Indiana Tech Law School decides to close
Barely three years after welcoming its first class, Indiana Tech unexpectedly announced in late October that it would close its law school at the end of the 2016-17 academic year. The school blamed a decline in law school applicants nationwide and cited a $20 million loss it had taken in operating the school that opened in 2013. But some people connected to the school doubted Indiana Tech’s excuse, saying the school had indicated to students and faculty that the law school had set aside more than $20 million to cover all losses through the 2019-20 academic year.
Indiana Tech Law School has had a rocky path since it was announced in 2011 that the Indiana Tech board of trustees approved creating the state’s fifth law school. It built a 70,000 square-foot building, hired the former dean of Southern Illinois University School of Law, and set a goal of 100 students for its first class. But Indiana Tech fell way short of its goal, enrolling only 30 students, and lost its first dean – Peter Alexander – after he resigned May 2014.
Along the way, Indiana Tech was at first denied provisional accreditation last year, but earned it from the American Bar Association in March. It then only graduated 20 students, and of those students, only 12 took the bar exam and just three passed the test.
Graduates knew the pressure was on to pass the bar as its passage rate would impact the decision to fully accredit the school.
But the school and its students were optimistic, recently enrolling 55 new students for the class of 2019.
Law students now must decide whether to pursue their education at another school, with 2Ls having the most difficult choice as they would likely have to repeat their middle year or drop out altogether and pursue another career option.
Students and faculty at the school hired a Washington, D.C., attorney, looking into the possibility of a lawsuit. Indiana Tech President Arthur Synder said in a statement that it was an “extremely difficult” decision to close the school, but did not return repeated messages from Indiana Lawyer on the closing.
Valpo censured over admissions
Shortly after the shocking news that Indiana Tech Law School would shut down, Valparaiso University found its law school facing scrutiny after the American Bar Association issued a public censure in November for non-compliant admission practices. The ABA Section of Legal Education and Admissions to the Bar posted the notice of public censure, writing in the notice that the northern Indiana law school had not demonstrated compliance with Standards 501(a) and 501(b). Those standards require that “a law school shall maintain sound admission policy and practices” and “shall not admit an applicant who does not appear capable of satisfactorily completing its program of legal education and being admitted to the bar.”
Valparaiso University Law School Dean Andrea Lyon said the public censure stemmed from admissions practices preceding her hiring as dean in July 2014 and were a result of a site visit conducted during the 2013-14 academic year as part of the re-accreditation process.
As part of the sanction, Valparaiso had to develop a plan for bringing the school into compliance, submit admissions data and methodology to the ABA Accreditation Committee by Dec. 15, publish the notice of the public censure on its website, and review class quartile rankings of first-time bar exam passage rates with students each semester.
According to Valparaiso’s ABA Standard 509 report, students entering the law school in 2013 had a media GPA of 3.0 and media LSAT score of 143. By comparison, the class starting in 2015, which is the most recent data available, had a median GPA of 2.93 and median LSAT score of 145.
Valparaiso told IL that the 103 students who entered in 2016 had a median GPA of 3.02 and median LSAT of 147.
The Valparaiso Law School Class of 2014 posted a 61 percent passage rate of the Indiana Bar Exam by first-time takers, and 65 percent by first-time takers in 2015.
Lyon said the school is not in danger of closing and she began working on fixing the school’s admissions policies when she started as dean.
The other school to be sanctioned by the ABA on the same day as Valparaiso was Charlotte School of Law, which was placed on probation. Charlotte’s dean, Jay Conison, was dean of Valparaiso from 1998 until 2013, when he resigned to become dean at Charlotte. Consion and the ABA declined to comment on the Valparaiso sanction.
In February, the school announced it would offer buyouts to tenured faculty and faculty members with multi-year contracts, a result of a sharp decline in student applications and enrollment. In June, Lyon said 10 tenured faculty members accepted the buyout and the school gave termination contracts to three junior tenure-track professors who will leave after the 2016-2017 academic year. In addition, seven staff members were laid off.
The harsh spotlight was on Valparaiso again when The New York Times published an article June 17 about the law school’s plight. The newspaper found alumni who were heavily in debt and interviewed professors who were rethinking the decisions to accept less-qualified students to keep enrollment steady when applications dropped.
Bar passage rates plummet
The passage rates for the Indiana Bar Exam fell both in February and July as compared to previous years. The president of the Indiana Board of Law Examiners, Senior Judge Barbara Brugnaux, described the February overall bar passage rate of 51 percent as “stunning.” It was later revised to 55 percent following the appeals process. Sixty-seven percent of all test takers passed the February 2015 exam. It was the first time since February 2002 the overall passage rate percentage was in the 50s.
The July bar exam results were down dramatically as compared to 2015’s test — the overall pass rate dropped from 75 percent to 64 percent.
Indiana was not alone. Other states, such as Florida, Tennessee and Washington, reported declines in the number passing their bar exams in February. Also, the national portion of the test, the Multistate Bar Examination, noted its mean score fell to 135, the lowest February average since 1983.
The lower passage rates had some questioning whether the Multistate Bar Exam is driving down test scores. It comprises half of Indiana’s bar exam and does not test on Indiana law or precedent.
Grade point averages and LSAT scores of classes entering law schools have been slipping since the Great Recession. Still, Indiana attorneys were not quick to join the chorus who believe the disappointing exam returns are an indication that lesser-skilled students are going to law school and the cream of the crop are going elsewhere.
Indiana Justice Brent Dickson, who spent 30 years on the court and has the distinction of being the second-longest serving justice in the history of the court, retired at the end of April. Gov. Robert Orr selected Dickson for the Supreme Court in December 1985. Before joining the court, Dickson worked in private practice for 17 years in Lafayette, where he worked with now Chief Justice Loretta Rush before she became a judge. He served for two years as chief justice between the terms of Chief Justice Randall Shepherd and Rush.
He authored nearly 900 civil and criminal opinions as a justice and chaired several committees, including the Supreme Court’s Records Management Committee, and the Task Force for Public Access to Court Records. He is also known for his efforts to enhance attorney civility, increase lawyer pro bono legal services, encourage mediation and support the jury trial system.
Dickson turned 75 in July, the mandatory retirement age for appellate judges in Indiana. He will remain as a senior judge.
Gov. Mike Pence appointed Taft Stettinius & Hollister LLP partner Geoffrey Slaughter in May to the high court. Slaughter was admitted to practice in 1989 and focused his practice on administrative, antitrust, appellate and constitutional litigation. He has argued frequently before the court. He joined the court in June.
Abortion law blocked, appeal deferred
A federal judge’s June 30 order blocking a divisive and restrictive abortion law signed this year by Gov. Mike Pence was not appealed. The decision not to appeal earlier this year punted a decision on a possible future appeal to new state office-holders elected in November.
The law Pratt blocked would have prohibited abortions because of genetic abnormality, race, sex or ancestry; mandated disposal of an aborted fetus only through burial or cremation; and required abortion providers to inform patients of the law’s anti-discrimination provisions and what they prohibited. Proponents of the law characterized it as an anti-discrimination measure providing dignity for the unborn; opponents termed it an unprecedented assault on a woman’s right to abortion recognized by the U.S. Supreme Court since Roe v. Wade.
The case is proceeding on its merits to the final judgment stage before Pratt. Both the plaintiffs, Planned Parenthood of Indiana and Kentucky and Dr. Marshall Levine, and the defendants in the case, the commissioner of the Indiana State Department of Health, members of the Medical Licensing Board of Indiana, and the prosecutors of Lake, Marion, Monroe and Tippecanoe counties, moved for summary judgment in October.
Pratt is also presiding over another lawsuit involving Planned Parenthood and the state regarding a new Indiana mandate that women undergo an ultrasound at least 18 hours before having an abortion. She heard arguments Nov. 10 in that case, but had not yet ruled on the matter. Planned Parenthood is seeking an injunction against the law, which took effect July 1.
State’s legal fees paid to ACLU jump under Pence
Defending lawsuits over abortion and other social issues hasn’t been cheap. Under the administration of Gov. Mike Pence, legal fees paid to the American Civil Liberties Union of Indiana have soared beyond $1.4 million and may approach $2 million, according to an Indiana Lawyer analysis in April. The $1.4 million total does not include fees that have been or will be paid in the current fiscal year ending June 30 or other legal fees ACLU claims are owed by the state. The fees represent the state’s payment of legal bills to parties who prevail in federal court on claims that government action violated their constitutionally protected civil rights.
The $1.4 million taxpayers paid the ACLU in legal fees during Pence’s term is more than double the amount paid during second term of his predecessor, Gov. Mitch Daniels, according to available state records. Since Pence took office, $1,461,700 in fees has been paid to ACLU by the attorney general’s office, which represents the state in litigation. By contrast, payments to ACLU during Daniels’ second term were about $700,000.
Syrian refugees prevail in 7th Circuit
Gov. Mike Pence’s directive to prevent Syrian refugees from settling in Indiana hit a roadblock in October when the 7th Circuit Court of Appeals rejected his appeal of rulings blocking his bid to withdraw federal funding to an agency assisting war victims.
“The governor of Indiana believes, though without evidence, that some of these persons were sent to Syria by ISIS to engage in terrorism and now wish to infiltrate the United States in order to commit terrorist acts here,” Judge Richard Posner wrote in a six-page order. “No evidence of this belief has been presented, however; it is nightmare speculation.”
The panel returned its ruling in Exodus Refugee Immigration, Inc. v. Michael R. Pence, in his official capacity as Governor of Indiana, et al., 16-1509, just 12 working days after Pence’s position was blasted in oral arguments before the Chicago panel.
The American Civil Liberties Union of Indiana represented Exodus Refugee Immigration Inc. and claimed victory. “The Court of Appeals’ decision underscores what we have said throughout this litigation,” said Ken Falk, legal director of the ACLU of Indiana. “Governor Pence may not constitutionally or legally discriminate against a particular nationality of refugees that are extensively vetted by the federal government.”
Exodus Executive Director Cole Vargas said after the ruling that the organization is going to continue to serve this population.
“One of the most important things we do as a country is to welcome people in their time of need and at Exodus, of course, we are incredibly proud to take this stand for the state of Indiana and to open up hospitality that the Hoosier state is known for.”
The state did not ask for a rehearing or rehearing en banc on the October decision, but it has until 90 days after the Oct. 3 ruling to appeal to the U.S. Supreme Court. Pence, however, is leaving Indiana to be vice president of the United States following Donald Trump’s election in the November General Election. Governor-elect Eric Holcomb, Pence’s lieutenant governor, told WFYI in Indianapolis following a debate in October that, “I would continue to allow the refugees to come in here and find safe haven.”
Woman’s case tests sexual orientation discrimination
An ex-professor at Ivy Tech Community College in South Bend is hoping that her case causes sexual orientation discrimination to be illegal under the 1964 Civil Rights Act’s Title VII.
Kimberly Hively sued the school pro se after she claimed she was passed over five times for full-time status because she is a lesbian. The federal court ruled against her, as did the 7th Circuit Court of Appeals in July, finding precedent on Title VII shows that it does not protect gays and lesbians who are discriminated against based on sexual orientation. That provision bans workplace bias based on race, religion, national origin or sex.
But Judge Ilana Rovner, who wrote the decision, devoted much of it to the changing legal landscape when it comes to civil rights protections for gays and lesbians. Hively petitioned for rehearing and the full 7th Circuit heard the case in November. The judges during the hearing focused on the meaning of the word “sex” in Title VII.
Even if the 7th Circuit becomes the first U.S. appellate court to rule that the law covers sex-orientation bias, legal experts say the issue is likely to land before the U.S. Supreme Court. Chances of a majority of justices agreeing that workplace protections should include LGBT workers could be slimmer if President-elect Donald Trump fills a high court vacancy with a social conservative.
• Commercial courts began operating in June in six pilot counties — Allen, Elkhart, Floyd, Lake, Marion, and Vanderburgh. Indiana became the 23rd state with commercial courts. The dockets are limited to cases involving formation, governance or dissolution of businesses; rights and obligations of owners, shareholders, directors, partners or members; trade secret and non-compete agreements; and other contractual disputes spelled out in the rule. So far, the majority of cases have been filed in Marion County. The pilot is scheduled to last for three years.
• Another pilot project kicked off this year with the Indiana Supreme Court adopting Criminal Rule 26 and making it effective for courts in Allen, Bartholomew, Hamilton, Hendricks, Jefferson, Monroe, St. Joseph, Starke and Tipton counties. The rule encourages courts to use evidence-based risk assessment tools to determine whether an arrestee should be granted pretrial release. The rule will be expanded to all courts Jan. 1, 2018.
• But just a month after the rule was enacted, the Indiana Prosecuting Attorneys Council unanimously came out against it, asking the justices to reconsider. The organization issued a statement Oct. 24 asking the rule be withdrawn until more research can be done, saying it’s seen no credible data or research that suggests a systemic pretrial detention “problem” exists in Indiana.
• Former Henry Circuit Judge Mary Willis became the state judiciary’s first chief administrative officer July 23. Her role was created in response to a new organizational structure for state court administration. “There are 200 people who would like the Supreme Court justices’ attention to answer questions, so there needs to be a system to make decisions and bring to them the policy decisions that they need to make, and then a structure to implement them,” Willis said. The court is working with the National Center for State Courts to develop a governance structure for Indiana’s court administration, and Willis said other states are watching.
• Willis’ position was created in part in response to the retirement of Lilia Judson, who worked for 40 years in Supreme Court Division of State Court Administration. She retired in the fall and the Supreme Court held a retirement ceremony for her in Oct. 12, honoring her work for the judiciary.
• The switch to e-filing in Indiana state courts continued, with 20 counties requiring e-filing and eight counties making it available. E-filing became mandatory in Indiana appellate courts July 1. Beginning Jan. 1, initial filings will be mandatory in Hamilton County, which made the switch to mandatory e-filing for subsequent filings July 1.
• Local Rule 87 in the Southern District of Indiana took effect Sept. 1, which allows judges to assign pro bono cases to attorneys who practice frequently in federal jurisdiction. The new rule was enacted in response to the many pro se cases coming into the court, many involving prisoners, and a series of remands from the 7th Circuit Court of Appeals for not appointing counsel. Two pools of attorneys were created — volunteer and obligatory. If an attorney does not volunteer to take a case, then a judge can pick someone from the obligatory panel. The obligatory panel changes each quarter. Much like jury duty, attorneys in that panel who are not given a case will be absolved from serving in the obligatory panels created during the next three quarters. Since the adoption of the rule, there were three appointments under Rule 87 as of early December.
The Indiana Supreme Court held in October that a woman whose party guest died at her home after a drunken brawl could be considered negligent because she did not seek care for the guest, but not on the basis of supplying alcohol to the men involved in the fight.
Paul Michalik died while at a party at the home of Angela Martin and her now-husband Brian Brothers. Brothers, Michalik and Michalik’s significant other, Jerry Chambers, had all been drinking and got into a fight. Martin saw Michalik lying motionless on the floor, but did not call police because he was still breathing. Police arrived after Michalik was found dead in the yard.
Chambers and Michalik’s estate sued, alleging Martin was liable because she had negligently caused Michalik’s injuries and caused Chambers and Michalik’s injuries by furnishing alcohol to Brothers, who was intoxicated.
The justices unanimously found there was a question of fact as to whether Martin’s inaction after finding Michalik on the floor breached her duty to protect him from the foreseeable exacerbation of the injuries he sustained in her home.
The case is F. John Rogers, as personal representative of Paul Michalik, deceased, and R. David Boyer, trustee of the bankruptcy estate of Jerry Lee Chambers, v. Angela Martin and Brian Paul Brothers, 02S05-1603-CT-114.
The Indiana Supreme Court in March held in a split decision that the Indiana Product Liability Statute and its 10-year statute of repose does not apply to cases where the plaintiffs have had protracted exposure to inherently dangerous foreign substances, such as asbestos.
The majority overturned its 2003 decision in Allied Signal v. Ott, 785 N.E.2d 1068 (Ind. 2003), claiming new ground that was missed at the trial court level, but Chief Justice Loretta Rush and Justice Mark Massa were not supportive of the decision. They claimed stare decisis meant Ott should not have been overturned. The majority claimed the new information meant they were not in violation of stare decisis doctrine. The majority also said the IPLA’s Section 2 contained a constitutionally impermissible distinction between plaintiffs injured by those who mined and sold raw asbestos and plaintiffs who were injured by defendants not in that category.
The decision came in a case combining three appeals in which plaintiffs brought lawsuits alleging damages from asbestos-related diseases. The Supreme Court declined to rehear the case, with Rush and Massa again dissenting.
The cases are Larry Myers and Loa Myers v. Crouse-Hinds Division of Cooper Industries Inc. and Lorillard Tobacco Company and Hollingsworth & Vose, 49S00-1502-MI-119; General Electric Company. V. Mary R. Geyman, on her own behalf and on behalf of the state of Raymond Geyman, 49S00-1501-MI-35; and Owens-Illinois Inc. v. Mary R. Geyman, on her own behalf and on behalf of the state of Raymond Geyman, 49S00-1501-MI-36.
In October, the Supreme Court extended the admission of evidence of reduced health care payments in personal injury suits to include reimbursements from government payers. Justices ruled in a closely watched case that drew amicus briefs from Defense Trial Counsel of Indiana, Indiana Trial Lawyers Association, Indiana Health Care Association, American Tort Reform Association and Indiana Legal Foundation. The ruling extends the effect of Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009), which allowed evidence of discounted payments to health care providers made under private insurance.
The trial court ruled in a personal injury suit that the jury wouldn’t hear evidence of reduced payments from the Healthy Indiana Plan toward the medical costs of a woman injured in a car accident.
Slaughter wrote that the trial court misinterpreted Stanley by construing it only to apply to discounts negotiated at arm’s length between a provider and an insurer. The majority also held that the court abused its discretion by excluding the reduced HIP reimbursements under Evidence Rule 403.
Justices Robert Rucker and Steven David concurred in a separate opinion authored by Rucker, in which he expressed his continued disagreement with the ruling in Stanley.
The case is Mary K. Patchett v. Ashley N. Lee, 29S04-1610-CT-549.
The Indiana Court of Appeals tossed a woman’s feticide conviction in July, finding the statute doesn’t apply to women who cause their own abortions. Purvi Patel was charged with and convicted of Class A felony neglect of a dependent and Class B felony feticide after she took drugs she ordered from Hong Kong to end her pregnancy. She gave birth to a baby believed to be between 25-30 weeks but put the baby in a bag and put him in a trash bin behind her work.
She was sentenced to 20 years in prison last year. Her case made international headlines and led to many groups joining as amicus parties.
Based on language used in I.C. 16-34-2, the Legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions, Judge Terry Crone wrote.
The appeals court reversed the feticide conviction and ordered her neglect conviction as a Class A felony vacated and entered as a Class D felony. As a result, Patel left prison in September after the trial judge sentenced her to 18 months and ordered her released immediately as she had already served more than 18 months in prison.
The case is Purvi Patel v. State of Indiana, 71A04-1504-CR-166.
The Indiana Court of Appeals ruled in March that an injured undocumented worker’s immigration status is relevant to his lawsuit seeking lost wages. Subcontractor employee Noe Escamilla was born in Mexico and was working as an undocumented worker when he was injured in 2010. He sued general contractor Shiel Sexton for medical expenses, lost wages and future income. He sought to prevent introduction of his immigration status and Shiel Sexton wanted talk of future wages to be based on what Escamilla could earn in Mexico, not the U.S.
The trial court ruled in favor of Shiel Sexton on the issue, as did the Court of Appeals. The majority said his immigration status is necessary evidence to determine how much Escamilla should receive. Escamilla, the Indiana Trial Lawyers Association and dissenting Judge John Baker all argued that evidence of Escamilla’s status is prejudicial.
The Indiana Supreme Court granted transfer and heard arguments Nov. 22. The case is Noe Escamilla v. Shiel Sexton Company, Inc., 54S01-1610-CT-00546.
The National Center for State Courts surveyed stakeholders regarding the Indiana Tax Court’s resources, caseload, performance and operations and released its findings in May. “A majority of respondents from all practitioner types and levels of experience believe that the Tax Court does not decide matters promptly and without unnecessary delay,” the report says. “Respondents also believe that the Tax Court does not clearly communicate the process and timeline for disposition of cases nor does it explain any delays.”
Chief Justice Loretta Rush said the 947 days the report found was the median time from case filing to decision for tax cases for the years 2011-14 was “too long for someone to wait.”
The court has put in place many of the report’s recommendations to improve efficiency, said Tax Court Judge Martha Wentworth, who became judge in 2011. A task force asked to look at the Tax Court recommended several changes, including establishing standards for court performance and case management, resolving some routine cases without a hearing, and granting fewer continuances.
Wentworth noted that a lot of the “ugly numbers” found in the report are due to the inherent differences in tax law and other civil law.
The study found that the 191 cases pending in 2014 was more than twice the number of pending cases at the end of 2010. The median days from oral argument to decision went from 90 days for the years of 2006-10 to 652 days for the years 2011-14.
“I don’t think this just happened overnight. It was sort of gradual,” Rush said of the increasing delays. “Having a Tax Court, having that body of law is important. It’s important cases be timely processed through the court, and the Supreme Court is committed to working with the Tax Court.”
Report: Indiana indigent defense system failing
Indiana is failing to equally provide constitutionally guaranteed effective counsel to indigent people accused of misdemeanor, felony and juvenile offenses, according to a report released in October by the Boston-based Sixth Amendment Center. In some counties, poor people facing criminal charges are encouraged to negotiate directly with prosecutors before being appointed counsel.
The report highlights Indiana’s patchwork approach to providing representation to indigent criminal defendants, noting differences in how indigency is determined from county to county.
“Indiana counties may, if they so choose, receive a partial reimbursement from the state for their indigent defense felony and delinquency costs in exchange for meeting standards set by the Indiana Public Defender Commission. But counties are also free to forgo state money and avoid state oversight completely. Thirty-seven of Indiana’s 92 counties ... choose not to participate in the state’s reimbursement program. Indiana has no oversight over any indigent defense cases in these counties,” the Sixth Amendment Center statement said. It also said the IPDC has just two employees to monitor the work of defenders in the program.
The report looked at public defense in eight sample counties — Blackford, Elkhart, Lake, Lawrence, Marion, Montgomery, Scott and Warrick. The counties use a variety of means of providing indigent defense.
Norman Lefstein, a professor and dean emeritus at Indiana University Robert H. McKinney School of Law, wasn’t surprised by the report’s findings. He chaired Indiana’s Public Defender Commission for 17 years and has studied, written and lectured extensively on public defense in Indiana and nationally. While he agreed with the report’s findings, he said they “stopped short of saying what really needs to be done, and that’s a statewide public defender system.”
The report doesn’t advocate wholesale overhaul of public defense but recommends increasing funding, standards, training and oversight for public defenders.
Attorneys Michael Sutherlin and David Frank filed a petition in December with the Indiana Supreme Court calling for rulemaking or other intervention to create a statewide public defender system.
Senators look at immigration, take no action
The Indiana Senate Select Committee on Immigration Issues — created by Senate President Pro Tem David Long, R-Fort Wayne, and chaired by Sen. Mike Delph, R-Carmel — held five hearings beginning in April, examining the economic and public safety issues related to immigration. It created a 775-page report that Delph said he would send to Indiana’s congressional delegation as well as to Vice President-elect Mike Pence, but the committee proposed no recommendations or legislation.
The committee began its work on a controversial note. One of the panelists who testified was Kansas Secretary of State Kris Kobach, an anti-immigration hard-liner who is credited with drafting tough immigration laws in Alabama and Arizona and developing President-elect Donald Trump’s plan to have Mexico pay for the construction of a wall along the Southern border.
Largely, though, much of the testimony came from a mix of local attorneys, law enforcement officials and business representatives. Members of the committee echoed one another by saying the states and municipalities are directly impacted by illegal immigration but they have little recourse for dealing with any problems because the matter is solely under the purview of Washington, D.C.
Sen. Phil Boots, R-Crawfordsville, was skeptical the incoming Trump administration would be able to move forward on immigration reform and said he wished the federal government would pass the authority down to the states and let each state address the issues as it sees fit.•