plaintiff argued that the two years didn’t start to run until she got the second opinion and, therefore, knew that the pain in her foot was caused by the alleged negligence of AP. The court disagreed. If the patient is unaware of the negligence of the medical professional, the statute of limitations is tolled only “until the patient experiences symptoms that would cause a person of reasonable diligence to take action that would lead to the discovery of the malpractice.”

In this case, such symptoms were present not later than October of 2007 and, therefore, the action was barred.

As a side procedural note, it looks like the doctor got lucky. The trial court sided with the Plaintiff. However, it certified the case for an interlocutory appeal (an appeal that happens in the middle of the underlying case) and the Court of Appeals agreed to take it. Both of those things are discretionary. Either court could have declined to have the issue addressed by the Court of Appeals until after the case had concluded. If that had happened, before getting a shot at a decision on appeal, the parties would have had to incur a great deal of expense trying the malpractice case and would have faced a great deal of pressure to settle the case.

Interim Commission on Courts

Following a series of interim study committee meetings, the Commission on Courts has issued a final report (pdf). It makes a series of recommendations to the General Assembly:

1. Eliminating a trial court’s ability to grant an adoption where there is an appeal pending of a decision to terminate the parent-child relationship.

2. Allowing appointment of a second magistrate in Vanderburgh County.

3. Making a variety of juvenile records public and not subject to the current confidentiality requirements: “(a) paternity issues; (b) custody issues; (c) parenting-time issues; (d) child support issues; or (e) other related issues; concerning a child born to parents who are not married to each other.”

4. Giving trial courts more flexibility for the appointment of psychologists, psychiatrists, and physicians in insanity defense cases.