Supreme Court of Indiana

Justice Dickson and the Development of Indiana Civil Tort Law

by Nate Moyer, 2L Note Candidate

Last spring, Justice Brent Dickson retired from the Indiana Supreme Court. [http://wishtv.com/2016/04/29/justice-dickson-hailed-for-his-civility-grace-at-retirement/]. Justice Dickson served Indiana for thirty years, and his retirement will mark the end for Professional Photoone of Indiana’s longest Supreme Court tenures. Governor Robert Orr appointed Justice Dickson to Indiana’s highest court in 1986. Since that time, Justice Dickson has contributed an extensive amount of legal opinions. Further, from 2012 to 2014, Dickson presided over the Court as Chief Justice. [http://www.in.gov/judiciary/4047.htm]. He was then stepped-down from Chief Justice, a position that is now held by Chief Justice Loretta H. Rush.

Justice Dickson was viewed as a pragmatic and wise judge who valued the citizen’s right to a fair and open trial. As a send-off for the esteemed Justice, Roger Pardieck, Karen Davis and Maggie Smith’s article in the Indiana Law Review examines Dickson’s methodology and legal analysis for civil suits. Justice Dickson’s Civil Tort Law Jurisprudence, 50 Ind. L. Rev. 103 (2016) (available at https://mckinneylaw.iu.edu/ilr/pdf/vol50p103.pdf). The article analyzes Dickson’s opinions in the landmark decisions of Jarboe v. Landmark Community Newspapers of Indiana, and Myers v. Crouse-Hinds Division of Cooper Industries. In Jarboe v. Landmark Community Newspapers of Indiana, the Justice’s opinion focused on how summary judgment may hastily deny a person’s day in court. In Myers v. Crouse-Hinds Division of Cooper Industries, the Justice respected the doctrine of stare decisis, despite his own misgivings. Dickson’s jurisprudence did not always carry the day, however, and therefore this article also covers his dissents in Allied Signal v. Ott, and McIntosh v. Melroe. The purpose of this is to demonstrate how Justice Dickson would strictly adhere to not only his own principles, but also the Indiana Constitution.

Prior to being appointed to the Indiana Supreme Court, Justice Dickson was an attorney working in private practice. Justice Dickson graduated from the Indiana University School of Law in Indianapolis in 1968. After his retirement, Dickson intends to still assist with court administration, although he will hear no cases. [http://www.theindianalawyer.com/justice-brent-dickson-announces-retirement/PARAMS/article/38676]. This past June, Governor Mike Pence appointed Geoffery G. Slaughter to Indiana’s highest court as Dickson’s successor. Indiana Supreme Court Justices are required to retire by the age of seventy-five.

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Indiana Religious Controversies Analyzed by Former Indiana Supreme Court Justice

by Tess Anglin, 2L Note Candidate

Michael DeBoer’s article Justice Brent E. Dickson, State Constitutional Interpretation, and the Religion Provisions of the Indiana Constitution, tracks Justice Dickson’s contribution to the development of Indiana constitutional law through analyzing three cases surrounding the interpretation of the religious provisions of the Indiana Constitution. With respect to each case, DeBoer notes Justice Dickson’s approach to analyzing questions of religion within the framework of the Indiana Constitution. From observing records of debates from the 1850-1851 Constitutional Convention, to reviewing historical surveys and comparing other state constitutions, Justice Dickson paid due diligence to understanding the intent of the framers of the Indiana Constitution on issues of religion. Michael J. DeBoer, Justice Brent E. Dickson, State Constitutional Interpretation, and the Religion Provisions of the Indiana Constitution, 50 Ind. L. Rev. 75 (2016) (available at https://mckinneylaw.iu.edu/ilr/pdf/vol50p75.pdf).AnglinProfessionalPic

Justice Dickson retired from the Indiana Supreme Court in April of 2016, ending his tenure as the second-longest-serving Indiana Supreme Court justice. Chief Justice Loretta Rush succeeded Justice Dickson. Indiana Supreme Court Justice Brent Dickson Retiring in April, INDYSTAR (Jan. 11, 2016, 12:55 PM), http://www.indystar.com/story/news/politics/2016/01/11/indiana-supreme-court-justice-brent-dickson-retiring-april/78633916/ [https://perma.cc/83T2-5PVF].

In recent years, Indiana made national news for its adaption of a bill regarding religious freedom. Following the United States Supreme Court case Burwell v. Hobby Lobby, which held closely held corporations, as well as individuals, can assert religious rights, Indiana enacted the Religious Freedom Restoration Act (RFRA). RFRA creates an “exemption from general legal requirements for religious objectors unless the government can carry an especially heavy burden to show that the objection should be required to comply with the law.” RFRA caused a significant amount of controversy in Indiana, especially among the LGBTQ community due to the fear that businesses would abuse the exemption to discriminate LGBTQ consumers. Howard M. Friedman, 10 Things You Need to Know to Really Understand RFRA in Indiana and Arkansas, The Washington Post (Apr. 1, 2016), https://www.washingtonpost.com/news/acts-of-faith/wp/2015/04/01/10-things-you-need-to-know-to-really-understand-rfra-in-indiana-and-arkansas/ [https://perma.cc/467L-EY5M].

In February of 2016, an Indianapolis mother, Khin Par Thaing, received felony charges for beating her 7-year-old son with a coat hanger. Thaing initially claimed a religious exemption for the abuse under RFRA, arguing the beating was a form of discipline as prescribed by the Bible. Greg Bowes, Thaing’s lawyer, articulated in a filed memorandum that under RFRA, Thaing had “the right to discipline her children in accordance with her beliefs, and that the state should not interfere with her fundamental right to raise her children as she deems appropriate.” Vic Ryckaert, Son had 36 Bruises. Mom Quoted the Bible as Defense., INDYSTAR (Aug. 31, 2016, 6:58 AM), http://www.indystar.com/story/news/crime/2016/08/31/son-had-36-bruises-mom-quoted-bible-defense/88998568/ [https://perma.cc/C8PN-VZKP]. Ultimately, Thaing pled guilty to battery, and in exchange the prosecutors agreed to dismiss the neglect charge. Indianapolis Woman Who Cited RFRA and the Bible as Defense for Beating Son Pleads Guilty, FOX59 (Oct. 28, 2016, 11:26 AM), http://fox59.com/2016/10/28/indianapolis-woman-who-cited-rfra-and-the-bible-as-defense-for-beating-son-pleads-guilty/ [https://perma.cc/AU3H-9CTL].

With Justice Dickson retired from the bench, it will be interesting to see how the current Indiana Supreme Court will analyze both the scope of RFRA and the Indiana Constitution in cases where a religious defense is asserted to felony charges of battery and neglect. If the current court follows the groundwork of constitutional analysis of religion Justice Dickson followed, the court likely would begin looking to the Act itself as a primary resource. Next, the court would look to sources and documents that contributed to the Act, evaluate other relevant primary sources to indicate the historical context of the Act, and look to secondary sources.

Since RFRA’s enactment, the Act has primarily been used to excuse individuals from actions that would otherwise be criminalized, such as smoking marijuana and tax evasion. Thus far, the religious exemption to crimes created by RFRA has not prevailed. Josh Sanburn, How Indiana’s Religious-Freedom Law Is Being Used to Defend Child Abuse and Other Crimes, TIME (Sept. 8, 2016), http://time.com/4481073/indiana-rfra-law-child-abuse/ [https://perma.cc/3UM7-6LJD]. To read more about this issue, check out Michael J. DeBoer’s article in the Indiana Law Review.

Civility and Efficiency Can Still Co-Exist

by Kayleigh Long, 2L Note Candidate

In a political climate of gridlock where the Senate refused to act on President Obama’s nomination of Merrick Garland to the United States Supreme Court, Justice Ruth Bader j16_4156Ginsburg reminded the nation of the art on how to disagree vehemently within the bounds of civility after the untimely passing of Justice Antonin Scalia. As several commentators remarked, “[t]hough the liberal Ginsburg and conservative Scalia frequently sparred over judicial matters, they shared a deep friendship and respect for each other’s intellect and wit.” Fang, Marina, Ruth Bader Ginsburg Remembers Antonin Scalia, Her Dear Friend and Sparring Partner, THE HUFFINGTON POST (Feb. 14, 2016, 2:14 PM), http://www.huffingtonpost.com/entry/scalia-ginsburg-friendship_us_56bfb717e4b0b40245c6f436 [https://perma.cc/M8B5-TCNZ]. This past April, the Indiana Supreme Court saw its own departure of the role model of civility with the retirement of Justice Brent E. Dickson.

As the authors of In Majority and Dissent: Justice Dickson’s Contribution to Indiana Criminal Law point out, Dickson’s time spent on the Indiana Supreme Court helped spur reforms to Indiana criminal law, and he wrote almost nine hundred opinions. In the wake of Dickson’s retirement, testimony of his character repeated itself throughout the legal community. Indiana Justice Steven David characterized Dickson as “Captain Civility,” and Indiana Justice Robert D. Rucker described him as being “cool, collected, rock solid and a steady hand.” Nelson, Jennifer, Dickson’s Tenure on Supreme Court Celebrated, The Indiana Lawyer (Apr. 29, 2016), http://www.theindianalawyer.com/dicksons-tenure-on-supreme-court-celebrated/PARAMS/article/40218 [https://perma.cc/XJ28-WP33]. In Majority and Dissent: Justice Dickson’s Contribution to Indiana Criminal Law outlines specific instances where Dickson responded with civility in both his majority and dissenting opinions throughout various areas of criminal law. Examples the authors point to include formulating helpful jury instructions on the meaning of reasonable doubt and the jury’s role in determining law and fact.

As the American public faced a contentious presidential election and a stalled Congress with just an eleven percent approval rating, the Hoosier state just experienced a period of judicial reform within criminal law without sacrificing civil, working relationships on the Indiana Supreme Court bench for the past three decades. Shabad, Rebecca, Congress’ Approval Rating Drops to 11 Percent, CBS News (Nov. 11, 2015, 3:45 PM), http://www.cbsnews.com/news/poll-congress-approval-rating-drops-to-11-percent/ [http://perma.cc/3KGY-QGQR]. When it appears that those in the three branches of government cannot seem to get along or accomplish meaningful change, Justice Dickson’s tenure reminds us civility and efficiency are still possible.

To read more about Justice Dickson’s contributions to Indiana criminal law check out In Majority and Dissent: Justice Dickson’s Contribution to Indiana Criminal Law in this issue of the Indiana Law Review. Daylon L. Welliver & Joel M. Schumm, In Majority and Dissent: Justice Dickson’s Contribution to Indiana Criminal Law, 50 Ind. L. Rev. 15 (2016) (available at http://mckinneylaw.iu.edu/ilr/pdf/vol50p15.pdf).

The ABA and Law School Innovation

by Daniel McGregor, 2L Note Candidate

Enrollment at the University of North Texas at Dallas College of Law is up despite an August proclamation against granting the school accreditation by an ABA advisory group. Hacker, Holly K., Students Flock to UNT-Dallas Law School Despite Questions About its Future, DALLASNEWS (Aug. 31, 2016), http://www.dallasnews.com/news/education/2016/08/31/students-flock-unt-dallas-law-school-despite-questions-future [https://perma.cc/Z2T4-3YTB].

This underscores a point recently made by Indiana’s Former Chief Justice, Justice Randall T. Shepard (pictured below), who notes that a shift in the way financial aid is distributed can disproportionately impact those applicants who come from homes with less economic advantages. When a school, like the University of North Texas at Dallas College of Law, tries to provide a program that addresses this issue, the ABA should at least allow them a little leeway and time to see if the program can work.

shepardThe underlying problem, as noted by Former Chief Justice Randall T. Shepard, is the shift from need-based financial aid to focusing more on the merit of LSAT scores and GPAs. The problem with this shift is that the affluent tend to have higher scores and thus receive the bulk of the financial aid. The UNT-Dallas College of Law was opened as an affordable option for individuals who may not have the best measurable scores that would allow them to receive tuition breaks at most universities. This may provide opportunities for a more diverse class without forcing individuals to rack up extreme amounts of debt. According to Deborah Merritt, the school considers a multitude of factors in addition to GPA and LSAT scores in determining who is likely to succeed in law school. Merritt, Deborah Jones, Should Law School in Texas Be Rewarded or Punished for Unique Approach? (Perspective), Bloomberg L. (Sept. 9, 2016), https://bol.bna.com/should-law-school-in-texas-be-rewarded-or-punished-for-unique-approach-perspective/ [https://perma.cc/LAA6-BZSW]. Providing a less expensive law degree may also allow these individuals to pursue work that does not pay as well after graduation.

Former Chief Justice Randall T. Shepard notes that “crisis prompts innovation,” using Arizona State opening its own non-profit law firm as an example. The University of North Texas at Dallas College of Law can also be viewed as a program trying to innovate in the face of crisis. As such, it seems like the school should be provided a reasonable amount of time to show whether the program will work. The uptick in admissions, despite the doubt about accreditation, shows that there is a demand for what the institution is providing. While this program may not be for everyone, it cannot be deemed ineffective until graduating students are allowed to sit for the Texas Bar. If UNT-Dallas College of Law students pass at rates comparable to students at other accredited law schools in Texas, that would be evidence UNT-Dallas College of Law’s model is working. If UNT-Dallas students fail to achieve this measure, then at least we know this innovative school was given an opportunity to prove itself.

To read more about this issue, check out Former Chief Justice Shepard’s article published in the Indiana Law Review. Shepard, Randall T., The Problem of Law School Discounting – How Do We Sustain Equal Opportunity in the Profession?, 50 Ind. L. Rev. 1 (2016) (available at http://mckinneylaw.iu.edu/ilr/pdf/vol50p1.pdf). Former Chief Justice Randall T. Shepard’s article is also featured as a cover story in the latest issue of the The Bar Examiner. Shepard, Randall T., The Problem of Law School Discounting – How Do We Sustain Equal Opportunity in the Profession?, 85 B. Examiner 6 (2016) (available at http://www.ncbex.org/pdfviewer/?file=%2Fassets%2Fmedia_files%2FBarExaminer%2Fissue%2FBE-850416-ABRIDGED2.pdf).

Justice Dickson’s Lasting Influence

by Kelsey Dilday, 2L Note Candidate

Justice Brent E. Dickson of the Indiana Supreme Court retired on April 29, 2016, after a 30-year term. Justice Dickson is the second-longest-service Indiana Supreme Court Justice after Justice Isaac Blackford who served for more than thirty-five years in the 1800s. Indiana Supreme Court Justice Brent Dickson retiring in April, INDYSTAR (Jan. 11, 2016, 12:55 PM), http://www.indystar.com/story/news/politics/2016/01/11/indiana-supreme-court-justice-brent-dickson-retiring-april/78633916/ [https://perma.cc/B4E5-3GQ4].  At his retirement, Justice Dickson was praised for his civility, wisdom, graceimg_5545, and wit during his time on the bench. Governor Mike Pence presented Justice Dickson with the Sagamore of the Wabash award for his longstanding service for Indiana. Justice Dickson hailed for his civility, grace at retirement, WISHTV.COM (April 29, 2016, 3:52 PM), http://wishtv.com/2016/04/29/justice-dickson-hailed-for-his-civility-grace-at-retirement/ [https://perma.cc/S7NF-H5FD]. This award is named after the Native American term “sagamore,” which referred to a great man within a tribe who would look to the chief for guidance. The award is a high honor, always bestowed by Indiana’s Governor to individuals who have “contributed greatly to our Hoosier heritage.” Sagamore of the Wabash Award, IN.gov, http://www.in.gov/portal/files/Sagamore.pdf [https://perma.cc/UV32-ZDPA] (last visited Jan. 1, 2017). Chief Justice Loretta Rush also thanked Justice Dickson for his help in “institutionaliz[ing] civility” on the Indiana Supreme Court. Callahan, Rick, Retiring Indiana Justice Dickson hailed for civility, South Bend TRIBUNE (April 30, 2016), http://www.southbendtribune.com/news/publicsafety/retiring-indiana-justice-dickson-hailed-for-civility/article_c2752c5f-90a7-5d81-9e1e-f7c8984cf3ea.html [https://perma.cc/6LZG-YE5Y].

However, Justice Dickson’s civility is not his only tribute to the Indiana Supreme Court, and he left behind thirty years of long standing court precedent. Throughout his thirty year term, he was an important influence on Indiana constitutional law. Justice Dickson was integral in the formation of the modern standards for application of the Indiana Constitution’s Equal Privileges and Immunities Clause. His opinions on wrongful death tort cases helped create a rulebook for practicing attorneys. Oddi, Marcia, Ind. Courts – “A Tribute to Justice Brent Dickson’s Contribution to Indiana Constitutional Law, The Indiana Law Blog (Mar. 20, 2016, 6:22 PM), http://indianalawblog.com/archives/2016/03/ind_courts_a_tr_2.html [https://perma.cc/H6XC-VBPZ]. Also notable is his influence in the reviving the Public Standing Doctrine, a doctrine which allows plaintiffs to sue to enforce public duties even if the plaintiff lacks a stake in the outcome of a case that differs from the stake held by the general public. Additionally, Dickson’s opinions are known to show a clear preference for jury decisions of factual disputes. As a strict constructionist, Justice Dickson, throughout his thirty years of service, remained dedicated to the Indiana Constitution and its framers’ intent, while setting aside his personal and subjective perspectives. IUPUI Law Professionals Reflect On Former Justice’s Impact, WBAA (Mar. 30, 2016), http://wbaa.org/post/iupui-law-professionals-reflect-former-chief-justices-impact#stream/0 [https://perma.cc/688F-9PHR].

While Justice Dickson’s thirty-year tenure for the Indiana Supreme Court is now over, it is clear that his ideas while on the Court will leave a lasting impression on Indiana’s legal landscape. To read more about Justice Dickson’s influence on Indiana constitutional law check out Jon Laramore’s article in this issue of the Indiana Law Review. Laramore, Jon, Justice Dickson’s Thirty-Year Influence on Indiana Constitutional Law, 50 Ind. L. Rev. 49 (2016) (available at http://mckinneylaw.iu.edu/ilr/pdf/vol50p49.pdf).

 

Attorney (In)Competence and Discipline

John P. Higgins, attorney
Indiana Supreme Court Disciplinary Commission
john.higgins@courts.in.gov

The Rules of Professional Conduct provide the baseline standards by which all lawyers must conduct themselves, both in their professional and (sometimes) personal lives. Violations of the Rules of Professional Conduct may serve as a basis for professional discipline, ranging anywhere from a private admonishment to permanent disbarment.

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