Indiana’s Attorney General, Curtis Hill, had a big night out on March 15, 2018. He seems to have gotten drunk and groped a state representative and several interns in addition to making some inappropriate comments. This was at a sine die party at an Indianapolis bar the night the General Assembly adjourned. If he’d responded with something along the lines of “I had too much to drink, I behaved badly, and I’m very sorry” there would have been some embarrassment, but it seems likely that things would have blown over. Instead he went with the Shaggy “wasn’t me” defense. Technically, his response was, “At no time was my behavior inappropriate nor did I touch anyone in an inappropriate manner.” Then he attacked the accusers, saying their accusations were “false” and “vicious.”

A special prosecutor who looked into the matter declined to prosecute, citing the standard of proof and that such a prosecution would not be in the public interest. However, the disciplinary case against him had legs. It had a lower standard of proof (clear and convincing) and lawyers are held to a higher standard than simply “not committing a crime.” The Hearing Officer found that the Disciplinary Commission carried its burden of proof that Hill had committed battery against the women. The touching had taken place, met the standard for “rude” or “insolent,” and was done knowingly or intentionally. The Supreme Court agreed and has suspended Hill’s license for 30 days. Where the Supreme Court and the Hearing Officer parted ways, however, was as to whether Hill should be entitled to automatic reinstatement. The Hearing Officer did not think so. In my view the Hearing Officer’s recommendation to not allow automatic reinstatement was a function of Hill’s attacks on the process and the witnesses after the allegations came to light. The Supreme Court did not find these actions laudable but reasoned that those actions did not entail “the type of wholesale lack of insight or lack of remorse that ordinarily would prompt us to require a respondent attorney to undergo the reinstatement process in order to prove his fitness to resume the practice of law.” He also got some leeway because people working on his behalf did some of the objectionable conduct rather than Hill doing it himself.

The automatic reinstatement is a fairly big deal. The process to petition for reinstatement is fairly burdensome, and you have to convince the Court that you learned your lesson. I think we have a pretty solid Supreme Court, and I agree with them more often than not, but the decision on reinstatement feels political to me. Not in the sense that I think they particularly care whether it’s a Republican or Democrat doing this, but rather that they wouldn’t be particularly excited to be involved with the reinstatement process for such a high profile position. If a private attorney had attacked witnesses and the process in such a public fashion, I think the penalty would have been harsher.

But, light as the penalty was, there are still repercussions. The Governor has filed an “emergency motion to intervene and request for clarification.” He wants the Supreme Court to tell him whether the suspension means that Hill is no longer “duly licensed” as required for the Attorney General under [cite] and, if not, whether his resulting lack of qualification for the office means that there is a vacancy such that the Governor must appoint a new Attorney General. IC 4-6-3-1 requires that the Attorney General be “duly licensed to practice law in Indiana.” The language of the order suspending him suggests that he is no longer “duly licensed” as it provides that, subject to certain conditions, he will be “reinstated to the practice of law” after the suspension period. The fact that he must be “reinstated to the practice” strongly suggests that, at the moment, he is not “duly licensed to practice.”

That being said, the pragmatist in me suggests that, if the Court declined to get entangled with the reinstatement process, it won’t let semantics force Hill out of office.  However, in his petition, the Governor cites to a case involving a Prosecutor in Washington County, Indiana who was suspended for 120 days in 2005 for taking a defendant’s note paper when the defendant and his attorney left the deposition room, then attempted to conceal the paper from defendant’s counsel. Thereafter, the Supreme Court determined that the Prosecutor should be suspended from her duties as Prosecutor and her pay suspended during her period of suspension. The Supreme Court appointed her replacement.

The Governor argues that the Attorney General cannot perform his duties while suspended any more than could the Prosecutor in Washington County could. However, there is a wrinkle in that the Washington County case also involved a suspension of the chief deputy. Hill apparently takes the position that his deputy can step into his shoes. The power of a deputy flows from the power of the occupant of the office. I think the Governor can make a strong argument that the deputy cannot have authority exceeding that of the officeholder, meaning that if Hill can’t practice law, the deputy shouldn’t be able to practice law in his place.

But, if Hill can’t perform the duties of the office, does that mean it’s “vacant” in the sense necessary to authorize the Governor to make an appointment for the rest of the term? He cites Article 5, sec. 18 of the Indiana Constitution and IC 3-14-4-3, both of which give him the authority to appoint replacements for vacancies in state offices until the next election.  But note that in the Washington County case, that is not what happened. The Supreme Court rather than the Governor appointed a “temporary prosecuting attorney” for the period of the suspension. The appointment does not address the issue of vacancy or really even set forth the basis of its authority to make the temporary appointment. So, if they don’t just figure out a way to avoid the question or allow the deputy to work in Hill’s absence, I suppose precedent would be that the Court appoint someone for a couple of weeks.

And, as luck would have it, Todd Rokita would like the job. Grateful Hoosiers rejoice.

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!