Indiana Court Times 19.3

Issue 19.3 MAY/JUN 2010

In regards to court records, what is expungement? When is it authorized? How is it accomplished? Black’s Law Dictionary tells us to expunge is “to de-stroy or obliterate; blot out; efface designedly; strike out wholly.”

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

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

The arrest records expungement statute expressly provides that the granting of an expungement under I.C. 35-38-5 does not require “any change or al-teration in any record (such as a police blotter entry) made at the time of the arrest or in the record of any court in which the criminal charges were filed.”3 At the same time, the statute does not specifically prohibit the court from or-dering a change or alteration in a court record, but the court might wish to con-sider whether to order the court records removed from public access under the procedures set forth in Administrative Rule 9(H) or sealed under I.C.5-14-3-

5.5. Therefore, it is extremely important that the expungement order clearly state what records are to be expunged.

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

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

If court records pertaining to a case are to be expunged, then all the records pertaining to the case, including the Chronological Case Summary (CCS),

1 Indiana State Police v. Arnold, 906 N.E.2d 167 (Ind. 2009) (Statute provides exclusive means for expunging arrest records when either no charges are filed or charges are dropped.)

2 State v. Bergman, 558 N.E.2 1111, 1113 (Ind. Ct. App. 1990); Blake v. State, 860 N.E.2d 625 (Ind. Ct. App. 2007)(Court notes that there is no statute that sets out the requirements or proce-dure for expunging records following a gubernatorial pardon.)

3 I.C. 35-38-5-3.

BY JAMes WAlker | DIrector of trIAl coUrt MANAgeMeNt, stAte coUrt ADMINIstrAtIoN

2 MAY/JUN 2010 courttimes

CONTENTS

How to handle expungements ............................. 2

Bits & Bytes Latest version of Odyssey packed with features designed for judges and clerks .................................... 4

Different processes govern special judge appointments for criminal and civil cases .............. 5

Highlights from the 2010 Indiana General Assembly ....................... 8

siDeBAR Hon. Joseph D. Trout ................. 10

Marshall County courts launch state-of-the-art video teleconferencing technology .... 12

Announcement of Spanish-language video on initial hearings in juvenile delinquency cases .. 13

BRenDA's BAiliwick Performance appraisals: to do or not to do? ................................... 14

sPOtliGHt Appellate judges honored ......... 15

Workplace Spanish classes still available..................................... 15

will be destroyed under the terms of the expungement order. To replace the original CCS, a replacement CCS should be created containing only the case number, a statement that the case had been expunged, and the date the expungement order was entered. To replace all the orders concerning the expunged case in the RJO, the original orders should be removed and replace-ment pages should be inserted contain-ing only the same information as noted on the replacement CCS.

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

expungement of Arrest Records

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

The petition is filed in the court in which the criminal charges were filed, or if no charges were filed, then in a court with criminal jurisdiction in the county where the arrest occurred. The Division instructs that the petition should be filed under the case number of the original criminal case, but if a case number had not been assigned, then the petition should be assigned an MC case type case number. The peti-tion must be served on the law enforce-

ment agency that made the arrest and on the Indiana State Police central records repository.

When the law enforcement agency receives the petition, it must notify the court of any agency to which records re-lated to the arrest were forwarded. The clerk is required to immediately send a copy of the petition to each of those agencies. Any agency wishing to oppose the expungement has 30 days from the date of filing of the petition to notify the court of its opposition and serve the petitioner with a copy. The court may

either summarily grant or deny the peti-tion or may set the matter for hearing.

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

expungement of Juvenile Records

Records created as a result of an allega-tion that a child is a delinquent child or a child in need of services may be expunged under I.C. 31-39-8-1. The juvenile court is authorized to remove

from the court’s files, the files of any law enforcement agency, and the files of any other person who has provided services to a child under court order, those records pertaining to the person’s involvement in juvenile court proceed-ings. If the court grants the expunge-ment, the statute directs that the court order each law enforcement agency and each person who provided treatment to the child to send that person’s record to the court.6 The records then may either be destroyed or given to the person to whom the record pertains.7

expungement of Records As Result of Pardon

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

4 I.C. 35-38-5-2

5 I.C. 35-38-5-3

6 I.C. 31-39-8-5

7 I.C. 31-39-8-6

Cover Photo. Sascha Burkard. courttimes MAY/JUN 2010 3


Courts that use the Odyssey case man-agement system went to work on Mon-day, April 19 to find the software chock full of new features, many of which were requested by Court and Clerk users. Since the system was initially implemented in December 2007, JTAC and Tyler Technologies have deployed several updates to the Odyssey software. These updates, which you might hear us call “new releases,” include new functionality in all areas of the appli-cation including reporting, new bulk processing features, and calendaring. Since Odyssey is used in several other Court systems throughout the country, Indiana has the advantage of using new features built by others. Changes to Odyssey in the latest release include:

Chronological Case Summary (CCS). The CCS displayed in Odyssey will have a larger text size and the case caption information will display on all pages. Both of these changes will increase the readability of the CCS. Additional infor-mation not previously displayed on the CCS will now appear, including speed amounts, hearing comments, split bond information, and information added on the SERVICE TAB. The SERVICE TAB information will be helpful in complex litigation cases where numerous parties and documents are being served.

Party Records. JTAC now has the ability to lock party records. Odyssey is a party based system. If a person has multiple cases in multiple counties, all cases will be associated to that person’s party record. For example, the State of Indiana record has been locked so it cannot be changed by any Odyssey user. To request that a record be locked, contact the JTAC Help Desk at [email protected] or 1-888-ASK-JTAC.

Event Tab. The Event Tab in case manager is the tab that is used to enter all the events that occur in each case. It has been updated to allow users to sort and filter the table of events. Tyler Technologies built this functionality to use in complex cases for the courts in Las Vegas, and it is now available to Indiana courts.

Quarterly Case Status Report (QCSR). Two changes have been made to reduce the need for manual entries. Previously, when a court received a case venued from another county it included the designation NEW FILING EVENT, which would have to be manually deleted. Now, users simply add the VENUED IN

EVENT, and the NEW FILING EVENT will be automatically deleted. And, if a case is created in error, users can add a CASE

CREATED IN ERROR EVENT (CCIE), and the case will not be counted on the QCSR report.

Reports. Several new reports are now available in the CASE MANAGEMENT,

COURT ADMINISTRATION, and FINANCIAL

ACTIVITY section of the application. These reports were not created by

Indiana, but Tyler made them available for our use. Examples of new reports include CALENDAR SUMMARY reporting, ATTORNEY CASE reporting, and TRUST reports.

Another feature, Calendar Sync—coming soon to users around the state—is currently being piloted by Judge William J. Hughes, Hamilton County Superior Court #3 and Judge Paul A. Felix, Hamilton County Circuit Court. Calendar Sync allows users to create a connection between the docket in Odys-sey and the Microsoft Outlook calendar on their personal computers. Once that connection is made, it’s then pos-sible to access basic information about scheduled hearings and trials from a handheld device or smart phone, like a Blackberry. JTAC staff members are working to iron out the kinks with feedback from Judge Hughes and Judge Felix so this feature will be ready soon to roll out to additional users.

Traffic Processes. Odyssey now re-moves all financial assessments against a defendant when all charges are dis-missed in a case. In addition, a Court or Clerk may request two additional features:

1 When a deferral case has been paid in full, Odyssey will automatically add the statistical closure and change the case status.

2 When a traffic case has been paid in full, Odyssey will automatically add a statistical closure of VIOLATIONS

BUREAU, DISPOSITION OF ADMISSION and change the case status.

JTAC will be working with judges and clerks in the coming weeks to imple-ment these new features.

Latest version of Odyssey packed with features designed for judges and clerks

BY DoNNA eDgAr | oDYsseY ProJect MANAger, stAte coUrt ADMINIstrAtIoNBITS & BYTES

Photo. Alan Crosthwaite.

BY lIlIA g. JUDsoN | execUtIve DIrector, stAte coUrt ADMINIstrAtIoNAND toM cArUsIllo | DIrector of trIAl coUrt servIces, stAte coUrt ADMINIstrAtIoN

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courttimes MAY/JUN 2010 5

Civil CasesThe primary language governing the special judge appointment process in civil cases is found in Trial Rule 79. That rule provides several steps for se-lecting a special judge but also provides that the courts of record in each county must have local rules for the selection of special judges when selection under T.R. 79 fails to produce a special judge.

Appointment of a special judge in a civil case becomes necessary in one of two ways: (1) the regular judge grants a motion for a change of judge under Trial Rule 76, or (2) the regular judge disqualifies or recuses from the case under Trial Rule 79(C). The method by which the regular judge steps down from the case governs how the special judge is

Different Processes Govern Special Judge Appointments for Criminal and Civil Cases

ndiana rules of procedure and case law allow for the appointment of special judges under certain circumstances. The process for selecting judges can sometimes be confusing because it varies depending on the type of case and the reason a special judge is needed. In civil cases, different steps must be followed depending on whether the regular judge granted a motion for a change of judge or because the regular judge disqualified and recused from the case. The rules provide an entirely different process for criminal, post conviction relief, infraction, and ordinance violation cases. This article is intended to summarize the applicable rules and to highlight the differences in the appointment processes. I


appointed. At the outset, it’s important to distinguish between an appointment strictly under TR. 79, which a judge is not required to accept, and an appoint-ment under a local rule, which is auto-matic and which a judge cannot refuse.

AAfter a Motion for A Change of Judge is Granted

When a motion for a change of judge has been granted, the court should first determine if the parties have agreed on a special judge, as provided in Trial Rule 79(D). Failing that, the court should determine whether the parties have agreed to permit the trial court judge to name a special judge, as provided in Trial Rule 79(E). Such an agreement must be in writing, and the selected special judge has 15 days to decide whether to accept the case. In each of these situations the judge se-lected does not have to take the case. If the above two options do not produce a special judge willing to take the case, then the trial judge must name a panel of three judges from which each of the parties strikes a name. The trial judge then appoints the person whose name remains on the list as the special judge. As in the first two instances, the judge remaining on the panel is appointed as special judge but he or she does not have to take the case. The appointed special judge must take an affirmative step and file an acceptance in order to assume jurisdiction of the case.

If after going through the three steps set out in Trial Rules 79(D), (E) and (F) (an agreement by the parties on a special judge, an agreement for the trial judge to name a special judge and the naming of one panel), a special judge still has not accepted jurisdiction, the selection of a special judge must proceed under the local rule. It is very important to note that there can be only one striking panel appointed under T.R. 79, and the judge remaining on this panel has the

option to decline a case. Some older lo-cal rules also call for an appointment by a panel. This procedure is not appropri-ate and these rules should be amended. However, until these existing rules are amended, a judge who is selected from a panel under a local rule must take the case and cannot decline appointment. Trial Rule 79(H) provides that:

A person appointed to serve as special judge under a local rule must accept jurisdiction in the case unless the ap-pointed special judge is disqualified pursuant to the Code of Judicial Conduct, ineligible for service under this rule, or excused from service by the Indi-ana Supreme Court. Trial Rule 79(H). The order of appointment under the local rule shall constitute acceptance. (Emphasis added).

Thus, a person selected as special judge pursuant to a local rule does not have the option to decline to take the case, and there is no affirmative step that he or she needs to take. In order not to have to take a case, a special judge ap-pointed under a local rule must either establish disqualification under the Code of Judicial Conduct, be ineligible under Trial Rule 79(J), or be excused by the Supreme Court.

It’s also important to note that having been a member of a panel for selec-tion does not disqualify a person from

being a special judge. Trial Rule 79(J) provides that any regular judge of a cir-cuit, superior or probate court, a senior judge or a magistrate, including a per-son who has been a member of a panel for selection, is eligible for appointment as a special judge. But if the judge, senior judge (who is appointed by the Supreme Court to serve in the court where he or she will be senior judge) or magistrate has previously served as judge or special judge in the case, is disqualified by interest or relationship, or is excused by the Supreme Court, the judge is not eligible to serve. However, when a judge grants a change of venue from the county, that judge is eligible to serve as a special judge in the new county even if the judge has already served in the county from which the change of venue was taken, but only if the judge granting the change of venue, the receiving judge, and all the parties to the case agree to such appointment.

The local rules for selection of special judges must provide for appointment of eligible special judges who are: (1) with-in the county’s administrative district; or (2) from a contiguous county outside the administrative district and have agreed to serve as a special judge. This latter provision is new, becoming effec-tive January 1, 2010, and permits the naming of special judges from counties

CONTINUED FROM PREVIOUS PAGE Trial Rule 76 Change of Judge

Trial Rule 79 Disqualification/Recusal

1 T.R. 79(D): Selection by agreement of the parties. The selected judge has 15 days to decide whether to accept the case. T.R. 79(G).

1 T.R. 79(D): Selection by agreement of the parties. The selected judge has 15 days to decide whether to accept the case. T.R. 79(G).

2 T.R. 79(E): With the agreement of the parties, selection by the trial court judge. The selected judge has 15 days to decide whether to accept the case. T.R. 79(G).

2 T.R. 79(E): With the agreement of the parties, selection by the trial court judge. The selected judge has 15 days to decide whether to accept the case. T.R. 79(G).

3 T.R. 79(F): Naming of a striking panel by the trial court judge. The selected judge has 15 days to decide whether to accept the case. T.R. 79(G).

3 T.R. 79(F): Striking panels are not used is Disqualification/Recusal cases.

4 T.R. 79(H): In the event a judge is not se-lected under (D), (E) or (F), then a selection is made pursuant to local rule. The se-lected judge must accept the case unless disqualified, ineligible or excused.

4 T.R. 79(H): In the event a judge is not se-lected under (D) or (E), then a selection is made pursuant to local rule. The selected judge must accept the case unless dis-qualified, ineligible or excused.

5 If no judge is eligible to serve under the local rule selection process or the particu-lar circumstance warrant, then the matter may be certified to the Supreme Court for selection.

5 If no judge is eligible to serve under the lo-cal rule selection process or the particular circumstance warrant, then the matter may be certified to the Supreme Court for selection.


outside the administrative district that are contiguous to the county needing the special judge.

BDisqualification/ Recusal

Prior to July 1, 1995, upon the recusal of a judge, a special judge was selected either by certifying the case to the Supreme Court or by the recusing judge naming a three member panel from which the parties struck. Since that time, the selection process has changed, and a special judge can be selected only by agreement of the parties, agreement of the parties for the recusing judge to name a special judge, or pursuant to local rule. Although the authority of the recusing judge to name a panel has long since been eliminated, some judges are caught unaware. This is the major difference in how special judges are selected when the trial court judge has recused or is disqualified as opposed to when the judge grants a motion for change of judge. In cases where there has been a disqualification or recusal, it is never appropriate to name a striking panel. In disqualification and recusal cases selection of a special judge is first attempted using the procedures in Trial Rules 79(D) and (E). Should these fail, the next step is under Trial Rule 79(H); Trial Rule 79(F) is not used. With this important exception, the selection pro-cess in the same as in change of judge cases.

In either change of judge cases or dis-qualification/recusal cases, a case should only be certified to the Supreme Court for the appointment of a special judge when all of the procedures outlined above have been attempted, or the par-ticular circumstances of the case warrant.

Criminal CasesSpecial judge appointments in criminal cases follow an entirely different set of procedures. Criminal Rules 2.2 and 13 combine to provide the process for se-lecting special judges in criminal cases.

Criminal Rule 2.2 calls for the promul-gation of local rules that provide for the non-discretionary assignment of felony and misdemeanor cases and provisions for the continued assignment of a judge in the event of dismissal and for the reassignment of the case in the event a change of judge is granted or the judge disqualifies or recuses from the case.

Criminal Rule 13 sets out how criminal cases shall be reassigned and special judges selected. In counties with four of more judges who receive assign-ment of felony or misdemeanor cases, upon the granting of a change of judge, disqualification or recusal of the trial court judge, the special judge is selected in the same manner as the initial judge was assigned under Criminal Rule 2.2.

In counties with fewer than four judges, the local rule must contain an alter-native list of judges from contiguous counties and senior judges who are assigned to the court that can be named as special judges.

It is important to note that, under C.R. 2.2 magistrates, commissioners and referees are not listed as being eligible to serve as special judges in criminal cases. Further, the rules governing the selec-tion of special judges in criminal cases do not allow selection by agreement of the parties. In addition, the rules do not allow the use of striking panels.

If selection of a special judge pursuant to local rule fails or the particular cir-cumstance warrant, only then should a criminal case be certified to the Supreme Court for appointment of a special judge. As with civil cases, a judge who has served in a case is not eligible for appointment as special judge, except that whenever a court has granted a change of venue to another county, the judge granting the change may be appointed as special judge for the case in the receiving county if the judge granting the change, receiving the change and all the parties to the case agree to such appointment.

Continuation of Service A special judge serving in any cases retains jurisdiction of the case through judgment and post judgment matters, including proceeding to enforce judg-ment or modify or revoke orders, unless (1) a specific statute or rule provides to the contrary or (2) the special judge is unavailable by reason of death, sick-ness, absence, or unwillingness to serve. When a special judge ceases to act for any reason except the granting of a mo-tion for change of judge, different rules again apply to civil and criminal cases. In a civil case, the regular judge of the court where the case is pending shall assume jurisdiction, provided that the judge has not previously served in the case and is not otherwise ineligible. If the regular judge cannot take the case, the parties can agree on a special judge and, if that fails, selection must proceed under the local rule. If a special judge grants a motion for a change of judge, then the parties can agree on a successor special judge, agree for the special judge of the case to appoint a successor, go through the striking panel process, and, failing that, proceed under the local rule.

In a criminal case, if the special judge ceases to act for any reason, further reas-signment and selection of a successor special judge is accomplished pursuant to a local rule.

ConclusionThe selection of a special judge in either civil or criminal cases can be easily achieved by carefully following the procedures set forth in the applicable rules. However, should you still be uncertain on how to proceed, do not hesitate to contact State Court Administration for assistance by contacting:

Tom Carusillo at 317-232-2542 or by email at [email protected]

or Jim Maguire at 317-233-3018 or by email at [email protected].

The Indiana Judicial Conference has compiled an excellent and extensive digest of all legislation passed by the 2010 Indiana General Assembly. The legislative digest of these laws can be found at www.in.gov/legislative/reports/2010/DIGEST_OF_ENACTMENTS.PDF. If you would like to see the entire text of any law, as well as any other legislative action, you may access this information at www.in.gov/apps/lsa/session/billwatch/billinfo. This article highlights those new laws that directly impact our courts and clerks in the administration of their duties.

CIVIL LAW

Courts duty to notify the Indiana Attorney generalThis law requires courts, both trial and appellate, to certify to the attorney general if the constitutionality of a state statute, ordinance, or franchise affecting the public interest has been called into question and to permit the attorney general to intervene and present arguments and evidence that relate to the question of constitutionality. Authorizes the attorney general’s intervention in cases in which a party bases a claim or defense on a statute or executive order administered by a state officer or agency. It also provides that the attorney general may file an amicus brief in any matter pending before “any state court” without consent of the parties or leave of the court. S.E.A. 394, P.L. 40-2010

Uniform enforcement of foreign judgments actThis legislation revises IC 34-54-11, the Uniform Enforcement of Foreign Judgments Act. It adds a new requirement that the clerk must “send notice of the filing of the foreign judgment” to the judgment debtor. It also provides that the judgment creditor “shall mail a notice of the filing of the judgment to the judgment debtor; and file proof of mailing with the clerk.” The legislation does not specify the type of notice to be sent by the clerk or the type of mailing to be used by the judgment creditor, but it does provide that “lack of mailing notice by the clerk does not affect the enforcement of proceedings if proof of mailing by the judgment creditor has been filed.” H.E.A. 1062, P.L. 63-2010

CRIMINAL LAW

Criminal Law and Sentencing Policy Study CommitteeThis law establishes the new Criminal Law and Sentencing Policy Study Committee and expands the responsibilities of the Committee to include a broad spectrum of criminal law issues.

Committee membership will differ from present Sentencing Policy Study Committee, including a change to a single judi-cial member appointed by the Chief Justice, and the addition of a probation member appointed by the Probation Officers’ Professional Association. S.E.A. 81, P.L. 100-2010

Bail law changes and court duty to include cost of incarceration in sentencing ordersChanges are made to the Indiana bail law concerning: (1) notices to sureties and bond agents; and (2) failure to appear. The legislative council is urged to assign to the Sentencing Policy Study Committee the issue of whether courts should include the costs of incarceration in sentencing orders, which is set to expire on June 30, 2012. S.E.A. 340, P.L. 105-2010

Court orders in domestic battery casesCourts may require a person convicted of domestic battery to complete a certified batterer's intervention program, and may require that a person charged with domestic violence wear a GPS tracking device as a condition of bail. H.E.A. 1234, P.L. 94-2010

FOR COURTS AND CLERKS

Highlights from the 2010 Indiana General Assembly


FAMILY LAW

Makes a number of child support changes, including the following:A court must immediately withhold child support in all cases, rather than only Title IV-D cases, unless the parties submit a written agreement in the record which meets certain require-ments and is approved by the court. It establishes the infor-mation to be included in an income withholding order.

A parent must supply the following information to the Clerk for entry into ISETS: (1) mailing address, (2) telephone numbers, (3) date of birth, (4) driver’s license number, and (5) social security number. The address does not have to be sup-plied in the case of a participant in the address confidentiality program under IC 5-26.5.

A party affected by a support order must notify the Clerk and the State Central Collection Unit of any change of address not more than 15 days after the party’s address is changed. When a support order is issued or modified, the parties shall inform the child support bureau of the receipt of any AFDC, TANF and the social security number of a child affected by the order.

A court or administrative agency in any child support enforce-ment action must deem state due process met for a party if a diligent effort was made to ascertain the location of the party in child support cases. Diligent effort in this case means mailing written notice to the party at the most recent residential or employer address filed with the clerk or state central collec-tion unit.

A court may not consider a parent’s absence or relocation due to active duty service as a factor in determining custody or permanently modifying a child custody order. If a court tem-porarily modifies a custody order due to active duty service, the temporary modification order terminates automatically not later than 10 days after the date the parent notifies the temporary custodian in writing the parent has returned.

A court must order the parent(s) in a support modification proceeding to provide medical support for the child if a Title IV-D agency petitions for the modification and the coverage is available to the parent at a reasonable cost.

Withheld income must be distributed pro rata among the persons entitled to receive the support and in manner that will not result in one of the current child support obligations not being honored. S.E.A. 163, P.L. 80-2010

JUDICIAL ADMINISTRATION

MagistratesThe Judicial Nominating Commission may certify as Senior Judges magistrates who meet certain criteria. S.E.A. 36, P.L. 3-2010

Interlocal agreements concerning courtsA city or town, without a city or town court, may enter into an interlocal agreement with a city or town, in the same judicial circuit, that has established such a court to hear and dispose of ordinance violations. A city or town that has not estab-lished an ordinance violations bureau may also enter into an interlocal agreement with a municipal corporation located in the same judicial circuit that has established an ordinance violations bureau to hear and dispose of ordinance violations. The sums collected under these interlocal agreements shall be accounted for and paid as provided in the interlocal agree-ment. H.E.A. 1186, P.L. 55-2010

Photo. Lina Rizkala.

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This is The ninTh of our CourT Times arTiCles ThaT highlighT up Close and personal a member of The indiana

JudiCiary. Clay CounTy CirCuiT CourT Judge Joseph d. TrouT is our Judge feaTured in This issue. Judge TrouT was

eleCTed as CirCuiT CourT Judge in 2007. he graduaTed from indiana sTaTe universiTy in 1978, and reCeived his

doCTor of JurisprudenCe from indiana universiTy-indianapolis in 1983. he served as depuTy proseCuTor in vigo

CounTy from 1984 To 1989 and was The brazil CiTy aTTorney from 2004 To 2006.

Hon. Joseph D. TroutBY JAMes f. MAgUIre | stAff AttorNeY, stAte coUrt ADMINIstrAtIoN

WHaT Do you like mosT anD leasT abouT being a Trial courT JuDge?

In Clay County we have a long history of excellent trial court judges. Judge Robert Neal, who was later appointed to the Court of Appeals, and Ernest Yelton who presided in the Clay Circuit Court for twenty-five years, have set the standard pretty high. These Judges did not shy away from serious or high profile cases and presided over numerous jury trials. I guess if I had to say what I liked the most about being a trial court judge it would be presiding over jury trials. As a lawyer of twenty-three years prior to taking the bench, my law practice was primarily in the area of trial practice/litigation. Because of that experience, I feel comfortable and confident in handling civil and criminal jury trials. For me, having a jury trial as a judge is a lot less stressful than I remember it being when I was a practicing attorney.

Probably my least favorite part about the responsibility of being a judge is the “Protective Order Statute.” Don’t get me wrong, I feel I am very helpful and understanding as a judge in regard to pro se litigation; however, at least in our county, the unfettered filing for protective orders requesting all sorts of relief for all sorts of reasons has become quite burdensome. In my humble opinion, this statute needs more work.

WHaT Was your maJor aT inDiana sTaTe universiTy anD WHy DiD you DeciDe To sTuDy laW?

I graduated from Indiana State University in 1979 (the year Larry Bird and the Sycamores were National Runners Up in basketball) with a major in Business Administration and a minor in Management. I had always wanted to practice law. I think it was my mother who convinced me in high school that I needed to be an attorney. Perhaps she had fallen in love with Perry Mason, but in any event, I never wavered from her choice and my goal. I chose business because, if for some reason my dream of becoming a practicing attorney did not come true, I wasn’t sure what I would do with a Political Science Degree.

Everything turned out for the best and I graduated from Indi-ana University School of Law, Indianapolis in 1983.

WHaT WoulD you Do if you Were noT a JuDge?

The easy answer would be that I would still be practicing law. I must confess, however, that through the years I have had thoughts of what it would be like to be an architect or a builder. I would bet that there is a lot of job satisfaction in de-signing a beautiful building or structure and seeing it through to completion.

WHo are THe people you aDmire THe mosT?

Although I dearly love my wife, if I had to identify the people I admire the most, I would have to say my parents and my children. I come from a very large family in Clay County, Indiana on both my mother and my father’s side. My parents were excellent role models who encouraged and supported me in every phase of my life. I would also have to say that I admire my three children. They have turned out to be exactly what my wife Nancy and I had hoped they would become. They were great students. They are well-rounded socially. They are of a kind and caring nature and they are a positive influence to their friends and in the community. We are so proud of them.

WHaT are your Hobbies or favoriTe leisure acTiviTies?

My father played minor league professional baseball and ac-cordingly my brother and I attempted to follow in his foot-steps. We both played high school and college baseball as well as high school basketball. After college for more than twenty years I participated in team sports such as slow-pitch softball; however, now at age 54, team sports are out of the question.

After college, I joined the family Monday night bowling team and bowling has been my winter sport of choice. Having now bowled for more than thirty years, I have continued to get better at it. I have had two 300 games; two 299 games; a 217 average this year; and currently have the highest three-game series ever bowled in Clay County in a sanctioned league at 836 pins. This latter feat prompted a picture and article in the local newspaper which is kind of cool for a judge.

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In the summer, I put the bowling ball away and enjoy the occa-sional round of golf as well as bass, bluegill, and catfish fishing with my two sons. As for family leisure activities, my wife and I, our children, and our grandchildren do enjoy the occasional family vacation. My wife says it’s not a vacation unless it involves an ocean and a beach so most of our summer vacation activities involve the beaches of South Carolina or Florida.

WHaT are your favoriTe books, anD Have you reaD any recenTly, or are reaDing noW, THaT you WoulD recommenD?

I must confess that with all the reading that lawyers and judges do, I have never been a person who regularly reads as a leisure activity. I have read most all of the Dan Brown books including The DaVinci Code, Angels and Demons, and Deception Point. Having thoroughly enjoyed those books, I must agree with the proposition that the movie is never as good as the book.

As far as recommendations, I would recommend anything written by Dan Brown. He has a very interesting style of writ-ing that holds the reader’s interest.

WHere DiD you groW up anD HoW WoulD you Describe your cHilDHooD?

I would have to say you would have to look far and wide to find a person who had a better childhood than me. I grew up on the family farm in Brazil, Indiana. My mother’s family owned a small business known as Casassa’s Dairy Farm. This was one of the few and then finally the only dairy in Indiana where we grew the grain to feed the cows, milked the cows, pasteurized and homogenized the milk, put the milk in glass containers, and delivered it to the homes and stores of Clay County. Rarely do you see a business that is involved in the manufacturing of a product from start to finish.

The family business involved grandparents, uncles, aunts, siblings and cousins. It is truly a family business which con-tributed to the closeness of our family. To this day there are still approximately forty family members that live within a few miles of each other in Clay County. During high school, and while attending college at Indiana State, I always had a sum-mer job on the family farm. In fact, my wife of thirty years, Nancy, who was my high-school sweet heart, used to help me on the milk route delivering milk to people’s homes.

Although the home delivery dairy business has long since given way to the large chain stores, our family still farms ap-proximately 1500 acres.

Do you Have a favoriTe quoTe?

I have always wanted to be one of those people who could rattle off famous quotes and maybe one of these days I will be. In the meantime, I guess I will settle for the following: “Well done is better than well said.”—Benjamin Franklin.

“What I love most about the law? It’s that every now and again—not often, but occasionally—you get to see a part of justice being done. That really is quite a thrill when that happens.”—Andrew Becket, the movie Philadelphia.

WHere is your favoriTe vacaTion spoT?

My family and I love the ocean and the beach. My nephew is a fishing boat captain in Hilton Head, South Carolina and we enjoy vacationing with him and his family. We are also particularly fond of Siesta Key, Florida. If there is a more beautiful beach with more perfect sand than Siesta Key’s, then I am not aware of it.

WHaT is your favoriTe meal, recipe, anD resTauranT?

My family and I are pretty much addicted to crab. If you want the family to come over for dinner, then just have crab on the menu. We love King Crab, Snow Crab, Stone Crab, and Dungeness Crab. As you might imagine, our favorite restaurants are seafood restaurants. When we do make it to Indianapolis, it is kind of a standing joke in our family that my wife would rather go to Joe’s Crab Shack than one of the fancy steak houses that are available.

the Bowling JudgeIn addition to bowling in the local bowling leagues, I have had the pleasure of participating in state and national bowling tournaments. Although I have had some success at the state level, I quite frankly have never fared well in the national bowling tournaments. This photograph is of me participating in the National U.S.B.C. Bowling Tournament in Reno, Nevada in April. Quite frankly just participating in the national bowling tournament is interesting. There is a lot of pomp and circumstance at the national level, and whether you bowl well or not, it is always held at an interesting place. Last year’s tournament was in Las Vegas, Nevada and next year’s tournament will return to Reno, Nevada.

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Marshall county courts launch state-of-the-Art Video teleconferencing technologyUnder the leadership of Marshall Superior Court #2 Judge Dean A. Colvin and with the support and cooperation of the Marshall County Sheriff Jon VanVactor, the County Commissioners, the County Council, the IT Department, Marshall Circuit Court Judge Curtis D. Palmer and Marshall Superior Court #1 Judge Robert O. Bowen, Marshall County launched its new video conferencing technology on April 19, 2010. Judge Colvin and Sheriff VanVactor demonstrated how easily and clearly court hearings would take place without having to transport defendants to the courthouse. The county anticipates significant savings in the amount it spends in securing the transfer of defendants who have to be brought to the courthouse for initial hearings and other short proceedings. The new technology will also enable the Marshall County courts to conduct hearings with state correctional facilities, and the officials are proceeding with the necessary steps to accomplish this connection. Laurie Baker, Marshall County Court Administrator, says: “We absolutely love using the video conferencing, what a great thing for the Court and the Sheriff’s Department.”

In addition, the new technology provides the Marshall County courts with enhanced evidence presentation through the use of digital recovery and reproduction. The system also provides functionality which allows courts to use video recording in all court proceedings, if a court so desires. The Marshall County system is consistent with Indiana Supreme Court Rules that provide for the use of video conferencing in certain court proceedings. Lilia Judson, Executive Director of the Division of State Court Administration, and Mary DePrez, Director and Counsel of Trial Court Technology (JTAC), were on hand for the presentation and shared their enthusiasm for the new system with the Marshall County officials and staff.

Problem Solving Courts Establishes the certification of problem solving court models for the judicial monitoring of treatment and rehabilitation including: (1) drug courts, (2) reentry courts, (3) mental health courts, (3) family dependency drug courts, (4) community courts, (5) domestic violence courts, and (6) veterans’ courts. Courts with civil, criminal or juvenile jurisdiction may establish a problem solving court. Eligible criminal defendants and juveniles may participate in a problem solving court pre- or post-conviction or disposition. The board of directors of the Indiana Judicial Conference must adopt rules for the certification and operation of problem solving courts. The Indiana judicial center will oversee the certification of problem solving courts. It also repeals the current drug court and reentry court statutes. H.E.A. 1271, P.L. 108-2010.

PROBATE LAW

Courts may appoint volunteer advocates for incapacitated adults and seniorsThis provides that, rather than individual advocates, a court will appoint volunteer advocates for seniors programs or for incapacitated adults programs. It makes changes to the reporting requirements for, duties of, and appointments to programs. A program representative may petition the court for reasonable compensation or reimbursement of expenses. Probate courts in adjacent counties may establish joint or multiple county programs. Probate courts may contract with an Indiana nonprofit or municipal corporation to provide programs. Programs will have the duties of a guardian of a minor. Programs will have certain guardianship responsibilities concerning minors in the program, and regarding the property of an incapacitated adult or senior. H.E.A. 1169, P.L. 72-2010.

CONTINUED FROM PAGE 9

BY lIlIA g. JUDsoN execUtIve DIrector, stAte coUrt ADMINIstrAtIoN

Left to right: Commissioner Jack Rose, Judge Robert Bowen, Judge Curtis Palmer, Commissioner Tom Chamberlin, Judge Dean Colvin, and Commissioner Kevin Overmyer.

General Assembly Highlights


By now you should have received the spanish initial Hearing-Juvenile Delinquency DVD.

The DVD is the latest undertaking by the Indiana Supreme Court Commission on Race and Gender Fairness and you can begin utilizing the DVD right away in your court. The Commission is grateful for the partnerships of the Indiana Judicial Conference Juvenile Benchbook Committee, the Marion County Public Defender Office Juvenile Division, a hard working team of certified interpreters, and the Indiana Supreme Court in bringing this project to life.

It is our hope that this DVD will be useful for either group or individual viewing prior to an initial hearing where the individual or his or her parents or guardian may be Spanish-speaking or have limited English proficiency. Please take a few minutes to review the DVD so you can determine how it may be best used in your court. If you have the resources, you may wish to play the DVD on a loop for constant viewing. There are limited extra copies available, but the DVD will soon be available online at courts.in.gov/espanol. Should you have any questions, please contact Camille Wiggins at [email protected], or 317-232-2542.

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If you need assistance with drafting or setting up an employee performance appraisal, or have any other concerns related to this topic, call your friendly legal

advisor on employment law at 317-234-3936 or email her at [email protected].

BY BreNDA roDeHeffer DIrector of offIce AND eMPloYMeNt lAW servIces, stAte coUrt ADMINIstrAtIoN


BrENda'S BaILIWICK

Experts on employee management are divided regarding whether employers should conduct annual performance appraisals of staff. Judging by the show of hands at the recent Judicial College seminar on office management, Indiana’s judiciary is also divided in its use of performance appraisals. The purpose of this article is to succinctly set forth the pros and cons so each court may make its own decision.

A substantial number of management and human resource experts no longer use traditional performance appraisals. The reasons for abandoning the tradition include: most people dislike giving and receiving the appraisals, it takes a significant amount of time, it will produce an inaccurate record, and appraisals are a poor substitute for good management. At least one acknowledged business management expert, W. Edwards Deming, argued that performance appraisals breed resentment and cause poor morale even for the best-performing employees. Take the example of an employee who is rated high in multiple categories, but is given a “meets expecta-tions” in attendance. More likely than not, the employee will be angry about the “meets expectation” rating for attendance, rather than being motivated by the high marks in other categories. The trend against performance appraisals is increasing. UCLA professor Samuel Culbert, in collaboration with Lawrence Rout of the Wall Street Journal, has written a book, Get Rid of the Performance Review, in which he exco-riates the common rationales for giving performance appraisals. Of course, Dr. Cul-bert and others who argue against performance appraisals are not dispensing with the need to assess employee performance. Rather, they promote giving on-going,

reciprocal feedback and working directly with each employee to promote a sense of trust, true teamwork and improved performance from both supervisor and subordinate.

Nevertheless, performance appraisals are a strong tradition in the office work-place. There are few white-collar souls who have not felt the dread of meeting with a supervisor to receive a perfor-mance appraisal. The number one rea-son for giving performance appraisals is to determine who will receive raises and how much. Few government organiza-tions have the luxury of giving raises in the current economy, which means the primary reason for giving performance appraisals does not currently exist for most courts. The next major reason for performance appraisals does not change with the economy: to aid employee development. A performance appraisal is an opportunity for a supervisor and subordinate to share observations, give feedback, set objectives and goals, and discuss issues and concerns. For many supervisors, none of this will be ac-complished without the structure of a formal appraisal and evaluation session.

If an employer decides to conduct per-formance appraisals, the employer must accomplish the process correctly or the performance appraisals could become litigation landmines for the employer. Too often the only written records of performance in employees’ files are an-nual or infrequent performance apprais-als. These can become primary docu-mentary evidence in a discrimination trial. If the supervisor has not done a good job of documentation, the super-visor essentially makes the employee’s case against the employer. “Isn’t it true that in 2009, you rated John as highly dependable in all categories?” There-fore, if a court chooses to do formal evaluations, it is crucial that the court does the evaluation correctly.

To DoPerformance

Not To Do?ApprAisAls...or

Keys to preparing an accurate and valuable performance appraisal include:

Be Prepared.The performance appraisal should not be done in a vacuum, nor should it reflect only the performance of the last thirty days. Throughout the year, the supervisor should be giving feedback to the employee on performance, good and bad. Simple notes stored in a fact file only for the supervisor’s eyes can be kept to docu-ment this feedback. The employee should not be surprised at what is written in the evaluation because the employee should have heard it all previously.

Don’t Squeeze It In.Do not conduct the performance appraisal until the rater has had time to give due consideration to the judg-ment calls in a performance review. Then the supervisor/subordinate meeting needs to be scheduled when there is plenty of time to discuss the ratings. Appraisals cannot be done in a hurry.

Be Accurate.Inaccuracy is probably the most com-mon error and the one most likely to cause future problems. Subjec-tivity cannot be eliminated from an appraisal, but there must be a thorough assessment of performance in multiple categories, good and bad. For example, when an employee has a habit of coming in late, this needs to be recorded even if the employee’s overall performance means that the tardiness is only a minor issue. It is much easier to deal with an issue and/or keep it from becoming a major problem if it is at least noted and a brief discussion is held.

Recognize Strengths.Each person wants to be a valuable asset to the individual’s organiza-tion. No one aspires to be a slacker. Performance appraisals should be used to have a meaningful conversa-tion about the employee’s strengths and how to use those assets to most help both the organization and the employee. A good performance appraisal will provide the employee with a roadmap on how to be of greater value to the organization.

Follow Through.A supervisor who has taken the time to do a performance appraisal should keep that good management momentum and follow through with informal meetings and notes. If this is done, the next year’s evaluation should be easier as well. In addition, the overall performance should have improved due to the consistent con-structive criticism and praise.

Each judicial supervisor will need to make an individual determination as to whether or not to give perfor-mance appraisals. Giving or not giving performance appraisals is only one component in management of employees. All supervisors must en-sure that each employee understands the job, each employee is provided the tools needed to accomplish as-signed tasks, and each employee is recognized for positive achievements. In an ideal office, every employee will be dedicated to meeting the goals of the court. This won’t happen unless the court encourages, mentors and coaches the employees as part of a team serving the public.


SPOTLIGHT

Indiana Supreme Court Justice Frank sullivan Jr., received the American Bar Association Section of Litigation’s 2010 Diversity Leadership Award. The award was presented during the section’s an-nual conference in New York City on April 21. The award was established in 2008 to recognize those individuals who have demonstrated a commitment to promoting full and equal participation in the legal profession through proac-tive encouragement and inclusion of women, people of color, persons with disabilities and persons of differing sexual orientations and gender identi-ties in the profession.

Indiana Tax Court Judge thomas g. Fisher received the highest honor that the Maurer School of Law at Indiana University-Bloomington can bestow on a graduate. He was inducted into the Academy of Law Fellows in a celebra-tion held in the Indiana Memorial Union on April 16, 2010. The honor is in recognition of his distinguished career and dedication to the legal pro-fession.

workplace spanish class still AvailableThe Supreme Court, Indiana Judicial Center, and Division of State Court Administration continue to partner with Ivy Tech Community College to offer WorkPlace Spanish Classes. This 24 hour course teaches basic Spanish communication skills to assist staff in working with the Spanish speaking population. In addition to the class-room experience, the course book and accompanying CD enhances the par-ticipants learning and maintenance of these new skills. Since the fall of 2006, nearly 700 court staff and clerks have taken this course.

Information concerning this course and the eligibility criteria can be found at: courts.in.gov/center/spanish-course. Courses are scheduled directly with the Ivy Tech regional representatives listed on the course web page.

If you have additional questions or need more information, please contact Michelle Goodman at 317-232-1313 or [email protected].

courttimes now has a blog!Our newsletter is now available entirely online in a searchable website with email subscription.

courts.in.gov/timesIf you like the blog version better than the magazine, you can unsubscribe from the paper version by emailing Andrea Rusk at [email protected].

Subscribe to the blog by email or with the RSS reader of your choice.


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Indiana Supreme Court Division of State Court Administration 30 South Meridian Street, Suite 500 Indianapolis, IN 46204

eDitORiAl BOARD

lilia g. Judson, Publisher Executive Director, State Court Admin.

David J. remondini, Managing Editor Chief Deputy Executive Director, State Court Admin.

James f. Maguire, Editor Staff Attorney, State Court Admin.

lindsey Borschel, Publication Designer Web Coordinator, State Court Admin./JTAC

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

lilia g. Judson Executive Director, State Court Administration

tom carusillo Director of Trial Court Services, State Court Administration

Brenda rodeheffer Director of Employment Law Services, State Court Administration

James r. Walker Director of Trial Court Management, State Court Administration

Donna edgar Odyssey Project Manager, State Court Administration / JTAC

James f. Maguire Staff Attorney, State Court Administration

PLEASE CIRCULATE TO CO-WORKERS

This newsletter reports on important administrative matters. Please keep for future reference.

Documents

Indiana Court Times 19.3