In the twenty-five years since that appointment, Randall T. Shepard has continued to make history and to garner national respect for Indiana’s judicial system. In addition to authoring hundreds of opinions (many touching on issues of importance to other states), Chief Justice Shepard guided Indiana’s judiciary by launching and encouraging new programs aimed at improving the system.

With his recent retirement from the bench, this has left many to wonder—what comes next? Who will be the next Chief Justice and how will he shape Indiana’s judicial future? Once again, the Indiana Judicial Nominating Commission has taken on the spotlight, and the work that the Commission does and how it accomplishes those tasks have become topics of interest.

How will the next chief justice be selected?

Filling the vacancies created by Chief Justice Shepard’s departure (to the Court and to the office of chief justice) actually is a two-step process. First, the Indiana Judicial Nominating Commission had to submit the names of three nominees to the Governor for him to appoint the next justice of the Indiana Supreme Court. See Ind. Const., Art. 7, Sect. 10. The next step is for the Indiana Judicial Nominating Commission to meet to decide who, among the current justices of the Court (including the new justice), will become the chief justice. Once selected, the Chief Justice will serve a five-year term as the chief justice. See Ind. Const., Art. 7, Sect. 3.

Typically, the Nominating Commission’s procedure for selecting the chief justice starts with publicly interviewing all of the justices (regardless of whether the justice is seeking the office) to hear each one’s thoughts about what qualities are important for a chief justice to possess. After those interviews are completed, the Commission meets in an executive session to consider the qualifications of those justices who have indicated an interest in the office. The Commission then votes in a public session for the chief justice.

Indiana is the only state in which a judicial nominating commission selects the chief justice. See American Judicature Society Website, “Methods of Judicial Selection” at tinyurl.com/judicial-selection. In most states, the chief justice is selected by the members of the court, by popular election, or by gubernatorial appointment.

Members of the Judicial Nominating Commission concluding an interview with Mark S. Massa (left), who was later chosen as a finalist and appointed as the 107th Indiana Supreme Court Justice by Gov. Mitch Daniels.

Who are the individuals responsible for making the chief justice selection?

The composition of the Nominating Commission is governed by Article 7, Section 9 of the Indiana Constitution and I.C. § 33-27-2 et seq. The Commission consists of seven members: three attorney members, three non-lawyer members, and the Chief Justice or a Justice of the Supreme Court whom the Chief Justice may designate. Currently, Justice Brent Dickson is serving as the Chairman of the Commission.

An attorney and a non-attorney representative are chosen from each of the three geographic districts of the Court of Appeals. I.C. §§ 33-27-2-1; 33-27-2-2. Attorney members serve three-year staggered terms, after being elected by the attorneys in their respective districts. I.C. § 33-27-2-2. The Governor appoints the non-attorney members to serve three-year terms. I.C. § 33-27-2-1.

First District Representatives

Molly Kitchell grew up in Kokomo, and then she moved to New England before settling down in Boone County. She obtained a B.A. in Sociology from Purdue University and then obtained an M.S. in Occupational Therapy from the University of Indianapolis, graduating first in the class for both her undergraduate and graduate programs. After graduation, she worked as an occupational therapist, primarily in the area of neurological and psychological rehabilitation. She and her husband, Ryan, have four children, and for the past ten years her primary focus has been raising them. In her spare time, she serves on the Board of Directors for the Governor’s Interagency Coordinating Council for Infants and Toddlers with Disabilities. Her term on the Commission expires 12/31/13.

James O. McDonald, Esq., grew up on a farm and continues to live on a working farm in western Vigo County. He was admitted to the Indiana University Robert H. McKinney School of Law when it was solely a night school. While going to law school, he worked in the office of Lieutenant Governor Richard Folz and then clerked for the Indiana Court of Appeals. Since 1972, he has practiced law in Terre Haute, concentrating on litigation of personal injury and business disputes for individuals and small businesses. His term expires 12/31/12.

Second District Representatives

Fred McCashland, a Marion County resident, is a retired educator from Brebeuf Jesuit Preparatory School. He obtained his B.A. in American History and American Government from Iona College and received a M.A. in American Government and International Relations from the University of Notre Dame. During his thirty-four year career at Brebeuf, he taught American history and government, chaired the social studies department, and served as an academic counselor. Other positions he served while at Brebeuf included Director of Development, Dean of Students, assistant to the President, and then President for two years. His term on the Commission expires 12/31/12.

William E. Winingham, Jr., Esq., is a partner at Wilson Kehoe & Winingham in Indianapolis. After graduating from the Indiana University Robert H. McKinney School of Law, he worked as a deputy prosecutor in the Marion County Prosecutor’s Office for three years, and then served as an Assistant U.S. Attorney for three years in the U.S. Attorney’s Office for the Southern District of Indiana. For the last twenty-five years, he has been with the civil litigation firm of Wilson Kehoe Winingham, LLC, focusing on plaintiffs’ personal injury work. His term expires 12/31/13.

Third District Representatives

D. Jean Northenor, a Kosciusko County resident, is a retired executive from Lake City Bank. She began her eighteen-year career with the bank in the marketing department and ended it as the Executive Vice President in charge of marketing, human resources, maintenance, and construction. She served two years on the Lake City Bank’s Board of Directors before retiring in 2003. In the 1980s, she also spearheaded the Kosciusko Leadership Academy to encourage young people to cultivate their leadership skills and to get involved in public service. Her term with the Commission expires 12/31/14.

John D. Ulmer, Esq., is a former partner at Yoder Ainlay Ulmer & Buckingham, LLP, in Goshen and presently serves as an attorney of counsel for the firm. He practices general trial work, focusing on personal injury and insurance defense litigation. He graduated with distinction from Indiana University Maurer School of Law and, while in law school, served on the Board of Editors for the Indiana Jaw Journal. He previously served as an Elkhart County deputy prosecutor and later, after leaving the office, was appointed to act as a special deputy prosecuting attorney on the Ford Pinto trial. He served in the Indiana House of Representatives from 1998 to 2008. His term on the Commission expires 12/31/14.

What factors does the Nominating Commission consider when evaluating a candidate?

Under Indiana Code § 33-27-3-2, the Commission is required to consider each candidate’s legal education, legal writings, reputation in the practice of law, physical ability to do the job, financial interests (for conflict-of-interest purposes), public service activities, and other pertinent information the Commission feels is important to select the most qualified candidates. As may be gleaned from the Commission’s questions during interviews, other factors also may be considered, in varying degrees of importance, such as an applicant’s trial or appellate advocacy background, administrative experience, pro bono commitment, ability to contribute to the diversity of the court, and other special professional talents.

When selecting a chief justice, other factors also may take on greater importance. For instance, given the number of speeches a chief justice delivers, a justice-candidate’s communication skills may be a significant factor. Likewise, factors such as the justice-candidate’s leadership skills, reputation for collegiality and consensus building, organizational management skills, vision, and ability to serve as a role model for the Court also may be influential considerations.

Just as 1987 proved to be a year of significance for Indiana, 2012 holds similar promises. As the Judicial Nominating Commission prepares for the business of selecting the next leader of our state’s judiciary, the hope is that the members will continue with Indiana’s historic and winning tradition. Having worked with this group for some time now, I am confident that they are up to the task. We are all in good hands and should be proud of what our State has to offer the national legal landscape.

Related Article: Indiana Merit Selection and the “Missouri Plan”

Sergeant First Class Paulette Riehl blows bubbles with the kids at Jaji Maidan.

Taking a year off from the bench of the Marion County Superior Court Juvenile Division to do a year of active duty military service in Khost, Afghanistan was one of the most exciting experiences of my life. As a JAG (Judge Advocate General, the army’s lawyers), I had spent my entire 25-year career in the Indiana National Guard mobilizing citizen soldiers—preparing their wills, powers of attorney and attending to their families’ legal issues during their soldier’s absence. Now I was going to be one of those soldiers.

My unit, the 3-19th Agribusiness Development Team (ADT), was formed a year before we left for Afghanistan in September, 2010 and trained together as a unit for that year not only in warrior tasks (marksmanship, land navigation, grenade throwing, mine deployment, etc.) but also in primitive farming skills like plowing with oxen and draft horses, blacksmithing, and wool spinning. I was the large animal husbandry specialist because my husband and I have a small horse farm. Six of the 62-person unit were women and we formed a female engagement team to interact with Afghan women.

Lieutenant Colonel Pam Moody and Colonel Marilyn Moores at Forward Operating Base Chapman preparing to go on an all-women's mission to Jaji Maidan to conduct with local Afghan women's officials a shura (which is essentially like a town hall meeting) where the local women can tell their women officials of their concerns and needs.

Khost is one of Afghanistan’s easternmost provinces, right next to the Pakistan border and south of Kabul. There we lived on FOB (Forward Operating Base) Salerno, home to 3,000 Army, Navy, Air Force, Marines and civilian contractors. Salerno is nicknamed “Rocket City” for the weekly shellings we received from Taliban troops in Pakistan.

Not long after we arrived in country, I went to work at the Brigade headquarters’ Rule of Law section where we worked with Khost provincial and district government to mentor local judges and prosecutors and further the development and implementation of local government. Khost had a working court system—something not true of all other provinces. We helped establish a system whereby Khost court decisions were published on the web, not only in Pashtu but also in English. We helped conduct training for the judicial officers in a newly issued judicial code of conduct. We helped bring vocational training to the local prison to better reintegrate offenders after their release. We helped strengthen security at the provincial court house which also contains judicial housing for security reasons.

But perhaps most rewarding were the women’s missions we conducted with the PRT (Provincial Reconstruction Team). Afghan women officials were in as much danger as, if not more than, the male officials. So when the Director of Women’s Affairs wanted to visit a remote district capital, Jaji Maidan, to conduct a shura we escorted her and her staff and attended the meeting with Jaji Maidan’s women to find out what they wanted from their government and what issues and concerns they had. The shura was addressed by the young male district governor, after he received permission from the village elders, an event that made headlines all over Afghanistan for its innovation.

Afghan women and children at Gorbuz leave a humanitarian assistance site operated by members of the Indiana Army National Guard 3-19th Agribusiness Development Team where they were given children’s coats, school supplies—all donated by Indiana residents, note the baby’s bare feet—it was February, 2011 and approximately 40 degrees. Baby shoes are for some reason very hard to get in Afghanistan and seeing barefoot babies is very common.

The women expressed the need for more women’s healthcare—not surprising given that one in nine Afghan women die in childbirth and the average life expectancy for a woman is only 42 years. They were concerned that many of the villagers had diarrhea, later determined to be caused by the lack of sanitary sewers and shallow wells for drinking water. They wanted more education about their legal rights. Their lack of knowledge was not surprising considering that only 23% of Afghans are literate and of that 23%, only 7% are women. All of the women were very concerned about the Americans leaving their country fearing a return to the dreaded days of the Taliban when they were not allowed to be educated or even leave their homes without appropriate male escorts.

As I left Afghanistan we were planning to engage Afghan women attorneys from Kabul to visit small, remote villages like Jaji Maidan to educate Afghan women about their legal rights guaranteed by the Afghan constitution—that they cannot be forced to marry someone, that their dowries are their property and not their families, and that females under the age of 16 cannot marry. I am hopeful this project was approved and is being undertaken.

LEFT. Afghan kids at Gorbuz enjoying their new goodies. RIGHT. SFC Paulette Riehl of the 3-19th ADT holding an Afghan baby at the Jaji Maidan shura.

We found the Pashtun people most warm and friendly, and the ultimate hosts/hostesses. Tea and biscuits (cookies to us) were served at every meeting. They are also exceedingly generous and kind. We formed lifelong friendships with our interpreters and other Afghans with whom we worked. And after spending an entire year there, it was heart-wrenching to have to leave, knowing the communication gulf that would ensue. Afghanistan has no postal system. There are no hard-wired electrical or telephonic grids outside of Kabul. The most common method of distance communication is by cellular phone, and even this is haphazard at best because of all the interference caused by the mountains.

And it was hard to leave with so much still to be done. I wanted to see it through to completion. There is much reason to be hopeful—75% of the population is under the age of 21—and we have been there for 10 years, so we have had a huge influence on a large portion of the young population. Children—both boys and girls—are attending school in droves, because their parents see the advantages of an education. Cottage industries are flourishing, even among women. But the Taliban remains a force to be reckoned with, always lurking in the lawless tribal areas of northern Pakistan, just waiting for an opportunity. It would break my heart to see all the progress gone overnight because we did not stay the course.

A person who has been charged but not convicted of a crime, or has had a conviction vacated, may apply for restricted access to that record. A person may also petition to restrict access to conviction records after 8 years have elapsed since the end of the sentence. It is only available to an adult who has been convicted of a misdemeanor or a nonviolent Class D felony or who had been adjudicated a delinquent child for committing that offense. A petitioner may not have a felony conviction after fulfilling all of his or her sentencing obligations.

Proceedings to Restrict Disclosure When a Person is Not Convicted or the Conviction is Vacated
(I.C. 35-38-5-5.5)

The new petition and procedures to restrict disclosure of arrest records are similar to those for a petition to expunge arrest records (I.C. 35-38-5-1). The primary difference is the relief granted: under the current law the arrest record is expunged; under the new section at I.C. 35-38-5-5.5, the arrest records are restricted from disclosure to noncriminal justice organizations or individuals.

A person who is charged with a crime but who (1) is not prosecuted or whose charges are dismissed, (2) is acquitted of all criminal charges, or (3) is convicted of the crime and the conviction is subsequently vacated, may petition a court to order the state police not to disclose or permit disclosure of the person’s limited criminal history to noncriminal justice organizations or individuals (I.C. 35-38-5-5.5).

The petition must be verified and filed in the court in which the charges were filed if the person was not prosecuted or the charges were dismissed; and filed in the trial court if acquitted or the conviction vacated. The petition should be filed under the case number of the original criminal case, but if prosecution was dismissed before a case number was assigned, the petition should be assigned an MC number.

A person may file a petition no earlier than 30 days after acquittal or dismissal of the charges. If the conviction is vacated, then a petition may be filed no earlier than 365 days after the order is final or certification of the opinion or memorandum decision vacating the conviction. The petition must be served on the prosecuting attorney and the Indiana State Police Department, which is the state central repository for criminal records under I.C.10-13-3-24. A prosecuting attorney may file a notice of opposition with the court within 30 days after the petition is filed.

The court may summarily grant or deny the petition or set the matter for hearing. If the court does not summarily grant or deny the petition, it must set the matter for a hearing if the prosecuting attorney files a notice of opposition. After a hearing is held, the court must grant the petition unless the petitioner is being reprosecuted on charges related to the original conviction. If the petition is granted, the court shall order the state police department not to disclose or permit disclosure of the petitioner’s limited criminal history information under I.C.10-13-3-27 to a noncriminal justice organization or an individual.

Proceedings to Restrict Access to Conviction Records for Misdemeanor and Non-Violent Class D felony Convictions (I.C. 35-38-8)

A court may grant a petition to restrict access to criminal history information related to misdemeanor or nonviolent Class D felony convictions in certain circumstances under I.C. 35-38-8. The law does not apply to sex or violent offenders with the limited exception of an individual whose status as a sex offender is solely due to his conviction for sexual misconduct with a minor (IC 35-42-4-9) if the person was not 21 years of age, the relationship between the person and the victim was a dating relationship or an ongoing personal (and not family) relationship, the person was not more than 4 years older than the victim, there was no force or influence of a drug or controlled substance, and the person was not in a position of authority or substantial influence over the victim [defense described in IC35-42-4-9(e)].

A person, at least eight (8) years after completing his or her sentencing obligations, may petition the sentencing court to order the state police department to restrict access to records of his or her arrest and involvement in criminal or juvenile court proceeding. A person is eligible to petition only if convicted of a misdemeanor or a Class D felony that did not result in injury to a person.

This is a civil proceeding for which an MI case type should be assigned and the regular civil filing fee assessed. If the petition seeks to restrict access to multiple convictions, a single petition may be filed, provided that the convictions were all in the same court. The Indiana State Police Department should be served as it is the official state repository for criminal history information.

A court must grant the petition if: (1) the person is not a sex or violent offender; (2) the person’s conviction or adjudication was for a misdemeanor or a Class D felony not resulting in injury to a person; (3) eight years have passed since the person completed the sentence and fulfilled all obligations imposed as part of the sentence, and (4) the person has not been convicted of a felony since the person completed the sentencing obligations (I.C. 35-38-8-4).

The court granting the petition must order the department of correction and each law enforcement agency incarcerating, treating, or providing services to prohibit the release without a court order of the person’s records or information to a noncriminal justice agency. The court must also prohibit the release without a court order of the same information by any person who provided treatment or other services to the petitioner under court order and any state, regional, or local central repository for criminal history information to a noncriminal justice agency.

If the court orders the records restricted under this provision, a person may then legally state on an application for employment, or any other document, that he or she has not been arrested for, or convicted of, the felony or misdemeanor listed in the restricted records (I.C. 35-38-8-7).

Practice Tips

Although neither I.C. 35-38-5-5.5 nor I.C. 35-38-8 expressly requires the court to restrict access to the court’s records to noncriminal justice agencies or persons, we recommend that it be done because failure to do so would largely frustrate the purposes of the statutes.

For Judges

The court has authority under Administrative Rule 9(G)(1)(c) to exclude information from public access by specific court order. In granting relief to the petitioner in either of the above proceedings, the Division recommends that the court direct the clerk to remove the records from public access.

Because IC 35-38-8 includes a wide range of potential persons or entities who must be ordered not to disclose the information, the Division recommends that the court advise the petitioner that it is the petitioner’s responsibility to inform the court of all persons or entities who possess the information and only those persons or entities identified by the petitioner will be included in the court’s order restricting access.

For Clerks

A copy of the petition, whether filed under IC 35-38-8 or under IC35-38-5-5.5 should be mailed to the Indiana State Police, Records Division, IGN, 100 N. Senate Avenue, Room 301, Indianapolis, Indiana 46204.

The Division has developed a form petition for restricting access under IC 35-38-8 which may be found in the Indiana Supreme Court Self Service Center, courts.in.gov/selfservice.

It is important to remember that an order restricting access is not the same as an expungement, and this is true whether the order is entered under I.C.35-38-5-5.5 or under I.C. 35-38-8-5. The restricted records should still be available to the parties, their attorneys and to criminal justice agencies, but access to the records by noncriminal justice agencies is prohibited without a court order.

The Indiana Judicial Center has prepared a legislative report that contains summaries of select bills of interest passed in the 2011 session and can be can be found at:
http://www.in.gov/legislative/reports/2011/DIGEST_OF_ENACTMENTS.PDF

The entire text of any law, as well as any other legislative action, is available at:
http://www.in.gov/apps/lsa/session/billwatch/billinfo

Civil Law

Procedures in administrative proceedings

S.E.A. 67, P.L. 32-2011

Many changes are made in the laws dealing with administrative proceedings.

Settlement conferences in residential foreclosures

S.E.A. 582, P.L. 170-2011

The statute governing settlement conferences in residential mortgage foreclosure actions does not include a land contract. It also makes other changes in the statute and urges the Legislative Council to assign to the Commission on Courts, or another appropriate committee, the task of studying real estate short sale procedures and specific topics concerning non-judicial mortgage foreclosures. A final report must be issued no later than November 1, 2011.

Disclosure of firearm or ammunition information

S.E.A. 411, P.L. 17-2011

An applicant for employment has a cause of action against a public or private employer asking for disclosure of information concerning gun or ammunition ownership or possession, or if a condition of employment is to forgo the lawful ownership or use of a firearm. A governmental entity may not restrict the possession of a firearm at a person’s residence during a declared emergency.

Secured transactions

H.E.A. 1321, P.L. 54-2011

The Uniform Commercial Code pertaining to secured transactions is amended to conform to recommendations made by the National Conference of Commissioners on Uniform State Laws.

Environmental legal action statute of limitations

S.E.A. 346, P.L. 154-2011

This law, along with other changes, sets the statute of limitations for an environmental legal action and an action for a contribution to pay for corrective action related to a release from an underground storage tank.

Recognition of foreign country money judgments

H.E.A. 1548, P.L. 213-2011

The Uniform Foreign Country Money Judgments Recognition Act is adopted, providing a process for recognizing and enforcing money judgments obtained in other nations.

Disinterment of human remains

H.E.A. 1432, P.L. 132-2011

A court may authorize the removal of the remains of a deceased human from a cemetery for certain purposes if the consent of the owner of the cemetery cannot be obtained, or the identity of certain individuals from whom consent is required cannot be determined.

Criminal Law

Handgun possession

S.E.A. 506, P.L. 164-2011

A person has much broader rights to carry a handgun without a license under the provisions of this law. It also provides that a person who has been convicted of domestic battery may not possess or carry a handgun unless the person’s right to possess a firearm has been restored by a court.

Preemption of local firearm regulation

S.E.A. 292, P.L. 152-2011

This law prohibits, with certain exceptions, a political subdivision from regulating: (1) firearms, ammunition, and firearm accessories; (2) the ownership, possession, carrying, transportation, registration, transfer, and storage of firearms, ammunition, and firearm accessories; and (3) commerce in and taxation of firearms, firearm ammunition, and firearm accessories. A person may file an action against a political subdivision if the person is adversely affected by a local law or regulation.

Purchase of firearms

S.E.A. 94, P.L. 60-2011

It is now a Class C felony for a person to knowingly or intentionally give false information on certain forms or offer false evidence of identity in purchasing or otherwise securing the delivery of a firearm.

Alcoholic beverage matters

S.E.A. 78, P.L. 216-2011

Those selling alcoholic beverages must now ask for ID if the buyer appears to be less than 40 years of age rather than asking everyone.

Tobacco matters

H.E.A. 1405, P.L. 10-2011

It defines “dissolvable tobacco product” and establishes penalties for the sale and purchase of dissolvable tobacco products involving persons less than 18 years of age.

Sale of ephedrine or pseudoephedrine

S.E.A. 503, P.L. 221-2011

This law defines a “retailer” and sets forth the duties relating to the electronic tracking of ephedrine and pseudoephedrine (PSE).

Substance abuse study

H.E.A. 1502, P.L. 134-2011

The Legislative Council is urged to assign to a study committee the topics of: (1) unlawful ingestion of controlled substances by pregnant women; (2) substance abuse by men; and (3) whether the penalty for unlawful use of a controlled substance should be based on the amount of active ingredient contained in the controlled substance.

Access to child pornography in criminal discovery

S.E.A. 216, P.L. 148-2011

A court may permit, with restrictions, a defendant to inspect, view, and examine material that constitutes child pornography at a state or local court or law enforcement facility if the defendant demonstrates that inspecting, viewing, and examining the material is necessary to the defendant’s defense.

Child molesting and child solicitation study

H.E.A. 1324, P.L. 128-2011

The Legislative Council is urged to assign the topics of child molesting and child solicitation to an existing study committee to study the topic, including whether to elevate the sentences for the offenses under certain circumstances.

Public voyeurism

S.E.A. 19, P.L. 75-2011

A person commits a Class A misdemeanor by peeping at the private area of an individual and recording an image by means of a camera. The penalty is increased to a Class D felony if the person has a prior conviction or: (1) publishes the image; (2) makes the image available on the Internet; or (3) transmits or disseminates the image to another person.

National fingerprint based criminal history checks

H.E.A. 1318, P.L. 127-2011

Certain individuals with mental illnesses may not possess a firearm, and establishes a procedure to remove this prohibition after the person is released from commitment or has completed treatment.

Arrest records

H.E.A. 1211, P.L. 194-2011

A person charged with a crime may petition a court to restrict disclosure of arrest records related to the arrest if the person: (1) is not prosecuted or if charges against the person are dismissed; (2) is acquitted of all criminal charges; or (3) is convicted of the crime and the conviction is subsequently vacated.

Closed circuit television testimony

H.E.A. 1215, P.L. 28-2011

For purposes of a hearing concerning the admissibility of certain statements or videotapes made by a protected person in a criminal action, the protected person may attend the hearing through the use of closed circuit television.

Conflict of interest

S.E.A. 559, P.L. 110-2011

It specifies certain definitions and defenses that apply to the crime of conflict of interest, a Class D felony.

Competency examination

S.E.A. 262, P.L. 151-2011

A court may appoint two or three competent, disinterested psychiatrists, psychologists or physicians to examine a defendant who raises an incompetency claim; however, one of the appointees must be a psychiatrist or psychologist.

Illegal immigration matters

S.E.A. 590, P.L. 171-2011

Makes various changes concerning the enforcement of federal immigration laws, illegal immigration, and related criminal matters. The Legislative Council is urged to assign to an existing study committee certain topics concerning immigration and consult with the Lieutenant Governor.

Official misconduct

S.E.A. 217, P.L. 102-2011

A public servant commits official misconduct, a Class D felony, if the public servant knowingly or intentionally commits a crime in the performance of the public servant’s official duties.

Criminal law study committees

S.E.A. 90, P.L. 98-2011

It relocates the statute establishing the Criminal Law and Sentencing Policy Study Committee, and extends the expiration of the Criminal Code Evaluation Commission until December 31, 2012.

Indiana State Museum and historic sites

H.E.A. 537, P.L. 167-2011

A person who knowingly or intentionally alters, without a permit, historic property located on property owned or leased by the State commits a Class B misdemeanor.

Budget bill [parole; diversion, deferral programs and plea bargaining study]

H.E.A. 1001, P.L. 229-2011

The 24-hour electronic monitoring of certain parolees is subject to the amount appropriated to the Department of Correction for a monitoring program. The Criminal Justice Institute is required to study and report to the Budget Committee by December 1, 2011 on: (1) the use of diversion and deferral programs in Indiana; and (2) the use of plea bargaining in Indiana.

Various criminal matters

H.E.A. 1083, P.L. 180-2011

This law concerns sexting and bullying. It provides defenses to the crimes of disseminating matter that is harmful to minors, child exploitation, and possession of child pornography if a cellular telephone was used and the defendant and recipient of the matter are certain ages and meet other requirements. The Criminal Code Evaluation Commission is required to study certain sex crimes against children during the 2011 interim.

Family and Juvenile Law

Interstate compact for juveniles

S.E.A. 34, P.L. 137-2011

It adopts the interstate compact for juveniles and adds members to the state council for interstate adult offender supervision. The state council for interstate adult offender supervision is also the council for interstate juvenile supervision. An offender and juvenile offender is required to pay a $125 application fee to apply for a transfer out of state and counties must establish a county offender transportation fund.

Prevention programs for at-risk children

H.E.A. 1107, P.L. 183-2011

A juvenile court may create a voluntary preventative program for at-risk children, including appointment of staff , procedures to follow and immunity for certain actions.

Claiming child as dependent for tax purposes [child support]

H.E.A. 1427, P.L. 210-2011

A court must specify in a child support order which parent may claim the child as a dependent for tax purposes, and establishes factors to consider in making a decision. A prosecuting attorney or private attorney who undertakes activities required under Title IV–D is not required to mediate, resolve, or litigate a dispute between the parties relating rights to claim a child as a dependent for tax purposes.

Parental reimbursement for juvenile services

H.E.A. 1316, P.L. 204-2011

The Division of Youth Services Transitional Services Fund (fund) is established to provide juvenile transitional services to delinquent offenders.

Notice to parent, guardian or custodian

H.E.A. 1422, P.L. 131-2011

If a child is named in a written report of a crime and the law enforcement agency that receives the report reasonably believes that the child may be a victim of a crime, the law enforcement agency, subject to certain exceptions, must make a reasonable attempt to notify the parent, guardian or custodian of the child about the report and provide them with certain contact information.

Department of Child Services

S.E.A. 465, P.L. 162-2011

This law makes numerous changes in child services laws including the responsibilities of DCS, probate courts, and juvenile courts.

Release of adoption information

H.E.A. 1201, P.L. 191-2011

Various changes are made to the adoption laws regarding the release of identifying and non-identifying information.

Judicial Administration

Mandatory retirement age for trial court judges

S.E.A. 463, P.L. 161-2011

It repeals or otherwise removes all provisions that establish a mandatory retirement age for superior court and county court judges.

Credit time

H.E.A. 1416, P.L. 228-2011

An imprisoned person may earn credit time for successfully completing the requirements for a high school diploma through correspondence courses.

Various provisions concerning courts

H.E.A. 1266, P.L. 201-2011

The expiration date of the Commission on Courts is changed from June 30, 2011, to June 30, 2015. All circuit courts, superior courts, and probate courts have: (1) original and concurrent jurisdiction in all civil cases and in all criminal cases; (2) de novo appellate jurisdiction of appeals from city and town courts; and (3) in Marion County, de novo appellate jurisdiction of appeals from township small claims courts. The law concerning the establishment and operation of county courts is repealed. (Since January 1, 2009, no county court exists in Indiana.) A unified circuit court is established for Clark County, Madison County and Henry County. The four judges of the Lake Superior Court County Division are to be nominated by the Lake County Superior Court Judicial Nominating Commission and appointed by the Governor and subject to the question of retention or rejection by the Lake County electorate every six years. (Current law provides that the judges of the Lake Superior Court County Division are elected every six years.)

Problem-solving courts

H.E.A. 1153, P.L. 187-2011

It expands who is eligible to participate in court established alcohol and drug services programs. Procedures must be followed by a problem solving court to terminate an individual’s participation in a court program. The parent or guardian is financially responsible for service fees and chemical testing expenses assessed against the child by the problem solving court. A city, town or county user fee fund includes problem solving court fees collected by the clerk of the court. A Criminal Law and Sentencing Policy Study Committee is established.

Jurisdiction of university and college police

H.E.A. 1406, P.L. 30-2011

A police officer employed by a college or university may exercise the officer’s police power in any part of Indiana if the college or university adopts a resolution specifically describing the territorial jurisdiction of a police officer, and the board of trustees sends notice to the superintendent of State Police and the sheriff (or chief of police in Indianapolis) of the county in which the institution is primarily located. It requires a police officer employed by a college or university to meet certain training requirements.

Budget bill [court fees and judicial salaries]

H.E.A. 1001, P.L. 229-2011

The Budget Committee may release funds for the judicial technology and automation project after the Division of State Court Administration certifies that the judicial technology automation project is in compliance with the information sharing and exchange provisions of IC 33–24–6–3(a). The automated record keeping fee is reduced to $5.00 after June 30, 2011, and it specifies where the fee is deposited and allocates its distribution. The public defense administration fee is increased from $3.00 to $5.00, and it increases the allocation of state funds to the Public Defense Fund. Funds derived from a deferral program or pretrial diversion program are to be dispersed only by the adoption of an ordinance appropriating the funds by the fiscal body of the city, town or county for one or more of the listed statutory purposes. Judicial salaries may be increased only if approved by the Chief Justice.

Salaries and Benefits

State Deferred Compensation Plan

S.E.A. 521, P.L. 21-2011

If a state employee does not choose another amount, the state shall, in each pay period during the first year the employee is automatically enrolled in the State Deferred Compensation Plan, deduct from the employee’s compensation the greater of the maximum amount of any match provided by the State on behalf of the employee to the plan or one-half percent of the employee’s base salary.

Traffic Law

Use of handheld telecommunications device while driving

H.E.A. 1129, P.L. 185-2011

A person who uses a telecommunications device to type, transmit, or read a text message or an electronic mail message while operating a moving motor vehicle commits a Class C infraction. A person may use hands free or voice operated technology to transmit a text message or an electronic mail message, and may call 911 to report an emergency while operating a moving motor vehicle. A police officer may not confiscate a telecommunications device for the purpose of determining compliance or confiscate a telecommunications device and retain it as evidence pending trial for a violation.

Various motor vehicle issues

S.E.A. 528, P.L. 109-2011

An individual must hold a valid operator’s license with a motorcycle endorsement in order to operate a motorcycle. Statutory inconsistencies are removed concerning the ineligibility of a habitual traffic violator for a hardship license. Other changes are made involving proof of financial responsibility and the suspension of driving privileges.

Probate Law

Probate, trusts, and transfer on death transfers

S.E.A. 169, P.L. 36-2011

It makes numerous amendments to existing law concerning transfer of title of certain vehicles, unsupervised estates, powers of personal representatives, transfer of real property, matrimonial trusts, retirement accounts, and other matters.

Uniform Adult Guardianship

H.E.A. 1055, P.L. 178-2011

The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act is adopted in Indiana, and makes other changes in existing guardianship laws.

Martin University student, LaTosha Williams, attended the February 15, 2011 Indiana Supreme Court sponsored event at her university with unanswered questions about the judicial branch of government. “Before today, I was curious about judicial responsibilities and activities. I thought that judges probably sit in their courtrooms every day and make decisions,” she explained.

Williams joined more than 200 people including students, faculty, attorneys and community members for a two-part program about the courts. The first part, “The Least Understood Branch,” was co-sponsored by the Indiana Supreme Court and the American Bar Association (ABA) Judicial Division. The second part, a continuing legal education seminar, was an Indiana Supreme Court Legal History Lecture celebrating Black History Month.

Students (pictured from left to right) Maina Jackson (biology), Valerie Collier (chemistry), and Latosha Williams (chemistry) participated in the Least Understood Branch program after their classes.

G. Michael Witte, Indiana Supreme Court Disciplinary Commission Executive Secretary, is the ABA Judicial Division Chair. He explained, “We have a number of similar events taking place across the country. The program is designed to initiate discussion and reflection on the role of fair and impartial courts in our society. It is a method of reconnecting the public with the concept of three co-equal independent branches of government.”

The centerpiece of the Least Understood Branch program was a panel discussion on the topic of judicial independence, moderated by Marion County Superior Court Judge David J. Dreyer. Panelists included Federal Court Judge Sarah Evans Barker, US District Court, Southern District of Indiana, Professor John Hill of the Indiana University School of Law—Indianapolis, and Dan Drew, Dean of the School of Journalism at Indiana University—Purdue University Indianapolis.

The panel discussion focused on the role of courts in a democracy and some of the obstacles facing the judicial branch. The areas included judges’ duties, interpretation of the law through case decisions, and the impact of the media and politics on the judiciary. “I learned that judges do much more than simply preside over a trial. They spend a lot of time researching, reading and dealing with many matters beyond the courtroom,” said Williams.

Martin University criminal justice student Jasmine Dillard (far right) with other students and community members at the Least Understood Branch panel discussion.

The discussion examined the implications of judges in a political and media-influenced society. Judge Barker stated, “Learning to live with public criticism is a part of a judge’s job. Although it may sometimes entail personally unpalatable results, our job is to apply the law to the case.” Judge Barker’s explanation initiated a conversation about media influence on public opinion. “The media is imperative to an understanding of what is happening in the courts,” explained Dean Dan Drew. “Without media coverage, people will likely not know about these important matters; however, their portrayal of events can influence opinions,” said Drew. The panel consensus was that, because government operates within a system of checks and balances, the role of the judiciary is unique; more than the other two branches, judges must remain impervious to factors beyond the facts and law of a particular case in deciding the controversy before them. “The participants were really beginning to contemplate the roles of the court. They learned about what judges do and the challenges they face every day. Judge Barker illustrated the difficult task judges have to interpret the law in a society where external sources like media and politics are prevalent,” said Judge Dreyer.

After a short break, the program transitioned into a Continuing Legal Education seminar honoring Black History Month. Indiana Supreme Court Justice Robert D. Rucker and Indianapolis lawyer Roderick Morgan, a partner at the firm of Bingham McHale, served as keynote speakers.

Justice Rucker discussed his personal judicial journey, the judicial selection process, and the operation of the Indiana Supreme Court. Justice Rucker explained the role of the Judicial Nominating Commission in choosing Supreme Court justices and the process of becoming a justice. Justice Rucker is only the second African-American to serve on Indiana’s state supreme court. “I had no idea that there were so many factors involved in selecting a Supreme Court justice,” said Williams, who attended both the panel discussion and the black history celebration lectures. “The accomplishments of Justice Rucker are honorable and inspiring and served as a strong foundation for his selection as a justice on the Indiana Supreme Court,” observed Williams.

Supreme Court Justice Robert Rucker talks about how he became an Indiana Supreme Court justice.

In the question and answer session, Justice Rucker spoke about the difficult task of enforcing laws while ensuring justice. He noted that, “Justice implies ‘rightness’ but the law does not always allow for flexibility. We must operate within the boundaries of the law. Justice is a goal we try to reach but are sometimes hampered by the law.” He cited a former Indiana Supreme Court justice who ruled in favor of enforcing capital punishment, but as a Quaker was morally opposed to the death penalty. “It is important that we make distinctions between legality and justice. We think about fairness every step of the way,” said Justice Rucker.

Following Justice Rucker’s presentation, Indianapolis attorney and past President of the Indiana State Bar Association Roderick Morgan spoke about the truly remarkable life and career of John Morton Finney, an Indianapolis African American lawyer admitted to the bar in 1935. Mr. Finney practiced law until age 107. During his lifetime, he earned eleven bachelor’s degrees, five law degrees and was fluent in six languages. At the time of his death in 1998, Morton-Finney was the last surviving member of the Buffalo Soldiers, a World War I era black Army unit. Before practicing law, Morton-Finney spent many years as a teacher, department head, and administrator in the Indianapolis Public School system, primarily at Crispus Attucks High School. A few attendees volunteered that they, or their siblings, were former students of Morton Finney and described him a remarkable role model and motivator. The seminar concluded with a discussion about Mr. Finney, segregation, and the importance of celebrating Black History in Indiana.

Dr. Elizabeth R. Osborn, the Indiana Supreme Court’s Director of Courts in the Classroom, helped to organize the CLE portion of the program. She pointed to the different backgrounds of those in attendance, “Attorneys received CLE credit, but they were not the only group represented. The audience was also filled with students, community members and Martin University faculty representing a wide variety of backgrounds and viewpoints. The Indiana Supreme Court strives to achieve this result in all of our programs because it represents the diversity in our state. Our goal is to make the courts better understood by all Hoosiers.”

Martin University Acting President Dr. Charlotte Westerhaus-Renfrow is proud that the school was asked to host this event. “We are certainly appreciative for the community outreach and assisting in helping people better understand and relate to the judicial branch of government. The students felt in touch and up close and personal with the judiciary. The event not only reached out to the community, but also encouraged student participation, which is a great thing,” she said.

Judge Dreyer was also pleased with the program’s successful outcome, “I believe we accomplished our mission of getting people to think about the Courts in our community. The participants will be well prepared to participate in future discussions with a new appreciation for the role of our courts.”

The participants also recognized the value of educational events concerning the judiciary. “The program had a great turnout. It really explored the details about what goes on at the Court. I learned about more opportunities in the Criminal Justice field and ways to get involved and explore the judicial branch,” said Williams. She reflected on her experience and offered some advice for future court outreach. “The Indiana Supreme Court should continue to provide opportunities like this so people can actually learn and experience the importance of the Court during Black History Month,” said Williams.

“We need to listen and be responsive to the needs of the public,” said Judge Dreyer. This program demonstrated that Hoosiers are willing to get involved in the Court and better understand its role in their lives. The Indiana Supreme Court will continue to recognize the importance of celebrating our state’s history while reaching out to interested citizens across our state through programs like the Least Understood Branch.

In 2005, the Indiana Supreme Court’s Judicial Technology and Automation Committee (JTAC) initiated a project that would enable courts to submit electronically commercial driver violations to the Bureau of Motor Vehicles (BMV). Like other states, Indiana was at risk of losing millions in federal funding for highways unless our courts could reduce the time between conviction and reporting to the BMV. We called the project INcite—the Indiana Courts Information Technology Extranet.

Though INcite’s original purpose was focused on commercial drivers, it very quickly became clear that courts and related offices had significant need for similar systems to handle transfer of local data to the state and federal levels—or vice versa—in many areas of their work. Indeed by 2007, INcite included an additional four applications, and today the site houses eleven applications for use by trial courts, clerks, probation officers, law enforcement, and victim advocates.

Late last year, the Council of State Governments (CSG) presented Indiana with an Innovations Award for INcite. CSG has been selecting Innovations Award winners since 1986 in an effort to promote successful state projects that have the potential to be replicated or modeled by other states.

The Council of State Governments presents JTAC with their Innovations Award. Left to right: State Rep. Bob Godfrey (Connecticut), 2011 Chairman of the Council of State Governments; Jill Russell, Senior Field Support Specialist, JTAC; State Rep. Steve Buehrer (Ohio), 2010 Midwestern Legislative Chairman, Council of State Governments. (Photo. Stew Milne, Council of State Governments.)

What exactly is INcite?

After the initial success of the first application for commercial driver convictions, JTAC identified similar potential web applications to serve courts and clerks. Often, these project ideas were the result of requests for help from local courts or requirements in newly effective legislation. As the need for those additional applications became apparent, so did the need for a standardized method for building, securing, and managing them. A more refined approach to development was need for these new applications. That led to the creation of the INcite Framework.

Users of INcite know it as a secure website that allows them to exchange data, whether reporting statistics or convictions, tracking a probationer’s progress, or downloading a jury list. Developers of INcite know it as a framework—both a blueprint that dictates the technical specifications of any application or interface developed for the site, and a foundation for new applications, which includes user account management, security, and shared data.

In the beginning of INcite, applications sprang up like houses in a city neighborhood—different architectural styles, different builders, and no rules about how high the fence can be. The INcite Framework is more like a planned, gated community with rules about things like paint color, building materials, and mailbox height. Rules like these may take a bit of the charm out of a neighborhood, but they create only benefits when it comes to developing a website.

Single Sign-on and Password Recovery. One of the basic components of the framework is the ability to create an account for an individual user and then assign that user access to applications that correspond with the user’s job function. The user then logs in to INcite once and can access all of her available applications. If she forgets her password, instead of calling the helpdesk, she can use the automated system for password retrieval or reset the password.

Security. For INcite developers, the fact that security is built into the framework has a huge impact on development time and complexity. Without the framework, each application would have to include its own security model; because of the framework, developers needn’t worry about security and can focus on functionality.

Shared Data. Another time saver for developers is the availability of shared data in the framework. For example, if two different INcite applications both need to have a field for an attorney name, both applications can pull attorney names from the same source of data—in this case, the Roll of Attorneys. As attorney records are updated, the attorney information in those applications is updated, so not only does this feature simplify development, but it also increases the accuracy of data.

Event Logs. Tracking events—especially errors—on the INcite server helps developers and administrators keep the site up and running efficiently.

What has INcite helped Indiana accomplish?

The various applications now available to courts and clerks through INcite have saved state and local government offices both time and money, and in many cases, they’ve improved public safety or enhanced Hoosiers’ access to justice. Here are some examples:

$34 million in federal highway funds secured

With the development of the first INcite application—funded by a federal grant—Indiana met the federal requirements and brought the time period between commercial driver conviction and reporting to the BMV from an average of more than 53 days to less than 8 days. This accomplishment helped secure $34 million in annual highway funds.

Law Enforcement man-hours reduced

According to Lt. Col. John Clawson of the Indiana State Police, since they implemented the Electronic Citation and Warning System (eCWS), over 20 full-time data entry positions have been eliminated. Further, it is estimated that over 22 thousand man-hours to date have been saved because law enforcement personnel no longer have to complete data entry on protection orders thanks to the Protection Order Registry.

Clerks’ offices save money

Without INcite’s Tax Warrant application available free to Clerks around the state, local governments would collectively spend over $150,000 each year for annual maintenance on a replacement system. Many Clerks would still be processing tax warrants manually, but because INcite is available, they not only don’t have an annual fee, they’re receiving filing fees from the Department of Revenue in a more timely way.

Victims are better served and protected

Indiana’s Protection Order Registry (POR)—developed with federal grant money and made mandatory statewide by the Indiana General Assembly in 2009—has drastically improved the transfer of data from local to state to federal law enforcement. As a result, access to data about active protection orders empowers police to enforce the orders effectively. Today, a victim can apply for a protection order in the comfort and privacy of a victim advocate’s office instead of exposing her private life in a busy Clerk’s office. Soon, victims will receive email and text message alerts about the status of their protection orders, and the public will be able to search non-confidential protection order information online.

For more information…

If you would like to learn more about Indiana’s INcite project or how your court or office can begin using one of its applications, contact Mary DePrez at mdeprez@jtac.in.gov or (317) 234-2604.

In 2010, Indiana became the 19th state to receive technical assistance from the Pew Center on the States’ Public Safety Performance Project. The Pew Center provided the technical assistance in partnership with the Council of State Governments Justice Center (CSG) to use a justice reinvestment approach in Indiana to reduce spending on corrections and reinvest savings in strategies to increase public safety.

CSG policy analysts met with stakeholders from all three branches of Indiana government and the Justice Reinvestment Steering Committee to collect and analyze data on crime, courts, corrections, and community supervision trends. Judicial Center Executive Director Jane Seigel, Judge John Surbeck of Allen Superior Court and Judge Wayne Trockman of Vanderburgh Superior Court represented the judicial branch on the steering committee. CSG presented its policy options to Indiana policymakers on the Criminal Code Evaluation Committee on December 16th. Chief Justice Randall Shepard, Judge John Marnocha of St. Joseph Superior Court and Judge Lance Hamner of Johnson Superior Court represent the judicial branch on the Criminal Code Evaluation Committee.

The first policy recommendation was in the area of sentencing. CSG’s research showed that Indiana’s sentencing policies result in disproportionate penalties for theft offenses, drug offenses and non-violent offenses. CSG recommended graduated penalties for theft and drug convictions, and increased judicial discretion for sentencing non-violent criminal offenders. “Shifting from a one-size-fits-all approach for drug and theft offenses to graduated penalties will bring Indiana in line with other states and ensure that an offender’s punishment fits the crime. Allowing more judicial discretion for non-violent offenders will result in sentences that have a better chance of reducing recidivism,” said Judge Marnocha.

The next policy recommendation was in the area of community supervision. CSG’s research showed that Indiana’s community supervision agencies are uncoordinated, overlapping and do not share information about individuals under supervision. CSG recommended strengthening community supervision by prioritizing resources for high-risk offenders, creating incentives for coordination among supervision agencies, creating a probation improvement fund and requiring probation supervision after release from prison for most offenders. “The recommendation to focus community supervision resources on high-risk offenders fits perfectly with Indiana’s risk assessment project and will allow probation officers and community corrections officers to provide more effective supervision to the offenders who pose the greatest likelihood of re-offending”, said Jane Seigel. “The use of competitive grants to support the adoption of best practices by probation departments and requiring a period of probation supervision for all but the most serious offenders released from prison will result in better supervision practices and reduce recidivism rates of felony offenders.”

The final policy recommendation was in the area of public safety. CSG’s research showed that community-based substance use treatment programs are not available to many offenders under supervision and responses to probation violations are slow and ineffective, making re-offense more likely. CSG recommended increasing the availability of addiction treatment in the community and enabling probation officers to exercise swift and certain sanctions for probation violations. “Research has consistently shown that programs that address an offender’s drug use result in reduced rates of recidivism and increased public safety,” said Judge Trockman. “Employing swift and certain sanctions for probation violations has already been proved effective in drug court and should help reduce revocations to prison in other probation cases.”

The next phases of the Justice Reinvestment Project will be enacting the new policy options, developing implementation plans and measuring the impact of the new policies on prison population and re-incarceration rates. Draft legislation based on the CSG policy recommendations has been introduced in the General Assembly for consideration during the 2011 legislative session. “This is an exciting time to make improvements in Indiana’s criminal justice system. The judicial branch looks forward to working with legislators and other policy makers to implement the policy recommendations proposed by CSG,” said Chief Justice Shepard. Judges who wish to learn more about the Justice Reinvestment Project can contact the Indiana Judicial Center for more information.

To read the full study online and access additional materials, visit www.justicereinvestment.org/states/indiana.

Justice David had a multi-faceted career of private practice, corporate counsel experience, and stellar service as a military lawyer, in addition to his superb work as a trial judge. He graduated magna cum laude from Murray State University and earned his law degree from Indiana University School of Law at Indianapolis.

He served in the United States Army Judge Advocate General’s Corps and the Army Reserves, earning the rank of Colonel and holding top secret security clearances. In private practice he focused on personal injury, family law, civil litigation, and served as in-house counsel for Mayflower Transit, Inc.

Since becoming a judge in 1994, he tried or presided over at least sixty jury trials in civil, criminal, and military proceedings. He has testified before the Indiana General Assembly on juvenile law and the United States Congress on national security issues.

In 2008, Indiana Court Times published an article on Judge David, which can be found online at
http://indianacourts.us/times/2008/08/defending-the-rule-of-law

In his first public remarks, Justice David acknowledged and thanked the dignitaries, friends and family assembled to watch and listen on that historic day. He then blended humor, respect for the rule of law, insight, philosophy, and lyrics from country songs to set the stage for his future service on the state’s highest court. He quoted Abe Lincoln, John F. Kennedy, Toby Keith, John Mellencamp, Kenny Chesney and Lee Brice.

He thanked Governor Daniels and told him: “…I take this position in awe of the responsibility and in awe of the rule of law. I will protect and hold sacred our state and our constitution. Every day I will do my very best. I have no agenda. I owe no one anything. I will respect and honor the oath I have taken. I will serve with humility. I will work hard.”

He had words of praise for his new colleagues, with whom he will be spending a lot of time in the future. “Chief Justice Shepard, Justice Sullivan, Justice Dickson, Justice Rucker, you are great Justices and great role models for all of us and I am honored to now serve with you. Your collegiality and respect for each other’s opinions; respect toward each other; respect toward our profession… is a reflection of the value that you place on civility and professionalism, qualities our profession, indeed everyone, all of us, regardless of our avocation or vocation, could benefit from and improve upon.”

Justices applaud former Boone County Judge Steven David as he takes his place on the Supreme Court bench for the first time. Left to right: Justice Brent E. Dickson, Chief Justice Randall T. Shepard, newly-sworn Justice Steven David, and Justice Robert D. Rucker (the last Justice to join the Court in 1999). Justice Frank Sullivan, Jr., (not pictured) stood to the right of Justice Dickson and joined in the applause.

Justice David made it clear that he would be involved from day one: “Life is a contact sport. You’ve got to play. You can’t sit on the sidelines and watch.” He cited Oliver Wendell Holmes Jr. as a model for being a good listener, ready to learn: “Man’s mind, once stretched by a new idea, never regains its original dimensions.” Justice David said: “I believe good listening and a good mind changing once in a while is a sign of strength of character not weakness of mind.”

In a speech that drew many responsive laughs, one of the biggest came when he addressed, in his words,

“the elephant in the room …just how smart was Justice Ted Boehm.” Justice David directed his observations to Justice Boehm saying: “I have heard varying descriptions from various people: “smartest person I have ever known,” “smartest person in the world,” “one of the smartest people I have ever met.” It goes on and on…

Well, I found one authority who knows both of us. So let’s just settle this issue right now. Professor Susannah Mead, Professor of Law, IU – Indy. She was one of my professors and she is still teaching at the law school. Of course she was a very young professor when I was there. Anyway, it seems she also knows you. She wrote me a letter shortly after the Governor’s announcement congratulating me.

Let me share the relevant portion…I quote ‘Ted Boehm may be the smartest person I know but you were a memorable student…and I know you will make a significant mark on the Supreme Court and the State.’”

Justice David acknowledged that maybe Justice Boehm had him on that one, but he did one-up him on another matter. Justice Boehm once met Fidel Castro when he was in Cuba. Justice David proudly reported that he met his wife, Catheryne, in Cuba, so he “won that round.”

Justice David and his wife Catheryne.

Supreme Court Sheriff Gary Miller affixes Justice David's nameplate to the bench during the induction ceremony.

View more photos from Justice David’s swearing-in ceremony

Video: Justice David’s swearing-in ceremony (Windows Media)

As an avowed lover of country music and its lyrics, he referred to a song by Kenny Chesney, “I Didn’t Get Here Alone.” He said it describes his journey to this point in his legal career:

I didn’t get here alone.
That road’s just too rough and long.
I might be the one the spotlight’s on
But I didn’t get here alone
Yeah, I know I didn’t get here alone.
The crew, the band, yeah, and all you fans
That stood in the rain or shine
I want to thank everybody out there for the ride
Cause I didn’t get here alone
Ain’t traveled one mile on my own
You’re why I sing my song

He thanked his father for being the “superman of a super family” and for other family members who travelled to be with him, especially his wife, Catheryne.

He summed up his judicial philosophy this way: “I believe in humility, respect, fairness and the Rule of Law. The Rule of Law Always! However painful at times it can be. We must preserve the rule of law. I am neither a member of the executive branch nor the legislative branch. I respect those of you who are. I admire you. I must also trust you and your judgment. I do not believe this is about me. It is about the process and the fact that I have been selected to be a guardian of the law, not to make it. I shall protect the constitution of Indiana. I will work with my colleagues to improve the practice of law, to promote lawyers and the practice of law. I don’t like lawyer jokes. My obligation is heavy. My responsibility is awesome but it is not me who is important. It is the oath I have taken…it is the public service to which you have entrusted me. It is not about me.”

He quoted Abraham Lincoln: “I do the very best I know how – the very best I can; and I mean to keep on doing so until the end.” Justice David then made this promise: “I pledge to each of you and all of Indiana that I will do the very best I can.”

He then concluded his remarks with these words:

“I have an eternal optimistic realism. I love life! I try to look for the good in everybody. It is not hard to do and can be amazingly helpful! I am a cup half-full, not half-empty, person.

If you are still uncomfortable with my love for music lyrics, get over it… no, I mean try one more country song which captures my enthusiasm for being selected as the 106th Justice of the Indiana Supreme Court…It is Lee Brice’s “LOVE Like Crazy”. It is a great song. You can substitute the word live for love if you want to; it still is a great song. It goes like this…

Just ask him how he did it, he’ll say pull up a seat,
It will only take a minute to tell you everything
Be a best friend. Tell the truth and overuse I love you
Go to Work. Do your Best. Don’t outsmart your common sense.
Never let your prayin knees get lazy
And Love like crazy
I say Live this life you have to its fullest. Be true to yourself.

I will leave you with my own personal message. It consists of a core of eight words and a duty of four words. 12 simple words

Work hard. Do good. Be proud. Have fun! DO what is right!”

Does that strike you as a prudent way to conduct court business? Well, it probably does; but, fast forward to a time in the future when it is necessary to replace that old copier. If the copier to be replaced was made in 2002 or after then it is very likely a digital copier containing a hard drive that may store images of documents copied, scanned or emailed from that machine. Unless proper precautions have been taken, or the hard drive has been destroyed, individuals may gain access to information on documents that have been copied or transmitted on it. That information may include social security numbers, bank account and credit card numbers, birth dates, driver’s license numbers, and the names of children involved in sensitive cases.

Many courts lease their copiers and upon lease expiration the leasing company tunes and upgrades the machine and places it back into the marketplace with a new lessee or buyer. The danger, unless the proper safeguards have been taken, is that the subsequent owner or lessee may have access to confidential information contained in documents that have been copied or sent from it and remain in the hard drive memory.

Copiers built prior to 2002 operated with a process that was typically referred to as analog copying. It involved the use of an internal mirror that copied the image of the document onto a drum. Static electricity was used with particles of toner creating an image of what was on the drum with a heat element to dry and fix the toner into place producing a copy on the sheet of paper. There was no storing of information involved in the process.

Digital copiers scan the document and save it to memory. A laser imprints the information on the drum, toner is applied, and the document is printed. The digital copier allows for the printing of the document from memory or even transmitted electronically to other digital devices that are capable of receiving it, such as by email or by facsimile transmission.

CBS News reported on a potential privacy breach in a broadcast that aired on April 19, 2010. They noted that practically every digital copier contains a hard drive that functions very much like a computer hard drive. CBS reported that an industry study revealed that 60% of Americans are unaware that copiers store images on the machines’ hard drives.

The CBS investigative reporter, Armen Keteyian, discovered how relatively easy it is to access sensitive information from these discarded copiers. He visited a warehouse in New Jersey and found used copiers for sale for as little as $300. There are around 25 of these warehouses across the country. After pulling the hard drives out of the copiers that they purchased, and using forensic software that may be downloaded from the internet, in less than 12 hours they downloaded thousands of documents containing sensitive information.

From these hard drives they obtained social security numbers, birth certificates, bank records, income tax forms, individual medical records, drug prescriptions, blood test results, a cancer diagnosis, domestic violence complaints, a list of wanted sex offenders, and a list of targets in a major police drug raid.

It did not take long for the CBS report to gain the attention of lawmakers and Congressman Edward J. Markey (D-Massachusetts). Markey is a senior member of the House Energy and Commerce Committee and Co-Chairman of the Bi-Partisan Congressional Privacy Caucus. In a letter dated April 29, 2010 to Federal Trade Commission (FTC) Chairman Jon Leibowitz, he requested information concerning any actions taken by the FTC to investigate this issue and urged him “to pursue measures to provide consumers with additional information about the privacy risks associated with the use of digital copiers for copying sensitive information and the steps consumers can take to protect themselves against these risks.”

FTC Chairman Leibowitz responded to Congressman Markey’s letter on May 11, 2010. He expressed his shared concern about the privacy risks posed by digital copiers. The goal in his words is that “businesses and government agencies should ensure that the information on the hard drives in digital copiers are wiped clean of personal information after the conclusion of use.” He indicated that the FTC is reaching out to manufacturers, resellers, and retail copy and office supply stores to ensure that they are aware of the privacy risks associated with digital copiers. The FTC is determining whether these entities are providing education and guidance on this subject, and whether manufacturers and resellers are providing options for secure copying.

He reported that the FTC is reaching out to government contracting officials to advise them of the risks associated with using digital copiers and ensuring that the government is taking measures to protect the information collected from the public.

In his reply letter, Mr. Leibowitz referred Congressman Markey to consumer education material released in November 2008 that encourages consumers to wipe clean or destroy hard drives before disposing of their computers:

FTC Consumer Alert: The Download on Disposing of Your Old Computer, available at:

www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt120.shtm

Computer Disposal, available at:

www.onguardonline.gov/topics/computer-disposal.aspx

He further noted in his letter to Markey that they have released business education material instructing businesses to dispose of hard drives containing consumer information in a secure manner:

Protecting Personal Information: A Guide for Business, available at:

www.ftc.gov/bcp/edu/pubs/business/idtheft/bus69.pdf

The information technology (IT) experts at the Division of State Court Administration agree that the presence of hard drives in digital copiers is an issue that must be addressed.

Bob Rath, State Court Administration’s Director of Appellate Court Technology, agrees that advanced technology copiers are grounds for concern. “The CBS story shows that copiers can be a powerful tool for invading the privacy of companies and individuals. Former antiterrorism czar Richard Clarke addresses additional risks with digital copiers in his recent book, Cyberwar. Clarke notes that some copiers are made accessible via the internet to enable remote technical support. This feature also opens a door for someone to access the copier hard drives from anywhere in the world. Obviously, this feature should be disabled unless absolutely necessary.”

Andy Cain, MIS Director/CMS Project Manager for State Court Administration’s JTAC operation observed: “This problem illustrates further how the proliferation of devices with computing and storage capabilities affects our personal security. There are surely other such devices on the horizon that will cause us to rethink how we secure confidential information.”

Given these concerns, the Division of State Court Administration IT experts conducted a review of the copiers used in our offices. Their review indicates that the settings and process established for the office digital copiers assure that the copied data is stored only temporarily on the hard drives and then erased as soon as the copy job is completed.

Now that we have identified this potential problem for our courts, what are the available solutions? Here are a few for consideration:

• Determine if your copier is analog or digital, and if leased or purchased since 2002, it is probably digital.
• If your court leases its copiers, review the terms of the lease to determine if there are provisions made to erase the contents, or dispose of the copier’s hard drive, at the end of the lease.
• Contact the responsible person with your copier supplier to determine if they have a company policy for end of lease disposal or cleaning of the hard drive. If not, insist that they provide for one of these safeguards.
• In all future leases or purchases of digital copiers make sure that there is a provision in the agreement to eliminate this potential privacy breach.

In the digital age in which we now live and conduct business it is very challenging to insure that privacy is maintained, or at the very least not unwittingly breached.

If you have questions about your digital copier please contact either Mark Roth, State Court Deputy Director, Appellate IT Operations, at 317-232-2542, mroth@courts.state.in.us, or Andy Cain, JTAC MIS Director/CMS Project Manager at 317-232-2542, acain@jtac.IN.gov.

Express authority for courts to order expungement of records in Indiana is rather limited. Statutory authority for expungement of arrest records is found in I.C. 35-38-5-1 et seq.1 Expungement of records concerning delinquent children and children in need of services is authorized by I.C. 31-39-8-1 et seq.

Case law interpreting the Governor’s pardon power under Article V, Section 17 of the Indiana Constitution authorizes a trial court to expunge a defendant’s record of conviction.2

The arrest records expungement statute expressly provides that the granting of an expungement under I.C. 35-38-5 does not require “any change or alteration in any record (such as a police blotter entry) made at the time of the arrest or in the record of any court in which the criminal charges were filed.”3 At the same time, the statute does not specifically prohibit the court from ordering a change or alteration in a court record, but the court might wish to consider whether to order the court records  removed from public access under the procedures set forth in Administrative Rule 9(H) or sealed under I.C.5-14-3-5.5. Therefore, it is extremely important that the expungement order clearly state what records are to be expunged.

A petition under I.C. 35-38-5-1 is filed in the court in which the criminal charges were filed, or if no charges were filed, then in a court with criminal jurisdiction in the county where the arrest occurred. The Division of State Court Administration instructs that the petition should be filed under the case number of the original criminal case, but if a case number had not been assigned, then the petition should be assigned an MC case type case number.

All expungement orders entered in criminal or juvenile proceedings are confidential and excluded from public access under Administrative Rule 9(G)(1)(g). Regardless of what records are ordered to be expunged, the order of expungement should be placed in the Confidential Record of Judgments and Orders (RJO).

If court records pertaining to a case are to be expunged, then all the records pertaining to the case, including the Chronological Case Summary (CCS), will be destroyed under the terms of the expungement order. To replace the original CCS, a replacement CCS should be created containing only the case number, a statement that the case had been expunged, and the date the expungement order was entered.  To replace all the orders concerning the expunged case in the RJO, the original orders should be removed and replacement pages should be inserted containing only the same information as noted on the replacement CCS.

To give guidance to the clerk, the order should clearly state whether the records to be expunged are only records dealing with the arrest or whether court records are to be expunged too, and should be as specific as possible as to which records the court is ordering to be expunged.

Expungement of Arrest Records

When a person has been arrested but no criminal charges are filed, or if charges are filed, all criminal charges are dropped against the person because (1) of mistaken identity, (2) no offense was in fact committed, or (3) there was an absence of probable cause, the person may file a verified petition for expungement of records related to his arrest under I.C. 35-38-5-1.

The petition is filed in the court in which the criminal charges were filed, or if no charges were filed, then in a court with criminal jurisdiction in the county where the arrest occurred. The Division instructs that the petition should be filed under the case number of the original criminal case, but if a case number had not been assigned, then the petition should be assigned an MC case type case number. The petition must be served on the law enforcement agency that made the arrest and on the Indiana State Police central records repository.

When the law enforcement agency receives the petition, it must notify the court of any agency to which records related to the arrest were forwarded. The clerk is required to immediately send a copy of the petition to each of those agencies. Any agency wishing to oppose the expungement has 30 days from the date of filing of the petition to notify the court of its opposition and serve the petitioner with a copy. The court may either summarily grant or deny the petition or may set the matter for hearing.

If the court grants the petition, the law enforcement agency within 30 days of receiving the order, must either destroy or deliver to the person all fingerprints, photographs, or arrest records in its possession.4  Moreover, no information concerning the arrest may be retained in any state central repository for criminal history information or in any other alphabetically arranged criminal history information system maintained by a local, regional or statewide law enforcement agency.5

Expungement of Juvenile Records

Records created as a result of an allegation that a child is a delinquent child or a child in need of services may be expunged under I.C. 31-39-8-1. The juvenile court is authorized to remove from the court’s files, the files of any law enforcement agency, and the files of any other person who has provided services to a child under court order, those records pertaining to the person’s involvement in juvenile court proceedings. If the court grants the expungement, the statute directs that the court order each law enforcement agency and each person who provided treatment to the child to send that person’s record to the court.6  The records then may either be destroyed or given to the person to whom the record pertains.7

Expungement of Records As Result of Pardon

Although the Bergman case established that the record of a defendant’s conviction must be expunged following an unconditional pardon by the governor, there is no statute that sets out the requirements or procedure for expunging records following a pardon. Blake v. State, 860 N.E.2d 625, 628 (Ind. Ct. App. 2007)  In Blake, the defendant filed a petition to “expunge records of arrest, conviction, and incarceration following gubernatorial pardon.”  The Court of Appeals held that the trial court properly denied the request to expunge records related to the arrest because I.C. 35-38-5-1 is the only means by which arrest records may be expunged, and that statute does not apply when a defendant is convicted and pardoned.