Indiana Court Times 18.4

Issue 18.4 JUL/AUG 2009

The Justices and staff of the Indiana Supreme Court were deeply saddened to hear of the passing of Justice Richard Givan. His public service to the State of Indiana included 26 years as a jurist on the high court, including nearly 13 years as Chief Justice. In addition to his remarkable legal career, he is remem-bered fondly by court staff as a loyal friend and great storyteller. His portrait is proudly on display in the Supreme Court Courtroom in the State House and serves as a lasting reminder of his tremendous role in state government.

Justice Richard M. Givan was Indiana’s ninety-sixth justice. He was elected to the Court in 1968 and served continu-ously until his retirement in December 1994. He served as the Chief Jus-tice from November 1974 to March 1987. He was the founding chairman of the Indiana Judicial Center.

Justice Givan was famous for his “Givanisms” including, “you pile on too many apples, you can’t shove the cart” and “it’s not that he doesn’t know there’s a problem, it’s that he doesn’t know that he doesn’t know that there is a problem.”

Chief Justice Randall T. Shepard, who served on the Court with Justice Givan from 1985-1994, said: “This is difficult news for the Court to hear, so I know it is a very painful time for Justice Givan’s family. I have won-derful memories of the time I shared with Justice Givan on the bench. He was a thoroughly practical man, deeply rooted in Indiana’s legal commu-nity, and interested in new ways of improving courts.”

Born June 7, 1921, in Indianapolis, Richard Givan graduated from Deca-tur Central High School and received an LL.B. from Indiana University. He was the first person to serve as a law clerk at the Indiana Supreme Court. He was admitted to the Indiana bar in 1952 and served as a deputy public defender and was an assistant attorney general. He was elected to the Legislature and was ranking member of the House Judiciary Commit-tee. He was also chairman of the board of directors of the Indiana Judicial Conference from 1974 to 1987, served on the board of managers of the Indiana Judges Association from 1975 to 1987, and became an Indiana Judicial College graduate in 1989.

In addition to his legal career, Justice Givan served as a pilot in the U.S. Army Air Corps during World War II and was later a flight instructor with the Air Corps Reservists. A fourth generation lawyer, his great-grand-father, Noah S. Givan, was a circuit judge in Dearborn County, Indiana before 1900. His grandfather, Martin J. Givan, was a Dearborn County trial lawyer. His father, Clinton H. Givan, was a Marion County Superior Court Judge and practiced law in Indianapolis for forty years.

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ourtesy of the Indiana Judicial Center.

2 JUL/AUG 2009 courttimes

CONTENTSIn Memoriam: Justice Richard M. Given ............... 2

Seeds of Knowledge: K-12 teachers take a look inside our courts .......... 3

BITS & BYTESJust the Tax Ma'am: Supreme Court case management system enables compliance with IRS reporting ........ 5

New Roads Ahead for Self-Represented Litigants ............. 6

The Dangling Docket .................... 7

Judges: Selection, Conduct and the Constitution .................................. 8

Federal Lawsuit Update: Pledges, Promises, Solicitation and Public Endorsement Clauses .................. 10

Indiana CLEO: Looking Back at the Last 10 Years .............................. 11

SIDEBARHon. Thomas K. Milligan ............. 12

Lake County Juvenile Justice ........ 13

BRENDA'S BAILIWICKSexual Harrassment Revisited ...... 14

Q&AWhen can a court collect assessments from cash posted for bond in a criminal matter? .......... 15

This two-week graduate level course for teachers was offered through the IUPUI School of

Education and sponsored by the Indiana Supreme Court in partnership with the Indiana Bar Foundation. The workshop was designed to familiarize participants with the daily operations of many dif-ferent parts of the legal system (not just courts) and to provide resources for use in teaching about courts and the law.

The participants came from as far away as the tiny town of Sandborn to the south (near Vincennes) and Lafayette to the north to attend this program. The class was not limited to social studies teachers, but was open to anyone who works or teaches in a school. As a result there were quite a few government and history teach-ers, but also counselors, school administrators, special education teachers, and even an orchestra director. The teachers involved in this program come in contact with approximately 5,600 students each school year. The underlying principle of the proposal is that the more people who understand how the courts work the better.

One goal was to provide as many experi-ences as possible, divided between the work of trial courts and appellate courts. On the first day, participants were given an overview of the court system, includ-ing a presentation by Chief Deputy Ex-ecutive Director of State Court Adminis-tration, Dave Remondini. The teachers were also able to spend almost thirty

minutes talking with Justices Ted Boehm and Brent Dickson. The class was headquartered in the Supreme Court’s conference room in the Statehouse, but fieldtrips were scheduled almost every remaining day of the first week.

Teachers visited local trial courts, talked with court staff, toured prison facilities, and participated in a mock law school class. Starting in the Marion County courts, since they are located just down

the street from the Statehouse, and with Marion Superior Court Presiding Judge Bob Altice as our host, the participants sat in on initial hearings, a murder trial, and a Title IV D proceeding. Wanting to provide teachers with a court experi-ence that might be closer to those in their home communities, we then visited

the Hamilton County courthouse. In Noblesville, Judge Gail Bardach and Magistrate David Najjar (both members of the Indiana Judicial Conference Com-munity Relations Committee Speaker’s Bureau) opened their courtrooms to our attendees who were able to observe a full morning of sentencing hearings and a child custody case.

After each session, the judges, prosecu-tors, public defenders, social workers and other staff in both counties met with the teachers and answered questions about the general operation of their courts or

the specific proceedings the teachers had observed. This opportunity to interact with the judges was a highlight for most participants based on the reflections written after each fieldtrip. Almost to a person, they commented on how compassionate the judges and court staff were and how much

they seemed to really care about what happened to the people in

their courts.

After spending two days in court-rooms, with the help of Deputy Com-

missioner Randy Koester, the teachers visited the Department of Correction’s Women’s Prison, located just east of downtown Indianapolis. The teachers in our workshop were overwhelmed by the number of education and rehabilitation programs available for the offenders.

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In June 2009, teachers from around the state had the opportunity to learn about the history and operation of the judicial branch when Courts in the Classroom hosted the second annual From the Inside Out: How Indiana’s Courts Work.

courttimes JUL/AUG 2009 3

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Most had anticipated a “scary” experi-ence and were pleasantly surprised (and a little amazed) with what this facility has to offer. Inmates in the prison’s culi-nary program provided a light breakfast, prisoners in the “One Net” project pre-sented a Power Point on their efforts to send mosquito nets to Africa, offenders involved in the ICAN program dem-onstrated how they train dogs to assist special needs clients, and finally incarcer-ated mothers in the Wee Ones Nursery shared their experiences about living at the prison with their babies. Not many people know that there are dogs and babies living in an Indiana prison!

As if the teachers weren’t mentally exhausted by their courtroom and prison excursions, the first week ended with a mock law school class at Indiana Univer-sity School of Law-Indianapolis presented by Professor (and Indiana Supreme Court law clerk) Joel Schumm and a legal research assignment in the Supreme Court Law Library.

The second week started with a visit to the Marion County Juvenile Courts and Detention Center. The teachers were able to observe some CHINS proceed-ings, tour the detention facility, and talk with Magistrates Gary Chavers and Beth

Jansen. Magistrate Jansen encouraged the teachers to send her a list of sugges-tions to incorporate into her orders about parental behavior. To have someone ask them about how students could be helped thrilled the teachers. The group compiled a list of suggestions, including requiring parents to attend teacher conferences and a request that schools be notified when a student has been incarcerated. Jansen also encouraged the teachers to consider signing up as Court Appointed Special Advocates (CASAs). Rebecca Harris, one of our participants, volunteers as a CASA and spoke passionately with her classmates about this important need.

The visit to the juvenile center concluded our focus on the trial courts, and the attendees returned to the Statehouse for the rest of the course. With the help of Supreme Court Law Clerks Kristen Fowler, Dino Pollock, Oni Harton, Finis Tatum, and Josh Tatum the teachers began to prepare in earnest for a mock oral argument. To help them understand the appellate process, Deputy Clerk of Courts Heather Smith walked them through the process of submitting an appeal and even showed them where to execute a Rotunda Filing. Appellate Court Judge Margret Robb talked with

the teachers about the workings of the Court of Appeals, and finally it was time for the class to get to work.

The teams had two days to complete preparations for their mock oral argu-ments in the cases of Larry L. McGhee v. State and Babes Showclub v. Patrick Lair. The group was split in half between the two cases and then divided again into counsel for either appellee or appellant. The mock oral arguments were held in the Supreme Court Courtroom with all of the formalities of an on-the-record argument. Supreme Court Sheriff Gary Miller called the session to order with guest Justices Chuck Dunlap (Executive Director of the Indiana Bar Foundation), Dave Remondini, and Greta Scodro (Deputy Supreme Court Administrator). The next day the teachers were in the audience observing the real arguments of these same cases presented in the same courtroom. The program concluded with a lunch allowing the participants to interact with all of the Supreme Court Justices and other Judges and guests from the program. In order to pass the class and receive graduate credits, each teacher had to complete a mock opinion for their case. They are eagerly awaiting the Court’s opinions in these cases.

To see the complete course syllabus, assignments, and fi eldcourts.in.gov/citc/special/summerincity2009.

VIDEO DIARY ONLINEExperience for yourself “From the Inside Out: How Indiana’s Courts Work” by watching a video diary of the program. The ten-minute video is a behind the scenes look at government, focusing mainly on the Judicial Branch. Indiana teachers take a private tour of the Governor’s offi ce, conduct a mock oral argument, and meet with Indiana appellate and trial court judges—and it’s all on camera.

Sean Donelson, a New Media student at Indiana University Purdue University at Indianapolis (IUPUI) shot and edited the video diary. Donelson is in his fi nal year at IUPUI, working towards a degree in Audio and Video Production. He hopes to go into the fi lm production business when he graduates. He acted as the one-man paparazzi during the program, following the teachers through study sessions and fi eld trips. Donelson says he even learned a great deal about the judicial branch during the 10-day shoot.

The video, “Behind the Scenes” which details the “From the Inside Out: How Indiana’s Courts Work” can be found online at

courts.IN.gov/video/city2009


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Overall, according to course evaluations, the course was a resounding success. At the end of the two weeks, the teachers left tired but full of energy and enthusi-asm about the courts, and eager to share with their students and colleagues the judiciary’s role in protecting our rights. Participants reported in their evaluations that this was “the best [course] I have ever attended. The hands-on was wonderful”; “[this was the] best class I’ve ever had in 5 years, jammed packed good info[rmation] and interest”; “I would rate this very highly. It was interactive, incorporated technology, provided valuable tools for future use in the classroom, and taught many new concepts.”

We hope to be able to offer this course again next year, exposing more teachers and their students to the workings of the Court and the free resources available from Courts in the Classroom.

BITS & BYTES

dtrip locations, please visit:


No one likes to receive a notice from the Internal Rev-

enue Service (IRS), unless it is notifica-tion of a tax refund. But the federal tax code requires the annual reporting of monies paid to non-employees. Many Indiana clerks risk IRS assessment of penalties for failure to report monies paid to attorneys and law firms. Courts and clerks who have converted to the Supreme Court case management system, Odyssey, have a state of the art, IRS-compliant system for producing and reporting Form 1099.

Every entity, including the clerk, is required to issue a Form 1099 to each payee by January 31st of each year if, in the previous year, it disbursed $600.00 or more in payments to an individual, partnership, estate, trust or medical and legal service provider for services, rents or retirement. The reporting requirement also applies to interest payments of $10.00 or more per year. Payors issuing at least 250 Form 1099s per year are required to use automated reporting through a computer interface with the IRS.

Court judgments often include interest payments and assessments of attorney fees. Clerks determine the payees based on the wording of the judgment and frequently disburse monies to attor-neys and law firms who receive the judgment on behalf of their clients. These payments should be included on Form 1099. The IRS has increased its enforcement of this last reporting requirement.

The payor is responsible for furnish-ing a form W-9 to each payee while the payee must complete it and return the form to the payor. The W-9 must provide the payee’s name, address and either a Tax Identification Num-ber (TIN) or Social Security Number (SSN). If a payee fails to provide this information, the regulations require that the payor withhold 28% of the monies paid. Failure to collect this withholding subjects the payor to liabil-ity for the amount of uncollected tax.

This IRS legal requirement, as well as all other state fiscal requirements, has been appropriately configured into the new state case management system, Odyssey, which is being deployed by the Court to many clerks’ offices. County Clerks and/or Auditors can use Odyssey to track properly monies disbursed to attorneys and law firms. By issuing proper 1099 Forms with appropriately reported amounts, clerks who use Odyssey can avoid IRS penal-ties.

Questions about the Supreme Court’s case management system may be di-rected to Mary DePrez at 317/234-2604 (Fax: 317/234-2605) or [email protected].

Supreme Court Case Management System Allows Clerks to Comply with IRS Form 1099 Reporting

Just the Tax, Ma'am

By Hon. Richard Payne,Senior Judge,

State Court Administration

By Dr. Elizabeth Osborn,Assistant to the Chief Justice for

Court History and Public Education,Indiana Supreme Court

Almost 10 years ago, a small team of individuals headed west to learn about the latest findings and information concerning the rising trend in “pro se litigation.” With the lead-ership, vision, and support of Indiana Supreme Court Chief Justice Randall T. Shepard, Judge David Coleman (Hendricks), Judge Gregory Donat (Tippecanoe) and Staci Terry, Esq. (former-ly with Indiana Legal Services) attended the National Conference on Pro Se Litigation in Scottsdale, Arizona.

The Indiana Pro Se Project was started and fueled by information and energy from this conference. The Project was a statewide ini-tiative to build a network of resources and assistance for the large population of Indiana citizens whose legal needs were not being met. The Supreme Court provided oversight of the Project, and appointed the Pro Se Advisory Committee in 2001. The Com-mittee was made up of judges, court clerks, librarians, lawyers, and legal educators. The original members included Judge J. Da-vid Holt (Greene), Lisbeth Blosser (Allen), Hon. David Coleman (Hendricks), Hon. Natalie Conn (Grant), Judge Kathleen Coriden (Bartholomew), Judge Gregory Donat (Tippecanoe), Clerk Sha-ron Dugan (Hendricks), Magistrate Gregory Gillis (Lake), Ann Ginda (Indiana Legal Services), William Gooden, Esq. (India-napolis), Professor Joanne Orr (Indiana University School of Law-Indianapolis), Master Commissioner Victoria Ransberger (Marion), David Remondini (Indiana Supreme Court), Terri Ross (Marion County Law Library), Magistrate Ann Smith (Sullivan), Judge Nicholas South (Scott), Staci Terry, Esq. (Richmond), and Anthony Zapata (Indiana Supreme Court, State Court Administration).

The Indiana Supreme Court is committed to making our justice system fair and open to all citizens. The main objective of the Pro Se Committee was to improve access to Indiana’s justice system by providing resources to pro se litigants. In its first year, the Com-mittee launched the Self Service Legal Center website and made available rel-evant information, court forms, and other resources, largely in the family law area. The Committee also developed a training manual, a poster that details what the “courts can and cannot do”, and provided pro se training to Tippecanoe, Monroe and Marion counties.

The needs of the pro se litigant (now referred to as self-represented litigant or “SRL”) continue to rise and the Court has codified its commitment to pro se access. On January 1, 2008, under Admin-istrative Rule 4(D), the Supreme Court formed the Committee on Self-Represented Litigants. As a Committee of the Court, its charge is to “conduct a continuous study of the practice, proce-dures, and systems for serving self-represented litigants… [provide]

a long-range strategy for improving access to justice…[which may involve] the development of protocols for judges, clerks, and their staffs in addition to providing general guidance to the courts, legal service providers, and public organizations through train-ing about meeting the needs of self-represented litigants.” When necessary, the Committee will also make recommendations to the Court about the “implementation of policies and procedures that promote access to justice in the courts for self-represented litigants.”

The composition of the committee is representative of the judi-ciary, the practicing bar, academia, state and local government, the Indiana State Bar Association, and public organizations. The current members are Judge Gregory Donat, Chair (Tippecanoe), Judge Steve Bowers (Elkhart), Magistrate Caryl Dill (Marion), Magistrate Gregory Gillis (Lake), Ann Ginda (Lafayette), Magis-trate Faith Graham (Tippecanoe), Commissioner Danielle Greg-ory (Marion), Holly Harvey, Esq. (Bloomington), Diane Mimms (Marion), Terri Ross (Indiana Supreme Court), Edna Wallace (Indianapolis), Scott Wylie, Esq. (District 13 Pro Bono Plan Co-Administrator), and Maryann Williams, Esq. (Indianapolis).

Exciting changes are underway in the delivery of information and resources to self-represented litigants. In early spring of 2009, the Division of State Court Administration and the Indiana Judi-cial Center took SRL training tools north to Elkhart County and provided live training to court personnel on enhancing customer service when working with self-represented litigants. Over 70 ju-dicial officers participated in training on the same topic at the spring 2009 Judicial College. Earlier this year, our Indiana trial courts also received the revised and updated duo of pro se posters

(in English and Spanish) that tells what “the courts can and cannot do.” On July 6, 2009, the Self Service Legal Center

revealed its new look, and now offers great new features and links in an updated, user-friendly format.

The Self Service Legal Center can be found at courts.in.gov/selfservice, and you are invited

to see what’s new. The Committee is grate-ful for the talent and skill of the staff and

IT team at the Division of State Court Administration who dedicated their

time to rebuild this site. The Com-mittee’s mission is to continue this

partnership and to promote access to our courts for the self-represented indi-

vidual through relevant resources and infor-mation. With the same energy and excitement

for the needs of the pro se litigant exhibited by the team that headed out west 10 years ago, the Commit-

tee endeavors to advance strategies, developments, and tools for the SRL of today, and prepare for the needs of the

SRL tomorrow.

If you would like more information about the site or other mat-ters regarding self-represented litigants, please contact Camille Wiggins, Staff Attorney in the Division of State Court Ad-ministration, who serves as staff support to the Committee at [email protected] or 317/232-2542.


New Roads Ahead for Self-Represented Litigants

By Camille Wiggins,Staff Attorney,


Most courts, without even knowing it, encounter an annoying “dangling docket.” Every court in the state reports its docket of cases to the Division of State Court Administration on the Quar-terly Case Status Report (QCSR). Each case is counted and noted as being fi led, pending or disposed. A frequent question from the courts is: “When can a case be disposed?”

Courts can readily label as “disposed” cases concluded after a jury or bench trial. Other common disposition types include bench disposition, default judgment and dismissal. But when should courts use the disposition types such as deferral, diversion, violations bureau, or the most confusing type “closed?”

While the Division offers an Applications Guide on its website under “Statistics Reporting Forms” describing every disposi-tion type with examples of their common uses, here are a few frequently encountered yet not well known danglers! One caveat to remember: the QCSR is a statistical report. A case can be closed statistically but that does not replace any requirement to keep the case fi le intact or conduct reviews required by statute.

The Danglin Docket

DEFERRAL OR DIVERSION PROGRAM: Did you know that when a defendant has negotiated with the prosecutor to enter a diversion program or deferral of prosecution agreement, the court can count the case disposed as a Deferred/Diverted case. Many court s believe that the case must remain open until the prosecutor dismisses the case after the defendant has completed the agreement. While the prosecutor is required to dismiss the case by statute, the court can report the Deferral/Diversion disposition on the QCSR at the time the agreement is finalized.

VIOLATIONS BUREAU: Did you know that when a violator pays a ticket or citation for Infractions and Ordinance Viola-tions, whether by mail, internet or in person, the court can dispose of the IF/OV or OE case as “Violations Bureau” even though a county may not have created a separate Bureau from the Clerk’s office.

FTA/FTP: Did you know that if a violator fails to appear or fails to pay the ticket or citation, the court does not need to con-tinue to count the case as pending? The case can be disposed of as FTA (Failure to Appear) or FTP (Failure to Pay). The court is obligated to provide the necessary documentation to the Bureau of Motor Vehicles when required, but the court does not need to keep the case dangling after a violator fails to appear at the hearing or pay the fine.

DEFAULT JUDGMENT: Frequently, courts may grant de-fault judgments but set hearings for damages. The case can be counted disposed at the time of “Default” and does not need to be kept pending until the damages hearing, which frequently does not occur quickly.

GUILTY PLEA/ADMISSION: Sometimes a defendant will enter a guilty plea but will retract the plea before sentencing. Courts should dispose of the case as guilty plea after the sen-tencing hearing, rather than at the time the defendant entered the plea. However, if a defendant admits guilt in an infraction or ordinance violation case, the court can dispose of the case as Admission after the hearing where the defendant admits the violation.

CLOSED: Sometimes a case is complete through actions unre-lated to a judge’s decision. Examples are estates and trusts. Did you know that an estate is disposed of as “Closed” when the final report has been filed by the executor? A trust is disposed of as “Closed” when the trust has been fully funded and the permanent trustee has been established, rather than when the trust ends. Guardianships are disposed of as “Closed” earlier

than some courts realize. Even though the guardianship is intended to last for years, a guardianship case is disposed of as “closed” when the permanent guardian has been named and confirmed by the court. Again, courts are required to review these cases regularly, but statistically, courts can close their dangling trust, estate and guardianship cases. In addition, the “Closed” disposition is used for two other commonly occur-ring events: notice of bankruptcy and removal to federal court. When a court receives a Notice of Bankruptcy by the only or last remaining defendant, the court can dispose of the pending case as “Closed.” Likewise, a court receiving a Notice of Removal to Federal Court can dispose of the case as “Closed.” Some-times the cases are returned to the trial court but not frequently enough to justify leaving the cases dangling.

DISMISSED: Often civil courts face a large dangling docket of cases filed where the defendants are never served, the parties have resolved their differences, or the plaintiff has chosen not to pursue the case. For civil cases only, the court can conduct some helpful housecleaning of the dangling docket under Trial Rule 41(E), “call of the docket.” Sometimes the call of the docket will serve as a call to action by reminding litigants of the case, and it will remain pending. But many dangling cases can be dismissed if the parties fail to respond to the “call” or attend a scheduled Trial Rule 41(E) hearing. Because Trial Rule 41(E) applies to civil cases only, a court can set status conferences in dangling criminal cases for those cases that appear to be ripe for resolution. Courts may not dismiss a criminal case sua sponte but may remind the prosecutor of those cases and determine if a decision has been made to drop the charges or otherwise not pursue the case.

The list above is not exhaustive but it does reflect some exam-ples where courts may be carrying unnecessary pending caseload or dangling dockets. Courts are encouraged to conduct periodic housekeeping to remove these dangling cases.

Questions about this article should be directed to Kristin Donnelly-Miller at State Court Administration by phone at 317/234-1873 or by email at: [email protected].


By Kristin Donnelly-MillerStaff Attorney,


How we select our judges has been a hot topic in the last year. Hugh M. Caperton v. A.T. Massey Coal Co., ___U.S. ____, 2009 WL 1576573 (June 9, 2009), is a case with facts reminiscent of a John Grisham novel. We watched with great interest as it wound its way through the appellate process. On June 9, the United States Supreme Court provided another factor to consider in the continuing debate over merit selection versus political election of state Supreme Court justices. Can a significant campaign contri-bution made by a party or attorney to a judicial candidate create the appearance of bias that rises to the level of a constitutional violation? The Supreme Court answered: yes it can.

The holding provides interesting and helpful guidance to judges as to when disqualification is constitutionally required. But the opinion’s more profound impact may be in highlighting the perils of selecting justices by partisan election. The Massey Coal case demonstrates that successful candidates of judicial elections may find themselves subject to attacks of impartiality when they receive significant campaign contributions.

Additionally, the dicta in Massey Coal may influence judicial eth-ics, particularly regarding campaign speech. Some scholars believe that the majority in Massey Coal endorsed state judicial ethics codes that attempt to eliminate the appearance of partiality by restricting the campaign conduct of candidates for judicial office.

Extraordinary Facts Detailing a Unique Election The extraordinary facts of Massey Coal begin prior to the 2004 judicial elections in West Virginia. A West Virginia jury returned a $50 million verdict in favor of former coal company owner Hugh Caperton against Massey Coal Company. They found that Massey had forced his coal company out of business by engag-ing in fraudulent misrepresentation, concealment, and tortuous interference with contractual relations. The company appealed the jury verdict to the West Virginia Supreme Court of Appeals. Don Blankenship, Massey Coal’s chairman, CEO, and president raised $3 million in contributions to support attorney Brent Benjamin. He was campaigning to replace incumbent Justice War-ren McGraw on the Supreme Court of Appeals. Blankenship’s donations to Benjamin’s committee, and to “And For the Sake of

The Kids”, a §527 political organization that supported Benjamin, were more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin’s own com-mittee. Benjamin won the seat by less than 50,000 votes out of 716,000 total votes cast.

On three separate occasions during the pre-appeal, appellate, and rehearing process, Mr. Caperton sought to have Justice Benjamin recuse himself from the proceedings because of Blanken-ship’s campaign involvement and large contributions. A public opinion poll indicated that over 67% of West Virgin-ians doubted the newly elected member of the Court would be fair and impartial. Justice Benjamin rejected each recusal request, finding that Caperton had not presented objective evidence to show he had an actual bias.

The West Virginia Supreme Court of Appeals, in a 3-2 decision, reversed the jury’s verdict. Justice Benjamin’s re-fusal to recuse from the case was widely criticized, even by other members of the court. The dissent noted that there were genuine due process implications aris-ing under federal law because of Justice Benjamin’s failure to recuse from the case. Four months later, after the peti-tion for writ of certiorari was filed in the U.S. Supreme Court, Justice Benjamin wrote a concurring opinion in which he defended both the merits of the majority decision and his refusal to recuse from the case.

Campaign Contributions and the Need to DisqualifyThe question presented before the U.S. Supreme Court was whether Justice Benjamin’s failure to recuse violated the Due Process Clause of the Fourteenth Amendment. Justice Anthony Kennedy, writing for the majority, disagreed with Justice Benjamin’s conclusion that the only basis for recusal was evidence of actual bias.

While noting that the Court was not questioning Justice Benjamin’s subjec-tive finding of his own impartiality, the majority reasoned that, “…the difficulties of inquiring into actual bias, and the fact that the inquiry is often a private one, simply underscore the need for objec-tive rules…the Due Process Clause has

JUDGES:Selection

ConductandtheConstitution


been implemented by objective standards that do not require proof of actual bias.” Rather, the majority concluded that the more appropriate standard is whether, “…under a realistic appraisal of psychologi-cal tendencies and human weakness, the interest poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.”

With respect to alleged bias arising from campaign contributions, the majority stressed that, “…not every campaign contribution by a litigant or attorney cre-ates a probability of bias that requires a judge’s recusal.” The Court determined, however, that recusal is necessary when a person with “…a personal stake in a par-ticular case had a significant and dispro-portionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”

In making the determination whether a contributor’s influence was “significant and disproportionate,” the Court indi-cated that the inquiry centers on the con-tribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect of the contribution on the outcome of the election. Applying that standard, the majority determined that Blankenship’s efforts had significant and disproportion-ate influence. Blankenship’s contribu-tions, which eclipsed all other supporters’ donations, were 300% more than spent by the Benjamin committee, and were $1 million more than spent by both cam-paign committees.

While million-dollar campaigns are un-likely in Indiana judicial elections, Massey provides useful guidance on a smaller scale. The Indiana Code of Judicial Con-duct at Rule 4.4(B) gives significant direc-tion on the issue: “A judicial candidate shall direct his or her campaign commit-tee: (1) to solicit and accept only such campaign contributions as are reason-able” (emphasis added). Comment 3 to

Rule 4.4 further advises that, “Although lawyers and others who might appear before a successful candidate for judicial office are permitted to make campaign contributions, the candidate should in-struct his or her campaign committee to be especially cautious in connection with such contributions, so they do not create grounds for disqualification if the candi-date is elected to judicial office. See Rule 2.11” Finally, Rule 2.11(A) has a catchall provision on disqualification: “A judge shall disqualify himself or herself in any proceeding in which the judge’s impar-tiality might reasonably be questioned…” Substantial campaign contributions by a party or attorney to a proceeding, even if not in the million-dollar range, certainly could warrant a judge’s disqualification, especially if the donation is dispropor-tionate to the size of other donations or is an unusually significant percentage of the total monies received.

Campaign Speech and the ConstitutionPerhaps even more thought-provoking than the Court’s holding in Massey Coal is the language in the majority opinion that seems to endorse state judicial codes of conduct. To allay fears that the effect of the Massey Coal holding will range from “a flood of recusal motions” to “unnecessary interference with judicial elections,” the majority emphasized that the facts in Massey Coal represent an extraordinary situation.

The majority then pointed out that nearly every state has adopted some ver-sion of the ABA’s Model Code of Judicial Conduct, which includes a provision that, “…a judge shall avoid impropriety and the appearance of impropriety” and another which requires a judge to “dis-qualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” ABA Anno-tated Model Code of Judicial Conduct, Canon 2 and Canon 3 E (1) (2004).

The Court acknowledged that:

These codes of conduct serve to maintain the integrity of the judi-ciary and the rule of law. The Con-ference of the Chief Justices has underscored that the codes are “[t]he principal safeguard against judi-cial campaign abuses” that threaten to imperil “public confidence in the fairness and integrity of the nation’s elected judges.” (Brief for Confer-ence of Chief Justices as Amicus Curiae 4, 11)

The majority further recognized that, “…this is a vital state interest.” Quoting Justice Kennedy’s concurring opinion in Republican Party of Minn. V. White, 536 U.S. 765, 793 (2002), the majority observed:

Courts, in our system, elaborate principles of law in the course of resolving disputes. The power and the prerogative of a court to per-form this function rest, in the end, upon the respect accorded to its judgments. The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity. Judicial integrity is, in consequence, a state interest of the highest order.

Because of this vital interest, the major-ity concluded that states may choose recusal standards more rigorous than due process requires.

It will be interesting to see whether the Supreme Court’s acknowledgment of a state’s vital interest in maintain-ing judicial neutrality and its seeming endorsement of state judicial codes will impact federal courts’ analysis of the constitutional question. We hope that the integrity of our judiciary comes out the winner as federal courts balance a judicial candidate’s interest in free speech with the state’s interest in preserving an impartial judiciary.

These codes of conduct serve These codes of conduct serve to maintain the integrity of the to maintain the integrity of the judiciary and the rule of law. judiciary and the rule of law.


By Adrienne Meiring,Counsel,

Judicial Qualifi cations Commission,State Court Administration


The U.S. Supreme Court’s ac-ceptance that states have a vital

interest in maintaining judicial in-tegrity has stoked some scholars’ hopes that other restrictions on judicial campaign conduct will also pass constitutional muster. Of par-ticular interest are the provisions in many state judicial codes, Indiana included, which prohibit judicial candidates from making “pledges, promises, or commitments that are inconsistent with the impartial per-formance of the adjudicative du-ties of judicial offi ce”, which do not allow judicial candidates to “per-sonally solicit or accept campaign contributions other than through a campaign committee,” and which do not allow candidates to “publicly endorse or oppose a candidate for public offi ce.” See Rule 4.1(A)(4), (8), (13), Indiana Code of Judicial Conduct (2009).

Popularly known as the “pledges and promises,” “solicitation,” and “public endorsement” clauses, these provisions recently have come under legal attack as al-leged violations of a candidate’s First Amendment rights. Here is the current status of those federal lawsuits:

KANSAS JUDICIAL WATCH V. STOUT, 562 F.3D 1240 (10TH CIR. 2009) — Tenth Circuit dismissed as moot plaintiffs’ constitutional chal-lenge to the pledges and promises clause and the solicitation clause, in light of the Kansas’ Supreme Court’s adoption of a new code of judicial conduct revising the challenged por-tions.

FLORIDA FAMILY POLICY COUN- CIL V. FREEMAN, 561 F.3D 1246 (11TH CIR. 2009) — Eleventh Cir-cuit determined that plaintiff lacked standing to challenge the pledges and promises clause and disqualification canon, as plaintiff failed to dem-onstrate that a decision in its favor would redress the injury since plain-tiff only contested the judicial canons and not a general disqualification stat-ute passed by the Florida legislature.

BAUER V. SHEPARD , 2009 WL 1941243 (N.D. IND., JULY 7, 2009) — In the first lower court decision in this subject since the U.S. Supreme Court handed down Caper-ton v. A.T. Massey Coal Co., 2009 WL 1576573 (June 9, 2009), U.S. District Judge Theresa Springmann upheld the constitutionality of the pledges and promises, solicitation, partisan activities, and disqualification clauses of Indiana’s revised judicial code of conduct. Relying, in part, on Caper-ton, Judge Springmann pointed out that the Caperton case highlights that judicial elections and judicial con-duct can have important due process implications and noted that similar due process concerns are at play in the Indiana Constitution. She then determined that Indiana’s new judicial conduct rules are narrowly tailored to

serve the state’s interest in fairness, impartiality, and integrity, in addition to the principles of justice and the rule of law, since “only speech that is inconsistent with impartiality is pro-hibited.” Although she found that the pledges, promises, and commitments prohibition in the 2009 Indiana Code of Judicial Conduct generally does not prohibit judicial candidates from answering Indiana Right to Life’s 2008 questionnaire, Judge Springmann further wrote that, “[T]he assessment could change depending on how questions are worded and framed, what answers questions are intended to elicit, and what responses judicial candidates make.”

WERSAL V. SEXTON , 607 F. SUPP.2D 1012 (D. MINN. 2009) — District Court upheld solicitation and public endorsement clauses of Min-nesota judicial canons but dismissed as unripe plaintiff’s challenge to a prohibition on soliciting funds for a political organization.

SIEFERT V. ALEXANDER , 597 F. SUPP. 2D 860 (W.D. WIS. 2009) — District Court decided that public endorsement and solicitation clauses and prohibition against party affilia-tion in Wisconsin’s court rules violate the First Amendment.

O’NELL V. COUGHLAN , 511 F.3D 638 (6TH CIR. 2008) — Sixth Circuit held that the district court should have refrained from exercising jurisdiction pursuant to the Younger abstention doctrine and dissolved an injunction that enjoined enforce-ment of three provisions of the Ohio Code of Judicial Conduct relating to judicial campaign conduct.

FEDERALCASE

REVIEW:

Pledges and Promises, Solicitions, and Public Endorsement Clauses

Watch a video diary about CLEO atcourts.IN.gov/video/cleo

Chief Justice Shepard’s vision for a more diverse Indiana bench and bar opened the door

for me to have an experience more valuable than I can articulate. As I celebrate my ten year anniversary as an Indiana Conference for Legal Educa-tion Opportunity (ICLEO) Fellow, it is hard to imagine what my law school ex-perience would have been like without it. I came to Indianapolis to be part of the third ICLEO class. For six weeks, twenty eight other Fellows and I were immersed in property, contracts, torts, and legal writing. Outside of the class-room, we engaged in numerous net-working opportunities with members of the Indiana legal profession. As the ICLEO Summer Institute ended, we parted with genuine camaraderie, a firm foundation in the skills needed to be successful in law school, and hopes for a bright future. The friends made and skills learned played an instrumental role in our achievements as law students.

ICLEO is the gift that keeps on giving. My connection with other Fellows and supporters of the ICLEO program has helped me professionally on countless occasions. I wanted to give back when the opportunity to work for the program presented itself. I love my job. I enjoy working with students and playing a role in their achievement of both academic and career goals. I am excited with each new group of Fellows because of the rewards they are poised to receive.

This milestone of ten years is especially significant because two of my CLEO classmates, Chasity Thompson and Patricia Kinney, have key roles in the 2009 Summer Institute. Both women serve as co-directors for the Summer Institute and are employed by this year’s host institution, Indiana University School of Law-Indi-anapolis. Chasity is the Associate Dean of Professional Development and Patricia is the Director of Admissions. When asked about her thoughts on celebrating ten years as a CLEO Fellow and now working with the program, Patricia said, “Ten years ago, I never would have imagined that I would be so fortunate to spend my 10-year anniversary serving as one of the Co-Directors of the ICLEO Summer Institute and to do so with Chasity Thompson, who is also a 1999 ICLEO Fellow. This is such a wonderful way to celebrate this milestone! The students are amazing and it is such a privilege to be a part of the process that will help them attain their life and professional goals.”

Looking Back at the Last 10 Years of ICLEO

By Robyn Rucker,ICLEO Coordinator,


Clockwise from top left: CLEO Alumni ChasityThompson, Robyn Rucker, and Patricia Kinney.


CAREY V. WOLNITZEK , 2008 WL 462786 (E.D. KY. OCT. 15, 2008) — District Court held that the pledges and promises clause is constitutional, the solicitation clause is unconsti-tutional, and a provision restricting partisan activity by judges and judicial candidates also is unconstitutional.

WOLFSON V. BRAMMER , 2008 WL 4372459 (D. ARIZ., SEPT. 23, 2008) — District Court denied plain-tiff’s request to enjoin enforcement of the pledges and promises, solicitation, and public endorsement clauses of Arizona’s Code of Judicial Conduct, finding that plaintiff failed to show a probability of success on the merits and failed to demonstrate that he would suffer irreparable injury with-out the injunction.

ALASKA RIGHT TO LIFE POLITICAL ACTION COMMITTEE V. FELDMAN, 504 F.3D 840 (9TH CIR. 2007) — Plaintiffs’ pre-enforcement challenge to the Alaska Judicial Code’s prohibi-tions on judicial campaign conduct was unfit for review under ripeness doctrine.

PENNSYLVANIA FAMILY INSTI- TUTE, INC. V. BLACK, 489 F.3D 156 (3RD CIR. 2007) — Third Cir-cuit determined that plaintiff lacked standing to challenge Pennsylvania’s Code of Judicial Conduct, as it failed to produce a willing speaker.

PENNSYLVANIA FAMILY INSTI- TUTE, INC. V. CELLUCI, 521 F. SUPP.2D 351 (E.D. PA. 2007) — District Court determined that Pennsylvania’s pledges and promises clause, narrowly construed, is consti-tutional.

By Adrienne Meiring,Counsel,

Judicial Qualifi cations Commission,State Court Administration

WHAT DO YOU LIKE MOST, AND LEAST, ABOUT BEING A TRIAL COURT JUDGE?

What I like most about being a trial court judge is the combina-tion of the intellectual or academic challenge that comes with interesting and difficult cases and the interesting and intriguing interactions with the public and attorneys in the courtroom. I also like the contact and engagement with lawyers who are, for the most part, very bright and interesting people.

What I like least about being a trial court judge is dealing with the same people over and over again with the same problems, the increasing bureaucratic demands made by the Division of State Court Administration, the unnecessarily complex proce-dures and protocols developed and being developed as a result of the DCS taking over the payment of services for children and the state taking over the payment of the DCS expenses, and the changes in DCS organization and documentation requirements. Also it seems that the trial courts, in particular, are being asked more and more to become social service agencies rather than courts that decide cases and resolve disputes between litigants.

There, you asked for it, so I gave it to you.

THIS IS THE FOURTH OF OUR COURT TIMES ARTI-

CLES THAT HIGHLIGHT UP CLOSE AND PERSONAL A

MEMBER OF THE INDIANA JUDICIARY. MONTGOMERY

CIRCUIT COURT JUDGE THOMAS K. MILLIGAN IS OUR

JUDGE FEATURED IN THIS ISSUE. JUDGE MILLIGAN

PRACTICED LAW IN CRAWFORDSVILLE FOR EIGHT

YEARS BEFORE RUNNING FOR JUDICIAL OFFICE. HE

WAS FIRST ELECTED AS CIRCUIT COURT JUDGE IN

1974, AND RE-ELECTED IN 1980, 1986, 1992, 1998

AND 2004. HE SERVED AS PRESIDENT OF THE IN-

DIANA JUDGES ASSOCIATION FROM 2001 TO 2003.

Hon. Thomas K. Milligan

WHAT WAS YOUR MAJOR AT WABASH COLLEGE AND WHY DID YOU DECIDE TO STUDY LAW?

I decided to study law because I graduated as an English major from Wabash College, and I didn’t know what I wanted to do. A fraternity brother was studying at I.U. Law School in Bloom-ington. I went and stayed with him for a couple of days, liked what I experienced, was admitted to school there and never looked back.

WHAT WOULD YOU DO IF YOU WERE NOT A JUDGE AND WHAT DO YOU LIKE TO DO WHEN YOU ARE NOT ON THE BENCH?

If I were not a judge I could be awfully busy. I would pursue a couple of business interests with which I am presently in a small way remotely involved. I would ramp up my beekeeping. I would be more involved in the care and maintenance of some farmland we own. I would continue to work hard to keep Mrs. Milligan happy. I would spend more time bicycling and fly fishing. I would be involved in any program that encourages children to read. I would be spending, hopefully, more time with our children and grandchildren.

SIDEBAR

An avid apiarist outside of the courtroom, Judge Milligan shows off his beekeeping garb and his bee smoker.


WHO ARE THE PEOPLE YOU MOST ADMIRE?

The people I most admire (after each of the members of the Supreme Court and the Court of Appeals to whom I write every time I write an order or an opinion) are my wife, Suanne, and our son and daughter. Suanne has had a series of successful careers as a working adult. As a volunteer she has been, and continues to be, involved in the community. She acquits herself with grace and dignity and she enjoys the admiration of those with whom she works. Each of our two children has been able to pursue her and his interests and careers and has achieved and is achieving their individual goals. And while neither our son nor daughter is a lawyer they have each married lawyers. I admire their ability to maintain their focus, their good humor, and their Midwestern values and work ethic even though they are presently in the East.

WHAT ARE YOUR FAVORITE BOOKS AND HAVE YOU READ ANY RECENTLY OR ARE READING NOW THAT YOU REALLY LIKE?

Anything by Isaac B. Singer, Elmore Leonard, Tony Hillerman, or Walter Mosley; the Bible, especially Psalms, Proverbs, Ro-mans and Corinthians.

Recent reads I would recommend are: The Forever War by Dex-ter Filkins; Water for Elephants by Sara Gruen and The Given Day by Dennis Lehan.

WHERE DID YOU GROW UP AND HOW WOULD YOU DE-SCRIBE YOUR CHILDHOOD?

I grew up in the small town of Waveland here in Montgomery County. I would describe my childhood as idyllic. Ours was the second house from the school (all 12 grades), and we lived across the street from the church we attended. I had the run of the town on my bicycle, could go skinny-dipping in a creek outside of town, and I knew practically everyone who lived in town. They all knew me too and any remarkable behavior, good or bad, reached home before I did.

DO YOU HAVE A FAVORITE QUOTE(S)?

“If it ain’t broke, don’t fix it.”

“Even a fish wouldn’t get into trouble if it kept its mouth shut.”

“This too shall pass.”

WHERE IS YOUR FAVORITE VACATION SPOT?

Anywhere I can be with or near our children and grandchildren.

WHAT IS YOUR FAVORITE MEAL/RECIPE/RESTAURANT?

Meat and potatoes fixed as only the women in my family or the “church ladies” can fix.

By James F. Maguire,Staff Attorney,


The investigative series “Lake County Juvenile Justice” premiered on Saturday, July 4, 2009 on

MSNBC. In July 2008, the Indiana Supreme Court announced it was once again allowing documentary filmmaker Karen Grau to have access to the Lake County juvenile court.

Grau describes the series as a program that “explores where juvenile crime begins, how it evolves over time, and what’s at stake for kids, families and professionals in the system.” Grau’s company, Calamari Produc-tions, shot six one-hour episodes in the courtroom of the Honorable Mary Beth Bonaventura, Judge Lake Superior Court, Juvenile Division in Crown Point.

When Grau was given access to shoot inside the juve-nile court she said the goal of the series was to shed light on the issues facing the court and also the chil-dren served by the court. With that understanding, the Supreme Court agreed to allow cameras in the courtroom. Chief Justice Shepard explained, “It is important to keep citizens informed about the issues facing the juvenile justice system. A national program produced by a respected journalist is one avenue to promote that understanding.”

Judge Bonaventura has worked with Grau in the past and agreed that the series would educate parents and teens. In February 2000, Grau produced the docu-mentary “In the Child’s Best Interest.” It aired on WTHR, the Indianapolis NBC affiliate, as well as all Public Broadcast System (PBS) affiliates statewide. In April 2002, she produced two separate documentaries for NBC Dateline and for MSNBC called "For Their Own Good" and “In a Child’s Best Interest.” That was followed by the 2006 MSNBC two-hour special "No Place for a Child." In February 2007, “Juvies” featured Judge Bonaventura’s courtroom in an 8-part documentary series that aired on MTV. Grau is the recipient of a 2002 Edward R. Murrow Award, along with multiple awards for programming on children and the courts.

For details about the series and Calamari Productions visit www.calamariproductions.com.

LAKE COUNTY


By Kathryn Dolan,Public Information Offi cer, State Court Administration

When I was a young lawyer, I thought nothing of it when my male supervisor chose to tell

me of his sexual prowess with his wife or when the male attorneys gathered in his office to review his compilation of bawdy cartoons. But I did mind several years earlier when I was right out of college and the older, married director of my workplace began stopping by my desk to ask how I was, while standing over me so that his body blocked me from moving. I was too low in the chain for him to have any business interest in how I was do-ing and his reputation for selecting new female staff members for attention was well-known. Fortunately, a brave group of women went above his head to complain as a group and the inappropriate attention came to a halt. That was in 1973.

Five years after the first woman was ap-pointed to the United States Supreme Court, in 1986, the case of Meritor Savings Bank v. Vinson was decided. It established that sexual harassment is a violation of Title VII, the Civil Rights Act of 1964. More than twenty years after that decision, workplaces have been altered forever and mostly for the bet-ter. There are still people though who do not understand proper workplace behavior, as well as people who believe an erroneous myth that any lewd joke is a legal cause of action. The tension between those two groups means that sexual harassment is still a fertile ground for lawsuits. Because Title VII applies to the courts in their role as employers, it is also one of the few significant areas in which the court is exposed to liability as a potential defendant.

Simplifying the current law on sexual harassment to its essence, unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitutes sexual harass-ment when it affects the conditions of em-

ployment and creates an abusive environ-ment. There are many qualifications to this broad definition, such as whether the conduct is offensive to both the individual and to a reasonable person, the com-munity standards, the frequency of the conduct, the severity of the incidents, and whether it actually interferes with work performance. When the sexual harass-ment comes from a peer, the employee

victim has the responsibility of reporting the harassment before there can be any liability to the employer. When the con-duct rises to the level of actionable sexual harassment and it is by a supervisor, the employer is liable unless the employer has exercised reasonable care to prevent and correct any sexual harassment.

As part of the employer’s duty to exer-cise reasonable care, it is crucial that the employer have a published policy

for employees on how to report sexual harassment. The keys to a good policy for reporting are:

Actual Distribution. The best policy is worthless if the employees don’t have a copy. The best practice is to distribute the policy individually to employees and have each one sign an acknowledgement that the policy was received.

Easy to Access. Whatever your report mechanism, it should be one that employees fi nd easy to access. The person designated to receive complaints must be someone who is readily accessible. This also means the policy needs to be reviewed and up-dated to insure its continuing accessibility.

Multiple-means of reporting. If the person designated to receive complaints is the of-fender, there must be an alternative person designated so that there is a way to report any offense. This also helps in the event that the designated person is unavailable for an extended time, such as a medical leave.

Confi dentiality clause. The policy should have language assuring that the complaint will be kept private, except when revealing information that is necessary to conduct an effective investigation.

Promise of No Retaliation. If the policy implies that there may be consequences for reporting a false complaint, employees will be reluctant to report possible viola-tions. It is better to receive inconsequential complaints, than to miss serious concerns. Employees need to know that there will be no negative consequences if the policy for reporting is followed.

An appropriate complaint mechanism goes a long way towards protecting your employees from an unacceptable work atmosphere and in protecting you from liability for behavior that may be un-known to you. As always, if you need as-sistance with drafting a policy, handling a complaint, or any other concerns which relate to this issue, call your friendly legal advisor on employment law at the phone number or email address below.

SexualHarrassmentR E V I S I T E D

THERE ARE STILL PEOPLE

THOUGH WHO DO NOT

UNDERSTAND PROPER

WORKPLACE BEHAVIOR, AS

WELL AS PEOPLE WHO BELIEVE

AN ERRONEOUS MYTH THAT

ANY LEWD JOKE IS A LEGAL

CAUSE OF ACTION.

BRENDA'S BAILIWICK

Trial courts can seek advice on employment law issues by contacting Brenda Rodeheff er directly at 317/234-3936 or [email protected].

By Brenda Rodeheff er

Employment Law Services,




Collecting fines and costs assessed upon conviction in a criminal matter is a daunting task for a county. So it is no wonder that be-ing able to deduct

fines, costs, fees and restitution from bond money already deposited with the clerk of the courts is seen as a good way to substantially increase the collection of these assessments without further use of county resources. The county cannot deduct any monies from cash posted for bonds unless there is first a conviction of the defendant, and proper notice given to, or an agreement to pay by, the person posting the cash bond.

Court ordered fines, costs, fees and res-titution can only be deducted from cash bonds, or the cash deposit on a surety bond, but not from bail bonds. If a court allows a defendant to have a bail bond posted by a private bail bond company, the defendant pays a premium to the company. As an agent of defendant, the company paying the bond to the court insures that the defendant will appear at trial on the date set by the court. Bail bond companies are insurance compa-nies and are subject to regulation by the Indiana Department of Insurance. The premium paid by or on behalf of the defendant to a bail bond company is not refundable because it is payment for a service and a court authorizing the pre-trial release of a defendant under this arrangement will have no assets on deposit for the payment of court-ordered fines and costs upon conviction.

Cash bail authorized by a court may be satisfied by paying the entire amount of the cash bond to the clerk of the court. Alternatively, a defendant may be authorized to post a “10% cash bond” by depositing cash or securities with the clerk of the court in an amount not

When can a court collect assessments from cash posted for bond in a criminal matter?

less than ten (10%) percent of the bail. Three counties in Indiana use only cash bonds – Bartholomew, St. Joseph and Vanderburgh. Nationally, four states use only some form of cash bond for pre-trial release – Illinois, Kentucky, Oregon and Wisconsin. The defendant is usually required to sign a bail bond for the full amount of the bail set by the court, in addition to posting the cash or securities. If the conditions of bail are violated, the defendant must forfeit the full amount of the bond, and the court enters a judgment against the defendant for that amount.

Under IC 35-33-8-3.2(a), the trial court, upon conviction, may order fines, costs, fees and restitution to be paid from the proceeds of a cash or surety bond. The statute states: “If the court requires the defendant to deposit cash or cash and another form of security as bail, the court may require the defendant and each person who makes the deposit on behalf of the defendant to execute an agreement that allows the court to retain all or a part of the cash to pay publicly paid costs of representation and fines, costs, fees, and restitution that the court may order the defendant to pay if the defendant is convicted.”

When a cash bond is posted by some-one other than the defendant, upon conviction can fines and other costs be deducted from the cash bond? Yes, but only if the payee of the bond is notified that costs may be ordered by the court to be deducted from the cash bond or the payee signs an agreement that the bond proceeds are subject to attachment by the court upon conviction. When a surety bail bond is posted by depositing 10% of the bail with the clerk of the court under IC 35-33-8-3.2, notice must be given by the sheriff, court or clerk that the deposit may be forfeited or retained to pay costs, fines, fees or restitution upon conviction.

If a person other than defendant pays the bond, and receives no notification nor signs an agreement to the attachment of the bond upon execution, the laws of bailment apply. The person who paid the bond is the bailor, and the person being released by the bond is the bailee. The bailor’s property is used to secure the release of the bailee who promises to appear for all hearings in the matter and perform all other necessary acts insur-ing that the bond would not be revoked. Upon completion of the case, the bailor is entitled to a full refund of the bond without any deductions of money. See J.J. Richard Farm Corporation v. State of Indiana, 642 N.E.2d 1384 (1994).

In 1994, when the J.J. Richard Farm Corporation opinion was published, IC 35-33-8-3.1 controlled how the courts set bail and how the bail was released upon disposition of the case. At that time, IC 35-33-8-3.1 did not require the person paying a cash bond to execute an agreement that allowed the court to retain all or part of the cash bond upon disposition of the case. The court could order money retained as deposit to pay for fines, costs, fees and restitution but only from a 10% cash or securities bond. However, in the event of the posting of a real estate bond, the bond may be used only to insure the presence of the defen-dant in court, but may not be foreclosed for the payment of fines, costs, fees, or restitution.

If a court follows the proper procedures then it will be able to deduct fines, costs, fees and restitution from a cash bond on deposit with the clerk of the courts.

By Deborah A. Neal,Staff Attorney,

Public Defender Commission,State Court Administration

QA


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PLEASE CIRCULATE TO CO-WORKERSThis newsletter reports on important administrative matters. Please keep for future reference. Issues are also available online at:

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EDITORIAL BOARD

Lilia G. Judson, PublisherExecutive Director, State Court Admin.

David J. Remondini, Managing EditorChief Deputy Executive Director, State Court Admin.

James F. Maguire, EditorStaff Attorney, State Court Admin.

Lindsey Borschel, Publication DesignerWeb Coordinator, State Court Admin./JTAC

Deborah Guthrie-Jones,Distribution CoordinatorAdministrative Assistant, State Court Admin.

Indiana Supreme CourtDivision of State Court Administration30 South Meridian Street, Suite 500Indianapolis, IN 46204

MISSION

Our goal is to foster communications, respond to concerns, and contribute to the spirit and pride that encompasses the work of all members of the judiciary around the state. We welcome your comments, suggestions and news. If you have an article, advertisements, announcement, or particular issue you would like to see in our publication, please contact us by mail or email at [email protected].

CONTRIBUTORS

Hon. Richard PayneSenior Judge,State Court Administration

Adrienne MeiringCounsel, Judicial Qualifi cations Comm. State Court Administration

Dr. Elizabeth OsbornAssistant to Chief Justice for Court History and Public Education, Ind. Supreme Court

James F. MaguireStaff Attorney, State Court Administration

Camille WigginsStaff Attorney, State Court Administration

Kristin Donnelly-MillerStaff Attorney, State Court Administration

Deborah A. NealStaff Attorney, Ind. Public Defender Comm.State Court Administration

Brenda RodehefferEmployment Law Services,State Court Administration

Robyn RuckerICLEO Coordinator, State Court Administration

Kathryn DolanPublic Information Offi cer,State Court Administration

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Indiana Court Times 18.4