According to my blog metrics, one of my most persistent source of visits is, somewhat oddly, a post I wrote in 2009 entitled “HB 1318 – Definition of ‘nonparty’ in civil litigation.” As I explained then:

I am a little worried that I do not immediately grasp the significance of Rep. Lawson’s proposed legislation in HB 1318 which changes the definition of “nonparty” in civil litigation. A “nonparty” usually refers to someone involved in an incident that caused damage to someone but who has not been named as a party in the lawsuit. Typically, a victim will sue a tortfeasor for damage caused by that person. The tortfeasor will respond, in part, by saying, “hey, it’s not my fault, it’s Nonparty’s fault.” The victim then has an opportunity (usually) to bring the nonparty into the litigation, but if the nonparty is not named as a party, the nonparty can still be an “empty chair” at trial to whom a jury can assign some or all of the fault. (The nonparty would not be liable to the victim for the jury’s decision in this regard, rather the damage attributable to the nonparty would be money the victim could not recover from the tortfeasor who was named as a defendant.)

In any case, Rep. Lawson’s legislation would change the definition of nonparty from

A person who caused or contributed to cause the alleged injury, death, or damage to property who has not been joined in the action as a defendant.

to

a person who may be liable to the claimant, in whole or in part, for the damage claimed, but who has not been joined in the action as a defendant. The term does not include an employer of a claimant.

 

Today, the Court of Appeals wrote an opinion in the case of NIPSCO v. Josh’s Lawn and Snow. Josh’s was doing some landscaping, didn’t call before they dug, and punctured the gas line. However, before that happened, another contractor, Ziese had done some grading that removed sixteen to eighteen inches of soil, leaving only about two inches above the gas line. When NIPSCO sued Josh’s for the damage done to the pipe (plus, inevitably — attorney’s fees), Josh’s named Ziese as a nonparty. NIPSCO objected that Ziese didn’t owe a legal duty to NIPSCO to leave any particular amount of soil above the pipe and, absent a legal duty, couldn’t be a nonparty to whom fault could be attributed. The trial court didn’t buy the argument and, while finding Josh’s at fault and liable to NIPSCO, found that Josh’s was only 10% at fault and Ziese was 90% at fault, leaving Josh’s only responsible for 10% of the damages.

On appeal, the Court of Appeals notes that NIPSCO “does not argue on appeal that the small claims court should have assessed different percentages of liability to Ziese and Josh’s.” So, basically, on appeal it was going to live and die by whether a person had to have a legal duty — and, therefore potential liability to the Plaintiff — before it could be named as a nonparty. This brings us back to Rep. Lawson’s proposed legislation in 2009. In determining that legal duty and potential liability were not necessary for a person to be named as a nonparty, the Court of Appeals relied on a change to the definition that took place back in 1995. Rep. Lawson was essentially trying to revert the definition back to its old definition. The Court of Appeals explained:

[T]he small claims court was not required to find that Ziese had a legal duty of care toward NIPSCO in order to attribute  fault to Ziese. In Bulldog Battery Corporation v. Pica Investments, Inc., 736 N.E.2d 333, 336 (Ind. Ct. App. 2000), property owner Pica Investments sued neighbor Bulldog Battery for negligence when Bulldog’s property improvements led to increased runoff and flooding of Pica’s property. Bulldog asserted a nonparty defense that the negligent designs of its architect contributed to Pica’s damages. Id. at 337. Pica argued that Bulldog could not name its architect as a nonparty defendant because, pursuant to caselaw, an architect owed no duty to third parties such as Pica absent contractual privity or a design that was so negligent as to create an imminently dangerous condition. Id. In reversing the trial court’s grant of summary judgment to Pica on Bulldog’s nonparty defense, the court noted that until 1995, the comparative fault statute defined a nonparty as “‘a person who is, or may be[,] liable to the claimant in part or in whole for the damages claimed but who has not been joined in the action as a defendant by the claimant.” Id. (quoting I.C. § 34-4-33-2(a), emphasis in opinion). The statute was subsequently amended to define a nonparty as “‘a person who caused or contributed to cause the alleged injury, death, or damage to property but who has not been joined in the action as a defendant.’” Id. at 338 (quoting I.C. § 34-6-2-88, emphasis in opinion). Drawing on the change of statutory definition, the court rejected Pica’s argument that “‘[i]n naming a person as a nonparty, it is implicit that some legal duty must exist as to the plaintiff.’” Id. The court found that the amendment to the definition of ‘nonparty’ specifically excluded the concept of liability to focus instead on causation. Id. Thus, the court concluded that “whether or not the nonparty may be liable to the plaintiff is no longer a consideration.” Id.

The upshot is that a person who is at fault but who is, nevertheless, not potentially liable to the plaintiff can be named as a nonparty, relieving the named defendant of liability for those damages that were not the defendant’s fault even if it means that the plaintiff might not obtain a full recovery.

Christian Sheckler, writing for the South Bend Tribune, and Ken Armstrong, writing for ProPublica have a long, well-written piece on the investigations and subsequent convictions of Chris Parish and Keith Cooper in Elkhart County. If you enjoyed Making a Murderer, you’ll probably enjoy this article. The convictions arose out of an attempt to murder Michael Kershner in 1996. Cooper’s conviction was the subject of a pardon by Governor Holcomb in early 2017. Prior to that, it had become an election controversy when Governor Pence dragged his feet on making a decision about the pardon because he was running for Vice-President. Attorney General Hill also figured in the process since he was the Elkhart County Prosecutor, running for the AG position during the 2016 election. He had also run the Prosecutor’s office when it resisted some of Parish and Cooper’s efforts to have the conviction overturned.

Both Parish and Cooper were convicted as a result of a poor investigative process. Only after the convictions were they able to get reviewing courts to give the defects in the process the attention they deserved. That resulted in Cooper getting a deal that left the conviction in place but let him out of jail for time-served and, consequently, pursuing the pardon process to clear the conviction. Parish’s process was a little different. While Cooper had taken a deal for time-served, Parish took a chance after the initial conviction was overturned. He didn’t take a deal at that point — meaning he could have been prosecuted again. However, prosecutor’s declined to re-open the case against him at that point. He then was able to sue the City of Elkhart for the wrongdoing of its police officers and obtain a $4.9 million settlement.

Anyway, the story is worth a read. It’s deeply investigated and well-written. My only critique — and I may be off base here — is that the story has a “just so” feel to it; where the bad guys are a little too bad and the good guys are a little too good. Life’s messy, and I didn’t detect much of that messiness here – it’s pretty much bad cops and callous government officials railroading a couple of innocent guys. Which is maybe a minor critique. It seems pretty clear that Parish and Cooper had their lives upended and served significant amounts of time in jail for a crime they didn’t commit. This article does a solid job of explaining how that came to pass.

Yesterday, I went to a symposium at the IU-McKinney School of Law in Indianapolis. It was billed as State Governments’ Role in Bridging the Urban/Rural Divide. The symposium wasn’t that, exactly. I heard a lot about concerns in rural Indiana, not so much about concerns in urban Indiana, little about getting urban to care about rural concerns, and nothing about getting rural to care about urban concerns.

But it was good nonetheless. The first part was about limited access to justice in rural areas — mainly there just aren’t as many lawyers per person. There was a bit about the ethical challenges rural attorneys face because conflicts are easy to come by with so few people in the area. The second major part was about gerrymandering. And the third main part was a presentation by Jim McClelland, the executive director of Indiana’s Drug Treatment, Prevention, and Enforcement division. (I’ve seen him referred to as Indiana’s Drug Czar.)

He is a supporter of Indiana’s syringe exchange programs. Saying he was initially opposed or uncertain about such programs, he said in the presentation that, among other things, his daughter’s experience as a nurse helped persuade him.  This is contrary to Indiana’s Attorney General, Curtis Hill, who has been critical of such programs. From what I’ve seen anecdotally, these two are perhaps representative of the divide generally between law enforcement officials who tend to be opposed and policy-makers with more generalized responsibilities who tend to be cautiously in favor.

Opposition to the programs make intuitive sense. If you’re fighting arson, you don’t hand out cans of gasoline and matches. There’s a concern that if you give addicts needles and other paraphernalia necessary to take the opioid drugs, you’re just encouraging them, perhaps encouraging new users, and maybe making the problem worse. To those who view this as more of a health crisis than a criminal epidemic, the critique looks similar to opposition to handing out condoms for pregnancy and disease prevention on the grounds that it will promote sex.

Needles are cheaper than livers.

McClelland says that the evidence suggests that handing out needles doesn’t increase drug use. The primary utility is in reducing transmission of HIV and Hepatitis C which are hugely expensive to treat. I think he cited $400,000 per person for HIV. I don’t think he gave a number for Hepatitis C, but it isn’t cheap. He also said that, of course, needles alone aren’t a solution for reducing addiction. The utility of syringe exchanges in terms of trying to reduce the addiction problem is that it serves as a touch point with the system where you can try to get the addicts connected with medicine and counseling. McClelland gave some statistics about medicine without counseling and counseling without medicine. Neither was very good. Worse still was just trying to stop on your own. Access to the medications and qualified professionals is not very good. As he put it, “it’s easier to get high than to get help.”

There was a person in the audience who asked a question which he put in a more circumspect manner but basically suggested that, when addiction was seen as mostly a problem among minorities, it was not viewed as a health concern, but now that addiction is a problem among rural white communities, it’s viewed as less a criminal concern and more a health concern. McClelland declined to be drawn into that question, viewing his job as being to do what he can to help Indiana to mitigate this problem regardless of whether its policy approaches have been right or wrong in the past.

My exposure to Mr. McClelland was listening to him for 45 minutes, so this is not a hugely well-informed opinion, but I do get the distinct impression that Gov. Holcomb has made a good appointment for this job.

Dave Bangert, writing for the Lafayette Journal & Courier, has an article on Judge Tom Busch’s announcement that he is going to be retiring as judge for the Circuit Court of Tippecanoe County. I learned a lot of what I know about practicing law from Tom. He was a partner with the firm when I signed on as an associate. I had just become partner in January of 2002 when a position on the bench opened up upon the death of Judge Heid. I still remember eating lunch at the Triple XXX Family Restaurant when Tom told us he was going to seek the position. That moment was significant for me because I felt like it’s when the training wheels came off for me as an attorney. Our other partner, Dave Luhman, was still a strong presence at the firm, but I had mostly been doing collections and work for Tom while I was an associate. When Tom left, a lot of his case load went to me directly and I didn’t have him to lean on anymore. It was scary, but it worked out.

Tom has done a great job as a judge over the years. He was a judge you wanted looking at your case, particularly if you had a novel argument or a non-routine matter to look at. He has a great curiosity about the law. (As an associate, that could be frustrating when he sent you back for the nth revision of a brief, but it’s a good quality in a lawyer or a judge!) Back in 2014, he left his position as judge of Superior Court 2 to run for the Circuit Court position which he won. When he retires at the end of the year, Governor Holcomb will fill the position. There are three years left on Judge Busch’s term, but I think there will now be an election in November which will result in a full six year term beginning January 2019. So, Governor Holcomb’s replacement will serve for a year under the governor’s appointment.

And Judge Busch will get to see more of his family which is truly far flung at this point. He’s earned it!

The Indiana Law Blog has a post noting that LSA is having a celebration of its 50th anniversary tomorrow (March 7). Marcia was there at its founding in 1967 (and worked for its predecessor). Its creation came during a time of legislative reform generally. The agency is nonpartisan and is responsible for drafting legislation, calculating the fiscal impact of proposed legislation, and providing legislators — to the extent possible — with unbiased advice. Legislators obviously have partisan interests to serve as well, and for this, they have caucus attorneys who can and sometimes do draft legislation. But, for the most part, the bulk of the legislation is drafted by LSA. I’m biased, but I’d put the clarity and functionality of our Indiana Code up against  any state’s, and it’s far more usable and understandable than the United States Code. (As an LSA staffer, it was not my job to offer policy advice. So, I won’t – at this point – comment on the merit of the policies reflected in that Code.)

I was only there from 1996 – 1999, but the agency had a significant impact on me. Legislative drafting exercises some different muscles than the more narrative brief writing or drafting contracts (which is, stylistically,  maybe a hybrid between briefs and legislation). It forces a precision that can be helpful. (In many ways, I think legislative drafting and computer programming have a lot in common.) It gave me an interest and an insight into the legislative process which (in combination with my unpursued dream of being a newspaper columnist) morphed into this blog. And, it gave me some marketable skills that I was able to parlay into the job I have now.

Most of all, I was fortunate to work with some really great people. (My boss was kind enough to arrange to have himself appointed judge for a day so he could be the officiant when Amy and I got married.) I think the list of people who worked there when I was there is getting pretty small, but I think the culture of quiet diligence and professionalism still endures, and that’s a tremendous asset to the State.

So, from DI #93, Happy 50th Birthday to LSA!

The law gives you a little of everything. Sometimes in the same case. You don’t really expect the subject of sex to turn up in a contractual deed merger case. But you never know. (“Where two parties have made a simple contract for any purpose, and afterwards have entered into an identical engagement by deed, the simple contract is merged in the deed and becomes extinct.”)

The Indiana Court of Appeals entered an order in the case of Hemingway v. Scott (pdf) affirming a trial court decision requiring an unfaithful girlfriend to quitclaim her part of certain real estate to her former boyfriend.

In 2001, Scott inherited a ten-acre parcel of land (“the Property”) from his father. In 2004, Hemingway and Scott began a relationship, and Hemingway moved in with Scott. The couple broke up for a time, and Hemingway moved out. On February 17, 2012, the couple executed a handwritten contract, penned by Hemingway and signed by both, pursuant to which Scott promised to convey the Property from himself to himself and Hemingway. The contract included a list of conditions that would constitute a breach, including “cheating” by either party.

Scott executed a deed conveying the Property to himself and Hemingway as joint tenants. About two months later, Hemingway became pregnant by another man. (As the Court of Appeals put it, “Hemingway wasted little time in breaching the contract.”) The trial court rejected Hemingway’s argument that “she was merely Scott’s live-in housekeeper, she was not sexually intimate with him, and “cheating” probably referred to a potential lawsuit involving Walmart.” That being a factual argument and not the sort of thing that a Court of Appeals usually reverses a trial court for, Hemingway advanced the legal arguments that: a) the contract “merged” with the deed upon execution and, therefore, the fidelity requirement (which wasn’t in the deed) was nullified; and b) that the contract was “unenforceable as against public policy prohibiting contracts in consideration of meretricious sexual services.”

The Court of Appeals rejected both arguments.

The Indiana Court of Appeals decided the case of Brown v. State which involved a resident’s use of force against the police and IC 35-41-3-2 which authorizes such use of force under certain circumstances. The defendant had threatened his neighbors and, when the police went to the defendant’s house, he wouldn’t show his hands through the screen door. The police entered and use force to subdue him, and he resisted. The question was whether the defendant’s use of force was permitted under IC 35-41-3-2. If so, he should not have been convicted of battering a public safety officer.

I was very critical of the legislature’s adoption of the statute, and I think the Court of Appeals reached a just result here. But, I’m not entirely sure that the Court of Appeals reached the correct legal result. (I hasten to add that I am not privy to how the cases were briefed or anything about the case other than the opinion — so it may be that some of that background would change my mind.)

The background is that the Defendant, Brown, was staring down his neighbors who were picking up trash in their back yard, across the alley from him. They got creeped out by his surveillance and asked him what their problem was. Heated words got exchanged. Brown challenged his neighbors to come across the alley and, if they did, he’d “blow their brains out.” The neighbors called the police. The police talked with the neighbors, then went across the street to talk to Brown. They knocked on his door.

Brown opened the front door, holding open the storm door with his left hand while resting his right behind the door jamb, out of the Officers’ view.
“What do you have behind your back there, sir?” asked Spradling.
“Nothing,” Brown replied.
“It’s lying on the counter right now and it’s a .357”—a popular caliber of handgun.
“Why don’t you show me your hands,” said Huth, nearly before Brown had finished his sentence.
Brown, without complying, began to reply, but Huth immediately interrupted him, his voice rising: “Hands up! Hands up! Hands up!”
“My hands are quite visible,” Brown insisted.
The Officers concluded that, by his refusal to show his right hand, Brown had criminally resisted law enforcement. Intending to arrest Brown for that offense but worried that he might draw a gun from his still hidden right hand, Huth drew his stun gun and fired. Seven seconds elapsed between Huth’s first command and the first stun gun shot.

(Internal citations omitted).
Brown tried to close the storm door, the officers entered, and a struggle ensued where Brown and the officers did violence to one another.

One defense Brown raised was under IC 35-41-3-2(i)(1)-(2) which the Court of Appeals describes as follows: “By statute, a person is privileged to use reasonable force if he reasonably believes that the force is necessary to protect himself from the imminent use of unlawful force by police, prevent unlawful entry of his home by police, or terminate unlawful entry of his home by police.”

The trial court had found that the entry by the police was unlawful, but the Court of Appeals disagreed. It looked at a variety of factors and concluded that the entry by the police was lawful. Here’s the problem though — as I noted when I analyzed the statute in 2012 — the statute doesn’t focus on the lawfulness of the police action; it focuses on the reasonableness of a citizen’s belief concerning whether the action is unlawful. It says that the citizen can resist based on a reasonable belief that an unlawful use of force is imminent.

A person is justified in using reasonable force against a public servant if the person reasonably believes the force is necessary to . . . protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force.

In this case, the trial court believed that the police officers’ entry into the house immediately before using force was unlawful. If the trial court came to that conclusion, it seems difficult to argue that Brown’s belief (correct or incorrect) with respect to the lawfulness of the officers’ entry was unreasonable.

I’m not condoning Brown’s actions or criticizing the officers’ actions. I think the statute was poorly written, and now I think the Court of Appeals may have simply ignored the problematic language in the statute.