Wednesday, January 22, 2014

How to get a 28 year Protective Order lodged against you and then waste time appealing it

22 January 2014

The Indiana Court of Appeals delivered an opinion in A.N. v K.G. Yesterday which it chose to publish. [A published opinion is one that can be used as precedent and usually reflects an important legal decision or a change to prior decisions] The matter was originally heard in the trial court by Barbara Crawford, Judge Marion County Superior Court.

On May 18, 2010, K.G. filed an ex parte motion for a protective order against A.N., which the trial court granted the same day. On June 11, 2010, following a hearing, the trial court granted him a protective order for two years. The protective order prohibited A.N. from acts of violence, stalking, and “harassing, annoying, telephoning, contacting or directly or indirectly communicating with” K.G. and three other persons.

Over the course of two years K.G. filed multiple information for contempt alleging that A.N. had in addition to making “non-stop” phone calls to his home phone and his ex-wife’s phone, A.N. had “spray painted [his] knew [sic] house.” Upon the first hearing, April 5, 2011, the trial court found A.N. in contempt. She received a suspended sentence of 120 days in the Marion County Jail and was ordered to complete 80 hours of community service and pay a fine. K.G. later claimed that A.N. had made numerous calls to his home and that he possessed a picture of his home phone that recorded the telephone number A.N. used. K.G. alleged that on one occasion, he spoke to A.N., who said, “I’m back[.] [Y]ou better watch your ass.” When reminded by K.G. that a protective order was in place, A.N. allegedly responded, “F*** that protective order[.] I can do what I want.” Apparently so but that can come with consequences. The trial court found that A.N. violated the protective order and ordered her 120 day sentence executed and placed her on home detention. The trial court thereafter extended the protective order to November 29, 2040, for a total of 28 years.

I won't go into a detailed legal analysis of A. N.'s appeal as most of it was without merit. However, the one issue that deserves attention was her claim that the judge acted as an advocate. This is something that it often brought to me as a concern by potential clients when the judge asked questions during the proceeding or made sua sponte [on the judge's own motion] objections. The Court of Appeals addressed it in this manner;

The record shows that the trial court’s questions were neutral, served to clarify K.G.’s testimony, and did not discredit A.N. or her defense. Although A.N. alleges prejudice since the trial court cited the photograph when explaining its rationale for finding A.N. in contempt, A.N. was not prejudiced because she cross-examined K.G. on the photograph. We therefore conclude that the trial court did not act as an advocate by asking K.G. foundational questions regarding the photograph. See Trotter, 733 N.E.2d at 532.

A trial court has a duty to remain impartial and refrain from making unnecessary comments or remarks. Cook v. State, 734 N.E.2d 563, 566 (Ind. 2000), reh’g denied. However, not all untoward remarks by a judge constitute reversible error. Id. at 567. The remarks must harm the complaining party or interfere with the right to a fair trial. Id. Further, the court does not engage in improper advocacy by stopping improper cross-examination on its own motion. Id.

The record reveals that each time the trial court interrupted A.N.’s cross-examination, the questions posed either mischaracterized K.G.’s testimony or were argumentative. However, the critical question here is whether the trial court’s remarks harmed A.N. or denied her a fair trial. See id. They did not. In the first instance, A.N. simply rephrased the question and proceeded with cross-examination. After intervening in the three instances of argumentative questioning, the trial court sought to move the proceedings forward, for example, by instructing A.N.’s counsel to “stick with the facts of these contempt petitions.” Consequently, A.N. has not shown that the trial court’s remarks constituted improper advocacy or interfered with her right to a fair trial. See Cook, 734 N.E.2d at 566.


Legal analysis of the proceedings aside, the important fact to take away from this is that violation of a Protective Order or a No Contact Order can result in a civil order of confinement. It can also lead to a separate criminal charge. As in this case A.N. is going to be burdened with being required to comply with this order until the year 2040. She seems to demonstrate a clear unwillingness to comply for the first three years, even after incarceration, and if it doesn't cease a criminal charge will likely follow.

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Under-reporting of crimes against children, Domestic Violence data collection - 2014 Indiana House Bill 1137

22 January 2014

A bill to add the under-reporting of crimes against children to the duties of the Commission on Improving the Status of Children and having the Department of Health evaluate Domestic Violence incidents was introduced by Representatives Hale, Turner, McMillin, and Macer.

The synopsis of the bill is;
Reporting of sex crimes against children. Requires the commission on improving the status of children in Indiana to study and evaluate the underreporting of crimes against children. Requires the state department of health or the office of women's health to conduct a study to determine the number of persons who are the victims of crimes of domestic and sexual violence, the reasons why these crimes are underreported, best practices to improve reporting, and the most effective means to connect victims with appropriate treatment services. Establishes a framework for the study, and permits the department of health or the office of women's health to contract with a third party to conduct the study. (The introduced version of this bill was prepared by the criminal law and sentencing policy study committee.)

The bill adds an additional duty of the Commission under IC 2-5-36-9 which states that the Commission shall also study;
(J) Underreporting of crimes against children, including the reasons for underreporting.

Much of the bill relates to having the Indiana Department of Health identify Domestic Violence incidents. Specific points of data analysis relate to domestic and sexual violence are stipulated in this bill. This data will give service providers and policy makers more specific and accurate information that will help guide them in targeting resources more directly to those in need. Here are some of the distinctions that the bill draws:
(a) Before July 1, 2015, the office or the state department shall conduct a study to do the following:
(1) Determine the extent to which crimes of domestic and sexual violence are underreported.
(2) Identify which crimes of domestic and sexual violence are more commonly underreported.
(3) Investigate differences between the reporting of crimes of domestic and sexual violence committed:
(A) against children;
(B) against adults;
(C) in urban areas;
(D) in suburban areas; and
(E) in rural areas.
(4) Investigate and identify reasons why the victims of unreported crimes of domestic and sexual violence do not report these crimes, both in general and with reference to specific crimes.


Concerning acts of Domestic Violence, this bill will have the Committee;
(8) Make recommendations concerning best practices to:
(B) provide resources for persons who are the victims of crimes of domestic and sexual violence; and
(C) make educational, therapeutic, and other resources available to victims of crimes of domestic and sexual violence who may have not reported the crimes.


Much of the remainder of the bill is in regards to data gathering and trying to identify variations in population victimization and trends. This section will expire on 30 June 2016.



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Tuesday, January 21, 2014

The reason that passing 2014 Indiana HJR3 will deny to Hoosiers the opportunity to decide the Definition of Marriage

21 January 2014

Last week the Indiana House Judiciary Committee heard testimony on HJR3, the resolution to amend the Indiana Constitution by defining marriage as between one man and one woman. The amendment would ban people with like genitalia from marrying or being legally joined in a manner that resembles marriage. The controversy has essentially been reduced to a dichotomy of those supporting and those opposing “homosexual rights.” However, the language of the resolution does not make direct reference to sexual activity.

Proponents posit contrasting positions -- consistent with this dichotomy – those being the correlating positions of those who are in favour of passing the resolution want to give Hoosiers the opportunity to vote on the measure[fn1] while those opposing it are said to oppose the opportunity for a citizen vote. Conversely, opponents posit their contrasting positions which are those in favour of passing the resolution oppose giving all Hoosiers the opportunity to wed while those opposing HJR3 are said to give homosexuals the opportunity to be full citizens. However, both of these positions fail to encapsulate the true nature of the constitutional argument and the opportunity for the will of the citizenry to be met.

Paramount to the will of the citizenry argument is the referendum portion of the constitutional amendment process. Of course we do not have democracy as our form of government but, instead, we have a republican form of government based upon democratic principles. The direct will of the people is filtered through the Madisonian form which places a high value on representatives. That is, the people elect a Congress [in this immediate case a state legislature] who in theory represents the interest of the populace in accordance with constitutional mandates and proscriptions or protections as they may be called. Calls for direct referenda have increased in recent years as legislatures seem to fall out of touch with the desires of individuals and align themselves more closely to special interest. Issues disposed to referendums are decided by popular vote and are therefore direct democracy. Modern technologies make referendums more feasible now than in the past which has, in part, led to greater acceptance. But this may be a threat to the very democratic republic which provides that opportunity. Eule discusses referendums further in Judicial Review of Direct Democracy, 99 Yale L.J. 1503 (1990).

The Constitution reposes sovereign authority in the people. This is not blind authority to do as they will but to create the mechanisms of authority and retain control [elections] over the mechanisms and the characters in place. Judicial review is a mechanism by which the courts may invalidate decisions of the legislative or executive branches, subject only to the burdensome process of constitutional amendment. This is the crux of HJR3. Proponents state their objective is to take existing statute Indiana Code 31-11-1-1 and fix it in the Indiana Constitution which would bind the judiciary and future legislatures to the will of our current legislature and the majority of the voting populace at this time.

The United States Supreme Court in 1936 articulated the essentially mechanical process of judicial review where the Court wrote;
It is sometimes said that the court assumes a power to overrule or control the actions of the people's representatives. This is a misconception. [When] an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate the judicial branch of the Government has only one duty, – to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.”[fn2]

Thus, the court is bound to apply the constitutional amendment as written when challenged by a statute that appears contradictory. This is to avoid having matters of significant importance decided along the prevailing political sentiments of the time. Current legislatures and citizens are forced then to conform to the wishes of the people, all of them dead, expressed many years ago. However, just as now, the past origination of and subsequent amendments to the Indiana Constitution were made at the behest of the majority – legislators elected by a majority, resolutions passed by a majority of legislators, and referendum passed by a majority of voters -- based upon the prevailing political sentiments of those times. A more detailed analysis of this concept is provided by Ackerman in Discovering the Constitution, 93 Yale L.J. 1013, 1023, 1049 (1984).

It may be considered an axiom that the binding force of the Constitution facilitates democratic self-governance rather than impedes it. It is precisely the guarantee of individual freedoms and the restraint on the ebbs and flows of popular will of the majority that preserves democratic liberty. Within the confines of judicial restraint there does however exist a model for flexibility and judicial activism to comport with the efficacy of constitutional law consistent with the position and will of man in the current times. That is the degree to which many of the U.S. Constitution's provisions are vague and ambiguous. Their interpretation as well as those of the many states does call for the exercise of discretion – judicial activism as it is sometimes put. It is these circumstances that the tension between judicial review and the democratic principles of self-governance become more acute. Two years prior to it's mechanistic analysis the U.S. Supreme Court had this to say about it's constitutional interpretation;
[i]t is no answer [to] insist that what the provision of the Constitution meant to the vision of [the framers'] day it must mean to the vision of our time. If by the statement that what the Constitution meant at the time of its adoption it means today, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them, that statement carries its own refutation.[fn3]

From this perspective it appears plausible that the text of the Constitution suggest that the framers intended to delegate, to the people in the future, the power to make decisions about what the provisions means in the particular circumstances. What I mean by the people in the future here is the judges who are appointed after a vetting process consistent with the wishes of the elected representatives so selected to confirm the justices.

So in its application to HJR3 and the definition of marriage, or more succinctly to the prohibition of solemnizing relationships appearing similar to marriage, it could be said that the legislature crafting such language now intends for the people of the future to decide the definition of marriage. Likewise it is further argued that the future justices are not given a blank slate from which to draw their interpretation. “If the abstract statement is chosen as the appropriate mode or level of investigation into the original intention, then judges must make the substantive decisions of political morality not in place of judgments made by the 'Framers' but rather in service to those judgments.” Dworkin, The Forum of Principle, 56 N.Y. L. Rev. 469, 490 (1981).

In drafting HJR3 it is the purpose to withhold from judicial review and the future legislatures the ability to determine what constitutes marriage[fn4]. For their agenda they have chosen that it shall be between one man and one woman. This is consistent with a 1997 statute[fn5] that so defines marriage as between one man and one woman which was the prevailing mood of a different legislature. The amendment process requires that the matter go to the voters by referendum. The Indiana Family Institute opposes HJR3 because of the claim that it makes fathers optional[fn6] which is a valid complaint although I contend the more important matter is two parents rather than one. Where I come into greater disagreement is in the claim of the Indiana Family Institute that HJR3 will “giv[e] the people the freedom to decide the future of marriage in Indiana.”[fn7]

In light of the forgoing analysis HJR3 will have the opposite effect. A future legislature will not be able to redefine existing statute or create new statute to solemnize marriages or relationships so similarly situated to include anything other than one man and one woman. The future justices of courts will be bound to strike down any provision that grants liberties otherwise. While the justices may have the ability to determine the constituent parts of what amounts to a marital relationship they are still bound to grant it only to the union of one man and one woman.

By the very statements of those who drafted HJR3 and the numerous proponents of this legislation the purpose is not to give “the people the freedom to decide” but rather to take away the very freedom that the people currently retain to decide.

About the writer:
Stuart Showalter is an advisor to policy makers in Indiana's legislative, judicial and executive branches providing analysis and novel approaches in matters relating to child custody and general child well-being. He also coaches parents and attorneys in specific child custody cases and appears as an expert witness for child placement purposes.

Footnotes
[1] Article 16 of the Indiana Constitution provides the process for amending itself. For more about the process of amending the Indiana Constitution see ballotpedia.org/Article_16,_Indiana_Constitution
[2] United States v Butler, 297 U.S. 1 (1936)
[3] Home Building & Loan Association v Blaisdell, 290 U.S. 398, 442-443 (1934)
[4] 2014 Indiana HB1153
[5] I.C. 31-11-1-1
[6] Ryan McCaan, Testimony on HJR3 before the House Judiciary Committee, 14 January 2014
[7] Curt Smith, Indiana Family Institute, letter to supporters 20 January 2014.

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Monday, January 20, 2014

Domestic Violence advocate for victims in civil proceedings - 2014 Indiana Senate Bill 138

20 January 2014

Senator Vaneta Becker has introduced a bill relating to Domestic Violence advocates and service providers in civil proceedings.

Here is the synopsis of the bill;
Victim advocates in civil proceedings. Removes restrictions on grants from the victim services division of the Indiana criminal justice institute for certain entities to enter into a contract with the domestic violence prevention and treatment council. Provides that a court may allow a victim advocate to attend a civil proceeding and confer with a victim as necessary. Specifies that a victim advocate is not considered to be practicing law when performing certain services.

The following language would be stricken from the current statute;
[strike] However, the division may not grant more than seventy-five percent (75%) of the money necessary for the establishment or maintenance of a domestic violence prevention and treatment center during a specified time. The amount granted by the division for use by a single domestic violence and prevention treatment center may not exceed one hundred thousand dollars ($100,000) each year. [close]

This is replaced by three lengthy section that define “victim,” “victim advocate,” and “victim service provider.” Each includes a provision that services relate to someone who “is not accused of committing an act of domestic or family violence” and other related offenses.

The fourth, and final, section is as follows;
(a) In any civil proceeding, a court may allow a victim advocate to attend the proceeding, sit with the victim, and confer with the victim as necessary.
(b) A victim advocate is not considered to be practicing law when performing the services described in this section.


What I do like about this bill is that it provides clear definitions and allows for advocates to become more involved in the judicial process in an effort to mitigate acts of Domestic Violence. However, unless I have missed it elsewhere I strongly oppose the unilateral approach that it takes towards Domestic Violence - essentially that Domestic Violence is the result of the “victim” not receiving services. The existing language ion the statute provides that services are to include “domestic violence prevention and treatment.” While prevention can be based upon avoiding perpetrators it should also include preventing perpetrators from committing the acts or having the desire to do so. This should include treatments such as anger management, effective communication skills, and cognitive behavioural therapy.

For illustrative purposes I will use shoplifting as an example. This phenomena can be attacked from two perspectives; 1] store based preventative measures [locked display cases, RFID tags, personnel selection], and 2] offender treatment [incarceration, CBT, employment opportunities]. It would seem logical to try this dual attack approach. Providing increased knowledge and security measures to stores but also providing services to the offenders to get at the root of what is sometimes simply an underlying compulsion to steal although one is sufficiently financially able to pay. To deny services to offenders would essentially proclaim the problem to be one that is victim based and incidents would likely increase.

Domestic Violence is a phenomena that can be attributed to a cycle. That is it is primarily a learned behaviour from parents. Perpetrators say or experienced Domestic Violence as a children as a means of exertion of control. In our society and similarly in Germany it is still widely acceptable to teach children, by example, that the reinforcing stimulus to achieve compliance with one's commands is violence. Similarly, “victims” have been taught that violence is the result of a violation of rules and that it is deserved. Both assessments are wrong.

Violence as a means of exerting control is wrong and both “victims” and perpetrators need to hear that message and be able to receive services that can help convey that message.

Proposed amendments -
NEW SECTION
As used in this chapter, “alleged perpetrator” means:
(1) an individual against whom an act of:
(A) domestic or family violence;
(B) dating violence;
(C) sexual assault (as defined in IC 5-26.5-1-8);
(D) human and sexual trafficking (IC 35-42-3.5); or
(E) stalking (IC 35-45-10-5);
has been alleged or substantiated.

AMENDED Sec. 4. (a) In any civil proceeding, a court may allow a victim advocate to attend the proceeding, sit with the victim, and confer with the victim [insert]or alleged perpetrator[close] as necessary.

This bill has been referred to the Senate Judiciary Committee. It is scheduled for a Committee hearing on Wednesday 22 January 2014 in Room 130 of the Indiana State House at 0900.

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Saturday, January 18, 2014

Bill to Amend Non-Support of a Dependent Child Statute IC 35-46-1-5 - Child Support 2014 Indiana Senate Bill 63

17 January 2014

2015 Indiana Child Support Guidelines
review scheduled for public comment



Senator Michael Young, Chair of the Committee on Corrections & Criminal Law, has introduced a bill that will bring greater continuity to and increase the level of equity in cases of non-support of a dependent as a criminal offense. The current statute has plagued courts, practitioners and defendants because of the perceived ambiguity of the statute through inclusion of a dollar amount in the sentencing enhancement portion of the statute.

The synopsis of the bill is;
Nonsupport of a child. Changes the penalty enhancement for nonsupport of a child from a Level 6 felony to a Level 5 felony if the person has a previous conviction for the offense. Changes the procedure for a court to lower the penalty for a person convicted of nonsupport of a child. (The introduced version of this bill was prepared by the criminal law and sentencing policy study committee.)

Here is the portion of the bill that would affect the charge of criminal non-support of a dependent - IC 35-46-1-5;
[strike]if the total amount of unpaid support that is due and owing for one (1) or more children is at least fifteen thousand dollars ($15,000).[close] [insert]the person has a previous conviction under this section.[close]

The inclusion of “fifteen thousand dollars” as well as the phrase “due and owing” has led to confusion about whether this section applies to civil child support payment orders. However, the statute is clear and unambiguous in that it does not include court ordered child support payments. IC 35-46-1-1 provides a clear definition of “support” as “food, clothing, shelter, or medical care ” Under the application of statutory construction the “fifteen thousand dollars” and “due and owing” cannot represent a child support payment amount. Expressio unius est exclusio alterius deems child support payments to be specifically excluded from the “support” contemplated by the legislature when this law was crafted. Expressio unius est exclusio alterius is a latin legal phrase [called a maxim] which means – that which is not included is excluded. The legislature was specific in proscribing only four categories of support that qualify as inclusive of the domain in which criminal accountability is contemplated. Thus, lack of “emotional support” or “learning aides” are not within the purview of IC 35-46-1-5. Educational neglect is specified under IC 35-46-1-4(a)(4) while emotional abuse may fall within the auspices of general abuse and neglect under IC 35-46-1-4(a)(1).

The only logical application of “fifteen thousand dollars” or the phrase “due and owing” would be to medical bills as it is highly unlikely that food, clothing or shelter would be provided on credit for any amount that could come close to $15,000. This can create a great disparity in application of the law. While one parent could regularly take a child for treatment at a hospital emergency room and not pay for five visits while not breaching the $15,000 threshold, another could breach that limit from one severe trauma such as an open cranial TBI. There was also no requirement that the person must have had the ability to pay the outstanding bills. I find that to be a substantive due process issue.

The remainder of the bill applies to the sentencing portion and post execution reduction of the offense level.

The bill adds the following section to IC 35-50-2-6 that replaces the existing language which was not as precise and was more discretionary in the process.

(c) Notwithstanding subsections (a) and (b), if a person commits nonsupport of a child as a Class C felony (for a crime committed before July 1, 2014) or a Level 5 felony (for a crime committed after June 30, 2014) under IC 35-46-1-5, the sentencing court may convert the Class C felony conviction to a Class D felony conviction or a Level 5 felony conviction to a Level 6 felony conviction if, after receiving a verified petition as described in subsection (d) and after conducting a hearing in which the prosecuting attorney has been notified, the court makes the following findings:
(1) The person has successfully completed probation as required by the person's sentence.
(2) The person has satisfied other obligations imposed on the person as required by the person's sentence.
(3) The person has paid in full all child support arrearages due that are named in the information.
(4) The person has not been convicted of another felony since the person was sentenced for the underlying nonsupport of a child felony.
(5) There are no criminal charges pending against the person.
(6) The prosecuting attorney agrees to the reduction of the penalty.
(d) A petition filed under subsection (c) must be verified and set forth the following:
(1) A statement that the person was convicted of nonsupport of a child under IC 35-46-1-5.
(2) The date of the conviction.
(3) The date the person completed the person's sentence.
(4) The amount of the child support arrearage due at the time of conviction.
(5) The date the child support arrearage was paid in full.
(6) A verified statement that no further child support arrearage is due.
(7) Any other obligations imposed on the person as part of the person's sentence.
(8) The date the obligations were satisfied.
(9) A verified statement that there are no criminal charges pending against the person.
(e) A person whose conviction has been converted to a lower penalty under this section is eligible to seek expungement under IC 35-38-9-4 with the date of conversion used as the date of conviction to calculate time frames under IC 35-38-9.


In the last session of the general assembly the criminal offenses were re-codified and offense levels were changed from alphabetical to numerical designations. The prior Class D felony has been split into two levels consisting of Level 5 and Level 6.

The term for a Level 5 felony is found in Indiana Code 35-50-2-6(c) ver. b A person who commits a Level 5 felony (for a crime committed after June 30, 2014) shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being two (2) years. In addition, the person may be fined not more than ten thousand dollars ($10,000).

The term for a Level 6 felony is found in Indiana Code 35-50-2-7(b) ver. c A person who commits a Level 6 felony (for a crime committed after June 30, 2014) shall be imprisoned for a fixed term of between six (6) months and two and one-half (2 1/2) years, with the advisory sentence being one (1) year. In addition, the person may be fined not more than ten thousand dollars ($10,000).

This bill was referred to the Committee on Corrections & Criminal Law where it passed 6-0 and went on to the full Senate. It is set for second reading on Tuesday 21 January 2014 at 1:30 p.m.

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Friday, January 17, 2014

Domestic Relations Committee to meet in January to discuss 2014 Amendments to the Indiana Child Support Guidelines

17 January 2014

2015 Indiana Child Support Guidelines
review scheduled for public comment



The Domestic Relations Committee of the Indiana Judicial Center is scheduled to meet on Friday 24 January 2014 to further discuss amending the Indiana Child Support Guidelines. By statute the DRC is required to review the ICSG every four years.

I plan to attend and present an overview of current legislation affecting child custody and support. The meeting is open to the public but is not a public input session. Start time is scheduled for 10:30. End time is usually prior to 4:00 p.m. with a break for lunch. The Indiana Judicial Center is located at 30 South Meridian Street in Indianapolis. If you would like to attend please contact me so I can have your name added to the guest list.

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